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CRIMINAL PROCEDURE

                   

Criminal procedure gives one process and procedures of accessing the courts.  What happens when somebody is arrested etc.

This is the trial process which relies on the Law of Evidence.  The Constitution lays the foundation upon which criminal procedure is premised.

The Process
The process starts by way of a complaint done through the police process.  Person alleging is required to write statement, produce witnesses, record witness statements, if an offence has been committed police make the decision to arrest the culprit and take him to court.

  1. Complaint
  2. Arrest
  3. Charges
  4. Plea
  5. Trial
  6. Judgment
  7. Sentence

The above sequence may change depending on the offence and the sequence may start with an arrest i.e. where a person snatches a handbag.  It is not necessary that a complaint be made first.

Charges to prefer are found in the Penal Code or any other statute that creates criminal offences.  A charge can be referred to as information.  Basically it lays in a clear precise manner what the specific charge is.  Laid out according to the various sections of statutes that have been contravened.

Depending on the length of time, the Police can decide based on the offence whether to give bail the charges stage.  Mostly police frequently give bond in traffic cases.  If the accused is not given bail/bond or given and told to go to court then the stage of Plea taking comes in.

Plea taking – the accused goes to court and the charges as laid out are read to the accused.  The charges must disclose an offence.  if an offence is not disclosed the court may discharge or a fresh complaint may be put in the court.  if the charge is proper, it is read to the accused and the accused is given an opportunity to respond.  in case of petty offence like drunk and disorderly the charges are read and the accused person pleads.  In case of serious cases if the accused person pleads guilty the court prosecutor is required to go through the file and give an evidence of what is contained in the police file.  Then the accused person is required to respond to the charge.  If they agree with the facts as set out in the prosecution file, they are convicted on their own plea.  If the accused person does not agree with certain things in the prosecution file or dispute facts the court will enter a plea of not guilty.  The court will then consider whether or not to grant bail.  If the court considers that bail should be granted, it is then granted and under normal circumstances the accused person’s right to bail should be automatic unless prosecution has objection which does not necessarily mean that the court should deny bail.  The court has no information about accused persons before them and so the court cannot make an independent decision unless the prosecution brings details to the attention of the court.

Once the bail terms are set, if the accused is given bail with security or sureties, the court goes through the process of going through and verifying the sureties.  In sureties there are three parties, the accused person signs bonds himself, the surety who is to ensure that the accused attends to court and if they fail to ensure they forfeit the security.  If the court is satisfied, the accused person is released.  It is a requirement under the CPC that where an accused person has been denied bail or where they cannot raise bail, the case has to be mentioned every fourteen days.  The court keeps a master diary and there is the court that takes pleas and the plea taking court gives hearing dates.  If the court has given a hearing date, it means that before the hearing the accused person is supposed to be in custody for a certain period so in between the court will give mention dates if it is longer than the fourteen days.  Depending on what offence the accused has been charged with the court that is taking the plea must ensure that it has the jurisdiction to take the plea.  SRMs upto Chief Magistrates have jurisdiction to award upto the death penalty so if the case is to do with death sentence only SRMs and Chief Magistrates can take plea.

Trial
Innocent until proven guilty.  It is the prosecution that has the obligation to tender evidence and prove its case beyond reasonable doubt so that during the trial the prosecution will bring all their witnesses who gave evidence and the accused and the court will determine whether there is a case to answer,   evidence adduced by the prosecution should be such evidence that it can convict the accused.  If the court finds the accused has no case to answer they are acquitted under Section 210.  at the defence hearing stage the court has a duty to explain to the accused that they have a case to answer and should explain to the accused about their options.  The accused person is at liberty to call witnesses.  All witnesses are required by the law to either be sworn or be affirmed and in our legal system there is no place for a person to read an unsworn statement.  The defence after this will close their case

Judgment

The court will write a judgment and there are provisions in the CPC on what is required in a judgment.  There is no standard structure of what a judgment should look like but we have a structure of what the judgment must contain.
1.                     It should be easily understood – this is because this is how the court communicates and it has to ensure that anyone reading the judgment can understand.

2.                    It must contain the verdict of the court – if an accused is charged with several counts of theft, the judgment must be specific on which counts he has been found guilty and which ones he has been found innocent.

3.                    If the accused is not guilty they are discharged under Section 215 of the CPC, where a verdict of guilty is pronounced the court requires the prosecution should produced records of the accused e.g. previous offences, all relevant information.  The prosecution confirms to the court and the accused is given the opportunity to admit and dispute previous convictions. If they dispute the court has to conduct a mini trial to establish the truth and the prosecution is invited to produce evidence and the accused can present their case and produce witness. Once it is settled the accused person is given an opportunity to mitigate.  The accused persons counsel usually mitigates for the accused.  Under Criminal Law Amendment of 2003 we have victim impact statement which means that a primary victim (direct victim of crime) is allowed to address the court through a statement saying how the offence has affected them. If you were car jacked or lost a limb one is allowed to address the court on how they have been affected.  Where someone losses their lives next of kin are allowed to come and give their Impact Victim Statements.  This is usually in cases where there is violence and injury.

Sentencing

The court takes into account all the things that have happened after judgment to be able to determine what kind of sentence to award.  In Kenya there are those mandatory cases with a death sentence and where the court is sentencing such persons they do not consider any other options.  But in other cases they have options such as community service, fines, juvenile courts etc.  There are no cases with rational sentencing,  there is no codified sentencing mechanism policy. 

 
 
 

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