INTRODUCTION AND BACKGROUND TO CRIMINAL PROCEDURE:

Criminal Procedure and practice is a branch of law that is concerned with the process by

which persons alleged to have contravened penal laws are dealt with. Inevitably, the criminal

trial itself is the crux of this branch of law but related aspects both prior and incidental thereto

are equally important. It is concerned with the procedural law as opposed to substantive

criminal law.

Criminal Procedure seeks to strike a balance between two competing interests. On the one

hand is the interest of society through the State to punish crime and the need to ensure that the

rights and inherent dignity of the offender are respected on the other. Equally, beyond the

traditional protagonists in the criminal justice process, there is a paradigm shift towards a

victims centered process courtesy of the Victims Protection Act, 2014. This is exemplified by

the requirement of victim impact statement pre-sentencing trial.

The criminal process is undertaken by the State, which investigates and prosecutes criminal

proceedings through the Police and the DPP. The criminal process is believed to attach on

public interest as opposed to the civil process that attaches on individuals. Criminal

proceedings are believed to be of a public nature. Whenever criminal acts are committed, the

public generally is affected and the public needs to be protected from criminal activity.

Protection of public interest underscores the security that the general public would like to feel

that the State has capacity to protect the public. To secure the rights of the suspects and

accused person, the Constitution under Bill Rights provides for the rights of arrested 1 and

accused persons.2 The right of the victim to crime is also to be considered. Increasingly there is

need to recognize that the victim of crime has certain rights that need to be protected.

The parties to criminal proceedings are the State as the main complainant and therefore it is

always the State versus the individual with the state representing all the citizens.

1
Article 49 of the Constitution.
2
Ibid article 50.

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The centrality of the State and the accused was re-stated in the case of Republic v Cap Van

International Ltd and Another (2004) 2 KLR. It was held that there are only two parties

recognised in law, the Republic and the accused persons.

Equally, there is room allowed under the Criminal Procedure Code for individual

prosecution. Citizens who feel that the State is not willing to take up their cases and have to

tender evidence in court can approach court and the court at its discretion has to agree to

allow the person bringing the private prosecution whether to proceed. In criminal process

there is the regime of criminal courts, the structure and jurisdiction of the courts are clearly

indicated firstly within the constitution.

Players in the Criminal Proceedings

Criminal proceedings have various parties, each with defined roles. They include:

The State and Accused

These are the main parties in a criminal, expressed as ‘Republic Versus X’, where X represents

the accused. This underscores the fundamental duty of the State to protect the rights and

fundamental freedoms of its citizens. The centrality of the State and the accused in criminal

cases was restated in the case of Republic v Cap Van International Ltd and another (2004)

2KLR, where it was held that there are only two parties who are recognized in law; the

Republic and the accused person.

The prosecutorial authority in Kenya is vested in the Office of the Director of Public

Prosecution. The office is established under article 157(1) of the Constitution. Under Article

157(6) of the Constitution the DPP has the power 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.

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  Take over and continue any criminal proceeding commenced in any court that have

been instituted or undertaken by another person or authority, with the permission of

the person or authority.

 Discontinue, with permission of the court, any criminal proceeding at any stage before

judgment is delivered.

In Republic v Abdulahi Noor Mohamed3, the Court in rejecting the withdrawal of murder

charges after the families of victim and accused had reconciled noted that criminal trials are

matters of public interest instituted in the name of the state. Therefore, arrangements between

the accused person and the victim to withdraw the charges to the exclusion of the prosecution

are inconsistent with constitutional provisions bestowing prosecutorial powers on the DPP.

Other powers and authorities of the DPP are provided by the Office of the Director of Public

Prosecutions Act, 2013.

Complainant/Victim

A complainant is a person who lodges a complaint with the police or any other lawful

authority. A complainant may be a natural or juristic person. The complainant plays an

integral role in the continuance, withdrawal or termination of criminal proceedings. Under

Section 202 of the Criminal Procedure Code, a criminal proceeding may be terminated where

the complainant fails to attend court. Equally, a complainant may withdraw the complaint

before the court makes a final order in the matter.4

Police

The police play an integral role in the prevention, investigation and detection of crimes. The

criminal justice process often begins with the police. In exercising their authority to prevent

3
High Court at Nairobi Criminal Case No. 90 of 2013.
4
Section 204 of the Criminal Procedure Code Cap 75 Laws of Kenya.

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crimes, police officers arrest and process the suspect for purposes of arraignment before court.

In their investigative role, the police get to process, evaluate and tender evidence that is crucial

in criminal proceedings. They also play a crucial role in obtaining and processing witnesses.

Witnesses

A witness is a person who, as result of having present, observed, experienced or dealt with an

event or thing, is able to give an account of it in a court of law. Witnesses play a crucial role as

it is their testimony that aid the court to arrive at a decision

Judges or Magistrate

Judges and magistrates represent the authority and integrity of the judicial adjudicative

process. Their role is to apply the law and ensure that justice is achieved in the criminal

process.

JURISDICTION AND HIERARCHY OF COURTS

Introduction

The Courts in Kenya have jurisdiction over any criminal acts and omissions committed within

the borders.5 Where an offence occurs partly within Kenya and partly outside, it will be treated

as an offence under Kenyan law for which the courts have jurisdiction.6 Ordinarily, an offence

should be tried within the local jurisdiction in which it is has occurred. 7 In case it is unclear as

to where an offence occurred, or offences occurred in more than one area, the offence may be

tried by any court having jurisdiction over one of those areas.8

5
Section 5 of the Criminal Procedure Act Cap. 75 Laws of Kenya.
6
Ibid section 6.
7
Ibid section 71.
8
Ibid section 74.

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Definitions

Jurisdiction is the right to use power of an official body to make decisions on questions of law.

Hierarchy is a system by which members of an organization are grouped and arranged

according to higher and lower ranks.

Types of jurisdictions

1. Geographical/ territorial- the jurisdiction to hear and determine cases is defined by law

based on designated areas.

2. Pecuniary/ monetary- the jurisdiction to hear and determine cases is defined by law based

on designated financial value -levels.

3. Original- the jurisdiction of a court to hear the case the first time.

4. Inherent-the jurisdiction for a specific court to hear specific types of cases

5. Appellate- the jurisdiction of a court to hear a case the second time (on appeal)

1st instance- the jurisdiction of a court to hear the case for the first time

2nd instance- the jurisdiction of a court to hear a case the second time (on appeal)

Limited- jurisdiction is restricted to certain conditions.

Unlimited- jurisdiction is the authority to adjudicate matters without conditions.

Hierarchy of Courts

Supreme Court

The Supreme Court is established under article 163 of the Constitution and consists of the Chief

Justice, deputy Chief Justice and five other judges. The Supreme Court is properly constituted

for proceedings when it has five judges.9 The decisions of the Supreme Court are binding to all

Courts other than the Supreme Court.10

The jurisdiction of the Court is as provided to include:

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 Exclusive original jurisdiction to hear and determine disputes relating to the elections to

the office of President.

 Appellate jurisdiction to hear and determine appeals from the Court of Appeal and any

other court or tribunal as provided by law.

 The Court may give an advisory opinion at the request of the national government, any

State organ, or any County government with respect to any matter concerning county

government.11

Criminal Jurisdiction of the Supreme Court

The Constitution does not expressly allude to the Supreme Court as having criminal

jurisdiction. Rather, under Art. 163(3) (b) as read with clauses (4) & (5) thereof, the

Constitution vests general appellate jurisdiction on the Supreme Court to hear and determine

appeals from:

i. The Court of Appeal;

ii. Any other court or tribunal as prescribed by national legislation

As far as appeals from the Court of Appeal to the Supreme Court are concerned, they:

 lie as of right in any case involving the interpretation or application of the Constitution;

and

 lie in any other case in which the Supreme Court, or the Court of Appeal, certifies that a

matter of general public importance is involved.

Similarly, section 15 of the Supreme Court Act, 2011 provides that appeals to the Supreme

Court shall be heard only with the leave of the Court. Leave to appeal shall be granted where

the court is satisfied that it is in the interest of justice for the Supreme Court to hear and

determine the proposed appeal.12 Some of the instances when it is in the interest of justice to

hear the appeal include appeals involving a matter of general public importance or a

substantial miscarriage of justice may have occurred or may occur unless the appeal is heard.
11
Article 163(3) of the Constitution.
12
Section 16 of the Supreme Court Act No.7 of 2011.

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The decision of the Court of Appeal in respect of application for leave may be reviewed by the

Supreme Court and either affirmed, varied or overturned.13 An application determining leave

to appeal may be heard by two or more judges.14

In the case of Hermanus Phillippus Steyn v Giovanni Gnecchi-Ruscone15 the Supreme Court

set out the principles governing certification of matter as of general public importance as

follows:

a) For a case to be certified as one involving a matter of general public importance, the

intending appellant ought to satisfy the court that the issue to be canvassed on appeal is

one the determination of which transcends the circumstances of the particular case and

has a significant bearing on public interest;

b) Where the matter in respect of which certification is sought raises a point of law, the

intending appellant ought to demonstrate that such a point is a substantial one, the

determination of which would have a significant bearing on public interest;

c) Such question or question of law must have arisen in the lower court and must have

been the subject of judicial determination;

d) Where the application for certification has been occasioned by a state of uncertainty in

the law arising from contradictory precedents, the Supreme Court could consider either

to resolve the uncertainty as it may determine, or refer the matter to the Court of

Appeal for its as determination;

e) Mere apprehension of miscarriage of justice in a matter most apt for resolution in the

lower superior courts is not a proper basis for granting certification for an appeal to the

Supreme Court. The matter to be certified for a final appeal in the Supreme Court ought

to fall within the terms of article 163(4)(b) of the Constitution;

13
Article 163(5) of the Constitution.
14
Section 23 of the Supreme Court Act No.7 of 2011.
15
Application No. 4 of 2012.

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 f) The intending applicant has an obligation to identify and concisely set out the specific

elements of general public importance which he or she attributed to the matter for

which certification was sought;

g) Determinations of fact in contest between parties are not by themselves a basis for

granting certification for an appeal before the Supreme Court.

The import of the foregoing is that the Supreme Court has appellate jurisdiction in criminal

matters certified as involving a matter of general public importance or a substantial

miscarriage of justice may have occurred or may occur unless the appeal is heard. The case of

R v Ahmed Abolfathi Mohammed Petition 39 of 2018 is an illustration of the Supreme Court

exercising appellate jurisdiction in criminal matters.

Court of Appeal

The Court of Appeal is established by article 164 of the Constitution as a superior court of

record and has appellate jurisdiction in appeals from the high court and any other tribunal as

may be prescribed by law.16 The Court of Appeal shall consist of a minimum of twelve

judges.17 Section 3 of the Appellate Jurisdiction Act18 sets out the jurisdiction of the Court of

Appeal to include;

 Hear and determine appeals from High Court and any other court or tribunal

prescribed by law in cases in which an appeal lies to the Court of Appeal under law.

 For the purposes of and incidental to the hearing and determination of any appeal, the

Court of Appeal shall have in addition to any other power, authority and jurisdiction

conferred by the Act, the power, authority and jurisdiction vested in the High Court.

 In the hearing of an appeal the law to be applied shall be the law applicable to the case

in the High Court.

16
Article 164(3) (a) & (b) of the Constitution.
17
Article 164(1) (a) of the Constitution.
18
Chapter 9 Laws of Kenya.

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For the purpose of any final determination by the Court of Appeal other than the summary

dismissal of an appeal, the number of judges sitting to hear the matter be an uneven number

not less than three.19

Criminal Jurisdiction of the Court of Appeal

The Constitution does not expressly confer criminal jurisdiction on the Court of Appeal.

Rather, the Constitution confers general jurisdiction on the Court of Appeal to hear appeals

from:

 the High Court; and

 any other court or tribunal as prescribed by an Act of Parliament [Art. 164(3)].

The Appellate Jurisdiction Act, Cap. 9 elaborates

 that the Court of Appeal has jurisdiction to hear and determine appeals from the High

Court in cases in which appeals lie to the Court of Appeal under law; and

 that the Court of Appeal has in addition to any other power, authority and jurisdiction

conferred by the Act, the power, authority and jurisdiction vested in the High Court

[Section 3(1)&(2)].

Section 5(1) of the Act empowers the Rules Committee to make rules of court for regulating

the practice and procedure of the Court of Appeal with respect to appeals and also for

regulating the practice and procedure of the High Court. Subsection 5(2)(c) introduces the

issue of criminal jurisdiction by adding that the aforesaid rules may include rules for

prescribing cases in which and the conditions upon which an appellant in a criminal appeal to

the Court shall be entitled to be present at the hearing of the appeal.

19
Section 5(3) of the Appellate Jurisdiction Act Chapter 9 Laws of Kenya.

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The Court of Appeal Rules promulgated under the Appellate Jurisdiction Act make elaborate

provisions vide Part III for Criminal Appeals from superior courts acting in both original and

appellate jurisdiction in criminal cases and also stipulates the mode of invoking the appellate

court’s jurisdiction in criminal matters.

The Court of Appeal also has jurisdiction to punish for contempt of court similar to the

jurisdiction exercised by the High Court in that regard. Section 5(1) of the Judicature Act, inter

alia, provides that the Court of Appeal has ‚the same power to punish for contempt of court as

is for the time being possessed by the High Court of Justice in England‛, and that such powers

extend to upholding the authority and dignity of subordinate courts.

High Court of Kenya

Article 165 of the Constitution establishes the high court, as a superior court of record.

Its jurisdiction consists of;

 Unlimited original jurisdiction in criminal and civil cases;

 appellate jurisdiction in civil and criminal cases;

 to determine whether a right or fundamental freedom in the Bill of Rights has been

infringed, denied or threatened;

 Jurisdiction to hear any question relating to the interpretation of the Constitution;

 Supervisory jurisdiction over subordinate courts and any person, body, or authority

exercising a judicial or quasi-judicial function.

 section 362 of the criminal procedure code provides for revision of orders from the

subordinate courts by the high court;

 Section 4 of the judicature act provides admiralty jurisdiction in all matters arising on

high seas, territorial waters, lake and other navigable waters in Kenya.

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The High Court has five divisions namely:

1) Criminal division,

2) Civil division,

3) Judicial review and constitutional division,

4) Commercial and tax division, and

5) Family division.

Other Courts established under the Constitution with the same status as the High Court

include, the Employment and Labour Relations Court and Environment and Land Court. The

Supreme Court in R v Karisa Chengo & 2 Others20 held that the Environment and Land Court

and the Environment and Labour Relations Courts cannot hear criminal matters.

Criminal Jurisdiction of the High Court:

The Constitution expressly confers original criminal jurisdiction on the High Court and such

jurisdiction is unlimited [Art. 165(3) (a)].

The Criminal Procedure Code, Cap. 75 vests the High Court with appellate jurisdiction from

decisions of subordinate courts of the first and second class made by those courts in exercise of

their criminal jurisdiction and such appellate jurisdiction may be on matters of fact or law

(Section 347).

The Judicature Act also vests in the High Court with admiralty jurisdiction in all matters

arising on the high seas, or in territorial waters, or upon any lake or other navigable inland

waters in Kenya (Section 4(1)).

Section 8(2) of the International Crimes Act, 2008 gives the High Court the jurisdiction to try

crimes such as genocide, crimes against humanity and war crimes.

20
Petition No.5 of 2015.

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Subordinate Courts

The subordinate courts are:

 the Magistrates courts,

 the Kadhis’ court,

 the Courts Martial and,

 any other court or local tribunal established by an Act of Parliament.21

Magistrates’ Courts

Section 5 of the Magistrates’ Courts Act, 2015 provides that a magistrate’s court shall be duly

constituted when presided over by a chief magistrate, a senior principal magistrate, a principal

magistrate, a senior resident magistrate or a resident magistrate. A magistrate’s court shall

have and exercise such jurisdiction and power in proceedings of a criminal nature as may be

conferred by the Criminal Procedure Code or any other written law. 22

Section 4 of the Criminal Procedure Code (Cap.75) provides that an offence under the Penal

Code (Cap. 63) may be tried by the High Court, or by a subordinate court by which the offence

is shown in the fifth column of the First Schedule to the Code to be triable. Equally, an offence

under any law other the Penal Code (Cap. 63) shall be tried in the court mentioned by that law.

Where no court is mentioned in the forgoing scenario, then the offence may be subject to the

Criminal Procedure Code (Cap. 75) be tried by the High Court or by a subordinate court by

which the offence is shown in the fifth column of the First Schedule to Code to be triable. 23

Unlike the High Court which may pass any sentence authorized by law for a criminal offence,

a subordinate court may only impose a sentence depending on the rank of the presiding

21
Article 169(1) of the Constitution.
22
Section 6 of Magistrates’ Courts Act, 2015.
23
Section 5 of the Criminal Procedure Code (Cap. 75).

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officer.24 The Judicial Service Commission may by notice in the Gazette extend the sentencing

jurisdiction either generally or in relation to particular offences.25

Finally, a court may impose a lawful sentence combining any of the sentences which it is

authorized by law to pass without offending its jurisdictional limit. 26 The same applies in the

case of imposition of consecutive sentences not withstanding that the aggregate punishment

for the several offences may exceed the sentence that the court is competent to impose,

provided that the aggregate does not exceed fourteen years imprisonment or double the usual

length limit of that court.27

Courts Martial

Courts Martial is established under article 169 (1) (c) of the Constitution. It shall consist of a

judge advocate, at least five other members appointed by the Defence Court-martial

Administrator if an officer is being tried and not less than three other members in any other

case.28 The Court-martial may sit in any place, whether within or outside of the Republic of

Kenya.29 The Court-martial tries cases against members of the Kenya defence forces and

civilians subject to the Act for service offences.

International Criminal Court

 Genocide;

 crimes against humanity;

24
Ibid section 7.
25
Ibid section 8.
26
Ibid section 12.
27
Ibid section 14.
28
Section 160(1) of the Kenya Defence Force Act, 2012.
29
Ibid section 162.

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  war crimes;

 The crime of aggression.

The court came into being on 1 July 2002, the date its founding treaty, the Rome statute of the

International Criminal Court, entered into force. It can only prosecute crimes committed on or

after that date. The official seat of the court is in The Hague, Netherlands, but its proceedings

may take place anywhere.

The court can generally exercise jurisdiction only where the accused is a national of a state

party; or the alleged crime took place on the territory of a state party; or a situation is referred

to the court by the United Nations Security Council. The court is designed to complement

existing national judicial systems. It can exercise its jurisdiction only when national courts are

unwilling or unable to investigate or prosecute such crimes.

The ICC accordingly determines under art.17(1) (a) and (b) of the Rome statute, the initial

questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there

have been investigations in the past, and the state having jurisdiction has decided not to prosecute the

person concerned.

In Joseph Kimani Gathungu v Attorney General & 5 others [2010] EKLR Ojwang J held that

the ICC has jurisdiction in Kenya.

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Resource Materials

Kiage P, Essentials of Criminal Procedure in Kenya, Law Africa Publishing (k) Ltd, 2010.

Foster S, Criminal Law and Practice, Sweet and Maxwell, 2008.

Constitution of Kenya, 2010.

The Criminal Procedure Code Cap 75 Laws of Kenya.

The Penal Code Cap 63 Laws of Kenya.

The Supreme Court Act No.7 of 2011.

The Magistrates’ Courts Act, 2015.

The Kenya Defence Force Act, 2012.

The Appellate Jurisdiction Act Cap 9 Laws of Kenya.

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