FACULTY: SCHOOL OF LAW

UNIT TITLE: CRIMINAL PROCEDURE AND PRACTICE

UNIT CODE: CLS 220

SUBMITTED TO: MR. JUSTRY NYABERI

SUBMITTED ON:17TH MARCH 2022

SUBMITTED BY: GROUP 4

GROUP 4 MEMBERS

EZEKIEL WEKESA SIMIYU- 1040759

ANGELA MWIHAKI KARIMI- 1042355

VALARIE ACHIENG OGUNA- 1042569

KATHLEEN BULLE- 1040756

MERCY WANGUI- 1040753

DIANA KIMOTHO- 1042658

GLADYS MUNYUI- 1041935

PAUL KARIUKI MURIU- 104268

ABSTRACT

This paper aims at providing insight on various processes and mechanisms involved in the arrest
and control of prosecutions, it takes aim to establish the circumstances where a person can be
arrested legally and further narrows down the scenarios where the law provides that an arrest may
be undertaken without a warrant and the persons who can arrest a person without a warrant
including a police officer, an officer in charge of a station and a private person ,providing for the
rules and procedure when effecting such arrests .

This paper inspects the validity of a warrant, providing for the scenarios where a warrant is
deemed to be valid or invalid and the law to be complied with when effecting a valid arrest warrant
and addressing the issue of whether a valid arrest warrant could be effected more than once, the
specificity of a valid arrest warrant and whether they have geographical limitations. The paper then
addresses the issue of police bonds, defining and outlining the right of an accused to be granted a
police bond and the instances where this right could be curtailed by looking at the provisions of
statutes and renowned precedents by reputable courts and tribunals.

The paper gives a brief description on Nolle prosequi, it examines the use of such discretion, the
persons who are empowered to exercise such discretion and to whom they can delegate it to under
the present constitution and the independent constitution, examining the instances which may
necessitate a nolle prosequi. Withdrawals are also examined by this paper, It discusses the
difference between a withdrawal and a dismissal, the forms that a withdrawal can take and the
instances when withdrawals may lead to an acquittal and when a case may be said to have been
withdrawn and the criteria that a complainant has to meet in order to satisfy the court to permit a
withdrawal, the paper goes ahead to address failure to adduce evidence on part of the prosecution
and the accused and the legal repercussions thereof .

Finally, the paper addresses declarations and injunctions, giving the definition of such orders and
what sets them apart, it analyzes the case laws and statutes which provide for the orders and the
scenarios where the respective orders may be issued together with the requirements that must be
met in order for such orders to be issued by the court and what category of persons may seek such
orders.
Contents
1.0 INTRODUCTION .................................................................................................................... 1
2.0 ARREST WITHOUT A WARRANT ...................................................................................... 1
2.1 Police officer ......................................................................................................................... 2
2.2 Officer in charge of a police station ...................................................................................... 3
2.3 Private person ........................................................................................................................ 3
3.0 VALIDITY OF A WARRANT ................................................................................................ 3
4.0 RELEASE ON POLICE BOND ............................................................................................... 5
5.0 NOLLE PROSEQUI ................................................................................................................. 6
6.0 WITHDRAWALS .................................................................................................................... 8
6.1 The defenses of abandonment and withdrawal ..................................................................... 9
7.0 FAILURE TO OFFER EVIDENCE ....................................................................................... 10
8.0 DECLARATIONS AND INJUNCTIONS ............................................................................. 11
9.0 CONCLUSION ....................................................................................................................... 12
10.0 BIBLIOGRAPHY ................................................................................................................. 13
1.0 INTRODUCTION
The arrest and control of prosecution is a process that entails many legal rights, the Constitution
of Kenya, the Kenyan legislature and International statutes have implemented many mechanisms
to prevent the infringement of this rights by putting in place procedural and substantive legislations
to regulate the manner in which the process is conducted, it is therefore necessary to examine in
depth this processes involved in the arrest and control of warrants, the rights, powers, discretion
that accrue to persons and organs involved in such processes and legislations that regulate the
process and the people involved in it.

2.0 ARREST WITHOUT A WARRANT

A person is arrested to be brought before a court:
• In execution of an order of a court.
• Upon reasonable suspicion to have committed an offence under the laws of Kenya.
Criminal proceedings can be instituted by three possibilities:
• By a police officer bringing a person arrested – with or without a warrant – before a Magistrate
upon a charge.
• By a public prosecutor or a police officer laying a charge against a person before a Magistrate
and requesting a warrant of arrest or a summons;
• By any other person who makes a complaint and applies for the issue of a warrant of arrest or a
summons because she/he has reasonable and probable causes to believe an offence has been
committed.
Section 129-states that a police officer without a warrant may arrest any person he suspects to have
committed a crime, any person who has escaped from lawful custody, suspected of having
committed an offence, suspected of being a deserter from the Armed Force.
Section 302 -states that an officer in charge of a police station may in the same manner arrest or
cause to be arrested—
(a) Any person found taking precautions to conceal his presence within the limits of the station
under circumstances which afford reason to believe that he is taking those precautions with a
view to committing a cognizable offence. In Republic v Hussein1, a murder was held to be a
cognizable offence therefore the officer could arrest without a warrant.

1
[1990] KLR 497

1
Section 32 – When a person who in the presence of a police officer has committed or has been
accused of committing a non-cognizable offence refused on the demand of the officer to give his
name and residence, or gives a name or residence which the officer has reason to believe to be
false, he may be arrested by the officer in order that his name or residence may be ascertained. The
police can charge one for giving false information or failing to cooperate.
Section 33- A police officer making an arrest - this means that if a person has been arrested without
a warrant of arrest, then they should take the person to a police station. This usually happens mostly
in traffic cases where one can be arrested and taken direct to the court. In most cases where
evidence is required the police must take one to police station for proper investigations.
Section 39-A magistrate may at any time arrest or direct the arrest in the presence, within the local
limits of his jurisdiction, of any person for whose arrest he is competent at the time and in the
circumstances to issue a warrant. When magistrates effect an arrest they have judicial immunity
and thus should be careful before exercising these powers, it is important that they do not violate
the rights of citizens by arresting people simply because they have these powers. It is in rare
circumstances that magistrates effect arrests.
2.1 Police officer
Any police officer may – without an order from a magistrate and without a warrant – arrest any
person who:
i. Any person whom a police officer suspects upon reasonable grounds of having
committed a cognizable offence or nuisances and offences against health and
convenience;
ii. Any person who commits a breach of the peace in the presence of a police office
iii. Any person who obstructs a police officer while in the execution of her/his duty.
iv. Any person who has escaped or attempts to escape from lawful custody.
v. Any person whom a police officer suspects upon reasonable grounds of being a
deserter from any armed forces.
vi. Any person whom a police officer finds during the night and whom she/he suspects
upon reasonable grounds of having committed or being about to commit a felony.
vii. Any person whom a police officer suspects of having been concerned in any act
committed outside Kenya.
viii. Any person having in her/his possession – without lawful excuse – any implement of
housebreaking;
ix. Any person for whom a police officer has reasonable cause to believe a warrant of
arrest has been issued.
x. Any person in whose possession anything is found which may reasonably be suspected
to be stolen property or who may reasonably be suspected of having committed an
offence with reference to that thing.
xi. Any person who in the presence of a police officer has committed or has been accused
of committing a non-cognizable offence refuses on the demand of the officer to give
her/his true name and residence.

2
2.2 Officer in charge of a police station
Any officer in charge of a police station may – without an order from a magistrate and without a
warrant – arrest or cause to be arrested.2
Any person found taking precautions to conceal her/his presence within the limits of that station
under circumstances which afford reason to believe that she/he is taking the precautions with a
view to committing a cognizable offence;
Any person within the limits of that station who has no ostensible means of subsistence or who
cannot give a satisfactory account of her/himself;
Any person who is by repute an habitual robber, housebreaker or thief, or an habitual receiver of
stolen property knowing it to be stolen, or who by repute habitually commits extortion habitually
puts or attempts to put persons in fear of injury possession of any implement for housebreaking.
An officer in charge of a police station may discharge a person arrested without a warrant – after
due police inquiry – when insufficient evidence is disclosed on which to proceed with a charge.
Person in charge of lawful custody. The person in charge of lawful custody of a person arrested
may rearrests that escaped or rescued person from her/his custody.
2.3 Private person
Any private person may arrest any person:
Who in her/his view commits a cognizable offence?
Whom she/he reasonably suspects of having committed a felony.
An owner of the property or her/his servants or person she/he authorized may arrest – without a
warrant – a person found committing an offence involving injury to her/his property.

3.0 VALIDITY OF A WARRANT

An arrest warrant is a written document issued by court to a specific person to arrest an accused
person in relation to a crime committed. Section 102 of the Criminal Procedure Code provides that
the warrant of arrest should be in writing, signed by magistrate/judge and bear the seal of the court.
Is issued where criminal proceedings are commenced by police officer or public prosecutor first
laying a charge in court by a private complainant. It is also issued for people who have been bonded
but fail to turn up to give evidence and for accused people who have escaped arrest.
Contents of a valid warrant
a) Must bear signature of judge issuing it.
b) Must bear the seal of the court.
c) Must bear name of person to whom it is directed.
d) Must state briefly the charge against the suspect and give a description of his details.

2
National Police Act

3
 e) Must order person to whom it is directed to apprehend the subject.
f) Must order person to be brought before court of competent jurisdiction.
Once issued, the warrant is valid and remains in effect until it has been executed or cancelled by
the court that issued it. Any irregularities or defects in a warrant, be they in form or substance do
not affect validity of proceedings. Casing point is James Maina Njuguna V Republic3.The appellant
had been charged of being involved in robbery with violence. The appellant lodged an appeal to
overturn his conviction and stated that his mode of arrest had no nexus to the crime. The learned
magistrate quashed conviction of appellant not on claims of the warrant but there was insufficient
evidence to convict the appellant. Court held that there should have been sufficient corroboration
and relying only on complainant’s recognition of the appellant was insufficient due to many
factors.
The Criminal Procedure Code has no provisions on whether a warrant is valid if it is used more
than once. However, in Dickenson V Brown4, the court of King’s Bench doubted legality of a
second arrest of a plaintiff upon a warrant which had been used to effect an earlier arrest. The court
held that it would amount to an abuse of the instrumentality of an arrest warrant.
An arrest warrant is usually directed to a particular officer or group of officers. However, where
court requires immediate execution and no police officer is available the warrant may be directed
to any person who shall execute it. A warrant directed at a police officer is transferrable for
execution to another officer provided the officer to whom it is directed or endorsed, endorses it to
the next officer. The next officer is under a duty to notify subject of the substance of the warrant
and the warrant should the subject so require then arrest and produce him before court Section 105
of the Criminal Procedure Code states that a warrant may be directed to a land holder, farmer or
manager of land to arrest an accused person hiding on his property. When the suspect is caught,
he shall be handed over to a police officer who shall cause him to appear before a court of
competent jurisdiction unless the subject gives security5.
A warrant of arrest may be executed at any place in Kenya. Where it is to be executed outside the
local limits of jurisdiction of court that issued it, the court may forward it to a magistrate in whose
local limits of jurisdiction is to be executed. The receiving magistrate will then endorse it and cause
it to be executed as if he issued it himself. Where a police officer receives a warrant directing him
to execute it outside the limits of his jurisdiction, he must take it to the magistrate in whose
jurisdiction it is to be executed. The latter magistrate endorses his name on the warrant. This
amount to sufficient authority and local officers may provide any assistance in executing the arrest.
If the court issuing the warrant so directs by endorsement on the warrant, the subject thereof may
be released if he executes bond with sufficient sureties of his attendance. The option of granting
bond is however not applicable to cases of murder, treason or robbery with violence.
The contents of an endorsement include: the number of sureties, the amount in which they and the
subject are to be bound and the time at which the subject is to attend before court. The officer may
however execute warrant without endorsement if he believes that any delay may lead to frustration.

3
Civil appeal 232 of 2005 eKLR 2
4
https://casetext.com>courtof appeal
5
Criminal Procedure Code

4
Once the person is arrested, he shall be taken before a magistrate in the locality unless the court
that issued warrant is within 20 miles of the place of arrest
In executing a valid arrest warrant, police officers have to comply with written law such as the
constitution of Kenya 2010. Article 49 provides for the rights of arrested persons. An arrested
person has the right to be informed promptly in a language that the person understands of the
reason for the arrest, right to remain silent and the consequences of not remaining silent 6. Such
rights as provided should be exercised during effectual arrest. Police are obliged to arrest law
breakers as they have a duty to maintain law and public order.

4.0 RELEASE ON POLICE BOND

Once a person is arrested by the police for breaking the law, they may be released until the police
has made its findings. The guarantee that the person arrested will turn up when required to do so
by the police is known as a police bond7.
In general terms a bail/bond is an agreement between the accused (and his sureties as the case
may be) and the court and that the accused will pay a certain sum of money fixed by the court
should he fail to attend his trial8.
The right of an accused person to be presumed innocent, article50(2) of the constitution provides
that an arrested person has the right to be released on bond or bail as read with article 49(1) of the
constitution of Kenya, which gives an arrested person the right “to be released on bond or bail, on
reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be
released.”
The purpose of granting the bonds is to ensure that the accused persons do not serve pre-trial
custody/sentence as per the National police service act of Kenya (2012), section (53) gives the
police service power to require a bond to secure the accused’s court attendance. The police officer
investigating the alleged offence may require any person to execute a bond in such sum and in
such form as may be required to the condition that the person arrested shall notably attend court if
and when required to do so.9 The criminal procedure code, ensures that other than the person
accused of murder, treason, robbery with violence, attempted robbery with violence and any
related offence, is arrested or detained without warrant by a police officer in charge of the police
station, then the person may be granted a bond10.In the case of R v Peter Kariuki11, the application
for bail was refused, because the accused was charged with serious allegations, he had informed
the manager of the Egyptian Airline in Nairobi that their aircraft would be blown up by the
engineering section of the East African Airways after take-off. The information given was false

6
S 49[1] Constitution of Kenya
7
http://www.jsc.go.ug/content
8
Douglas Brown, Criminal procedures in Uganda and Kenya, 1970, (Sweet and Maxwell, London) [2nd Ed]
9
National police service act CAP 84
10
Criminal procedure code, section 123
11
Case reported in Sunday Nation Jan. 4, 1976 at p.

5
and the application for bail was refused since they were serious allegations that scared the
passengers on board.
As per the National police service bail and bond charter, the police service have the responsibility
to take into account some of the following policies12;
a) They are to inform the suspects the reason for their arrest, offence or offences for which they
are charged
b) They are to inform suspects that they have a right to be released on bail on reasonable terms.
In addition, they are to inform the arrested persons that they have a right to be issued with an
official receipt upon paying cash bail
c) They are also to inform the suspects of the reasons for the denial of bail or bond.
d) In granting the bond, the police officer may attach such conditions to bail or bond as will be
necessary to prevent the suspect from failing to surrender to custody, committing an offence
while on bail, interfering with witnesses or obstructing the course of justice
e) They are also to refund the full cash bail amount if any was paid, once no charge is preferred
against the accused, or surrender the accused person to court for the first court appearance.

If the person released on the bond fails to appear in court, the police officer in charge of the
police station should apply to the courts for a warrant of arrest. The courts may either order
for the cash bail to be forfeited if there is sufficient ground to enable the forfeiture or retain it
on court deposit until and when the accused person appears. If the person arrested violates
the bond terms, the police officers can re-arrest the person, take him or her to the police station,
and take them to court. It is also important to note that that the person released on bond can
only be required to appear in court on the specified date and not the police station or any other
place.13

5.0 NOLLE PROSEQUI

A Nolle Prosequi is a statement that the Republic intends to discontinue the proceedings and it is
entered by the Director of Public Prosecutions. In the Old Constitution, the powers to terminate
criminal proceedings by entering a nolle prosequi was vested in the Attorney General. According
to section 82 of the Criminal Procedure Code, the Director of Public Prosecution may enter a nolle
prosequi at any stage of the trial before the verdict or the judgement. The Director of Public
Prosecutions shall enter a nolle prosequi by stating in court or by informing the court in writing
that the Republic intends that the proceedings should not continue. Previously, when a nolle
Prosequi was entered, the accused was discharged in respect of the charge to which the nolle
prosequi is entered. Under Article 157 (7) of the New Constitution, the defendant shall be acquitted
if there is a discontinuance of proceedings after the close of the prosecution’s case.
The Director of Public Prosecution has the discretion to enter a nolle prosequi to either some
courts, some of the accused persons or both. The Director of Public Prosecution may enter a nolle
prosequi due to the following reasons:

12
mandate/bail-and-bond-policy-guidelines/622-4-bail-and-bond-decision-making
13
Ibid

6
 1. The need to screen out trivial cases.
2. Due to plea negotiations.
3. Due to insufficient or inadmissible evidence to support the conviction of the accused.
A nolle Prosequi was once a formidable tool that could be exercised by the State in criminal
proceedings but that is no more, it is now a blunt weapon. In Rupert Nderitu and others V R14, the
Attorney General entered a nolle prosequi after the accused had been put on their defense with the
result that the accused was discharged. The accused was re-arrested and charged with the same
offence. The accused person challenged this in the High Court as a constitutional issue arguing
that the discharge amounted to an acquittal and therefore they were open to use the defence of
autrefois acquit. The court refused to accept this argument and held that under section 82(1) the
Attorney General is empowered to enter a nolle prosequi at any stage before the judgement is
pronounced and his action is not subject to the provisions of section 87 of the Criminal Procedure
Code. The position would have been different if the mode of withdrawal was with the leave of the
court in which event the accused persons would be entitled to an acquittal.
In the case of Mwau V Republic 1985] 15, it was held that the power of the Attorney General to
enter a nolle prosequi was vested in him to the exclusion of any other authority. His powers
however, can be delegated under section 27(6) of the former constitution. According to Section 83
of the Criminal Procedure Code, the Attorney General can delegate this power to designated
officers in writing. But this power is vested in the Director of Public Prosecution under Article
157(6) and may be exercised in person or by subordinate officers acting in accordance with general
or special instructions.
The High Court before the adoption of a new constitution has however held that pursuant to section
123 (8) of the Old Constitution, that the court is entitled to know the reasons why an Attorney
General or his agent seeks to enter a nolle prosequi. This was the case in Crispus Karanja Njogu
V A.G16 in which the court held that The Court further held that a subordinate Court has
jurisdiction to entertain a Nolle prosequi after it has rejected an application by the prosecution to
withdraw the case. In Alielo V Republic [2004] 17, the court held that it had to examine the
circumstance surrounding the entry of a nolle prosequi in order to guide the court to grant it or
refuse the declaration.
In the subordinate courts however, the trial Magistrate was not entitled to question the discretion
of the Attorney General to enter a nolle prosequi.
In Republic v Adan Keynan Wehliye [2005]18 the High Court Constitutional Bench quashed a nolle
prosequi entered by the Attorney General after 11 witness out of the 40 witnesses had testified.
The court held that entry of a nolle prosequi at that stage was oppressive, unreasonable and
capricious and was prejudicial to the trial rights of the accused.
A nolle prosequi does not preclude fresh information in respect of the same charge. This is because
termination of criminal proceedings by way of nolle prosequi of any person in a trial before a

14
Criminal Appeal No. 319 of 1985
15
KLR 748
16
High Court Criminal Application No 39 of2000
17
2 KLR 333
18
1 KLR 837.

7
subordinate court, leads to discharge of the accused. The discharge however does not bar
institution of new charges against the accused based on the same facts.
In Alielo [supra], the court formulated guiding principles that would guide it in deciding whether
an accused person will suffer any prejudice if the termination of a case is permitted with a view of
freshly charging him. These principles would apply in every case where the Director of Public
Prosecutions seeks to terminate a prosecution:
a. Whether basic rights will be violated or are likely to be violated in a fresh trial after allowing
the nolle prosequi to take effect.
b. Whether the basic purpose of our criminal justice system which is predominantly to determine
the guilt or innocence of the applicant is to be used towards the achievement of any different
purpose and;
c. Whether the intended fresh prosecution is called for merely to punish the applicant and thus
oppress him through the use of the nolle prosequi.
A nolle prosequi can only be entered in respect to a living person. This was the holding in the
Tanzanian case of Msiwa and another v Republic[1999] 19. In this case the accused were tried and
convicted of intentional killing not amounting to murder. They appealed and argued that the
accused was killed mistakenly while they attempted to apprehend him in the reasonable belief that
he was an armed robber. Four accused persons were acquitted including one person who had
succumbed in custody in which his case was discharged through an entry of a nolle prosequi. The
Court of Appeal in Tanzania held that a nolle prosequi can only be entered in respect to a living
person and thus a dead person cannot be discharged.
However, there is no specific provision in statute dealing with accused persons who die before
their cases are completed, the practice under common law should be considered, wherein the case
against the dead accused abates.

6.0 WITHDRAWALS
Withdrawal refers to leaving a conspiracy before the actual crime is committed, withdrawing
from prosecution of trials before subordinate courts is also undertaken by a prosecutor with the
consent of the court or on the directions of the Attorney-General at any stage of the trial however
should be before judgment is pronounced.
According to section 87 of the criminal procedure code, it states that withdrawal from prosecution
in trials before subordinate courts, in a trial before subordinate courts a public prosecutor may with
the consent of the court or on the instructions of the Director of Public Prosecutions at any time of
the judgment is pronounced, withdraw from the prosecution of any person,
a) There is a failure to produce the police file on the case and the magistrate issues a last
adjournment.
b) The accused person has absconded court and the cash bail has been forfeited.

19
2 EA 190

8
 c) The prosecution requests the subordinate court to leave standing warrants of arrest in
instances where the accused person has absconded.
Section 202 of the Criminal Procedure Code provides for the non-appearance of the complainant
at hearing. If, in a case which a subordinate court has jurisdiction to hear and determine, the
accused person appears in obedience to the summons served upon him at the time and place
appointed in the summons for the hearing of the case, or is brought before the court under arrest,
then, if the complainant, having had notice of the time and place appointed for the hearing of the
charge, does not appear, the court shall thereupon acquit the accused, unless for some reason it
thinks it proper to adjourn the hearing of the case until some other date, upon such terms as it
thinks fit, in which event it may, pending the adjourned hearing, either admit the accused to bail
or remand him to prison, or take security for his appearance as the court thinks fit.
Section 204 of the Criminal Procedure Code provides for the withdrawal of a complaint by the
complainant. If a complainant, at any time before a final order is passed in a case under this part
of the Act, satisfies the court that there are sufficient grounds for permitting him to withdraw his
complaint, the court may permit him to withdraw it and shall thereupon acquit the accused.
Charges my either be withdrawn or dismissed through lack of evidence, although such decisions
are presented in the literature as being primarily within the prosecution’s discretion, the
prosecutor’s decision to proceed is limited by the willingness of the victims and witnesses to
cooperate, Withdrawal takes 2 forms, initial before the suspect person has been known as upon to
form his defense in such a case, he's to be discharged however such discharge but isn't a bar to any
succeeding proceedings against the suspect on account of an equivalent facts second withdrawal
is also created once the suspect has already created his defense within which case, he's to be
acquitted. As seen in the case of Clifford Derrick Otieno vs Lucy Kabuki20 where Clifford
television lensman filed a suit against the Australopithecus afarensis Kabuki (Kenya’s current
initial Lady) alleging assault and malicious harm to property at the state Media Group’s newsroom.
However, even before the matter was entered into the court’s record, the Director of Public
Prosecutions (now deputy public prosecutor) entered a nolle prosequi below the direction of the
Attorney General. The official determined that “he feels that the ‘nolle prosequi’ goes against
public expectations and tramples on the correct of the vulnerable and hopeless within the society.
Whichever approach the court feels, it might complain concerning the circumstances of
presentation however can't ever reject a ‘nolle prosequi’. that's the law and am certain by it.
This can also be seen in the case of Seanoi Parsimei Ole Sisina & another vs the Attorney General21
where Thomas Cholmondeley was charged with the murder of a Kenya wildlife service warden at
his Roysambu Ranch but before the case could proceed to trial, the Attorney General withdrew the
murder charge sitting insufficient evidence to support and sustain the murder charge.
6.1 The defenses of abandonment and withdrawal
Abandonment and withdrawal are an affirmative criminal defense that arise or as a result when a
defendant asserts that he or she never completed, or was not involved in a crime or criminal offence
because he or she withdrew from the act prior to its happening. withdrawal is an affirmative

20
Clifford Derrick Otieno vs Lucy Kibaki
21
Seanoi Parsimei Ole Sisina & another vs Attorney General.

9
defense which means that the burden is on the defendant to show that he or she met all the
requirements for successful withdrawal from the crime.

7.0 FAILURE TO OFFER EVIDENCE

To begin with, it’s salient to understand the meaning of evidence. Evidence denotes the means by
which an alleged matter of fact, the truth of which is submitted to investigation, is proved or
disproved; and, without prejudice to the foregoing generality, includes statements by accused
persons, admissions, and observation by the court in its judicial capacity.22 Basically, evidence is
information which shows whether a fact is true or false.
Many cases are lost due to the failure to offer evidence or the lack of enough evidence. In the event
where at the close of the evidence in the support of a charge and after hearing the argument that
the advocate of the accused has put forward, if the court sees that there is no sufficient evidence
against the accused that requires him to make a defence the court will acquit him of the charges.23
There are instances where the witnesses in a particular case are bonded by the court in order to
adduce particular evidence, and if they fail to do so they are issued with a warrant of arrest.
According to Section 215, the court having heard both the complainant and the accused person and
their witnesses and evidence shall either convict the accused and passed sentence upon or make an
order against him according to law, or shall acquit him.24 The only reason after the close of the
cases that the accused will be acquitted is if the prosecution failed to adduce enough evidence
against the accused. This is reinforced by the fact that the standard of proof in criminal cases is
beyond reasonable doubt meaning that the evidence adduced is of high standard.
There are number of cases in the Kenyan courts where the failure to offer evidence has led to the
acquittal of the accused. In the case of Republic v Martha Wambui Ngatia,25 where the witnesses
of the prosecutions (policemen) failed to appear in court claiming that they had obligations yet
there was no emergency that would warrant them to be pulled out of the case. Due to the lack of
witnesses, there was no evidence admitted against the accused, hence she was acquitted of the
charges. This further reemphasizes that if there is no evidence the charges may either be withdrawn
or dismissed.
This was also seconded in the case of John Wambua Kiiti v Republic26, where the accused came
for the hearing of the case and the prosecution’s witness had not shown up to the court and the
prosecution did not have a reason as to why, therefore the magistrate acquitted the accused since
there was no evidence to be used.
In the case of Hillary Nyongesa v Republic27, where the appellant was accused of the defilement
of a fifteen-year-old girl and filed an appeal against his conviction, because the prosecution had
not convinced the court that the girl who was defiled was fifteen years old since there was no birth

22
Section 3(1) Evidence Act, Cap 80 Laws of Kenya
23
Section 210, Criminal Procedure Code
24
Section 215, Criminal Procedure Code
25
Republic v Martha Wambui Ngatia [2019] eKLR
26
John Wambua Kiiti v Republic [1992] eKLR
27
Hillary Nyongesa v Republic [2010] eKLR

10
certificate and medical evidence to prove it, this led to conviction being quashed because sexual
offences heavily rely on age for sentencing. The evidence put forward was insufficient and could
not reach the standard of beyond reasonable doubt.

8.0 DECLARATIONS AND INJUNCTIONS

A declaratory order declares rights between parties in a dispute. A declaratory order is
issued following a petition before the Court by an interested person or another one acting on his
behalf. An injunction on the other hand is a Court order requiring a person to do or cease to do a
specific action which goes against another’s rights.
Article 23 (1) of the Constitution of Kenya 2010, gives the High Court jurisdiction to
determine applications for redress of a denial, violation or infringement of or threat to a right or
fundamental freedom in the Bill of Rights. In Article 23 (2) parliament is entrusted with the
responsibility of enacting legislation to give original jurisdiction in appropriate cases to
subordinate Courts to hear and determine applications for redress of a denial, violation or
infringement of or threat to, a right or fundamental freedom in the Bill of Rights.
In practice, all crimes are handled by the magistrate’s Courts in the first instance, with the
exception of the offences reserved to the Hight Court, namely murder, treason, genocide, war
crimes, and crimes against humanity.28 The magistrate Court has limited jurisdiction to hear and
determine claims over denial, violation, infringement or threat to the fundamental freedoms.29
Such claims may arise in a criminal proceeding and the Court may give inter alia a declaratory
order or issue an injunction or make a conservatory order.30 The Constitution on Article 23(3)(a)
and (b) specifically provides for declarations and injunctions.
By way of an example, it is the right of an arrested person to be produced in Court within
twenty-four hours upon arrest, or if that is impossible, by the end of the next Court working day.
Should the person be detained beyond the time limit, the person can petition for an appropriate
declaration of his fundamental right and award of damages.31 Such power is given to the High
Court, under the enforcement jurisdiction, as provided under Article 165(3)(b) of the Constitution.
The High Court is the predominant locus in the enforcement of fundamental rights and freedoms.
If such a matter is raised in the lower Courts, the magistrate must refer the matter to the High Court
and apply the decision as issued by the High Court. However, if the matter is frivolous and
vexatious, the lower Court does not have to refer the matter. We shall illustrate below by way of a
few case laws.
In Mwilu v Judicial service commission & 2 others,32 the Petitioner was arrested on August
28, 2018. The following day she was charged before the Chief Magistrate Court at Nairobi for
abuse of office, obtaining a security by false pretences, unlawful failure to pay taxes and forgery.
She challenged her prosecution. She argued that the police violated her privacy and did not follow

28
Section 6 of the Magistrates Courts Act
29
Section 8(1) of the Magistrates Courts Act
30
Judiciary Criminal Procedure Bench Book, p. 19-20, in
http://kenyalaw.org/kl/fileadmin/pdfdownloads/JudiciaryCriminalProcedureBenchBook.pdf
31
Patrick Kiage, Essentials of Criminal Procedure in Kenya, 2013, p. 46.
32
Mwilu V Judicial Service Commission & 2 Others; Prosecutions & Another (Interested Parties) (Petition E245 Of
2020) [2021] KEHC 245 (KLR) (Constitutional and Human Rights) (12 November  2021) (Judgment)

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the right procedure in gathering evidence, and misused the search warrant. The Prosecution had
an order to investigate her accounts in Kenya Commercial Bank but went on to use the same order
to investigate her accounts in the Imperial Bank. She obtained conservatory orders staying her
prosecution.
In Julius Muriithi Kibanya v chief Magistrate’s Court Kerugoya & 4 others,33 the applicant
prayed for an injunction restraining the third applicant who were Auctioneers from selling a certain
piece of land pending the hearing and determination of the present case. He averred that he had
been illegally arrested and accused of standing surety for the second respondent and failing to
produce him in Court. He relied on Article 50 of the Constitution but without specifying any sub
article to which he based his claim. He also relied on Section 356 (1) & (2) of the Criminal
Procedure Code, which deals with stay of execution pending an appeal. This provision was found
to be irrelevant because he had not been convicted. It was held that he had been accorded a fair
trial and that due process had been followed. The application failed as lacking merit.
That position, that a claim for redress must be sufficiently detailed was confirmed in a later
judgment. In the case of Anna Rita Njeri v Republic34, it was held that if a person wants to seek
redress from the High Court in a matter that involves a reference to the Constitution, such person
is required to set out within reasonable limits the complaint itself, the provisions he alleges to have
been denied, violated, infringed or threatened, as well as the manner in which the infringement
occurred.
The duty to raise the claim is not exclusively on the accused, but may fall on any other
person or body acting on his behalf. In the case of Murunga v Republic,35 it was held that it was
upon the prosecution to raise the issue about the unlawful detention in the custody of the police.
The Court rejected the proposition that the burden can only be discharged if the accused raises the
issue. It went further to hold that if the prosecution does not offer any explanations, then the Court
as the ultimate enforcer of fundamental rights must raise the issue.

9.0 CONCLUSION
As discussed above by the paper it can be seen that the procedure, legal rights, powers, duties and
obligations laid down by the law in co-relation to the procedures involved in the arrest and control of
prosecutions are very essential in achieving justice for all the parties involved, in the most efficient
manner possible and without infringement of the rights of others.

33
Julius Muriithi Kibanya v Chief Magistrate’s Court Kerugoya & 4 others [2021] e KLR, Misc Criminal
application 21 of 2018.
34
[1980] 1KLR ,272
35
[2008] 1 KLR 1

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10.0 BIBLIOGRAPHY
PRIMARY SOURCES

List of cases

Anna Rita Njeri v Republic

Alielo V Republic
Derrick Otieno vs Lucy Kibaki
Clifford Dickenson V Brown
Crispus Karanja Njogu V A.G
Hillary Nyongesa v Republic
James Maina Njuguna V Republic
John Wambua Kiiti v Republic
Julius Muriithi Kibanya v Chief Magistrate’s Court Kerugoya & 4 others
Murunga v Republic
Mwau V Republic
Mwilu v Judicial service commission & 2 others
Republic v Adan Keynan Wehliye
Republic v Hussein
Republic v Martha Wambui Ngatia
Rupert Nderitu and others v R
Seanoi Parsimei Ole Sisina & another vs the Attorney General

Legislation
Constitution of Kenya 2010
Criminal Procedure Code
Evidence Act Cap 80 Laws of Kenya
Magistrates Courts Act
National police service act CAP 84

Books
Judiciary Criminal Procedure Bench Book
Douglas Brown, Criminal procedures in Uganda and Kenya, 1970, (Sweet and Maxwell, London)
[2nd Ed]
Kiage Patrick, Essentials of Criminal Procedure in Kenya [2013]

SECONDARY SOURCES: ONLINE RESOURCES

https://casetext.com>courtof appeal
http://www.jsc.go.ug/content
mandate/bail-and-bond-policy-guidelines/622-4-bail-and-bond-decision-making

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