THE TRIAL PROCESS IN KENYA.

By Prof. PLO Lumumba on Monday the 25th day of August, 2014.

OUTLINE
The Criminal trial process essentially takes the following format:
Formal Complaint made by the Complainant to the Police.
Investigations are then carried out by the Police
Compilation and presentation of evidence is done and then forwarded
to the Prosecutor.
Dispute resolution i.e. the trial process in Court.
Commencement of the Trial Process.
Plea taking marks the commencement of the trial process in a criminal
court. After a decision has been taken to prosecute an accused person
he/she is brought before a court of law to plead to the charge(s) laid against
him.1
The suspect (s) is arraigned in Court and given a chance to take his Plea
and the following procedure is adhered to:
The substance of the charge(s) shall be read to the accused person, by
the court clerk, he shall be asked whether he admits or denies the
truth of the charge.
The plea is read in a language the accused person understands.
Magistrates courts use English or Kiswahili languages. If the accused
person cannot understand either of the 2 languages, an interpreter is
availed by the court. every constituent of the charge should be
explained to the accused, he should be required to admit or deny
every such constituent2
If the accused person admits the charge(s) the admission shall be
recorded by the court as nearly as possible in the words used by him.
1 Section 207-208 of the Criminal Procedure Code
2 Hando son of Alwnaay vs- R ,[1951] E.A.C.A 307
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 The prosecution will outline the facts surrounding the offence to the
court.
The accused person is given an opportunity to admit, dispute, explain
or add any facts. If the accused person denies the facts, a plea of not
guilty is entered on the court record.
If the accused person does not admit the charge, a plea of not guilty
shall be entered in the Court record.
Where there is more than one accused jointly charged, the plea of
each should be recorded separately.
Whenever a plea of guilty is to be entered, great caution, must be
exercised because as the court said in the case of Byarutu Gata v R3,
the word 'guilty' is one to be treated with the greatest caution. It is a
technical expression.
Plea bargaining is not practised in the Kenyan Legal System as it
would be deemed to negate a free and voluntary plea4.
Where the plea of guilty is recorded without explaining the offence
alleged, the conviction based on such a plea will not be sustained and
must be set aside.
When asked to plead the accused may adopt any of the following
approaches:
1. Plead guilty
2. Plead not guilty
3. Say nothing - this is entered as a plea of not guilty or the court may
try if the accused is of sound or unsound mind.
4. Assert that the court has no jurisdiction, over him.
5. Demurrer; give a legal objection, that is, admit the facts but say they
do not amount to an offence known to law.
6. Plead Autrefois Convict.
3 [1950] 17 E.A.C.A 125.
4 See the case of Sabur v R (1958)EA 126 (HC4) which although a colonial case represents
contemporary

Kenyan criminal Jurisprudence.

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7. Plead Autrefois Acquit

8. Plead, (having been previously) pardon(ed).

What happens after Plea Taking?

After Plea taking, the trial Court will give directions as per the following:

A mention date,
Hearing date,
Bond or bail terms and
The trial court to hear the matter.

If the accused person admits the facts that gave rise to the charge then the
court will convict the accused person on the charges admitted.
The prosecutor informs the court if the accused person is a first offender or
if he has been convicted before.
The accused person will mitigate; inform the court the circumstances of
the case, his background and any other issue the court should consider
before sentencing.
Then the court will pass sentence.
The Hearing Process
When a plea of not guilty is entered, the prosecution opens the case, gives a
brief outline of the prosecution's case indicating who it intends to call as
witness.
The prosecutor is entitled to address the court 5. The court prosecutor states
the number of witnesses for the case.
Defense counsels introduce themselves and their names placed on court
record. The witnesses will remain outside the court and go in the court as
each of them testifies. Every witness will give evidence on oath or
affirmation
The witnesses are numbered as Prosecution Witness (PW1, 2, 3...) one and
must give evidence on oath. A trial Magistrate must make it clear that the

5 Section 213 Criminal Procedure Code (Cap 75).

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accused will be given opportunity to cross-examine. The prosecution should

lay before court all material evidence available to it for unfolding its case6
Examination in Chief/Direct Examination.
This is the most important part of the trial; the fulcrum on which the whole
case oscillates.
The prosecutor outlines the evidence to prove their case through witnesses
and production of exhibits.
It must relate to relevant facts. The purpose is to obtain from the witness in
as chronological a manner as possible, evidence that supports the case of
the person calling him or her7.
Legal requirements for an examination in chief.
1. Competence of your witness -The general principle is espoused in
section 125 (1) of the Evidence Act, that 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 of body or of mind and any similar cause
2. Relevance of your witness' testimony- Relevant evidence is
evidence that has some (any) tendency; however slight, to make the
existence of a fact of consequence to the case more or less probable
than it would be without it.
3. Proper evidentiary foundation or predicate for the admissibility
of the evidence- the evidence must be admissible
Cross Examination.

6 See R v Daniel Ole Osoi, Cri. Case No. 2.422 of 1996 Where the Magistrate ruled that
the prosecution
was enjoined under section 77(e) of the Constitution to provide the
defence with a list of its witnesses
and their statements. The Attorney-General has since appealed against the ruling .

7 146(2), of The Law of Evidence Act,Cap 80

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Cross-examination is the examination of a witness by the adverse party.8

The witness is asked questions regarding the evidence he/she has given in
court by the accused person or his advocate.
The purpose of cross-examination is to;
elicit information concerning facts in issue or relevant to the issue and
is favorable to the party on whose behalf the cross examination is
conducted,
to cast doubt upon the accuracy of the evidence in chief given against
such party.
present the accused persons line of defense
test the credibility of the witness
Legal Requirements.
Article 50, (2), (k) of the Constitution of Kenya 2010, provides for the right
to a fair trial which includes the right to adduce and challenge evidence.
Section 146(2) of the Evidence Act gives direction as to how far cross
examination can be taken. Under Section 302 of the Criminal Procedure
Code it provides that witnesses called for the prosecution shall be subject
to cross-examination by the accused person or his advocate.
Section 151 of the Evidence Act stipulates that leading questions be
asked in cross- examination. Leading questions are questions asked in a
trial which suggest an answer. Section 156 of the Evidence Act provides
that a person charged with an offence and called as a witness for the
defence may be asked any question in cross- examination notwithstanding
that the answer may tend to incriminate him as to the offence charged.
Re-examination.
Where a witness has been cross-examined and is then examined by the
party who called him, such examination shall be called his re-examination
.It is a kind of retrieval process. This is when you try to heal the wounds
that were opened up in cross examination.
Legal Requirements of Re-examination.
8 Section 145(2) Evidence Act Cap 80 Laws of Kenya
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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 matter9
The court also has powers to ask a witness questions for the purpose of
clarifying points. If the court exercises its discretion to permit a witness to
be recalled either for further examination-in-chief or further crossexamination (as in cross-examination of deponents of affidavits), the party
whose witness is recalled has a right of re-examination. 10 Leading questions
must not (if objected to by the adverse party) be asked in re-examination.11
Close of the Prosecution Case.
After, all the prosecution witnesses have testified, the prosecution will
inform the court that it is the close of the prosecution case.
Submissions/Closing Arguments.
The legal standard of proof in criminal cases is that the burden of proof is
on the prosecution to prove the case beyond reasonable doubt.
The prosecutor and defence counsel or the accused person will make oral
submissions (Closing Statements) to the court on whether a prima facie
case is established by the prosecution or not.
In practice with the leave of the court, written submissions are allowed.
Submissions contain a summary of the evidence on record, the law that is
relevant to the case, the ingredients of the charge(s)and what each party
prays the court to do.
Ruling.

9 Section 146 (3) of the Evidence Act

10 Section 146(4), Evidence Act, Cap 80, Laws of Kenya
11 Section 150, Evidence Act.
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The court will consider the arguments and submissions and find out if the
prosecution has made out a prima facie case against the accused to require
that the accused be put on his defense.
If such a case is made out, the court will deliver a ruling that the matter will
proceed to defense hearing.
If the prima facie case is not made out, the court will in its ruling, dismiss
the case and discharge the accused person under section 210 of the
Criminal Procedure Code (CPC).
Defence Hearing.
During the defense hearing, the accused person will exercise the options of
giving evidence as prescribed in section 211 CPC. The accused person will
inform the court the witnesses to be called to testify on his behalf.
The witnesses testify using the same procedure as that of prosecution
witnesses.
Final Submissions.
The defense counsel and the prosecution will make final submissions to the
court.
Judgment.
After, the close of proceedings, the court gives a judgment date or judgment
on notice.
On the scheduled date, the judgment is read out by the magistrate or Judge
to the accused person and in public in a language he/she understands.
The court pronounces the conviction or acquittal under section 215
Criminal Procedure Code.
Types of Sentences.
The court will consider the facts from the Judgment vis--vis the types of
punishment in section 24 of the Penal Code and the principles of
sentencing; then write and read the sentence meted out to the accused
person.
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S. 24 of the Penal Code and other laws set out the various forms of
punishments that may be imposed by Courts in Kenya. These are: Death
Imprisonment
Suspended sentences
Fine
Forfeiture
Payment of compensation
Security to keep peace and be of good behavior
Absolute and conditional discharges
Probation
Community service orders

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