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Now onto today’s topic;
In Kenya, criminal cases represent a legal dispute between the Republic (the state) and an individual. Unlike civil matters, the state takes the lead in prosecuting the case, while the accused person defends themselves, and the complainant serves primarily as a witness.
For a conviction to occur, the state must fulfill a high burden of proof: proving the case beyond a reasonable doubt. This structured journey through the justice system is governed by the Constitution of Kenya 2010, the Criminal Procedure Code (CPC), and various policy guidelines to ensure due process and fairness.
THE STEP BY STEP CRIMINAL PROCESS
The progression of a criminal case in Kenya follows a specific chronological order, from the initial report to the final verdict.
1. Reporting and Investigation
The process typically begins with the commission of an offence, which is reported to the police by a victim or witness. The complaint is recorded in an Occurrence Book (OB), and the complainant is issued a reference number for tracking. Following this, the police investigate by gathering evidence, interviewing witnesses, and recording statements.
2. Arrest and Detention
If investigations yield sufficient evidence, a suspect is arrested, either with or without a warrant depending on whether the offence is cognizable. Upon arrest, the suspect must be informed of the reasons for their arrest and their constitutional rights. Legally, a suspect must be presented in court within 24 hours, or on the next court day if the 24 hours expire on a weekend or holiday. In some non-serious cases, the police may release the suspect on a police bond pending their court appearance.
3. Arraignment and Plea Taking
Once in court, the accused is formally charged. The charge sheet, which describes the alleged crime and the law it contravenes, is read to the accused in a language they understand. The accused then enters a plea:
- Guilty: The court convicts the individual and proceeds to sentencing.
- Not Guilty: The case is set for trial.
- No Plea/Silence: The court enters a plea of "not guilty" on behalf of the accused.
4. Bail and Bond Determination
If the accused pleads not guilty, they may apply for bail or bond. This is a constitutional right unless there are compelling reasons to deny it, such as being a flight risk or a threat to public interest. If bail is denied, the accused is held in remand, where their case is mentioned every two weeks.
5. Pre-Trial Conference
Before the trial begins, a pre-trial conference is held. Here, the prosecution must disclose the evidence and witness lists they intend to rely on to the defense, ensuring the accused has a fair opportunity to prepare their case.
6. The Trial (Prosecution and Defense)
The trial is divided into two main stages:
- Prosecution’s Case: The state presents its evidence and witnesses first. The defense has the right to cross-examine every prosecution witness.
- Case to Answer: After the prosecution finishes, the court decides if there is enough evidence to proceed. If the evidence is insufficient, the accused is acquitted (no case to answer).
- Defense Case: If the court finds a case to answer, the accused presents their defense. The accused can choose to give sworn evidence, make an unsworn statement, or remain silent. Their witnesses are also subject to cross-examination by the prosecution.
7. Judgment and Sentencing
After both sides provide final closing submissions, the court delivers a judgment. If the verdict is an acquittal, the accused is freed. If the verdict is a conviction, the court moves to sentencing. At this stage, the defense can offer mitigating factors (like being a first-time offender or family breadwinner) to seek a more lenient sentence, while the court considers victim impact statements and sentencing guidelines.
The conclusion of a trial marks the end of the primary criminal proceedings, but it does not always mean the end of the legal journey. A convicted person has 14 days to appeal the conviction or sentence to a higher court. Appeals from subordinate courts go to the High Court, then the Court of Appeal, and finally the Supreme Court for matters of significant constitutional or public importance.
While the system is designed for litigation, the law also permits alternative dispute resolution for minor offences under limited circumstances. Ultimately, this structured process is vital for maintaining the rule of law and protecting the rights of all Kenyans.
Catch you in the next blog!
Disclaimer- The information provided is for general
informational purposes only and should not be considered as professional
advice. Please consult a qualified professional for specific guidance.
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