1.

The Supreme Court of Kenya

Introduction
The Supreme Court is a fundamental creature of the Constitution of Kenya. It is the
highest court in Kenya.1 Supreme Court in general refers to the apex of the judicial
system.2 It is the Supreme Court which has the final say, in proper matters before it,
to act as the final court.3 The Supreme Court is a court of last resort and all its
decisions are binding to other courts apart from itself 4.The makers of the
constitution saw it right, to create a higher court than the court of appeal to ensure
that the new constitution was going to be well guarded. The Supreme Court in
1 Khalid Salim, A critique on the general importance rule on appeals to the Supreme
Court of Kenya.
<http://www.academia.edu/6534082/A_critique_of_the_General_Public_Importance_
Rule_on_appeals_to_the_Supreme_Court_of_Kenya > accessed 7th March 2016.

2 J.B Ojwang, Supreme Court Of Kenya: Insiders Perspective on the Emerging Groundwork
(2016) pg 1.

3 Ibid.

4 Article 163 (7) of the Constitution of Kenya.

essence therefore has a central role in the protection of the Constitution and in the
realization of its fruits so that it may inure to all within its borders. It is thus the work
of the Supreme Court to have a watchful eye over the play of the Constitution in the
fullest sense.5
Establishment
The Supreme Court is established under Article 163 of the Constitution of Kenya. It
is the final arbiter and interpreter of the Constitution. 6

Composition of the Court

The court is composed of 7 judges who are referred to as the judges of the Supreme
Court. The court shall be headed by the Chief Justice who shall be the President of
the Supreme Court.7 The deputy chief Justice shall deputise the Chief Justice and be
the vice president of the court,8 and five other judges.9
The order of precedence of the judges of the Supreme court is that, The Chief
Justice will be the President and shall have precedence over the other judges, then
the deputy Chief Justice shall follow, the other judges of the Supreme Court shall
take precedence among themselves, according to the dates on which they
5 Raila Odinga v Independent Electoral and Boundaries Commission, Petition No 5 of
2013, para 301.

6 <http://www.judiciary.go.ke/portal/page/supreme-court> accessed 7th March 2016.

7 Article 163 (1) (a) of the Constitution of Kenya.

respectively took office as judges of the Supreme Court. If two or more judges took
office on the same day then precedence among them shall be determined according
to the professional seniority with the most senior taking precedence. 10
It is important to note that at some point the Supreme Court may have more than 7
judges as provided by Article 163 of the Constitution of Kenya. This is by dint of
Article 167 (3-4) of the Constitution which provides that where the Chief Justices
term of office expires before he retires the chief justice may continue as a judge of
the Supreme Court. A new Chief Justice may then be selected in accordance with
the Constitution even though that appointment may result in there being more than
the maximum number of judges permitted to hold office. 11

8 Ibid, (b).

9 Ibid, (c).

10 Supreme Court Act No. 7 of 2011, s (5) (1-4).

11 The operative word is may, as the Constitution realizes that the next judge of
the supreme court may be selected from the current Supreme court judges and thus
if the immediate former chief justice remains the number will still be seven.

Finally, the Supreme Court shall be properly constituted for the purposes of its
proceedings if it is composed of five judges. 12 This means therefore where the
Supreme Court has four judges holding office at a time or three judges are not
available for whatever reason there is no supreme court.

Jurisdiction
The Constitution of Kenya gives the Supreme Court jurisdiction on matters it can
hear. The Supreme Court shall have:
1. Exclusive original jurisdiction to hear and determine disputes relating to the
elections of office of president.
2. Appellate jurisdiction to hear and determine appeals from the court of appeal
as of right in cases involving the interpretation or application of this
Constitution
3. Appellate Jurisdiction to hear and determine appeals from the court of appeal
in any other case in which the Supreme Court, or the Court of Appeal,
certifies that a matter of general public importance is involved.
4. Appellate Jurisdiction to hear and determine appeals from any other court or
tribunal as provided by national legislation.
5. Jurisdiction to give an advisory opinion at the request of the national
government, any State organ, or any county government with respect to any
matter concerning county government.
6. Jurisdiction to review a matter certified by the court of appeal as being of
public importance.
7. Jurisdiction to determine on validity of a declaration of a state of emergency
any extension of a declaration of a state of emergency and any legislation
enacted or other action taken, in consequence of a declaration of state of
emergency.13
12 Article 163 (2) of the Constitution of Kenya.

13 Article 58 (5) of the Constitution of Kenya.

Advisory Opinions
The Constitution provides that the Supreme Court may give an advisory opinion at
the request of the national government, any State organ, or any county government
with respect to any matter concerning the county government. 14 Any matter that
requires an advisory opinion should be related with the county government.
This was necessitated by the new creation of the county governments by the
Constitution and it was considered right to have a process by which matters arising
from the new County governments could be sorted out. The complication
anticipated by the devolution process made it important to have the apex court give
an advisory opinion beside the ordinary judicial mechanism. 15
The first matter to come before the Supreme Court seeking to invoke the advisory
opinion jurisdiction was In the Matter of Interim Independent Electoral
Commission16 where the date of the first general election was to be ascertained.
Was it a matter concerning the county government so as to invoke the jurisdiction of
the court? The answer was in the affirmative. The court stated that:

14 Article 163 (7) of the Constitution of Kenya.

15 J.B Ojwang, Supreme Court Of Kenya: Insiders Perspective on the Emerging

Groundwork (2016).

16 Supreme Court Const. Application No. 2 of 2011.

Now on the facts of the instant case, we would hold that election date is a question
so central to county government, as to lie within the jurisdiction of this Court, in
relation to the request for an Advisory Opinion 17

In the same matter the court went ahead and pronounced an important principle of
status with regard to the enforcement capabilities or weight take
The court held that an advisory opinion may not be capable of enforcement as an
ordinary decision would but it must be treated as an authoritative statement of law.
It also added that the opinion sought must not only guide the organ that sought it
but all governmental or public action thereafter. Otherwise not doing so will render
Article 163 (6) of the Constitution an idle provision. 18

In the Matter of the Principle of Gender Representation in the National

Assembly and the Senate19 the advisory opinion sought was on two specific
questions, most importantly whether the Constitution required a progressive
realization of the enforcement of the one-third gender rule or be implemented
during the general elections scheduled for 4 th March 2013? The court with a majority
decision favored for a progressive realization of the one-third gender rule. It
provided:
17 Ibid, para 41.

18 Ibid, para 93.

19 Supreme Court Advisory Opinion No. 2 of 2012.

As Article 81(b) of the Constitution standing as a general principle cannot replace

the specific provisions of Articles 97 and 98, not having ripened into a specific,
enforceable right as far as the composition of the National Assembly and Senate are
concerned, it follows and this is the burden of our Opinion on this matter that it
cannot be enforced immediately. If the measures contemplated to ensure its
crystallization into an enforceable right are not taken before the elections of 4
March 2013, then it is our opinion, Article 81(b) will not be applicable to the said
elections.
The cases above give a clear outline of the Supreme Court jurisdiction on advisory
opinion with matters that concern the county government.

Presidential Elections
Perhaps one of the most significant jurisdictions given by the Constitution of Kenya
to the Supreme Court is the exclusive original jurisdiction to hear and determine
disputes relating to the elections to the office of President arising under Article 140.
Article 140 provides that a person may file a petition to challenge the election of the
President elect within seven days after declaration of the results of the presidential
election. It goes further to provide that the Supreme Court shall hear and determine
the petition and it decision shall be final.
The general election conducted by the Independent Electoral and Boundaries
Commission (IEBC) declared Mr. Uhuru Kenyatta the President elect after garnering
50% plus one votes and 25% of votes cast in more than half the counties. Three
petitions were filed thereafter in the Supreme Court: first challenging the inclusion
of the rejected voted in the total tally on the ground that it distorted the percentage
gotten by the president. The second contested the manner in which the electoral
process was conducted by IEBC. The third contested the declaration of the
Presidential-elect and Deputy Presidential-elect. Both cases were consolidated for
hearing. The case of Raila Odinga v Independent Electoral and Boundaries
Commission20 was the one which caught the attention of the nation as it was
pitting the President-elect and the first runners-up of the Presidential election.
The court pronounced that it was well noted that the elections were in no way
perfect it posed the question; did the petitioner prove to the court that the election
was so devoid of merit that it did not reflect the wishes of the people? 21

20 Petition No 5 of 2013.

It asserted that it was with this broad test that the election petition was to be
decided upon and whether the presidential election was to be disturbed. 22 The court
therefore held as follows:
In summary, the evidence in our opinion, does not disclose any profound
irregularity in the management of the electoral process, nor does it gravely
impeach the mode of participation in the electoral process by any of the candidates
who offered himself or herself before the voting public. It is not evident, on the facts
of this case, that the candidate declared as the President-elect had not obtained the
basic vote-threshold justifying his being declared as such. 23

The above case represented the first case before the Supreme Court that invoked
Article 163 (3)(a). With this therefore the Supreme Court upheld the Presidential
elections and thus Mr. Uhuru Kenyatta sworn in as the President of Kenya.

Declaration of State of Emergency

The Supreme Court has been given the jurisdiction to decide on the validity of state
of emergency declared, any extension of a declaration of state of emergency and

21 Ibid, para 304.

22 Ibid.

23 Ibid, para 306

any legislation enacted or action taken in consequence of a declaration of state of

emergency.24
Section 30 of the Supreme Court Rules 2012 provides for petitions relating to
validity of a state of emergency. It provides that a person may petition the court for
the determination of the validity of matters relating to a state of emergency within
seven days of its declaration by the President or upon its extension by the National
Assembly.
2. COURT OF APPEAL
Brief History
Following the collapse of the East African Court of Appeal in, the Kenyan Court of
Appeal was established by the thirteenth amendment of 1977. Court of Appeal
under the old regime had appellate jurisdiction, the power to uphold or reverse
decisions of lower courts and the power to substitute a new judgement or order a
new trial25.
On October 26th 1977, President Jomo Kenyatta swore in two High Court judges, Mr
Justice Samuel William Wako Wambuzi and Mr Justice Eric John Ewan, as Justices of
the Court of Appeal26.
In the case of Anarita Karimi Njeru V. The Repulic27, the Court stated that, the
one theme that has remained constant is that as an appellate tribunal, the Court of
Appeal has only been able to entertain such appeals as statute has declared
appealable to it. The Court of Appeal has never enjoyed a supervisory role. This
case contained the evolution of the Court of Appeal over time, going as far back as
the dawn of the 20th Century.
The Court of Appeal under the Constitution of Kenya (2010)

24

25 B.A Ogot & W.R Ochieng (ed), Decolonisation & Independence in Kenya 1940-93:
East African Educational Publishers (1995).

Article 164(1) of the Constitution of Kenya (2010) establishes the Court of Appeal 28.
Though established in the Constitution, the Court of Appeal is a creature of statute.
The basic and traditional roles of the Court of Appeal are, to hear appeals and to
interpret the law29. The Court of Appeal is a superior court under the Constitution.
Constitution of the Court of Appeal
Article 164 of the Constitution states that; The Court shall consist of the number of judges, being not fewer
than twelve, as may be prescribed by an Act of Parliament 30.

26 Key Dates in Kenyas History by Maria Kanini Wambua (Nation Media Library)
<http://www.nation.co.ke/news/Key-dates-in-Kenyahistory/-/1056/2108572/-/6j2j2hz/-/index.html> accessed on 15th March.

27 (No 2)(1976-80) 1 KLR 1283.

28 Art 164, Constitution of Kenya 2010.

29 Momanyi Bwonwonga, Criminal Law in Kenya (East African Publishers Ltd, 1994)
pg 23.

Article 166(4) of the Constitution sets out the qualifications that one has to meet for
appointment as a court of appeal judge which include;1. Hold a degree from a recognised University, or are advocates of the High
Court of Kenya, or possess an equivalent qualification in a common-law
jurisdiction.
2. Possess at least ten years experience as a superior court judge or legal
practitioner, distinguished academic or other experience in other relevant
legal field.
3. The candidate can hold any of the above qualification for a period amounting
to an aggregate of ten years31.
For purposes of transparency in the recruitment of judges, the Judicial Service
Commission shall constitute a selection panel consisting of at least five
members32.The function of the panel shall be, to shortlist persons for nomination by
the Judicial Service Commission33.
30 Supra,Note 4 Art 164.

31 Ibid.,Art 166(4).

32 Section 30(1), of the Judicial Service Act, 2011.

33 Ibid,.Section 30(2).

There shall be a president of the Court of Appeal, who shall be elected by the judges
of the Court of Appeal from among themselves34.
Jurisdiction of the Court of Appeal.
The Court of Appeal has jurisdiction to hear appeals from the High Court and any
other court or tribunal as prescribed by an Act of Parliament 35.
The Appellate Jurisdiction Act establishes the jurisdiction and powers of the Court of
Appeal. Section 3 of the Act states that;1. The Court of Appeal shall have jurisdiction to hear and determine appeals
from the High Court and any other Court prescribed by an Act of parliament
in cases in which an appeal lies to the Court of Appeal under law.
2. For all purposes of and incidental to the hearing and determination of any
appeal in the exercise of the jurisdiction conferred by the Act, the Court of
Appeal shall have, in addition to any other power, authority and jurisdiction
conferred by the Act, the power, authority and jurisdiction vested in the High
Court.
3. In the hearing of an appeal in the exercise of the jurisdiction conferred by the
Act, the law to be applied shall be the law applicable to the case in the High
Court.36
The Court of Appeal has jurisdiction to reverse or vary the decisions of the High
Court, with such directions as may be appropriate, to order a new trial and to make
any necessary incidental or consequential orders including orders as to costs 37.

34 Supra, Note 4 Art 164(2).

35 Supra, Note 4 Art 164(3).

An appeal to the Court of appeal from a subordinate court against a decision of the
High Court may be brought on matters of law only. The Court of Appeal does not
hear matters of fact such as the severity of a sentence. Only when a sentence has
been enhanced by the High Court or where the trial court had no power to pass the
sentence, can the Court of
Appeal an appeal against a sentence.
Where the Court of Appeal is of the Opinion that the judgement of the subordinate
court or of the first appellate court, should be set aside or varied on the ground of
the wrong decision on a question of law, it may make any order that the
subordinate court or the High Court could have made, it may remit it and the case
together with its judgement to the subordinate or High Court for determination as
the Court of Appeal may think necessary38.
In the case of Onyango v. Republic 39 the Court held that the Court of Appeal has
no inherent jurisdiction and that its jurisdiction is derived from statute.

3. HIGH COURT
High Court Criminal Jurisdiction
36 Section 3, Appellate Jurisdiction Act.

37 Patrick Kiage:Essentials of Criminal Procedure in Kenya (Law Africa Publishing (K)

Ltd) pg 13.

38 Francis D.P Situma: Criminal Law in Kenya (Kluwer Law International) pg 110.

i.

Establishment And Composition

The high court is established under article 165 of the constitution of Kenya.

The number of judges in the high court as per the constitution of Kenya 2010 shall
be as stated in an act of parliament though the constitution states so, there is no
act in place to certify this provision.
Article 165 also states that the high court of Kenya shall be organised and
administered in the manner prescribed by an act of parliament. The act is not yet in
place.
The head of high court is known as a principle judge who is elected by judges of the
high court from amongst themselves.
ii.

Unlimited original jurisdiction

The High Court has unlimited original jurisdiction in criminal matters . 40
The Constitution does not define either the term jurisdiction or the
expression unlimited jurisdiction. In the case of Paul K. Semogerere &
2 Others vs- Attorney General,41 Judge Oder cited Mula on the Code
of Civil Procedure as having defined jurisdiction as follows:

By jurisdiction is meant authority which a Court has to decide matters that are
litigated before it or to take cognisance of matters presented in a formal way, for its
39 (1983) e KLR (Criminal Appeal No. 91 of 1983).

40 Art.165 (3) (a) of The Constitution of Kenya, 2010].

41 Supreme Court of Uganda Constitutional Appeal No.1 of 2002,pg 225

decision. The limits of this authority are imposed by statute, charter or Commission,
under which the Court is constituted and may be exercised or restricted by the like
means. If no restriction or limit is imposed the jurisdiction is unlimited.
In Kenya the High Court is established by the Constitution and vested with
unlimited jurisdiction as aforesaid.42
Article 165(3) (a) subject to sub-Article (5) of the same Article ousts the jurisdiction
of the High Court in respect of matters -

iii.

reserved for the exclusive jurisdiction of the Supreme Court under

the Constitution; or

falling within the jurisdiction of courts contemplated in Article

162(2), i.e. relating to employment and labour relations; and the
environment and the use and occupation of, and title to, land.

Venue of sittings
For the exercise of its original criminal jurisdiction, the High Court is
required to hold its sittings at such places and on such days as the Chief
Justice may direct, subject to the High Court Registrar ordinarily giving
prior notice of all such sittings.43
The law also empowers the High Court to inquire into and try any offence
subject to its jurisdiction at any place where it has power to hold sittings. 44

42 Article 165(1)

43 Section 70 of the Criminal Procedure Code (CPC)].

44 Section 69 of the criminal procedure code

iv.

Power of the High Court to decide venue of trial in cases of doubt

Ordinarily every criminal offence must be tried by a court within the local
limits of whose jurisdiction it was committed, or within the local limits of
whose jurisdiction the accused was apprehended, or is in custody on a
charge for the offence, or has appeared in answer to summons lawfully
issued charging the offence.45
But it happens at times that by a combination of certain factors,
difficulties arise in determining where an offence should be tried. For
instance, when

it is uncertain in which of several local areas an offence was

committed; or

an offence is committed partly in one local area and partly in

another; or

an offence is a continuing one, and continues to be committed in

more than one local areas; or

an offence consists of several acts done in different local areas,

it may be tried by a court having jurisdiction over any of those local areas. 46
Whenever a doubt arises as to the court by which an offence should be
tried, the court entertaining the doubt may report the circumstances to
the High Court for the High Court to decide by which court the offence
shall be inquired into or tried; and the decision of the High Court shall be

45 Section 71 ibid

46 Section 74 ibid

final and conclusive, except that it shall be open to an accused to show

that no court in Kenya has jurisdiction in the case. 47

v.

General power of the High Court to change venue of trials

If it is made to appear to the High Court

that a fair and impartial trial cannot be heard in any criminal court
subordinate thereto; or

that some question of law of unusual difficulty is likely to arise; or

that a view of the place in or near which any offence has been
committed may be required for the satisfactory trial of that offence;
or

that an order (for change of venue) will tend to the general

convenience of the parties or witnesses; or

that such an order is expedient for the ends of justice or is required

by any provision of the CPC,

the High Court may order

that an offence be tried by a court not ordinarily empowered but in

other respects competent to try the offence;

that a particular criminal case or class of cases be transferred from

a criminal court subordinate to its authority to any other criminal
court of equal or superior jurisdiction;

that an accused person be committed for trial by itself . 48

47 Section 76 ibid

48 Section 81(1) ibid

vi.

Transfer by the High Court of case from one magistrate to another

upon request by an interested party
There are times when a party interested in criminal proceedings may have
cause to want such proceedings transferred from a particular magistrate to
another.
This is permissible for good cause.49 In such case, the interested party may
apply by motion for the desired transfer.50
Section 81(3) CPC mandatorily requires the application for transfer to be
supported by affidavit, except when the applicant is the Director of Public
Prosecutions.

NB:*In the old constitution the A-G had overall control over criminal proceedings,
however after the promulgation of the Constitution of Kenya 2010 the reference to
the A-G was replaced with reference to the Director of Public Prosecutions/ DPP . 51
For guidelines as to the circumstances in which an application by an accused
person for transfer of a case from one magistrate to another may be granted,
attention is drawn to Republic -vs- Hashimu. 52 where the High Court of
Tanzania while considering Section 80 of the Tanzania CPC which was similar
to Section 81 of the Kenyan CPC, inter alia, held that:
49 Section 81(1) ibid

50 Section 81(3) ibid

51 Article 157(6) of the constitution of Kenya 2010

Before a transfer of any trial is granted on the application of an accused person, a

clear case must be made out that the accused person has a reasonable
apprehension in his mind that he will not have a fair and impartial trial before the
magistrate from whom he wants the trial transferred.
The aforesaid guidelines have been applied in Kenya, e.g. by the High Court
of Kenya in Makinda & Another-vs-The Republic . 53
a) Mode of trial

i.

Charges and Informations

A Charge means the same thing as an Information, save that the former
term is used in subordinate courts, 54 while the latter term is used in the
High Court.55
The Law provides that every Charge or Information must contain a
statement of the specific offence or offences with which the accused
person is charged, together with such particulars as may be necessary for
giving reasonable information as to the nature of the offence charged. 56

ii.

Arraignment and Plea

52 [1968] E.A. 656

53 1979] KLR 134.

54 Section 89(4) criminal procedure code

 To arraign is to begin a criminal trial on indictment by calling the

defendant to the bar of the court by name, reading the indictment to
him/her, and asking him/her whether he/she is guilty or not. 57
In the Kenyan context the accused person to be tried before the High
Court upon an Information

must be placed at the bar unfettered, unless the court otherwise

orders;

the Information must be read to him/her by the Registrar or other

officer of the court, and explained if need be by that officer or
interpreted by a court interpreter;

and the accused must be required to plead instantly thereto,

unless, where the accused is entitled to service of a copy of the
Information, he/she objects to the want of service, and the court
finds that he/she has not been duly served therewith. 58

The accused person may plead not guilty, guilty, or guilty subject to a
plea agreement.59 Where an accused pleads guilty subject to a plea
agreement, the provisions relating to plea agreements shall apply
accordingly.60
55 Section 274 ibid

56 Section 134 ibid

57 Oxford dictionary of law

 If the accused person pleads not guilty, he/she is deemed to have put
himself/herself upon the country for trial and the court proceeds to try
the accused either straightaway or subsequently. 61
It is open to an accused person to plead

that he/she has been previously convicted or acquitted of the

same offence; or

that he/she has obtained the Presidents pardon for his/her

offence.62

58 Section 274 of the criminal procedure code

59 Section 281(1)ibid

60 Section 281(2) ibid

61 Section 278 ibid

62 Section 279 (1)ibid

If either of those pleas are pleaded and denied, the court shall try whether the plea
is true or not.63 If the court finds the said pleas not proved or to be false, the
accused shall be required to plead to the Information. 64
It is also open to the accused person to refuse to plead to an Information
(standing mute). If the accused stands mute of malice, or, neither will nor
by reason of infirmity, can answer directly to the Information

The court may order the Registrar or other officer of the court to
enter a plea of not guilty on behalf of the accused person.

If the accuseds refusal to answer is by malice, the entry of a not

guilty plea leads to trial in the normal manner.

If the accuseds failure to plead appears to be by reason of

infirmity, the court shall proceed to enquire whether the accused is
of sound or unsound mind.

If the court finds the accused to be of sound mind, it shall proceed

with his/her trial.

If the court finds the accused to be of unsound mind and,

consequently, incapable of making his/her defence, the court shall
order the trial to be postponed and the accused to be kept
meanwhile in safe custody in such place and manner as it thinks fit
and shall report the case for the order of the President. The

63 Section 279(2)ibid

64 Section 279 (3) ibid

President may order the accused to be confined in a lunatic asylum,

prison or other place for safe custody. 65
NB:For further details regarding the procedure in dealing with cases of
lunacy/insanity or other incapacity of an accused person. 66Note should also be made
of presumption of sanity and as to when insanity may negate criminal
responsibility.67
iii.

Case for the Prosecution

If a criminal case is to proceed to hearing before the High Court, the law
provides that the advocate for the prosecution shall

open the case against the accused person and

call witnesses and adduce evidence in support of the charge. 68

65 Section 280 ibid

66 Section 162-167 ibid

67 Section 11 and 12of the penal code

68 Section 300 of the criminal procedure code

 Witnesses for the prosecution shall be subject to cross-examination by the

accused or his/her advocate, and to re-examination by the advocate for
the prosecution.69
NB:As to types of examination of witnesses, i.e. examination in-chief, crossexamination and re-examination.70
When evidence of witnesses for the prosecution has been concluded and
before the court considers whether or not there is evidence to put the
accused on his/her defence, counsel for the accused quite often submit
that there is no case to answer, thereby necessitating a ruling on the
matter. The guiding principle on whether to put the accused on his/her
defence is whether a prima facie case has been made out against him/her.
It was stated by the then Court of Appeal for Eastern Africa in Ramanlal
Trambaklal Bhatt vs- R that.71
It may not be easy to define what is meant by a prima facie case, but at least it
must mean one on which a reasonable tribunal, properly directing its mind to the
law and the evidence could convict if no explanation is offered by the defence.
The High Court of Kenya applied the above principle in R. vs- Wachira 72
and elaborated that if a submission is made that there is no case to
answer, the decision should depend not so much on whether the
69 Section 302 ibid

70 Section 145 of the evidence act cap 80 laws of kenya

71 1957] E.A. 322

adjudicating tribunal (if compelled to do so) would at that stage convict or

acquit, but on whether the evidence is such that a reasonable tribunal
might convict, and that:
If a reasonable tribunal might convict on the evidence so far laid before it, there is
a case to answer.
If the court considers there is no evidence that the accused committed the
offence, the court shall, after hearing, if necessary, any arguments the
advocate for the prosecution or defence may desire to submit, record a
finding of not guilty.73
When evidence of witnesses for the prosecution has been concluded and
the court considers there is evidence that the accused committed the
offence, the court shall

inform the accused of his/her right to address the court, either

personally or by advocate (if any);

inform the accused of his/her right to give evidence on his/her own

behalf or to make an unsworn statement;

inform the accused of his/her right to call witnesses in his/her

defence;

and in all cases the court

shall require the accused or his/her advocate (if any) to state

whether it is intended to call any witnesses as to fact other than the
accused himself/herself;

and upon being informed of the accuseds intention, the judge shall
record the fact.74

72 1975] E.A. 262

73 Section 306 (1) criminal procedure code

 If the accused says he/she does not intend to give evidence or make an
unsworn statement, or to adduce evidence, then the advocate for the
prosecution may sum up the case against the accused; but if the accused
says he/she intends to give evidence or make an unsworn statement, or to
adduce evidence, the court shall call upon him/her to enter upon his/her
defence.75
iv.

Case for the Defence

If the accused is to enter upon his/her defence

the accused or his/her advocate may then open his/her case,

stating such facts or law on which he/she intends to rely, and
making such comments as he/she thinks necessary on the evidence
for the prosecution;

thereafter the accused may give evidence on his/her own behalf

and he/she or his/her advocate may examine his/her witnesses (if
any) and after the witnesses cross-examination, the accused or
his/her advocate may sum up the defence case. 76

If the accused adduces evidence in his/her defence introducing new

matter which the advocate for the prosecution could not by the exercise of
74 Section 306(2) criminal procedure code

75 Section 306 (3) ibid

76 Section 307 ibid

reasonable diligence have foreseen, the court may allow the advocate for
the prosecution to adduce evidence in reply to rebut it. 77
If the accused person, or any of several accused persons, adduces any
evidence, the advocate for the prosecution shall be entitled to reply. 78
NB:It should be noted that Section 310 CPC is subject to Section 161 CPC, which is
to the effect that where the Attorney-General or Solicitor-General is appearing
personally in a prosecution, he/she has the right of reply whether the accused
adduces any evidence or not. Section 161 CPC was based on the old Constitution
which gave the A-G overall control over criminal proceedings. As recorded earlier,
the overall power over criminal proceedings has now been vested by the 2010
Constitution in the DPP.79
If the accused says he/she does not intend to give or adduce evidence and
the court considers that there is evidence that he/she committed the
offence, the advocate for the prosecution shall sum up the case against
the accused and the court shall then call the accused personally or by
his/her advocate to address the court on his/her own behalf. 80

v.

Close of Hearing

77 Section 309 ibid

78 Section 310 ibid

79 Article 157 (6) of the constitution 2010

 When the case on both sides is closed, the judge shall give judgment. 81
If the accused is convicted, the judge shall pass sentence on him/her
according to law.82
NB:Note may be made here for information that although the High Court has
unlimited original jurisdiction in criminal matters, the criminal offences which in
practice tend to be tried by the High Court are the capital offences of murder 83 and
treason .84 Further note may be made that murder and treason are not the only
capital offences in Kenya. Others are: robbery with violence , 85administration of
unlawful oaths purporting to bind the taker to commit a capital offence 86 and
attempted robbery with violence87 but these latter capital offences are tried by
subordinate courts.
b) High Courts Revisionary Jurisdiction
80 Section 311 of criminal procedure code

81 Section 322(1) ibid

82 Section 322(2) ibid

83 Section 204 of the penal code

 It is important to note at the outset that The Constitution vests in the High
Court supervisory jurisdiction, inter alia, over subordinate courts.88
For the aforesaid purposes, The Constitution empowers the High Court to call
for the record of any proceedings before, inter alia, any subordinate court and
may make any order or give any direction it considers appropriate to ensure
the fair administration of justice.89
With particular reference to criminal proceedings, the High Court is
empowered to call for and examine the record of any criminal proceedings
before any subordinate court for the purpose of satisfying itself as to the
correctness, legality or propriety of any finding, sentence or order recorded or
passed, and as to the regularity of any proceedings of any such subordinate
court.90
84 Section 40(3)ibid

85 Section 296(2) ibid

86 Section 60 ibid

87 Section 297(2) ibid

 Where the High Court in exercise of its revisionary jurisdiction calls for the
record of a subordinate court pursuant to Section 362 CPC, the High Court
may

in the case of a conviction, exercise any of the powers conferred on

it as a court of appeal by sections 354, 357 and 358, and may
enhance the sentence [see illustration in the extracts from
Kinyanjuis case at the Annex];

in the case of any other order other than an order of acquittal, alter
or reverse the order .91

Note should, however, be made of the following-

88 Article 165(6) of the constitution 2010

89 Article 165(7) ibid

90 Section 362 criminal procedure code

91 Section 364(1) a and b ibid

that no order should be made under this section to the prejudice of

the accused unless he/she has had the opportunity of being heard
either personally or by an advocate in his/her own defence;

that the High Court does not have to give the accused a hearing if
the order to be revised relates to failure by the subordinate court to
pass sentence it was required to pass under the written law
creating the offence concerned;

that in exercising its revisionary jurisdiction, the High Court shall

not inflict greater punishment for the offence committed than might
have been inflicted by the court which imposed the sentence;

that the High Court cannot in exercise of its revisionary jurisdiction

convert a finding of acquittal into one of conviction; and

that when an appeal lies from a finding, sentence or order, and no

appeal is brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have appealed. 92

Unlike is the case with regard to the High Courts appellate jurisdiction
where appeals from subordinate courts must be heard by two judges of
the High Court unless the Chief Justice directs that they be heard by one
Judge, all proceedings before the High Court in its revisionary jurisdiction
may be heard and any judgment or order thereon may be made or passed
by one judge:
Provided that when the court is composed of more than one judge and the court is
equally divided in opinion, the sentence or order of the subordinate court shall be
upheld.93

92 Section 364 ibid

93 Section 366 ibid

3. Subordinate Courts

Structure of the Magistrates Court

The subordinate courts are established under Article 169 (1) of the Constitution of
Kenya 2010. They are the Magistrates courts, the Kadhis courts, the Court Martial
and any other court or local tribunal as may be established by an Act of
Parliament94.All subordinate courts are trial courts in which criminal and civil cases
are filed and determined. They are courts of the first instance or fact finding courts
whose findings are of crucial importance in appellate and revision proceedings 95.
The Magistrates Courts Act 2015 was enacted subject to Article 169 (2) of the
Constitution of Kenya, 2010. The act was assented to on 15 th December, 2015 and it
commenced on 2nd January, 2016.
A magistrate means a chief magistrate, a senior principal magistrate, a principal
magistrate, a senior resident magistrate or a resident magistrate 96. Magistrates are
appointed by the Judicial Service Commission and the commission can also receive
complaints against, investigate and remove from office or otherwise discipline
registrars, magistrates, other judicial officers and other staff of the judiciary. 97 A
94 Art 169 (1), Constitution of Kenya, 2010

95 Bwonwon`ga M (1994), Procedures in Criminal Law in Kenya, pg 32

96 Magistrates Courts Act, 2015

97 Art 172 (1c), Constitution of Kenya, 2010

magistrates court shall have and exercise such jurisdiction and powers in
proceedings of a criminal nature as may be conferred on it by the criminal
procedure code or any other written law. The magistrates court have both criminal
and civil jurisdiction.98
A subordinate court of the first class may pass the following sentences in cases
where they are authorized by law; (a) imprisonment for a term not exceeding seven
year and (b) a fine not exceeding twenty thousand shillings 99. A subordinate court of
the second class may pass the following sentences in cases where they are
authorized by law; (a) imprisonment for a term not exceeding two years and (b) a
fine not exceeding ten thousand shillings100.
Jurisdiction of the Magistrates Court
The Judicial Service Commission may by notice in the Gazette extend the
jurisdiction of any particular magistrate generally or in relation to particular offences
triable by a court of a class which may be held by that magistrate, and a magistrate

98 Magistrates Court Act, 2015, Sect 6

99 Criminal Procedure Code, Sect 7(2)

100 Ibid

whose jurisdiction has been so extended may pass sentences thus authorized in
cases where they are authorized by law101. The magistrates courts act 2015 (Sect
7(2)) says, the Chief Justice may from time to time by notice in the Gazette, revise
the pecuniary limits of jurisdiction taking into account inflation and change in
prevailing economic conditions. Currently, the pecuniary jurisdiction of the Chief
Magistrate is twenty million, the Senior Principal Magistrate is fifteen million, the
Principal Magistrate is ten million shillings, the senior resident magistrate is seven
million shillings and the Resident Magistrate is five million shillings 102.
A Magistrate court has jurisdiction 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. This is subject to the High Court jurisdiction to determine the
question whether a right or fundamental freedom in the bill of rights has been
denied, violated, infringed or threatened 103. In relation to the bill of rights; the
magistrates courts only hear matters relating to freedom from torture and cruel,
inhuman or degrading treatment and freedom from slavery or servitude. The
magistrates court is not conferred with jurisdiction to hear and determine claims for
compensation for loss or damage suffered in consequence of violation,
infringement, denial of a right or fundamental freedom in the bill of rights. The Chief
Justice is to make rules for the better exercise of jurisdiction of the magistrates
courts.104

101 Criminal Procedure Code, Sect 8

102 Magistrates Courts Act, 2015, Sect 7

103 Magistrates Courts Act,2015,2015, Sect 8

The magistrates courts also play an important part in conducting inquests in

respect of sudden deaths including cases where the deceased persons have
committed suicide. The police are under a statutory duty to report all sudden deaths
including deaths in police and prison custody and also fatal road accidents. 105
Section 26 of the Environment and Land Court Act confers upon the Magistrates
court jurisdiction to hear and determine claims relating to; (i) environmental
planning and protection, climate issues, land use planning, title, tenure, boundaries,
rates, rents, valuations, mining, minerals and other natural resources, (ii)
compulsory acquisition of land, land administration and management, public,
private and community land and (iii) contracts, chooses in action or other
instruments granting any enforceable interests in land and environment and land
generally.106 The Chief Justice may by Gazette notice, appoint certain magistrates to
preside over cases involving environment and land matters of any area in the
country. Appeals on matters from the designated magistrate`s courts shall lie with
the Environment and Land Court.107
104 Ibid

105 Supra note 2

106 Environment and Land Court Act, 2011, Sect 26

107 Magistrates Court Act, 2015, Sect 25

Section 29 of the Industrial Court Act confers upon the magistrates court
jurisdiction to hear and determine claims relating to employment and labour
relations. The Chief Justice may, by notice in the Gazette, appoint certain
magistrates to preside over cases involving employment and labour relations in
respect of any area of the country108. This was however not the position before The
Magistrates Court Act 2015, in Maendeleo ya Wanawake case109the Industrial court
in Nairobi held that, Chief magistrates court has no jurisdiction to hear the dispute
as it falls within the exclusive jurisdiction of the Industrial Court under Article 162
(2) and 165 (5) of the Constitution, Section 12 of the Industrial Court Act and
Section 87 of the Employment Act. Appeals from the designated Magistrates courts,
on matters of employment and labour, lies with the industrial court 110.

The magistrates court also has power to punish for contempt. Contempt of court
includes a person who in the face of the court assaults, threatens, intimidates or
insults a magistrate, court administrator, judicial officer or a witness during a court
sitting. It also includes interrupting or obstructing the proceedings of the court and
disobeying an order or direction of the court without lawful excuse in the course of
the hearing of a proceeding111. The magistrates court may sentence one for
contempt to imprisonment for a term not exceeding five days or a fine not

108 Industrial Court Act, 2011, Sect 29

109 Maendeleo Ya Wanawake Organisation v Hellen Makone & another [2014] eKLR

110 ibid

exceeding one hundred thousand shillings or both. One can appeal against an order
for contempt of court as if it were a conviction and sentence made in the exercise of
the ordinary original criminal jurisdiction of the court. 112
The sittings of a magistrates court may be held at any place within the local limits
of its jurisdiction, but it shall, so far as is practicable, be held at the place
designated in the Gazette113. A magistrate has jurisdiction to entertain any
application and to determine any dispute under the Law of Succession Act and
pronounce such decrees and make such orders therein as may be expedient in
respect of any estate the gross value of which does not exceed the pecuniary limit
of the various magistrates court. A magistrate`s court may also call for and hear
evidence of the customary law applicable to any case before it. 114
4. THE COURT MARTIAL
111 Magistrates Court Act, 2015, Sect 10 (1) & (2)

112 Magistrates Court Act, 2015, Sect 10 (6) & (7)

113 Magistrates Court Act, 2015, Sect 13

114 Magistrates Court act, 2015, Sect 16 & 23

The Nature of a Court Martial

Unlike several jurisdictions where courts martial are not part of the countries
judicial system as in the United States of America, Courts Martials in Kenya are part
of the judicial system. A court martial is an ad hoc military court convened under
military authority to try a member of the armed forces accused of violating a
military code,115 or service law and regulations. 116
A court martial tries offences committed by personnel of the armed forces including
matters of indiscipline and also violation of ordinary law. 117 The courts are set up for
enforcement of disciplining soldiers and officers of the defence forces, namely the
Army, the Air Forces and the Navy. This excludes members of the police service. 118
However, the soldiers are also subject to the ordinary law of the land 119 (civilian

115 Blacks Law Dictionary, (Ninth Edition, Thomson Reuters) 413.

116 Oxford Dictionary of Law, (Seventh Edition, Oxford University Press) 141.

117 Osborns Concise Law Dictionary, (Twelfth Edition, Sweet and Maxwell) 121.

118 Bwononga, M, Procedures in Criminal Law in Kenya, Nairobi: East African Educational Publishers (
1994) 47.

law). The courts martial are ad hoc courts in that they are not permanent when the
need arises.
Establishment of the Courts Martial in Kenya
The Court Martial is established within the Kenya system of courts under article 162
and 169 and is classified under the category of subordinate courts. Article 120
establishes the subordinate courts as the Magistrates courts; the Kadhis courts; the
Courts Martial; and any other court or local tribunal established by an Act of
Parliament. The Constitution requires Parliament to enact legislation to confer
jurisdiction, functions and powers on the subordinate courts. 121
The specific constitutional foundation of the Courts Martial is Article 169(1)(c) which
in turn is operationalized by the Kenya Defence Forces Act, 2012 (KDF Act hereafter)
in furtherance of Article 169(2). The Act 122 was enacted to provide for the functions,
119 Ibid.

120 Art. 169(1)

121 Art. 169(2)

122 Became effective September 17, 2012 following the Repeal of the Kenya Defence Forces Act
which applied before September 17, 2012.

organization and administration of the Kenya Defence Forces 123 and succeeded the
hitherto Kenya Armed Forces Act124 (repealed).
Composition of the Court Martial
The composition of a Court Martial as provided for by the Kenya Defence Forces
Act125 consists of a Judge Advocate who shall be the presiding officer; and three
other members. However, if the person being tried is an officer, the other members
shall not be less than five and shall be appointed by the Defence Court-Martial
Administrator.
In each case, at least one of the members shall be of the equivalent rank of the
accused person and at least one other shall be the equivalent of the lowest rank in
the unit the accused serves in.126 The Chief Justice appoints the judge advocate from

123 Preamble, pursuant to Art. 232, 239(6) and 241.

124 Cap 199 of the Laws of Kenya.

125 S. 160 (KDF Act)

126 S. 160(3) (KDF Act)

among magistrates, or advocates of ten years standing. 127 The Chief Justice is also
empowered to make rules to regulate the administration and proceedings in courts
martial.128
The role of the judge advocate is to guide and advise the court on matters of law.
However the final decision is reserved for members of the court martial who
deliberate the findings as guided by the recap of the facts and the law by the judge
advocate.129
Each member then writes own decision and is not bound by the decision of the
others. The decision is by majority vote and the accused must be acquitted in the
event of a tie,130 and the Judge advocate has a casting vote in favour of the
accused.131 All members must however concur in the event of a death sentence. 132

127 S.165 (KDF Act)

128 S.160(4) (KDF Act)

129 Bwononga, M, Procedures in Criminal Law in Kenya, Nairobi: East African Educational Publishers (
1994) 47; S.175 (KDF Act)

130 S.174(3) (KDF Act)

In the event of death or inability of the judge advocate to continue with trial to
conclusion, the successor may continue with the evidence taken to-date or declare
a mistrial.133 A mistrial implies that a new court martial is appointed to start trial of
the accused.134 Where three of more members of the court martial are unable to
continue with the trial, the accused may choose to have the matter continue with
the new members, or to have a fresh trial. 135
Jurisdiction of the Court-Martial
The jurisdiction of the courts martial is to hear matters relating to offences and
discipline of members of the Kenya Defence Forces. This excludes the police who
are considered civilian forces. The courts martial are required 136 to exercise their
powers and discharge their functions in accordance with constitutional values and
principles as well as the specific principles espoused in Article 159(2) 137.
131 S.174(4) (KDF Act)

132 S.176 (KDF Act)

133 S.174 (1)(KDF Act)

134 S.174(3) (KDF Act)

Like other subordinate courts, the jurisdiction of the Courts Martial is established by
an Act of Parliament. The operative Act is the Kenya Defence Forces Act Cap, 2012.
No provision in the Kenya Defence Forces Act, code, order or regulation shall affect
the jurisdiction of any civilian court to try any offence subject to trial by a civilian
court.138 A court martial can seat and have proceedings anywhere in Kenya or
outside Kenya.
Power of High Court over Courts Martial on Habeas Corpus
Under the Criminal Procedure Code139, the High Court has power to issue direction in
nature of habeas corpus for the production before a court martial, of any prisoner
detained on a matter pending before a court martial.
135 S.174(2) (KDF Act)

136 S.161 (KDF Act)

137 That is to say:justice shall be done to all, irrespective of status;

(b) justice shall not be delayed;

(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and
traditional dispute resolution mechanisms shall be promoted;
(d) justice shall be administered without undue regard to procedural technicalities; and
(e) the purpose and principles of this Constitution shall be protected and promoted.
(b) Traditional dispute resolution mechanisms shall not be used in a way that-(a) contravenes the Bill of Rights;
(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or
morality; or
(c) is inconsistent with this Constitution or any written law.

138

S.56, The Kenya Defence Forces Act, 2012.

An order of habeas corpus is a procedural intervention where the High Court, once
moved, intervenes to enforce accountability among law enforcers and executive to
require the production of a person before court, of the release of such a person. 140
An order of habeas corpus is one of the constitutional rights and fundamental
freedoms141 and which may not be limited.142
Offences Subject to the Jurisdiction of the Court-Martial
The acts or omissions which constitute an offence under the jurisdiction of the
Courts Martial are outlined under section 57 of the Kenya Defence Forces Act. 143
These are provided as; actual committal of an offence; an act of omission with the
intention of aiding someone to commit an office; abetting any person in committing
an offence; counselling or procuring any person to commit an offence. The offences
will also attach where two or more persons form a common intention to carry out an
unlawful purpose.
139

S.3891)(d) (Criminal Procedure Act)

140

Kiage, P., Essentials of Criminal Procedure in Kenya, Nairobi: LawAfrica Publishing (2012) 213.

141

Art. 51(2)

142

Art. 25(d)

The Act goes on to provide the specific offences and applicable punishment
principally in sections 58 to 136. These are grouped into; treachery, cowardice and
offences related to service;144 offences relating to desertion and absence without
leave;145 offences relating to disobedience of orders; 146 insubordination;147
malingering, drunkenness and quarreling; 148 offences relating to property;149
offences relating to billeting and requisitioning of vehicles; 150 flying offences;151
offences related to custody;152 offences concerning courts martial and other
authorities;153 and miscellaneous offences.154
The most serious offences under the Act in that, a convicted person faces the
mandatory death sentence are; traitorous act when in action, the person fails to
obey a lawful order in war, fails to engage an enemy, withdraws, fails to pursue an
enemy, fails to assist a friendly force, and forsakes a station. 155 The others are the
civil offences of treason or murder,156 robbery or attempted robbery with violence
and administration of illegal oaths to commit a capital offence.
143

KDF Act, 2012

144

S.58 to 73.

145

S.74 to76

146

S.77 to 81.

Other offences which attract liability for the ultimate death sentence are; aiding an
enemy;157 communication with an enemy so as to aid the enemy; 158 spying;159
advocating an governmental change by force; 160 mutiny;161 and failure to suppress a
mutiny.162
The last time a court martial sentenced a service man to death was in 1985
following the trials subsequent to the August 1, 1982 attempted coup. Snr. Private
Hezekiah Ochuka Rabala, Sgt. Pancras Oteyo Okumu 163 and Sgt. Joseph Ogidi
Obuon, Corporal Walter Odira Ojode, Corporal Charles Oriwa Hongo and Corporal
Bramwell Njereman, were sentenced to death and promptly hanged on conviction of
147

S. 82 to 83.

148

S.84 to 86.

149

S.87 to 96.

150

S.97 to 98.

151

the offence of treason.164 Also, at the time, the Courts Martial sentenced many
service men to long sentences in prison following hurried trials at the Courts Martial.
In more recent times, a Court Martial sitting at the Kenya Navy in Mtongwe Base, in
November 2014, sentenced four soldiers to life imprisonment. The accused were
found guilty of deserting duty in violation of section 74(1), during war time. 165 They
left military in 2007 and 2008 and joined the US private security firms in
Afghanistan, Kuwait and Iraq. 166 The same court handed a similar sentence to four
soldiers on January 12, 2016 also for deserting the military to work in Syria, Jordan

S.99 to 101.

152

S.102 to 105

153

S.109 to 110

154

S.111 to 136.

155

S.61

Iraq and other Middle East Countries, bringing to 12 the number of soldiers
convicted of the offence at the Court Martial. 167
A Court-Martial does not have jurisdiction to try any civilian person who is subject to
the Kenya Defence Forces Act, who is charged with certain civilian offences, namely,
the sexual offences under the Sexual Offences Act 168 and any law against domestic
violence, notwithstanding that the person is subject to the Kenya Defence Forces
Act.169 However, where a person commits a sexual offence outside Kenya, that
person will be tried and sentenced by a court-martial. 170
The Paradox of Orders From Superiors in Military
156

S.133

157

S.58

158

S. 59

159

S.60

160

A controversy which surrounds the offence of failure to obey an order from superiors
has been variously discussed in judicial process. The issue is the dilemma that faces
military officer or serviceman between obeying an order which may turn out to be
unlawful, against being charged with the offence of disobedience of orders under
sections 77 to 81.
In Clegg,171 the House of Lords and the Privy Council asserted that there is no
defence of superior order in English Law. 172 In A v Hayden,173 the High Court of
Australia was emphatic that the executive had no power to authorize an illegal a
breach of the law and the excuse of an offender to say that he acted the authority

S.67

161

S.72

162

S.73

163

See Pacras Oteyo Okumu v Republic. Criminal Appeal No. 35 of 1984, (Mbaya W, Gicher JE, JJ)

164

Nyambega Gisesa, How Rest of Military Plotted Against Kenya Air Force https://nyambegagisesa.wordpress.com/2015/04/10/how-rest-of-military-plotted-against-kenya-airforce/ - accessed on March 25, 2016.

of a superior officer would not be acceptable. This observes Ormerod 174 can be
particularly harsh for military personnel in the face of military orders. Service men
are trained to take orders and obedience is almost a reflex action. Omerod recalls
words of Dicey175 that a soldier may be liable to be shot by a court-martial if he
disobeys an order, and to be hanged by a judge if he obeys it. In Kenya, it is
reflected in the common saying obey the order, ask questions later, thereby
imperiling the innocent solder.

165

Should be a reference to Kenyas participation in the AMISOM forces in Somalia.

166

Court martial jails four soldiers for life, two others to face fate today http://www.standardmedia.co.ke/article/2000142473/court-martial-jails-four-soldiers-for-life-two-othersto-face-fate-today - Accessed March 25, 2016

167

Ex-soldiers jailed for life by court martial - http://www.nation.co.ke/news/Ex-soldiers-jailed-for-life-bycourt-martial/-/1056/2588406/-/849ykk/-/index.html - Accessed March 25, 2016.

168

No 3 of 2006.

169

Limitation of Rights of an Arrested Person for appearance in a Court

Martial
A member of the Defence Forces held with view to appearing before a Court Martial
or before a commanding officer may be held for up to 8 days. 176 This is a limitation
of the constitutional right of an arrested person under Article 49 where an arrested
person must be arraigned in court within twenty-four hours or by the earliest next
court day177. Moreover, the commanding officer is empowered to review his decision

S.55(1), (KDF Act).

170

S.55(2), (KDF Act).

171

[1995] 1 All ER 334 at 244.

172

Ormerod, D, Smith and Logans Criminal Law 13th Edition London: Oxford University Press (2008)
377.

173

after the eight days,178 suggesting that a suspect may end up being held for
unlimited period of time before they are brought before a court-martial.
Further limitations of the rights of persons held under the Act are that such a person
may be held along with convicted persons; 179 may be held without bail; 180 may be
held in custody even if the offence is punishable by a fine only, or the jail term is no
more than six months.181
Prosecution before a Court Martial vis a viz the Director of Public
Prosecution

[1984] No 2 156 CLR 532 at 540. (Ormerod, D, Smith and Logans Criminal Law 13th Edition London:
Oxford University Press (2008) 377.).

174

Ibid, 378.

175

Dicey, AV., Introduction to the Study of the Law and the Constitution 19th Edition (1959) 303.

176

S.54, (KDF Act).

177

Art. 49(1)(f).

The Prosecution before a Courts Martial is carried out by an officer or counsel

appointed under the Court Martial Rules. Under the constitution, the Director of
Public Prosecutions (DPP) is precluded from instituting or undertaking such
proceedings before a court martial. 182 This is an exception to the constitutional
powers of the DPP to institute and undertake criminal proceedings against any
person before any court.183
Similarly, the DPPs power to take over and continue or discontinue any criminal
proceedings commenced, instituted, or undertaken by any other person or authority
is excluded from the court martial.184 The effect is that the DPP cannot participate in
court martial proceedings.
Appeals

178

S.54(3). (KDF Act)

179

S.54(2)(a). (KDF Act)

180

S.54(2)(b). (KDF Act)

181

S.54(2)(c). (KDF Act)

A person convicted by a Court Martial may appeal to the High Court and
subsequently to any other superior court. 185 However, the initiation of the appeal
can only be with the leave of the High Court itself. 186 One or more judges may hear
the appeal.187
This means that a person convicted by a Court Martial has no locus of appeal as of
right and can only do so if permitted by the High Court to challenge the findings and
convictions. An accused has 21 days to do so. 188
In Obuon v Republic, 189 the appellant, Joseph Ogiddy Obuon was charged in a Court
Martial190 and convicted with committing a civilian offence of treason contrary to
section 69(1)(a)of the Armed Forces Act191 and Section 40(1)(a)(iii) of the Penal
Code192 an offence allegedly committed on diverse dates between April 1 and
August 1, 1982.193 He made an application to the High Court for leave to appeal
against the conviction and sentence for procedural errors. The application was
dismissed finding that Court Martial had followed the correct procedure finding that
182

Ibid.

183

Art. 157(6)(a)

184

Art. 157(6)(b)

185

S.186.

there was ample evidence to show that the appellant had actively participated in
plans to overthrow the government of Kenya.
The DPP has a right to appeal to the High Court against an acquittal or sentence of
an accused person by the Court Martial.194 within 21 days. This contrasts with the
civilian trials where the DPP has no right of appeal against sentence under the
Criminal procedure Code.
Case law shows frequent instances where persons convicted in a court martial have
appealed to the High Court.
186

S.116 (KDF Act) and Armed Forces (Court Martial Appeals) Rules, 1969.

187

S.195 (KDF Act)

188

S.187. (KDF Act.

189

High Court of Kenya, Nairobi, Court Martial Criminal Appeal/ Application No. 3 of 1983 (JHS Todd, E
OKubasu JJ)

190

In Ocheno v Republic,195 the appellants appeal before the High Court was against
conviction and sentence of 6 years imprisonment by a Court Martial 196 on his plea of
guilty on a charge of mutiny197. The review board has declined his appeal for
reduction of sentence. The High Court, having considered his mitigation reduced the
sentence to 4 years.
In Sgt. Josphat Opata Nabwera v Republic, 198 the appellant was convicted and
sentenced by a Court Martial199 on five counts of obtaining money by false
pretence,200 a civilian offence contrary to section 313 of the Penal code; in

Sitting at Langata Barracks

191

Cap 199 of the Laws of Kenya (since repealed by the Kenya Defence Forces Act, 2012).

192

Cap 163 of the Laws of Kenya

193

Usually referred to a 1st August 1982 attempted coup.

194

S.186 (1) & (2). (KDF Act)

contravention of section 69 of the Armed Forces Act. 201 He was imprisoned for a
total of 2 years and 3 months and dismissed from the Armed Forces.
He appealed against the sentence on grounds of violation of his constitutional right
of delay in commencement of the trial,202 evidence at variance with charges,
allegations not proved beyond reasonable doubt and ignoring of his defence by the
court martial.

195

High Court, Nairobi (Appelate Side), Nyeri Court Martial Criminal Case No. 38 of 1984 (OKubasu E, J)

196

Sitting in Langata Barracks, Nairobi.

197

Contrary to S. 25(2) of the Armed Forces Acyt, Cap 199 of the Laws of Kenya.

198

Court Martial Criminal Appeal No. 3 of 2009, High Court of Kenya at Nairobi (Msagha AM, Achonde LA)

199

Persons serving, or who formerly served the Defence Forces can also approach the
High court over constitutional and human rights violation. This is demonstrated in
David Gitau Njau & 9 others v Attorney General.203
Here, the applicants sort a declaration by the High Court that their rights and
fundamental freedoms had been violated204 by the officers of the Kenya Army
claiming violations of torture, harassment, cruel, inhuman and degrading treatment
and being held in detention incommucado, for a period of eight months and
eventually being released without charge or arraignment in court. They further
prayed for general and aggravated damages. The court found for the petitioners
and awarded general damages including the declaratory prayers.

Sitting at Langata Barracks

200

201

Cap 199 of the Laws of Kenya (since repealed by the Kenya Defence Forces Act, 2012).

202

Art. 50(20)(e) (S.72 and 77 repealed constitution)

203

Petition No.340 of 2012, High Court of Kenya, Constitutional and Human Rights Division.

204

Contrary to sections 70(a0, 72(3), 7491) and 77 of the repealed constitution and now Articles 27(1),
(2), 49(1)9f) and 50(2) of the Constitution of Kenya 2010.