KENTIENO

2024

CLE CRIMINAL – Quick Notes

Table of Contents
1. INTRODUCTION ............................................................................................................ 1
2. JURISDICTION AND STRUCTURE OF COURTS ......................................................... 1
3. ARRESTS ......................................................................................................................... 2
Arrest without warrant ..................................................................................................... 2
Rights of arrested persons – Art 49, CoK ........................................................................... 2
Procedure upon arrest ...................................................................................................... 2
Provisions of Article 50 – Fair hearing ............................................................................... 3
4. IDENTIFICATION PARADES ......................................................................................... 4
Definition ......................................................................................................................... 4
Legal framework .............................................................................................................. 4
Rules on ID Parade – R v Mwango ................................................................................... 4
Proposed reforms for ID Parade ....................................................................................... 6
Production of ID Parade Evidence ................................................................................... 6
5. PREPARATION OF FILES FOR TRIAL ........................................................................... 7
Contents of a police file .................................................................................................... 7
Contents of defence/advocate file ...................................................................................... 7
6. COMPLAINT AND CHARGE ......................................................................................... 8
Mandatory requirements for drafting a charge .................................................................. 8
Charge Sheet Sample ......................................................................................................... 8
Defective charge sheet ...................................................................................................... 9
Amendment of charges .................................................................................................. 10
Duplicity ........................................................................................................................ 10
Joinder of counts ............................................................................................................ 10
Joinder of persons .......................................................................................................... 10
Quashing Charges .......................................................................................................... 11
Alternative charges ......................................................................................................... 11
Capital Charges .............................................................................................................. 11
Conspiracy ...................................................................................................................... 12
Doctrine of recent possession .......................................................................................... 12
7. PLEA AND PLEA BARGAIN ......................................................................................... 13
Introduction .................................................................................................................... 13
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Plea taking .................................................................................................................. 13

Equivocal and unequivocal plea ...................................................................................... 13
Plea of guilty ............................................................................................................... 13
Plea of not guilty ......................................................................................................... 14
Plea agreements............................................................................................................... 14
Law & procedure of plea agreements ......................................................................... 14
Change of plea ................................................................................................................ 15
Autrefois acquit & autrefois convict................................................................................. 15
Pardon............................................................................................................................. 15
Plea bargain..................................................................................................................... 16
8. BAIL AND BOND .......................................................................................................... 17
Legal framework ............................................................................................................ 17
Types of bail one can apply for ...................................................................................... 17
Principles for bail/bond ................................................................................................. 17
Factors to consider in granting bail ................................................................................ 17
Conditions upon granting bail ....................................................................................... 18
Denial of bail.................................................................................................................. 18
Process of Bail & Bond at the Magistrate’s court............................................................ 19
Bail pending appeal......................................................................................................... 19
Circumstances under which bail pending appeal may be denied ................................. 19
Surety ............................................................................................................................. 20
Suitability of a surety ................................................................................................... 20
Factors considered ....................................................................................................... 20
Qualification of sureties ............................................................................................... 20
Discharge of sureties .................................................................................................... 20
Application for revision of bail ........................................................................................ 21
CERTIFICATE OF URGENCY .................................................................................... 21
NOTICE OF MOTION ............................................................................................... 22
SUPPORTING AFFIDAVIT........................................................................................ 23
Anticipatory Bail ............................................................................................................. 24
CERTIFICATE OF URGENCY .................................................................................... 25
NOTICE OF MOTION ............................................................................................... 27
SUPPORTING AFFIDAVIT........................................................................................ 30
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9. PRE-TRIAL CONFERENCING ...................................................................................... 33

10. TRIAL PROCESS AND MATTERS ARISING ............................................................. 33
1. The trial process ..................................................................................................... 33
Procedure on the trial process ...................................................................................... 33
Right to a fair hearing; ................................................................................................. 34
Opening statement/address; ........................................................................................ 35
Examination of witnesses ............................................................................................. 35
Production of exhibits; ................................................................................................. 36
Trial within a trial ........................................................................................................ 37
Close of prosecution case ............................................................................................. 38
Submissions (no case to answer, case to answer); ......................................................... 38
Final submissions ........................................................................................................ 38
Witness Protection ....................................................................................................... 38
Confessions.................................................................................................................. 40
Recusal of Judicial Officers ........................................................................................... 42
2. Pre & Post-Sentencing Proceedings ......................................................................... 44
Judgment ..................................................................................................................... 44
Victim impact assessment ............................................................................................ 44
Mitigation or aggravation; ........................................................................................... 45
Sentencing process...................................................................................................... 47
Right of appeal............................................................................................................. 50
3. Lunacy or other incapacity of accused person ........................................................ 50
Legal framework ......................................................................................................... 50
Procedure .................................................................................................................... 50
4. Interlocutory Applications ..................................................................................... 51
Transfer of cases .......................................................................................................... 51
Termination of charges................................................................................................. 52
Watching brief ............................................................................................................. 52
11. Revision ........................................................................................................................ 53
Introduction.................................................................................................................... 53
Differences between appeal and revision. ........................................................................ 53
Legal framework ............................................................................................................ 53
Revisional powers of the HC – S 364, CPC ..................................................................... 53
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Procedure........................................................................................................................ 54
New trial ......................................................................................................................... 54
Sample petition for new trial ........................................................................................ 55
12. APPELLATE JURISDICTION ...................................................................................... 58
Right of appeal ............................................................................................................... 58
Subordinate court to the High Court .............................................................................. 58
High Court to the Court of Appeal (Court of Appeal Rules) ........................................... 59
Court of Appeal to the Supreme Court........................................................................... 59
Petition of Appeal ........................................................................................................ 60
13. SPECIALIZED PROSECUTORS .................................................................................. 62
14. PRIVATE PROSECUTIONS ......................................................................................... 62
Definition ........................................................................................................................ 62
Circumstances under which a private prosecution may be mounted ............................... 62
Procedure for commencing a private prosecution ............................................................ 62
Application for private prosecution ................................................................................. 63
CERTIFICATE OF URGENCY .................................................................................... 64
NOTICE OF MOTION ............................................................................................... 65
SUPPORTING AFFIDAVIT........................................................................................ 66
15. INQUESTS ................................................................................................................... 68
Introduction.................................................................................................................... 68
Jurisdiction ..................................................................................................................... 68
Mandatory & discretionary inquests .............................................................................. 68
Procedure in Inquests ...................................................................................................... 68
Reforms for inquests ....................................................................................................... 69
16. EXTRADITION PROCEEDINGS................................................................................. 70
Meaning .......................................................................................................................... 70
Legal framework ............................................................................................................ 70
Principles of extradition ................................................................................................. 70
Conditions precedent ..................................................................................................... 71
Extraditable offences ...................................................................................................... 71
Procedure for extradition ................................................................................................ 72
Other forms of interstate transfer of persons ................................................................... 73
Appropriate pleadings for extradition. ............................................................................ 73
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Extradition Draft .......................................................................................................... 74

17. MISCELLANEOUS APPLICATIONS .......................................................................... 76
18. HABEAS CORPUS ....................................................................................................... 76
Sample 1 .......................................................................................................................... 77
Sample 2 ......................................................................................................................... 83
Sample 3 ......................................................................................................................... 89
19. JUDICIAL REVIEW...................................................................................................... 95
Sample 1 .......................................................................................................................... 95
Sample 2 ....................................................................................................................... 110
20. PROCEDURES IN SPECIAL COURTS ...................................................................... 114
Children ....................................................................................................................... 114
Legal framework ....................................................................................................... 114
Best interest considerations ...................................................................................... 115
Procedure for Children in Conflict with the Law ..................................................... 115
Diversion .................................................................................................................. 116
Prohibited penalties.................................................................................................. 118
Permitted penalties ................................................................................................... 118
Child witness ............................................................................................................. 118
Anti-corruption ............................................................................................................. 119
Legal framework ....................................................................................................... 119
Procedure on corruption offences ............................................................................. 119
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1. INTRODUCTION

2. JURISDICTION AND STRUCTURE OF COURTS

Supreme court

• Has original jurisdiction – presidential election petitions.

• Appellate jurisdiction – from CoA and various tribunals.
• Advisory jurisdiction – to government, authorities.

Court of appeal – has not less than 12 judges

• Has appellate jurisdiction – cases from the High Court.

High Court (Art 165)

• Unlimited original and appellate jurisdiction in criminal matters.

• Has original jurisdiction for murder, treason and international crimes.
• Appellate jurisdiction – cases from CM Court, tribunals.
• Admiralty jurisdiction – matters arising on the high seas.
• Supervisory jurisdiction on subordinate courts – revision.
• Constitutional cases
• Cases on violation of Human Rights
• Judicial review
• Habeas corpus

Magistrates Courts – criminal proceedings. S 6, Magistrates Courts Act

Pecuniary limits for subordinate courts – S 7, Magistrates Court Act

• Chief Magistrate Court – value not exceeding 20M

• Senior Principal Magistrates Court – value not exceeding 15M
• Principal Magistrate – 10M
• Senior Resident Magistrates Court – value not exceeding 7M
• Resident Magistrates Court – value not exceeding 5M

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3. ARRESTS

Arrest without warrant

S 29 of the Criminal Procedure Code – arrest can be made without a warrant when;

• Commits a cognizable offence

• Commits breach of peace in presence of police officer
• Obstructs police in execution of his duties
• Possession of something suspected to be stolen
• Reasonably suspected to be a deserter from armed forces
• Found in a place during the night on reasonable grounds of having committed
or being about to commit a felony
• Attempts to escape lawful custody
• Reasonably suspected to have committed extraditable offence outside Kenya
• Reasonably suspected to be subject of a warrant of arrest

Rights of arrested persons – Art 49, CoK

• Informed, in a language that the person understands, of reason for arrest
• Right to remain silent.
• Consequence of not remaining silent.
• Communicate with an advocate, or other person whose assistance is necessary.
• Not to be compelled to make any confessions. (See Evidence (Out of court
Confessions) Rules 2009)
• To be held separately from persons who are serving a sentence.
• To be brought before a court as soon as reasonably possible, but not later than
✓ twenty-four hours after being arrested; or
✓ if the twenty-four hours ends outside ordinary court hours, or on a day
that is not an ordinary court day, the end of the next court day
• At the first court appearance, to be charged or informed of the reason for the
detention continuing, or to be released;
• To be released on bond or bail, on reasonable conditions, pending a charge or
trial, unless there are compelling reasons not to be released

Procedure upon arrest

• Charge – charge sheet drawn & charges read (S 134 & 137, CrPC)
• Plea taking – Adan v R; s 207 & 274, CrPC
• Conviction & sentencing if plea of guilty entered

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• Bail and Bond

• Date of hearing shared

Provisions of Article 50 – Fair hearing

(1) Fair and public hearing before a court and independent tribunal.
(2) Right to a fair trial which includes the right to –
a) be presumed innocent until proven guilty;
b) be informed of the charge with sufficient detail to answer it;
c) have adequate time and facilities to prepare a defence;
d) a public trial before a court established under the constitution;
e) have trial begin and conclude without unreasonable delay;
f) be present when being tried (unless conduct of accused makes that impossible);
g) choose and be represented by an advocate; and to be informed of this right
promptly
h) have advocate assigned by State if substantial injustice would otherwise result
i) remain silent and not testify during proceedings;
j) be informed of evidence adduced against him or her;
k) adduce and challenge evidence;
l) refuse to give self-incriminating evidence;
m) have assistance of interpreter;
n) not be convicted of an act that was not an offence as at the time of arrest
o) autrefois acquit
p) least severe of prescribed punishment
q) appeal if convicted

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4. IDENTIFICATION PARADES

Definition
• This is where a suspect is placed in a group of 8 other individuals, all of whom
look similar to the suspect, so that a witness to a crime (who has only caught a
fleeting glimpse of the suspect) may try and identify the suspect.
• It is a method of identifying/confirming the identity of a suspect to a crime.

Exceptions to ID parades

• Where the suspect does not consent.

• Where it is impracticable to assemble people who resemble the suspect.
• Where the eyewitness cannot identify the offender.
• Where the case is one of pure recognition of someone well known to the witness -
R v Ajode

Legal framework
• Provided for in the National Police Service Standing Orders
• Police shall fill Form P 156 during the parade – authorized under S 62 & 63, EA
(Oral evidence must be/be backed by direct evidence)

Rules on ID Parade – R v Mwango

If not previously known, we would have to hold an ID Parade using police form P156
subject to the following rules as spelt out in R v Mwango:
• Must be conducted with scrupulous fairness.

• Witness must describe the accused prior to the parade being conducted.

• Parade should be held in privacy.

• Accused must be informed of the reasons for the parade.

• Accused may elect to have an advocate/friend present when the parade is

conducted. See David Wanja v R

• Police officer in charge of the case cannot conduct the parade even though s/he is

present.

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• When explaining the procedure to the witness, an officer conducting the parade

must inform him/her that s/he will see a group of people which may/may not include

the accused person.

• The witness should not see the accused person before the parade – See Livingstone v

Republic.

• Where a witness is identifying more than one suspect, the members of the ID parade

should not be similar.

• Accused person must be placed among 8 persons reasonably similar in general

features. See Njihia v R

• Accused’s disfigurements must not be specially apparent.

• Not more than one accused persons should be in one parade.

• Accused may be allowed to take any position; and can change the position.

• Witnesses should not be allowed to communicate with each other.

• Every unauthorized persons must be excluded.

• No police officer should be used as a witness, unless accused or suspect.

• Where a witness desires to see an accused person walk, talk, see him with a hat

on or off, it should be done, but the whole parade must be asked to do the same.

• Upon identification, the witness must actually touch the person s/he identifies.

• If a witness desires to keep their identity secret for security reasons,

arrangements must be made for the witness to view the parade from a concealed

vantage point.

• A note indicating how the witness identified the accused must be made after each

witness leaves the parade.

• A record should as well be made by an officer conducting the parade of any

comments made by an accused person during the parade, particularly, comments

made when the accused was identified.

• At the end of the parade or during the parade, an officer conducting it should

ask the accused is s/he is satisfied that the parade is undertaken in a fair manner and

note down reply made.

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Proposed reforms for ID Parade

• Amendment of the Witness Protection Act to extend the protection of witnesses

who identify perpetrators at an ID parade especially for rape victims and victims
of robbery with violence.
• The provision for identification through touching should be scraped out as it is
intimidating especially for victims of rape. It may expose a witness to
dangerous suspects.
• Adoption of the sequential system of parades: This is where the parade members
are presented to the witness individually in a random manner.
• Use of photographs in place of corporeal parades: Using photographs in a well-
prepared manner enables the witness to be confident and relaxed when
identifying the accused persons. This is faster and it protects the identifying
witness from coming face to face with the suspected person(s).
• Incorporation of more advanced methods of identification: This is similar to the use
of photographs only that a database system of pictures is used in collaboration
with other hi-tech IT equipment. ICT technology could also be embraced

Production of ID Parade Evidence

Report filled by police officer conducting the parade shall be admitted to court as
evidence. R v Turnbull

Report addresses issues of:

• No of witnesses
• Members of parade present
• Police officer in charge of parade
• Position of standing of the suspects
• Objections raised, if any
• Whether accused & witness are satisfied with conduct of the parade

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5. PREPARATION OF FILES FOR TRIAL

Contents of a police file

A. Initial report – information from the OB & complaint.
B. Documentary evidence – photographs, sketches, plans.
C. Experts’ report – ballistics, DNA, medical reports, postmortem.
D. Prosecution witness statements – and ID parade report.
E. Accused statement/response upon enquiry.
F. Investigations diary – account of findings of the IO.
G. Charge sheet & related documents.
H. Accused previous records – fingerprint, list of exhibits, witnesses.
I. Cover file – outlines prosecution’s case.
J. Minute sheet – correspondence & events of interest to the investigation.

Contents of defence/advocate file

• Instruction note
• Client attendance note
• Court attendance form
• Charge sheet
• Bail/bond documents
• Legal opinion to client based on preliminary bases
• Witness statement and documentary exhibits
• Cases to be relied on
• Case concept/battle plan
• Fee notes
• Correspondence
• Defence case
• Defence witness statements

Court Documents

• Charge sheet
• Bail/bond documents
• Release order
• Witness list
• Remand warrant
• Exhibit list
• Orders

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6. COMPLAINT AND CHARGE

Mandatory requirements for drafting a charge

Considerations when drafting a Charge Sheet

S 137, CPC (Samuel Githunguri v R)

● Statement of offence – S 134 CPC (Ibrahim v R)

● Particulars of offence
● Cite correct section of the law – S 137 CPC
● Commencement (Date, OB No, police case No., or Court case No)
● Must be a crime in Kenya
● State all things that occurred in statement of particulars as set out by
complainant.
● If more than one count, counts to be set out in different paragraphs & numbered
consecutively.
● Max 12 counts - R v Peter Ochieng

Charge Sheet Sample

Robbery with violence – S 296(2), PC
Forgery – S 347 as read with S 349 PC
Handling stolen property – S 322, PC

NATIONAL POLICE SERVICE

CHARGE SHEET

Police Case Number

Date of Court
Court file no
OB No – 12/29/12/2015

Names Surname ID Sex Nationality Age Address

Darius Nash
Charge ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296(2)
Count 1 OF THE PENAL CODE

Particulars of On 25th December at around 8.00pm, Darius Nash and 2 others

Offence robbed Jacob Greenleaf at gun point while driving motor vehicle
Reg No KCX 3448 Toyota Axio blue in colour along Kilimani
Road.

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Other counts – see overleaf

• If accused arrested – Yes

• Date of arrest – 30th December 2015
• With/without warrant – without
• Date of arraignment – 31st December 2015
• Bond or bail amount – in custody
• Remanded or adjourned – remanded
• Witnesses – Investigating Officer

Charge HANDLING STOLEN PROPERTY CONTRARY TO SECTION

Count 2 322 OF THE PENAL CODE

Particulars of On 30th December 2015, Darius Nash was intercepted by the

Offence police driving the motor vehicle KCX 3448.

Charge FORGERY CONTRARY TO SECTION 347 AS READ WITH 349

Count 3 OF THE PENAL CODE

Particulars of On 30th December 2015 Darius Nash was found in possession of

Offence forged documents alleged to be documents for purchase of
motor vehicle KCX 3448X from James Greenleaf on 25th January
2015 and had had the vehicle for a year.

OCS Kilimani Police

Officer in Charge

Defective charge sheet

A valid charge sheet must have a statement of offence and particulars of the offence
as per S 134 & 137 of the CPC.

S 89(5), CPC – where magistrate is of opinion that a complaint or charge does not
disclose an offence, the magistrate shall make an order refusing to admit the
complaint/charge.

S 90(2), CPC – the validity of proceedings taken in pursuance of a complaint or charge

shall not be affected by a defect in the complaint/charge.

Defects in a charge sheet – S 134 CPC

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• Erroneous and inconsistent names of accused persons, dates and places.

• Wrong section of the law quoted.
• Particulars inconsistent with laws quoted.
• Offences charged are founded on different facts – See section 135(1) CPC.
• The charge sheet is duplex – contains two different offences on the same act.
• Non-existent offences.
• Misjoinder of persons

Amendment of charges
S 214 CPC – Remedy to a defective charge would be to amend it before close of the
prosecution case, provided that:

• the accused person to plead to the altered charge;

• the witnesses be recalled and give their evidence afresh;
• witnesses be further cross-examined by the accused;
• prosecution to re-examine witnesses on matters arising;
• where alteration of charge varies from evidence, court may adjourn trial if on
the belief that the accused is being misled.

Duplicity
• Where two or more offences are charged in one count. Mwaniki v R
• Duplicity deprives an accused the opportunity to know the precise offence
he/she is accused of which undermines his/her capacity to mount an effective
defence.
• This violates his/her right under Article 50(2)(b) CoK to be informed of the
charge with sufficient detail to answer it.

Joinder of counts
Offences may be charged together in the same charge if the offences are founded on
the same facts, or form or are part of a series of offences of the same or similar
character – S 135 CPC.

Joinder of persons
• Section 136 CPC – this is the charging together of persons who have committed
offences in the same transaction in one charge sheet.
• They can be charged in different counts.

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Permissible joinders
Persons accused of –
• the same offence committed in the course of the same transaction;
• different offences committed in the same transaction;
• an offence and persons accused of abetment, or of an attempt to commit the
offence;
• offences of the same kind committed by them jointly within a period of twelve
months;
• offences relating to theft or fraudulent acquisition of property between whom
possession or retention of the said property has been transferred;
• an offence relating to counterfeit coin or of abatement or attempting to commit
such offence.

Quashing Charges
• Section 276 of the CPC provides for quashing of a charge or information where
there is a defect in the charge. Done through Notice of Motion.
• A defect in such a charge, however, does not lead to an automatic quashing of
the charge unless the defect has occasioned a failure of justice or has prejudiced
the accused.

Alternative charges
• This is a charge preferred against the accused instead of the former. It is a
backup charge usually a lesser offence.
• It is 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.
• Mbithi v R – where a court makes a finding in the main charge, there should be
no finding in the alternative.

Capital Charges
• Are offences punishable by death i.e. murder, treason, robbery with violence,
attempted robbery with violence.
• No other count should be joined to a count which carries a death penalty in the
event of conviction.

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Conspiracy
• It is an agreement between two or more persons to effect any unlawful purpose.
• There can also be a conspiracy to do a lawful purpose by unlawful means.
• The offence of conspiracy is complete as soon as the parties agree to effect the
unlawful purpose.
• Mawji v R – husband and wife cannot commit conspiracy.

Doctrine of recent possession

Introduction
Refers to possession of property that has been recently stolen.
It applies only to offences of handling stolen goods and is relevant to proving the mens
rea of the offence.

The ‘doctrine’ was explained in the case of R v Abramovitch and lays down that when
a person charged with handling stolen goods is found in possession of, or dealing
with, goods that have recently been stolen, a jury may infer that he is guilty if he offers
no explanation of his possession, or they do not believe the explanation given.

Principles in doctrine of possession

Per Asum v R, the prosecution must establish that:
• The property was stolen.
• The accused was found in possession of the stolen property.
• The possession was recent, relative to the time of the theft.
• The complainant has positively identified the stolen property as his.
• The accused failed to provide a satisfactory explanation for their possession.

In case of Paul Mwita v R, the court held that the proximity in time between the theft
and the possession of the stolen property by the accused was crucial in applying the
doctrine.

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7. PLEA AND PLEA BARGAIN

Introduction

Plea taking
Introduction & nature

Sections 207 & 274, CPC

• Explain charge and all elements of offence in a language they understand.

• Furnish the accused with a charge sheet or information.
• Where there is more than one accused person, each must be addressed
individually.
• Accused must personally plead to the charge.

Types of plea

• Guilty
• Not guilty
• Guilty subject to plea agreement
• Autrefois convict/acquit
• Presidential pardon

Equivocal and unequivocal plea

Equivocal plea is one that is ambiguous or qualified capable of having more than one
possible meaning or interpretation.

Unequivocal plea is one that is absolute, unqualified, unambiguous, clear and having
only one possible meaning or interpretation.

Plea of guilty
Sections 207 CPC – Adan v R [1973]

• Explain all the essential ingredients of the offence to the accused in a language he

understands; and he shall be asked what he pleads;

• The accused’s own words should be recorded and if they are in admission, a plea

of guilty should be recorded;

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• The prosecution should then immediately state the facts, and the accused should

be given an opportunity to dispute or explain the facts or to add any relevant

facts;

• If the accused does not agree with the facts or raises any question of his guilt, his

reply must be recorded and change of plea entered; (Kariuki v R)

• If the accused admits the facts and there is no change of plea, a conviction

should be recorded and a statement of the facts relevant to sentence together with

the accused’s reply recorded

Plea of not guilty

S 208, CPC

• Accused does not admit to charge

• Accused does not admit the statement of facts
• Accused refuses to plead
• The court shall proceed to hear the complainant and his witnesses and other
evidence (if any).

Plea agreements

Law & procedure of plea agreements

Pursuant to S 137A to 137O of the Criminal Procedure Code & ODPP Rules

• Conducted after an accused person has been charged or at any time before judgment
• Views of the victim must be sought.
• Plea agreements may not be used in relation to prosecutions under the Sexual
Offences Act, genocide, war crimes & crimes against humanity.
• Court should not interfere with the prosecutor’s discretion to engage in plea
negotiations; unless in breach.
• Plea agreement must be in writing.
• Before recording a plea agreement, the court should place the accused under oath
to certify competence and understanding.
• When a court accepts a plea agreement, it must record the factual basis.
Agreement becomes binding and is acted upon.

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• Where a court rejects a plea agreement, it must record the reasons for the rejection
and inform the parties.
• Accused person may withdraw plea before sentencing – with a fair and just reason.
• A sentence passed by the court following a plea agreement is final, and no appeal
lies from it except as to the extent or legality of the sentence imposed.

Change of plea
This is when the accused person reconsiders and chooses to change from not guilty to
guilty or vice versa.

Kamundi v R – A plea may be changed before the court becomes functus. An accused
may change plea at any time before a sentence is imposed but at the discretion of the court.

Factors to be considered in allowing change of plea

• Where it is proved that the accused was ignorant of court procedures

• Number of languages in Kenya makes it possible for an accused to misunderstand
the proceedings.

Autrefois acquit & autrefois convict

Article 50(2)(o) CoK & Sections 138 & 297 (a) CPC – a person not triable for an offence
for which he/she has been previously acquitted or convicted.

Exceptions

Pleas of autrefois acquit or convict will not apply where:

• Consequence of an accused person’s act had not occurred or were not known
at the time of the previous trial.
• Accused was tried by a court that was not competent.
• First trial has been declared a nullity and the conviction and sentence set aside
• A discharge of an accused. Discharge is not an acquittal, and the plea cannot be
sustained.

Pardon
A plea of pardon: It is a special plea made by an accused person to the effect that he
or she has been pardoned, in respect of the offence charged in the indictment.

The President under Art 133, CoK wields the prerogative power of mercy and may:

• Grant a free or conditional pardon to a person convicted of an offence.

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• Postpone the carrying out of a punishment, for a specific or indefinite period.

• Substitute a less severe form of punishment.
• Remit all or part of a punishment.

Section 279(1)(b) of the CPC also recognizes the plea and is a bar to proceedings.

When an accused person claims plea of pardon, should the plea be successful after a
trial, then the accused is not acquitted but discharged. The same applies 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.

Plea bargain
It is the agreement between the prosecution and the accused person for the reduction
of a charge to a lesser offence, withdrawal of charge, stay of other charges, or for a
promise not to proceed with other possible charges.

Legal basis

Section 137A CPC; ODPP Rules. Conducted after an accused has been charged or at
any time before judgment.

Aim/purpose

Section 137A CPC – Reduction of a charge to a lesser offence, Withdrawal of charge,

stay of other charges, promise not to proceed with other possible charges.

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8. BAIL AND BOND

Legal framework
• Art 48 – Access to justice
• Article 49 (1)(h) – Bail and Bond
• Art 50(2)(a) – Right to fair hearing (presumption of innocence)
• Section 123 CPC
• Bail and Bond Policy Guidelines

Types of bail one can apply for

• Bail at the police station – pending a charge or arraignment in court to take
plea.
• Bail pending trial – after accused is presented before court to take plea.
• Bail pending appeal
• Anticipatory bail

Principles for bail/bond

Bail & Bond policy guidelines

• Presumption of innocence – Art 50(2)(a). Woolmington v DPP

• Right to liberty – Art 29
• Right to reasonable bail/bond terms – amounts to be reasonable/should not be
excessive. S 123(2), CPC.
• Obligation to attend trial – bail and bond provide guarantee that accused will
attend trial.
• Balance the rights of the accused persons and the interests of justice.
• Consideration for the rights of victims – safety of victims.

John Karuri v R – unlike the repealed constitution, the right to bail applies to all
offences.

Factors to consider in granting bail

S 123A, CPC; Bail & Bond Policy Guidelines
• Nature & seriousness of the offence.
• Character and antecedents of accused person.
• Previous breach of bail or bond terms.

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• Strength of the prosecution case.

• Protection of the accused.
• Likelihood of interfering with witnesses.
• Need to protect the victims of the crime.
• Relationship between the accused and potential witnesses.
• Child offenders – detention deemed not to be in the best interests of the child.
• Accused is a flight risk.
• Likelihood of appearance at the trial.
• Public order, peace or security.
• Likelihood of commission of more offences
• The accused is serving a custodial sentence.
• Paucity of information on the accused person.
• The circumstances out of which the charge had arisen.
• Length of remand period.
• Likelihood of further charges.
• Special circumstances of the accused e.g. illness.

Conditions upon granting bail

That the accused shall:
• attend court.
• not leave the jurisdiction of the court without leave of court.
• not interfere with evidence and or witnesses.
• not commit a crime during the pendency of the prosecution.
• forfeit the bail amount to the state if they default in appearance during mentions
• comply with court directions.

Denial of bail
Bail & Bond policy guidelines

Bail may be reviewed/denied for reasons that the accused may:

• fail to attend court;

• commit or abet the commission of a serious offence;
• endanger the safety of victims;
• interfere with witnesses or evidence;
• endanger national security or public safety.
• Previous breach of bail terms.

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• Protection of the accused person.

• Flight risk.
• It is in the public interest to detain the accused person in custody.

Process of Bail & Bond at the Magistrate’s court

• Application done orally or by way of Notice of Motion after plea-taking.
• If anticipatory bail, show reason for apprehension of arrest.
• Prosecution may raise an objection to the application by way of an affidavit.
• Bail is set at a fixed amount and after payment of deposit, one is issued with a
receipt.

Bail pending appeal

Does not exist as of right and is issued only in exceptional circumstances.

S 356 & 357, CPC – to be entitled to bail pending appeal, applicant must satisfy the
court that the appeal has overwhelming chances of success. (Samuel Macharia Njagi v R).

Presumption of innocence is no longer operative – presumption is that the accused

was properly convicted, and the burden is on him to show why he should get bail
pending appeal.

Jivraj Shah v Republic – the main considerations for bail pending an appeal:

• The applicant must show a meritorious appeal with overwhelming chances of

success.
• Whether there are exceptional circumstances.
• Whether there exists a high probability of the sentence or substantial part of it,
having been served by the time the appeal is heard.

Other secondary considerations include:

• medical condition of the applicant,

• nature of the offence,
• sentence imposed
• likely delay in the preparation of the appeal record and the hearing of the same

Circumstances under which bail pending appeal may be denied

• Failure to prove overwhelming chances of success of the appeal.
• Opposition by ODPP which opposition is well-founded in law.
• Interest of the convict(appellant) that they remain in custody.

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Surety
Surety – a person who undertakes to ensure that an accused person will appear in
court and abide by bail conditions

Legal basis – S 124-131 CPC; Bail & Bond policy guidelines.

Suitability of a surety
Suitability is determined by the court through an examination on oath. It is a judicial
process and must be put on record.

Factors considered
Established in R v James Kiarie Mutungei; Bail & Bond policy guidelines

• Surety’s financial ability to meet the obligations of the bail terms,

• Character of surety
• Accused’s relationship with the surety
• Residence of the surety
• Age
• Any other factor having a bearing on the surety’s compliance with bail terms.

Qualification of sureties
R v Gabhai Jessa

• Must be a person of good social standing

• Must be a person capable of meeting surety obligations
• Must be aged 18 years and above
• Court must be satisfied that a proposed surety understands the obligations of
a surety and is willing to assume the role.

Discharge of sureties
Section 128(1) CPC – A surety may apply to the court to be discharged. Application can
be made orally or by way of Notice of Motion.

Grounds

• Section 127 CPC – Fraud

• Section 129 CPC – Death
• Bankruptcy
• Misunderstanding between the accused and the surety.
• Personal reasons

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• Property auctioned
• Imprisonment of surety
• Section 130 CPC – Suspicion that the accused wants to abscond.

Forfeiture of recognizance – S 131, CPC. Consequences – penalty, warrant of

attachment and sale, imprisonment for not more than 6 months.

Application for revision of bail

REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MISC CRIMINAL APPLICATION X OF X

MZITO ……………..……………………..…………1ST ACCUSED

USIKU SACCO LTD………………………………..2ND ACCUSED

REPUBLIC……………………………………. RESPONDENT

CERTIFICATE OF URGENCY
I, WAKILI TIMAMU, an Advocate of the High Court of Kenya practicing as such in
the firm of XYZ Advocates in the Republic of Kenya, do hereby certify the application
as urgent and needs to be heard on a priority basis.

Dated at Nairobi this x day of x 2022

(SIGN)
WAKILI TIMAMU
ADVOCATE FOR THE APPLICANT
Drawn & filed by

XYZ Advocates
Nairobi

To be served upon:

ODPP
P.O. Box 170
Nairobi

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REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

MISC CRIMINAL APPLICATION X OF X

MZITO ……………………………………..…………1ST ACCUSED

USIKU SACCO LTD………………………………..2ND ACCUSED

REPUBLIC……………………………………. RESPONDENT

NOTICE OF MOTION
(Pursuant to Article 49(1)(h), 50(1), 165(6) and 165(7) of the Constitution of Kenya 2010 as
read with Sections 123(3) and 362 of the Criminal Procedure Code)

TAKE NOTICE that this Honourable Court shall be moved on the …. Day of …2022,
at 9.00 O’clock in the forenoon or soon thereafter as counsel for the Applicant may be
heard on an application for ORDERS THAT:

1. This application be certified as urgent.

2. This court consider giving the accused persons alternative bond terms.
3. Such further and other reliefs that the Honourable Court may deem just and
expedient to grant.

WHICH APPLICATION is premised on the following grounds:

a) THAT the bond terms given by the learned magistrate were excessive in light
of the charge brought against the accused person.
b) THAT the accused is not in a financial position to afford the amount set.
c) THAT it will be in the interest of fairness and justice to review the bail and
bond terms

AND this Application is further supported by the affidavit of JOHN MZITO and on
further grounds to be adduced at the hearing.

(SIGN)
WAKILI TIMAMU
ADVOCATE FOR THE APPLICANT
Drawn & filed by

XYZ Advocates
Nairobi

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To be served upon:

ODPP
P.O. Box 170
Nairobi

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

MISC CRIMINAL APPLICATION X OF X

MZITO …………..………………………..…………1ST ACCUSED

USIKU SACCO LTD………………………………..2ND ACCUSED

REPUBLIC……………………………………. RESPONDENT

SUPPORTING AFFIDAVIT
I, MZITO, a Kenyan citizen and a resident of Runda, Nairobi of P.O. Box 232-00100
Nairobi within the Republic of Kenya do make oath and state as follows:

1. THAT I am a male adult of sound mind hence competent enough to swear this
affidavit.
2. THAT I am the 1st Applicant in this case and the Managing Director of the 2 nd
Applicant
3. THAT I am unable to raise the money that was issued by the Honourable Court
as my terms of bail and bond.
4. THAT I have tried to raise the money to no avail due to the high value.
5. THAT I will undertake to meet a reviewed bail and bond term if this Court
grants my prayers.
6. THAT what is deponed herein is true to the best of my knowledge and
information.

SWORN by the said MZITO )

AT Nairobi on x of x 2022 )………………………. DEPONENT
BEFORE ME )
COMMISSIONER FOR OATHS )

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Drawn & filed by

XYZ Advocates
Nairobi

To be served upon:

ODPP
P.O. Box 170
Nairobi

Anticipatory Bail
It is bail in anticipation of arrest.

Conditions that may be imposed by the Court before granting anticipatory bail

The person shall:

• make himself available for interrogation when required;

• not leave jurisdiction without the prior permission of the Court;
• show that he has reason to believe that he may be arrested.

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REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC CRIMINAL APPLICATION NO……...OF 2024

IN THE MATTER OF CHAPTER FOUR AND ARTICLES 19, 20, 21(1), 22, 23(1), 25,

27(1), 28, 29(a), 47(2), 49(1)(h), 165(3) AND 244(C) OF THE CONSTITUTION OF

KENYA 2010, AND

SECTION 123 OF THE CRIMINAL PROCEDURE CODE

AND

IN THE MATTER OF APPLICATION FOR ANTICIPATORY BAIL OR BAIL

PENDING ARREST AND/OR CHARGE

BETWEEN

NAY MTEGO……………………………………………………………APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE ……………………………...1ST RESPONDENT

DIRECTORATE OF CRIMINAL INVESTIGATIONS……..……2ND RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS………..……………..3RD RESPONDENT

CERTIFICATE OF URGENCY
I, WAKILI TIMAMU, of Post Office Box Number 1234, Nairobi in the Republic of

Kenya, an Advocate of the High Court of Kenya, practicing under the name and firm

of C9 ADVOCATES LLP, do hereby certify the application herewith as being urgent

for the reason that the Applicant is apprehensive that his right to liberty may at any

time be infringed yet he remains innocent until proven guilty by a competent court of

law. He stands to suffer irreparable harm in the hands of the respondents unless this

honourable court intervenes.

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2024

DATED at NAIROBI this 8th day of April 2024

WAKILI TIMAMU

C9 ADVOCATES LLP

ADVOCATES FOR THE APPLICANT.

DRAWN AND FILED BY:

C9 ADVOCATES LLP
5th Floor Amran Towers
Richard Street
P.O Box 09-00100, Nairobi, Kenya
Email: info@[Link]

TO BE SERVED UPON;

1. OFFICE OF THE INSPECTOR GENERAL OF POLICE

Taifa Road, Jogoo House "A" 4th Floor
P.O Box 44249-00100 Nairobi, Kenya
Tel: +254 20 2221969
Email: nps@[Link]

2. THE DIRECTOR OF CRIMINAL INVESTIGATIONS

Mazingira Complex, Kiambu Road,
Opp. Kenya Forest Service Headquarters, Karura
P.O. BOX 30036 – 00100, Nairobi, Kenya
Email: director@[Link]

3. THE DIRECTOR OF PUBLIC PROSECUTIONS

ODPP House, Ragati Road, Upper Hill
P.O. Box 30701-00100, Nairobi, Kenya
Email: info@[Link]

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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC CRIMINAL APPLICATION NO……...OF 2024

IN THE MATTER OF CHAPTER FOUR AND ARTICLES 19, 20, 21(1), 22, 23(1), 25,
27(1), 28, 29(a), 47(2), 49(1)(h), 165(3) AND 244(C) OF THE CONSTITUTION OF
KENYA 2010, AND CRIMINAL PROCEDURE CODE

AND

IN THE MATTER OF APPLICATION FOR ANTICIPATORY BAIL OR BAIL

PENDING ARREST AND/OR CHARGE

BETWEEN

NAY MTEGO……………………………………………………………APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE ……………………………...1ST RESPONDENT

DIRECTORATE OF CRIMINAL INVESTIGATIONS……..……2ND RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS………..……………..3RD RESPONDENT

NOTICE OF MOTION
(Under Articles 29 and 49(1)(h) of the Constitution of Kenya 2010 and Sections 123 and 124
of the Criminal Procedure Code)
“Ex-parte”

TAKE NOTICE that this Honourable Court shall be moved on the …………day of
…….2024 at 9 o’clock in the forenoon or as soon thereafter as the advocate for the
applicant may be heard for ORDERS:
1. THAT this application be certified as urgent and heard ex parte in the first

instance on priority basis.

2. THAT the Honourable Court be pleased to appoint and/or grant the Applicant
Anticipatory Bail pending arrest, investigations and or charge by the
respondents.

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3. THAT pending the hearing of this application inter parties, the Respondents
directed not to arrest the applicant on such terms and conditions as the court
deems fit.
4. THAT a day be appointed by the Court for the Applicant to appear before the
Police Officers attached to Kusadikika Municipality, or any other officer of a
named Police Station together with his Advocates M/S C9 ADVOCATES LLP
to enable Police to undertake the normal procedure including charge or caution
if necessary and any other necessary matter WITHOUT THE APPLICANT
BEING CONFINED into custody.
5. THAT any other orders and/or directions as the Honourable Court may deem
fit, just and expedient in the circumstances.

WHICH APPLICATION is based on the grounds stated hereunder; -

1. THAT the applicant herein is facing arrest threats from Kusadidika police
following news updates from the Kusadidika Municipality police commander.
2. THAT the threatened arrest and detention of the Applicant will result in a
gross violation of his fundamental right to freedom.
3. THAT the applicant is ready and willing to comply with such anticipatory bail
terms and conditions as this Honourable Court may deem fit.

AND which application is further supported by the affidavit of MR. NAY MTEGO
and such other or further grounds to be adduced at the hearing.

DATED at NAIROBI this 8th day of April 2024

C9 ADVOCATES LLP

ADVOCATES FOR THE APPLICANT

Drawn and filed by:

C9 ADVOCATES LLP
5th Floor Amran Towers
Richard Street
P.O Box 09-00100, Nairobi, Kenya
Email: info@[Link]

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KENTIENO
2024

TO BE SERVED UPON;

1. OFFICE OF THE INSPECTOR GENERAL OF POLICE

Taifa Road, Jogoo House "A" 4th Floor
P.O Box 44249-00100 Nairobi, Kenya
Tel: +254 20 2221969
Email: nps@[Link]

2. THE DIRECTOR OF CRIMINAL INVESTIGATIONS

Mazingira Complex, Kiambu Road,
Opp. Kenya Forest Service Headquarters, Karura
P.O. BOX 30036 – 00100, Nairobi, Kenya
Email: director@[Link]

3. THE DIRECTOR OF PUBLIC PROSECUTIONS

ODPP House, Ragati Road, Upper Hill
P.O. Box 30701-00100, Nairobi, Kenya
Email: info@[Link]

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC CRIMINAL APPLICATION NO……...OF 2024

IN THE MATTER OF CHAPTER FOUR AND ARTICLES 19, 20, 21(1), 22, 23(1), 25,

27(1), 28, 29(a), 47(2), 49(1)(h), 165(3) AND 244(C) OF THE CONSTITUTION OF

KENYA 2010, AND CRIMINAL PROCEDURE CODE

AND

IN THE MATTER OF APPLICATION FOR ANTICIPATORY BAIL OR BAIL

PENDING ARREST AND/OR CHARGE

BETWEEN

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NAY MTEGO……………………………………………………………APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE ……………………………...1ST RESPONDENT

DIRECTORATE OF CRIMINAL INVESTIGATIONS……..……2ND RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS………..……………..3RD RESPONDENT

SUPPORTING AFFIDAVIT
I, NAY MTEGO, of P.O Box No. 678 in the Republic of Kenya make an oath and state

as follows;

1. THAT I am a male adult of sound mind and the applicant herein hence
competent to swear this affidavit.
2. THAT I am a resident of Kenya and a Citizen thereof.
3. THAT I seek protection of my liberty under the Kenyan Constitution as I
believe that I am entitled to bond/bail as of right and that I am presumed
innocent until proven guilty.
4. THAT I am aggrieved by the actions of the respondents as herein described,
which have infringed upon my rights as a citizen of Kenya.
5. THAT I am currently facing unwarranted arrest and prosecution orchestrated
by the respondents, particularly the Kusadidika Municipality Police
Commander, as detailed below.
6. THAT I penned an article titled "Wapi Huko” in my blog known as “Jackal
News” on poor leadership.
7. THAT pursuant to the article, the political class was upset and orchestrated my
arrest and detention.
8. THAT the police have put out information on my arrest based off alleged
violation of Computer Misuses and Cybercrimes Act.
9. THAT the Kusadidika Municipality Police Commander has been seen in the
news vowing to cause my arrest for “being used by unknown elements to
destabilize peace and tranquillity of Kusadidika.”
10. THAT I verily believe that the actions of the respondents are politically
motivated and aimed at silencing my freedom of speech and expression
envisaged in the constitution.

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11. THAT I am further advised by my advocates on record which advise I verily

believe to be true THAT; -
a) My arrest by the respondents will be injurious to my constitutional rights.
b) Right to anticipatory bail is my constitutional right.
c) The arrest has no basis in law as it is ill-motivated.
12. THAT the application before this court is made in good faith and in the interest
of justice.
13. THAT I am willing to honour any terms imposed by the Court while admitting
me on bond or granting me bail pending arrest and preventing the police from
holding me in custody.
14. THAT I am willing to appear before such Police Station as the Court may order
in addition to my admission on bail or bond.
15. THAT this Court has powers to grant anticipatory Bail or Bond pending arrest
or charge or trial by virtue of Article 49(1)(h) of the Kenyan Constitution.
16. THAT I now swear this affidavit in support of the application now before this
court and pray that the same be allowed.
17. THAT all that is deponed to herein is true to the best of my knowledge save for
matters deponed to on information and belief sources and grounds whereof
have been disclosed.

SWORN by the said }

NAY MTEGO } .....................................

DEPONENT

At NAIROBI }

This............... Day of............... 2024. }

BEFORE ME }

COMMISSIONER FOR OATHS

Drawn and filed by; -

C9 ADVOCATES LLP
5th Floor Amran Towers
Richard Street
P.O Box 09-00100, Nairobi, Kenya

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Email: info@[Link]

TO BE SERVED UPON;

1. OFFICE OF THE INSPECTOR GENERAL OF POLICE

Taifa Road, Jogoo House "A" 4th Floor
P.O Box 44249-00100 Nairobi, Kenya
Tel: +254 20 2221969
Email: nps@[Link]

2. THE DIRECTOR OF CRIMINAL INVESTIGATIONS

Mazingira Complex, Kiambu Road,
Opp. Kenya Forest Service Headquarters, Karura
P.O. BOX 30036 – 00100, Nairobi, Kenya
Email: director@[Link]

3. THE DIRECTOR OF PUBLIC PROSECUTIONS

ODPP House, Ragati Road, Upper Hill
P.O. Box 30701-00100, Nairobi, Kenya
Email: info@[Link]

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9. PRE-TRIAL CONFERENCING
Pretrial issues that would arise:

• Identification of the issues in dispute

• Disclosure of evidence
• Assessment and preparation witnesses
• Taking evidence
• Whether expert witnesses will be called
• Protection of vulnerable witnesses

10. TRIAL PROCESS AND MATTERS ARISING

1. The trial process

Procedure on the trial process

Trial process

• Arrest – Art 49, CoK; S 29, CPC

• ID Parade – R v Mwango
• Charge – S 134, 137 CrPC (Githunguri v R)
• Plea & plea bargain – Adan v R; S 207, 274(Plea-taking); S 137A-137O, CrPC (Plea
agreements)
• Bail & bond – Art 49(1)(h); Bail and Bond guidelines; S 123, CPC
• Pretrial conferencing – Order 11, CPR
• Trial – opening statements, exam-in-chief (giving evidence), cross-examination,
re-examination, prima facie case or no case to answer, submissions, ruling –
conviction or acquittal. S 145, EA
• Guilty – victim impact assessment, mitigation, sentencing; not guilty –
acquitted.
• Appeal – Art 50(2)(q)

Powers of the DPP

Art 157 CoK and ODPP Act

Art 157 (6) COK

(a) 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
(b) take over and continue any criminal proceedings commenced in any court (other
than a court martial) that have been instituted or undertaken by another person
or authority, with the permission of the person or authority

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(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered
any criminal proceedings instituted by the Director of Public Prosecutions or
taken over by the Director of Public Prosecutions under paragraph (b) – nolle
prosequi per section 83(1) of CPC.
(7) If the discontinuance of any proceedings under clause (6) (c) takes place after the
close of the prosecution’s case, the defendant shall be acquitted.
(8) The Director of Public Prosecutions may not discontinue a prosecution without the
permission of the court.

Other roles

• Opposing or supporting an application for bail

• Decision whether to enter into a plea agreement
• Decision on what evidence to produce during trial
• Decision on whether to appeal or not

Right to a fair hearing;

Provisions of Article 50
(1) Fair and public hearing before a court and independent tribunal.
(2) Right to a fair trial which includes the right to –
a) be presumed innocent until proven guilty;
b) be informed of the charge with sufficient detail to answer it;
c) have adequate time and facilities to prepare a defence;
d) a public trial before a court established under the constitution;
e) have trial begin and conclude without unreasonable delay;
f) be present when being tried (unless conduct of accused makes that impossible);
g) choose and be represented by an advocate; and to be informed of this right
promptly
h) have advocate assigned by State if substantial injustice would otherwise result
i) remain silent and not testify during proceedings;
j) be informed of evidence adduced against him or her;
k) adduce and challenge evidence;
l) refuse to give self-incriminating evidence;
m) have assistance of interpreter;
n) not be convicted of an act that was not an offence as at the time of arrest
o) autrefois acquit
p) least severe of prescribed punishment

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q) appeal if convicted

Opening statement/address;
Section 300, CPC – It sets out facts which the prosecution seeks to prove and overview
of the case.

Examination of witnesses
Hostile witness
• Section 163(1)(c) Evidence Act – a witness who contradicts his/her former statement
whether oral or written.
• Section 161 Evidence Act – a party who called the witness may apply for the
witness to be declared hostile and request to cross-examine that witness.
Intention of the cross-examination is to demonstrate that the witness is not
reliable.
• Batala v Uganda – court should give little, if at all any, weight to the evidence of
a hostile witness.

Refractory witness
Section 152(1) CPC – an uncooperative witness who:

• refuses to be sworn; or
• having been sworn refuses to answer questions; or
• refuses to produce any document or other evidence required of them; or
• refuses to sign his deposition without sufficient excuse.

How to deal with a refractory witness

• Section 152 CPC – Court adjourns the case for a period not exceeding 8 days and
may in the meantime commit that person to prison, unless he consents to do
what is required of him.
• This may be repeated until the witness complies. Committal to prison does not
preclude the witness from any other form of punishment for which he/she may
be liable.
• Court may proceed with the case while the refractory witness remains in
custody. Court should take into consideration a refractory witness’s refusal to
cooperate when evaluating the probability and reliability of the evidence.

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Expert Evidence
• Should satisfy the court that they are specially skilled.
• Opinion evidence given by an expert is not binding on a trial court.
• Where court receives conflicting expert evidence, the court is required to assess
the evidence and form its own opinion.

Production of exhibits;
• Exhibits marked for identification must be formally produced for them to be
considered evidence.
• Records to be prepared simultaneously and accurately.

Admissibility of electronic evidence

Section 78A, EA – electronic messages and digital material shall be admissible as
evidence in legal proceedings.

Factors considered

• reliability of the manner in which the electronic and digital evidence was generated,
stored or communicated
• reliability of the manner in which the integrity of the electronic and digital
evidence was maintained
• manner in which the originator of the electronic and digital evidence was identified

Certification requirement – S 106B, EA.

The certificate must:

• identify the electronic record – describing the manner in which it was produced
• give such particulars of any device involved in the production of that electronic record;
• be signed by a person occupying a responsible position in relation to the
operation of the relevant device

Admissibility of illegally obtained evidence

R v Zacharias

Article 50(4) of the Constitution disallows the admission of illegally obtained evidence.

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“Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of
Rights shall be excluded if the admission of that evidence would render the trial unfair or would
otherwise be detrimental to the administration of justice.”

Mue & another v IEBC Chair; Philomena Mwilu v DPP

The use of information accessed without following the requisite procedures, not only
renders it inadmissible but also impacts on the probative value of such information.

Evidence must be excluded only if it:

a) renders the trial unfair; or (Art 50)
b) is detrimental to the administration of justice. (Art 48)

The provision plainly envisages cases where evidence should be excluded for broad
public policy reasons beyond fairness to the individual accused.

Notably, evidence ought to be obtained in accordance with the provisions of both the
Constitution and the law. Obtaining evidence without first obtaining appropriate
warrants violates Constitutional norms and infringes on the right to property (Art 40)
as well as the right to privacy. Art 31, CoK

Trial within a trial

Voir dire – it is a pre-testimony procedure.

Purpose of voir dire – to establish whether the child possesses intelligence to:

• Understand the nature of an oath

• Know the difference between telling the truth and lying
• Observe, remember and verbally describe events
• Understand the duty to tell the truth
• Prepare the child to testify truthfully.

Format – there is no particular format for conducting and recording voir dire. It can
be a dialogue in which court records questions posed to the child and the child’s
answers are recorded in verbatim in the first person or Court may choose to omit the
questions put to the witness but record the answers in verbatim.

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Close of prosecution case

Court to invite the accused person to make submissions. Court makes a determination
as to whether a prima facie case has been established.

If prima facies case has been established against the accused, hearing of the defence
commences. If not, accused is acquitted.

Submissions (no case to answer, case to answer);

If there’s a case to answer, accused informed of rights under ss 306(2) and 211 CPC:

• To address the court personally or through an advocate.

• To give sworn or unsworn evidence.
• To call witness.
• To remain silent

Final submissions
At the close of the case, both the prosecutor and the accused are entitled to present
submissions to the court on both the evidence and the law.

Witness Protection
Introduction and protective measures
S 3, Witness Protection Act – witnesses are entitled to protection under the Witness
Protection Act if they face a potential threat or risk because of their testimony.

S 4, WPA – measures for witness protection:

• Physical and armed protection

• Relocation within and outside Kenya
• Change of identity

Protective measures during court proceedings:

• Proceedings held in camera

• Use pseudonyms.
• Redact information that may lead to the identification of a witness.
• Conduct proceedings via a video link.
• Employ measures to obscure or distort the identity of the witness.

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Criteria and qualifications for placement under witness protection.

Section 6, Witness Protection Act

In deciding whether to include a witness in the programme, the Director shall have
regard to –

• seriousness of the offence;

• nature and importance of any relevant evidence or statement;
• nature of the perceived danger to the witness;
• whether there are viable alternative methods of protecting the witness;
• the public interest in the prosecution of the case;
• the ability of the person to adapt to the programme and its measures;
• such other relevant matters.

Section 17, Victim Protection Act

Court on its own motion or on application by any party may declare a witness
vulnerable due to:

• physical, intellectual, or psychological impairment; age; dependency on the

accused; trauma; disability; cultural differences; religious differences; gender;
language; race; the nature of the offence committed against them; or health
status.

Section 31, Sexual Offences Act

With respect to sexual offences, a witness is considered vulnerable if such witness is:
• the alleged victim;
• a child;
• a person with mental disabilities.

The court may declare a witness vulnerable on account of –

• age; intellectual, psychological or physical impairment; trauma; cultural
differences; the possibility of intimidation; race; religion; language;
• the relationship of the witness to any party to the proceedings;
• the nature of the subject matter of the evidence; or
• any other factor the court considers relevant.

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Confessions
Self-incrimination
Art 50(2)(l) – right to not give self-incriminating evidence
Evidence can only be tabled provided the rules of confession were adhered to;
contrary to which it would be self-incriminating.

Confessions
Art 49 of the CoK provides that an arrested person should not be compelled to make a
confession.
Section 25 of the Evidence Act defines a confession as words from which an inference of
guilt may be made.
For a confession to be admissible, it has to be made according to the Evidence
(confessions out of court) Rules 2009

Evidence (Out of court confessions) rules 2009

Rule 2, Evidence(out of court confessions) rules 2009; S 25, Evidence Act

Should be made before a court to a judge or before a police officer (other than the
investigating officer) who is not below the rank of Chief Inspector of Police.

Rule 4 – Rights of accused person (reiterated in Kaluma v R)

(1) Where an accused person intimates to the police that he wishes to make a
confession, the recording officer shall take charge of the accused person and shall
ensure that the accused person—

(a) has stated his preferred language of communication;

(b) is provided with an interpreter free of charge where he does not speak either
Kiswahili or English;

(c) is not subjected to any form of coercion, duress, threat, torture or any other form of
cruel, inhuman or degrading treatment or punishment;

(d) is informed of his right to have legal representation of his own choice;

(e) is not deprived of food, water or sleep;

(f) has his duration, including date and time of arrest and detention in police custody,
established and recorded;

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(g) has his medical complaint, if any, adequately addressed;

(h) is availed appropriate communication facilities; and

(i) communicates with the third party nominated by him under paragraph (3) prior
to the caution to be recorded under rule 5.

(2) The recording officer shall not record a confession from any accused person who
complains to him of being a victim of torture or whose physical appearance shows signs
of physical injuries including open wounds, body swelling, or shows extraordinary
fatigue or any other indicators that would suggest that the accused person has been
tortured.

(3) The recording officer shall ask the accused person to nominate a third party who shall be
present during the duration of the confession session, and upon the appearance of the third
party, the recording officer shall record the third party’s particulars and relationship
to the accused person.

Recording officer shall: (Rules 5-13)

• Issue a caution notice that the confession is voluntary and may be used as
evidence.
• Ensure that where the confession session is prolonged, the session
included rest and relaxation periods.
• Ensure that the confession is recorded at the same time it is made
• Record the date and time of commencement of the confession session and
the place where the confession is recorded.
• Where electronic recording is used, notify the accused person and note their
response.
• Make the recording in the open.
• Where recording fails, record in writing.
• Inform the accused person of his option to write his own statement in his
preferred language or to have the recording officer record it.
• At the conclusion of the recording, the accused person shall be offered the
opportunity to clarify anything he has said and to add anything he may wish.
• Make available the certificate of confession.
• Ensure recording not done in English or Kiswahili is translated.
• Be the proper prosecution witness to prove to the court beyond
reasonable doubt that the Rules were complied with.

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• Certify, in writing, that a confession was not obtained as a result of any

inducement, threat or promise having reference to the charge against the
accused person.

Dying declaration
Dying declaration – statement/ evidence given in the brink of death.

Principles on dying declarations – Choge v R

• There need not be corroboration to support a conviction.

• Unsafe to base a conviction solely on the dying declaration of the deceased.

Recusal of Judicial Officers

• Constitution of Kenya 2010 – arts 10, 73, 75, 159, 160.
• Leadership and Integrity Act 2012 – section 16.
• Public Officer Ethics Act – section 12.
• Judicial Service (Code of Conduct and Ethics) Regulations – rules 20, 21.
• Bangalore Principles of Judicial Conduct

Circumstances for recusal by a JO:

JO’s may recuse themselves on matters CoI.

The rationale for the recusal of a Judicial Officer is enshrined under the Latin maxim
“nemo judex in re causa sua” meaning ‘no man shall be a judge in his own cause.’

Grounds for voluntary recusal

Pronounced in Regulation 21 of the Judicial Service (Code of Conduct and Ethics)

Regulations 2020 and such are where the judge:

• is a party to the proceedings;

• was, or is a material witness in the matter in controversy;
• has personal knowledge of facts in the proceedings;
• has actual bias or prejudice concerning a party – Mithika Linturi v Maryanne
Kittany; Kamlesh Pattni & Goldenberg Ltd v R.
• has a personal interest or is in a relationship with a person who has a personal
interest in the outcome of the matter; Justice Musyoka in NASA v IEBC 2017

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• had previously acted as counsel for a party in the same matter; Trust Bank v
Misco Ltd
• is precluded from hearing the matter on account of any other sufficient reason;
• or a member of the family has economic or other interest in the outcome of the
matter in question. Rachuonyo and Rachuonyo Advocates v NBK

Disqualification (where a party can apply for JO to recuse self)

• Personal bias – Kamlesh Pattni v R

• Personal knowledge of facts
• Previously a lawyer in same case - Trust Bank Ltd v Misco International(K) Ltd &
4 Others
• Family bears financial interest - In Rachuonyo and Rachuonyo Advocates v National
Bank of Kenya Limited
• Spouse or family party to proceeding - Stephen Njoroge Gichuha v Fred Nyagaka
Ongarora & Another
• Material potential witness in matter
• Close social relationship with litigant
• Directly or indirectly party to suit
• Res judicata
• Previously a partner at the firm

Exceptions to recusal
• Supreme Court concept – need to have quorum Rai v Rai
• Necessity – no replacement: Laird v Tatum; Rai v Rai
• Apprehension of forum shopping – R v IEBC ex-parte CORD
• Statute – Art 171(2) CoK 2010. Judges are members of JSC, cannot recuse selves
on matters involving JSC.

Procedure for applying for JO recusal

• Oral application - South Africa Rugby Football Union case
• Misc application by notice

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2. Pre & Post-Sentencing Proceedings

Judgment
Contents of judgment

Section 169, CPC

Every judgment shall:

• be written by or under the direction of the presiding officer of the court;

• be written in the language of the court;
• contain points for determination;
• the decision thereon;
• reasons for the decision.
• be dated and signed by the presiding officer.
• In case of a conviction, specify the offence & punishment.
• In case of an acquittal, state the offence and direct the accused be set at liberty.

Further to the above, from Peter Mwangi Waithaka v R:

• Name of accused
• The charge or charges
• Summary of evidence

Victim impact assessment

Introduction
Victim Protection Act established vide Article 50(9) of the Constitution.

Victim Impact Statement – S2, VPA.

A statement by the victim or the representative on the psychological, emotional,

physical, economic or social impact of the offence committed against the victim and
includes any recording, transcript or copy thereof. See Waswa v R.

Role of victim impact assessment

Provided in section 329A to 329F CPC; S 4(2)(b), VPA.

• Determine the appropriate sentence.

• Consider victim protection and welfare.
• Influencing the plea negotiation – S 137, CPC; Plea bargain guidelines; VPA.
• Gives victim a chance to share their views on the case and any evidence adduced –
Waswa v R.

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• Empowers victim with a chance to be heard since prosecution is typically the

claimant.
• Vital in establishing other forms of sentencing e.g. compensation.

Mitigation or aggravation;
Mitigating factors
Guidelines applicable with regard to mitigating factors in a re-hearing sentence for
the conviction of a murder charge as set out in Muruatetu (2017)

Para 71 of the judgment

• Age of offender
• Being a first offender
• Whether offender pleaded guilty
• Character and record of the offender
• Commission of the offence in response to gender-based violence
• Remorsefulness of the offender
• Possibility of reform & social re-adaptation of the offender
• General cooperation of the accused with the prosecution and the police during
the trial process
• Role in the offence
• Mental incapacity
• Any other factor that the court considers relevant

Per the Sentencing Policy Guidelines 2023

• Lack of premeditation
• Mental disorder/disability
• That the offender was provoked
• That the offender acted in self-defence or in fear of violence
• Age of the offender

Aggravating circumstances
Aggravating circumstances warrant a stiffer penalty than would be ordinarily
imposed in their absence. They include:

For the charge of murder:

• Intricate planning of an offence.

• Use of a weapon – the more dangerous the weapon, the higher the culpability.

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• Use of duress or threats.

• Vulnerability of the victim e.g. due to age or disability.
• Multiple victims or multiple perpetrators.
• Where the offence involved an abuse of trust – relationship between victim and
accused.
• Where offence was motivated by discriminatory grounds e.g. race, sex,
ethnicity etc.
• Deliberate drugging or stupefying the victim.
• Absence of self-defence or provocation.
• Proven abduction or kidnapping of the victim before the murder was
committed.
• Where a demand for ransom was made – signifying financial motive.
• Concealing, destroying or dismembering the body.
• Where the murder was conducted in furtherance of a ritualistic practice such
as witchcraft.

Other charges:

• Grave impact on national security.

• Serious physical or psychological effect on the victim.
• Continued assault or repeated assaults on the same victim.
• Commission of the offence in a gang or group.
• Targeting of vulnerable groups such as children, elderly persons and persons
with disability.
• Previous conviction(s) – a pattern of repeat offending.
• An intention to commit a more serious offence than was actually committed.
• High level of profit from the offence.
• An attempt to conceal or dispose of evidence.
• Flagrant use of violence or damage to person or property.
• Abuse of a position of trust and authority.
• Use of grossly inhuman and degrading means in the commission of an offence.
• Targeting those working in the public sector or providing a service to the
public.
• Commission of offences motivated by ethnic, racial and gender bias.

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Sentencing process
Sentencing hearing
Court receives submissions from the prosecution, the convicted person, the victim, the
probation officer and where relevant, the children’s officer.
• Prosecution – gives factual statement about offender.
• Convicted person – mitigation.
• Victim – impact assessment.

Sentencing policy guidelines

Judiciary sentencing policy guidelines

Principles of sentencing (R v Paul Mwango (2016) eKLR)

• Proportionality – sentence must match offence committed.
• Equality/uniformity/consistency – same offences, similar sentences.
• Accountability/transparency – reasoning for judgment. S 169, CPC.
• Inclusiveness – victim impact assessments; mitigation; aggravating
circumstances
• Respect for human rights and freedoms – not cruel, inhumane & degrading.
(Art 29(f), CoK)
• Adherence to domestic & international law – standards on sentencing.
• Totality of the sentence – if convicted for multiple counts, sentence must be
whole.

Sentences available – forms of punishment

Chapter VI, Penal Code. Section 24:

• Death – murder(s 203); treason(s 40); robbery with violence(s 296(2)); attempted
robbery with violence (s 297(2)). Children and expectant mothers exempted.
• Imprisonment
• Community service order
• Probation order
• Fine
• Payment of compensation
• Forfeiture
• Security to keep peace and be on good behaviour
• Absolute and conditional discharges
• Suspended sentence – minor offences

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Others:

• Restitution
• Suspension of certificate of competency in traffic offences
• Police supervision
• Revocation/forfeiture of licenses.
• Committal to rehabilitation centres.
• Recommendation for removal from Kenya.

Constitutionality of death penalty

Francis Muruatetu v R

• Mandatory death sentence a breach to right of fair trial.

• The main issue for determination was whether the mandatory nature of the
death sentence under section 204 of the Penal Code violated article 50(2)(q) which
provided for the right of a person to appeal to, or apply for review, by a higher
Court if convicted.
• The Supreme Court held that if a Court did not have discretion to take into
account mitigating circumstances, it was possible to overlook some personal
history and the circumstances of the offender which could make the sentence
wholly disproportionate to the accused's criminal culpability.
• The pronouncement of a death sentence upon conviction was permissible only
if there had been a fair trial, which was a non-derogable right.
• A fair hearing as enshrined in article 50 (1) of the Constitution had to be read to
mean a hearing of both sides.
• A murder convict whose mitigation circumstances could not be taken into
account due to the mandatory nature of the death sentence could not be said to
have been accorded a fair hearing.

Death sentence generally

• May not be imposed on child offenders

• May not be imposed on expectant mothers
• If offender is convicted of several counts of capital offences; offender to serve
first sentence and other sentences held in abeyance.

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Purpose/objectives of sentencing
• Retribution – punish offender for their criminal conduct.
• Deterrence – from committing a similar offence.
• Rehabilitation – reform.
• Restorative justice
• Community protection.
• Denunciation – communicate community’s condemnation of the criminal
conduct.
• Reconciliation – mend relationship with victim and community.
• Reintegration – facilitate re-entry into the society.

Factors that may be considered during sentencing

• Gravity of the offence
• Criminal history of the offender
• Age of the offender
• Character and antecedents
• Protection of the community
• First offender
• Prevalence & type of crime
• Medical evidence

General rules on sentencing

• Maximum sentence should not be imposed on a first offender unless there are
aggravating circumstances.
• Omnibus sentences are illegal – sentenced for respective counts.
• Subordinate courts may transfer cases to high court for penalties they may not
impose.
• Court should only take into account relevant matters in sentencing.
• If two or more people have been convicted of the same offence, there should be
no disparity in the sentences imposed without good reasons.
• Least severe form of punishment if prescribed punishment has changed
between the time of commission and time of sentencing.
• Court must not impose sentence above the maximum sentence.
• Court must not impose below the minimum sentence.

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Right of appeal
Art 50(2)(q), CoK 2010.

3. Lunacy or other incapacity of accused person

Legal framework
Constitution of Kenya (2010)

• Art 25(c), CoK 2010 – right to fair trial should not be limited
• Art 27 – non-discrimination
• Art 28 – dignity
• Art 54 – PWD to be treated with dignity
• Article 260, CoK 2010 – definition of disability.

Criminal Procedure Code

Sections 162, 163 and 164 are on:

• Where the accused person is sane when committing the offence but then is
incapable of making his defence at the time of trial due to mental incapacitation.

• The exercise of the power to hold such accused persons at the pleasure of the
president pending or during trial.

S 166, CPC – defence of lunacy to vitiate mens rea

S 11, Penal Code – all persons are presumed to be of sound mind unless the contrary is
proved.

Procedure
Sections 162 & 280(1), CPC

i. Inquiry into the soundness of mind

The court inquires whether the accused person understands the proceedings
and whether he/she is capable of making his defence.

ii. Inquiry into the fact of unsoundness

If the court believes that the accused is of unsound mind and incapable of
making his defence, it shall inquire into the fact of unsoundness. This is done by
calling for a thorough medical examination of the offender.

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iii. Postponement of trial

If the court believes that the accused person is insane and consequently
incapable of making his defence, it shall postpone further proceedings in the case,
this is read in tandem with Section 280 (1)of the CPC

iv. Bail
If the case is one in which bail may be taken out, the court may release the accused
person on sufficient security given that he will be properly taken care of and be
prevented from doing injury to himself or any other person.

v. Safe custody
If the case is one in which bail may not be taken out, the court shall order that
the accused be detained in safe custody in such place and manner as it may think
fit and shall transmit the court record or a certified copy thereof to the minister for
consideration by the President.

vi. President’s pleasure

Upon consideration of the record, the President may by order under his hand
addressed to the court direct that the accused be detained in a mental hospital or
other suitable places of custody as read with Section 280 (2)

4. Interlocutory Applications

Transfer of cases
Between Magistrates – Section 78 CPC: Transferred when the complaint arose outside
the limits of jurisdiction of the transferring court.

By High court – Section 81 CPC: Done by the HC on its own motion or on application
of a party. It may order transfer to a competent magistrate court or itself.

Grounds/instances

• A fair & impartial trial cannot be held in a subordinate court.

• Some question of law of unusual difficulty is likely to arise.
• It may be necessary to view the place in which or near which the offence took
place.
• An order of transfer would be for the general convenience of the parties or
witnesses.
• An order of transfer is expedient for ends of justice.

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Termination of charges
Kelly Bunjika v DPP

A criminal case may be terminated by:

• operation of law – death of accused;

• act of the parties – reconciliation under section 176 CPC; complainant fails to
attend;
• withdrawal or discontinuance of the charge by the complainant (s. 204 of the
CPC) or the prosecutor (Art. 157 (6) (c) of the Constitution and s. 87 of the CPC);
and
• alternative dispute resolution agreement pursuant to art 159(2)(c) of the
Constitution.
• ruling of no case to answer

Watching brief
Section 213, 306 & 311 CPC – counsel watching brief barred from actively participating
in the trial process.

Roles of counsel watching brief

• Work hand in hand with the prosecutor

• Ensure the right evidence to be collected and preserved for trial is made
available to court
• Ensure the right witnesses are identified to record statements with the police
• Offer persuasive suggestions as opposed to orders.

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11. Revision

Introduction
Art 165(6),(7) – Revision is the judicial procedure whereby the High Court examines
and corrects the mistakes of lower courts which appear on the face of the record.

S 362, CPC – the HC determines 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.

Differences between appeal and revision.

Oscar Sudi v R

Revision Appeal
Court may move suo moto Party has to move to higher court
Resorted to by a party where there is no
right of appeal
Preserve of HC Higher authority
Not a statutory right Statutory right
Continuation of the original proceeding

However, as in appeals, only the record of the lower court is considered, and parties
are not normally permitted to adduce fresh evidence, nor does the court usually call
for such evidence before an order in revision is made.

Legal framework
• Article 165(6) & (7) CoK – supervisory jurisdiction of HC.
• Section 362, 364, 365, 366, 367 CPC.

Revisional powers of the HC – S 364, CPC

• Enhance sentence – shall not inflict greater punishment.
• Alter or reverse any order other than an acquittal.

Principles governing the exercise of power of revision – S 364(5), CPC.

• Exercised where party has no right of appeal.

• Right of appeal exercised.
• The court may not entertain a request for revision if right of appeal existed and
was not exercised.

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Procedure
Done through a miscellaneous criminal application by a way of notice of motion
supported by an affidavit.

New trial
Circumstances in which a party is entitled to new trial

Article 50(6). A person may petition for a new trial if:

• the person’s appeal, if any, has been dismissed by the highest court to which
the person is entitled to appeal, or the person did not appeal within the time
allowed for appeal; and
• new and compelling evidence has become available.

Other considerations per Joseph Kamau Gichuki v R & Ndegwa v R:

• Whether it is convenient to commence the trial de novo.

• How the trial had proceeded
• The availability of witnesses who had already testified
• Possible loss of memory by the witnesses given the passage of time
• Time that has lapsed since commencement of the trial – right has no time limit.
• The prejudice likely to be suffered by either the prosecution or the accused of a
new trial is ordered
• The interests of the victims & witnesses of the crime

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Sample petition for new trial

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
HCCR CON PET NO X OF 2023

IN THE MATTER OF ARTICLE 50(6) OF THE CONSTITUTION OF KENYA 2010

TIMMY – PETITIONER

VERSUS

REPUBLIC – RESPONDENT

PETITION

To:
The High Court of Kenya
Nairobi

This is the humble petition of TIMMY whose address of service for purposes of this
petition shall be in the care of Kentieno LLP, Mercedes Towers, Westlands; P.O. Box
123-00100, Nairobi.

DESCRIPTION OF PARTIES

1. The petitioner is male adult of sound mind who was convicted of defilement
contrary to section 8 of the Sexual Offences Act and sentenced to twenty years
imprisonment in 2018.
2. The Respondent is the Republic of Kenya, the state through which public
prosecution happens.

LEGAL FOUNDATION

3. Articles 19, 20 and 21 of the Constitution provide for the guarantee, application
and protection of rights and fundamental freedoms.
4. Articles 22 and 258 provide for the right to institute proceedings against
breaches of fundamental rights and freedoms.
5. Articles 25(c) and 50(1) provide for right to fair trial and that it shall not be
limited.
6. Article 27(1) provides for equal protection and benefit of the law.

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7. Article 29(a) provides that one may not be deprived of freedom arbitrarily or
without just cause.

JURISDICTION

8. Articles 23 and 165 grant the High Court jurisdiction to hear and determine
applications to address denial or infringement of fundamental rights.

FACTS AND BACKGROUND

9. In 2018, PM, who was 14 years old testified that she had been defiled by Timmy.
10. On the strength of this testimony, Timmy was convicted and sentenced to 20
years in prison.
11. Timmy unsuccessfully appealed to the High Court and did not pursue the
matter any further.
12. PM has since retracted her testimony and claims that she was coerced to testify
against Timmy following a land dispute.
13. PM, now 19, confirms that the testimony was false and coerced.

VIOLATIONS

14. Timmy was wrongfully convicted following false and coerced evidence.
15. New and compelling evidence has surfaced thus Timmy is entitled to a new
trial per Article 50(6) of the Constitution.

RELIEFS

16. Therefore, the Petitioner prays as follows:

a) The proceedings, conviction and sentence be quashed and set aside.
b) The court orders a new trial.
c) Such further orders as the court may deem just and expedient.

DATED at NAIROBI this x day of x 2023

KENTIENO LLP
ADVOCATES FOR THE PETITIONER

Drawn and filed by:

KENTIENO LLP
MERCEDES TOWERS
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WESTLANDS
NAIROBI

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

HCCR CON PET NO X OF 2023

IN THE MATTER OF ARTICLE 50(6) OF THE CONSTITUTION OF KENYA 2010

TIMMY – PETITIONER

VERSUS

REPUBLIC – RESPONDENT

SUPPORTING AFFIDAVIT

I, TIMMY, P.O. Box 679 Nairobi in the Republic of Kenya, do make oath and state
THAT:

1. I am a male adult of sound mind

2. I am the petitioner in this suit and conversant with the facts herein thus
competent to swear this affidavit.
3. I was convicted and sentenced to 20 years for defilement in 2018.
4. PM has since retracted her evidence on the basis that it was false and coerced.
5. I have read and understood the contents of the petition and confirm the same
as correct.
6. What is deponed herein is true to the best of my knowledge and information.

SWORN by the said: )

TIMMY )

At NAIROBI ) Deponent

This x day of x 2023 )

Before me: )

COMMISSIONER FOR OATHS )

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12. APPELLATE JURISDICTION

Right of appeal
Right of appeal is guaranteed by Art 50(2)(q), CoK.

DPP may appeal against acquittal.

Bail pending appeal (S 356 & 357, CPC) – to be entitled to bail pending appeal,
applicant must satisfy the court that the appeal has overwhelming chances of success.
(Samuel Macharia Njagi v R).

Applicant must persuade the court that the grounds for appeal are so meritorious that
the appeal will favour acquittal.

Subordinate court to the High Court

HC may hear appeals on both matters of law and fact (S 347(2)). CPC. Duty to re-evaluate
the evidence adduced at trial. Okeno v R

Appeal filed within 14 days from the date of delivery of judgment – unless good cause
is shown for delay.

S 348, CPC – Accused convicted on a plea of guilty can only appeal against the sentence,
not the conviction. Exceptions:

• Plea made under duress.

• Plea made without knowledge of the severity of a mandatory sentence.
• Pleaded guilty to a non-existent office.

Appeal lodged in form of a petition, accompanied by judgment/order appealed

against.

The petition must:

• Be signed by the appellant/appellant’s advocate

• Set out particulars of grounds of appeal
• Indicate address to which documents may be served

To amend petition of appeal, appellant must seek leave of the court.

Appeal may be rejected if satisfied there are no sufficient grounds.
Appeal may be allowed when satisfied that the weight of the evidence does not
support a conviction.

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High Court to the Court of Appeal (Court of Appeal Rules)

One may appeal against a conviction or sentence. S 379(1)(a)
In a first appeal, CoA has jurisdiction to adjudicate legal & factual matters.
In second appeals, jurisdiction is limited to matters of law.

Documentation on Appeal to the Court of Appeal:

• Notice of Appeal – lodged within 14 days from date of decision.

• Record of Appeal – prepared by registrar once notice of appeal is lodged
within time & prescribed fee paid.
• Memorandum of Appeal – lodged within 14 days after service of record of
appeal. Sets out the grounds upon which the appeal is based.

Orders on appeal may include:

• Set aside the order of the subordinate/first appellate court.

• Remit the case.
• Affirm the sentence.
• Impose another sentence.

Court of Appeal to the Supreme Court

Governed primarily by Article 163(4) of the Constitution of Kenya, 2010. This
provision outlines two main circumstances under which a case can be appealed to the
Supreme Court:

• Interpretation or application of the Constitution

Article 163(4)(a) – an appeal may be made to the Supreme Court as of right in
cases involving the interpretation or application of the Constitution. S 15A,
Supreme Court Act.

• General public importance

Article 163(4)(b) – an appeal may be made with the certification of either the Court
of Appeal or the Supreme Court itself, on the basis that the matter is of "general
public importance." S 15B, Supreme Court Act.

Application for leave to appeal to the Supreme Court may be made to the CoA or the
Supreme Court – may either affirm, vary or overturn.

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Petition of Appeal
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
CRIMINAL DIVISION
CRIMINAL APPEAL X OF 2021

SAKIWA LEVITO………………………...………………..APPELLANT

VERSUS

REPUBLIC……………………………………………….RESPONDENT

PETITION OF APPEAL

(Under Section 350 Criminal Procedure Code)

(Being an appeal against the conviction and sentence of Hon John Said delivered in Criminal
Case No 32 of 2021; R v Sakiwa Levito delivered on 1st April 2022)

SAKIWA LEVITO, the Appellant, hereby appeals against the conviction and sentence
of the Court in Criminal Case No 32 of 2021 on the following grounds:

1. That the learned magistrate erred in fact and law by allowing the hearing of the
case in the absence of the accused.
2. That the learned magistrate erred in fact and law by barring the accused from
accessing the evidence to be used against him at trial
3. That the learned magistrate erred in fact and law by hearing the witnesses
without being sworn in.
4. That the learned magistrate erred in fact and law by not allowing the voir dire
examination of minor witnesses.
5. That the learned magistrate erred in fact and law by allowing proceedings to
be conducted in the local dialect, a language which the accused was not well-
versed in.

REASONS WHEREFORE the Appellant prays that:

a) This appeal be allowed.

b) The sentence be set aside.
c) The conviction be set aside.
d) Any other reliefs that court may deem just and expedient.

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Dated at Nairobi this 21st of June 2022.

(SIGN)

KENTIENO

ADVOCATES FOR THE PETITIONER

Drawn and filed by:

KENTIENO LLP
P.O, Box 123
WAKILI

To be served upon:

DPP
P.O. Box 456
Ragati

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13. SPECIALIZED PROSECUTORS

14. PRIVATE PROSECUTIONS

Definition
This is prosecution commenced by a person other than the public prosecutor. The
instituting party in this case is not acting on behalf of the Government.

Legal basis

• Article 157(6)(b) – power of DPP to take over and continue criminal

proceedings by other person or authorities.
• Section 88 CPC – leave of court to institute private prosecution.
• Section 28 ODPP Act – any person may institute private prosecution and notify
the DPP.

Circumstances under which a private prosecution may be mounted

Floriculture International Ltd & others – J. Kuloba stated that criminal proceedings
at the instance of a private person shall be allowed to start or to be maintained by the
private prosecutor if:

• The complainant has exhausted public machinery of prosecution before embarking

on it himself;
• The public prosecutor has declined to institute criminal proceedings;
• The refusal to prosecute is without reasonable cause;
• There is no good reason that a prosecution should not be undertaken;
• Unless the suspect is prosecuted, there is a likelihood of failure in public and private
justice;
• There is basis for the locus standi, such as, that he has suffered special, exceptional
and substantial injury peculiarly personal to him;
• That he is not motivated by malice, politics or ulterior considerations;
• There exist demonstrable grounds for believing that a grave social evil is being
allowed to flourish unchecked.

Procedure for commencing a private prosecution

i. Making a complaint to bring the accused before a Magistrate.
ii. Summons to compel attendance of the accused to court.
iii. Leave – Permission ought to be sought before initiating private prosecution
proceedings.

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Section 88 (1) CPC – leave must be sought from a magistrate to conduct a private
prosecution.

Kimani v Kahara – application must first be made under section 88(1) CPC in the case
of private prosecution. The Magistrate trying the case has power to grant or refuse the
permission to conduct private prosecution.

Principles applied in deciding whether or not to grant permission (Kimani v Kahara)

✓ Whether or not the complaint has been made to the DPP or police and the
results therefrom.
✓ Whether the party has locus standi.
✓ Whether the DPP has or had previously declined to institute the proceeding.
✓ Whether or not the applicant has suffered injury or damage.
✓ Whether the applicant is motivated by political consideration.

iv. Charging – if the above is satisfied, the court will then on its own discretion
draw or cause to be drawn, a formal charge containing a statement of the
offence.
v. Notification – Section 28 ODPP Act - Any person who institutes private
prosecution shall, within 30 days of instituting such proceeding, notify the DPP
in writing of such prosecution.
vi. DPP may take over and continue the private prosecution – art 157(6)(b), CoK.

Application for private prosecution

Application is by way of a Notice of Motion accompanied by a certificate of urgency
and a supporting affidavit setting out the ground upon which the applicant is relying
on.

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REPUBLIC OF KENYA

IN THE MAGISTRATE’S COURT AT KAJIADO

MISC CAUSE NO X OF 2021

SINACHUKI – APPLICANT

SINARAHA – RESPONDENT

CERTIFICATE OF URGENCY
I, KENTIENO, an advocate of the High Court of Kenya practicing as such in the name
and style of KENTIENO ADVOCATES LLP do hereby certify that this matter is most
urgent requiring to be placed before the Honourable Court at the earliest opportunity
for reasons that the applicant’s constitutional rights continue to be violated if the
respondent will not be held accountable for his actions.

DATED at NAIROBI this 25th day of August 2021

KENTIENO LLP
ADVOCATES FOR THE APPLICANT
Drawn and filed by:

KENTIENO LLP
Mercedes Towers
P.O. Box 123

To be served upon:

RESPONDENT

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REPUBLIC OF KENYA
IN THE MAGISTRATE’S COURT AT KAJIADO
MISC CAUSE NO X OF 2021

SINACHUKI – APPLICANT

SINARAHA – RESPONDENT

NOTICE OF MOTION
(Pursuant to Article 157(6)(b) of the Constitution of Kenya, 2010, Section 88(1) of the
Criminal Procedure Code, Section 28 of the ODPP Act)

TAKE NOTICE that this Honourable Court will move on the… day of… 2021 at 9
O’clock in the forenoon or soon thereafter for a hearing of an application by the
Applicant for ORDERS THAT:

1. This Honourable Court be pleased to grant the applicant leave to institute

private prosecution proceedings against the respondent.
2. The costs of this application be granted.

Thereby based on GROUNDS THAT:

1. The Applicant was unlawfully arrested and detained by the Respondent.

2. The Applicant was brutally assaulted by the Respondent and sustained several
injuries.
3. The Applicant reported the matter to Rungali Police station on the 20th of May
2020 to afford them a reasonable opportunity to conduct investigations, but the
police took no action.
4. The Applicant wrote to the office of the Director of Public Prosecutions on three
different occasions in order to bring the matter to his attention.
5. The police and the Director of Public Prosecutions have refused to institute
prosecution proceedings against the Respondent.
6. The DPP has not furnished any good reason for his failure to institute
prosecution proceedings.
7. The failure to prosecute, and prosecute at this point in time, is likely to lead to
failure of both public and private justice.
8. The Applicant is not motivated by malice or political ill-will.
9. If private prosecutions proceedings are not instituted against the Respondent,
a great social evil will be allowed to flourish unchecked.

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WHICH APPLICATION is further supported by the affidavit of the Applicant.

DATED at KAJIADO this 25th day of August 2021.

KENTIENO LLP
ADVOCATES FOR THE APPLICANT

Drawn and filed by:

KENTIENO LLP
Mercedes Towers
P.O. Box 123

To be served upon:

RESPONDENT

REPUBLIC OF KENYA

IN THE MAGISTRATE’S COURT AT KAJIADO

MISC CAUSE NO X OF 2021

SINACHUKI – APPLICANT

SINARAHA – RESPONDENT

SUPPORTING AFFIDAVIT
I, SINACHUKI, a resident of Kajiado County P.O. Box 1350045 Kajiado in the
Republic of Kenya do hereby solemnly swear and state as follows:

1. THAT I am the applicant herein and therefore competent to swear this affidavit.
2. THAT on the 20th of May 2021, I was unlawfully arrested and detained by the
Respondent while hunting in a nearby forest.

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3. THAT the Respondent locked me up in a pigsty and brutally assaulted me.

4. THAT I went to the Penda Hospital and the diagnosis revealed that I had
sustained severe injuries consistent with the beating that I had received from
the Respondent.
5. THAT I reported the matter to Rungali Police station on the 20th of May 2021
and was allocated Occurrence Book Number 75/19/06/2021.
6. THAT since making the report I have made numerous follow up visits to the
police station, but no action has been taken.
7. THAT I have also made three reports to the Office of the Director of Public
Prosecutions to take up the matter and commence prosecution against the
Respondent to no avail.
8. THAT I sustained injuries as a result of the brutal assault, thus not motivated
by any political ill-will.
9. THAT what is deponed herein is true to the best of my knowledge and
information.

SWORN by the said )

SINACHUKI )

At KAJIADO ) Deponent

This X Day of 2021 )

BEFORE ME )

COMMISSIONER FOR OATHS )

Drawn and filed by:

KENTIENO LLP
Mercedes Towers
P.O. Box 123

To be served upon:

RESPONDENT

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15. INQUESTS

Introduction
• An inquest is a special judicial process of inquiry into sudden or unexplained
death.
• Governed by Sections 385-388 Criminal Procedure Code.

Jurisdiction
• Vested in Magistrates Courts – nearest to place of occurrence of death. S 386(1),
CPC
• Can be reviewed/revised in High Court.

Mandatory & discretionary inquests

Mandatory – when someone dies while imprisoned (s 387(1))

Discretionary – when someone (s 386 & 387(1)):

• has committed suicide; or

• has been killed by another or
• killed by an accident; or
• has died under circumstances raising a reasonable suspicion that some other person
has committed an offence; or
• is missing and believed to be dead;

DPP has discretionary authority to direct a Magistrate to hold an inquiry or to re-open

a terminated inquiry.

Procedure in Inquests
• Report – Magistrate is informed by police that a death has occurred under s 386
• Detailed report of the investigation & any supporting evidence
• If circumstances fit within s 387(1), court must order an inquest
• Otherwise, court may exercise discretion
• Court inquires into the truth of the information before it
• Depending on the evidence before it, the court may act in the following ways:
i. If evidence discloses that an offence was committed by an unknown
person, send a copy to DPP.
ii. If evidence discloses that an offence was committed by a known
person, send a copy to DPP (to institute proceedings).
iii. If court discloses that no offence was committed, then it must record
that conclusion.

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iv. When the court holds an inquest for a missing person believed to be
dead, the court must report the findings to the DPP.

Reforms for inquests

• Adequate protection of witnesses to testify during inquest.
• Inquests should be conducted expeditiously.
• Adequate protection of evidence to be adduced during inquests.
• Magistrate must satisfy himself with the fact that the inquest is not a cover up for
someone who has committed murder of the victim.
• The ODPP should have an office dedicated to inquests.

Advantages of having a Coroners Service Act

• Provides for the complementary role of forensic medical science services to the
police in handling investigations.
• Facilitates the participation of the Coroner at inquests to advise on matters
connected with reportable deaths, including matters related to public health or
safety and the administration of justice.
• Qualifications of a Coroner General – experienced doctor with qualifications in
forensic and human pathology. Ensures expertise.
• Ensures proper investigation of deaths.

Parts of the Act

• Establishment of the National Coroners Service

• Functions and powers of the service
• Obligation to report, reportable deaths and investigations of reportable deaths
• Investigations and examinations
• Appeals and complaints
• Financial provisions
• Offences & miscellaneous provisions

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16. EXTRADITION PROCEEDINGS

Meaning
Extradition is the judicial process, regulated by treaties, through which an alleged
criminal or fugitive is surrendered by one state to another having jurisdiction over the
crime charged.

Surrender of a suspect or convict criminal depends on the cooperation of states

• States have no obligation under international law to surrender alleged criminal

to a foreign state (concept of territorial sovereignty of states)
• Extradition relies on the existence of a network of treaties and agreements
between partisan states.

Legal framework
International Law, Treaties, National legislations i.e.
• Extradition (Commonwealth countries) Act Cap 77
• Extradition (Contiguous & Foreign countries) Act Cap 76 Laws of Kenya.
Kenya is bound under Art 2 CoK by the treaties it has ratified.

Principles of extradition
• Dual criminality – the act of which the suspect is accused should be a criminal

offence in both jurisdictions.

• Specialty rule – the person must not be tried or convicted for an offence other

than that for which he was extradited.

• Political offences exception – extradition will not be granted where the offence

in question is one of a political character.

• Double jeopardy – extradition request will be refused where the individual

sought had been tried or convicted for the same offence.

• Death penalty exception – extradition request will be refused where there is a

possibility that the individual sought will face death sentence where death is

not a form of punishment in the requested state.

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Conditions precedent
Requesting state to show that:

• Offence is an extraditable offence. (described in the schedule)

• The crime is a criminal offence in both jurisdictions – Section 4, Extradition
(Commonwealth Countries) Act.
• Political offences are not extraditable – Section 6(1), Section 4, Extradition
(Commonwealth Countries) Act.
• Crime is sufficiently serious to warrant trial – Section 9(5), Extradition
(Commonwealth Countries) Act.
• There exists a prima facie case against the individual sought.
• Extradited person can reasonably expect fair trial in the recipient country.
• The likely penalty will be proportionate to the crime.
• The individual sought will not be tried or convicted for an offence other than
that for which he was extradited.
• Accused not being charged on the basis of gender, race, religion or
nationality.
• The person has not been acquitted/convicted of the very offence. Double
jeopardy.

Extraditable offences
Respective schedules of both Cap 76 & 77

• Murder & attempted murder

• Manslaughter
• Injury to persons not amounting to homicide – grievous bodily harm,
assault occasioning actual bodily harm.
• Rape
• Abduction
• Abortion
• Kidnapping & related crimes
• Offences relating to narcotics & dangerous drugs
• Arson
• Forgery & offences relating to counterfeit.
• Robbery
• Money laundering
• Terrorism
• Piracy & similar offences

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Procedure for extradition

i. Requisition
Section 5 cap 76 – Request is made by the requesting state through a diplomatic
representative or consular office to the Cabinet Secretary for the surrender of
the fugitive criminal to that country.

ii. Order
Section 5(1) cap 76 – Upon receipt, the Cabinet Secretary may by order under his
hand signify to DPP to write to Magistrate to issue a warrant of arrest and
detention of the fugitive criminal.

iii. Issuance of a warrant of arrest

Section 6 cap 76 - Issued on two instances:
• Upon receipt of the order from the DPP and on such evidence as would
in the Magistrate’s opinion justify the issue of the warrant if the crime
had been committed or the criminal convicted is in Kenya.
• On such information, complaint and evidence or after such proceedings
as would in the Magistrate’s opinion justify the issue of a warrant if the
crime had been committed or the criminal convicted in Kenya.

iv. Arraignment in court

Upon arrest, the fugitive shall be arraigned in a Magistrate’s court. Entitled to
representation & bail.

v. Hearing of the case and evidence

Case is open for prosecution to proffer charges on the accused, and the accused
may come up with a defence.
Section 7 cap 76 – Magistrate has the jurisdiction and powers just like during a
trial in the subordinate courts.

vi. Committal or discharge

Section 8 cap 76 – Upon committal to prison, the Magistrate sends to the CS a
certificate of committal or any other report of the case.
May otherwise order a discharge.

vii. Surrender
Section 9(1) cap 76 – Fugitive surrender is ordered by the CS.

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Surrender occurs after 15 days. Fugitive has a right to apply for habeas corpus
pursuant to section 9(1) cap 76.

Other forms of interstate transfer of persons

• Deportation – act of a state in removing a non-citizen from its territory after
refusal of admission or termination of permission to remain.

• Rendition – surrender or handing over of a person/property from one

jurisdiction to another where extradition is compelled by law.

• Expulsion – exercise of power by a state which secures removal, forcibly of an

alien or a stateless person from national territory.

• Extraordinary/ extra-judicial rendition – refers to the extra judicial procedure

in which criminal suspects are sent to other countries for imprisonment and
interrogation with a view of extracting information. It is illegal. Punishment is
prescribed in Section 26A Penal Code – a term not exceeding 12months.

• Repatriation – return of someone to their country.

Appropriate pleadings for extradition.

• Application
• Charge sheet
• Warrant of arrest
• Authentication certificate

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Extradition Draft
REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC CASE NO X OF 2020

DIRECTOR OF PUBLIC PROSECUTIONS……….…. APPLICANT

SIPANGWIZI……….………………………………. ….. RESPONDENT

NOTICE OF MOTION
(Pursuant to The Extradition (Commonwealth Countries) Act Cap 77, Article 157(6) of the
Constitution of Kenya 2010)

TAKE NOTICE that this Honourable court shall be moved on the 30th of October 2022
at 9 O’clock in the forenoon or soon thereafter for the hearing of an application by the
applicant for ORDERS:

1. THAT the Respondent be arrested and presented before this Honourable

Court.
2. THAT the Respondent be extradited to Barbados to answer on the charge of
murder as annexed.
3. THAT the Respondent be surrendered for trial of offences committed in
Barbados.
4. THAT the Respondent deposits his passport and other travel documents with
this Honourable Court pending the hearing and determination of this
application.
5. THAT this Honourable Court do make such other orders as it may deem fit in
the interest of justice.

Thereby based on the grounds THAT:

1. The Respondent is a citizen of Barbados, a member of the Commonwealth.

2. The Respondent was charged with the murder of a boy in Barbados in January
2020.
3. The Respondent fled the country in an attempt to avoid arrest.

AND FURTHER GROUNDED in the annexed affidavit of WAKILI TIMAMU and

on further grounds to be adduced at the hearing.

Dated at NAIROBI this x day of x 2022

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(SIGN)
WAKILI TIMAMU
PROSECUTION COUNSEL
Drawn and filed by:

OFFICE OF THE DPP

RAGATI

To be served upon:

SIPANGWIZI
P.O. Box 679
Nairobi

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC CASE NO X OF 2020

DIRECTOR OF PUBLIC PROSECUTIONS……….…. APPLICANT

SIPANGWIZI……….………………………………. ….. RESPONDENT

SUPPORTING AFFIDAVIT
I, the Director of Public Prosecutions, hereby swear THAT:

1. I am the officer in charge of extradition proceedings as per the ODPP Act.

2. The Respondent is a citizen of Barbados currently living in Nairobi.
3. The Respondent fled his country after being charged with murder.
4. The relevant documents necessary to show the charge of murder are annexed
in this application.
5. What is deponed herein is true to the best of my knowledge, information and
belief.

Sworn by
Director of Public Prosecutions
At Nairobi
This x day of x 2022

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17. MISCELLANEOUS APPLICATIONS

18. HABEAS CORPUS

Difference between a prosecution order and the writ of habeas corpus.

• Writ of habeas corpus is issued by a court to a person illegally detaining another,

to produce the body of the person and to show sufficient cause for holding in
custody the individual.
• A production order is a court directive requiring a person legally in custody to
be brought before the court, typically to facilitate specific proceedings, such as
a hearing or trial.

Legal framework

• Art 25(d) – right to habeas corpus unlimited.

• Art 51(2) – a person who is detained or held in custody is entitled to petition
for an order of habeas corpus.
• Art 165 – jurisdiction of HC.
• S 389, CPC – power of the high court to issue directions in the nature of habeas
corpus.
• The Criminal Procedure (Directions In The Nature Of Habeas Corpus) Rules.

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Sample 1
REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CRIMINAL CAUSE NO. OF 2023

IN THE MATTER OF CONSTITUTION OF KENYA 2010 UNDER ART 19, 20, 21

(1), 22, 23(1), 25(d), 28, 29(a), 51(2), 159, 165 AND 244(c)

AND

IN THE MATTER OF S 389 CRIMINAL PROCEDURE CODE

AND

IN THE MATTER OF AN APPLICATION FOR DIRECTIONS IN THE NATURE

OF HABEAS CORPUS

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE (DIRECTIONS IN THE

NATURE OF HABEAS CORPUS) RULES

ABU KIOMBO………...................................................................................1ST APPLICANT

KIOMBO OKIOMERI……………………………………..…………….2ND APPLICANT

-VERSUS-

INSPECTOR GENERAL OF POLICE....................................................1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS.........................................2ND RESPONDENT

CERTIFICATE OF URGENCY
I KENTIENO an Advocate of the High Court of Kenya practicing as such in the firm
of KENTIENO ADVOCATES LLP Advocates in whose care is the conduct of this
application do state that this application as most urgent requiring to be placed before
this Honourable court at the earliest opportunity as the applicant is being unlawfully
detained in breach of his constitutional rights.

Dated at NAIROBI this……………day of………………………..2023

KENTIENO

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2024

KENTIENO ADVOCATES LLP

ADVOCATE FOR THE APPLICANT

DRAWN AND FILED BY:

KENTIENO ADVOCATES LLP
AGIP HOUSE, 2ND FLOOR,
OPPOSITE MAIN STAGE ALONG KCB ROAD,
P.O BOX 2345-20100,
NAIROBI

TO BE SERVED UPON:

1. The Inspector General of Police,

P.O BOX 345,
NAIROBI.
2. Office of the Director of Public Prosecutions
NSSF Building Block ‘A’ 19th Floor
P.O Box 30701-00100
NAIROBI

78
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2024

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CRIMINAL CAUSE NO. OF 2023

IN THE MATTER OF CONSTITUTION OF KENYA 2010 UNDER ART 19, 20, 21

(1), 22, 23(1), 25(d), 28, 29(a), 51(2), 159, 165 AND 244(c)

AND

IN THE MATTER OF S 389 CRIMINAL PROCEDURE CODE

AND

IN THE MATTER OF AN APPLICATION FOR DIRECTIONS IN THE NATURE

OF HABEAS CORPUS

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE (DIRECTIONS IN THE

NATURE OF HABEAS CORPUS) RULES

ABU KIOMBO………...................................................................................1ST APPLICANT

KIOMBO OKIOMERI……………………………………..…………….2ND APPLICANT

-VERSUS-

INSPECTOR GENERAL OF POLICE....................................................1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS.........................................2ND RESPONDENT

CHAMBER SUMMONS
“EX-PARTE”

(Pursuant to Articles 25(d) and 51(2) of the Constitution of Kenya, Section 389 of the
Criminal Procedure Code and Rules 2 and 3 of the Criminal Procedure (Directions in the
nature of Habeas Corpus) Rules)

LET ALL PARTIES concerned attend the Honourable Judge in Chambers on

the...............day of........................2023 as counsel for the applicant may be heard ex-
parte for the ORDERS:

1. THAT this application be certified urgent

2. THAT this honourable court do issue directions in the nature of Habeas Corpus
directed to the 1st and 2nd Respondents, either by themselves or their agents or

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their representatives to have the body of KIOMBO OKIOMERI be produced

before the honourable court within 24 hours of the order being made.
3. THAT the applicant be released on bail as shall be determined by the court.
4. THAT costs of this application be provided for.

WHICH APPLICATION is based on grounds that:

1. The applicant has been illegally held in custody since 20th December 2022 by the
agents or representatives of the respondents.
2. The applicant has since not been taken before a court of law.
3. The applicant has not been charged with any offence since being arrested.
4. The applicant has been denied the chance to see or talk to his relatives while
detained.
5. The respondents have no reasonable excuse for the continued detention of the
applicant
6. It is in the interest of justice to grant the applicant herein the orders sought.

AND this application is further supported by the affidavit of ABU KIOMBO and on
further grounds to be adduced at the hearing.

Dated at NAIROBI this day of 2023

XYZ
KENTIENO ADVOCATES LLP
ADVOCATE FOR THE APPLICANT

DRAWN AND FILED BY:

KENTIENO ADVOCATES LLP
AGIP HOUSE, 2ND FLOOR,
OPPOSITE MAIN STAGE ALONG KCB ROAD,
P.O BOX 2345-20100,
NAIROBI

TO BE SERVED UPON:

1. The Inspector General of Police,

P.O BOX 345,
NAIROBI.
2. Office of the Director of Public Prosecutions
NSSF Building Block ‘A’ 19th Floor
P.O Box 30701-00100

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NAIROBI
If any party served does not appear at the time and place above mentioned such order will
be made and proceedings shall be taken as the court may think just and expedient.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CRIMINAL CAUSE NO. OF 2023

IN THE MATTER OF CONSTITUTION OF KENYA 2010 UNDER ART 19, 20, 21

(1), 22, 23(1), 25(d), 28, 29(a), 51(2), 159, 165 AND 244(c)

AND

IN THE MATTER OF S 389 CRIMINAL PROCEDURE CODE

AND

IN THE MATTER OF AN APPLICATION FOR DIRECTIONS IN THE NATURE

OF HABEAS CORPUS

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE (DIRECTIONS IN THE

NATURE OF HABEAS CORPUS) RULES

ABU KIOMBO………....................................................................................1ST
APPLICANT

KIOMBO OKIOMERI………………………………………..…………….2ND
APPLICANT

-VERSUS-

INSPECTOR GENERAL OF POLICE....................................................1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS.........................................2ND RESPONDENT

SUPPORTING AFFIDAVIT
I ABU KIOMBO, a resident of Milimani Area P.O BOX 2341 in Nairobi County in the
Republic of Kenya, do hereby solemnly swear and state as follows:

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1. THAT I am a male adult of sound mind and disposition hence competent to

make and do hereby swear this affidavit
2. THAT I am the father of the 2nd Applicant.
3. THAT on the 20th of December, the 2nd applicant was arrested by the Police
acting on the instructions of the 1st Respondent
4. THAT subsequent to the arrest, I made a report to Milimani Police Station and
was issued with a reference number – OB12/1/2/2024.
5. THAT it is more than one month now since the arrest of the 2nd Applicant, and
he has not been produced before court to be charged
6. THAT the accused is being held illegally by the 1st Respondent.
7. THAT the Respondents have no reasonable explanation for the continued
detention of the 2nd Applicant
8. THAT the 2nd Applicant has been denied access to his family members for all
the detention period
9. THAT it is in the interest of justice to grant the applicant herein the orders
sought.
10. THAT what is deponed herein is true to the best of my knowledge, information
and belief

SWORN at Nairobi
this....................day of......................2023
By the said .................................
ABU KIOMBO DEPONENT

BEFORE ME
COMMISSIONER FOR OATHS

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Sample 2
REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CRIMINAL CAUSE NO. OF 2023

IN THE MATTER OF CONSTITUTION OF KENYA 2010 UNDER ART 19, 20, 21

(1), 22, 23(1), 25(d), 28, 29(a), 51(2), 159, 165 AND 244(c)

AND

IN THE MATTER OF S 389 CRIMINAL PROCEDURE CODE

AND

IN THE MATTER OF AN APPLICATION FOR DIRECTIONS IN THE NATURE

OF HABEAS CORPUS

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE (DIRECTIONS IN THE

NATURE OF HABEAS CORPUS) RULES

RUWENZORI ZAWADI……….................................................................1ST APPLICANT

ADAMU MWONGOZO………………………………..…………….2ND APPLICANT

-VERSUS-

INSPECTOR GENERAL OF POLICE....................................................1ST RESPONDENT

ATTORNEY GENERAL…………………….........................................2ND RESPONDENT

CERTIFICATE OF URGENCY
I KENTIENO an Advocate of the High Court of Kenya practicing as such in the firm
of KENTIENO ADVOCATES LLP Advocates in whose care is the conduct of this
application do state that this application as most urgent requiring to be placed before
this Honourable court at the earliest opportunity as the applicant is being unlaw
detained in breach of his constitutional rights.

Dated at NAIROBI this……………day of………………………..2022

KENTIENO

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KENTIENO
2024

KENTIENO ADVOCATES LLP

ADVOCATE FOR THE APPLICANT

DRAWN AND FILED BY:

KENTIENO ADVOCATES LLP
AGIP HOUSE, 2ND FLOOR,
OPPOSITE MAIN STAGE ALONG KCB ROAD,
P.O BOX 2345-20100,
NAIROBI

TO BE SERVED UPON:

The Inspector General of Police,

P.O BOX 345,
NAIROBI.

Office of the Director of Public Prosecutions

NSSF Building Block ‘A’ 19th Floor
P.O Box 30701-00100
NAIROBI

84
KENTIENO
2024

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CRIMINAL CAUSE NO. OF 2023

IN THE MATTER OF CONSTITUTION OF KENYA 2010 UNDER ART 19, 20, 21

(1), 22, 23(1), 25(d), 28, 29(a), 51(2), 159, 165 AND 244(c)

AND

IN THE MATTER OF S 389 CRIMINAL PROCEDURE CODE

AND

IN THE MATTER OF AN APPLICATION FOR DIRECTIONS IN THE NATURE

OF HABEAS CORPUS

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE (DIRECTIONS IN THE

NATURE OF HABEAS CORPUS) RULES

RUWENZORI ZAWADI……….................................................................1ST APPLICANT

ADAMU MWONGOZO…………………………………..…………….2ND APPLICANT

-VERSUS-

INSPECTOR GENERAL OF POLICE....................................................1ST RESPONDENT

ATTORNEY GENERAL…………………….........................................2ND RESPONDENT

CHAMBER SUMMONS
“EX-PARTE”

(Pursuant to Articles 25(d) and 51(2) of the Constitution of Kenya, Section 389 of the
Criminal Procedure Code and Rules 2 and 3 of the Criminal Procedure (Directions in the
nature of Habeas Corpus) Rules)

LET ALL PARTIES concerned attend the Honourable Judge in Chambers on

the...............day of........................2022 as counsel for the applicant may be heard ex-
parte for the ORDERS:

1. THAT this application be certified urgent.

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KENTIENO
2024

2. THAT this honourable court do issue directions in the nature of Habeas Corpus
directed to the 1st and 2nd Respondents, either by themselves or their agents or
their representatives to have the body of ADAMU MWONGOZO be produced
before the honourable court within 24 hours of the order being made.
3. THAT the applicant be released on bail as shall be determined by the court.
4. THAT costs of this application be provided for.

WHICH APPLICATION is based on grounds that:

a) The applicant has been illegally held in custody since 29th September 2021 by
the agents or representatives of the respondents.
b) The applicant has since not been taken before a court of law.
c) The applicant has not been charged with any offence since being arrested.
d) The applicant has been denied the chance to see or talk to his relatives while
detained.
e) The respondents have no reasonable excuse for the continued detention of the
applicant.
f) It is in the interest of justice to grant the applicant herein the orders sought.

AND this application is further supported by the affidavit of RUWENZORI ZAWADI

and on further grounds to be adduced at the hearing.

Dated at NAIROBI this day of 2022

KENTIENO
KENTIENO ADVOCATES LLP
ADVOCATE FOR THE APPLICANT

DRAWN AND FILED BY:

KENTIENO ADVOCATES LLP
AGIP HOUSE, 2ND FLOOR,
OPPOSITE MAIN STAGE ALONG KCB ROAD,
P.O BOX 2345-20100,
NAIROBI

TO BE SERVED UPON:

The Inspector General of Police,

P.O BOX 345,
NAIROBI.

86
KENTIENO
2024

Office of the Director of Public Prosecutions

NSSF Building Block ‘A’ 19th Floor
P.O Box 30701-00100
NAIROBI
If any party served does not appear at the time and place above mentioned such order will
be made and proceedings shall be taken as the court may think just and expedient.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CRIMINAL CAUSE NO. OF 2023

IN THE MATTER OF CONSTITUTION OF KENYA 2010 UNDER ART 19, 20, 21

(1), 22, 23(1), 25(d), 28, 29(a), 51(2), 159, 165 AND 244(c)

AND

IN THE MATTER OF S 389 CRIMINAL PROCEDURE CODE

AND

IN THE MATTER OF AN APPLICATION FOR DIRECTIONS IN THE NATURE

OF HABEAS CORPUS

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE (DIRECTIONS IN THE

NATURE OF HABEAS CORPUS) RULES

RUWENZORI ZAWADI……….................................................................1ST APPLICANT

ADAMU MWONGOZO………………………………..…………….2ND APPLICANT

-VERSUS-

INSPECTOR GENERAL OF POLICE....................................................1ST RESPONDENT

ATTORNEY GENERAL…………………….........................................2ND RESPONDENT

87
KENTIENO
2024

SUPPORTING AFFIDAVIT
I RUWENZORI ZAWADI, a resident of Baba Dogo Area P.O BOX 2341 in Nairobi
County in the Republic of Kenya, do hereby solemnly swear and state as follows:

1. THAT I am a female adult of sound mind and disposition hence competent

to make and do hereby swear this affidavit
2. THAT I am the wife of the 2nd Applicant.
3. THAT on the 29th of September 2021, the 2nd applicant was arrested by the
Police acting on the instructions of the 1st Respondent
4. THAT subsequent to the arrest, I made a report to Pangani Police Station
and was issued with a reference number – OB12/1/2/2021.
5. THAT it is more than one month now since the arrest of the 2nd Applicant,
and he has not been produced before court to be charged
6. THAT the accused is being held illegally by the 1st Respondent.
7. THAT the Respondents have no reasonable explanation for the continued
detention of the 2nd Applicant
8. THAT the 2nd Applicant has been denied access to his family members for
all the detention period
9. THAT it is in the interest of justice to grant the applicant herein the orders
sought.
10. THAT what is deponed herein is true to the best of my knowledge,
information and belief

SWORN at Nairobi
this....................day of......................2022
By the said .................................
RUWENZORI ZAWADI DEPONENT

BEFORE ME
COMMISSIONER FOR OATHS

88
KENTIENO
2024

Sample 3
REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CRIMINAL CASE NO. OF 2024

IN THE MATTER OF CONSTITUTION OF KENYA 2010 UNDER ART 19, 20, 21

(1), 22, 23(1), 25(d), 28, 29(a), 51(2), 159, 165 AND 244(c)

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE CODE S 389

AND

IN THE MATTER OF AN APPLICATION FOR DIRECTIONS IN THE NATURE

OF HABEAS CORPUS

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE (DIRECTIONS IN THE

NATURE OF HABEAS CORPUS) RULES

NYAGWOI MOKINWA..............................................................................1ST APPLICANT

LINC MOKINWA……………………………………………………..2ND APPLICANT

-VERSUS-

INSPECTOR GENERAL OF POLICE....................................................1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS.........................................2ND RESPONDENT

CERTIFICATE OF URGENCY
I XYZ an Advocate of the High Court of Kenya practicing as such in the firm of XYZ
Advocates in whose care is the conduct of this application do state that this application
as most urgent requiring to be placed before this Honourable court at the earliest
opportunity as the applicant is being unlaw detained in breach of his constitutional
rights.

Dated at NAIROBI this……………day of………………………..2024

XYZ

89
KENTIENO
2024

XYZ ADVOCATES LLP

ADVOCATE FOR THE APPLICANT

DRAWN AND FILED BY:

XYZ ADVOCATES LLP
AGIP HOUSE, 2ND FLOOR,
OPPOSITE MAIN STAGE ALONG KCB ROAD,
P.O BOX 2345-20100,
NAIROBI

TO BE SERVED UPON:

The Inspector General of Police,

P.O BOX 345,
NAIROBI.

Office of the Director of Public Prosecutions

NSSF Building Block ‘A’ 19th Floor
P.O Box 30701-00100
NAIROBI

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CRIMINAL CASE NO. OF 2024

IN THE MATTER OF CONSTITUTION OF KENYA 2010 UNDER ART 19, 20, 21

(1), 22, 23(1), 25(d), 28, 29(a), 51(2), 159, 165 AND 244(c)

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE CODE S 389

AND

IN THE MATTER OF AN APPLICATION FOR DIRECTIONS IN THE NATURE

OF HABEAS CORPUS

90
KENTIENO
2024

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE (DIRECTIONS IN THE

NATURE OF HABEAS CORPUS) RULES

NYAGWOI MOKINWA..............................................................................1ST APPLICANT

LINC MOKINWA………………………………………………………..2ND APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE....................................................1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS.........................................2ND RESPONDENT

CHAMBER SUMMONS
“EX-PARTE”

(Pursuant to Articles 25(d) and 51(2) of the Constitution of Kenya, Section 389 of the
Criminal Procedure Code and Rules 2 and 3 of the Criminal Procedure (Directions in the
nature of Habeas Corpus) Rules)

LET ALL PARTIES concerned attend the Honourable Judge in Chambers on

the...............day of........................2024 as counsel for the applicant may be heard ex-
parte for the ORDERS:

1. THAT this application be certified urgent.

2. THAT this honourable court do issue directions in the nature of Habeas
Corpus directed to the 1st and 2nd Respondents, either by themselves or their
agents or their representatives to have the body of LINC MOKINWA be
produced before the honourable court within 24 hours of the order being
made.
3. THAT the applicant be released on bail as shall be determined by the court.
4. THAT costs of this application be provided for.

WHICH APPLICATION is based on grounds that:

a) The applicant has been illegally held in custody since 1st February 2024 by
the agents or representatives of the respondents.
b) The applicant has since not been taken before a court of law.
c) The applicant has not been charged with any offence since being arrested
d) The applicant has been denied the chance to see or talk to his relatives while
detained

91
KENTIENO
2024

e) The respondents have no reasonable excuse for the continued detention of

the applicant
f) It is in the interest of justice to grant the applicant herein the orders sought.

AND this application is further supported by the affidavit of NYAGWOI MOKINWA

and on further grounds to be adduced at the hearing.

Dated at NAIROBI this day of 2024

XYZ
XYZ ADVOCATES LLP
ADVOCATE FOR THE APPLICANT

DRAWN AND FILED BY:

XYZ ADVOCATES LLP
AGIP HOUSE, 2ND FLOOR,
OPPOSITE MAIN STAGE ALONG KCB ROAD,
P.O BOX 2345-20100,
NAIROBI

TO BE SERVED UPON:

The Inspector General of Police,

P.O BOX 345,
NAIROBI.

Office of the Director of Public Prosecutions

NSSF Building Block ‘A’ 19th Floor
P.O Box 30701-00100
NAIROBI
If any party served does not appear at the time and place above mentioned such order will
be made and proceedings shall be taken as the court may think just and expedient.

92
KENTIENO
2024

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CRIMINAL CASE NO. OF 2024

IN THE MATTER OF CONSTITUTION OF KENYA 2010 UNDER ART 19, 20, 21

(1), 22, 23(1), 25(d), 28, 29(a), 51(2), 159, 165 AND 244(c)

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE CODE S 389

AND

IN THE MATTER OF AN APPLICATION FOR DIRECTIONS IN THE NATURE

OF HABEAS CORPUS

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE (DIRECTIONS IN THE

NATURE OF HABEAS CORPUS) RULES

NYAGWOI MOKINWA..............................................................................1ST APPLICANT

LINC MOKINWA……………………………………………………..2ND APPLICANT

-VERSUS-

INSPECTOR GENERAL OF POLICE....................................................1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS.........................................2ND RESPONDENT

SUPPORTING AFFIDAVIT
I NYAGWOI MOKINWA, a resident of Tawala Area P.O BOX 2341 in Nairobi County
in the Republic of Kenya, do hereby solemnly swear and state as follows:

1. THAT I am a male adult of sound mind and disposition hence competent to

make and do hereby swear this affidavit
2. THAT I am the father of the 2nd Applicant.
3. THAT on the 1st day of February 2024, the 2nd applicant was arrested by the
Police acting on the instructions of the 1st Respondent
4. THAT subsequent to the arrest, I made a report to Tawala Police Station and
was issued with a reference number – OB12/1/2/2024.

93
KENTIENO
2024

5. THAT it is more than two weeks now since the arrest of the 2nd Applicant
and he has not been produced before court to be charged
6. THAT the accused is being held illegally by the 1st Respondent.
7. THAT the Respondents have no reasonable explanation for the continued
detention of the 2nd Applicant
8. THAT the 2nd Applicant has been denied access to his family members for
all the detention period
9. THAT it is in the interest of justice to grant the applicant herein the orders
sought.
10. THAT what is deponed herein is true to the best of my knowledge,
information and belief

SWORN at Nairobi
this....................day of......................2024
By the said .................................
NYAGWOI MOKINWA DEPONENT

BEFORE ME
COMMISSIONER FOR OATHS

94
KENTIENO
2024

19. JUDICIAL REVIEW

Sample 1
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
MISCELLANEOUS CAUSE NO…. OF 2024

IN THE MATTER OF AN APPLICATION FOR LEAVE TO COMMENCE

PROCEEDINGS IN THE NATURE OF JUDICIAL REVIEW
AND

IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23(3)(f), 25, 27, 47,165(6),
258 AND 260 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF SECTIONS 8 & 9 OF THE LAW REFORM ACT

AND

IN THE MATTER OF SECTIONS 4 AND 5 FAIR ADMINISTRATIVE ACTION

ACT NO. 4 OF 2015

AND

IN THE MATTER OF THE DIRECTOR OF PUBLIC PROSECUTION ACT

BETWEEN

MEDELINE………...…………………….…………...………………. APPLICANT

VERSUS

KENYA SCHOOL OF INTERNATIONAL LAW…….…..……....1ST RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS…………..…….2ND RESPONDENT

INSPECTOR GENERAL OF POLICE……………………….........3RD RESPONDENT

DIRECTOR OF CRIMINAL INVESTIGATIONS…………...….4TH RESPONDENT

CERTIFICATE OF URGENCY
I, WAKILI TIMAMU, an advocate of the High Court of Kenya practising as such in
the name and firm of C9 ADVOCATES LLP do certify this Application as urgent and

95
KENTIENO
2024

merited to be heard on a priority basis on the grounds that the Applicant, MEDELINE,
is in immediate and imminent danger and apprehension that his right to liberty may
at any time be infringed yet he remains innocent until proven guilty by a competent
court of law.
He stands to suffer irreparable harm in the hands of the respondents unless this
honourable court intervenes.
I therefore certify that this matter should be placed before the duty Judge for an
expedient hearing and disposal, including the grant of the necessary ex parte Orders
in the first instance

DATED at NAIROBI this X day of X 2024

WAKILI TIMAMU

P105/000/00 PRACTICE NO. LSK 0000/000

C9 ADVOCATES LLP

ADVOCATES FOR THE APPLICANT

DRAWN AND FILED BY:

C9 ADVOCATES LLP
5th Floor Amran Towers
Richard Street
P.O Box 09-00100, Nairobi, Kenya
Email: info@[Link]

TO BE SERVED UPON:

1. KENYA SCHOOL OF INTERNATIONAL LAW

Harambee House, Harambee Avenue
P.O. Box 30510-00100, Nairobi, Kenya
Email: ps@[Link]

96
KENTIENO
2024

2. THE DIRECTOR OF PUBLIC PROSECUTIONS

ODPP House, Ragati Road, Upper Hill
P.O. Box 30701-00100, Nairobi, Kenya
Email: info@[Link]

3. OFFICE OF THE INSPECTOR GENERAL OF POLICE

Taifa Road, Jogoo House "A" 4th Floor
P.O Box 44249-00100 Nairobi, Kenya
Tel: +254 20 2221969
Email: nps@[Link]

4. THE DIRECTOR OF CRIMINAL INVESTIGATIONS

Mazingira Complex, Kiambu Road,
Opp. Kenya Forest Service Headquarters, Karura
P.O. BOX 30036 – 00100, Nairobi, Kenya

5. THE HON. ATTORNEY GENERAL

Sheria House, Harambee Avenue,
P.O. Box 40112-00100, Nairobi, Kenya.
E-mail: communications@[Link]

97
KENTIENO
2024

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
MISCELLANEOUS CAUSE NO…. OF 2024

IN THE MATTER OF AN APPLICATION FOR LEAVE TO COMMENCE

PROCEEDINGS IN THE NATURE OF JUDICIAL REVIEW
AND

IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 25, 27, 47,165(6),
258 AND 260 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF SECTIONS 8 & 9 OF THE LAW REFORM ACT

AND

IN THE MATTER OF SECTIONS 4 AND 5 FAIR ADMINISTRATIVE ACTION

ACT NO. 4 OF 2015

AND

IN THE MATTER OF THE DIRECTOR OF PUBLIC PROSECUTION ACT

BETWEEN

MEDELINE………...…………………….…………...………………. APPLICANT

VERSUS

KENYA SCHOOL OF INTERNATIONAL LAW………...…..……....1ST

RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS………….....…….2ND

RESPONDENT

INSPECTOR GENERAL OF POLICE………………………….........3RD

RESPONDENT

DIRECTOR OF CRIMINAL INVESTIGATIONS………….…....….4TH

RESPONDENT

98
KENTIENO
2024

CHAMBER SUMMONS
(Under Order 53 rules 1 (1), (2) and (4) of the Civil Procedure Rules, sections 8 & 9 of the
Law Reform Act Cap 26, section 9 of the Fair Administrative Action Act, 2015, Article 23(3)
of the Constitution)

(EX-PARTE)
LET ALL PARTIES CONCERNED attend the Honourable judge in chambers on
the……… day of………., 2024, at 9.00 o’clock in the forenoon or soon thereafter as
counsel for the Applicant may be heard upon his Application for ORDERS THAT:

1. This Application be certified as urgent, heard ex parte and service thereof be

dispensed with in the first instance.
2. Leave be granted to the Applicant to commence judicial review proceedings
and apply for an order of CERTIORARI to remove into this Honourable Court
and quash the decision of the Respondent to commence criminal proceedings
against the Applicant.
3. Leave be granted to the Applicant to apply for an order of PROHIBITION to
prohibit the 2nd, 3rd and 4th Respondents from the unlawful arrest and
prosecution based on the alleged criminal charges without any evidence
whatsoever.
4. Leave be granted for an order of MANDAMUS to be directed to the 1st, 2nd,
3rd, and 4th Respondents compelling them to act within the confines of the law
with respect to the investigation, arrest, arraignment and ordering re-arrest of
the applicant.
5. The leave so granted to operate as stay of criminal proceedings in the
magistrate’s court at Milimani.
6. The costs of these proceedings be borne by the Respondents and or as may be
ordered by the court.
7. The Honourable Court be pleased to grant such other or further relief as it may
deem fit in the circumstances.

WHICH APPLICATION is founded upon the grounds set out in the Statutory
Statement and the annexed joint affidavit of the Applicant, MEDELINE, filed herein
and on such further grounds to be adduced at the hearing hereof.

99
KENTIENO
2024

DATED at NAIROBI this XX day of XX.

WAKILI TIMAMU
C9 ADVOCATES LLP
ADVOCATES FOR THE APPLICANT

DRAWN AND FILED BY:

C9 ADVOCATES LLP
5th Floor Amran Towers
Richard Street
P.O Box 09-00100, Nairobi, Kenya
Email: info@[Link]

TO BE SERVED UPON:

1. KENYA SCHOOL OF INTERNATIONAL LAW

Harambee House, Harambee Avenue
P.O. Box 30510-00100, Nairobi, Kenya
Email: ps@[Link]

2. THE DIRECTOR OF PUBLIC PROSECUTIONS

ODPP House, Ragati Road, Upper Hill
P.O. Box 30701-00100, Nairobi, Kenya
Email: info@[Link]

3. OFFICE OF THE INSPECTOR GENERAL OF POLICE

Taifa Road, Jogoo House "A" 4th Floor
P.O Box 44249-00100 Nairobi, Kenya
Tel: +254 20 2221969
Email: nps@[Link]

4. THE DIRECTOR OF CRIMINAL INVESTIGATIONS

Mazingira Complex, Kiambu Road,
Opp. Kenya Forest Service Headquarters, Karura
P.O. BOX 30036 – 00100, Nairobi, Kenya

100
KENTIENO
2024

5. THE HON. ATTORNEY GENERAL

Sheria House, Harambee Avenue,
P.O. Box 40112-00100, Nairobi, Kenya.
E-mail: communications@[Link]

101
KENTIENO
2024

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
MISCELLANEOUS CAUSE NO…. OF 2024

IN THE MATTER OF AN APPLICATION FOR LEAVE TO COMMENCE

PROCEEDINGS IN THE NATURE OF JUDICIAL REVIEW
AND

IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 25, 27, 47,165(6),
258 AND 260 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF SECTIONS 8 & 9 OF THE LAW REFORM ACT

AND

IN THE MATTER OF SECTIONS 4 AND 5 FAIR ADMINISTRATIVE ACTION

ACT NO. 4 OF 2015

AND

IN THE MATTER OF THE DIRECTOR OF PUBLIC PROSECUTION ACT

BETWEEN

MEDELINE………...…………………….…………...………………. APPLICANT

VERSUS

KENYA SCHOOL OF INTERNATIONAL LAW……….…..……....1ST

RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS………….....…….2ND

RESPONDENT

INSPECTOR GENERAL OF POLICE………………………….........3RD

RESPONDENT

102
KENTIENO
2024

DIRECTOR OF CRIMINAL INVESTIGATIONS………….…....….4TH

RESPONDENT

STATUTORY STATEMENT
(Under Order 53 Rule 1 (2) of the Civil Procedure Rules)

A. NAMES AND DESCRIPTION OF THE PARTIES

1. The Applicant is multi-national company with a Kenya subsidiary which

carries out business of print and media. The Applicant’s address of service for
purposes of this suit shall be in the care of M/S C9 ADVOCATES LLP, 5th Floor
Amran Towers, Richard Street, P.O Box 09-00100, Nairobi, Kenya (Email:
info@[Link]).
2. The 1st Respondent is
3. The 2nd Respondent is
4. The 3rd Respondent is

B. RELIEFS SOUGHT

The orders sought by the Applicant are THAT:

(i) This Application be certified as urgent, heard ex parte and service thereof be
dispensed within the first instance.
(ii) An order of CERTIORARI be issued to quash the administrative actions of
having the applicant arrested, detained and arraigned before court without
properly drafted charges against him.
(iii) An order of CERTIORARI to remove into this Honourable Court and quash
the decision of the Respondent to commence criminal proceedings against the
Applicant.
(iv) An order of PROHIBITION to prohibit the Respondents from the unlawful
arrest and prosecution based on the alleged criminal charges without any
evidence whatsoever.
(v) An order of MANDAMUS to be directed to the Respondents compelling them
to act within the confines of the law with respect to the investigation, arrest,
arraignment and ordering re-arrest of the applicant.
(vi) Orders sought operate as stay

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KENTIENO
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(vii) The costs of these proceedings be borne by the Respondents and or as may be
ordered by the court.

C. GROUNDS UPON WHICH RELIEFS ARE SOUGHT

Which application is based on the following grounds:

(i) Abuse of power:

The Respondent acted beyond their powers in deciding to arrest the applicant
without investigation.

(ii) Malice/Mala fides:

The arrest and re-arrest are in bad faith and meant to intimidate the Applicant
and stifle his business operations.

(iii) Irrationality:

The unanimous decision to arrest and charge the applicant without due
regard of the processes stipulated in law was irrational with the potential of
not only staining the image of these government institutions but also making
the public question the trust and confidence of such institutions.

The action by the respondents cannot be justified and has resulted into a game
of pointing fingers at each other on who failed to do what. This graduates to
be termed as an embarrassment of the individuals and the institutions whom
they represent.

(iv) Unreasonableness:

It defies the standards of reasonability to commence criminal charges where

there is no evidence. The said trial is excessively unfair to the ex-parte
Applicant for it has no factual basis.

(v) Unproportionality

It is a disproportionate act of an administrative officer to seek to curtail or

injure the rights of an accused person where there is no sufficient evidence that
assures a realistic chance of conviction of the accused person.

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KENTIENO
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(vi) Illegality

Where an administrative decision to charge is not in the interest of serving

justice to the affected person or the public and is clearly an abuse of process, it
is unconstitutional therefore null and void.

DATED at NAIROBI this ……………………………….…………..…..…. day of May

2024.

WAKILI TIMAMU
C9 ADVOCATES LLP
ADVOCATES FOR THE APPLICANT

DRAWN AND FILED BY:

C9 ADVOCATES LLP
5th Floor Amran Towers
Richard Street
P.O Box 09-00100, Nairobi, Kenya
Email: info@[Link]

TO BE SERVED UPON:

1. KENYA SCHOOL OF INTERNATIONAL LAW

Harambee House, Harambee Avenue
P.O. Box 30510-00100, Nairobi, Kenya
Email: ps@[Link]

2. THE DIRECTOR OF PUBLIC PROSECUTIONS

ODPP House, Ragati Road, Upper Hill
P.O. Box 30701-00100, Nairobi, Kenya
Email: info@[Link]

3. OFFICE OF THE INSPECTOR GENERAL OF POLICE

Taifa Road, Jogoo House "A" 4th Floor

105
KENTIENO
2024

P.O Box 44249-00100 Nairobi, Kenya

Tel: +254 20 2221969
Email: nps@[Link]

4. THE DIRECTOR OF CRIMINAL INVESTIGATIONS

Mazingira Complex, Kiambu Road,
Opp. Kenya Forest Service Headquarters, Karura
P.O. BOX 30036 – 00100, Nairobi, Kenya

5. THE HON. ATTORNEY GENERAL

Sheria House, Harambee Avenue,
P.O. Box 40112-00100, Nairobi, Kenya.
E-mail: communications@[Link]

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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
MISCELLANEOUS CAUSE NO…. OF 2024

IN THE MATTER OF AN APPLICATION FOR LEAVE TO COMMENCE

PROCEEDINGS IN THE NATURE OF JUDICIAL REVIEW
AND

IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 25, 27, 47,165(6),
258 AND 260 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF SECTIONS 8 & 9 OF THE LAW REFORM ACT

AND

IN THE MATTER OF SECTIONS 4 AND 5 FAIR ADMINISTRATIVE ACTION

ACT NO. 4 OF 2015

AND

IN THE MATTER OF THE DIRECTOR OF PUBLIC PROSECUTION ACT

BETWEEN

MEDELINE………...…………………….…………...………………. APPLICANT

VERSUS

KENYA SCHOOL OF INTERNATIONAL LAW………...…..……....1ST

RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS………….....…….2ND

RESPONDENT

INSPECTOR GENERAL OF POLICE………………………….........3RD

RESPONDENT

DIRECTOR OF CRIMINAL INVESTIGATIONS………….…....….4TH

RESPONDENT

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VERIFYING AFFIDAVIT
(Pursuant to Order 53 Rule 1(2) of the Civil Procedure Rules 2010)

I, ESCOBAR, a resident of Bogota the Capital City of Colombia make oath and state
as follows;

1. THAT I am a male adult of sound disposition and the applicant herein

conversant with the facts attendant to this case hence competent to swear
this affidavit.
2. THAT I confirm that all the averments contained in the plaint herein are correct.
3. THAT there is no suit pending between the parties over the same subject
matter.
4. THAT what is stated herein above is true to the best of my knowledge,
information and belief.

SWORN by the said }

ESCOBAR } .....................................

DEPONENT

At NAIROBI }

This............... Day of............... 2024. }

BEFORE ME }

COMMISSIONER FOR OATHS }

Drawn and filed by; -

C9 ADVOCATES LLP
5TH FLOOR AMRAN TOWERS
RICHARD STREET
P.O BOX 09-00100
NAIROBI

TO BE SERVED UPON:

1. KENYA SCHOOL OF INTERNATIONAL LAW

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Harambee House, Harambee Avenue

P.O. Box 30510-00100, Nairobi, Kenya
Email: ps@[Link]

2. THE DIRECTOR OF PUBLIC PROSECUTIONS

ODPP House, Ragati Road, Upper Hill
P.O. Box 30701-00100, Nairobi, Kenya
Email: info@[Link]

3. OFFICE OF THE INSPECTOR GENERAL OF POLICE

Taifa Road, Jogoo House "A" 4th Floor
P.O Box 44249-00100 Nairobi, Kenya
Tel: +254 20 2221969
Email: nps@[Link]

4. THE DIRECTOR OF CRIMINAL INVESTIGATIONS

Mazingira Complex, Kiambu Road,
Opp. Kenya Forest Service Headquarters, Karura
P.O. BOX 30036 – 00100, Nairobi, Kenya

5. THE HON. ATTORNEY GENERAL

Sheria House, Harambee Avenue,
P.O. Box 40112-00100, Nairobi, Kenya.
E-mail: communications@[Link]

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Sample 2
REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KILIFI

JUDICIAL REVIEW DIVISION

MISC CASE NO X OF 2022

IN THE MATTER OF ARTICLE 23(3)(F) OF THE CONSTITUTION OF KENYA

2010

AND

IN THE MATTER OF APPLICATION FOR ORDERS OF JUDICIAL REVIEW

AND

IN THE MATTER OF SECTION 8 & 9 OF THE LAW REFORM ACT

AND

IN THE MATTER OF SECTIONS 4 & 5 OF THE FAIR ADMINISTRATIVE

ACTION ACT

MATOVI…………………………………………...APPLICANT

DIRECTOR OF PUBLIC PROSECUTIONS……………………....1ST RESPONDENT

DIRECTORATE OF CRIMINAL INVESTIGATIONS…………..2ND RESPONDENT

PETITION FOR JUDICIAL REVIEW

ORDERS

I, MATOVI, a resident of Kilifi Kenya, and a practicing advocate of the High Court of
Kenya whose address for the purposes of this petition is 123 Kilifi hereby do petition
for orders THAT:

1. This Application be certified as urgent, heard ex parte and service thereof be

dispensed with in the first instance.
2. This Honourable Court do issue orders of CERTIORARI quashing the 1st
Respondents criminal charges against the Applicant.
3. This Honourable Court do issue orders of PROHIBITION to the 1st and 2nd
Respondents prohibiting them from instituting any criminal charges or
undertaking prosecution of the Applicant.

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4. This Honourable Court do issue orders of MANDAMUS to the 1st Respondent

to review the file and take necessary action.
5. The orders issued herein act as stay in the pendency of these proceedings.
6. The costs of this application be borne by the Respondents.
7. This Honourable Court may issue any other orders it deems fit in the interest
of justice.

This Petition is sought based on the grounds stated in the annexed affidavit.

It is my humble prayer that this Honourable Court may consider this Petition.

Dated this x day of z 2022.

MATOVI
PETITIONER
Drawn and filed by:

Matovi LLP

123 Kilifi

To be served upon:

1. Director of Public Prosecutions

Milimani

2. Directorate of Criminal Investigations

Kiambu

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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILIFI
JUDICIAL REVIEW DIVISION
MISC CASE NO X OF 2022
IN THE MATTER OF ARTICLE 23(3)(F) OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF APPLICATION FOR ORDERS OF JUDICIAL REVIEW
AND
IN THE MATTER OF SECTION 8 & 9 OF THE LAW REFORM ACT
AND
IN THE MATTER OF SECTIONS 4 & 5 OF THE FAIR ADMINISTRATIVE
ACTION ACT

MATOVI…………………………………………...APPLICANT

DIRECTOR OF PUBLIC PROSECUTIONS……………………....1ST RESPONDENT

DIRECTORATE OF CRIMINAL INVESTIGATIONS…………..2ND RESPONDENT

SUPPORTING AFFIDAVIT
I, MATOVI, a resident of Kilifi Kenya, and a practicing advocate of the High Court of
Kenya whose address for the purposes of this petition is 123 Kilifi hereby do swear:

1. THAT I am the Applicant in this petition.

2. THAT the Respondents in this case have acted beyond their powers by
instituting criminal proceedings.
3. THAT the criminal proceedings are based on bad faith and malice.
4. THAT my rights are being infringed by the institution of criminal proceedings,
5. THAT everything deponed herein is true to the best of my knowledge and
belief.

SWORN by the said )

MATOVI )………………..DEPONENT

At KILIFI )

On this day of X 2022 )

Before me

COMMISSIONER FOR OATHS

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Drawn and filed by:

Matovi LLP

123 Kilifi

To be served upon:

1. Director of Public Prosecutions

Milimani

2. Directorate of Criminal Investigations

Kiambu

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20. PROCEDURES IN SPECIAL COURTS

Children
Section 2 Children Act – a child is a person under 18 years.

Legal framework
• Art 53(1)(f) – best interests of the child
• Children Act
• Probation of Offenders Act
• Borstal Institutions Act

Art 53(1)(f), CoK 2010

• Not to be detained, except as a measure of last resort.

• When detained, to be held –
✓ for the shortest time;
✓ separate from adults;
✓ in conditions that take account the child’s sex and age.
✓ taking into account any disabilities (S 26, Children Act)
✓ respect for privacy, human dignity.
• A child’s best interests are of paramount importance in every matter
concerning the child.

Children’s Court

• Hear any charge against a child, other than a charge of murder.

• Friendly environment.
• May only be attended by – judicial officer; children’s officer, parents or
guardians, persons directly involved in the case.
• Held in privacy.
• Provision of legal aid where child is unrepresented – s 96, Children Act.
• Appointment of guardian ad litem where child is unrepresented – s 98, Children
Act.

Pre-trial conferencing considerations

• Identify the issues in dispute

• Identify witnesses – including intermediaries
• Appointment of intermediaries
• Whether minor will appear in person or be represented
• Whether minor will give sworn or unsworn testimony
• Whether the matter will be settled out of court

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• How the trial will be conducted (in private) since the victim is a minor
• Victim impact assessment of minor

Best interest considerations

Section 95(2), Children Act

Regard to –

• Feelings and wishes of the child

• Child’s age and understanding
• Physical, emotional and educational needs
• Disability or chronic illness
• Sex of the child
• The likely effect on the child of any change in circumstances
• Religious persuasion and cultural background
• Any harm the child may have suffered or is at the risk of suffering
• Ability of parent or guardian to provide and care for the child
• Customs and practices of the community to which the child belongs
• Child’s exposure to or use of drugs

Procedure for Children in Conflict with the Law

General considerations

• Ascertain age of child – previous determination of age; statements by

parent/guardian; baptismal certificate, school registration form, school report;
estimation by a medical practitioner; report of a social worker. S 229, Children
Act.
• If a minor, inform the prosecution and children officers.
• Guardians of child and children’s officers be informed.
• S 14(3), Penal Code – a male under 12 is incapable of having any carnal
knowledge.
• Art 53, CoK – best interests of the child.
• Rule 4, Children Offender Rules – a child who commits an offence should not be
detained, unless as a last resort.
• In case a child is detained, should be kept separate from adults.
• If a child is detained, they should be taken to a remand home as they await trial.
• Article 50(8) CoK – proceedings involving children to be heard in camera.
• Article 50(7) CoK – give evidence with the help of an intermediary.

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Part XV – Children Act

• Children’s Court may try a child for any offence except the offence of murder.
• Summons to be served on parent or guardian.
• Child to be assessed by Children’s Officer – needs and circumstances; tendency
to engage in activities in conflict with the law.
• Case remitted to Children’s Court upon a finding that the child committed an
offence.
• Protection of privacy.
• Irrebuttable presumption of age – Child under 12 shall not be criminally
responsible for any act or omission.
• Rebuttable presumption of age – Child under 14 presumed incapable of
differentiating between right and wrong, unless the court is satisfied on
evidence to the contrary.
• Rights during proceedings – to be heard, art 50 rights, assistance of parents or
guardians.
• Detention as last resort.
• Alternatives – placement with a family or in an educational setting or home.
• If detained, consideration on – age, gender, type of offence, mental and physical
health, disability, special need, protection from harmful influence and
situations of risk.
• Subjected to diversion or judicial process.

Diversion
S 226 – 231, Children Act

Objects – S 226, Children Act

• make use of alternative methods of holding children accountable

• promote the rehabilitation of the child
• re-integration of the child into the community;
• provide an opportunity for victims to express their views concerning such
conduct;
• encourage symbolic restitution by the offending child as compensation for the
harm caused to the aggrieved person;
• promote reconciliation between the child and the person or community
affected by the harmful conduct of the child; and
• minimize stigmatization of the child

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• prevent adverse consequences likely to arise from his or her subjection to the
criminal justice system.

When to consider diversion – S 227, Children Act

A child is eligible for diversion if—

• there is compelling evidence that the child committed the alleged offence;
• the child freely and voluntarily admits responsibility;
• the offence is not a capital offence;
• the child and his or her parent or guardian consent to diversion;
• the concerns of the victim or the victim’s next of kin have been considered; and
• the child is a first or second offender.

Procedure in diversion
Preliminary inquiry – age & criminal responsibility; whether matter can be diverted
before plea; suitable diversion option; availability of info; consideration of views.

Levels of diversion – S 230, Children Act

Level 1 (3 months)

1. an oral or written apology to a specified person or persons;

2. a formal caution in the prescribed manner with conditions;
3. placement under a supervision and guidance order for a period not exceeding
three months;
4. placement under a reporting order for a period not exceeding three months;
5. placement under a family time order for a period not exceeding three months;
6. placement under a good-behaviour order for a period not exceeding three
months;
7. the issue of an order prohibiting the child from visiting, frequenting or
appearing at a specified place or places;
8. referral to counselling or psychotherapy for a period not exceeding three
months;
9. compulsory attendance at a specified centre or place for a specified or
educational purpose for a period not exceeding five hours each week, for a
maximum of three months;
10. symbolic restitution to a specified person, persons, group or institution;
11. restitution of a specified object to a specified victim or victims of the alleged
offence where the object concerned can be returned or restored;

Level 2 – all the above, but 6 months

Level 3 – 12 months

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Prohibited penalties
S 238, Children Act

• No child shall be ordered to imprisonment.

• No child shall be sentenced to death
• No child under the age of 12 years shall be sent to a rehabilitation home.

Permitted penalties
S 239, Children Act

• Discharge under s 35(1) Penal Code

• Discharging on entering into a recognizance, with or without sureties
• Probation order
• Committing to the care of a fit person – relative, charitable children institution
• Rehabilitation school – 12-15 years
• Borstal institution – above 16
• Fine, compensation or costs – with regard to the means of the guardian/parent.
• Care of a qualified counsellor or psychologist.
• Educational institution or vocational training program
• Placed in a probation hostel
• Community service order
• Restorative justice order.
• Supervision order.
• Orders of diversion.

Child witness
• S 19, Oaths and Statutory Declarations Act
A child of any age may be sworn as a witness in criminal cases provided that
he appears to possess sufficient intelligence to understand the nature and
obligation of the oath, for his competence depends on his understanding and
not age.
• Magistrate must conduct voir dire before the child is sworn.
• If child does not understand the nature of the oath, he may give unsworn
testimony.
• An accused may not be convicted of the offence charged against him unless the
evidence of a child is corroborated by some other material evidence
implicating him. S 124, EA

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Measures to protect child witnesses

Section 31(4) Sexual Offences Act & section 4(3) Witness Protection Act; section 94,
Children’s Act

• give evidence under the protective cover of a witness protection box;

• give evidence through an intermediary; (art 50(7), CoK)
• directing the proceedings not to take place in open court;
• prohibiting the publication of the identity of the complainant or of the
complainant’s family,
• using pseudonyms,
• concealing identity of the child,
• allowing the witness to give testimony via video link.
• court environment should be friendly
• any other measures the court deems just and appropriate

Anti-corruption

Legal framework
• Anti-corruption and Economic Crimes Act (ACECA)
• Proceeds of Crime and Anti-Money Laundering Act (POCAMLA)
• Leadership and Integrity Act
• Public Procurement and Disposal Act (PPDA)
• Bribery Act

Procedure on corruption offences

• Provisions of ACECA supersede those of CPC – s 5(2), ACECA
• Corruption offences can only be tried by a Special Magistrate appointed by the
Chief Justice.
• Investigation by EACC.
• EACC reports to DPP with recommendation for prosecution – s 35, ACECA.
• The court holds a hearing daily from institution to conclusion.
• Special magistrate may offer pardon on condition of full and true disclosure.
• A person found guilty must pay compensation, return property or pay equivalent of
improperly acquired property.
• Punishment – fine up to 1 million; sentence up to 10 years.

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