A criminal trial commences when on the hearing date an accused person is called upon to take his place in the dock.
· The charge is then read to the accused and his plea taken. As a preliminary process the prosecutor is expected to inform the court of the number of witnesses they intend to call and to indicate their readiness to proceed. It is important for the prosecutor to indicate to the court the number of witnesses he will call. Usually in every court there are courts that take plea and others that don’t but every court has mentions, they have hearings, judgements etc. the court has to determine whether to do mentions first, of those who are in remand and those who are out on bail. The court then does a call over for the hearing that are there for the day for purposes of determining how many witnesses are there for each case and which cases is most ready to proceed.
· If the prosecution is ready to proceed the accused has a right to be defended by an advocate of his choice, the court should ensure that the advocate is present.
· Section 194 provides that the accused must be present personally or where his presence has been dispensed of represented by his advocate if any throughout the trial.. this position was restated in Afumu & Another v R 1956 26 KLR 87- the appellant an omnibus driver was jointly charged with the owner of assault for causing actual bodily harm. When the principal witness was about to give evidence it emerged that the appellant was absent his advocate applied for adjournment which application was rejected. The trial proceeded in the absence of the accused but in the presence of his advocate. They were subsequently convicted and the magistrate proceeded to cite his own (magistrate’s) experience with misconduct of African omnibus drivers.
· After the plea is read and taken, the trial then starts by the prosecution tendering its evidence.
· The prosecution has ..
Section 197 of the CPC makes provision for the manner of recording evidence before magistrates. The evidence of each witness taken down in writing or typewriter in the language of the court by magistrates or in his presence and hearing and under his personal direction and superintendence and shall be signed by the magistrate and shall form part of the record.
The evidence shall not be ordinarily be recorded in question and answer form but in narrative form cause the same to be taken down i.e. the question and answer combined provided that the magistrate may take down specific questions and answers or cause the same to be taken down.
There is also provision that evidence may be taken by shorthand.
In practice magistrate or judicial officers record evidence by hand and the Magistrate’s file is the only record of the proceedings. This comes with a lot of limitations. Firstly it is not humanely possible for a magistrate to capture everything a witness is saying, one can develop selective hearing and so one never knows whether the record captured everything as it should have. For an accused person this becomes an uphill task to convince the court that something was said and not recorded.