RDL 215/RCL 203

CRIMINAL LAW AND PROCEDURE

PREPARED BY;

MR. MR. EGIBERT A. BONDO

TOPIC ELEVEN: CONDUCT OF TRIAL

Explaining and understanding the charge

In the course of any criminal proceedings, it is important that the accused person understands the
nature of the charge against him. In this regard, the charge should be stated in ordinary language
and the court should assist, as required, the accused person by explaining the nature of the charge
and of the proceedings.

Notification of guilty plea

Plea is a reply to the charge about its truthfulness. S. 228 (1) CPA requires the court to state the
charge to the accused person and ask him to plead thereto. The accused then, subject to the
general right to remain silent, will have to plead either:
a) Guilty as per s. 228(2) CPA or
b) Not guilty as per s. 228 (3) CPA or
c) Autrefois convict under s. 228 (5) CPA or
d) Autrefois acquit under s. 228 (5) (a) (i)CPA or
e) Pardon as per s. 228 (5) (a)(ii)CPA
In any case and subject to some statutory exceptions, the plea must be personal, free, voluntary
and by a fit person. It is personal because nobody is allowed to plead on behalf of another
(including an advocate), unless it is a case against a corporate bodies.

The attendance of the accused person is not always required for the resolution of the case. A
person charged with a low level offence, for example a warrant offence punishable by a fine or

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imprisonment not exceeding 6 months, may in writing or through an advocate plead guilty to the
charge. This applies whether the person has been summonsed or not (s. 193(1) CPA).

Any person charged with a non-warrant, arrestable offence, other than one punishable by death
or life imprisonment, who intends to plead guilty to the charge and wishes to have the case dealt
with immediately may give written notice to the magistrate before whom the case will be heard
(s. 194(2) CPA). If when brought before the magistrate, the accused person does not plead guilty
to the charge or pleads guilty to only a part of the charge, the magistrate shall not accept such an
equivocal plea. The plea shall be vacated and the proceedings shall continue in accordance with
the provisions below (s.194(3) CPA).

Entering a plea
The Court shall state the charge to the accused person and he or she shall be asked whether the
allegation is admitted or denied (s. 228(1) CPA). If the allegation is admitted, the admission shall
be recorded as nearly as possible in the words used by the accused. The magistrate shall then
convict him and pass sentence unless there appears to be sufficient cause to the contrary (s.
228(2) CPA). If the accused refuses to enter a plea, the court shall order a plea of ‘not guilty’ to
be recorded (s. 228(4) CPA) and the case shall proceed to trial. If the accused person indicates
that he has previously been tried and acquitted of the same offence or has been pardoned for the
offence, the court shall make enquiries as to the truth of that indication. If the court finds such a
plea to be false, the person will be required to plead to the charge (s. 228(5) CPA).

Accelerated Trial / The Preliminary Hearing

Where a person is legally represented and pleads not guilty, the court shall, as soon as possible
hold a preliminary hearing in open court in the presence of the accused, his advocate and the
public prosecutor. The aim of the preliminary hearing is to promote a fair and expeditious trial
by identifying matters that are not in dispute between the parties (s. 192(1) CPA).
At the conclusion of a preliminary hearing, the court will draft a memorandum of matters agreed
between the parties. This memorandum will be read and explained to the accused. The accused,
his advocate and the public prosecutor should then sign the memorandum (s. 192(3) CPA). Facts
admitted or agreed in the memorandum are deemed to have been proven. However, if it is in the

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interest of justice, the court can direct a fact previously admitted in the memorandum to be
proved (s. 192(4) CPA).

The Trial
Where possible the trial should proceed immediately after the preliminary hearing. However, if
an adjournment is required (for example, due to the absence of witnesses) it is not necessary for
the magistrate who heard the preliminary hearing to hear the trial (s. 192(5) CPA). Where a not
guilty plea has been entered by the accused or on his behalf, the prosecutor shall open the case
against the accused, call witnesses and adduce evidence in support of the allegation (s. 229(1)
CPA).

Examination of witnesses
The accused or his advocate has the right to question any witness called by the prosecutor.
Where the accused is not legally represented, the court shall ask the accused whether he wishes
to pose any question or make any statement in response to a witnesses evidence. Where a
question or questions are posed to a witness, the magistrate shall record the answer(s). Where a
statement is made by the accused, the magistrates may pose a question to the witness which
arises out of the statement – where it is in the interests of the accused (s. 229(2) and (3) CPA).
Any court may, at any stage of the proceedings:
a) summon any person as a witness;
b) examine any person in attendance, although not summonsed as a witness; and/or
c) recall and reexamine any person already examined if it appears to be in the interests of
justice to do so (s. 195(1) CPA).

The prosecutor and the accused or his advocate has the right to cross-examine any such person
(s. 195(2) CPA). Every witness shall be examined upon oath or affirmation in accordance with
the provisions of the Oaths (Judicial Proceedings) and Statutory Declarations Act 1966. (s.
198(1) CPA).
Where a witness without good reason:
a) refuses to be sworn or affirmed; or
b) having been sworn or affirmed, refuses to answer any questions put to him; or

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 c) refuses to produce any document or thing which he is required to produce; or
d) refuses to sign his statement the court may adjourn for a period not exceeding 8 days and
in the mean time commit that person to prison for a specified period or until he agrees to
do what is required of him (s. 199(1) CPA). If on being brought before the court, the
person again refuses to co-operate the Court may adjourn and further commit that person
to prison, until the person consents (s. 199(2) CPA).

Commissioning the examination of a witness

If in the course of proceedings before the district magistrate or the High Court, it is apparent that
the examination of a witness is in the interests of justice, but the witness cannot attend without an
undue delay, expense or unreasonable inconvenience, the court or magistrate may commission
any magistrate within whose jurisdiction the witness resides, to take the evidence of such
witness. The magistrate receiving the commission will go to the witness or summons the witness
before him and shall take down his evidence as in the case of a trial (s. 206(1) CPA). Parties to
the proceedings may identify in writing areas of questioning for the witness which the court may
think relevant to the issue. The magistrate receiving the commission shall examine the witness
upon the issues raised (s. 207(1) CPA). Additionally, the accused (if not in custody) or his
advocate may attend in person to examine, cross-examine or re-examine the relevant witness (s.
207(2) CPA). After this process has been completed and the deposition of the witness’s evidence
is returned to the relevant Court, it shall be open for inspection by the parties and may be read in
evidence in the case by either party (s. 208(1) CPA).

The evidence of the accused

Where the accused fails to give evidence in his defence, the court may draw an inference from
his silence and the court and the prosecution may comment upon his failure to give evidence (s.
198 CPA).

Recording of Evidence
Evidence given by each witness should be written down in the language of the court, by or on
behalf of the magistrate. Normally, the evidence is recorded in a narrative form although specific

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questions and answers may be recorded (s. 210 CPA). The magistrate is also permitted to record
the manner in which the evidence is give, including any remarks by or the demeanor of the
witness (s. 212 CPA). If the offence is a minor offence under s. 213(2) (for example, an offence
punishable by imprisonment of not more than 6 months or a fine of less than 1000 shillings), the
magistrate may record only:
a) the case number;
b) the date of the offence;
c) the date of the complaint;
d) the name of the complainant;
e) the name, parentage and residence of the accused;
f) details of the offence;
g) the plea of the accused;
h) the finding and a judgment setting out the nature of any evidence heard;
i) the sentence or final order;
j) the date on which the proceedings terminated.

Procedure in trials before subordinate courts

Non-appearance of the complainant

Where the accused attends or is brought before the court for the hearing but the complainant,
having had notice of the hearing, fails to attend, the accused person is entitled to be acquitted and
the case should be dismissed. This applies unless the Court, for good reason, adjourns the
hearing to another date (s. 222 CPA). Additionally, a complainant in a minor, may satisfy the
Court at any time before the final order is passed, that there are sufficient grounds to allow him
to withdraw his complainant against any or all of the accused. In such circumstances, the accused
against whom the complaint is withdrawn is entitled to be acquitted (s. 224 CPA).

Adjournment of proceedings
S. 225 sets out the procedure to be followed in the case of an adjournment of the hearing. Subject
to the exceptions set out in s. 225(4), an adjournment should not exceed 30 days if the accused is

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on bail. If the accused is in custody and adjournment shall be for no more than 15 days. If
following a period of adjournment the accused person fails to attend Court, the proceedings may
be resumed and continued in his absence. However, if the accused is convicted in his absence,
the conviction may be set aside if:
a) the accused was absent for reasons beyond his control; and
b) he had a probable defence on merit (s. 226 CPA)
If the accused person was convicted and sentenced in absence, the sentence is deemed to
commence on the date of his apprehension (s. 226(3) CPA). The Court has an overall discretion
to adjourn further proceedings and issue a warrant to ensure the accused’s attendance (s. 227(4)
CPA). If the complainant fails to attend the adjourned hearing, the Court may dismiss the charge
and acquit the accused.

No case to answer
At the conclusion of the evidence on which the prosecution relies, the court must consider
whether there is a case to answer. In other words, if it appears to the court that the evidence does
not call for an answer from the accused, the court should dismiss the charge and acquit the
accused (s. 230).

The defence case

If, however, the evidence is such that the court is satisfied there is a case to answer, it should
again explain the substance of the charge to the accused and remind him of his right:
a) to give evidence in his own defence; and
b) call witnesses on his behalf.
The court shall then ask the accused person or his advocate whether he intends to exercise either
of those rights. If the accused indicates that he does intend to give evidence or call witnesses in
his defence, the court shall then proceed to hear the defence case (s. 231(1) CPA). If the accused
elects to give evidence in his defence, whether or not on oath or affirmation, he shall be subject
to cross-examination by the accused (s. 231(2) CPA). If the accused opts to remain silent, the
court and the prosecution are entitled to draw an adverse inference from his failure to give
evidence (s. 231(3) CPA).

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Where witnesses are able to give material evidence for the defence but are absent from court due
to no fault of the accused, the hearing may be adjourned in order to secure their attendance (s.
231(4) CPA). If, in the course of the defence case, evidence is adduced other than to the
accused’s character which might mislead the court, the prosecution may seek and the court may
grant permission to call evidence in rebuttal (s. 232 CPA).

The verdict
At the conclusion of all the evidence and submissions, the court shall either:
a) convict the accused and consider the appropriate sentence; or
b) acquit the accused; or
c) dismiss the charge under s. 38 of the Penal Code (s. 235 CPA).
Sentence
In consideration of the appropriate sentence, the court may receive and consider such evidence as
to the offence and the offender as it thinks fit (s. 236 CPA).

Offences taken into consideration

Prior to an accused person being sentenced, he may admit to the commission of other offences
and request that a resident magistrate take them into consideration when passing sentence.
Before doing so, the accused must be advised by the court, in ordinary language, that he may be
liable to a greater sentence. However, the court cannot pass a sentence in excess of the maximum
sentence which could have been imposed for the offence of which the accused was convicted (s.
237 CPA).

Time limits for trials before subordinate courts

As a general rule, proceedings before subordinate courts must be initiated within 12 months from
the time of the incident which gave rise to the charge or complaint (s. 241 CPA).

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The prosecution case
When the assessors have been chosen and the court is ready to proceed, the prosecution advocate
should:
 open the case against the accused person;
 call witnesses;
 adduce evidence in support of the charge.
No witness may be called by the prosecution unless:
 their statement formed part of the committal proceedings; or
 the prosecution has given reasonable notice in writing to the defence of their intention to
call such a witness (s. 289 CPA)

The notice should include details identifying the witness and the substance of the evidence they
will give. It is for the court to determine whether the notice given is reasonable – but no notice is
necessary where the prosecution first became aware of the witness evidence on the date the
evidence is to be given (s. 289 CPA). Witnesses called by the prosecution are liable to cross-
examination by the accused or his legal representative and to re-examination by the prosecution
(s. 290 CPA). Any statement made by the accused person in accordance with s. 246 (see above),
properly certified by the committing magistrate, may be adduced in evidence (s. 292 CPA).

No case to answer
At the close of the prosecution case, the court may be invited to consider a submission of no case
to answer. The accused is entitled to be acquitted if the evidence is so weak that, taken at it’s
highest, it could not properly found a conviction. If the court is of the view that there is a case to
answer the accused shall be informed of his right to give evidence in his own defence and to call
witnesses (s. 293 CPA).

The defence case

The accused person or his legal representative may open the defence case, identifying the facts
and law on which he intends to rely and making comments about the prosecution evidence. The
accused does not have to give evidence in his own defence but should he fail to do so, an adverse
inference may be drawn from his silence (that is, that he has no answer to the prosecution case or

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none that would withstand cross examination) (s. 293(2) CPA). It is important to note that the
accused is not automatically entitled to call witnesses other than those who were notified by him
to the magistrate during the committal proceedings. However, if a witness can give material
evidence, any subordinate court may, before or during a trial, issues a summons for the
attendance of that person (s. 295(2)

8.7.8 Conclusion of hearing

At the close of all the evidence and submissions, the judge will sum up the case for the
prosecution and defence and invite each of the assessors to state his opinion orally. If necessary,
the assessors may retire to consider their opinion and consult each other (s. 298(4) CPA). Their
opinion shall be recorded. The judge will then give judgment but in doing so is not bound by the
opinions of the assessors (s. 298 (1) and (2) CPA). If the accused is convicted, the judge will
then pass sentence.

“Quod iste et iste cur non ego”