1.The Supreme Court of Kenya Introduction The Supreme Court is a fundamental creature of the Constitution of Kenya. It is the highest court in Kenya.1 Supreme Court in general refers to the apex of the judicial system.2 It is the Supreme Court which has the final say, in proper matters before it, to act as the final court.3 The Supreme Court is a court of last resort and all its decisions are binding to other courts apart from itself 4.The makers of the constitution saw it right, to create a higher court than the court of appeal to ensure that the new constitution was going to be well guarded. The Supreme Court in 1 Khalid Salim, A critique on the general importance rule on appeals to the Supreme Court of Kenya. <http://www.academia.edu/6534082/A_critique_of_the_General_Public_Importance_ Rule_on_appeals_to_the_Supreme_Court_of_Kenya > accessed 7th March 2016. 2 J.B Ojwang, ‘Supreme Court Of Kenya: Insider’s Perspective on the Emerging Groundwork’ (2016) pg 1. 3 Ibid. 4 Article 163 (7) of the Constitution of Kenya. essence therefore has a central role in the protection of the Constitution and in the realization of its fruits so that it may inure to all within its borders. It is thus the work of the Supreme Court to have a watchful eye over the play of the Constitution in the fullest sense.5 Establishment The Supreme Court is established under Article 163 of the Constitution of Kenya. It is the final arbiter and interpreter of the Constitution. 6 Composition of the Court The court is composed of 7 judges who are referred to as the judges of the Supreme Court. The court shall be headed by the Chief Justice who shall be the President of the Supreme Court.7 The deputy chief Justice shall deputise the Chief Justice and be the vice president of the court,8 and five other judges.9 The order of precedence of the judges of the Supreme court is that, The Chief Justice will be the President and shall have precedence over the other judges, then the deputy Chief Justice shall follow, the other judges of the Supreme Court shall take precedence among themselves, according to the dates on which they 5 Raila Odinga v Independent Electoral and Boundaries Commission, Petition No 5 of 2013, para 301. 6 <http://www.judiciary.go.ke/portal/page/supreme-court> accessed 7th March 2016. 7 Article 163 (1) (a) of the Constitution of Kenya. respectively took office as judges of the Supreme Court. If two or more judges took office on the same day then precedence among them shall be determined according to the professional seniority with the most senior taking precedence. 10 It is important to note that at some point the Supreme Court may have more than 7 judges as provided by Article 163 of the Constitution of Kenya. This is by dint of Article 167 (3-4) of the Constitution which provides that where the Chief Justice’s term of office expires before he retires the chief justice may continue as a judge of the Supreme Court. A new Chief Justice may then be selected in accordance with the Constitution even though that appointment may result in there being more than the maximum number of judges permitted to hold office. 11 8 Ibid, (b). 9 Ibid, (c). 10 Supreme Court Act No. 7 of 2011, s (5) (1-4). 11 The operative word is may, as the Constitution realizes that the next judge of the supreme court may be selected from the current Supreme court judges and thus if the immediate former chief justice remains the number will still be seven. Finally, the Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges. 12 This means therefore where the Supreme Court has four judges holding office at a time or three judges are not available for whatever reason there is no supreme court. Jurisdiction The Constitution of Kenya gives the Supreme Court jurisdiction on matters it can hear. The Supreme Court shall have: 1. Exclusive original jurisdiction to hear and determine disputes relating to the elections of office of president. 2. Appellate jurisdiction to hear and determine appeals from the court of appeal as of right in cases involving the interpretation or application of this Constitution 3. Appellate Jurisdiction to hear and determine appeals from the court of appeal in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved. 4. Appellate Jurisdiction to hear and determine appeals from any other court or tribunal as provided by national legislation. 5. Jurisdiction to give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government. 6. Jurisdiction to review a matter certified by the court of appeal as being of public importance. 7. Jurisdiction to determine on validity of a declaration of a state of emergency any extension of a declaration of a state of emergency and any legislation enacted or other action taken, in consequence of a declaration of state of emergency.13 12 Article 163 (2) of the Constitution of Kenya. 13 Article 58 (5) of the Constitution of Kenya. Advisory Opinions The Constitution provides that the Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning the county government. 14 Any matter that requires an advisory opinion should be related with the county government. This was necessitated by the new creation of the county governments by the Constitution and it was considered right to have a process by which matters arising from the new County governments could be sorted out. The complication anticipated by the devolution process made it important to have the apex court give an advisory opinion beside the ordinary judicial mechanism. 15 The first matter to come before the Supreme Court seeking to invoke the advisory opinion jurisdiction was In the Matter of Interim Independent Electoral Commission16 where the date of the first general election was to be ascertained. Was it a matter concerning the county government so as to invoke the jurisdiction of the court? The answer was in the affirmative. The court stated that: 14 Article 163 (7) of the Constitution of Kenya. 15 J.B Ojwang, ‘Supreme Court Of Kenya: Insider’s Perspective on the Emerging Groundwork’ (2016). 16 Supreme Court Const. Application No. 2 of 2011. we would hold that election date is a question so central to county government. para 41. 2 of 2012. in relation to the request for an Advisory Opinion…” 17 In the same matter the court went ahead and pronounced an important principle of status with regard to the enforcement capabilities or weight take The court held that an advisory opinion may not be capable of enforcement as an ordinary decision would but it must be treated as an authoritative statement of law. 18 Ibid. It also added that the opinion sought must not only guide the organ that sought it but all governmental or public action thereafter. It provided: 17 Ibid. . Otherwise not doing so will render Article 163 (6) of the Constitution an idle provision. para 93.“Now on the facts of the instant case. 18 In the Matter of the Principle of Gender Representation in the National Assembly and the Senate19 the advisory opinion sought was on two specific questions. 19 Supreme Court Advisory Opinion No. most importantly whether the Constitution required a progressive realization of the enforcement of the one-third gender rule or be implemented during the general elections scheduled for 4 th March 2013? The court with a majority decision favored for a progressive realization of the one-third gender rule. as to lie within the jurisdiction of this Court. The general election conducted by the Independent Electoral and Boundaries Commission (IEBC) declared Mr. The case of Raila Odinga v Independent Electoral and Boundaries Commission20 was the one which caught the attention of the nation as it was pitting the President-elect and the first runners-up of the Presidential election. Uhuru Kenyatta the President elect after garnering 50% plus one votes and 25% of votes cast in more than half the counties. enforceable right as far as the composition of the National Assembly and Senate are concerned. If the measures contemplated to ensure its crystallization into an enforceable right are not taken before the elections of 4 March 2013. not having ripened into a specific. . Article 81(b) will not be applicable to the said elections. Article 140 provides that a person may file a petition to challenge the election of the President elect within seven days after declaration of the results of the presidential election. then it is our opinion. it follows – and this is the burden of our Opinion on this matter – that it cannot be enforced immediately. Three petitions were filed thereafter in the Supreme Court: first challenging the inclusion of the rejected voted in the total tally on the ground that it distorted the percentage gotten by the president. The third contested the declaration of the Presidential-elect and Deputy Presidential-elect. It goes further to provide that the Supreme Court shall hear and determine the petition and it decision shall be final. The court pronounced that it was well noted that the elections were in no way perfect it posed the question. The second contested the manner in which the electoral process was conducted by IEBC. Presidential Elections Perhaps one of the most significant jurisdictions given by the Constitution of Kenya to the Supreme Court is the exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140. did the petitioner prove to the court that the election was so devoid of merit that it did not reflect the wishes of the people? 21 20 Petition No 5 of 2013.“As Article 81(b) of the Constitution standing as a general principle cannot replace the specific provisions of Articles 97 and 98. The cases above give a clear outline of the Supreme Court jurisdiction on advisory opinion with matters that concern the county government. Both cases were consolidated for hearing. any extension of a declaration of state of emergency and 21 Ibid. does not disclose any profound irregularity in the management of the electoral process. Uhuru Kenyatta sworn in as the President of Kenya. on the facts of this case. It is not evident.It asserted that it was with this broad test that the election petition was to be decided upon and whether the presidential election was to be disturbed. that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such. 22 Ibid. 23 Ibid. para 306 . nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public. para 304.” 23 The above case represented the first case before the Supreme Court that invoked Article 163 (3)(a). Declaration of State of Emergency The Supreme Court has been given the jurisdiction to decide on the validity of state of emergency declared. With this therefore the Supreme Court upheld the Presidential elections and thus Mr. 22 The court therefore held as follows: “In summary. the evidence in our opinion. The Court of Appeal under the Constitution of Kenya (2010) 24 25 B. On October 26th 1977. 2. In the case of Anarita Karimi Njeru V. Decolonisation & Independence in Kenya 1940-93: East African Educational Publishers (1995).A Ogot & W. the one theme that has remained constant is that as an appellate tribunal. the power to uphold or reverse decisions of lower courts and the power to substitute a new judgement or order a new trial25. going as far back as the dawn of the 20th Century. This case contained the evolution of the Court of Appeal over time.any legislation enacted or action taken in consequence of a declaration of state of emergency. It provides that a person may petition the court for the determination of the validity of matters relating to a state of emergency within seven days of its declaration by the President or upon its extension by the National Assembly. the Court stated that. the Court of Appeal has only been able to entertain such appeals as statute has declared appealable to it. the Kenyan Court of Appeal was established by the thirteenth amendment of 1977.24 Section 30 of the Supreme Court Rules 2012 provides for petitions relating to validity of a state of emergency.R Ochieng (ed). COURT OF APPEAL Brief History Following the collapse of the East African Court of Appeal in. as Justices of the Court of Appeal26. Court of Appeal under the old regime had appellate jurisdiction. The Repulic27. The Court of Appeal has never enjoyed a supervisory role. President Jomo Kenyatta swore in two High Court judges. Mr Justice Samuel William Wako Wambuzi and Mr Justice Eric John Ewan. . The Court of Appeal is a superior court under the Constitution. The basic and traditional roles of the Court of Appeal are. Constitution of the Court of Appeal Article 164 of the Constitution states that. to hear appeals and to interpret the law29. 26 Key Dates in Kenya’s History by Maria Kanini Wambua (Nation Media Library) <http://www.Article 164(1) of the Constitution of Kenya (2010) establishes the Court of Appeal 28. being not fewer than twelve. 29 Momanyi Bwonwong’a. 1994) pg 23. . Constitution of Kenya 2010.co. Criminal Law in Kenya (East African Publishers Ltd.nation. 27 (No 2)(1976-80) 1 KLR 1283. the Court of Appeal is a creature of statute.ke/news/Key-dates-in-Kenyahistory/-/1056/2108572/-/6j2j2hz/-/index. The Court shall consist of the number of judges. 28 Art 164.html> accessed on 15th March. Though established in the Constitution. as may be prescribed by an Act of Parliament 30. The function of the panel shall be.Note 4 Art 164.. 2011. 30 Supra. For purposes of transparency in the recruitment of judges. distinguished academic or other experience in other relevant legal field.Section 30(2). Hold a degree from a recognised University. the Judicial Service Commission shall constitute a selection panel consisting of at least five members32. 3. . of the Judicial Service Act. 33 Ibid. The candidate can hold any of the above qualification for a period amounting to an aggregate of ten years31. to shortlist persons for nomination by the Judicial Service Commission33.. or possess an equivalent qualification in a common-law jurisdiction.Art 166(4).1. 2. or are advocates of the High Court of Kenya. 32 Section 30(1). 31 Ibid.Article 166(4) of the Constitution sets out the qualifications that one has to meet for appointment as a court of appeal judge which include. Possess at least ten years’ experience as a superior court judge or legal practitioner. 34 Supra. . In the hearing of an appeal in the exercise of the jurisdiction conferred by the Act. 2. the law to be applied shall be the law applicable to the case in the High Court. Note 4 Art 164(2). the power. Section 3 of the Act states that.There shall be a president of the Court of Appeal. authority and jurisdiction vested in the High Court. Jurisdiction of the Court of Appeal. For all purposes of and incidental to the hearing and determination of any appeal in the exercise of the jurisdiction conferred by the Act. the Court of Appeal shall have. with such directions as may be appropriate. Note 4 Art 164(3). 35 Supra. 3. in addition to any other power. The Appellate Jurisdiction Act establishes the jurisdiction and powers of the Court of Appeal. The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court and any other Court prescribed by an Act of parliament in cases in which an appeal lies to the Court of Appeal under law. authority and jurisdiction conferred by the Act. who shall be elected by the judges of the Court of Appeal from among themselves34.1. The Court of Appeal has jurisdiction to hear appeals from the High Court and any other court or tribunal as prescribed by an Act of Parliament 35. to order a new trial and to make any necessary incidental or consequential orders including orders as to costs 37.36 The Court of Appeal has jurisdiction to reverse or vary the decisions of the High Court. Republic 39 the Court held that the Court of Appeal has no inherent jurisdiction and that its jurisdiction is derived from statute. 38 Francis D. it may remit it and the case together with its judgement to the subordinate or High Court for determination as the Court of Appeal may think necessary38. 3. it may make any order that the subordinate court or the High Court could have made. HIGH COURT High Court Criminal Jurisdiction 36 Section 3. Appellate Jurisdiction Act. . Where the Court of Appeal is of the Opinion that the judgement of the subordinate court or of the first appellate court.An appeal to the Court of appeal from a subordinate court against a decision of the High Court may be brought on matters of law only. Only when a sentence has been enhanced by the High Court or where the trial court had no power to pass the sentence. should be set aside or varied on the ground of the wrong decision on a question of law. 37 Patrick Kiage:Essentials of Criminal Procedure in Kenya (Law Africa Publishing (K) Ltd) pg 13. can the Court of Appeal an appeal against a sentence. In the case of Onyango v. The Court of Appeal does not hear matters of fact such as the severity of a sentence.P Situma: Criminal Law in Kenya (Kluwer Law International) pg 110. 41 Supreme Court of Uganda Constitutional Appeal No. Unlimited original jurisdiction The High Court has unlimited original jurisdiction in criminal matters .pg 225 . The head of high court is known as a principle judge who is elected by judges of the high court from amongst themselves.1 of 2002. for its 39 (1983) e KLR (Criminal Appeal No. ii. The number of judges in the high court as per the constitution of Kenya 2010 shall be as stated in an act of parliament though the constitution states so. In the case of Paul K.165 (3) (a) of The Constitution of Kenya. Article 165 also states that the high court of Kenya shall be organised and administered in the manner prescribed by an act of parliament. The act is not yet in place. there is no act in place to certify this provision. 40 The Constitution does not define either the term ‘jurisdiction’ or the expression ‘unlimited jurisdiction’.41 Judge Oder cited Mula on the Code of Civil Procedure as having defined jurisdiction as follows: ‘By jurisdiction is meant authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way. 40 Art.Attorney General. 91 of 1983). Establishment And Composition The high court is established under article 165 of the constitution of Kenya. 2010]. Semogerere & 2 Others –vs.i. The limits of this authority are imposed by statute.42 Article 165(3) (a) subject to sub-Article (5) of the same Article ousts the jurisdiction of the High Court in respect of matters - iii. reserved for the exclusive jurisdiction of the Supreme Court under the Constitution.decision. and the environment and the use and occupation of. land. If no restriction or limit is imposed the jurisdiction is unlimited. the High Court is required to hold its sittings at such places and on such days as the Chief Justice may direct. relating to employment and labour relations.43 The law also empowers the High Court to inquire into and try any offence subject to its jurisdiction at any place where it has power to hold sittings. 44 42 Article 165(1) 43 Section 70 of the Criminal Procedure Code (CPC)]. i. 44 Section 69 of the criminal procedure code . charter or Commission. or falling within the jurisdiction of courts contemplated in Article 162(2). and title to. subject to the High Court Registrar ordinarily giving prior notice of all such sittings. under which the Court is constituted and may be exercised or restricted by the like means.’ In Kenya the High Court is established by the Constitution and vested with unlimited jurisdiction as aforesaid. Venue of sittings For the exercise of its original criminal jurisdiction.e. and the decision of the High Court shall be 45 Section 71 ibid 46 Section 74 ibid . 46 Whenever a doubt arises as to the court by which an offence should be tried. and continues to be committed in more than one local areas. or an offence is a continuing one. the court entertaining the doubt may report the circumstances to the High Court for the High Court to decide by which court the offence shall be inquired into or tried. when it is uncertain in which of several local areas an offence was committed. For instance. or has appeared in answer to summons lawfully issued charging the offence. or is in custody on a charge for the offence. or an offence consists of several acts done in different local areas. Power of the High Court to decide venue of trial in cases of doubt Ordinarily every criminal offence must be tried by a court within the local limits of whose jurisdiction it was committed.iv.45 But it happens at times that by a combination of certain factors. it may be tried by a court having jurisdiction over any of those local areas. or an offence is committed partly in one local area and partly in another. or within the local limits of whose jurisdiction the accused was apprehended. difficulties arise in determining where an offence should be tried. final and conclusive. 48 47 Section 76 ibid 48 Section 81(1) ibid . that a particular criminal case or class of cases be transferred from a criminal court subordinate to its authority to any other criminal court of equal or superior jurisdiction. General power of the High Court to change venue of trials If it is made to appear to the High Court that a fair and impartial trial cannot be heard in any criminal court subordinate thereto. except that it shall be open to an accused to show that no court in Kenya has jurisdiction in the case. or that some question of law of unusual difficulty is likely to arise. or that a view of the place in or near which any offence has been committed may be required for the satisfactory trial of that offence. 47 v. or that such an order is expedient for the ends of justice or is required by any provision of the CPC. the High Court may order that an offence be tried by a court not ordinarily empowered but in other respects competent to try the offence. that an accused person be committed for trial by itself . or that an order (for change of venue) will tend to the general convenience of the parties or witnesses. vi. Transfer by the High Court of case from one magistrate to another upon request by an interested party There are times when a party interested in criminal proceedings may have cause to want such proceedings transferred from a particular magistrate to another. held that: 49 Section 81(1) ibid 50 Section 81(3) ibid 51 Article 157(6) of the constitution of Kenya 2010 . This is permissible for good cause. however after the promulgation of the Constitution of Kenya 2010 the reference to the A-G was replaced with reference to the Director of Public Prosecutions/ DPP . ‘except when the applicant is the Director of Public Prosecutions.49 In such case. 51 For guidelines as to the circumstances in which an application by an accused person for transfer of a case from one magistrate to another may be granted. attention is drawn to Republic -vs. the interested party may apply by motion for the desired transfer.Hashimu. inter alia. NB:*In the old constitution the A-G had overall control over criminal proceedings.50 Section 81(3) CPC mandatorily requires the application for transfer to be supported by affidavit. 52 where the High Court of Tanzania while considering Section 80 of the Tanzania CPC which was similar to Section 81 of the Kenyan CPC. together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. 656 53 1979] KLR 134. a clear case must be made out that the accused person has a reasonable apprehension in his mind that he will not have a fair and impartial trial before the magistrate from whom he wants the trial transferred. 54 while the latter term is used in the High Court.Before a transfer of any trial is granted on the application of an accused person. Arraignment and Plea 52 [1968] E. 56 ii. 54 Section 89(4) criminal procedure code . 53 a) Mode of trial i.g.A. by the High Court of Kenya in Makinda & Another-vs-The Republic .55 The Law provides that every Charge or Information must contain a statement of the specific offence or offences with which the accused person is charged. e. The aforesaid guidelines have been applied in Kenya. Charges and Informations A Charge means the same thing as an Information. save that the former term is used in subordinate courts. and the court finds that he/she has not been duly served therewith. guilty. unless the court otherwise orders. and explained if need be by that officer or interpreted by a court interpreter.59 Where an accused pleads guilty subject to a plea agreement. where the accused is entitled to service of a copy of the Information. 57 In the Kenyan context the accused person to be tried before the High Court upon an Information must be placed at the bar unfettered. the provisions relating to plea agreements shall apply accordingly. he/she objects to the want of service. and the accused must be required to plead instantly thereto. To arraign is to begin a criminal trial on indictment by calling the defendant to the bar of the court by name. reading the indictment to him/her. 58 The accused person may plead not guilty. the Information must be read to him/her by the Registrar or other officer of the court. and asking him/her whether he/she is guilty or not.60 55 Section 274 ibid 56 Section 134 ibid 57 Oxford dictionary of law . unless. or guilty subject to a plea agreement. or that he/she has obtained the President’s pardon for his/her offence. 61 It is open to an accused person to plead that he/she has been previously convicted or acquitted of the same offence. If the accused person pleads not guilty. he/she is deemed to have put himself/herself upon the country for trial and the court proceeds to try the accused either straightaway or subsequently.62 58 Section 274 of the criminal procedure code 59 Section 281(1)ibid 60 Section 281(2) ibid 61 Section 278 ibid 62 Section 279 (1)ibid . 63 If the court finds the said pleas not proved or to be false. the accused shall be required to plead to the Information. the entry of a not guilty plea leads to trial in the normal manner. incapable of making his/her defence. can answer directly to the Information The court may order the Registrar or other officer of the court to enter a plea of ‘not guilty’ on behalf of the accused person. If the accused stands mute of malice. consequently. neither will nor by reason of infirmity. the court shall order the trial to be postponed and the accused to be kept meanwhile in safe custody in such place and manner as it thinks fit and shall report the case for the order of the President. If the accused’s refusal to answer is by malice. If the accused’s failure to plead appears to be by reason of infirmity.If either of those pleas are pleaded and denied. the court shall proceed to enquire whether the accused is of sound or unsound mind. If the court finds the accused to be of unsound mind and. If the court finds the accused to be of sound mind. or. 64 It is also open to the accused person to refuse to plead to an Information (standing mute). it shall proceed with his/her trial. The 63 Section 279(2)ibid 64 Section 279 (3) ibid . the court shall try whether the plea is true or not. President may order the accused to be confined in a lunatic asylum. the law provides that the advocate for the prosecution shall open the case against the accused person and call witnesses and adduce evidence in support of the charge. Case for the Prosecution If a criminal case is to proceed to hearing before the High Court.67 iii. 66Note should also be made of presumption of sanity and as to when insanity may negate criminal responsibility. 68 65 Section 280 ibid 66 Section 162-167 ibid 67 Section 11 and 12of the penal code 68 Section 300 of the criminal procedure code . prison or other place for safe custody. 65 NB:For further details regarding the procedure in dealing with cases of lunacy/insanity or other incapacity of an accused person. R that.69 NB:As to types of examination of witnesses. properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence. i. 322 .A. –vs. It was stated by the then Court of Appeal for Eastern Africa in Ramanlal Trambaklal Bhatt –vs.Wachira 72 and elaborated that if a submission is made that there is no case to answer. Witnesses for the prosecution shall be subject to cross-examination by the accused or his/her advocate. the decision should depend not so much on whether the 69 Section 302 ibid 70 Section 145 of the evidence act cap 80 laws of kenya 71 1957] E. but at least it must mean one on which a reasonable tribunal. counsel for the accused quite often submit that there is no case to answer.’ The High Court of Kenya applied the above principle in R. crossexamination and re-examination.71 ‘It may not be easy to define what is meant by a “prima facie case”. The guiding principle on whether to put the accused on his/her defence is whether a prima facie case has been made out against him/her. and to re-examination by the advocate for the prosecution. thereby necessitating a ruling on the matter.e. examination in-chief.70 When evidence of witnesses for the prosecution has been concluded and before the court considers whether or not there is evidence to put the accused on his/her defence. 262 73 Section 306 (1) criminal procedure code . and in all cases the court shall require the accused or his/her advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused himself/herself. either personally or by advocate (if any). and upon being informed of the accused’s intention. record a finding of not guilty.adjudicating tribunal (if compelled to do so) would at that stage convict or acquit.A. if necessary. inform the accused of his/her right to give evidence on his/her own behalf or to make an unsworn statement. the judge shall record the fact.73 When evidence of witnesses for the prosecution has been concluded and the court considers there is evidence that the accused committed the offence. and that: ‘If a reasonable tribunal might convict on the evidence so far laid before it.’ If the court considers there is no evidence that the accused committed the offence.74 72 1975] E. there is a case to answer. any arguments the advocate for the prosecution or defence may desire to submit. but on whether the evidence is such that a reasonable tribunal might convict. the court shall. the court shall inform the accused of his/her right to address the court. after hearing. inform the accused of his/her right to call witnesses in his/her defence. stating such facts or law on which he/she intends to rely. then the advocate for the prosecution may sum up the case against the accused. the accused or his/her advocate may sum up the defence case. thereafter the accused may give evidence on his/her own behalf and he/she or his/her advocate may examine his/her witnesses (if any) and after the witnesses’ cross-examination. the court shall call upon him/her to enter upon his/her defence. Case for the Defence If the accused is to enter upon his/her defence the accused or his/her advocate may then open his/her case. 76 If the accused adduces evidence in his/her defence introducing new matter which the advocate for the prosecution could not by the exercise of 74 Section 306(2) criminal procedure code 75 Section 306 (3) ibid 76 Section 307 ibid . and making such comments as he/she thinks necessary on the evidence for the prosecution. or to adduce evidence. but if the accused says he/she intends to give evidence or make an unsworn statement. or to adduce evidence.75 iv. If the accused says he/she does not intend to give evidence or make an unsworn statement. 79 If the accused says he/she does not intend to give or adduce evidence and the court considers that there is evidence that he/she committed the offence. Section 161 CPC was based on the old Constitution which gave the A-G overall control over criminal proceedings.reasonable diligence have foreseen. adduces any evidence. 80 v. 77 If the accused person. or any of several accused persons. the advocate for the prosecution shall be entitled to reply. the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it. the advocate for the prosecution shall sum up the case against the accused and the court shall then call the accused personally or by his/her advocate to address the court on his/her own behalf. Close of Hearing 77 Section 309 ibid 78 Section 310 ibid 79 Article 157 (6) of the constitution 2010 . which is to the effect that where the Attorney-General or Solicitor-General is appearing personally in a prosecution. he/she has the right of reply whether the accused adduces any evidence or not. As recorded earlier. the overall power over criminal proceedings has now been vested by the 2010 Constitution in the DPP. 78 NB:It should be noted that Section 310 CPC is subject to Section 161 CPC. When the case on both sides is closed. the judge shall pass sentence on him/her according to law. Others are: robbery with violence . the criminal offences which in practice tend to be tried by the High Court are the capital offences of murder 83 and treason . b) High Court’s Revisionary Jurisdiction 80 Section 311 of criminal procedure code 81 Section 322(1) ibid 82 Section 322(2) ibid 83 Section 204 of the penal code . 81 If the accused is convicted. the judge shall give judgment.84 Further note may be made that murder and treason are not the only capital offences in Kenya. 85administration of unlawful oaths purporting to bind the taker to commit a capital offence 86 and attempted robbery with violence87 but these latter capital offences are tried by subordinate courts.82 NB:Note may be made here for information that although the High Court has unlimited original jurisdiction in criminal matters. It is important to note at the outset that The Constitution vests in the High Court supervisory jurisdiction. over subordinate courts. legality or propriety of any finding.88 For the aforesaid purposes. the High Court is empowered to call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness. any subordinate court and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.89 With particular reference to criminal proceedings. inter alia.90 84 Section 40(3)ibid 85 Section 296(2) ibid 86 Section 60 ibid 87 Section 297(2) ibid . inter alia. sentence or order recorded or passed. The Constitution empowers the High Court to call for the record of any proceedings before. and as to the regularity of any proceedings of any such subordinate court. be made of the following- 88 Article 165(6) of the constitution 2010 89 Article 165(7) ibid 90 Section 362 criminal procedure code 91 Section 364(1) a and b ibid .91 Note should. the High Court may in the case of a conviction. Where the High Court in exercise of its revisionary jurisdiction calls for the record of a subordinate court pursuant to Section 362 CPC. however. alter or reverse the order . in the case of any other order other than an order of acquittal. exercise any of the powers conferred on it as a court of appeal by sections 354. 357 and 358. and may enhance the sentence [see illustration in the extracts from Kinyanjui’s case at the Annex]. the High Court shall not inflict greater punishment for the offence committed than might have been inflicted by the court which imposed the sentence. and that when an appeal lies from a finding. that the High Court does not have to give the accused a hearing if the order to be revised relates to failure by the subordinate court to pass sentence it was required to pass under the written law creating the offence concerned. the sentence or order of the subordinate court shall be upheld. 92 Unlike is the case with regard to the High Court’s appellate jurisdiction where appeals from subordinate courts must be heard by two judges of the High Court unless the Chief Justice directs that they be heard by one Judge. that the High Court cannot in exercise of its revisionary jurisdiction convert a finding of acquittal into one of conviction. and no appeal is brought. that in exercising its revisionary jurisdiction. no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. that no order should be made under this section to the prejudice of the accused unless he/she has had the opportunity of being heard either personally or by an advocate in his/her own defence. sentence or order. all proceedings before the High Court in its revisionary jurisdiction may be heard and any judgment or order thereon may be made or passed by one judge: Provided that when the court is composed of more than one judge and the court is equally divided in opinion.93 92 Section 364 ibid 93 Section 366 ibid . investigate and remove from office or otherwise discipline registrars. Constitution of Kenya. 97 A 94 Art 169 (1).All subordinate courts are trial courts in which criminal and civil cases are filed and determined. Procedures in Criminal Law in Kenya. 2010 95 Bwonwon`ga M (1994). other judicial officers and other staff of the judiciary. the Court Martial and any other court or local tribunal as may be established by an Act of Parliament94. Magistrates are appointed by the Judicial Service Commission and the commission can also receive complaints against. Subordinate Courts Structure of the Magistrates Court The subordinate courts are established under Article 169 (1) of the Constitution of Kenya 2010. a senior resident magistrate or a resident magistrate 96. 2010 .3. 2015 and it commenced on 2nd January. A magistrate means a chief magistrate. Constitution of Kenya. 2010. They are the Magistrates courts. The Magistrates Courts Act 2015 was enacted subject to Article 169 (2) of the Constitution of Kenya. 2016. The act was assented to on 15 th December. a senior principal magistrate. the Kadhis courts. 2015 97 Art 172 (1c). a principal magistrate. magistrates. They are courts of the first instance or fact finding courts whose findings are of crucial importance in appellate and revision proceedings 95. pg 32 96 Magistrates Courts Act. The magistrates court have both criminal and civil jurisdiction. Sect 7(2) 100 Ibid .magistrate’s court shall have and exercise such jurisdiction and powers in proceedings of a criminal nature as may be conferred on it by the criminal procedure code or any other written law. A subordinate court of the second class may pass the following sentences in cases where they are authorized by law. Sect 6 99 Criminal Procedure Code.98 A subordinate court of the first class may pass the following sentences in cases where they are authorized by law. (a) imprisonment for a term not exceeding two years and (b) a fine not exceeding ten thousand shillings100. 2015. (a) imprisonment for a term not exceeding seven year and (b) a fine not exceeding twenty thousand shillings 99. and a magistrate 98 Magistrates Court Act. Jurisdiction of the Magistrates Court The Judicial Service Commission may by notice in the Gazette extend the jurisdiction of any particular magistrate generally or in relation to particular offences triable by a court of a class which may be held by that magistrate. infringement. The magistrate’s court is not conferred with jurisdiction to hear and determine claims for compensation for loss or damage suffered in consequence of violation.whose jurisdiction has been so extended may pass sentences thus authorized in cases where they are authorized by law101.2015. the Senior Principal Magistrate is fifteen million. the magistrate’s courts only hear matters relating to freedom from torture and cruel. Sect 8 102 Magistrates Courts Act. The magistrates courts act 2015 (Sect 7(2)) says. Sect 8 . the senior resident magistrate is seven million shillings and the Resident Magistrate is five million shillings 102. inhuman or degrading treatment and freedom from slavery or servitude. a right or fundamental freedom in the bill of rights. The Chief Justice is to make rules for the better exercise of jurisdiction of the magistrate’s courts. violated. In relation to the bill of rights. the pecuniary jurisdiction of the Chief Magistrate is twenty million. or threat to. Sect 7 103 Magistrates Courts Act. denial of a right or fundamental freedom in the bill of rights. violation or infringement of. This is subject to the High Court jurisdiction to determine the question whether a right or fundamental freedom in the bill of rights has been denied. revise the pecuniary limits of jurisdiction taking into account inflation and change in prevailing economic conditions.104 101 Criminal Procedure Code. the Principal Magistrate is ten million shillings. A Magistrate court has jurisdiction to hear and determine applications for redress of a denial. infringed or threatened 103. 2015. Currently. the Chief Justice may from time to time by notice in the Gazette.2015. (i) environmental planning and protection. Appeals on matters from the designated magistrate`s courts shall lie with the Environment and Land Court. rates. chooses in action or other instruments granting any enforceable interests in land and environment and land generally. 105 Section 26 of the Environment and Land Court Act confers upon the Magistrates court jurisdiction to hear and determine claims relating to. minerals and other natural resources. valuations. tenure. Sect 25 . private and community land and (iii) contracts. rents. boundaries.107 104 Ibid 105 Supra note 2 106 Environment and Land Court Act. title. (ii) compulsory acquisition of land. climate issues. 2015.106 The Chief Justice may by Gazette notice. The police are under a statutory duty to report all sudden deaths including deaths in police and prison custody and also fatal road accidents. mining. Sect 26 107 Magistrates Court Act. 2011. land use planning.The magistrate’s courts also play an important part in conducting inquests in respect of sudden deaths including cases where the deceased persons have committed suicide. appoint certain magistrates to preside over cases involving environment and land matters of any area in the country. public. land administration and management. by notice in the Gazette. court administrator. threatens. Section 12 of the Industrial Court Act and Section 87 of the Employment Act. appoint certain magistrates to preside over cases involving employment and labour relations in respect of any area of the country108. Contempt of court includes a person who in the face of the court assaults. The Chief Justice may. It also includes interrupting or obstructing the proceedings of the court and disobeying an order or direction of the court without lawful excuse in the course of the hearing of a proceeding111. This was however not the position before The Magistrate’s Court Act 2015. judicial officer or a witness during a court sitting. Sect 29 109 Maendeleo Ya Wanawake Organisation v Hellen Makone & another [2014] eKLR 110 ibid . Appeals from the designated Magistrate’s courts. on matters of employment and labour. intimidates or insults a magistrate. 2011.Section 29 of the Industrial Court Act confers upon the magistrate’s court jurisdiction to hear and determine claims relating to employment and labour relations. Chief magistrates court has no jurisdiction to hear the dispute as it falls within the exclusive jurisdiction of the Industrial Court under Article 162 (2) and 165 (5) of the Constitution. The magistrate’s court also has power to punish for contempt. lies with the industrial court 110. in Maendeleo ya Wanawake case109the Industrial court in Nairobi held that. The magistrate’s court may sentence one for contempt to imprisonment for a term not exceeding five days or a fine not 108 Industrial Court Act. THE COURT MARTIAL 111 Magistrates Court Act. 2015. Sect 16 & 23 . A magistrate has jurisdiction to entertain any application and to determine any dispute under the Law of Succession Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed the pecuniary limit of the various magistrates court. One can appeal against an order for contempt of court as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the court. 114 4. Sect 10 (6) & (7) 113 Magistrates Court Act. 2015. 2015. 112 The sittings of a magistrate’s court may be held at any place within the local limits of its jurisdiction.exceeding one hundred thousand shillings or both. so far as is practicable. but it shall. A magistrate`s court may also call for and hear evidence of the customary law applicable to any case before it. be held at the place designated in the Gazette113. Sect 13 114 Magistrates Court act. Sect 10 (1) & (2) 112 Magistrates Court Act. 2015. (Ninth Edition. the soldiers are also subject to the ordinary law of the land 119 (civilian 115 Black’s Law Dictionary. the Air Forces and the Navy. Nairobi: East African Educational Publishers ( 1994) 47. Courts Martials in Kenya are part of the judicial system. namely the Army. 117 The courts are set up for enforcement of disciplining soldiers and officers of the defence forces. Thomson Reuters) 413. 118 Bwonong’a. (Seventh Edition. Oxford University Press) 141. This excludes members of the police service. 118 However. Sweet and Maxwell) 121. Procedures in Criminal Law in Kenya. 117 Osborn’s Concise Law Dictionary.115 or service law and regulations. . M. 116 A court martial tries offences committed by personnel of the armed forces including matters of indiscipline and also violation of ordinary law. 116 Oxford Dictionary of Law. A court martial is an ad hoc military court convened under military authority to try a member of the armed forces accused of violating a military code.The Nature of a Court Martial Unlike several jurisdictions where courts martial are not part of the countries’ judicial system as in the United States of America. (Twelfth Edition. functions and powers on the subordinate courts. Establishment of the Courts Martial in Kenya The Court Martial is established within the Kenya system of courts under article 162 and 169 and is classified under the category of subordinate courts. The courts martial are ad hoc courts in that they are not permanent when the need arises. 2012 following the Repeal of the Kenya Defence Forces Act which applied before September 17. The Act 122 was enacted to provide for the functions. 120 Art.law). 121 The specific constitutional foundation of the Courts Martial is Article 169(1)(c) which in turn is operationalized by the Kenya Defence Forces Act. The Constitution requires Parliament to enact legislation to confer jurisdiction. the Courts Martial. Article 120 establishes the subordinate courts as the Magistrates courts. 169(2) 122 Became effective September 17. . 119 Ibid. 2012. the Kadhis’ courts. 169(1) 121 Art. and any other court or local tribunal established by an Act of Parliament. 2012 (KDF Act hereafter) in furtherance of Article 169(2). if the person being tried is an officer. and three other members. 160 (KDF Act) 126 S. at least one of the members shall be of the equivalent rank of the accused person and at least one other shall be the equivalent of the lowest rank in the unit the accused serves in. pursuant to Art.organization and administration of the Kenya Defence Forces 123 and succeeded the hitherto Kenya Armed Forces Act124 (repealed). However. 232. In each case. 125 S. 239(6) and 241. 160(3) (KDF Act) . 124 Cap 199 of the Laws of Kenya. the other members shall not be less than five and shall be appointed by the Defence Court-Martial Administrator.126 The Chief Justice appoints the judge advocate from 123 Preamble. Composition of the Court Martial The composition of a Court Martial as provided for by the Kenya Defence Forces Act125 consists of a Judge Advocate who shall be the presiding officer. Nairobi: East African Educational Publishers ( 1994) 47.130 and the Judge advocate has a casting vote in favour of the accused. The decision is by majority vote and the accused must be acquitted in the event of a tie. M. 132 127 S.175 (KDF Act) 130 S.129 Each member then writes own decision and is not bound by the decision of the others.128 The role of the judge advocate is to guide and advise the court on matters of law.131 All members must however concur in the event of a death sentence.among magistrates. 127 The Chief Justice is also empowered to make rules to regulate the administration and proceedings in courts martial. or advocates of ten years standing. Procedures in Criminal Law in Kenya. S.174(3) (KDF Act) .160(4) (KDF Act) 129 Bwonong’a. However the final decision is reserved for members of the court martial who deliberate the findings as guided by the recap of the facts and the law by the judge advocate.165 (KDF Act) 128 S. 174(3) (KDF Act) .174(4) (KDF Act) 132 S.134 Where three of more members of the court martial are unable to continue with the trial. the accused may choose to have the matter continue with the new members. The courts martial are required 136 to exercise their powers and discharge their functions in accordance with constitutional values and principles as well as the specific principles espoused in Article 159(2) 137. the successor may continue with the evidence taken to-date or declare a mistrial.In the event of death or inability of the judge advocate to continue with trial to conclusion.133 A mistrial implies that a new court martial is appointed to start trial of the accused.174 (1)(KDF Act) 134 S. 135 Jurisdiction of the Court-Martial The jurisdiction of the courts martial is to hear matters relating to offences and discipline of members of the Kenya Defence Forces. 131 S. This excludes the police who are considered civilian forces. or to have a fresh trial.176 (KDF Act) 133 S. the jurisdiction of the Courts Martial is established by an Act of Parliament.56. Power of High Court over Courts Martial on Habeas Corpus Under the Criminal Procedure Code139. and (e) the purpose and principles of this Constitution shall be protected and promoted. arbitration and traditional dispute resolution mechanisms shall be promoted. of any prisoner detained on a matter pending before a court martial. (b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality.161 (KDF Act) 137 That is to say:justice shall be done to all. (b) justice shall not be delayed.174(2) (KDF Act) 136 S. irrespective of status. order or regulation shall affect the jurisdiction of any civilian court to try any offence subject to trial by a civilian court. . The operative Act is the Kenya Defence Forces Act Cap. 2012. (b) Traditional dispute resolution mechanisms shall not be used in a way that-(a) contravenes the Bill of Rights. 135 S.Like other subordinate courts. code. mediation. No provision in the Kenya Defence Forces Act. or (c) is inconsistent with this Constitution or any written law. (d) justice shall be administered without undue regard to procedural technicalities. 2012. 138 S. The Kenya Defence Forces Act.138 A court martial can seat and have proceedings anywhere in Kenya or outside Kenya. the High Court has power to issue direction in nature of habeas corpus for the production before a court martial. (c) alternative forms of dispute resolution including reconciliation. An order of habeas corpus is a procedural intervention where the High Court. 143 These are provided as. Nairobi: LawAfrica Publishing (2012) 213. Essentials of Criminal Procedure in Kenya. The offences will also attach where two or more persons form a common intention to carry out an unlawful purpose.142 Offences Subject to the Jurisdiction of the Court-Martial The acts or omissions which constitute an offence under the jurisdiction of the Courts Martial are outlined under section 57 of the Kenya Defence Forces Act. intervenes to enforce accountability among law enforcers and executive to require the production of a person before court. 25(d) . abetting any person in committing an offence. actual committal of an offence. an act of omission with the intention of aiding someone to commit an office. 140 An order of habeas corpus is one of the constitutional rights and fundamental freedoms141 and which may not be limited. once moved.. 141 Art. P. of the release of such a person. 139 S. 51(2) 142 Art.3891)(d) (Criminal Procedure Act) 140 Kiage. counselling or procuring any person to commit an offence. 145 S.58 to 73. drunkenness and quarreling.The Act goes on to provide the specific offences and applicable punishment principally in sections 58 to 136. 150 flying offences.144 offences relating to desertion and absence without leave.152 offences concerning courts martial and other authorities. the person fails to obey a lawful order in war.149 offences relating to billeting and requisitioning of vehicles.156 robbery or attempted robbery with violence and administration of illegal oaths to commit a capital offence. a convicted person faces the mandatory death sentence are.153 and miscellaneous offences. 143 KDF Act. 146 insubordination.151 offences related to custody. treachery. fails to engage an enemy. 2012 144 S. 148 offences relating to property. 155 The others are the civil offences of treason or murder. fails to assist a friendly force. withdraws.154 The most serious offences under the Act in that.74 to76 146 S.147 malingering. .77 to 81. traitorous act when in action. fails to pursue an enemy. These are grouped into. and forsakes a station. cowardice and offences related to service.145 offences relating to disobedience of orders. 87 to 96. Corporal Walter Odira Ojode.97 to 98. 150 S.84 to 86. 149 S. were sentenced to death and promptly hanged on conviction of 147 S. Corporal Charles Oriwa Hongo and Corporal Bramwell Njereman. Private Hezekiah Ochuka Rabala.157 communication with an enemy so as to aid the enemy. Sgt.161 and failure to suppress a mutiny. 82 to 83. 160 mutiny. 151 . Pancras Oteyo Okumu 163 and Sgt.Other offences which attract liability for the ultimate death sentence are. 158 spying. 148 S.159 advocating an governmental change by force. Snr. aiding an enemy. Joseph Ogidi Obuon. 1982 attempted coup.162 The last time a court martial sentenced a service man to death was in 1985 following the trials subsequent to the August 1. The accused were found guilty of deserting duty in violation of section 74(1). in November 2014. the Courts Martial sentenced many service men to long sentences in prison following hurried trials at the Courts Martial. sentenced four soldiers to life imprisonment. during war time. 166 The same court handed a similar sentence to four soldiers on January 12. 155 S. at the time.164 Also. In more recent times.109 to 110 154 S.the offence of treason. 165 They left military in 2007 and 2008 and joined the US private security firms in Afghanistan. a Court Martial sitting at the Kenya Navy in Mtongwe Base. 2016 also for deserting the military to work in Syria.111 to 136. Jordan S. Kuwait and Iraq. 152 S.102 to 105 153 S.61 .99 to 101. where a person commits a sexual offence outside Kenya. who is charged with certain civilian offences. bringing to 12 the number of soldiers convicted of the offence at the Court Martial.60 160 . that person will be tried and sentenced by a court-martial. notwithstanding that the person is subject to the Kenya Defence Forces Act. namely. 167 A Court-Martial does not have jurisdiction to try any civilian person who is subject to the Kenya Defence Forces Act.Iraq and other Middle East Countries. the sexual offences under the Sexual Offences Act 168 and any law against domestic violence. 170 The Paradox of Orders From Superiors in Military 156 S.169 However.58 158 S.133 157 S. 59 159 S. 171 the House of Lords and the Privy Council asserted that there is no defence of superior order in English Law. The issue is the dilemma that faces military officer or serviceman between obeying an order which may turn out to be unlawful. 35 of 1984. Gicher JE. (Mbaya W. against being charged with the offence of disobedience of orders under sections 77 to 81.wordpress. Criminal Appeal No. How Rest of Military Plotted Against Kenya Air Force https://nyambegagisesa.73 163 See Pacras Oteyo Okumu v Republic.67 161 S. In Clegg. 172 In A v Hayden.com/2015/04/10/how-rest-of-military-plotted-against-kenya-airforce/ . JJ) 164 Nyambega Gisesa. .72 162 S. 2016.173 the High Court of Australia was emphatic that the executive had no power to authorize an illegal a breach of the law and the excuse of an offender to say that he acted the authority S.accessed on March 25.A controversy which surrounds the offence of failure to obey an order from superiors has been variously discussed in judicial process. ke/article/2000142473/court-martial-jails-four-soldiers-for-life-two-othersto-face-fate-today . and to be hanged by a judge… if he obeys it. 166 Court martial jails four soldiers for life. ask questions later”.html .” In Kenya. This observes Ormerod 174 can be particularly harsh for military personnel in the face of military orders. thereby imperiling the innocent solder.nation.Accessed March 25. 168 No 3 of 2006.co. 2016 167 Ex-soldiers jailed for life by court martial . it is reflected in the common saying “obey the order.of a superior officer would not be acceptable.http://www.Accessed March 25. 165 Should be a reference to Kenya’s participation in the AMISOM forces in Somalia. 169 .standardmedia. Omerod recalls words of Dicey175 that “a soldier may be liable to be shot by a court-martial if he disobeys an order.ke/news/Ex-soldiers-jailed-for-life-bycourt-martial/-/1056/2588406/-/849ykk/-/index. 2016.co. two others to face fate today http://www. Service men are trained to take orders and obedience is almost a reflex action. 173 .55(1). (KDF Act). 171 [1995] 1 All ER 334 at 244.55(2).Limitation of Rights of an Arrested Person for appearance in a Court Martial A member of the Defence Forces held with view to appearing before a Court Martial or before a commanding officer may be held for up to 8 days. 170 S. the commanding officer is empowered to review his decision S. Smith and Logan’s Criminal Law 13th Edition London: Oxford University Press (2008) 377. Moreover. 172 Ormerod. (KDF Act). D. 176 This is a limitation of the constitutional right of an arrested person under Article 49 where an arrested person must be arraigned in court within twenty-four hours or by the earliest next court day177. Introduction to the Study of the Law and the Constitution 19th Edition (1959) 303. AV.181 Prosecution before a Court Martial vis a viz the Director of Public Prosecution [1984] No 2 156 CLR 532 at 540. 179 may be held without bail.after the eight days.. . 174 Ibid. 180 may be held in custody even if the offence is punishable by a fine only. 175 Dicey.178 suggesting that a suspect may end up being held for unlimited period of time before they are brought before a court-martial. D.). 176 S.54. or the jail term is no more than six months. Smith and Logan’s Criminal Law 13th Edition London: Oxford University Press (2008) 377. 177 Art. Further limitations of the rights of persons held under the Act are that such a person may be held along with convicted persons. 378. (KDF Act). (Ormerod. 49(1)(f). 184 The effect is that the DPP cannot participate in court martial proceedings.183 Similarly.The Prosecution before a Courts Martial is carried out by an officer or counsel appointed under the Court Martial Rules. instituted. the Director of Public Prosecutions (DPP) is precluded from instituting or undertaking such proceedings before a court martial. (KDF Act) 179 S. (KDF Act) .54(3).54(2)(b). Under the constitution. the DPP’s power to take over and continue or discontinue any criminal proceedings commenced. (KDF Act) 180 S. or undertaken by any other person or authority is excluded from the court martial. Appeals 178 S.54(2)(c). (KDF Act) 181 S. 182 This is an exception to the constitutional powers of the DPP to institute and undertake criminal proceedings against any person before any court.54(2)(a). 187 This means that a person convicted by a Court Martial has no locus of appeal as of right and can only do so if permitted by the High Court to challenge the findings and convictions. The application was dismissed finding that Court Martial had followed the correct procedure finding that 182 Ibid. . 157(6)(b) 185 S. An accused has 21 days to do so.186. 157(6)(a) 184 Art. 186 One or more judges may hear the appeal. the initiation of the appeal can only be with the leave of the High Court itself. 1982. 185 However. 183 Art.193 He made an application to the High Court for leave to appeal against the conviction and sentence for procedural errors. Joseph Ogiddy Obuon was charged in a Court Martial190 and convicted with committing a civilian offence of treason contrary to section 69(1)(a)of the Armed Forces Act191 and Section 40(1)(a)(iii) of the Penal Code192 an offence allegedly committed on diverse dates between April 1 and August 1.A person convicted by a Court Martial may appeal to the High Court and subsequently to any other superior court. 188 In Obuon v Republic. 189 the appellant. 194 within 21 days. 186 S. Case law shows frequent instances where persons convicted in a court martial have appealed to the High Court. Court Martial Criminal Appeal/ Application No. E O’Kubasu JJ) 190 . Nairobi. 3 of 1983 (JHS Todd. 187 S. The DPP has a right to appeal to the High Court against an acquittal or sentence of an accused person by the Court Martial. 1969. (KDF Act.116 (KDF Act) and Armed Forces (Court Martial Appeals) Rules.there was ample evidence to show that the appellant had actively participated in plans to overthrow the government of Kenya. This contrasts with the civilian trials where the DPP has no right of appeal against sentence under the Criminal procedure Code. 189 High Court of Kenya.195 (KDF Act) 188 S.187. In Sgt. 2012). 192 Cap 163 of the Laws of Kenya 193 Usually referred to a 1st August 1982 attempted coup. in Sitting at Lang’ata Barracks 191 Cap 199 of the Laws of Kenya (since repealed by the Kenya Defence Forces Act.195 the appellant’s appeal before the High Court was against conviction and sentence of 6 years imprisonment by a Court Martial 196 on his plea of ‘guilty’ on a charge of mutiny197. having considered his mitigation reduced the sentence to 4 years. 198 the appellant was convicted and sentenced by a Court Martial199 on five counts of obtaining money by false pretence.In Ocheno v Republic. The High Court. 194 S. The review board has declined his appeal for reduction of sentence.186 (1) & (2). (KDF Act) .200 a civilian offence contrary to section 313 of the Penal code. Josphat Opata Nabwera v Republic. 3 of 2009. High Court of Kenya at Nairobi (Msagha AM. Nairobi (Appelate Side). Cap 199 of the Laws of Kenya.contravention of section 69 of the Armed Forces Act. Achonde LA) 199 . 197 Contrary to S. 25(2) of the Armed Forces Acyt. J) 196 Sitting in Lang’ata Barracks. 38 of 1984 (O’Kubasu E. 201 He was imprisoned for a total of 2 years and 3 months and dismissed from the Armed Forces. He appealed against the sentence on grounds of violation of his constitutional right of delay in commencement of the trial. Nairobi.202 evidence at variance with charges. allegations not proved beyond reasonable doubt and ignoring of his defence by the court martial. 195 High Court. 198 Court Martial Criminal Appeal No. Nyeri Court Martial Criminal Case No. cruel. This is demonstrated in David Gitau Njau & 9 others v Attorney General. the applicants sort a declaration by the High Court that their rights and fundamental freedoms had been violated204 by the officers of the Kenya Army claiming violations of torture.Persons serving.203 Here. Constitutional and Human Rights Division. harassment. . 2012). They further prayed for general and aggravated damages. for a period of eight months and eventually being released without charge or arraignment in court. Sitting at Lang’ata Barracks 200 201 Cap 199 of the Laws of Kenya (since repealed by the Kenya Defence Forces Act. High Court of Kenya. The court found for the petitioners and awarded general damages including the declaratory prayers. 202 Art. 50(20)(e) (S.72 and 77 repealed constitution) 203 Petition No. inhuman and degrading treatment and being held in detention incommucado.340 of 2012. or who formerly served the Defence Forces can also approach the High court over constitutional and human rights violation. 204 Contrary to sections 70(a0. . 49(1)9f) and 50(2) of the Constitution of Kenya 2010. 72(3). (2). 7491) and 77 of the repealed constitution and now Articles 27(1).
Report "Jurisdiction & Structure of Courts In Kenya"