LAWS OF KENYA. CRIMINAL PROCEDURE CODE. CHAPTER Revised Edition . Published by the National Council for Law Reporting with the. CRIMINAL PROCEDURE CODE. SUBSIDIARY LEGISLATION. List of Subsidiary Legislation. Page. 1. Public Prosecutors Appointed Under Section 85(1). Criminal Procedure Code. CAP. LAWS OF KENYA. CRIMINAL PROCEDURE CODE. CHAPTER Revised Edition . Published by the National.
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This Act may be cited as the Criminal Procedure Act. Interpretation. 2. 1) All offences under the Penal Code shall be inquired into, tried and otherwise dealt. The Kenya Criminal Procedure Code outlines the procedure of criminal trials in Kenyan tirucamilo.tk is a list of Sections and parts of the Kenya Criminal. Kenya's The Criminal Procedure Code outlines the procedure of criminal trials in Kenyan courts. App Features- -Complete The Criminal Procedure Code in.
R v Singh EA Revisionary powers should not be exercised where an appeal has been launched. Revision is sought mainly in cases wirer there are errors e.
In civil cases revision is referred to as review there is an apparent error in discovered after the trial. The High Court has jurisdiction to issue a habeas corpus order. This is like other orders in a prerogative order and is issued at he discretion of the H.
The High Court uses the same to execute control over the police and prison authorities where they hold a person without legal authority. Re Ali rehman EA An order of Habeas Corpus issued and directed at the commissioner of prisoner and eh officer in charge off Luzira prison provision in Uganda to release the applicant who was legally in prison.
Misc Criminal Appl 88 of He was arrested and held in custody with his lawyer, John Khaminwa. The wife sought an order of habeas corpus. Unfortunately, the court did not get to issue the order for he was detained. Crim App of Brought by the wife of Odinga after he was arrested before he was detained. The case was at ht height of the Mwakenya.
Karanja was arrested in Limuru disappeared for a week. The wife sought the order. Police were unable to state his whereabouts, he had been tortured and killed and then buried. The state argu4e that Habeas Corpus could not issue for the person was already dead. The judge held that Habeas corpus means produce the bodies. The CJ then decided to change the case to Akilano Akiwumi instead of Schofield the police officer who had taken him to Nakuru, tortured, killed and buried him who said that Habeas Corpus applied only in regard to living persons.
Section 84 and section 67 of constitutional. Section 84 the High court protects the fundamental rights of individuals. Enables individuals who are complaining of infringement of their rights to approach the High Court. This provision has been used to prohibit criminal proceedings which are in the opinion of court an abuse of court process. Stanley Munga Githunguri v R High Court Crim Appl of The High Court ruled that the prosecution was an abuse of he process of court and granted a prohibition order under the section 84 of the constitution.
Section 84 would be applied where judicial review cannot be done and is not available. Section 67 of the constitution places primary duty of interpreted the constitution on the High Court. This is essentially a reference by a magistrate i. Reference initially goes to the CJ who must probate on the basis of merit. If he finds merit, he should appoint a constitutional court. He has stated on a number of cases that the CJ has exclusive administrative power to examine the issue and determine whether it justifies the convening of a constitutional court.
Githungiuri v R Misc Appl of Kariuki v R H. Here the counsel for the accused had applied before the magistrates court for a number of documents to be furnished to the accused by the prosecution. Facilities to help defense included statements recorded at inquiry and documents of evidence for the trials. Established under section 64 of the constitution and is the highest court in the country. It enjoys appellate jurisdiction conferred by section 3 of the Appellate Jurisdiction Act cap 9.
It has no original jurisdiction and therefore cannot revise a decision of the high court and cannot enhance a sentence. It hears appeals from the High Court whether original or appellate. Some acts of parliament make decisions of the High Court final so no appeal in such cases can lie in the Court of Appeal.
For example appeals from court martial under the armed forces Act cap Kabilu v R — 88 KAR Applicant had been convicted by a court martial of taking part in a mutiny and sentence d to 8 years imprisonment and dismissed from the armed forces.
His appeal to the High court was dismissed and he filed a further appeal to the court of appeal which was dismissed for being incompetent for want of jurisdiction of the court of appeal. Under the Kenyan Law, enjoyment of fundamental rights and freedoms is subject to public interest. Right to liberty and movement is enshrined in section 82 of the constitution.
For criminal procedure purposes the right to liberty may be derogated: In the execution of a court sentence. In the execution of an order of the High Court and the Court of Appeal for contempt.
In the execution of a valid court order for the fulfillment of an obligation of those in law. To bring a person before the court an order.
This is where he court issues a warrant of arrest for person to be brought to court, On reasonable suspicion of a person being about or having committed a criminal offence, For those below age of majority for their education and welfare e. Purposes of preventing spread of contagious and infectious diseases. Confinement of persons suspect of being of unsound mind, people addicted to alcohol or to drugs for the purpose of their case.
When there is lawful need to generate a warrant for detention. The CPC does not define an arrest and there is no definition of this so we resort to case law as in Hussein v Chang Fook 2 WLR where Lord Devlin stated that an arrest occurs: when a police officer states u terms that he is arresting; or when an officer uses force to restrain the individual concerned; or when by words or conduct the officer makes it clear that he will use force if necessary to restrain the individual from going where he wants to go; but it does not occur where he stops an individual to make inquiries.
The provisions relating to arrest found in section 21 — 40 of the CPC. Section 21 provides that in making an arrest the arresting officer shall actually touch or confine the body of the person being arrested unless the person submits to the custody either by word or conduct. Section 24 provides that the arrested person must be subject to more restraint than necessary to prevent escape.
Once a person submits to custody of arrestor he should not be tied up. It is a requirement of a lawful arrest that the arrested be informed of his arrest.
This requirement arises from the Common Law.
In some circumstance s it is not necessary o inform the arrested person the reason for arrest for example where the arrested: person knows the nature of why he is being arrested; where he suspect runs away from his arrestors. An arrest can be effected either with or without a warrant. Where unreasonable force is used or where an arrest is unlawful note that there exists remedies in civil criminal law to redress wrongs committed against the victims.
The latter consideration means that the public interest is a factor in determining whether or not the prosecution can enter into a plea agreement with the accused.
This serves to avoid a situation whereby a person charged with multiple murders has the charges withdrawn as part of a plea agreement in which he gives evidence leading to the recovery of stolen monies.
In such a case the public interest, and for that matter justice, would be better served by the accused standing trial for the murders.
Section E e gives the complainant a say in the agreement in that his consent is required if a compensation order is included in the agreement. This is novel in that it gives a complainant active participation in the outcome of the case beyond merely testifying before the courts.
Section F provides for the accused person to be placed under oath and subjected to an exhaustive examination to determine whether he fully understands the implications of the plea agreement prior to its being recorded by the courts.
The court must also satisfy itself that the accused person was competent, of sound mind and acted voluntarily when entering into the plea agreement. It would seem that just like a plea of guilty, a plea agreement has to be totally unambiguous in order to be accepted by the courts.
It is to be noted that under the proposed amendment, Section K, an accused person may withdraw a plea of guilty pursuant to a plea agreement. It then becomes part of the court record. Rejection of Plea Agreement Section J gives the court the power to reject a plea agreement. This is to be contrasted with the power of the Attorney General to enter a nolle prosequi, upon which the proceedings are discontinued and the accused discharged in respect of the charge for which the nolle prosequi was entered.
In terms of paying better heed to the public interest and serving the interests of justice it is the plea agreement that is a more attractive feature of criminal practice since it gives the court, the final arbiters in the matter, the final say as opposed to the Attorney General. This provision of the plea agreement shall prevent its wanton abuse by those accused who have the proverbial friends in high places.
The rejection necessitates a plea of not guilty being consequently entered in the court record. Section J 2 , as proposed, provides the prosecution with the option of proceeding to try the matter afresh before another court.
This is subject to the accused person not waiving his right to have the trial proceed before another court. Once rejected there shall be no further plea negotiation in a trial relating to the same facts. Moreover, under Section J 4 there can be no appeal against, or application for a review of the order of the court rejecting the agreement. Finality of judgment Sentence passed by the court under a plea agreement subject to a plea agreement shall be final and no appeal shall lie except as to the extent or legality of the sentence imposed.
This is provided for under Section L, which also gives the Attorney General the power to apply to the court which passed the sentence to have the conviction and sentence passed pursuant to a plea agreement set aside on grounds of fraud or misrepresentation.
Exemptions Section N exempts offences under the Sexual Offences Act, from being subject to plea agreements. This owes much to the morally repugnant nature of these particular offences and is quite merited. Conclusion Plea agreements have been proven to promote efficiency and certainty of outcome in criminal proceedings, both of which are in short supply in Kenyan criminal practice.
Above all else they are an invaluable aid in fighting organized crime, on a local level it shall greatly aid the fight against corruption. Its opponents in the legal fraternity cite their greatest fear as being that plea agreements could be used to abet corruption. The written law paints a different picture as it has a system of proposed checks and balances which if respected and used forthrightly will serve to abate rather than abet corruption. Plea agreements are a notion whose time has come.
Bwaya Buluma 6. Related Papers.