CRIMINAL LITIGATION

11th & 12th LECTURES: TRIAL PROCESS AND MATTERS ARISING

a) Right of fair hearing

 Protected by the Constitution of Kenya in the following terms:
’77.(1) If a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair
hearing within a reasonable time by an independent and impartial court established by law.’
 Other ingredients of a fair hearing:-

• Accused presumed innocent until he/she is proved or has pleaded guilty [s. 77(2)(a)].

• Accused to be informed as soon as practicable, in a language he/she understands and in detail, of the nature of the offence with
which he/she is charged [s. 77(2)(b)].

• Accused to be given adequate time and facilities for preparation of his/her defence [s. 77(2)(c)].

• Accused to be permitted to defend himself/herself before court in person or by a legal representative of his/her choice [s. 77(2)(d)].

• Accused to be afforded facilities to examine in person or by his/her legal representative the witnesses called by the prosecution
before the court and to obtain the attendance and carry out examination of witnesses to testify on his/her behalf before the court on
the same conditions as those applying to witnesses called by the prosecution [s. 77(2)(e)].

• Accused to be permitted to have without payment the assistance of an interpreter if he/she cannot understand the language used at
the trial of the charge [s. 77(2)(f)].
N.B.: Trial to take place in accused’s presence unless he/she otherwise consents or he/she conducts himself/herself in such a
manner as to render the conduct of the proceedings in his/her presence impracticable, in which case the court may order
him/her to be removed and for the trial to proceed in his/her absence.

b) Witnesses (special types of witnesses – minors, key witnesses & expert witnesses)

i. Minors – When the term ‘minor’ is used in reference to a person, it simply means one who is below the age of legal
st
majority or adulthood (Chambers 21 Century Dictionary).
Child - The Children Act, No. 8 of 2001 defines ‘child’ to mean any human being under the age of 18 years.
- A child of tender years is defined by the Act to mean a child under the age of 10 years.

 S. 125 of the Evidence Act, Cap. 80 provides, inter alia, as follows:

‘125.(1) All persons shall be competent to testify unless the court considers that they are prevented from understanding the
questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether
of body or mind) or any similar cause.’

 S. 19 of the Oaths & Statutory Declarations Act, Cap. 15 permits the reception of evidence, not on oath, of a child of tender years if the
court considers the child to be of sufficient intelligence and understands the duty to speak the truth such as to justify reception of the
child’s evidence.

 However, s. 124 of the Evidence Act qualifies s. 19 of the Oaths & Statutory Declarations Act by requiring corroboration of the child’s
evidence by other material evidence before the child’s evidence can form the basis of a conviction EXCEPT in sexual offences. The
exception was introduced through the following proviso:
‘Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence,
the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be
recorded in the proceedings, the court is satisfied that the child is telling the truth.’

ii. Key witness

 Simply means a witness who is crucial for purposes of proving commission of the offence, e.g. an eye witness.
N.B.: Ordinary witnesses, including eye witnesses, give factual evidence.

iii. Expert witness

 Defined in section 48 of the Evidence Act as follows:

 ’48.(1) When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identify genuiness of
handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such
foreign law, science or art, or in questions as to identity or genuiness of handwriting or finger or other impressions.
(2) Such persons are called experts.’

c) Lunacy & incapacity of accused person

 The substantive law on the subject of lunacy/insanity is summed up and codified in sections 11& 12 of the Penal Code, Cap. 63
which provide:
’11. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until
the contrary is proved.
12. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is
through any disease affecting his mind incapable of understanding what he is doing, or knowing that he ought not to do the act
or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by
disease, if such disease does not in fact produce upon his mind one or more of the effects above mentioned in reference to
that act or omission.’

 As to what happens when the issue of lunacy/insanity arises in criminal proceedings, section 162 CPC provides that the court shall
inquire into the fact of unsoundness and make appropriate orders. Section 163 stipulates the procedure to be followed when an
accused initially found incapable of making his/her defence is eventually found capable of making a defence.

 Section 164 CPC authorises resumption of accused’s trial.

 In the event of a final finding being made that the accused was insane at the time he/she committed the act in question, section 166
CPC, inter alia, provides:
‘166.(1) Where an act or omission is charged against a person as an offence, and it is given in evidence on the trial of that
person for that offence that he was insane so as not to be responsible for his acts or omissions at the time when the act was
done or omission was made, then if it appears to the court before which the person is tried that he did the act or made the
omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the
accused was guilty of the act or omission charged but was insane when he did the act or made the omission.
(2) When a special finding is so made, the court shall report the case for the order of the President, and shall meanwhile
order the accused to be kept in custody in such place and in such manner as the court shall direct.
(3) The President may order the person to be detained in a mental hospital, prison or other suitable place of safe custody.’
N.B.:
i. The officer in charge of the place of detention is required to make periodic reports for consideration by the President
who may subsequently order the detained person to be discharged on such conditions, if any, for ensuring the safety
and welfare of the detained person and of the public.
ii. The burden of proving an averment of insanity once it is raised lies with the accused, who has to show on a balance
of probabilities that at the time of commission of the act in question (killing), he was:-
• Suffering from a disease affecting his mind.
• That through such disease he was incapable
− of understanding what he/she was doing; or
− of knowing that he/she ought not to do the act or make the omission in question.
Ref. Chemagong –vs- Republic [1984] KLR 611.

d) Production of exhibits

 Chambers 21st Century Dictionary defines ‘exhibit’, among other things, as an object or article produced in court as part of the evidence.

 Oxford Dictionary of Law defines ‘exhibit’ as a physical object or document produced in a court, shown to a witness who is giving
evidence, or referred to in an affidavit.
 Production is normally by the person who has been keeping custody of the exhibit. In criminal cases, this would usually be the
investigating officer.
N.B.: For illustration, refer to the pullover of one of the robbers in Echakara’s case – see Annexure.
 In the case of documentary exhibits, the author of the document would ordinarily produce it, unless there are circumstances warranting its
production otherwise than through the maker.

 Examples of documents which may be produced otherwise than through the maker thereof are given in section 77 of the Evidence Act.
The section provides:
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 ’77.(1) In criminal proceedings any document purporting to be report under the hand of a Government analyst, medical
practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for
examination or analysis may be used in evidence.
(2) The court may presume that the signature to any such document is genuine and that the person signing it held the office
and qualifications which he professed to hold at the time when he signed it.
(3) When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner and
medical practitioner or geologist, as the case may be, and examine him as to the subject matter thereof.’

e) Direct Examination/Examination-in-Chief, Cross-Examination and Re-Examination of Witnesses

 These types of examinations are provided for under section 145 of the Evidence Act. The section states:

‘145.(1) The examination of a witness by the party who calls him shall be called examination-in-chief.
(2) The examination of a witness by the adverse party shall be called his cross-examination.
(3) Where a witness has been cross-examined and is then examined by the party who calls him, such examination shall be
called his re-examination.’
N.B.:
(a) The examination-in-chief and cross-examination must relate to relevant facts, but the cross-examination need not be
confined to the facts to which the witness testified in his examination in chief [s. 145(2) Evidence Act].
(b) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new
matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine
upon that matter [s. 145(3) Evidence Act.]

f) Close of prosecution case

 When evidence of witnesses for the prosecution is concluded, one of three things may happen:-

i. If the court considers there is no evidence that the accused committed the offence, the court shall, after hearing, if necessary,
such arguments as both sides may desire to submit, record a finding of not guilty – see s. 306(1) CPC.
ii. If 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, to give evidence on his/her own behalf or make an unsworn statement, and to call witnesses in
his/her defence.
N.B.:
In all cases, the court shall require the accused or his/her advocate to state whether it is intended to call any
witnesses as to fact other than the accused; and upon being informed thereof, the court shall record the fact [s.
306(2) CPC].

iii. If the accused says he does not intend to give evidence or make an unsworn statement, or to adduce evidence, then the
prosecution may sum up its case against the accused and proceed to decide the case on the evidence tendered). 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 [s. 306(3) CPC].

g) Submission (of no case to answer)

 It happens frequently in criminal trials that at the close of the prosecution case, the defence makes a submission that the prosecution
evidence does not disclose a prima facie case such as to require placement of the accused on his/her defence. In such event, the
defence submits that there is no case to answer.

 The question of what a prima facie case is was considered in Ramanlal Trambaklal Bhatt –vs- R [1957] E.A. 332 where the then Court
of Appeal for Eastern Africa, inter alia, pronounced itself essentially as follows:-
• A prima facie case is not made out if, at the close of the prosecution, the case is merely one
‘which on full consideration might possibly be thought sufficient to sustain a conviction.’
• The question whether there is a case to answer does not depend on whether there is
‘some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence.’
• A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence.

 The court then proceeded to prescribe what a prima facie case means in the following terms:

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 ‘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.’

h) Ruling

 If at the close of evidence for the prosecution and after hearing submissions from both sides, if any, the trial court finds that a case is not
made out against the accused sufficiently to require him/her to make a defence, i.e. no case to answer, the court shall forthwith acquit the
accused [s. 210 CPC].
 If at the close of evidence for the prosecution, and after hearing submissions for both sides, if any, the trial court finds that a case has
been made out against the accused sufficiently to require him/her to make a defence, the court shall so inform him/her. In such event the
court shall explain to the accused the different modes of giving evidence in his/her defence:-
• Evidence on oath, and be liable to cross-examination;
• Statement not on oath, which does not subject the accused to cross-examination;
• Right to call witnesses to examine or other evidence to adduce in his/her defence.
After the accused elects his/her preferred mode of defence, the court proceeds to hear the accused and his/her witnesses and other
evidence, if any [s. 211 CPC].

i) Final Submissions

 Section 213 CPC, which relates to trials before subordinate courts, is to the effect that the order of speeches is the same as in the High
Court.

 Section 310 CPC (relating to trials in High Court) provides:

‘310. If the accused person, or any one of several accused persons, adduces any evidence, the advocate for the prosecution
shall, subject to the provisions of section 161, be entitled to reply.’
In other words, the Advocate for the accused addresses the court first.
N.B.: The proviso to section 161 CPC provides that where the Attorney-General or Solicitor-General appears personally as advocate
for the prosecution, he/she shall in all cases have the right of reply.

 Section 311 CPC is to the effect that if the accuse does not give or adduce evidence and the court considers there is evidence that the
accused committed the offence, the advocate for the prosecution sums up the case against the accused and the accused or his/her
advocate replies.
This means the Advocate for the prosecution addresses the court first.
ANNEXURE

HIGHLIGHTS OF EVIDENCE IN THE 1987 ACHIYA ECHAKARA CASE

[Recalled. Also see excerpts at <http://www.newsfromafrica.org/newsfromafrica/articles/art-583.hmtl>]

Court: Nairobi Principal Magistrate

Charge: Robbery with violence
Judgement: Delivered August 13, 1987
Accused: About 3, jointly charged with others not before the court. Armed with various crude weapons, e.g. iron bars, etc.
Evidence of
identification
relied on: Single eye witness

Time of robbery: Around 7-8pm

Scene of crime: Neighbourhood of The Carnivore, Nairobi.

 One of the accused, arrested not very long after the robbery, was found wearing a blood-stained pull-over/sweater.

 Part of the evidence for the prosecution was that when the Hon, Echakara, Assistant Minister was descended upon by the robbers, he put
up a physical fight against them in his defence and came into physical contact with them.

 There was only one eye-witness at the time, a female companion, one Ms. Margaret Musungu (Ugandan).

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 It was her evidence that she recognised some of the armed robbers at the time they robbed Echakara of various valuables and inflicted
on him severe body injuries from which he later died.

 The single indentifying/eye witness described the major physical features of the robbers to the Police. She also described one (Gibson
Njau) as having worn at the time a pull-over/sweater bearing the colour (green) of the one exhibited in court. She also described another
accused as having had a gap in his upper teeth (Peter Murigi) who indeed answered to this description.
 The witness picked some of the suspects at a subsequent identification parade.

 Forensic tests revealed that the blood stains on the pull-over matched Echakara’s blood group which was different from that particular
accused’s blood group.

 Some cloth fibres matching those of the pull-over that accused was said to have been wearing at the time in terms of texture and colour
(green) were found embedded on Echakara’s coat, which was of a different colour (grey) and texture.

 The prosecution contended that the broadly accurate description by Musungu of the accused persons, her identification of them at a
subsequent identification parade plus her demeanour in the witness box depicted her as a truthful witness who had positively identified
the robbers at the material time and place and that on that score alone her evidence should be accepted to found a basis for conviction of
the accused. We also urged that the circumstantial evidence about the blood stains and cloth fibres provided corroboration.

 The pull-over plus other exhibits were produced by the Investigating Officer after narrating how he acquired them, had them
subjected to forensic tests and kept them in police custody pending their production in court, which he did.

 The accused were convicted by the Principal Magistrate’s court. It is understood that they appealed and one was acquitted on appeal
while the conviction and sentence of the remaining two were confirmed though they were granted Presidential clemency in February
2003.
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