CRIMINAL PROCEDURE ASSIGNMENT

QUESTION ONE
(a) Define double jeopardy; trace its evolution in English criminal procedural law to the
present date.
Double jeopardy, non-bis in idem, or ne bis in idem (not twice against the same thing) is a
procedural defense that prevents an accused person from being tried again on the same charges
following a valid acquittal or conviction in the same jurisdiction. 1It protects against three types
of abuses; a second prosecution for the same offense after conviction, a second prosecution for
the same offense after acquittal and multiple punishments for the same offense. There are also
exceptions to the double jeopardy rule which include: An individual can be tried twice based on
the same facts as long as the elements of each crime are different as it was held in Connelly v
DPP (1964). If the incidents are viewed as separate crimes, double jeopardy does not apply.
Another exception is that it does not prevent multiple charges for the same crime from different
jurisdictions. If a crime violated the laws of multiple states, then each state may press charges.
Lastly, double jeopardy only applies to criminal cases. However, if a defendant is tried for a
criminal case, double jeopardy does not prevent them from also being tried for a related offense
in civil court. Double jeopardy applies if the defendant has been acquitted on the charge or
convicted, the government cannot retry the defendant on the same crime or a lesser crime that
was merged within the crime. Double jeopardy does not apply in situations of mistrial, sovereign
and multiple offences. The law was created to protect against judicial tyranny in which citizens
could be subjects to arbitrary convictions even after a jury had found them innocent.

In England, the protection against double jeopardy was considered a universal maxim of the
common law and was embraced by jurists like Henry De Bracton, Sir Edward Coke, Sir Matthew
Hale and sir William Blackstone (1769). However, it only afforded protection to defendants
accused of capital felonies and applied only after conviction or acquittal. 2The law of double
jeopardy is an important part of the English Law although exceptions to the rule were created in
2003. English Law has had the double jeopardy rule for over 800 years, but it was partially
abolished in England, Wales and Northern Ireland by the Criminal Justice Act (2003). There are
now low chances of a person who was acquitted of having committed a crime to be investigated
1
Wikipedia
2
Does double jeopardy happen in UK? (Open Match)
and put on trial once more. One of the key reasons as to why the law was changed is the
development of DNA evidence; the ability to match traces at a crime scene to a specific
individual has had a great impact upon criminal cases. There have been a number of prosecutions
brought under the new law. The first was William Dunlop, who pleaded guilty in 2006 to Julie
Hogg’s murder following his earlier confession. Three years later, Mario Celaire was convicted
after a trial for his ex-girlfriend Cassandra McDermott’s murder, following the attempted murder
of another ex-girlfriend, Kara Hoyte. Not all the subsequent double jeopardy cases have involved
murder: Wendell Baker was convicted of the 1997 rape of a 66-year-old woman in 2013,
although his victim had since died.

In the English law of double jeopardy (in its widest sense) there are at present several different
principles at work. The prosecution has certain, very limited, rights of appeal. Subject to certain
exceptions, there is an absolute rule against charging a defendant with the same offence twice.
3
In the case of trial on indictment this rule takes the form of a special plea, called “autrefois
acquit” where the defendant has previously been acquitted of the offence charged and “autrefois
convict” where he or she has previously been convicted of it.

(b) Define double jeopardy under Kenyan Criminal Procedure clearly noting
similarities and differences with the English model.

The principal of double jeopardy is embodied in Article 50(2)(o) of the Constitution and the
Criminal Procedure Code, Sections 138-142. Under Sec 138 of the Criminal Procedure Act
Kenya, the concept of double jeopardy is described as follows, “A person who has been once
tried by a court of competent jurisdiction for an offence and convicted or acquitted of that
offence shall, while the conviction or acquittal has not been reversed or set aside, not be liable to
be tried again on the same facts for the same offence.” 4However, by virtue of Section 139
through Section 141 of the Criminal Procedure Code Kenya, a person may be charged and tried
again: Firstly, for a separate offence arising from the same set of facts as those of the crime for
which the accused was previously convicted or acquitted where Sec 139 of the same code states
that a person convicted or acquitted of an offence may afterwards be tried for another offence
with which he might have been charged on the former trial under section 135(1). Secondly, for
consequences which arise after a conviction or acquittal, if they were not known at the time of
3
The Law Commission Consultation Paper No 156 DOUBLE JEOPARDY
4
Criminal Procedure Kenya
conviction or acquittal where section 140 states, “A person convicted or acquitted of an act
causing consequences which together with that act constitute a different offence from that for
which he was convicted or acquitted may be afterwards tried for the last-mentioned offence, if
the consequences had not happened or were not known to the court to have happened at the time
when he was acquitted or convicted.” Lastly, if the court that tried the accused in the first
instance was not competent to try the offence for which he is subsequently charged. This is
stated in Section 141 in the following words, “A person convicted or acquitted of an offence
constituted by any acts may, notwithstanding the conviction or acquittal, be subsequently
charged with and tried for another offence constituted by the same acts which he may have
committed, if the court by which he was first tried was not competent to try the offence with
which he is subsequently charged.”

Similarities of double jeopardy in Kenya’s CPC with that of the English model

1. In both, a defendant cannot be subjected again to trial for the same offence (“the autrefois
rule”). The doctrines of autrefois acquit and autrefois convict state that no-one may be
put in peril twice for the same offence. Accordingly, if the accused has previously been
acquitted or convicted (or could, by an alternative verdict, have been convicted) of the
same offence as that with which he or she is now charged, a plea of autrefois will bar the
prosecution.5
2. In both, the offence with which the defendant is now charged must be identical to the
offence of which he or she was previously acquitted or convicted. Thus, in Connelly v
DPP1 the rule was held not to protect the defendant from being tried for robbery after
being acquitted of a murder committed in the course of the robbery.

In both, for a plea of autrefois to succeed there must previously have been a valid acquittal or
conviction. 6This means, first, that the defendant must have been acquitted or convicted by a
court of competent jurisdiction and the proceedings must not have been ultra vires as it was held
in R v Kent JJ.
Differences between Kenyan CPC and English Model on double Jeopardy

1. The exceptions of the double jeopardy rule are not the same in the two jurisdictions. One
of the Exceptions in the UK Law is tainted acquittals7 while in Kenya one is where
5
The Law Commission Consultation Paper No 156 DOUBLE JEOPARDY
6
This requirement is satisfied if the court concerned was a foreign court of competent jurisdiction: Treacy v DPP
[1971] AC 537, 562
7
Criminal Procedure and Investigations Act 1996, ss 54–57.
consequences which were not known after the conviction or acquittal arise making the
principle inapplicable.
QUESTION FOUR

(Critically discuss the law regulating plea-bargaining under Kenya’s Criminal Procedure
Code. What are its origins, when it was introduced, evaluate its operation and efficacy,
making a comparative study with similar procedures in at least two other jurisdictions?

Plea bargaining according to the Merriam-Webster dictionary is the negotiation of an agreement

between a prosecutor and a defendant whereby the defendant is permitted to plead guilty to a
reduced charge. The word was first used in 1932. A plea bargain allows both parties to avoid a
lengthy criminal trial and may allow criminal defendants to avoid the risk of conviction at trial
on a more serious charge.

Advantages of plea bargaining

Plea bargaining has been described as a voluntary exchange that leaves both parties better off.
Defendants have many procedural and substantive rights, including a right to trial and appeal a
guilty verdict. By pleading guilty, defendants forego those rights in exchange for a commitment
from the prosecutor, such as being charged with a lesser crime or a more favorable sentence. For
a defendant who believes that conviction is almost certain, a discount to the sentence is more
useful than an unlikely chance of acquittal while the prosecutor secures a conviction while
avoiding the need to commit time and resources to trial preparation and a possible trial.8

Plea bargaining similarly helps preserve money and resources for the court in which the
prosecution occurs.

Another advantage is that victims and witnesses do not have to testify at the trial, which in some
cases may be traumatic. It may also serve to decongest the prisons where congestion might have
been caused by remandees in police custody.

Disadvantages of plea bargaining

It removes the right to have a trial by jury.

It may lead to poor investigatory procedures.

It creates a criminal record for the innocent.

8
Wikipedia
Judges are not required to follow a plea bargain agreement.

It eliminates a chance of appeal.

It provides soft justice for the guilty.9

The origin of plea bargaining

Up until the eighteenth century, a jury trial was often conducted without the use of a lawyer. The
judge dominated this system. The defendant was denied legal counsel. In some instances, the
prosecution was conducted by a lawyer, but in many instances, the judge handled much of the
criminal procedure. The defendant would speak continuously at trial and even reply to the
witnesses supplied by the prosecution. Due to the lack of legal counsel, cases tended to be
handled much more quickly. Courts may try between 12 and 20 felony cases each day. As such,
there was no real need for a plea-bargaining system.
10
During the 1960s the landmark case of Gideon v. Wainwright significantly changed the way
that criminal cases are handled. In that case, the Court ruled that indigent defendants have the
right to legal counsel. As such, criminal cases now have a lawyer representing the criminal
defendant’s rights and another lawyer representing the interests of the state. The need for plea
bargains is more significant due to the prevalence of legal representation.

The historical developments that contributed to the growth of plea bargaining were:

Increasing complexity of the trial process, expansion of the substantive criminal law. increasing
crime rates, larger caseloads, frequent political corruption of urban criminal courts at and after
the turn of the 12th century, the greater use of professionals in the administration of criminal
justice system like prosecutors and attorneys and the increasing statutory powers of
prosecutors.11

Law regulating plea bargaining under Kenyan Criminal Procedure Code

Under sec 137A of the CPC, a prosecutor and an accused person or his representative may
negotiate and enter into an agreement in respect of a reduction to a charge or withdrawal of the
charge or a stay of other charges or the promise not to proceed with other possible charges. The

9
www.lawyersjurists.com
10
HG.org- History of Plea Bargaining
11
Guilty plea- Plea bargaining
agreement is entered into when the accused person has been charged or any time before
judgment and where the prosecution has been undertaken privately, there must be the consent of
the DPP. A plea agreement on behalf of the republic shall be entered into by the DPP or officers
authorized by the DPP according to article 157(9) of the Constitution. The offer of the agreement
may be initiated by the prosecutor or the accused or his legal representative where the court shall
be notified by the parties and must not participate in the plea negotiation. A prosecutor shall only
enter into plea agreement after consultation with the police officer who is investigating the case
with due regard to the nature and circumstances relating to the offence. A plea agreement must
be in writing and shall be reviewed and accepted by the accused person in the language that they
understand. It must state fully the terms of the agreement and all other relevant facts of the case
and must be signed by the prosecutor and the accused person or his legal representative or by a
complainant if a compensation order has been included in the agreement. Before the court
records a plea agreement, the accused person shall be placed under oath and the court shall
address the accused person personally in court, and shall inform the accused person of, and
determine that the accused person understands his rights and by accepting the agreement, they
will be waiving their right to full trial and to appeal. They must be informed of the maximum
possible penalty and the mandatory minimum penalty and any applicable forfeiture. The
prosecution must also lay before the court the factual basis of the agreement. The court shall,
before recording a plea agreement, satisfy itself that at the time the agreement was entered into,
the accused person was competent, of sound mind and acted voluntarily. Where a plea agreement
entered into in accordance with section 137A (1) (a) is accepted by the court in accordance with
this section, the court shall proceed to convict an accused person accordingly. Where a court
rejects a plea agreement, it shall record reasons for such rejection and inform the parties
accordingly. The agreement shall become null and void and no party shall be bound by its terms.
An accused person may withdraw a plea prior to acceptance of the plea by the court or after the
court accepts and convicts on the plea, but before it passes a sentence.12

Plea bargain has in theory been part of our criminal justice system for a long time, yet its
applicability has been poorly utilized. It is not every criminal case that should be prosecuted to
finality through a trial if it can be resolved by alternative means. It is against this backdrop that
the Plea Bargaining Rules, Guidelines and Explanatory Notes were developed. If properly
12
Criminal Procedure Code Kenya, sec 137
employed, plea bargaining will serve as an important, useful and effective tool to keep the
wheels of justice moving in a timely and cost-effective manner. 13Plea bargains have served to
reduce the congestion in Kenyan prisons caused by remandees awaiting full trial and has also
reduced overloading of cases in courts.

Plea bargaining is permitted in the legal system of England and Wales. The guidelines by
the Sentencing Council require that the discount it gives to the sentence be determined by the
timing of the plea and no other factors 14The guidelines state that the earlier the guilty plea is
entered, the greater the discount to the sentence. The maximum discount permitted is one third,
for a plea entered at the earliest stage. There is no minimum discount; a guilty plea entered on
the first proper day of the trial would be expected provide a discount of one tenth. The discount
can sometimes involve changing the type of punishment, such as substituting a prison sentence
for community service.

In India, Plea bargaining was introduced in India by The Criminal Law (Amendment) Act, 2005,
which amended the Code of Criminal Procedure and introduced a new chapter, XXI(A), in the
code, enforceable from July 5, 2006. It allows plea bargaining for cases in which the maximum
punishment is imprisonment for seven years; however, offenses affecting the socio-economic
condition of the country and offenses committed against a woman or a child below 14 are

13
Plea bargaining guidelines- ODPP Kenya
14
 "Reduction in Sentence for a Guilty Plea"
excluded.15

15
"The Criminal Law (Amendment) Act, 2005"
QUESTION TWO

Critically discuss by way of comparative analysis the principles which guide courts to
exercise their discretion regarding an inculpatory or exculpatory of illegally obtained
evidence.

Illegally obtained evidence is evidence obtained by acts that are against the law which may be
through evidence obtained trough the violation of constitutional rights, statutory provisions or
case law. This may include issuing a threat, deception or unfair inducement, giving a bribe or
search without a warrant.

Approaches to illegally obtained evidence

In criminal law, there are two main views on whether illegally obtained evidence is admissible or
in-admissible in court. They are:

1. The Mandatory Inclusion approach- According to this approach, all relevant evidence is
admissible regardless of the fact that it was obtained illegally. This ensures that the guilty
are punished.
2. The Mandatory exclusion approach- evidence acquired illegally is inadmissible because
the process of obtaining evidence is as important as the evidence itself. According to this
approach, admission of the improperly obtained evidence is viewed as condoning or
encouraging impropriety.16

The Mandatory Inclusion Approach

This view states that all relevant evidence is admissible, regardless of how it was obtained.

The test applied to consider if it is admissible is:

 Whether it is admissible to the fact in issue.

 Whether it is prejudicial to the accused.

Justice Compton in R v Leatham stated that, “it matters not how you get it, if you steal it even, it
would be admissible in evidence.” This is similar to the inevitable discovery doctrine established
in the Nix v. Williams case (1984) which holds that “ evidence obtained through an unlawful

16
Legalscholarite.com
search or seizure is admissible in court if it can be established, to a very high degree of
probability, that normal police investigation would have inevitably led to the discovery of the
evidence.”

In English civil proceedings, there is no rule of law that evidence must be excluded because it
has been obtained illegally and/ or improperly. In fact, over the years, English judges have made
it clear that they are more concerned about vindicating the truth with the aid of relevant
evidence, rather than excluding such evidence on the ground that it has been improperly
obtained. In short, if it is relevant, it should be admissible (although the court will decide what
weight to give it).17

The general principle that all evidence is admissible by the courts of England and Wales was
modified by the introduction of the Civil Procedure Rules (CPR) in April 1999 and the effect of
the Human Rights Act 1998, which incorporated certain Articles of the ECHR into English law.

The tainted evidence is admissible if:

1. It was discovered in part as a result of an independent, untainted source; or

2. It would inevitably have been discovered despite the tainted source; or

3. The chain of causation between the illegal action and the tainted evidence is too
attenuated; or
4. The search warrant was not found to be valid based on probable cause, but was executed
by government agents in good faith (called the good-faith exception).18

The Mandatory Exclusion Approach

The approach states that evidence obtained by illegal means is not admissible. This is a
predominant view in a country like USA where they are of the view that illegally obtained
evidence are a breach of the individual’s human rights. The mandatory exclusion rule also serves
as a deterrence to law enforcement officials from gaining evidence in an unlawful manner. In
the United States, the exclusionary rule is a legal rule, based on constitutional law, that
prevents evidence collected or analyzed in violation of the defendant's constitutional rights from
17
The fruit from a poisoned tree- International Bar Association
18
Wikipedia
being used in a court of law. The exclusionary rule may also, in some circumstances at least, be
considered to follow directly from the constitutional language, such as the Fifth Amendment's
command that no person "shall be compelled in any criminal case to be a witness against
himself" and that no person "shall be deprived of life, liberty or property without due process of
law. The exclusionary rule is grounded in the Fourth Amendment in the Bill of Rights, and it is
intended to protect citizens from illegal searches and seizures."19 Where the 4th amendment states
that “ the right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” This rule is occasionally referred to as a legal
technicality because it allows defendants a defense that does not address whether the crime was
actually committed. In 1914, it was first held to bar the admission in a federal criminal action of
evidence obtained illegally by federal agents (Weeks v US, 232 US 383 (1914)). The
exclusionary rule applies not only to the original evidence illegally obtained but also to copies
and knowledge gleaned therefrom (Silverthorne Lumber Co Inc v US) 251 US 385, 392 (1920)):
‘The essence of a provision forbidding the acquisition of evidence in a certain way is that not
merely evidence so acquired shall not be used before the Court but that it shall not be used at all’
Exceptions to the exclusionary rule include: 20

1. The independent source doctrine, which ‘allows trial courts to admit evidence obtained in
an unlawful search if officers independently acquired it from a separate, independent
source’
2. The inevitable discovery doctrine’, which ‘allows for the admission of evidence that
would have been discovered even without the unconstitutional source’
3. The attenuation doctrine’, which allows for the admission of evidence ‘when the
connection between unconstitutional police conduct and the evidence is remote or has
been interrupted by some intervening circumstance’.

Kenyan position

19
Berg, p. 29
20
International Bar Association writing on the fruit from a poisoned tree
In Kenya, illegally obtained evidence is admissible so long as it is relevant to the fact in issue or
its admission would not adversely affect the fairness of the trial (the mandatory inclusion
approach). The judge has the discretion to include or exclude illegally obtained evidence. The
ruling in Kuruma s/o Kaniu v R case established the inclusionary rule for illegally obtained
evidence in Kenya. The Evidence Act mentions the admissibility of improperly obtained
confessions which is regarded as illegally obtained evidence because it is seen as inherently
unreliable. According to Article 31 of the Constitution, every person has a right to privacy which
includes the right not to have their person, home or property searched, their possessions seized,
information unnecessarily revealed and their privacy of their communications infringed. Article
50(4) states, “Evidence obtained in a manner that violates any right or fundamental freedom in
the Bill of Rights shall be excluded if the admission of that evidence would render the trial
unfair, or would otherwise be detrimental to the administration of justice.” Section 118 of the
CPC states that any search warrant without an appropriate search warrant is illegal. Section 20(1)
of the Police Act gives the police powers to search any home or vehicle which they suspect of
having useful evidence to prove the commission of an offence.

Illegality is graded in that, there is evidence that can be allowed to pass but there are cases when
it is reprehensible. It is the trial court which is charged with the responsibility of weighing
evidence presented to it and determining whether or not such evidence is admissible.
QUESTION THREE

WANJIGIS CASE

(a) Might the police or prosecution object to bail?

The bail that can be granted in this case is bail pending trial. This applies after an accused person
is presented before court to take plea.  If the accused person takes a plea of ‘not -guilty’, the
court releases the accused person on bail or bond pending trial. In this case, the burden of proof
lies on the prosecution to establish the existence of compelling reasons that would justify the
denial of bail, or the imposition of suitable bail or bond terms and conditions. In Republic v
Danson Mgunya & Another [2010] eKLR Ibrahim J held that the burden should be on the
prosecution and not the accused person to prove, or at least demonstrate the existence of
“compelling reasons” why an accused should not be released.

The police or the prosecution might object to the bail due to compelling reasons as to why
Wanjigi should not be released. Firstly, Wanjigi has already made a confession that he has
committed the offence of burglary so there is no need of granting a bail since he has already
pleaded guilty meaning trial can begin and his fate decided instead of first allowing him out.
Secondly, he has previous convictions and an absconding conviction which can be a compelling
reason as to why he should not be granted bail. The absconding conviction shows that Wanjigi is
at a high possibility of failing to attend trial. In Mary Wambui Kinyanjui v R [2006] eKLR bail
was denied to the applicant “inter alia” because she had jumped bail in a previous case. There
would be no point in granting the same in a subsequent matter running parallel to the earlier one.
The previous convictions clearly show the character of Wanjigi which form the basis for denial
of bail or bond, they may justify the refusal of bail or bond if they are coupled with other adverse
factors.

(b)On what grounds might they object?

This implies the compelling reasons under which the bail would be denied. They include:

1. The probability that the accused may not surrender himself for trial. The court considers
if an accused has a history of not appearing if granted bail. Wanjigi has an absconding
 conviction of missing trial so a bail may be denied to avoid repetition of failure to attend
trial when he is granted a bail.
2. The Gravity of the offence and the penalty upon conviction. The accused- Wanjigi might
escape trial after bearing in mind that the burglary carries a sentence of up to ten years
imprisonment as it was held in Wataro v R [1991] KLR 281.The applicant had been
charged with sedition which carried a sentence of 10-year imprisonment. Porter J stated
that “the seriousness of the case has a clear bearing on the factors influencing the mind of
an accused facing a charge as to whether it would be a good thing to skip or not.”
3. The Character of the accused- In Muiruri v R [2005] eKLR the applicant’s bond was
cancelled while facing obtaining by false pretence charges, because he had three other
convictions. On one he was placed under probation and on the other two was out on bail
pending appeal. He also had three other cases pending trial, besides the instant five
charges of fraud. The High Court declined too reinstates his bond. Wanjigi might also be
denied bail on the basis of this compelling reason since he had four previous convictions.

(c)If bail is granted, what conditions might be appropriated?

The court may impose any bail conditions it deems fit. The bail conditions imposed must be
reasonable and appropriate to the offence, appropriate to the bail concerns, no more onerous than
necessary, reasonably practicable for the accused person to comply with and there must be
reasonable grounds to believe that the conditions are likely to be compiled with.21

The following bail conditions might be appropriated to Wanjigi:

(a) Reporting requirements where he would be required to report to a police station or

court periodically.
(b) Contact restrictions- he would be refrained from contacting victims or witnesses or
otherwise behaving in a manner that would distress them.
(c) Requiring him to surrender travel documents such as passports.
(d) Residential condition- to reside at a specified address.22

21
Complete guide on Bail Applications and Bail Laws in NSW 2020.
22
Bail and Bond Policy Guidelines- Kenya
 (e) Curfew condition- to be inside a specified residence during a specified time frame
where Wanjigi would be restrained from being out from 6am to 6pm since he is
facing burglary charges.
(f) Prohibition from going within a specified geographical area- he would be refrained
from visiting the area where he committed the crime; where he stole the computers.

(d)What is the magistrate likely to rule and why?

The Magistrate is likely to deny bail to Wanjigi due to the compelling reasons that prevent
him/her to do so. It would be justifiable for the court to deny bail to Wanjigi since he may fail to
appear in court if bail is granted since he had absconding convictions. The probability of Wanjigi
to commit another offence while on bail would also compel the Magistrate to deny him bail since
he had previous convictions which describe his character. The prosecutor may object the bail
with plausible reasons making the Magistrate deny Wanjigi bail. The Magistrate would also
decide to proceed onwards to the trial in order to save time since Wanjigi had already made a
confession that he had committed the crime.

Where there are gravious matters to be looked into in the case before trial or before judgement
which would take time, the Magistrate may decide to release Wanjigi on bail considering the fact
that he is the one who takes care of his 6-month-old child since his girlfriend does not work.
Putting him in remand means that the girlfriend and the 6-month-old baby would be financially
unstable since he is the breadwinner of the family.

The Magistrate is likely to convict Wanjigi for committing burglary and being sentenced to ten
years imprisonment under the provisions of Section 304(2) of Kenya’s penal code.23

23
PENAL CODE- KENYA