The criminal process is undertaken by the State, which is the prosecutor, it investigates and is in charge of criminal proceedings.  The criminal process is believed to attach on public interest as opposed to the civil process that attaches on individuals. Criminal proceedings are believed to be of a public nature.  Whenever criminal acts are committed the public generally is affected and the public needs to be protected from criminal activity.

Protection of Public Interest - Underscoring the security that the general public would like to feel that the State has capacity to protect the public.

To secure the rights of the accused person – the rights of the accused are found in under Article 73 of the Constitution.

The right of the victim to crime is also to be considered.  Increasingly there is need to recognize that the victim of crime has certain needs that need to be protected.

The parties to criminal proceedings are the State as the main complainant and therefore it is always the State versus the individual with the state representing all the citizens.    In this regard there is room allowed under the Criminal Procedure Code for individual prosecution.  Citizens who feel that the state is not willing to take up their cases and have to tender evidence in court can approach court and the court at its discretion has to agree to allow the person bringing the private prosecution whether to proceed.

In criminal process there is the regime of criminal courts, the structure and jurisdiction of the courts are clearly indicated firstly within the constitution.
The court structure in Kenya has

The Supreme Court which has
(a) exclusive original jurisdiction –
(i) in respect of presidential election petitions; and
(ii) in disputes arising from the process of the impeachment of the President; and
(b) appellate jurisdiction  to hear appeals from the Court of Appeal or from any other court or tribunal as prescribed by an Act of Parliament.

The Court of Appeal – original jurisdiction in contempt proceedings and it is essentially an appellate court and it is the court that sets out policy as its decisions are binding

The High Court – has various divisions i.e. in Nairobi there is the Criminal Division, Civil Division, Family Division and Commercial Division and the Constitution Court.  the Chief Justice can constitute a constitutional court out of any three divisions to sit as a constitutional court.  the Constitutional bench is important as it has to deal with the violations and contravention of the accused persons who can go to the constitutional court to seek redress.

The subordinate courts are of different levels
  • Chief Magistrate
  • Senior Principal Magistrate
  • Principal Magistrate
  • Senior Resident Magistrate
  • Resident Magistrate
  • District Magistrate

The important thing about the levels is attached to the jurisdiction that the courts have.  From the Chief Magistrate  to Senior Resident Magistrate they all have the jurisdiction to grant the death penalty.  The lowers courts have jurisdiction of a maximum jurisdiction of 7 years imprisonment while the DM courts have the jurisdiction of 2 years imprisonment.  For example a resident magistrate cannot entertain a plea regarding robbery with violence which carries a death sentence. 

The High Court since it has original jurisdiction can hear any case be it traffic or others but there are cases which are exclusively triable by the High Court which are murder and treason,  these two cannot be tried in the subordinate courts.  The subordinate courts can try manslaughter but not murder or treason.

Under the CPC there are provisions that relate to first class magistrates having jurisdictions to hear appeals.  These appeals are only from District Magistrates Class III which no longer exist.

Magistrates Courts Act
Magistrates Courts Amendments Act

All the magistrates from CM to Dm are professional lawyers.  In some of the remote areas, there could be a District Magistrate class I who is a lay magistrate.


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