CHAPTER 0NE

THE NATURE OF CRIMINAL PROCEEDINGS

1.1 Introduction

Criminal procedure code and practice is a branch of law concerned with how individuals alleged to
have contravened the criminal law are dealt with/processed in order to determine their guilt or
innocence. i.e., Criminal procedure code is procedural and not substantive law.

The efficacy of any criminal procedure law is to be determined from how it strikes a balance between
balancing the interests of the society to punish the crimes through instruments of the state and
ensuring that the rights and inherent dignity of the offender are respected.

The main players in a criminal proceeding are usually the state and the accused labelled as Republic
V X with X representing the accused. Due to the public nature of criminal proceedings, it is the state
itself that initiates proceedings on behalf of the public even though the individual citizens are often
the wronged party.

The centrality of the state and the accused as the main parties to a criminal suit was restated in
Republic v Cap Van International Ltd and Another where it was held that there are only two parties
who are recognized by law; the Republic, which prosecutes the case, and the accused person. The
complainant in a criminal proceeding has no right of audience and can only communicate to the
court through the prosecutor.

1.2 Complainant

A complainant is a person who lodges a complaint with the police or any other lawful authority. 1 On
the other hand, a complaint is an allegation, that some person, known or unknown has committed or
is guilty of an offence. The state may therefore be seen as a complainant with the right to not only
complain but also prosecute by virtue of having an interest in the protection of the rights of all
citizens.

The Courts

Courts can only express such powers as are expressly given to them by law. Any purported arrogation
of powers to itself that a court does not possess is an unlawful that is of no legal effect and amounts
to a nullity. In Sir Ali Bin Salim v Sharrif Mohamed Shatry2 it was held that:

‘If a court has no jurisdiction over the subject matter of the litigation, its judgments and orders,
however precisely certain and technically correct, are mere nullities and not only voidable; they are
void and have no effect as estoppel or otherwise, and may not only be set aside at any time by any
court in which they are rendered, but be declared void by any court in which they may be presented.
It is well established by the law that jurisdiction cannot be formed by consent of the parties and any
waiver on their part cannot make up for the lack or lack of the jurisdiction.’

1
Criminal Law (Amendment Act) No. 5 of 2003.
2
[1938] KLR 10, cited in the case of Republic v Chairman, Lands Disputes Tribunal Kirinyaga District and another
ex-p Peter Maru Kariuki [2005] eKLR (Misc Civil Appeal 129 of 2004).
The court of appeal has no inherent jurisdiction and instead derives its jurisdiction from statute.
Absence of a statutory provision conferring a right of appeal means that the C.O.A will not accept an
appeal. In Kariuki v Republic3, the Court of Appeal held that it had no jurisdiction to hear an appeal
against a refusal by the High Court to admit an appeal out of time. The rationale behind the same
was that there was no statutory provision donating any such powers.

NB// Although the court of appeal majorly has appellate jurisdiction, it also has original jurisdiction
limited to the hearing and granting of applications for injunctions, stay of execution and other
preservatory orders under rule 5(2)(b) pending the hearing of appeals.

The High Court

- Est under article 165 of the constitution as a superior court of record.

- Unlimited original and appellate jurisdiction in all civil and criminal matters.
- All other powers that may be conferred on it by the constitution and any other laws.
- The court of Appeal in the Delamere Case explained its understanding of the unlimited
understanding of the High Court:
o ” The High Court on the other hand can hear all matters without regard to territory
or the subject matter in dispute. In criminal proceedings, it has the jurisdiction to
try the pettiest of offenders to the murderer. Likewise, in civil matters, it has the
jurisdiction to try a claim for the meanest amount without regard to the origin of
the claim. Of course, it does not normally do so; it would be overwhelmed by the
sheer volume of the work. That is our understanding of the phrase:’… unlimited
jurisdiction in civil and criminal matters…’
- There’s a principal judge of the High Court elected by the judges from among themselves.
The High Court is presided over by the judges.
- The High Court has the enforcement jurisdiction as espoused under article 165(3)(b).
o It has the jurisdiction to determine whether a right or fundamental freedom in the
Bill of Rights has been denied, violated, infringed or threatened.
o Such right may be invoked by the subject-citizen or by another person or
association on his behalf.4
o The High Court is the predominant locus for the enforcement of the bill of rights.
o However, subordinate courts may also hear and determine applications for redress
founded on the Bill of Rights. They can only do so in accordance with such original
jurisdiction in cases as appropriated by parliament.5
- The High Court has Appellate jurisdiction. However, it is not unlimited. It exists only where
provided for in the statute.6
o A person convicted of an offence on a trial held by a subordinate court of the first
or secomd class may appeal to the High Court. Appeal may be on a matter of fact
or a matter of law.7

3
[1984] KLR 809.
4
Art 22(2) of the Constitution.
5
Ibid, Art 23(2).
6
Ibid, Art 165(3)(e).
7
S 347 of CPC.
 o No appeal is allowed in the case of an accused person who has pleaded guilty and
has been convicted on that plea by the subordinate court. One can, however,
8
appeal on the legality of a sentence.
o The state, through the DPP, has the right of appeal to the High Court against the
acquittal of an accused person by a subordinate court as well as appealing against
an order by such court refusing to admit a complaint or formal charge or dismissing
a charge as a matter of law.9
o In Mwangi v Republic,10the accused person was charged with the offence of
robbery with violence and in the alternative, handling stolen property. He was
convicted of the latter offence but acquitted of the charge of robbery with violence
for lack of proof. He appealed against the decision of the trial court; and the first
appellate court set aside the conviction on the alternative charge and substituted a
conviction for robbery with violence. On second appeal, it was held that since
there was no appeal by the Attorney General against the acquittal of the appellant,
the first appellate court had no jurisdiction to alter the acquittal of the appellant
for the formerly charged offence and to pass a sentence of death for it.
o The High Court also has the jurisdiction to hear an appeal from the decision of a
tribunal appointed under the constitution to consider the removal of a person
from office.
- The High Court has interpretative jurisdiction to hear any questions regarding the
interpretation of the constitution.

Initial stages of criminal proceedings

An investigation, in relation to a crime, is the process of gathering information, analyzing it,

identifying the relevant parties and organizing this information in a form to determine whether an
offence has been committed, and if so, who has committed the offence.

SEARCH AND SEARCH WARRANTS

A search is an attempt to find something. It is the careful examination to find hidden items. Like an
arrest, a search of the suspects premises is an infringement to their fundamental rights and
freedoms and particularly the right to privacy as espoused in article 31 of the Constitution of Kenya
2010.

This right, however, is not absolute and may be limited as per article 24 of the constitution in the in
the interest of public safety and order.

The Constitutional Court of South Africa in Bernstein v Bester No 1996 (2) 751 (CC) recognized that
the right to privacy protects a “continuum of privacy interests”: Justice Ackerman stated thus:

“The truism that no right is to be considered absolute, implies that from the outset of
interpretation each right is always already limited by every other right accruing to another
citizen. In the context of privacy this would mean that it is only the inner sanctum of a person,
such as his/her family life, sexual preference and home environment, which is shielded from
erosion by conflicting rights of the community. This implies that community rights and the
8
Ibid s 348.
9
Ibid, s 348A.
10
[2005] KLR 371.
 rights of fellow members place a corresponding obligation on a citizen, thereby shaping the
abstract notion of individualism towards identifying a concrete member of civil society.”

The invasion of the privacy of the individual in the interests of the society should be done properly
within the law. In Dennis Itumbi V Attorney General & 2others [2018] eKLR, the late Justice Louis
Onguto opined that:

“40. Fundamental rights and freedoms are not water-tight or inalienable. This is with the
exceptions to the article 25 rights. The right to privacy is thus not absolute. With regard to
the power to search and seize which is an overriding power of the state for the protection of
social and personal security, the law clearly regulates when such power may be interfered
with. A person’s home, or property or even his own person may not be searched except under
a warrant of the court properly and regularly obtained: see part VII of the Nations Police
Service Act No.11A of 2011”

The conduct of searches is a serious intrusion upon the privacy and property of a citizen. Lord
Denning in Chic Fashions (West Wales) ltd v Jones 11 first asserted that every man’s house is his castle,
meaning that a police officer is never, in principle, allowed to enter and search a man’s house.
However, there were certain exceptions to thus rule. He stated:

“No man’s house is to be used as a hiding place for thieves or receptacle for stolen goods. If there are
reasonable grounds to believe that there are stolen goods in the house, information can be laid
before a magistrate on oath and the magistrate can then issue a warrant authorizing a constable to
enter the house and seize the goods.”

In the case of Pringle v Bremner and Stirling 12 it was held that when an officer enters a house with a
search warrant, he may not only seize goods in respect of the warrant but also other goods which he
believes, on reasonable grounds, to be material evidence on a charge of receiving or stealing against
the person in possession or anyone related.

In reinforcing this position, Salmon L.J posed

“If the man’s person is not sacrosanct in the eyes of the law, how can the goods which he is
reasonably suspected of having stolen or received be sacrosanct?”

There are 2 recognized searches in law:

- Search with a warrant

- Search without a warrant.
1. Search warrant

The law provides for the use of search warrants which are basically judicial certifications of limitation
to an individual’s right to privacy. The power to issue a warrant is vested only in the court or the
magistrate. Before invading an individual’s privacy, no matter how well intentioned, the police must
seek permission from the court and the court will not issue a warrant upon presumptions only.

11
[1968] 2 QB 299.
12
[1867] 5 Macph. 55.
The police must state on oath the basis upon which they seek a warrant. This is usually the anything
upon, with or in respect of which an offence has been committed, or anything which is necessary for
the conduct of an investigation into an offence, is or is suspected to be in the possession of somebody
or somewhere.

Although the courts do not insist on a high threshold of proof before issuing a search warrant, there
must be a reasonable basis for the same. This judicial position was adopted in the case of Vitu Ltd v
The Chief Magistrate at Nairobi and 2 others13. Osiemo J held that it was expected that when a
police officer or any other investigator approaches the court for a warrant, he must show
reasonable suspicion of an offence being about to be committed or having been committed.

The contents of a search warrant are:14

- The offence with which the person, place or thing being searched is related.
- The name or description of the person, place or thing being searched.
- The person(s) to execute the search warrant.
- An order to the executor of the search to seize the products of the search and produce them in
court issuing the warrant or any other court with jurisdiction to be dealt with in accordance
with the law.

NB// A search warrant may be issued on any day, including Sunday, and may be executed on any
day, including Sunday, between the hours of sunrise and sunset.

However, the court my authorize the executor named therein to execute it at any hour.

A warrant shall remain in force until it is executed or until it is cancelled by the court which issued
it.15

A warrant of arrest may be directed to one or more police officers and to all other officers of the
area within which the court has jurisdiction. Where necessary, a court may order a warrant to be
executed immediately and may be executed by any person where no police officer is immediately
available.

A police officer or any other person executing a warrant shall notify the substance thereof to the
person to be arrested and if so required shall show him the warrant.

BAIL

It is the release from custody, pending a criminal trial, of an accused on the promise that money will
be paid if he absconds.

In making the decision on whether or not to grant bail, the court has to balance interests. A person is
presumed innocent until they are proven guilty.16

13
H C Misc Application no 475 of 2004.
14
S 122 read together with s 102 of the CPC.
15
S 102(3) CPC.
16
Article 50(2)(a). j
Charges

where a charge is altered under this subsection the accused may demand that the witnesses or
any of them be recalled and give their evidence afresh or be further cross-examined by the
accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right
to re-examine the witness on matters arising out of further cross-examination.