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CRIMINAL PROCEDURE CODE

In this Code, unless the context otherwise requires—

“Cognizable offence” means an offence for which a police officer may, in accordance with the
First Schedule or under any law for the time being in force, arrest without warrant;
“Non-cognizable offence” means an offence for which a police officer may not arrest without
warrant;
“officer in charge of a police station” includes any officer superior in rank to an officer in
charge of a police station and also includes, when the officer in charge of the police station is
absent from the station-house, or unable from illness or other cause to perform his duties, the
police officer present at the station-house who is next in rank to that officer, and is above the
rank of constable, or, when the Inspector-General of the National Police Service so directs, any
other police officer so present;
“Plea agreement” means an agreement entered into between the prosecution and an accused
person in a criminal trial in accordance with Part IV;
“Police officer” means a police officer or an administration police officer;
“Police station” means a place designated by the Inspector-General as a police station
under section 40 of the National Police Service Act, 2011.
“Prosecutor” means a public prosecutor or a person permitted by the court to conduct a
prosecution under section 88 of the Act;
“public prosecutor” means the Director of Public Prosecutions, a state counsel, a person
appointed under section 85 or a person acting under the direction of the Director of Public
Prosecutions;
“Registrar of the High Court” includes a Deputy Registrar of the High Court and a district
registrar of the High Court;
“Summary trial” means a trial held by a subordinate court under Part VI.

3. Trial of offences under Penal Code and under other laws

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 (1) All offences under the Penal Code (Cap. 63) shall be inquired into, tried and
otherwise dealt with according to this Code.
(2) All offences under any other law shall be inquired into, tried and otherwise dealt with
according to this Code, subject to any enactment for the time being in force regulating
the manner or place of inquiring into, trying, or otherwise dealing with those
offences.
(3) Notwithstanding anything in this Code, the High Court may, subject to the provisions
of any law for the time being in force, in exercising its criminal jurisdiction in respect
of any matter or thing to which the procedure prescribed by this Code is inapplicable,
exercise that jurisdiction according to the course of procedure and practice observed
by and before the High Court of Justice in England at the date of the coming into
operation of this Code.
(4) Notwithstanding anything in this Code or any other written law, in relation to a
person who is a member of the armed forces or police forces of another country
lawfully present in Kenya as a consequence of an agreement between the government
of that other country and the Government of Kenya, in which agreement provision is
made in respect of offences under the Penal Code or any other written law for the
detention or punishment of that person or the inquiry into, trial or other disposal of
those offences, nothing done or omitted in accordance with such a provision shall be
or shall be deemed to be unlawful or contrary to the provisions of this Code, or any
other written law.

System of courts.
162. (1) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the
courts referred to in clause (2).

(2) Parliament shall establish courts with the status of the High Court to hear and determine
disputes relating to—

(a) employment and labour relations; and

(b) the environment and the use and occupation of, and title to, land.

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(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause
(2).

(4) The subordinate courts are the courts established under Article

PART 2—SUPERIOR COURTS

Supreme Court.

163. (1) There is established the Supreme Court, which shall consists of—

(a) the Chief Justice, who shall be the president of the court

(b) the Deputy Chief Justice, who shall—

(i) deputise for the Chief Justice; and

(ii) be the vice-president of the court; and

(c) five other judges. (2) The Supreme Court shall be properly constituted for the purposes of its
proceedings if it is composed of five judges.

(3) The Supreme Court shall have—

(a) exclusive original jurisdiction to hear and determine disputes169, or by Parliament in

accordance with that Article. relating to the elections to the office of President arising under
Article 140; and

(b) subject to clause (4) and (5), appellate jurisdiction to hear and determine appeals from—

(i) the Court of Appeal; and

(ii) any other court or tribunal as prescribed by national legislation.

(4) Appeals shall lie from the Court of Appeal to the Supreme Court—

(a) as of right in any case involving the interpretation or application of this Constitution; and

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(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter
of general public importance is involved, subject to clause (5).

(5) A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme
Court, and either affirmed, varied or overturned.

(6) The Supreme 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.

7) All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.
(8) The Supreme Court shall make rules for the exercise of its jurisdiction.

(9) An Act of Parliament may make further provision for the operation of the Supreme Court.
Court of Appeal.

164. (1) There is established the Court of Appeal, which—

(a) shall consist of the number of judges, being not fewer than twelve, as may be prescribed by
an Act of Parliament; and

(b) shall be organised and administered in the manner prescribed by an Act of Parliament.

(2) There shall be a president of the Court of Appeal who shall be elected by the judges of the
Court of Appeal from among themselves. C

High Court.

165. (1) There is established the High Court, which—

(a) shall consist of the number of judges prescribed by an Act of Parliament; and (

b) shall be organised and administered in the manner prescribed by an Act of Parliament.

(2) There shall be a Principal Judge of the High Court, who shall be elected by the judges of the
High Court from among themselves.

(3) Subject to clause (5), the High Court shall have—

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(a) unlimited original jurisdiction in criminal and civil matters;

(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of
Rights has been denied, violated, infringed or threatened;

(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution
to consider the removal of a person from office, other than a tribunal appointed under Article
144;

(d) jurisdiction to hear any question respecting the interpretation of this Constitution including
the determination of—

(i) the question whether any law is inconsistent with or in contravention of this Constitution;

(ii) the question whether anything said to be done under the authority of this Constitution or of
any law is inconsistent with, or in contravention of, this Constitution;

(iii) any matter relating to constitutional powers of State organs in respect of county governments
and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and

(e) any other jurisdiction, original or appellate, conferred on it by legislation.

SUBORDINATE COURTS

Subordinate courts. 169.

(1) The subordinate courts are—

(a) the Magistrates courts;

(b) the Kadhis’ courts;

(c) the Courts Martial; and

(d) any other court or local tribunal as may be established by an Act of Parliament, other than the
courts established as required by Article 162 (2)

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 DIAGRAM 1.

STRUCTURE OF COURT SYSTEM OF KENYA

SUPREME COURT

SUPERIOR
COURT COURT OF APPEAL

HIGH COURT

EMPLOYMENT AND
LABOUR RELATIONS ENVIRONMENT AND LAND

SURBORDINATE COURTS

KHADHI COURT MAGISTRATE ANY OTHER COURT OR

COURT MARTIAL TRIBUNAL
COURT

Chief magistrate
 First class
M.G

Third class M.G

ARREST, ESCAPE AND RETAKING OF SUSPECT

Competence

The trainee should comprehend arrest, escape and retaking of suspect.

Specific Objectives

By the end of the sub-unit, the trainee should be able to:

 Explain general provisions of effecting arrest

 Explain types of arrest

 Describe the powers of arrest

 State action taken in the event of escape of a suspect

 Explain responsibilities of citizens when their collaboration is required

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Powers of arrest of police, judicial officers and private citizens

General provisions in effecting arrest

21. ARREST- (Means depriving a person of his liberty)

(1) In making an arrest, the police officer or other person making it shall actually touch or
confine the body of the person to be arrested, unless there is a submission to custody by word or
action.

(2) If a person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, the
police officer or other person may use all means necessary to affect the arrest.

(3) Nothing in this section shall justify the use of greater force than was reasonable in the
particular circumstances in which was employed or was necessary for the apprehension of the
offender.

22. Search of place entered by person sought to be arrested

(1) If any person acting under a warrant of arrest or any police officer having authority to arrest,
has reason to believe that the person to be arrested has entered into or is within any place, the
person residing in or being in charge of that place shall on demand of the person so acting or the
police officer allow him free ingress thereto and afford all reasonable facilities for a search
therein

(2) If ingress (entry) to a place cannot be obtained , it shall be lawful in any case for a person
acting under a warrant, and in any case in which a warrant may issue but cannot be obtained
without affording the person to be arrested an opportunity to escape, for a police officer to enter
the place and search therein, and, in order to effect an entrance into the place, to break open any
outer or inner door or window of a house or place, whether that of the person to be arrested or of
another person, or otherwise effect entry into the house or place, if after notification of his
authority and purpose, and demand of admittance duly made, he cannot otherwise obtain
admittance:

If any such place is an apartment in the actual occupancy of a woman (not being the person to be
arrested) who, according to custom, does not appear in public, the person or police officer shall,

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before entering the apartment, give notice to the woman that she is at liberty to withdraw, and
shall afford her every reasonable facility for withdrawing, and may then break open the
apartment and enter it.

23. Power to break out of house, etc., for purposes of liberation

A police officer or other person authorized to make an arrest may break out of any house or place
in order to liberate himself or any other person who, having lawfully entered for the purpose of
making an arrest, is detained therein.

Types of arrest
1. Arrest by police officer without warrant
2. Arrest by police officer with warrant
3. Arrest by magistrate
4. Arrest by private person

Powers of arrest of police, judicial officers and private citizens

Powers of arrest of police

29. Arrest by police officer without warrant

A police officer may, without an order from a magistrate and without a warrant, arrest—
(a) any person whom he suspects upon reasonable grounds of having committed a cognizable
offence;

(b) any person who commits a breach of the peace in his presence;

(c) 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;

(d) any person in whose possession anything is found which may reasonably be suspected to be
stolen property or who may reasonably be suspected of having committed an offence with
reference to that thing;

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(e) any person whom he suspects upon reasonable grounds of being a deserter from the armed
forces;

(f) any person whom he finds in a highway, yard or other place during the night and whom he
suspects upon reasonable grounds of having committed or being about to commit a felony;

(g) any person whom he finds in a street or public place during the hours of darkness and whom
he suspects upon reasonable grounds of being there for an illegal or disorderly purpose, or who is
unable to give a satisfactory account of himself;

(h) any person whom he suspects upon reasonable grounds of having been concerned in an act
committed at a place out of Kenya which, if committed in Kenya, would have been punishable as
an offence, and for which he is liable to be extradited under the Extradition (Contiguous and
Foreign Countries) Act (Cap. 76) or the Extradition (Commonwealth Countries) Act (Cap. 77);

(i) any person having in his possession without lawful excuse, the burden of proving which
excuse shall lie on that person, any implement of housebreaking;

(j) any released convict committing a breach of any provision prescribed by section 344 or of any
rule made thereunder;

(k) any person for whom he has reasonable cause to believe a warrant of arrest has been issued.

32. Refusal to give name and residence

(1) When a person who in the presence of a police officer has committed or has been accused of
committing a non-cognizable offence refuses on the demand of the officer to give his name and
residence, or gives a name or residence which the officer has reason to believe to be false, he
may be arrested by the officer in order that his name or residence may be ascertained.

(2) When the true name and residence of the person have been ascertained he shall be released
on his executing a bond, with or without sureties, to appear before a magistrate if so required:

Provided that if the person is not resident in Kenya the bond shall be secured by a surety or
sureties resident in Kenya.

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(3) Should the true name and residence of the person not be ascertained within twenty-four hours
from the time of arrest, or should he fail to execute the bond, or, if so required, to furnish
sufficient sureties, he shall forthwith be taken before the nearest magistrate having jurisdiction.

Powers of arrest private citizens

34. Arrest by private person

(1) A private person may arrest any person who in his view commits a cognizable offence, or
whom he reasonably suspects of having committed a felony.

(2) Persons found committing an offence involving injury to property may be arrested without a
warrant by the owner of the property or his servants or persons authorized by him.

35. Disposal of person arrested by private person

(1) A private person arresting another person without a warrant shall without unnecessary delay
make over the person so arrested to a police officer, or in the absence of a police officer shall
take that person to the nearest police station.

(2) If there is reason to believe that the person comes under section 29 (arrest without warrant) ,
a police officer shall re-arrest him.

(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses
on the demand of a police officer to give his name and residence, or gives a name or residence
which the officer has reason to believe to be false, he shall be dealt with under section 32.

(4) If there is no sufficient reason to believe that he has committed an offence he shall at once be
released.

Powers of arrest judicial officers

38. Offence committed in magistrate’s presence

When an offence is committed in the presence of a magistrate within the local limits of his
jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon,
subject to the provisions of this Code as to bail, commit the offender to custody.

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39. Arrest by magistrate
A magistrate may at any time arrest or direct the arrest in his presence, within the local limits of
his jurisdiction, of any person for whose arrest he is competent at the time and in the
circumstances to issue a warrant.

90. Arrest with warrant

(1) Upon receiving a complaint and having signed the charge the magistrate may issue either a
summons or a warrant to compel the attendance of the accused person before a subordinate court
having jurisdiction to try the offence alleged to have been committed:
107. Notification of substance of warrant
The police officer or other person executing a warrant of arrest shall notify the substance thereof
to the person to be arrested, and, if so required, shall show him the warrant.

Escape and retaking a suspect

40. Recapture of person escaping

If a person in lawful custody escapes or is rescued, the person from whose custody he escapes or
is rescued may immediately pursue and arrest him in any place in Kenya.
41. Provisions of sections 22 (Search of place entered by person sought to be arrested) and
23(Power to break out of house, etc., for purposes of liberation) to apply to arrests under
section 40(Recapture of person escaping)

It shall apply although the person making the arrest is not acting under a warrant and is not a
police officer having authority to arrest.

Responsibilities of citizens

42. Assistance to magistrate or police officer

Every person is bound to assist a magistrate or police officer reasonably demanding his aid—
(a) in the taking or preventing the escape of another person whom the magistrate or police officer
is authorized to arrest;

(b) in the prevention or suppression of a breach of the peace, or in the prevention of injury
attempted to be committed to any railway, canal, telegraph or public property.

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REMAND BY COURT UNDER SEC 36 (A) OF CPC
Sec. 36A CPC (1) Pursuant to Article 49(1)(f) and (g) of the Constitution, a police officer shall
present a person who has been arrested in court within 24 hours after being arrested.
(2) Notwithstanding subsection (1), if a police officer has reasonable grounds to believe that the
detention of a person arrested beyond the twenty four hour period is necessary, the police officer
shall :-
(a) produce the suspect before a court and
(b) apply in writing to the court for an extension of time for holding the suspect in custody

(3) An application under subsection (2) shall be supported by an affidavit sworn by the police
officer and shall specify :-
(a) the nature of the offence for which the suspect has been arrested;
(b) the general nature of the evidence on which the suspect has been
(c) the inquiries that have been made by the police in relation to the offence and any further
inquiries proposed to be made by the police, and
(d) the reasons necessitating the continued holding of the suspect in custody.

(4) In determining an application under subsection (2), the court shall consider any objection
that the suspect may have in relation to the application and may :-
(a) release the suspect unconditionally;
(b) release the suspect subject to such conditions as the court may impose to ensure that the
suspect :-
(i) does not, while on release, commit an offence, interfere with witnesses or the investigations in
relation to the offence for which the suspect has been arrested
(ii) is available for the purpose of facilitating the conduct of investigations and the preparation of
any report to be submitted to the court dealing with the matter in respect of which the suspect
stands accused; and
(iii) appears at such a time and place as the court may specify for the purpose of conducting
preliminary proceedings or the trial or for the purpose of assisting the police with their inquiries.

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(c) having regard to the circumstances specified under subsection (5), make an order for the
remand of the suspect in custody.
(5) A court shall not make an order for the remand in custody of a suspect under sub (4)(c)
unless:-
(a) there are compelling reasons for believing that the suspect shall not appear for trial, may
interfere with witnesses or the conduct of investigations, or commit an offence while on release;
(b) it is necessary to keep the suspect in custody for his protection, or, where the suspect is a
minor, for his welfare;
(c) the suspect is serving a custodial sentence; or
(d) the suspect, having been arrested in relation to the commission of an offence, has breached a
condition for his release.

(6) The court may, for the purpose of ensuring the attendance of a suspect under sub (4) (b)(ii) or
(iii), require the suspect :-
(a) to execute a bond for such reasonable amount as the court considers appropriate in the
circumstances; and
(b) to provide one or more suitable sureties for the bond.

(7) Where a court makes an order for the remand of a suspect under subsection (4)(c), the period
of remand shall not exceed thirty days.

(8) A police officer who detains a suspect in respect of whom an order has been issued under
subsection (4)(c) may, at any time before the expiry of the period of remand specified by the
court, apply to the Court for an extension of that period.
(9) The court shall not make an order for the extension of the time for remand under sub(8)
unless it is satisfied that having regard to the circumstances for which an order was issued under
subsection (4)(c), it is necessary to grant the order
(10) Where the court grants an extension under subsection (9), such period shall not, together
with the period for which the suspect was first remanded in custody, exceed ninety days.

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N/B: In case of an offence under prevention of terrorism act, the total period of detention
must not exceed three hundred and sixty (360) days (AUTHORITY: SECTION 33(10) OF
POTA)

PLACE OF TRIAL AND TRANSFER OF CASES

AUTHORITY SEC 66- 81 OF CPC

Competence

The trainee should understand the jurisdiction of various courts and places of trial

Specific Objectives

By the end of the sub-unit, the trainee should be able to:

 Explain the general authority of courts

 Describe the ordinary places of inquiry and trial
 Discuss the elements of an open court
66. General authority of courts
•Every court has authority to cause to be brought before it any person who is within the local
limits of its jurisdiction and is charged with an offence committed within Kenya, or
•Which according to law may be dealt with as if it had been committed within Kenya, and to deal
with the accused person according to its jurisdiction.

67. Accused person to be sent to district where offence committed

• Where a person accused of having committed an offence within Kenya has escaped or removed
from the province or district within which the offence was committed and is found within
another province or district, the court within whose jurisdiction he is found shall cause him to be
brought before it, and shall, unless authorized to proceed in the case, send him in custody to the
court within whose jurisdiction the offence is alleged to have been committed or

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• Require him to give security for his surrender to that court there to answer the charge and to be
dealt with according to law.

71. Ordinary place of inquiry and trial

Every offence shall ordinarily be tried by a court:
1. Within the local limits of whose jurisdiction it was committed, or
2. within the local limits of whose jurisdiction the accused was apprehended, or
3. is in custody on a charge for the offence, or
4. has appeared in answer to a summons lawfully issued charging the offence

72. Trial at place where Act done or where consequence of offence ensures
When a person is accused of the commission of an offence by reason of anything which has been
done or of any consequence which has ensued, the offence may be tried by a court within the
local limits of whose jurisdiction the thing has been done or the consequence has ensued.

73. Trial where offence is connected with another offence

When an act is an offence by reason of its relation to another act which is also an offence or
which would be an offence if the doer were capable of committing an offence, a charge of the
first-mentioned offence may be tried by a court within the local limits of whose jurisdiction
either act was done.

74. Trial where place of offence is uncertain

When—
(a) it is uncertain in which of several local areas an offence was committed; or
(b) an offence is committed partly in one local area and partly in another; or
(c) an offence is a continuing one, and continues to be committed in more than one local areas;
or
(d) an offence consists of several acts done in different local areas, it may be tried by a court
having jurisdiction over any of those local areas.

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75. Offence committed on a journey
An offence committed whilst the offender is in the course of performing a journey or voyage
may be tried by a court through or into the local limits of whose jurisdiction the offender or the
person against whom or the thing in respect of which the offence was committed passed in the
course of that journey or voyage.

76. High Court to decide in cases of doubt

• Whenever a doubt arises as to the court by which an offence should be tried, the court
entertaining the doubt may report the circumstances to the High Court, which shall decide by
which court the offence, shall be inquired into or tried.
• Any such decision of the High Court shall be final and conclusive, except that it shall be open
to an accused person to show that no court in Kenya has jurisdiction in the case.

77. Court to be open

The place in which a criminal court is held for the purpose of trying an offence shall be deemed
an open court to which the public generally may have access, so far as it can conveniently
contain them: Provided that the presiding judge or magistrate may order at any stage of the trial
of any particular case that the public generally or any particular person shall not have access to
or remain in the room or building used by the court.

TRANSFER OF CASES
78. Transfer of case where offence committed outside jurisdiction
(1) 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 complaint 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. (2) If the accused person is in custody
and the court directing the transfer thinks it expedient that custody should be continued, or, if he
is not in custody, that he should be placed in custody, the court shall direct the offender to be
taken by a police officer before the court having jurisdiction where the cause of complaint arose,
and shall give a warrant for that purpose to the officer, and shall deliver to him the complaint and

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recognizances, if any, taken by the court, to be delivered to the court before whom the accused
person is to be taken; and the complaint and recognizances, if any, shall be treated to all intents
and purposes as if they had been taken by the last-mentioned court.
(3) If the accused person is not continued or placed in custody, the court shall inform him that it
has directed the transfer of the case, and thereupon the provisions of subsection (2) respecting the
transmission and validity of the documents in the case shall apply.
79. Transfer of cases between magistrates
A magistrate holding a subordinate court of the first class—
(a) may transfer a case of which he has taken cognizance to any magistrate holding a subordinate
court empowered to 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 class who has
taken cognizance of a case and whether evidence has been taken in that case or not, to transfer it
for trial to himself or to any other specified magistrate within the local limits of his jurisdiction
who is competent to try the accused and that magistrate shall dispose of the case accordingly.
80. Transfer of part-heard cases
If in the course of any trial before a magistrate the evidence appears to warrant a presumption
that the case is one which should be tried by some other magistrate, he shall stay proceedings and
submit the case with a brief report thereon to a magistrate holding a subordinate court of the first
class empowered to direct the transfer of the case under section 79.
81. Power of High Court to change venue
(1) Whenever it is made to appear to the High Court—
(a) that a fair and impartial trial cannot be had in any criminal court subordinate thereto; or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) that a view of the place in or near which any offence has been committed may be required for
the satisfactory trial of the offence; or
(d) that an order under this section will ten (e) that such an order is expedient for the ends of
justice or is required by any provision of this Code,
it may order—
(i) that an offence be tried by a court not empowered under the preceding sections of this Part but
in other respects competent to try the offence;

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(ii) that a particular criminal case or class of cases be transferred from a criminal court
subordinate to its authority to any other criminal court of equal or superior jurisdiction;
(iii) that an accused person be committed for trial to itself.
(2) The High Court may act on the report of the lower court, or on the application of a party
interested, or on its own initiative.
(3) Every application for the exercise of the power conferred by this section shall be made by
motion, which shall, except when the applicant is the Director of Public Prosecutions, be
supported by affidavit.
(4) An accused person making any such application shall give to the Director of Public
Prosecutions notice in writing of the application, together with a copy of the grounds on which it
is made, and no order shall be made on the merits of the application unless at least twenty-four
hours have elapsed between the giving of notice and the hearing of the application.
(5) When an accused person makes any such application, the High Court may direct him to
execute a bond, with or without sureties, conditioned that he will, if convicted, pay the costs of
the prosecutor.

In this Code, unless the context otherwise requires—

“Cognizable offence” means an offence for which a police officer may, in accordance with the
First Schedule or under any law for the time being in force, arrest without warrant;
“Non-cognizable offence” means an offence for which a police officer may not arrest without
warrant;
“officer in charge of a police station” includes any officer superior in rank to an officer in
charge of a police station and also includes, when the officer in charge of the police station is
absent from the station-house, or unable from illness or other cause to perform his duties, the
police officer present at the station-house who is next in rank to that officer, and is above the
rank of constable, or, when the Inspector-General of the National Police Service so directs, any
other police officer so present;
“Plea agreement” means an agreement entered into between the prosecution and an accused
person in a criminal trial in accordance with Part IV;
“Police officer” means a police officer or an administration police officer;

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“Police station” means a place designated by the Inspector-General as a police station
under section 40 of the National Police Service Act, 2011.
“Prosecutor” means a public prosecutor or a person permitted by the court to conduct a
prosecution under section 88 of the Act;
“public prosecutor” means the Director of Public Prosecutions, a state counsel, a person
appointed under section 85 or a person acting under the direction of the Director of Public
Prosecutions;
“Registrar of the High Court” includes a Deputy Registrar of the High Court and a district
registrar of the High Court;
“Summary trial” means a trial held by a subordinate court under Part VI.

3. Trial of offences under Penal Code and under other laws

(1) All offences under the Penal Code (Cap. 63) shall be inquired into, tried and
otherwise dealt with according to this Code.
(2) All offences under any other law shall be inquired into, tried and otherwise dealt with
according to this Code, subject to any enactment for the time being in force regulating
the manner or place of inquiring into, trying, or otherwise dealing with those
offences.
(3) Notwithstanding anything in this Code, the High Court may, subject to the provisions
of any law for the time being in force, in exercising its criminal jurisdiction in respect
of any matter or thing to which the procedure prescribed by this Code is inapplicable,
exercise that jurisdiction according to the course of procedure and practice observed
by and before the High Court of Justice in England at the date of the coming into
operation of this Code.
(4) Notwithstanding anything in this Code or any other written law, in relation to a
person who is a member of the armed forces or police forces of another country
lawfully present in Kenya as a consequence of an agreement between the government
of that other country and the Government of Kenya, in which agreement provision is
made in respect of offences under the Penal Code or any other written law for the
detention or punishment of that person or the inquiry into, trial or other disposal of

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 those offences, nothing done or omitted in accordance with such a provision shall be
or shall be deemed to be unlawful or contrary to the provisions of this Code, or any
other written law.

INSTITUTION OF PROCEEDINGS
Authority: 89(1-5)
Competence

The trainee should understand various ways of instituting criminal proceedings.

Specific Objectives

By the end of the sub-unit, the trainee should be able to:

 Describe the ways of instituting criminal proceedings

 Explain the provisions for issuing summons and warrants

Making of Complaint
89. Complaint and charge
(1) Proceedings may be instituted either by the making of a complaint or by the bringing before a
magistrate of a person who has been arrested without warrant.
(2) A person who believes from a reasonable and probable cause that an offence has been
committed by another person may make a complaint thereof to a magistrate having jurisdiction.
(3) A complaint may be made orally or in writing, but, if made orally, shall be reduced to writing
by the magistrate, and, in either case, shall be signed by the complainant and the magistrate.
(4) The magistrate, upon receiving a complaint, or where an accused person who has been
arrested without a warrant is brought before him, shall, subject to the provisions of subsection
(5), draw up or cause to be drawn up and shall sign a formal charge containing a statement of the
offence with which the accused is charged, unless the charge is signed and presented by a police
officer.

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(5) Where the magistrate is of the opinion that a complaint or formal charge made or presented
under this section does not disclose an offence, the magistrate shall make an order refusing to
admit the complaint or formal charge and shall record his reasons for the order.
90. Issue of summons or warrant
(1) Upon receiving a complaint and having signed the charge in accordance with section 89, the
magistrate may issue either a summons or a warrant to compel the attendance of the accused
person before a subordinate court having jurisdiction to try the offence alleged to have been
committed:
Provided that a warrant shall not be issued in the first instance unless the complaint has been
made upon oath either by the complainant or by a witness or witnesses.
(2) The validity of proceedings taken in pursuance of a complaint or charge shall not be affected
either by a defect in the complaint or charge or by the fact that a summons or warrant was issued
without a complaint or charge.
(3) A summons or warrant may be issued on a Sunday.

PROCESSES TO COMPEL THE APPEARANCE OF ACCUSED PERSONS

SUMMONS:
91. Form and contents of summons
(1) Every summons issued by a court under this Code shall be in writing, in duplicate, signed and
sealed by the presiding officer of the court or by such other officer as the High Court may from
time to time by rule direct.
(2) Every summons shall be directed to the person summoned and shall require him to appear at
a time and place to be therein appointed before a court having jurisdiction to deal with the
charge, and shall state shortly the offence with which the person against whom it is issued is
charged.
92. Service of summons
(1) Every summons shall be served either by a police officer, an officer of the court issuing it or
by such other person as the court may direct, and shall, if practicable, be served personally on the
person summoned by delivering or tendering to him one of the duplicates of the summons.

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(2) Every person on whom a summons is so served shall, if so required by the serving officer,
sign a receipt therefor on the back of the other duplicate.
93. Service when person summoned cannot be found
Where a person summoned cannot by the exercise of due diligence be found, the summons may
be served by leaving one of the duplicates for him with an adult member of his family or with his
servant residing with him or with his employer; and the person with whom the summons is so
left shall, if so required by the serving officer, sign a receipt therefor on the back of the other
duplicate.
94. Procedure when service cannot be effected as before provided
If service in the manner provided by sections 92 and 93 cannot by the exercise of due diligence
be effected, the serving officer shall affix one of the duplicates of the summons to some
conspicuous part of the house or homestead in which the person summoned ordinarily resides
and thereupon the summons shall be deemed to have been duly served.
95. Service on servant of Government
Where the person summoned is in the active service of the Government, the court issuing the
summons shall ordinarily send it in duplicate to the head of the office in which that person is
employed, and the head shall thereupon cause the summons to be served in the manner provided
by section 92 and shall return it to the court under his signature with the endorsement required by
that section, and the signature shall be evidence of the service.
96. Service on company
Service of a summons on an incorporated company or other body corporate may be effected by
serving it on the secretary, local manager or other principal officer of the corporation or by
registered letter addressed to the principal officer of the corporation in Kenya at the registered
office of the company or body corporate; and in the latter case service shall be deemed to have
been effected when the letter would arrive in ordinary course of post.

97. Service outside local limits of jurisdiction

When a court desires that a summons issued by it shall be served at a place outside the local
limits of its jurisdiction, it shall send the summons in duplicate to a magistrate within the local
limits of whose jurisdiction the person summoned resides or is to be there served.

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98. Proof of service when serving officer not present
(1) Where the officer who has served a summons is not present at the hearing of the case, and
where a summons issued by a court has been served outside the local limits of its jurisdiction, an
affidavit purporting to be made before a magistrate that the summons has been served, and a
duplicate of the summons purporting to be endorsed in the manner hereinbefore provided by the
person to whom it was delivered or tendered or with whom it was left, shall be admissible in
evidence, and the statements made therein shall be deemed to be correct unless and until the
contrary is proved.
(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and
returned to the court.
99. Power to dispense with personal attendance of accused
(1) Subject to the following provisions of this section, whenever a magistrate issues a summons
in respect of an offence other than a felony, he may if he sees reason to do so, and shall when the
offence with which the accused is charged is punishable only by fine, or only by fine or
imprisonment not exceeding three months, or by fine and such imprisonment, dispense with the
personal attendance of the accused, if the accused pleads guilty in writing or appears by an
advocate. (2) The magistrate trying a case may, at any subsequent stage of the proceedings,
direct the personal attendance of the accused, and, if necessary, enforce his attendance in the
manner hereinafter provided, but no such warrant shall be issued unless a complaint or charge
has been made upon oath.
(3) If a magistrate imposes a fine on an accused person whose personal attendance has been
dispensed with under this section, and the fine is not paid within the time prescribed for payment,
the magistrate may forthwith issue a summons calling upon the accused person to show cause
why he should not be committed to prison for such term as the magistrate may then specify; and
if the accused person does not attend upon the return of the summons the magistrate may
forthwith issue a warrant and commit the person to prison for such term as the magistrate may
then fix.
(4) If, in any case in which under this section the attendance of an accused person is dispensed
with, previous convictions are alleged against that person and are not admitted in writing or
through that person’s advocate, the magistrate may adjourn the proceedings and direct the

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personal attendance of the accused, and, if necessary, enforce his attendance in the manner
provided hereafter in this Part.
(5) Whenever the attendance of an accused person has been so dispensed with and his attendance
is subsequently required, the cost of any adjournment for that purpose shall be borne in any event
by the accused.

WARRANT OF ARREST:
100. Warrant after issue of summons
Notwithstanding the issue of a summons, a warrant may be issued at any time before or after the
time appointed in the summons for the appearance of the accused.
101. Warrant on disobedience of summons
If the accused does not appear at the time and place appointed in and by the summons, and his
personal attendance has not been dispensed with under section 99, the court may issue a warrant
to apprehend him and cause him to be brought before it; but no warrant shall be issued unless a
complaint has been made upon oath.
102. Form, contents and duration of warrant
(1) Every warrant of arrest shall be under the hand of the judge or magistrate issuing it and shall
bear the seal of the court.
(2) Every warrant shall state shortly the offence with which the person against whom it is issued
is charged, and shall name or otherwise describe that person, and shall 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, to
answer to the charge therein mentioned and to be further dealt with according to law.
(3) A warrant shall remain in force until it is executed or until it is cancelled by the court which
issued it.
103. Court may direct security to be taken
(1) A court issuing a warrant for the arrest of a person in respect of an offence other than murder,
treason or rape may direct by endorsement on the warrant that, if the person executes a bond with
sufficient sureties for his attendance before the court at a specified time and thereafter until
otherwise directed by the court, the officer to whom the warrant is directed shall take the security
and shall release the person from custody.

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(2) The endorsement shall state—
(a) the number of sureties;
(b) the amount in which they and the person for whose arrest the warrant is issued are to be
respectively bound; and
(c) the time at which he is to attend before the court.
(3) Whenever security is taken under this section, the officer to whom the warrant is directed
shall forward the bond to the court.
104. Warrants, to whom directed
(1) A warrant of arrest may be directed to one or more police officers, or to one police officer
and to all other police officers of the area within which the court has jurisdiction, or generally to
all police officers of the area:
Provided that a court issuing a warrant may, if its immediate execution is necessary, and no
police officer is immediately available, direct it to any other person or persons, and such person
or persons shall execute the same.
(2) When a warrant is directed to more officers or persons than one, it may be executed by all or
by any one or more of them.
105. Warrants may be directed to landholders, etc.
(1) A magistrate empowered to hold a subordinate court of the first class may direct a warrant to
a landholder, farmer or manager of land within the local limits of his jurisdiction for the arrest of
an escaped convict or person who has been accused of a cognizable offence and has eluded
pursuit.
(2) The landholder, farmer or manager shall acknowledge in writing the receipt of the warrant
and shall execute it if the person for whose arrest it was issued is in or enters on his land or farm
or the land under his charge.
(3) When the person against whom the warrant is issued is arrested, he shall be made over with
the warrant to the nearest police officer, who shall cause him to be taken before a magistrate
having jurisdiction, unless security is taken under section 103.
106. Execution of warrant directed to police officer
A warrant directed to a police officer may also be executed by another police officer whose name
is endorsed upon the warrant by the officer to whom it is directed or endorsed.
107. Notification of substance of warrant

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The police officer or other person executing a warrant of arrest shall notify the substance thereof
to the person to be arrested, and, if so required, shall show him the warrant.
108. Person arrested to be brought before court without delay
The police officer or other person executing a warrant of arrest shall (subject to the provisions of
section 103 as to security) without unnecessary delay bring the person arrested before the court
before which he is required by law to produce that person.
109. Where warrant may be executed
A warrant of arrest may be executed at any place in Kenya.
110. Forwarding of warrants for execution outside jurisdiction
(1) When a warrant of arrest is to be executed outside the local limits of the jurisdiction of the
court issuing it, the court may, instead of directing the warrant to a police officer, forward it by
post or otherwise to a magistrate within the local limits of whose jurisdiction it is to be executed.
(2) The magistrate to whom a warrant is so forwarded shall endorse his name thereon, and, if
practicable, cause it to be executed in the manner hereinbefore provided within the local limits of
his jurisdiction.
111. Warrant directed to police officer for execution outside jurisdiction
(1) When a warrant of arrest 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
the local limits of whose jurisdiction it is to be executed.
(2) The magistrate 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 those limits,
and the local police officers shall, if so required, assist that officer in executing the warrant.
(3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement
of the magistrate within the local limits of whose jurisdiction the warrant is to be executed will
prevent its execution, the police officer to whom it is directed may execute it without
endorsement in any place outside the local limits of the jurisdiction of the court which issued it.
112. Procedure on arrest of person outside jurisdiction
(1) When a warrant of arrest is executed outside the local limits of the jurisdiction of the court by
which it was issued, the person arrested shall, unless the court which issued the warrant is within
twenty miles of the place of arrest, or is nearer than the magistrate within the local limits of

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whose jurisdiction the arrest was made, or unless security is taken under section 103, be taken
before the magistrate within the local limits of whose jurisdiction the arrest was made.
(2) The magistrate shall, if the person arrested appears to be the person intended by the court
which issued the warrant, direct his removal in custody to that court: Provided that if the person
has been arrested for an offence other than murder, treason or rape, and he is ready and willing to
give bail to the satisfaction of the magistrate, or if a direction has been endorsed under section
103 on the warrant and the person is ready and willing to give the security required by the
direction, the magistrate shall take the bail or security, as the case may be, and shall forward the
bond to the court which issued the warrant.
(3) Nothing in this section shall prevent a police officer from taking security under section 103.
113. Irregularities in warrant
An irregularity or defect in the substance or form of a warrant, and any variance between it and
the written complaint or information, or between either and the evidence produced on the part of
the prosecution at a trial, shall not affect the validity of any proceedings at or subsequent to the
hearing of the case, but, if a variance appears to the court to be such that the accused has been
thereby deceived or misled, the court may, at the request of the accused, adjourn the hearing of
the case to some future date, and in the meantime remand the accused or admit him to bail.

PROCEDURE IN TRIALS BEFORE SUBORDINATE COURTS PROVISIONS

RELATING TO THE HEARING AND DETERMINATION OF CASES
202. Non-appearance of complainant at hearing

If, in a case which a subordinate court has jurisdiction to hear and determine, the accused person
appears in obedience to the summons served upon him at the time and place appointed in the
summons for the hearing of the case, or is brought before the court under arrest, then, if the
complainant, having had notice of the time and place appointed for the hearing of the charge,
does not appear, the court shall thereupon acquit the accused, unless for some reason it thinks it
proper to adjourn the hearing of the case until some other date, upon such terms as it thinks fit, in

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which event it may, pending the adjourned hearing, either admit the accused to bail or remand
him to prison, or take security for his appearance as the court thinks fit.

203. Appearance of both parties

If at the time appointed for the hearing of the case both the complainant and the accused person
appear before the court which is to hear and determine the charge, or if the complainant appears
and the personal attendance of the accused person has been dispensed with under section 99, the
court shall proceed to hear the case.

204. Withdrawal of complaint

If a complainant, at any time before a final order is passed in a case under this Part, satisfies the
court that there are sufficient grounds for permitting him to withdraw his complaint, the court
may permit him to withdraw it and shall thereupon acquit the accused.

205. Adjournment

(1) The court may, before or during the hearing of a case, adjourn the hearing to a certain time
and place to be then appointed and stated in the presence and hearing of the party or parties or
their respective advocates then present, and in the meantime the court may allow the accused
person to go at large, or may commit him to prison, or may release him upon his entering into a
recognizance with or without sureties conditioned for his appearance at the time and place to
which the hearing or further hearing is adjourned:

N/B: Provided that no such adjournment shall be for more than thirty clear days, or, if the
accused person has been committed to prison, for more than fifteen clear days, the day following
that on which the adjournment is made being counted as the first day.

(2) Notwithstanding subsection (1), the court may commit the accused persons to police
custody—

(a) For not more than three clear days if there is no prison within five miles of the court-house;
or

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(b) for not more than seven clear days if there is no prison within five miles of the court-house
and the court is not due to sit again at that court-house within three days; or

(c) At the request of the accused person, for not more than fifteen clear days.

(3) For the purposes of this section, in relation to any case where the maximum sentence for the
offence with which the accused person is charged is punishable only by fine, or by imprisonment
not exceeding twelve months with or without a fine “prison” shall be deemed to include a
detention camp established in accordance with the Detention Camps Act (Cap. 91).

206. Non-appearance of parties after adjournment

(1) If, at the time or place to which the hearing or further hearing is adjourned, the accused
person does not appear before the court which made the order of adjournment, the court may,
unless the accused person is charged with felony, proceed with the hearing or further hearing as
if the accused were present, and if the complainant does not appear the court may dismiss the
charge with or without costs.

(2) If the court convicts the accused person in his absence, it may set aside the conviction upon
being satisfied that his absence was from causes over which he had no control, and that he had a
probable defence on the merits.

(3) A sentence passed under subsection (1) shall be deemed to commence from the date of
apprehension, and the person effecting apprehension shall endorse the date thereof on the back of
the warrant of commitment.

(4) If the accused person who has not appeared is charged with a felony, or if the court refrains
from convicting the accused in his absence, the court shall issue a warrant for the apprehension
of the accused person and cause him to be brought before the court

207. Accused to be called upon to plead

(1) The substance of the charge shall be stated to the accused person by the court, and he shall
be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement.

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(2) If the accused person admits the truth of the charge otherwise than by a plea agreement 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:

N/B: Provided that after conviction and before passing sentence or making any order the court
may permit or require the complainant to outline to the court the facts upon which the charge is
founded.

(3) If the accused person does not admit the truth of the charge, the court shall proceed to hear
the case as hereinafter provided.

(4) If the accused person refuses to plead, the court shall order a plea of “not guilty” to be
entered for him.

(5) If the accused pleads—

(a) that he has been previously convicted or acquitted on the same facts of the same offence; or
(b) that he has obtained the President’s pardon for his offence, the court shall first try whether
the plea is true or not, and if the court holds that the evidence adduced in support of the plea does
not sustain it, or if it finds that the plea is false, the accused shall be required to plead to the
charge.

208. Procedure on plea of not guilty

(1) If the accused person does not admit the truth of the charge, the court shall proceed to hear
the complainant and his witnesses and other evidence (if any). ( Examination in chief)

(2) The accused person or his advocate may put questions to each witness produced against
him. (Cross examination)

(3) If the accused person does not employ an advocate, the court shall, at the close of the
examination of each witness for the prosecution, ask the accused person whether he wishes to put
any questions to that witness and shall record his answer

210. Acquittal of accused person when no case to answer

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If at the close of the evidence in support of the charge, and after hearing such summing up,
submission or argument as the prosecutor and the accused person or his advocate may wish to
put forward, it appears to the court that a case is not made out against the accused person
sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith
acquit him.

211. Defence

(1) At the close of the evidence in support of the charge, and after hearing such summing up,
submission or argument as may be put forward, if it appears to the court that a case is made out
against the accused person sufficiently to require him to make a defence, the court shall again
explain the substance of the charge to the accused, and shall inform him that he has a right to
give evidence on oath from the witness box, and that, if he does so, he will be liable to cross
examination, or to make a statement not on oath from the dock, and shall ask him whether he has
any witnesses to examine or other evidence to adduce in his defence, and the court shall then
hear the accused and his witnesses and other evidence (if any).

(2) If the accused person states that he has witnesses to call but that they are not present in court,
and the court is satisfied that the absence of those witnesses is not due to any fault or neglect of
the accused person, and that there is a likelihood that they could, if present, give material
evidence on behalf of the accused person, the court may adjourn the trial and issue process, or
take other steps, to compel the attendance of the witnesses.

212. Evidence in reply

If the accused person adduces evidence in his defence introducing a new matter which the
prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow
the prosecutor to adduce evidence in reply to rebut that matter.

213. Order of speeches

The prosecutor or his advocate and the accused and his advocate shall be entitled to address the
court in the same manner and order as in a trial under this Code before the High Court.

214. Variance between charge and evidence, and amendment of charge

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(1) Where, at any stage of a trial before the close of the case for the prosecution, it appears to
the court that the charge is defective, either in substance or in form, the court may make such
order for the alteration of the charge, either by way of amendment of the charge or by the
substitution or addition of a new charge, as the court thinks necessary to meet the circumstances
of the case:

N/B: Provided that—

(i) Where a charge is so altered, the court shall thereupon call upon the accused person to plead
to the altered charge;

(ii) Where a charge is altered under this subsection the accused may demand that the witnesses
or any of them be recalled and give their evidence afresh or be further cross-examined by the
accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right to
re-examine the witness on matters arising out of further cross-examination.

(2) Variance between the charge and the evidence adduced in support of it with respect to the
time at 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 thereof

(3) Where an alteration of a charge is made under subsection (1) and there is a variance between
the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion
that the accused has been thereby misled or deceived, adjourn the trial for such period as may be
reasonably necessary.

215. Decision

The court having heard both the complainant and the accused person and their witnesses and
evidence shall either convict the accused and pass sentence upon or make an order against him
according to law, or shall acquit him. (Benefit of Doubt)

216. Evidence relative to proper sentence or order

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The court may, before passing sentence or making an order against an accused person under
section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or
order properly to be passed or made.

217. Drawing up of conviction or order

The conviction or order may, if required, be afterwards drawn up and shall be signed by the
court making the conviction or order, or by the clerk or other officer of the court.

218. Order of acquittal bar to further procedure

The production of a copy of the order of acquittal, certified by the clerk or other officer of the
court, shall without other proof be a bar to a subsequent information or complaint for the same

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