CRIMINAL LITIGATION
TRIAL PROCESS AND MATTERS ARISING
[Lecture by Justice (Rtd) B. P. Kubo to Classes A, B & C: May, 2012. These Notes relate
to Topic 10 (a) & (c) in the Course Outline]
a) Opening prosecution case
➢ Once the preparatory processes have been concluded in favour of a full trial, it
is expected
that the trial will begin on the due date.
➢ In line with the presumption of innocence on the part of the accused [Art.
50(2)(a)
Constitution], the prosecution has to begin the process of trial.
➢ The CPC provides that the advocate for the prosecution shall open the case
against the
accused, call witnesses and adduce evidence in support of the charge (s. 300).
➢ Opening the case is customarily done through an opening address. In doing so,
the prosecutor should take care to ensure that the address is confined strictly
to matters relating to the charge, the particulars of that charge and the
evidence that the prosecution intends to call to prove those particulars: Ruhi –
vs- Republic [1985]KLR 373.
b) Right of fair hearing
➢ A central ingredient of justice.
➢ The Constitution of Kenya, 2010 has a lengthy Article 50 devoted to this topic.
One of the
components of fair hearing is expedition of the accused’s trial, i.e. the accused
“to have the trial begin and conclude without unreasonable delay” [Art, 50 (2)(e)].
➢ Other ingredients of a fair hearing include:-
• Accused presumed innocent until the contrary is proved [Art. 50(2)(a)].
• Accused to be informed of the charge, with sufficient detail to answer it [Art.
50(2)(b)].
• Accused to be given adequate time and facilities for preparation of his/her
defence [ Art.
50(2)(c)].
• Accused to be present at his/her trial, unless his/her conduct makes it
impossible for the
trial to proceed [Art. 50(2)(f)].
• Accused to be permitted to defend himself/herself before court by a legal
representative
[Art. 50(2)(g)].
• Accused to be informed in advance of the evidence the prosecution intends
to rely on,
and to have reasonable access to that evidence [Art. 50(2)(j)].
NB: In Kariuki Kamau & Others –vs- Regina [1954] 21 EACA 203 it was stated
, that anything less than pre-trial disclosure would amount to trial by
ambush, which
is against the rules of natural justice.
• Accused to be permitted to have without payment the assistance of an
interpreter if he/she cannot understand the language used at the trial of the
charge [Art. 50(2)(m)]; etc.
, c) Witnesses (special types of witnesses – minors, key witnesses & expert witnesses)
i. Minors
➢ When the term ‘minor’ is used in reference to a person, it simply means one who
is below
the age of legal majority or adulthood (Chambers 21st Century Dictionary) - it
broadly denotes children.
➢ The Children Act, No. 8 of 2001 defines ‘child’ to mean any human being under the
age of
18 years.
➢ A child of tender years is defined by the Act to mean a child under the age of 10
years.
➢ S. 125 of the Evidence Act, Cap. 80 provides, inter alia, as follows:
‘125.(1) All persons shall be competent to testify unless the court considers that they
are prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease (whether of
body or mind) or any similar cause.’
➢ S. 19 of the Oaths & Statutory Declarations Act, Cap. 15 permits the reception of
evidence, not on oath, of a child of tender years if the court considers the child
to be of sufficient intelligence and understands the duty to speak the truth such
as to justify
reception of the child’s evidence.
➢ However, s. 124 of the Evidence Act qualifies s. 19 of the Oaths & Statutory
Declarations Act by requiring corroboration of the child’s evidence by other
material evidence before the child’s evidence can form the basis of a
conviction EXCEPT in sexual
offences. The exception was introduced through the following proviso:
‘Provided that where in a criminal case involving a sexual offence the only evidence
is that of the alleged victim of the offence, the court shall receive the evidence of the
alleged victim and proceed to convict the accused person if, for reasons to be
recorded in the proceedings, the court is satisfied that the child is telling the truth.’
ii. Key witness
➢ Simply means a witness who is crucial for purposes of proving
commission of the
offence, e.g. an eye witness.
N.B.: Ordinary witnesses, including eye witnesses, give factual evidence.
iii. Expert witness
➢ Defined in section 48 of the Evidence Act as follows:
’48.(1) When the court has to form an opinion upon a point of foreign law, or of
science or art, or as to identity or genuiness of handwriting or finger or other
Page | 2
TRIAL PROCESS AND MATTERS ARISING
[Lecture by Justice (Rtd) B. P. Kubo to Classes A, B & C: May, 2012. These Notes relate
to Topic 10 (a) & (c) in the Course Outline]
a) Opening prosecution case
➢ Once the preparatory processes have been concluded in favour of a full trial, it
is expected
that the trial will begin on the due date.
➢ In line with the presumption of innocence on the part of the accused [Art.
50(2)(a)
Constitution], the prosecution has to begin the process of trial.
➢ The CPC provides that the advocate for the prosecution shall open the case
against the
accused, call witnesses and adduce evidence in support of the charge (s. 300).
➢ Opening the case is customarily done through an opening address. In doing so,
the prosecutor should take care to ensure that the address is confined strictly
to matters relating to the charge, the particulars of that charge and the
evidence that the prosecution intends to call to prove those particulars: Ruhi –
vs- Republic [1985]KLR 373.
b) Right of fair hearing
➢ A central ingredient of justice.
➢ The Constitution of Kenya, 2010 has a lengthy Article 50 devoted to this topic.
One of the
components of fair hearing is expedition of the accused’s trial, i.e. the accused
“to have the trial begin and conclude without unreasonable delay” [Art, 50 (2)(e)].
➢ Other ingredients of a fair hearing include:-
• Accused presumed innocent until the contrary is proved [Art. 50(2)(a)].
• Accused to be informed of the charge, with sufficient detail to answer it [Art.
50(2)(b)].
• Accused to be given adequate time and facilities for preparation of his/her
defence [ Art.
50(2)(c)].
• Accused to be present at his/her trial, unless his/her conduct makes it
impossible for the
trial to proceed [Art. 50(2)(f)].
• Accused to be permitted to defend himself/herself before court by a legal
representative
[Art. 50(2)(g)].
• Accused to be informed in advance of the evidence the prosecution intends
to rely on,
and to have reasonable access to that evidence [Art. 50(2)(j)].
NB: In Kariuki Kamau & Others –vs- Regina [1954] 21 EACA 203 it was stated
, that anything less than pre-trial disclosure would amount to trial by
ambush, which
is against the rules of natural justice.
• Accused to be permitted to have without payment the assistance of an
interpreter if he/she cannot understand the language used at the trial of the
charge [Art. 50(2)(m)]; etc.
, c) Witnesses (special types of witnesses – minors, key witnesses & expert witnesses)
i. Minors
➢ When the term ‘minor’ is used in reference to a person, it simply means one who
is below
the age of legal majority or adulthood (Chambers 21st Century Dictionary) - it
broadly denotes children.
➢ The Children Act, No. 8 of 2001 defines ‘child’ to mean any human being under the
age of
18 years.
➢ A child of tender years is defined by the Act to mean a child under the age of 10
years.
➢ S. 125 of the Evidence Act, Cap. 80 provides, inter alia, as follows:
‘125.(1) All persons shall be competent to testify unless the court considers that they
are prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease (whether of
body or mind) or any similar cause.’
➢ S. 19 of the Oaths & Statutory Declarations Act, Cap. 15 permits the reception of
evidence, not on oath, of a child of tender years if the court considers the child
to be of sufficient intelligence and understands the duty to speak the truth such
as to justify
reception of the child’s evidence.
➢ However, s. 124 of the Evidence Act qualifies s. 19 of the Oaths & Statutory
Declarations Act by requiring corroboration of the child’s evidence by other
material evidence before the child’s evidence can form the basis of a
conviction EXCEPT in sexual
offences. The exception was introduced through the following proviso:
‘Provided that where in a criminal case involving a sexual offence the only evidence
is that of the alleged victim of the offence, the court shall receive the evidence of the
alleged victim and proceed to convict the accused person if, for reasons to be
recorded in the proceedings, the court is satisfied that the child is telling the truth.’
ii. Key witness
➢ Simply means a witness who is crucial for purposes of proving
commission of the
offence, e.g. an eye witness.
N.B.: Ordinary witnesses, including eye witnesses, give factual evidence.
iii. Expert witness
➢ Defined in section 48 of the Evidence Act as follows:
’48.(1) When the court has to form an opinion upon a point of foreign law, or of
science or art, or as to identity or genuiness of handwriting or finger or other
Page | 2
