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JUDGMENT



At the end of trial the judicial officer shall proceed to write the judgment of the court
Section 169 provides that each and every judgment shall be written by or under the direction of the presiding officer of the court in the language of the court.  The judgment shall contain the points for determination, the decision thereon and the reasons for the decision.  It shall be dated and signed by the presiding officer in open court, at the time of pronouncement.  In the case of a conviction the judgment shall specify the offence and the section of the law creating it, which the accused is convicted and the punishment.

In case of an acquittal the judgment shall state the offence of which the accused is acquitted and direct that the accused be set at liberty.   The accused shall be given a copy of the judgment or a translation.

The first paragraph of the judgment should contain a brief statement of the offence together with the brief particulars.  Secondly the next paragraph should contain a summary of the evidence of the prosecution it should be in narrative for so it should not be a summary of the evidence related by each and every witness instead their evidence should be embodied in one story with reference being made where there are differences or contradictions.


Thirdly the next paragraph should be a summary of the defence case – usually one should state the evidence of the accused.  Make it clear that there is some convergence.  Where there are differences it should be indicated in the paragraph.  Reference should be made of contested or uncontested matters in the judgment.

The magistrate should not deal with irrelevancies but should proceed to the crux of the matter – what are the issues?  They must appreciate the issues before the court,  any discrepancy must be considered at this stage.  They must expose the evidence to scrutiny before judgment.

Conclusions based on the analysis of the evidence and reasons for the conclusions.  Whatever reasons one gives must be anchored to the law.  the reasoning must be legally competent.

The judgment must in no uncertain terms give a verdict.   The verdict must be in respect of accused person in each and every count.  Any unusual circumstances arising in the course of trial should be recorded where relevant.  One should make reference to the unusual circumstances in the judgment.  

One must look at the standards of proof, in criminal cases it is beyond reasonable doubt.  In many criminal cases corroboration is required.  The judgment must make reference to the corroboration.  Rules of evidence must be followed.  For example where there was a confession, the judgment must indicate that there was a confession.

The issue of the accused persons character, evidence of accused bad character must be excluded unless the accused bring character into issue.  The judgment must indicate who the accused character became an issue.

It is easy to be tempted to think that because the accused is a liar.

Circumstantial evidence probative value must be assessed by the court.  Elander v R  it was held that in a case depending on circumstantial evidence court must find that inculpatory facts are consistent with the …  there must be no other explanation other than that the accuse is guilty.

DELIVERY OF JUDGMENT

S. 168 – substance of judgment shall be explained in open court.  the practice is that unless it is very short or straightforward most judgments are reserved judgments.  The rules are that the prosecution or the defence can make an application for the whole judgment to be read.  The courts read the whole judgment.  One can read the key issues arising in judgement such as the judgment and then give copies of the judgment for parties to peruse at their own time.  Where the accused is being acquitted

No alterations can be made on the judgment after delivery.  The court cannot on its own review the case, after delivery of judgment the court becomes functus officio

In R v Gikunja (1948) 23 1 KLR 43 – the magistrate added a few notes to his signed judgment.  The Kenya Supreme Court held that a judgement should contain all the reason which have acted on the magistrate’s mind before coming to his conclusion.  There is no other forum for a magistrate after reading judgment to explain the judgment.

NOTE – Until judgment has been given and a decision made does the court proceed to give a sentence.  Judgment does not contain a sentence.  Judgment is about determining the verdict.

 
 
 

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