CHARGES AND INFORMATION

1. Introduction
In most criminal cases, proceedings commence at this stage by way of indictment or charge. A
criminal trial is commenced by filing a charge sheet in the subordinate court or information in
the High Court, which sets out the allegations against an arrested person. The Constitution
stipulates under article 49(1) (g) that an arrested person has the right at the first court
appearance to be charged or informed of the reason for the detention continuing, or to be
released. Equally, article 50(2) (b) of the Constitution provides that an accused person has the
right to be informed of the charge, with sufficient detail to answer it.

1.1. WHAT IS A CHARGE?

A charge refers to a formal written accusation or complaint against a person for an offence known in
law. The offence must be provided for in law.1 It is drawn by a magistrate or a police officer
and signed as required by law.
A charge also refers to the process by which the accused and the court are informed of a
suspected offence committed by the accused person.

A. Purpose of a Formal Charge

The Constitution under article 50(2) (b) provides that an accused person has the right to be
informed of the charge, with sufficient detail to answer it. The Golden Rule is that the charge
sheet should inform the accused person in clear and unmistakable terms of the allegations
against him, to enable him/her to prepare his/her defense. This rule is part of the requirement
of affording an accused person a fair trial.

In Nashon Marenya vs. Republic2 the Court emphasized on the need for the charge to be clear
and unequivocal as a way of avoiding confusion as to what the accused must meet. Further,

1
Article 50(2)(n) of the Constitution.
2
Criminal Appeal No. 786 of 1982 (unreported).

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the Court was emphatic that such confusion cannot be said not to have led to a miscarriage of
justice. In the words of Todd J;
“Charges and particulars should be clearly framed so that the accused persons know what they
are charged with, and proper references should also be made otherwise confusion may arise, and
if confusion arises, it cannot be said that failure of justice may not have been occasioned.”

1.2. Institution of Criminal Proceedings

Criminal Proceedings may be instituted in court either by making a complaint or by bringing
before a magistrate a person who has been arrested without a warrant.3

A person who believes on reasonable and probable cause that an offence has been committed
by another person may make a complaint thereof to a magistrate having jurisdiction. 4 The
complaint may be written or oral. Where it is made orally, it shall be reduced to writing by the
magistrate and in either case, both the complainant and the magistrate shall sign the
complaint.5

The magistrate then draws or causes to be drawn and signs a formal charge containing a
statement of the offence with which the accused is charged, unless the charge is signed and
presented by a police officer.6 If the magistrate is of the opinion that a complaint or formal
charge made or presented does not disclose an offence, he/she may make an order refusing to
admit the complaint and must record reasons therefor.7

Upon receiving and signing the charge, the magistrate may then issue either a summons or a
warrant to compel the attendance of the accused person before a subordinate court having
jurisdiction to try the offence alleged to have been committed.8

3
Section 89(1) of the Criminal Procedure Code Cap. 75 Laws of Kenya.
4
Ibid section 89(2).
5
Ibid section 89(3).
6
Ibid section 89(4).
7
Ibid section 89(5).
8
Ibid section 90(1).

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The validity of proceedings undertaken pursuance of a complaint or charge are not affected
either by a defect in the complaint or charge or by the fact that a summons or warrant was
issued without a complaint or charge.9

A. Framing of Charges
The law provides for the manner in which a charge is to be framed. It has three basic parts,
namely, the commencement, statement of the offence and the particulars of the offence.

Section 134 of the Criminal Procedure Code states that a charge or information shall be sufficient if
it contains a statement of the specific offence(s) with which the accused is charged together
with such particulars as may be necessary for giving reasonable information as to the nature of
the offence charged. Consequently, as a statutory requirement the charge sheet must contain
the following:

i. Statement of the offence

Pursuant to section 137(a) of the Criminal Procedure Code, a count of a charge or information
shall commence with a statement of the offence charged. The statement of offence shall briefly
describe the offence in ordinary language avoiding as far as possible the use of technical terms.
Where the offence is created by an enactment, the statement of offence shall contain a reference
to the section of the enactment creating the offence. It is not necessary to state all the essential
elements of the offence. 10

In cases where the offence is defined in one section and the penalty prescribed in another it is
imperative that the two sections be quoted in the charge sheet.

9
Ibid section 90(2).
10
Section 137(a) (ii) of the Criminal Procedure Code Cap. 75 Laws of Kenya.

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 ii. Particulars of the offence
Pursuance to section 137(a) of the Criminal Procedure Code, after the statement of the offence,
particulars of the offence shall be set out in ordinary language, in which the use of technical
terms shall not be necessary. Provided that where any rule of law or Act limits the particulars
of an offence which are required to be given in a charge or information, particulars so required
shall suffice.

The particulars required are such as will provide reasonable information as to the nature of the
offence charged. This includes the essential ingredients of the alleged offence and such details
as the date, place, time and circumstances in which the offence was committed.
In Tembere v Republic11 the accused was charged with the offence of handling stolen property.
The particulars of the charge merely stated that he handled. It did not state the nature of
handling whether by receiving or retaining and more importantly, it did not state that the
possession or receipt was dishonest. The High Court held that the charge did not disclose the
offence of handling stolen property and the facts stated did not contain all the elements of the
offence. As a result, the accused did not validly plead to the charge of handling.

In Yozefu & another Versus Republic12 the court emphasized that the particulars must disclose
the offence, and such statement is enough if it contains a precise statement of the incriminating
factors as the prosecution seeks to prove at the hearing. As per Spry J A:

“It is fundamental that every charge should allege all the essential constituents of an offence. In
the present case…we think that the allegation that the pieces of skin came from an animal killed
in contravention of the Act was an essential ingredient, and its omission makes the charge
defective.”

11
(1990) KLR 353.
12
(1969) E.A 236.

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 B. Forms
The second schedule to the Criminal Procedure Code contains forms setting out the manner in
which various offences should be charged as a guide to the manner in which various offences
should be stated in a charge or information. The framing of charges should be in accordance
with the said forms, conforming thereto as nearly as may be, but the statement of the offence
and particular may be varied accordingly to the circumstances of each case.13 The use of the
forms available in the second schedule is expressed in obligatory terms and any variation from
the wording of these forms may be, in certain circumstances fatal.

C. Alternative Charges
Under section 137(b)(i) where an enactment constituting an offence states the offence to be the
doing of or the omission to do any one of any different acts in the alternative, or the doing of
or the omission to do any act in any one of any different capacities, or with any one of different
intentions, or states any part of the offence in the alternative, the acts, omissions, capacities or
intentions, or other matters stated in the alternative in the enactment, may be stated in the
alternative in the count charging the offence.

The exact acts or omission with which an accused person is charged may constitute more than
one offence. It is therefore advisable that in such case the offences be laid in the alternative as
opposed to consecutively or cumulatively.

In Cosma v Republic14, the appellant was convicted on four counts of conversion of motor
vehicle not amounting to theft, robbery with violence, assault occasioning bodily harm on
person x and assault occasioning bodily harm on person y. The appellant and others had
broken into a house and shop and stolen property. In the course of the burglary, violence was
done to two persons and this formed the basis of the assault charges as well as the subject of
the particulars given for the offence of robbery with violence. The prosecution admitted that

13
Section 137(a)(iv) of the Criminal Procedure Code Cap. 75 Laws of Kenya.
14
(1955) 22 E.A.C.A. 450.

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the assault charges were in fact alternatives to the count on robbery with violence although
this was not stated in the charge. The Court of Appeal held that the counts can and should be
laid in the alternatives in appropriate cases and that subject to rules of misjoinder of charges,
any number of counts may be laid.

The significance of preferring charges in the alternative is that where the main and alternative
charges are proven, a conviction should be entered on the main charge and no finding should
be made on the alternative count.

D. Description of Property
Pursuant to section 137(c) (i) the description of property in a charge or information shall be in
ordinary language, and shall indicate with reasonable clearness the property referred to. It is
not be necessary to name the person to whom the property belongs or the value of the
property, except when required for the purpose of describing an offence depending on any
special ownership of property or special value of property.

Where the property is vested in more than one person, and the owners of the property are
referred to in a charge or information, it shall be sufficient to describe the property as owned
by one of those persons by name with the others, and, if the persons owning the property are a
body of persons with a collective name, such as a joint stock company or “Inhabitants”,
“Trustees”, “Commissioners” or “Club” or other similar name, it shall be sufficient to use the
collective name without naming any individual. 15

A property belonging to or provided for the use of a public establishment, service or

department may be described as the property of the Government.16

15
Section 137(c) (ii) of the Criminal Procedure Code Cap. 75 Laws of Kenya.
16
Ibid section 137(c) (iii).

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Coin, bank notes and currency notes may be described as money. An allegation as to money,
so far as regards the description of the property, must sustain proof of the amount and not the
specific denomination. In cases of stealing and defrauding by false pretences, it is sufficient
proof that the accused dishonestly appropriated or obtained the amount of money alleged
notwithstanding that it was part of a larger amount which he/she may have returned to or
delivered on behalf of the person who gave it to him/her.17

In Evans Masese Mose v Republic18, the court stated that the omission or failure to describe
property in the charge or information was fatal to the entire charge and the subsequent
conviction.

E. Description of Persons
Pursuant to section 137(d) of the Criminal Procedure Code, the description or designation in the
charge or information of the accused person, or of another person to whom reference is made
therein, must be reasonably sufficient to identify him/her. It is not necessary to state his/her
correct name, abode, style, degree or occupation. If the name of the person is not known, or for
any other reason, it is impracticable to give such a description or designation, it is enough to
give such details as are reasonably practicable in the circumstances or to refer to him/her as „a
person unknown.‟

In Peter Ngure Mwangi v Republic19, a typographical error in the name of the complainant was
held not to prejudice the appellant and was curable

F. Description of Documents
Pursuant to section 137(e) of the Criminal Procedure Code, reference to a document or instrument
in a charge or information must describe the name or designation by which it is usually
known, or by the purport thereof without setting out a copy.

17
Ibid section 137(c) (iv)
18
(1955) E.A.C.A. 484.
19
Court of Appeal at Nairobi Criminal Appeal No. 44 of 2010.

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 G. General Rule as to Description
Pursuant to section 137 (f) of the Criminal Procedure Code, a place, time, thing, matter, act or
omission to which it is necessary to refer in a charge or information shall be described in
ordinary language so as to indicate with reasonable clearness, what is being described.

H. Statement of Intent
Pursuant to section 137 (g) of the Criminal Procedure Code it is not necessary, to state an intent
to defraud, deceive or injure, to state an intent to defraud, deceive or injure a particular
person, where the enactment creating the offence does not make an intent to defraud, deceive
or injure a particular person an essential ingredient of the offence.

I. Mode of Charging Previous Convictions

Pursuant to section 137 (h) of the Criminal Procedure Code, where a previous conviction is
charged, it shall be charged at the end of the charge or information by means of a statement
that the accused person has been previously convicted of that offence at a certain time and
place without stating the particulars of the previous offence.

J. Use of Figures and Abbreviations

Pursuant to section 137(i) of the Criminal Procedure Code, figures and abbreviations may be used
for expressing anything which is commonly expressed in such manner.

K. Gross Sums in Cases of Stealing

Pursuant to section 137(j) of the Criminal Procedure Code, when a person employed as a public
servant, a clerk or servant, a director or officer of a company as well as an agent is charges
with the offence of stealing under sections 280-283 of the Penal Code, it shall suffice to specify the
gross amount of the property in question and the dates between which it is alleged to have
been stolen without specifying particular times or exact dates.

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 L. Counts
Pursuant to section 135 of the Criminal Procedure Code, where more than one offence is charged
in a charge or information, a description of each offence so charged shall be set out in a
separate paragraph of the charge or information called a count. Where a charge or information
contains more than one count, the counts shall be numbered consecutively. 20 It is not
necessary, in a count charging a statutory offence, to negative any exception or exemption
from, or qualification to, the operation of the enactment creating the offence.21

In Mwaitige v Republic22 the appellant was charged on four counts with illegally selling over
five tons of coffee to a dealer. The charge sheet set out a single statement of offence of the
alleged offence followed by particulars of the four counts in succession. The four separate sets
of particulars in the count were not preceded by four separate statements of the offence. The
Court of Appeal held this was an irregularity as each count is a distinct offence and should
contain a statement of the offence of its own.

M. Duplicity
A count that charges within it more than one specific offence is said to be bad for duplicity or
duplex. It is a fatal mistake and not curable. This is because a duplex charge violates the
accused person‟s right to fair trial since it is not clear what charges confront him/her.
Consequently, the accused may not be able to mount a proper defence leading to a miscarriage
of justice.

In Mwamdalafu v Republic,23 the appellant was charged with the two counts for the offence of
arson and attempted murder. The particulars of the charge of arson alleged that the appellant
had set on fire two houses, one belonging to A and the other belonging to B. The houses stood
more than 100 yards apart. He was charged with one count of murder and one count of arson.

20
Ibid section 137(a) (v).
21
Ibid section 137(b) (ii).
22
(1961) E.A. 470.
23
(1966) E.A. 459.

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The particulars stated that he attempted to cause the death of A and his wife by setting on fire
2 house one belonging to A and the other to B. Evidence showed that the appellant had
attempted murder on 2 occasions. The first, he burnt A‟s house and when A took refuge in B‟s
house, he burnt B‟s house as well. The question was whether there was duplicity.

It was found that there was duplicity, with respect to the arson charge as there were two
offences arising from two acts of arson. Secondly, there was also duplicity with respect to the
attempted murder hence there ought to have been two charges of attempted murder. Thirdly,
the attempted murder counts should be framed in the alternative. There ought to have been
four counts and not two but the attempted murder counts should have been in the alternative.

In Saina v Republic24, the accused person faced a single count of housebreaking, theft and
handling stolen property. On appeal the High Court held that the charge was barred for
duplicity.

In Bhatt v Republic,25 the appellant was charged with being in possession of obscene material,
contrary to section 181(a) of the Penal Code. It was alleged that the appellant for the purpose
of or by way of trade for the purpose of distribution or public exhibition had in his possession
37 photographs of an obscene nature which could tend to corrupt the morals of any person.
Section 181 talks of alternative purposes.

It was held on appeal that the particular motive why the appellant had the photos should have
been averred to the purposes. It was wrong for the charge to refer to many purposes. The
averment of several purposes made the charge barred for duplicity. Each of the several
particulars set out in the charge constituted a separate offence. Charging the accused in this
manner prejudiced his defense.

24
(1962) E.A. 83.
25
(1960).

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 a) Exceptions to the General Rule on Duplicity
 Where the form of preferring a charge is allowed by statute. The second schedule of the
Criminal Procedure Code authorizes charging of 2 offences in one count in respect of:
a) The offence created under section 330 of the Penal code in respect of false
accounting;
b) The offences created under section 304 and section 379 i.e. burglary and stealing.
Form 9, in the second schedule.

In Pope vs. Republic, 26 the accused was charged with fraudulent accounting and false
accounting contrary to section 330(a) of the Penal Code. In the particulars it was alleged that
he falsified or was privy to the falsifying of a document. He was convicted. On appeal he
argued that the charge was bad for duplicity because it charged two offences in one count. The
Court of Appeal held that the charge was not duplex for it only charged one offence and was
in the form authorized by the second schedule to the criminal procedure code.

 Where the separate offences are charged conjunctively using the word „and‟ as opposed to
„or‟ if the matter relates to one act.

In Gichinga v Republic27, the appellant was charged with driving a car recklessly. In the
particulars, it was stated that he drove in a reckless manner and at a speed which was
dangerous to the public having regard to all the circumstances of the case contrary to the
Traffic Act. The Act employs „or‟ rather than „and‟. The magistrate acquitted the accused
because of duplicity as it alleges the commission of two offences. On revision by the High
Court, it was held that the charge was not duplex and it had been expressed conjunctively and
it referred to one incident or act i.e. appellants manner of driving at the relevant time. If it had
been expressed using the disjunctive „or‟ it would have been duplex.

26
1960) EA 132
(
27

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 II. Overloaded Charge Sheet
A charge is said to be overloaded when multiple counts involving different aspects of criminal
law are brought against an accused person thereby prejudicing or embarrassing him/her in
the presentation of his/her defence by their sheer numerosity.28

In Ochieng’ v Republic29 the accused was charged with 44 counts of motley offences. He was
acquitted of a few and convicted of the rest. At the High Court he was acquitted of two more
counts and his conviction in respect of the rest affirmed. He appealed again and the Court of
Appeal held that it was undesirable to charge the accused with so many offences on the same
charge sheet, as it may occasion prejudice or embarrassment. The Court went on to state that
there should be no more than twelve counts on the same charge sheet.

In Richard Lenguro Ramacha &2 Others v Republic30, the Court held that having 17 counts on
a charge sheet would be overloading the charge sheet. Courts are concerned that including
many counts may lead to complex and protracted trial, and may also prejudice the accused by
imposing a heavy task in preparing the defence.
Where a person is charged with numerous counts on the same charge sheet, the prosecution
should elect the counts it prefers to deal with at a particular trial. It may exercise its discretion
under section 89(a) of the Criminal Procedure Code to withdraw the extra charges. The
accused person is therefore discharged in respect of the withdrawn charges but can be charged
again later.
III. Joinder of Counts
Pursuant to section 135(1) of the Criminal Procedure Code, joinder of counts refers to the charging
of two or more offences founded on the same facts, or forming or part of a series of offences of
the same or a similar character in the same charge sheet or information. The offences charged
together may be felonies or misdemeanors.

28
Kinyanjui v Republic (2004) 2KLR 364.
29
High Court Criminal Appeal No. 10 of 1985.
30
High Court at Nakuru Criminal Appeal No. 30 of 2010.

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Joinder of counts is advantageous from different standpoints. First, it is both convenient and
expedient in that it saves time and avoids multiplicity of trials involving the same sets of facts.
From the accused person‟s point view, it not only saves legal costs but also afford him/her the
opportunity of serving concurrent sentences in the event of a convention. Further, it gives the
court an opportunity to look at the accused vis a vis the series of offences as a whole when
sentencing.

Where the accused is charged with more than one offence, the offence can be joined even if
they do not arise from the same acts of form part of the same transaction so long as there is
sufficient nexus between them. A sufficient nexus exist if the evidence of one offence is
admissible in the trial of the other or where two or more offences exhibit similar features that
could conveniently be tried together in the interest of justice. In Evans Kalo Callos v
Republic31, the Court held that there was sufficient nexus between a charge of robbery with
violence and a charge of possession of a firearm and ammunition without a firearm certificate
to try the offences together. The Court held that both the offences though committed at
different times were of similar character as envisaged by section 135 of the Criminal Procedure
Code because they both involved the possession and use of a firearm. Further, the joinder did
not appear to prejudice the accused.

Where the offences charged in the same charge sheet or information are not founded on the
same facts or do not form part of a series of the same or similar character, the same will be
ruled improper as it amounts to misjoinder.

In Republic v Gulamhussein Jetha32, the appellant was convicted of obtaining money by false
pretence on one count and on another for giving false information. The facts alleged that the
appellant had obtained money by false pretence with intent to defraud on 27 June and that on
July 8 he made a false report that his house had been burgled and the money stolen. Ten days

31
Court of Appeal at Nairobi Criminal Appeal No. 360 of 2012
32
(1946) 13 E.A.C.A. 107.

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had lapsed between obtaining money and the alleged false report of the burglary. The Court of
Appeal held that it was doubtful whether the charge in respect of the false report could be said
to have been founded on the same facts as the other charge and that it might, therefore, have
been more properly made the subject of a separate trial.

However, the joinder of counts should not prejudice or embarrass the accused person thereby
rendering his/her defence nugatory. Pursuant to section 135(3) of the Criminal Procedure
Code, where before trial, or at any stage of a trial, the court is of the opinion that a person
accused may be embarrassed in his defence by reason of being charged with more than one
offence in the same charge or information, or that for any other reason it is desirable to direct
that the person be tried separately for any one or more offences charged in a charge or
information, the court may order a separate trial of any count or counts of that charge or
information.

In Godfrey Mandengwa v Republic 33, the Court of Appeal stated that appellate courts have the
jurisdiction to re-evaluate facts of the case and the evidence to satisfy themselves that the
accused has not been prejudiced or embarrassed in answering the charges framed.
Where the court is of the opinion that being charged with more than one offence in a single
charge or information may prejudice the accused, the court may order separate trial of any
count or counts relating to that offence.34

IV. Joinder of Persons

This refers to the charging together of two or more accused persons within the same charge
sheet or information and trying them within the same proceedings.
The following persons may be joined in one charge or information and may be tried together—
a) persons accused of the same offence committed in the course of the same transaction;

33
(2004) eKLR Criminal Application No.627 of 2004.
34
Section 135(3) & 275(4) of the Criminal Procedure Code Chapter 75 Laws of Kenya. Hamisi Mungale Burehe v Republic (
Court of Appeal at Mombasa Criminal Appeal No. 37 of 2013).

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b) persons accused of an offence and persons accused of abetment, or of an attempt to commit
the offence;
c) persons accused of more offences than one of the same kind (that is to say, offences
punishable with the same amount of punishment under the same section of the Penal Code
or of any other Act or law) committed by them jointly within a period of twelve months;
d) persons accused of different offences committed in the course of the same transaction;
e) persons accused of an offence under Chapters XXVI to XXX, inclusive, of the Penal Code
(Cap. 63), and persons accused of receiving or retaining property, possession of which is
alleged to have been transferred by an offence committed by the first-named persons, or of
abetment of or attempting to commit either of the last-named offences;
f) persons accused of an offence relating to counterfeit coin under Chapter XXXVI of the
Penal Code, and persons accused of another offence under that Chapter relating to the
same coin, or of abetment of or attempting to commit any such offence.35

Where two or more accused persons are charged together, the court has discretion as to
whether to have joint or separate trials. In exercising this discretion, the court should balance
the disadvantages, inconvenience and expense of separate proceedings against the likelihood
of prejudice to any of the accused person.36
In Republic v Hassan wa Saleh and Another37, it was held that two persons accused of raping
two different women separately albeit at about the same time and place could not be tried at
the same trial, the transaction not being the same.

In Malebe v Republic38, three appellants faced separate counts of stealing by servant in one
charge sheet. The particulars stated that the offences were committed on separate dates. The
items alleged to have been stolen were different. They were not charged as having had a
common intention. The High Court held on appeal that a joint charge against several accused

35
Section 136 of the Criminal Procedure Code Cap. 75 Laws of Kenya.
36
Dusara & Another v Republic (Court of Appeal at Nairobi Criminal Appeal No. 59 of 1980)
37
(1906-1908) 2 EALR 105.
38
(1982) KLR 320.

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person alleged to have committed separate offences on different dates amounts to a misjoinder
and such a charge is defective. There should have been separate charges for each person and
separate count for each alleged offence committed on a different date.

V. Defective Charges
The general rule is that no objections are allowed in case of any defect in form as far as charges
and information are concerned. In fact, section 90(2) of the Criminal Procedure Code states that the
validity of proceedings undertaken in pursuance of a complaint or charge shall not be affected
either by a defect in the complaint or charge or by the fact that summons or a warrant was
issued without a complaint or charge.

Equally, section 137 of the Criminal Procedure Code provides that where a charge or information
is framed according to the Code it is not open to objection in respect of its form or content. The
defects in the framing of a charge or information do not automatically vitiate the proceedings.
Under section 382 of the Criminal Procedure Code, the primary consideration is whether the
defect occasioned a failure of justice. If an objection is raised against the charge or information
before plea, the court must deal with the objection before the accused is called upon to plead.39
In John Irungu v Republic 40, the Court of Appeal held that the failure to refer to the section of
the Act upon which a charge was based did not prejudice the accused because the particulars
of the offence were clearly stated.

The courts have held that there should be undue regard to technicalities if substantive justice
would be undermined. In Isaac Nyoro Kimita v Republic 41, the Court of Appeal declined to
hold that a defective charge rendered the trial unconstitutional where several accused had
been accused of jointly defiling a girl. The charge was defective because such an offence was
impossible but the accused persons had not been disadvantaged.

39
Section 275(1) of the Criminal Procedure Code Chapter 75 Laws of Kenya.
40
Court of Appeal at Mombasa Criminal Appeal No. 20 of 2016.
41
Court of Appeal at Nairobi Criminal Appeal No. 187 of 2009.

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However, a defect in the charge or information that prejudices or embarrasses the accused
person in mounting his/her defence is incurable. In William Dubi Ikiwo v Republic 42, the
appellant was charged with two offences under section 105(b) of the Penal Code. The charge
sheet read that he was charged with the offence of impersonating a police officer contrary to
section 105(d) of the Penal Code. The quoted provision dealt with persons who falsely
represent themselves as employed in the public service and assumed to do any act or attend
any place for the purpose of doing any act under the purported employment. The court noted
that the offence the accused was charged with did not exist. There was no amendment to the
charge. Hence the court held that the appellant had been convicted for non-existent offence
and proceeded to quash the conviction.

VI. Amendment of Charges

Pursuant to section 214(1) of the Criminal Procedure Code, where at any stage of a trial before the
close of the prosecution case, it appears to the court that the charge or information is defective,
either in substance or in form, the court may make such order for the alteration of the charge.
The alteration may be either by way of amendment of the charge, or by substitution or
addition of a new charge, as the court thinks necessary to meet the circumstances of the case.
With respect to an information, the court is obligated to make an order for the amendment of
an information if a defect comes to its attention unless such an amendment would result in an
injustice.43

Where the charge is so altered, the court must call upon the accused to plead to the altered
charge.44 The accused has a right to demand that any or all the witnesses who had already
testified be recalled and give their evidence afresh or be further cross-examined by him/her or
his/her advocate, and the prosecution has the right to re-examine such witness on matters
arising out of further cross-examination.45

42
(2001) eKLR Criminal Appeal No. 547 of 2001.
43
Section 275(2) of the Criminal Procedure Code Cap. 75 Laws of Kenya.
44
Ibid section 214(1)(i).
45
Ibid section 214 (1) (ii).

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However, the failure to answer to the fresh charges does not automatically vitiate the
proceedings. The primary consideration is whether the accused was prejudiced by the failure
to enter a new plea. In Benjamin Kariuki Wairimu v Republic 46, the Court found that the
failure to enter a new plea when the charge sheet was amended from a charge of simple
robbery to aggravated robbery did not prejudiced the accused. The Court noted that the
amendment had been done before the hearing and the failure to plead did not occasion an
injustice.

Any variance between the charge and the evidence adduced in support of it with respect to the
time at which the alleged offence was committed is not material and the charge need not be
amended for the variance if it is proved that the proceedings were in fact instituted within the
time limited by law for the institution thereof.47

In Obedi Kilonzo Kavevo v Republic 48, the Court of Appeal held that the fact that the charge
sheet indicated that the offence occurred a month before the date established by the evidence
did not prejudice the appellant and was curable under sections 275(2) and 382 of the Criminal
Procedure Code.

Where an alteration of the charge is made and there is a variance between the charge and the
evidence, the court must, if it is of the opinion that the accused has been thereby misled or
deceived, adjourn the trial for such period as may be reasonably necessary. 49 This is meant to
protect the interest of the accused person by affording him/her more time to make full and
proper preparation of his/her defence in light of the amendment or alteration.

46
Court of Appeal at Nairobi Criminal Appeal No. 217 of 2008.
47
Ibid section 214(2).
48
Court of Appeal Criminal Appeal at Nairobi No. 77 of 2015.
49
Ibid section 214 (3).

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 Where charge is amended, a note of the order for amendment must be endorsed on the charge
and the charge will be treated for the purpose of all proceedings in connection therewith as
having been filed in the amended form.50

In Mohamed Bashir v Republic51, the appellant was charged with attempted murder,
disobedience of lawful orders threatening injury to a public servant and obstructing a Produce
Inspector in the course of his duty. All the charges were defective in that they contained no
particulars of the offences charged. The magistrate started the hearing but at some point,
changed the attempted murder charge to that of assault. The fourth charge was withdrawn
and the accused convicted of the three remaining charges but had not been asked to plead to
the charge of assault. The High Court declared the trial a nullity.

VII. Quashing Charge or Information

If an information or charge does not state, and cannot by amendment be made to state an
offence of which the accused has had notice, it shall be quashed either on a motion made
before the accused pleads or on a motion made in arrest of judgment. A written statement of
every such motion must be delivered to the Registrar or other officer of the court by or on
behalf of the accused and shall be entered upon the record.52

VIII. CAPITAL CHARGES

Although a person may be charged with several capital offences in the same charge sheet or
information, it has been held to be good practice to proceed with one capital charge at a time
and leave others in abeyance.53 Where an accused person is charged with a capital offence and

50
Ibid section 275(3).
51
(1950) 24 K.L.R. 88.
52
Section 276 of the Criminal Procedure Code Cap. 75 Laws of Kenya.
53
Brown Tunje Ndago & Another v Republic Court of Appeal at Mombasa Criminal Appeal No. 249 of 2011; Okwaro
Wanjala v Republic Court of Appeal at Nairobi Criminal Appeal No. 55 of 1978(1979) KLR 46; Stephen Muiruri and 2
Others v Republic Court of Appeal at Nairobi Criminal Appeal No. 47 of 1979 (1980) KLR 70.

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non-capital offence, the court may proceed with the capital charge and hold the non-capital
charges in abeyance.54

Resource Materials
Constitution of Kenya, 2010.
The Criminal Procedure Code, Chapter 75 Laws of Kenya.
The Penal Code, Chapter 63 Laws of Kenya.
Kiage P, Essentials of Criminal Procedure in Kenya, Law Africa Publishing (k) Ltd, 2010.

54
Hamisi Mungale Burehe v Republic Court of Appeal at Mombasa Criminal Appeal No. 37 of 2013.

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