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Criminal Procedure Notes

The document outlines key sources of criminal procedure law in Kenya, including the Constitution, legislation, and international law. It discusses several rights granted to arrested and detained persons under the Constitution, such as the right to information, legal representation, and a fair trial. Major legislation governing criminal procedure is the Kenyan Criminal Procedure Code. The document also notes that international law forms part of Kenyan law through treaties Kenya has ratified on human rights. It goes on to discuss the adversarial and inquisitorial legal systems of criminal proceedings used in different jurisdictions.

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92 views

Criminal Procedure Notes

The document outlines key sources of criminal procedure law in Kenya, including the Constitution, legislation, and international law. It discusses several rights granted to arrested and detained persons under the Constitution, such as the right to information, legal representation, and a fair trial. Major legislation governing criminal procedure is the Kenyan Criminal Procedure Code. The document also notes that international law forms part of Kenyan law through treaties Kenya has ratified on human rights. It goes on to discuss the adversarial and inquisitorial legal systems of criminal proceedings used in different jurisdictions.

Uploaded by

muteyobarlin
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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CRIMINAL PROCEDURE NOTES

SOURCES OF LAW ON CRIMINAL PROCEDURE IN KENYA

a)Constitution

The constitution being the supreme law of the land their legitimacy from the constitution as the
constitution provides for the rights of the arrested this rights ----

There are three rights that are provided by the Constitution;

1)The right of the arrested person under article 49.

An arrested person has the right :

(a)Right to information.It is provided that the accused must be informed in the language that they
understand of ;

 the reason for the arrest


 the right to remain silent
 the consequences of not remaining silent

In the case of Mohammed V R Justice Etiang held that where the accused person is denied the right to
information and is held in custody can apply through the writh of hapeas corpus to be brought to court
so as to be informed of the reason for his arrest in a language he understands.

(b)Right to communicate to his lawyer and or his next of kin.

(c)Right not to be compelled to confess not to admit the crime or to remain silent.

(d)Right to be held separately with the convicted persons or to be held separately from persons who are
serving sentence.

(e)Right to be brought to a court within 24 hours unless it is a public holiday or weekend.

(f)Right to first appearance.The accused person should be informed why he has been charged.

(g)Right to bail.This simply means the accused person unless there is no good reason to be released
should be released on bail or bond .—

(h)Right to be remanded in custody for an offence if the offence is punishable by a fine only or by
imprisonment for not more than six months.

2)Right to fair trial

It is under article 50 of the constitution.

It has ten rights.


a) Right to a fair public hearing before a competent court .In the case of R v NDARI 1977—it was
held that the accused person must be tried in a competent court and be infirmed of his right
before taking a plead.
b) To be presumed innocent until the contrary is proved.In the case of Mubagisu v Uganda 2003
EALR 164 it was held that the accused person is presumed innocent until proven guilty and that
his advocate should not concede the accused to ---untill he is sufficiently tried.
c) Right to be given sufficient provision on the charge.In the case of R v Augustine,it was held that
a c harge which did not mention the section of the offence is invalid.
d) Right to adequate time and facilities to bear the offence .The accused must be given enough
time and if in cell enough facility time to prepare.in the case of Abiedo v R EALR 1969 586 it was
stated that this rights must not be used to adjourn the case I ndefinitely.
e) Right to a public trial.In the case of Bifffo ---son of Mandiere v R 1960 965 .A trial was declared
annulity on the ground that part of that part of that trial was not held in public.
f) Right to a speedy trial .Right to be present at the trials unless he is precluded by the court due to
security or public order or a good reason is provided.
g) Right to legal representation by an advocate of his own choice..In the case of Rwamario v
Uganda 1986 EA the court held that the accused person has a constitutional right to be
defended by a council of his choice and the deprivation of such a right leads to –
h) Right to remain silent .The accused may c hoose to remain silent and need not testify and
cannot be compelled to adduce evidence.
i) Right to adduce evidence and challenge any evidence used against him in court .In the case of
Daniel---Criminal Appeal the court of Appeal quashed a ---

3)Rights of persons detained ,held in custody or imprisoned.

It is under article 51 .

This article also provides for the writh of hapeas corpus where a person whonis detained or held in
custody is entitled to petition for an order of hapeas corpus.

b)Legislation

By virtue of the principle of legality which is provided under---all criminal offences must be defined by
legislation this means that all offences must be statutory .If there is no offence charged by statute the
accused cannot be charged of such offence.

The ---CAP 75 ,this ACT deals with all the relevant procedures in any case of criminal law .Like the Penal
code was introduced in ---having ---

The Criminal Procedure code has been amended many times but Has improved an adversarial nature of
evidence ---which evidence can be used and which cannot be used.
c)International law

Under article 26 of the Constitution of Kenya 2010 ,International Law became part of Kenyan law
meaning there are treaties.These treaties include ;

I. Universal Declaration of Human Rights


II. Covenant on Civil and Political Rights
III. The convention against torture
IV. The convention and ---against crimes of genosite.
V. The convention on the rights of the child
VI. The convention on discrimination against women
VII. The convention against trans-National crimes
VIII. The convention against corruption
IX. The convention on narcotic drugs

A number of statutes have been directed to deal---

I. The children Act


II. The Narcotic Act
III. The Anti Corruption Act

TOPIC TWO:NATURE OF CRIMINAL PROCEEDINGS

There are broadly two legal system of criminal proceedings;

i. Adversarial system
ii. Inquisitorial System
iii. Traditional Criminal Proceedings

Adversarial system (presumed innocent untill proved guilty)

It is a system of justice where legal action is contested in court as a contest between parties and the
judge plays an impartial role as an observer.

This means the responsibility of conducting investigations and adducing evidence---falls on the parties
each party must endeavour---

The court does not undertake any investigation and it ---

The adversarial system therefore ---- by applying the rules of natural justice

This is mainly found in common wealth countries ,that is ,54 countries out of more than 200.

In the case of Johns v The National call board Lord Dening defined adversarial system as follows----
Inquisitorial system (presumed guilty till proven innocent)

Here the court is actively involved in investigating the case ,gathering the evidence ,cross examination of
witnesses and the arrival of the conclusion of judgement itself .

------the investigations.

NOTE:90% of those convicted are arrested.

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