LECTURE 2: THURSDAY 27 TH OCTOBER 2011 – 5.30AM-8.

30PM – SHERIA
HALL

SOURCES OF CRIMINAL LAW IN KENYA

We will cover the formal sources of law. Harvey describes the sources of law as “Defined
repositories of authoritative rules to which the law appliers, the ordinary citizen,
practicising advocates, executive officers of government and more importantly, the
judges turn to for guidance on applicable norms”

1. Judicature Act Cap 8

The formal sources or laws of Kenya are set out in Section 3 of the Judicature Act Cap
8, Laws of Kenya which says

3 (1) The jurisdiction of the High Court, the Court of Appeal, and of all the subordinate
courts shall be exercised in conformity with.

a) The Constitution

b) subject thereto, all other written laws, including the Acts of Parliament of the United
Kingdom cited in Part I of the Schedule in this Act, modified in accordance with part II
of that Schedule.

c) subject thereto and so far as those written laws do not extend or apply, the substance
of the common law, the doctrines of equity, and the statutes of general application in
force in England on 12th August,1897 and the procedure and practice observed in courts
of justice in England at that date.

But the common law, doctrines of equity, and statutes of general application shall apply
so far as the circumstances of Kenya and its inhabitants permits and subject to such
qualifications as those circumstances may render nece ssary.

Section 3 (2) of the Act says

‘The High Court, the Court of Appeal and all Subordinate Courts shall be guided by
African Customary Laws in civil cases in which one or more parties is subject to it or
affected by it, so far as it is applicable and is not repugnant to justice and morality or
inconsistent with any written law and shall decide all such cases according to substantial
justice without undue regard to technicalities of procedure and without undue delay’

Summarizing the above quoted Section 3, leaves us with the following list of the source
of Kenyan Law.
1. The constitution
2. Acts of Kenyan Parliament

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3. Specific Acts of the parliament of the United Kingdom cited in Part I of the schedule
of the Judicature Act.
4. Subsidiary/Delegated/Sub ordinate legislation
5. English statutes of General Application, in force in England on the 12 th August 1897.
6. The substance of Common Law in force on the 12 th August 1897.
7. Procedures and Practice observed by courts of Justice in England on 12 th August 1897.
8. Judicial Precedents
9. The Doctrine of Equity in force in England on 12 th August 1897.
10. African Customary Law
11. Subordinate courts a) Hindu Laws and b) Islamic Law

The current constitution further acknowledges and entrenches two other sour ces of law in
Kenya

i) Article 2 (5) –General Rules of International Law

ii) Article 2 (6) – Any treaty ratified by Kenyan parliament e.g
Rome Statute.

2.THE CONSTITUTION AS SOURCE OF CRIMINAL LAW

 It is the Supreme Law and all other laws draw their legitimacy from it, including
criminal law.
 Several provisions of the current constitution deals directly with Criminal Law,
and criminal procedure process more specifically in Chapter 4 (Bills of Rights)
I. Article 49 – Rights of Arrested persons
II. Article 50- Fair Hearing
III. Article 51-Rights of persons detained, held in custody or imprisoned

Article 49-The Rights of Accused Persons

 Right to be informed promptly in a language that you can understand the reason
for the arrest, the right to remain silent and the consequence s of remaining silent-
This means you cannot be held incommunicado, the previous constitution was not
very clear on this provision.
 Right to communicate with an advocate, relative and any other persons whose
assistance you deem necessary.
 Right not to be compelled to make any confession or admission that could be used
against the person.
 Right to be held separately from persons who are serving the sentence -the
rationale here being that you are a suspect not convicted, being held together
creates the perception that you are guilty, you should be held in a police station or
in a remand station, you are innocent until proven guilty and hence you should not
be mixed with guilty persons.
 Right to be brought before a court as soon as reasonably possible but not lat er
than 24 hours after being arrested and if it’s a weekend or holiday before the end
of the next court day. What this means is that if you are held for more than 24hrs
you can sue for compensation.

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  Right at first appearance, to be charged or informed of t he reason for the detention
continuing or to be released.(Sometime the charges are not read because the
police have not finished the investigations but they bring you to court to comply
with the 24hrs rule).
 Right to be released on bond or bail, on reasona ble conditions pending a charge or
trial, unless there are compelling reasons not to be released.(In the new
dispensation all crimes are bail able).
 A person shall not be remanded in custody for an offence if the offence is
punishable by a fine only or by imprisonment of not more than 6 months.(The
challenge here is how to release them, either on bond and if they will appear in
court after the release)

Bail is an undertaking that the accused person will appear in court as and when
required.

Types of Bails

 Cash Bail- Deposit money, which is forefeighted in case the accused person
absconds.
 Plain Bail-Documents to sign, supported by surety (some form of security e.g
Title deed or log book), this acts as a double assurance that if you don’t appear in
court someone is responsible.
 Police Bond- Given by the police but refunded upon release.

NB: Although the right to bail is constitutional, it is not automatic; the court can deny
you bail especially if you don’t have a permanent address.

Article 50-Right To Fair Hearing

This article deals essentially with the rights of an accused person in the course of the trial.
The right to a fair hearing encompasses the following rights.

 Presumption of innocence

 It is upto the state to prove that you are indeed guilty (beyond reasonable
doubt) you only become guilty if there is enough evidence marshaled against
you.
 This burden of proof is on the state and you have no obligation at all to prove
your innocence because the law presumes that you are innocent.

 Right to be informed of the charge with sufficient detail to answer.

 This technically means that you have a right to advance disclosure to the
prosecutions evidence and access to that evidence.

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  The accusations is also supported by all the necessary particul ars e.g. the
charge, the accusation and the specific particulars such as day and time.
So that by the time you go to court you are fully aware and prepared for
the accusation.
 You have access to the prosecutor’s evidence and statements written by
the witness and all the documents used by the prosecutors.
 Previously only murder and treason accused persons had access to this
information.
 The importance of this is that you can prepare your cross examination in
advance.
 And if the witness deviates from the sta tement you can use that to show
that the witness is lying.
 Before it was a trial by ambush.

There is arguments that the same should apply to prosecutors they should have access to
all evidence to be used by the accused persons as well.

 The right to adequate time and facilities to prepare a defense and a right to a
speedy trial.

 You need time to go through all the materials prepared by the prosecutor;
if the lawyer is not ready he/she can ask for adjournment.
 If you are in custody you ought to be giv en a private room where you can
discuss with your lawyer.

 The right to a public trial before a court established by the constitution.

 The trial should be open to the public and not in camera.

 Any member of the public can walk in and ensure that the hea ring is fair.
 This also ensures that the case is handled properly due to public scrutiny.
 There fore as a rule criminal proceedings are done is the open, civil proceeding
can be done in chambers (in camera).

Exceptions to these rule

1. Where the proceedings relate to a minor this is in accordance to the

Childrens Act.
2. Where matters of state security are involved (Sensitive matters).
3. Where the witness is a minor (they can be scared or intimidated)
4. Some sexual offenses so that the witness can be more candid.

 The right to be tried in properly constituted and competently appointed

court

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  Does the court or the judge have jurisdiction
 Not all magistrates have the same competency.
 Cases of murder and robbery with violence should only be handled by
Magistrates of the level of Senior Resident Magistrate; even if you are
taking a plea. Otherwise the case can be annulled.

 The right to a speedy trial

 It should be speedy enough because you are presumed innocent; hence its not fair
if the trial hangs over you longer t han its necessary.

 The right to be present during trial (habeas corpus)

 The primary difference between criminal law and civil law is that in civil law the
parties don’t necessarily need to be present.
 In criminal law the case cannot proceed if the accus ed person is not available in
court. And this is a constitutional right. If you are not present the case can be
annulled.
Exception

The only exception to this conditionality is when the accused behaves in a manner
disruptive to the court process. In this case the court can order his/her exclusion from the
court.

 The right to legal representation of your choice

 An advocate is not imposed on you.

 If you don’t like his work you can sack him and get another.
 If you cannot afford one the state needs to provi de you with one at state expense.
 This also applies if the stakes are very high and their can be substantial injustice
if you are not represented.
 This is a new development in the new constitution, previously only murder and
treason suspects were provided with state lawyers incase they could not afford
one.

Can lawyers choose their client? The law says lawyers cannot refuse to represent a
client.

 The right to remain silent

 No obligation on the accused part to say anything during the trial

 Only when he or she is taking a plea
 This is because the accused is presumed innocent.
 It will be an infringement of the accused rights if the court insists that you talk.

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  If you are asked a question you only answer what you have been asked.
 If the witness has not said anything incriminating then you don’t have to ask a
question as an advocate.
 If the evidence in court is not adequate no need to but the accused on the stand
(for lawyers)

 The right to adduce and challenge evidence

 Adduce means to give evidence, testify , call witness or give documents.

 Cross examine the witness and ask questions.
 If you are denied this right then the case can be annulled.

 Right to have assistance of an interpreter without payment

 If the accused person does understand or is not familia r with the language he
needs an interpreter.
 In Kenya the official language is Swahili and English.
 People who are illiterate need to get interpreters, as well as foreigners.
 The accused person needs to understand to respond, agree or object.

 The right not to be tried for an act that which he or she had previously been
acquitted or convicted

 In French it’s called Autrefois meaning in the past.

 If this happens then this double jeopardy

 Right to Appeal

 After termination of the case if you are not acquit ted you have a right to appeal.
 Not only on the judgment but also on the court process.
 If you are denied bail you can appeal to challenge that decision.
 If a file gets lost it can be re -constructed.
 Only higher courts can set a precedent that is why they are called courts of
records.
 MC-HC-CA-SC

EXAMPLE OF CASES

Republic vs. Subordinate First Class Magistrate.2006 EALR Vol 1 pg 330 (Judicial
Application of Fair Trial)

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Article 51-Rights of Persons detained, held in custody or imprisoned

 Right to enjoy all rights and freedoms under the bills of rights unless they are
incompatible with the fact that you are detained or imprisoned
 Right to petition for habeas corpus

3. COMMON LAW AS A SOURCE OF CRIMINAL LAW

 It’s a source of law by virtue of the Judic ature Act.
 These are laws which are not as a result of legislation.
 Origins traced to be customs of the people, justified by the rulings of the judges.
 Originated from UK, based on what is called Judge Made Laws.(legal systems
and methods)
 This is a branch of law of England which was developed by the ancient common
law courts from custom usages and practices of the English people.
 These courts applied the people’s customs to resolve legal problems thereby
giving customs there effect in law.
 The courts of Exchequer, Kings Bench, and Common Pleas were critical in the
development of common law.
 In Kenya these laws are referred to as English Common Law.
 These laws are only upto 12 th August 1897, after that date they don’t apply. This
is because that is the year the EA Protectorate was officially declared.
 Hence the order of council 1897 is treated as the foundation of the modern
Kenyan legal system.
 Criminal law in the UK is regulated by common law and statute.
 In Kenya criminal law is 100% regulated by statute.
 Most of the offences defined in our penal code were originally common law
offences (created and defined at common law and not by legislation).
 Crimes like felony and misdemeanor are common law offences.
 The felonies were originally defined by the courts of Kings Bench in the period of
12-14th century, while the offences called misdemeanor evolved during the 14 th
century and are associated with the courts of Star Chamber.
 Of course at this time the UK parliament was not evolved and they could not
make laws.
 In UK there are still offences that exist at common law only meaning there is no
legislation defining these offences.
 The practice in the UK is that the crime can be in common law but the
punishment is found in statute (legislation.)
 Murder is defined in common law but the punishment is stated in legislation, this
is because the penalty keeps changing while the crime remains the same.
 Where the offence changes the definition has to be changed in statute.i.e it
becomes a statutory offence.
 That is why law reports are important in common law, because they expound and
give explanation to the decisions; the statute is the skeleton of the law.
 The common laws are important because most of the offences defined in the penal
code were formerly common law offences, hence where we encounter difficulties

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 in interpretations we normally refer to the common law particularly where the
crime is rare.e.g treason or admiralty cases in civil law.

4. LEGISLATION
 By far the main source of criminal law in Kenya, since all offence s are defined in
statute (except contempt to court).
 This is based on the principle of legality, which makes it a requirement to define
offences and their punishment.
 The principle statute is the Penal Code cap 63 of the laws of Kenya.
 The Penal Code serves two distinct purposes
a) General principles of criminal law i.e
presumptions/standards/burden of proof /punishment etc
b) Defines large number of Criminal offences and describes
their punishment.
 The code was established in 1948,it is similar to all the forme r UK colonies i.e
Uganda,Tanzania,Botswana and Malawi.
 This so because it is based or sourced on the colonial model.
 It replaced the Indian Penal Code which was in place between 1897 -1947.If you
look at the law reports during this period they are based on the Indian Penal Code.
 Apart from the penal code others are
a) Criminal Procedure Code which deals procedure, process
and general principles.
b) Legislation defining offences e.g Marriage Act, Forest Act,
Traffic Act and The Poisons & Pharmacy Act.
c) Others are more specific or exclusively e.g. Sexual
Offences Act which was removed from the Penal Code
d) Subsidiary legislation which refers to law that is not made
by parliament but some other bodies exercising delegated
authority from the principle statute. They go by the name of
rules /regulation/by laws (Local Authority),laws made by
the minister or statutory body (Michuki Rules under the
Traffic Act).

5. CUSTOMARY LAWS

 African customary law offences are not recognized by law due to the principle of
legality, but prior to 1961 such offences were recognized.
 1961 they were outlawed, during the colonial period there was a dual system i.e
the African courts and the Residents Courts (Formal courts).
 The system of African courts ended in 1968,when the Magistrates Act was
enacted .
 1961-1968 the criminal jurisdiction was taken away from the African Courts.
 There were several African Customary Laws which overlapped with the penal
code e.g. Adultery with a married woman was an African Customary Law
punishable by fine and com pensation it later become a statutory offence defined

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 by section 13 of the ordinance of 1930.Fornication was not an offence (unless
with an underage person), polygamy was accepted, rape was also an offence as
well as incest.
 These offences were later remov ed from the African Customary Law and brought
to the penal code.
 Theft, Assault, Trespass, damage to property and practicing witch craft were also
removed from the African Customary law.

6. INTERNATIONAL LAW
 By far the most recent of the sources of crimin al law.
 International law has grown in statute after WWI and after the formation of UN.
 The UN system has been addressing issues in various areas including criminal law
to develop a common statute and principles for the criminal process.
 The UN system seeks to define offences in emerging areas such as corruption,
drugs, human trafficking, genocide, piracy and terrorism.
 There are several statutes in Kenya and else where which are modeled around
International Conventions addressing these concerns.
 The new constitution expressly recognizes international law as a source of law.
 International law only becomes Kenyan Law only after it has been domesticated
and ratified.
 Convention of rights of children was ratified into the Children Act.
 The International Conventions include:
I. Universal Declaration 1948 (Rights of Accused person)
II. Convention of civil and political rights
III. Convention against torture
IV. Convention of protection and punishment of genocide.
V. Convention of Children Rights
VI. Convention against corruption and eco nomical act to Public Officers Act
and Procurement and Disposal Act.
VII. Convention of Narcotic and Psychotropic Substances.
VIII. Rome statute that establishes the ICC, International Crimes Act of 2008.

 Most of this laws deal with emerging issues.

 The principles and standards form a basis for domestication,sometimes they are
word to word.