The Constitution of Kenya is a primary source of criminal law which has guided the Judiciary in

protecting the rights of the arrested, accused and convicted persons. Discuss using decided cases.
(10marks)

Every accused person has the right to a fair trial which includes the right to be informed of the
charge, with sufficient detail to answer it. This right can only be exercised by the accused person.
The prosecution cannot therefore rely on the said provision as a basis for seeking that it be
informed in advance of the evidence the accused intends to rely on and to have access to the
same1 In Thomas Patrick Gilbert Cholmondeley vs. Republic [2008] eKLR2, the Court of Appeal
held that: … That contention, however, ignores one basic distinction. The privileges, if we may
so designate them, of the accused person are conferred on him by the Constitution. As soon as he
is arrested, he shall be informed as soon as reasonably practicable, in a language that he
understands and in detail, of the nature of the offence with which he is charged…

Section 137 of the Criminal Procedure Code outlines the rules of framing of the charges. For a
charge or information to constitute sufficient notice, it must contain a statement of the specific
offence or offences with which the accused person is charged and such particulars as, may be
necessary for giving reasonable information as to the nature of the offence charged. Failure to
disclose an offence recognized under law will result to the dismissal of the charge. Section 89 (5)
of the Criminal Procedure Code grants power to the magistrate to refuse to admit such a
complaint or formal charge.3

Additionally, at the arraignment stage of trials before the High Court an information that fails to
state the offence with which the accused had notice, shall be quashed. Section 276 of the
Criminal Procedure Code.4 On the first appearance in court, the accused must5:

1. Be informed of the specific charges that the prosecution have preferred against them
2. The information must be stated audibly, in a language that you understand this means that
one is allowed to seeks clarification from the judicial officer if one does not understand.
3. If the charges are not ready one must similarly be informed of the reason.

1
Joseph Nduvi Mbuvi v Republic [2019] eKLR
2
Thomas Patrick Gilbert Cholmondeley vs. Republic [2008] eKLR
3
www.defensewiki.ibj.org accessed on 1/07/2021
4
Section 275 of the Criminal Procedure Code
5
www.judiciary.go.ke accessed on 1/07/2021
In many cases, the enforcement of the person’s rights and freedoms have been put to question in
addition to denial of rights pertaining to the accused person. Article 21(1) of the constitution of
Kenya imposes the duty upon the state and all state organs including judiciary to “observe,
respect, protect and fulfil the rights and fundamental freedoms of the Bill of Rights.” 6 In
Michael Rotich V Republic [2016] eKLR7 the applicant was detained for a period of twenty eight
days while the prosecution investigates allegations of doping laid against the applicant. The
applicant had been placed in custody by the police… it is not clear from the affidavit sworn by
the investigating officer what charges will be brought against the applicant. The applicant has not
been informed of the charges he is likely to face since his arrest. The state wants to place the
application in custody to enable it commence and complete its investigations. Is this request
lawful and does it consider the person’s fundamental rights as contained in the constitution?

On other instances it arises that the appellants displeased with the judgement given have
appealed the decision of the judges on grounds that they did not understand the interpretation
given to them. In JKM v Republic [2017] eKLR8 the appellant being dissatisfied with both the
conviction and sentence lodged a petition…he contended that he did not understand the
proceedings since the interpreter used Kimeru language with a different dialect from the
appellant’s and that he understood he was being charged with threatening to harm the
complainant… the judgement rendered the pleas unsustainable and was dismissed as an
afterthought given that the appellant did not raise any objection to language used and instead
proceeded to respond to the charges and it’s particulars.

6
Article 21(1) of the Constitution of Kenya

7
Michael Rotich v Republic [2016] eKLR
8
JKM v Republic [2017] eKLR