RESOURCE MATERIAL SERIES No. 53

THE ROLE AND FUNCTION OF PROSECUTION IN
CRIMINAL JUSTICE
Jonathan John Mwalili*
I. INTRODUCTION
A reference to the history of Kenya isessential in understanding the various
sources of the law. Before Kenya gained
her independence and became a Republic
on 12 December 1963 and 1964
respectively, it was a British colony, andthere was also the ten-mile coastal strip
protectorate under the Sultan of Zanzibar.
Upon colonization, the English law wasapplied to Kenya. It included the substanceof the common law, the doctrine of equity
and the statutes of general application inforce in England on 12 August 1897,
together with the procedure and practiceobserved in the courts of justice in Englandat that date.
The English law that was applied to
Kenya could only be applied so far as thecircumstances of Kenya and its inhabitants
permitted. The reception clause also
recognizes the existence of the various
customary laws, including Islamic andHindu law that were in operation before
colonization.
With the attainment of independence andon becoming a republic, there came into
being the republican constitution whichbecame the supreme law of the land andhence a source of law in Kenya. Judicial
precedent is an invaluable source of law.
Decisions of the superior courts of records,
the High Court and the Court of Appeal, arereported in law reports such as the Kenya
Law Reports, the East African Law Reports
and the Eastern African Law Reports.
There are also English law reports, notably,
the All England Law Reports.
* Officer in Charge of Prosecutions, Prosecutions
Branch, High Court-Nairobi, Kenya.

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II. ORGANIZATION OF
PROSECUTION
A. Office of the Attorney-General
The Attorney-General is a constitutional
officer, and his office is an office within the
public service. He is the principal adviser
to the Government of Kenya and is also thechief public prosecutor. His role is not
limited to the constitutional functions ofadvising and controling criminal
prosecutions, but extends to a multitudeof other functions such as:(1) appearing in court on behalf of thegovernment in civil litigation inwhich the government is a party;(2) acting as a counsel for Parastatals incourt;(3) drafting bills for presentation inparliament, etc.;(4) preparing international agreements,
treaties and commercial agreements
involving the Government of Kenya
and foreign States or bodies;(5) supervising the Registrar-General’s
Department which deals with theregistration of companies, trademarks, patents, books and news
papers, marriages, births and deaths,
and trade unions, welfare societies
and chattel mortgages; and(6) supervising of the Public Trustee, theLaw Reform Commission, the Kenya
School of Law, and the Office of the
Official Receiver.
The role of the Attorney-General in thiscontext will be limited to the examinationof his advice and prosecutions in criminalcases. The Office of the Attorney-Generalis arranged in a vertical manner with the

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Attorney-General at the apex and the State
Counsel at the bottom. See Figure 1.
In addition to being the principal adviser
to the government and chief publicprosecutor, the Attorney-General is also an
ex-officio member of the National Assembly,
a cabinet minister in the government andthe head of the bar (advocates). He is
appointed by the President.
Membership to the National Assembly
and the government assists the AttorneyGeneral in making decisions as to whether
to prosecute or not in offences that involve
public policy.
B. Constitutional Position of the
Attorney-General
In deciding whether or not to initiate aprosecution, the Attorney-General is not
subject to any person or authority.
Although Parliament is supreme in the
Kenyan system of government, it cannot,
in law, order the Attorney-General toprosecute. This independent exercise isillustrated in the reply to Parliament by aformer Attorney-General, Mr. Joseph
Kamere, when Parliament sought to haveone Stanley Munga Githunguri prosecutedon charges of contravening the provisionsof the Exchange Control Act. In his reply
the A.G. said:
Kenya as a constitutional governmentis totally committed to the rule of law.
We cannot talk of the rule of law
without an efficient machinery to
enforce the ordinary laws of the land.
The police, the judiciary and my office
are the components of that machinery,
and if any of those cogs break down,that essential machinery can easily
come to a grinding halt. Prosecution
is not persecution—what this House
has been subjected to is to challenge
the decision of the A.G., who decided
not to proceed against Mr. Githunguri
on the evidence contained in theinquiry file. This House makes laws
but does not execute them. The law

is left to persons of integrity, thosewith patience in their deliberations,
to consider whether to prosecute or
not to prosecute. The question as towhether to prosecute or not toprosecute is entirely left to thediscretion of the A.G. In this country,
we believe in the rule of law; webelieve in the separation of the
judiciary; and we also believe that you
cannot be a judge and prosecutor.
Prosecution and not prosecution, play
one of the most important roles in theadministration of criminal justice inany form of a constitutional
government.
This statement illustrates theseparation of powers of the government
into the legislative arm (Parliament) the
executive and the judiciary organs ofgovernment, which play mutually exclusive
roles.
Officers subordinate to the AttorneyGeneral who act in accordance with his
general instructions are: the SolicitorGeneral, the Deputy Public Prosecutor; theAssistant Deputy Public Prosecutor; andall State Counsels, at the State Law Offices
Nairobi and in the Provincial and District
State Law Offices. Section 26 (4) of theConstitution gives all of them the authority
to instruct the Commissioner of Police andofficers subordinate to him, to carry out
investigations into various offenses and todirect, generally, prosecutions in the
country. (See Figure 1.)
The Attorney-General and officers
subordinate to him and acting inaccordance with his general or special
instructions have the constitutional
authority to institute and undertake
criminal proceedings against any person
before any court (other than a courtmartial) in respect of any offense alleged
to have been committed by that person. He
also has the authority to take over andcontinue any criminal proceedings that219

RESOURCE MATERIAL SERIES No. 53
have been instituted or undertaken byanother person or authority) popularly
known as private prosecutions). He has
the authority to discontinue at any stage
before judgment is delivered any suchcriminal proceedings instituted orundertaken by himself or another person(private prosecution) or authority (e.g., thepolice force).
C. Decision to Prosecute and theRole of a Prosecutor
The decision to prosecute is the mostproblematic role of a prosecutor. Unlike
other areas of the law where it is possible
to resort to reported or unreported
authorities, there are no such authorities
to guide a prosecutor in reaching a decision
as whether to mount a prosecution or not.
The problem is compounded by the fact that
the Attorney-General, as the chief publicprosecutor, rarely makes public his reasonsfor mounting or discontinuing aprosecution. Unlike a court which has theopportunity of determining the credibilityof witnesses, the Attorney-General and his
officers have to rely on the statements of
the witnesses in the investigation files.
In some cases a prosecutor, after
perusing the file, may get the impressionthat there is prima facie evidence against
the accused, but in the course of aprosecution the witness turns out to be
incredible or hostile. The net effect is thatno such case is made out to require an
accused being put on his defense; forexample, cases involving relatives.
Factors influencing the decision toprosecute include:
1. The existence of prima facie evidence.
The evidence upon which a court,
properly directing itself upon law andevidence, is likely to convict in theabsence of an explanation from theaccused. (This is a judicial definition.)
2. The attitude of the complainant. All
offences are committed against the220

State and thus the attitude ofcomplainant should not influence a
withdrawal of a case. However, insome cases the complainant’s attitudeis taken into account in deciding
whether a prosecution is warranted.
For example, when the accused is arelative of the victim, the item stolen
has been recovered, and the parentsof the accused pressure thecomplainant to withdraw the case.
3. Health of accused. Where an
accused’s health is poor, prosecution
may be discontinued, especially interminal illnesses.
4. Humanitarian factor. It is a cardinalrule that a prosecutor has to be fairand not oppressive. This is a factor
that should be borne in mind inconsidering whether a considerationof a prosecution is merited. For
example if a husband and wife arecharged and the husband dies in theprocess, the case against the wife
could be withdrawn.
5. Public interest. The A.G. has toassess whether the public interest
will be served best by the prosecution.
Therefore, the A.G. makes
consultation with his cabinet
colleagues, especially in politicalcases.
6. G r a v i t y o f t h e o f f e n c e , t h ecircumstances surrounding thecommission of the offence and its
nature determine the gravity; e.g.,
trespass to land and assaults arisingout of vendetta or are intended tosettle old scores.
7. Impact on international relations.
Where two sovereign states are
involved, it is a good practice toconsider the impact of such intended
prosecution on the relations between
the affected States.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
D. Withdrawal from Prosecution in
Trials before Subordinate Courts
1. Section 87 of the C.P.C
The Attorney-General may, in a trial
before a Subordinate Court, but not in theHigh Court, instruct a police prosecutor towithdraw from the prosecution of any
person. If the withdrawal is made before
the accused person is called upon to makehis defense, then the accused may bedischarged but may be re-arrested andcharged with the same offense based on thesame facts. If the withdrawal is made after
the accused has been called upon to makehis defense, then he shall be acquitted.
This power is delegated, through Legal
Notice No. 106/1984, to the Solicitor
General, Deputy Public Prosecutor,
Assistant Deputy Public Prosecutor; allPrincipal State Counsels; and Provincial
State Counsels in Central, Eastern, Coast,
Nyanza, Rift Valley and Western Provinces.
Those in the District State Law Offices do
not have the delegation, i.e., Machakos,
Embu, Meru, Kisii, and Eldoret.
2. Section 82 (1) of the C.P.C.:
Nolle Prosequi
The Attorney General may, in any
criminal case, whether in the High Court
or Subordinate court and at any stage ofthe case before verdict or judgment(whether judgment has been written or not
but before it is pronounced) enter a nolle
prosequi. He may do so orally (by statingin Court that he is entering a nolle prosequi
under this section) or in writing. There
upon the accused shall be at once bedischarged in respect of the charge forwhich the nolle prosequi is entered.
This discharge shall not, however,operate as a bar to subsequent proceedings
against him on account of the same facts.
This power is delegated under section 82
of the Criminal Procedure Code and Legal
Notice No. 106 of 1984 to the Solicitor
General, Deputy Public Prosecutor,

Assistant Deputy Public Prosecutor,
Principal State Counsels and Provincial
State Counsels. For clarity, there are some
Provincial State Counsels who are either
State Counsels I and State Counsels II.
These are allowed to sign the nolle prosequias Provincial State Counsels and not intheir respective designations.
The powers of the Attorney-General of
Kenya are the same with those of the
Attorney-General of England in thisregard. This power was explained by Lord
Dilhorne in the case of Gouriet v. Union of
Post Office Workers, (1977), 3 All England
Reports at page 88, when he said:
The Attorney-General has many
powers and duties. He may stop any
prosecution in indictment by enteringa nolle prosequi. He merely has tosign a piece of paper saying that hedoes not wish the prosecution tocontinue. He need not give any
reasons. He can direct the institutionof a prosecution and direct the
Director of Public Prosecutions to takeover the conduct of criminal
proceedings and he may tell him tooffer no evidence. In the exercise of
these powers, he is not subject todirection by his ministerial colleagues
or to the control and supervision of thecourts. If the court can review his
refusal to consent to a related action,
it is an exception to the general rule.
It is, therefore, correct to say that the
Attorney-General has the unfettereddiscretion to bring charges against a person
if he considers that any law has been
infringed by that person. He also has theprerogative to terminate the charges even
without assigning reasons.
Despite this, the High Court of Kenya
has ruled that the Attorney-General’s
discretion to discontinue criminal cases
under section 82 (1) of the C.P.C. should
not be exercised arbitrarily, oppressively,
contrary to public policy. The High Court

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RESOURCE MATERIAL SERIES No. 53
has an inherent power and duty to securefair treatment for all persons who arebrought before courts and to prevent an
abuse of the process of the court. To thislimited extent, therefore, the powers of the
Attorney-General to enter a nolle prosequi
are subject to the control of the court.
E. Power to Appoint Public
Prosecutors, Section 85 of the
C.P.C.
(1) The Attorney-General, by notice in
the Gazette, may appoint publicprosecutors for Kenya or for any
specified area thereof, and either
generally of for any specified case orclass of cases.
(2) The Attorney-General, by writing
under his hand, may appoint any
advocate of the High Court or person
employed in the public service, notbeing a police officer below the rankof Assistant Inspector of Police, to bea public prosecutor for the purposesof any cases.
(3) Every public prosecutor shall be
subject to the express directions of the
Attorney-General.
F. Qualification of Prosecutors
1. Prosecution counsels in the office of
the Attorney-General are qualified
advocates of the High Court who have hadlegal training. However, due to theshortage of lawyers, the Attorney-Generalis empowered under section 85 of the C.P.C.
to appoint public prosecutors. Pursuant tothis statutory power, the Attorney-General
has appointed police prosecutors who act
as advocates, although they are not lawyers
by training.
2. Police Prosecutors
Unlike private prosecutions, the right ofthe police to prosecute is by virtue ofdelegated power from the A.G. under
section 85 of the C.P.C. It is significant tonote that under section 14 of the Police Act,

222

prosecution is not mentioned as one of thefunctions of the police force, which confirms
the fact that the prosecutorial powers
vested in them are derived from a delegatedpower. Most prosecutions in this country
are conducted by police in the Magistrate’s
Courts and, as prosecutors, they fall under
the direct control of the Office of the
Attorney-General. However, when they are
performing normal police duties, they fallunder the direct control of theCommissioner of Police. (See Figure 2.)
To qualify to be prosecutors, they mustbe at the rank of Police Inspectors. They
undergo a training for four months before
joining the prosecutions branch. In termsof the organization, the Police Prosecution
branch falls under the Department of
Criminal Investigation (popularly known
as CID). At one time the entire CID wasunder the control of the A.G., coincidently
resembling the U.S. set-up. The CID ischarged with the responsibility ofinvestigating all serious criminal cases,
while the rest are dealt with by regularpolice. The A.G supervises police
prosecutions either in person or throughhis subordinate officers. This supervision
is achieved by the requirement of statutory
consent of the A.G. in respect of certain
offences including sedition, incest by males
and females, oral threats to kill, corruption
in office and the prosecution of foreigners.
The police prosecutors are not legallytrained. They prosecute before magistrates
while State Counsels appear both before
the magistrates and the judges of the High
Court on prosecution and on appeals. The
structure of the courts is shown in Figure 3.
III. STATUS OF THE PUBLICPROSECUTOR
The powers, authorities and functions
relating to the prosecution in Kenya are
vested in the Attorney General. These
powers may be and are delegated by him.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
While prosecuting, therefore, a
policeman is acting as the representativeof the A.G., and not as the representativeof the Commissioner of Police. In his
capacity as a prosecutor, a policeman issubject only to the directions andinstructions of the A.G. The police
prosecutor finds that he is, so to speak,wearing two hats. Sometimes it is hard toreconcile the two. If the police prosecutor
has any difficulty in this regard, he should
remember that his duty as a prosecutor isto the court.
A. The Task
The prosecutor should remember that it
is not his job to secure a conviction at all
costs. As Sir Horace Awory, one ofEngland’s greatest criminal judges said in
R vs. Banks, 2KB 621:
Counsel for the prosecution
throughout a case should not struggle
for a verdict against the prisoner, butthey ought to bear themselves rather
in the character of ministers of justiceassisting the administration of justice.
The prosecutor’s job is to see that all the
relevant facts, including those favorable toan accused, are placed before the court andto present those facts in an ethical, fair,dispassionate, firm and clear manner.
Prosecutors must refrain from all actions
which could lead to the conviction of
innocent persons. However, this objective
attitude must not detract from the fact thatas a prosecutor he is acting on behalf of an
aggrieved party, the State. It is as much a
miscarriage of justice for guilty persons tobe acquitted as for the innocent to beconvicted.
Consequently the air of detachment thatthe prosecutor should display does notmean that he must not present his casevigorously. Ideally whatever the results at
the end of the case, the prosecutor shouldbe able to say that he has done his best.

In the words of a former AttorneyGeneral, Justice M.G. Muli:
As prosecuting counsels we never lose
or win cases. We only have a burden
upon ourselves to prove a case beyond
reasonable doubt in criminal casesand on balance of probabilities in civil
cases. In this regard, we must place
before this court all facts concerning
the case and must be fair, honest,
frank, courteous and respectful when
doing so. In our system, theconstitution allows for a conviction
and an acquittal, so we should nottherefore strain after a conviction, wemust always seek to see that justiceis not only seen to be done but that it
is done.
In Bukenya and others v. Uganda, it washeld that the prosecution must makeavailable all witnesses necessary toestablish the truth even if their evidence
is inconsistent and that under certain
circumstances the court, on its volition, hasa duty to call witnesses whose evidence
appears essential to the just decision of thecase.
The role of the prosecutor is that of anagent of justice and as an advocate in court
represents the public, including thecomplainant who is the victim of the somecrime of which the public is interested in
knowing the truth through fair prosecution
in court. The reason why the role of theprosecutor is different from that of an
ordinary advocate was summed up by the
U.S. Supreme Court in Berger v. UnitedStates, 55 s. ct. 629 (1935):
The [prosecutor] is the representative
not of an ordinary party to acontroversy, but of a sovereignty
whose obligation to govern
impartiality is as compelling as its
obligation to govern at all, and whose
interest, therefore, in a criminal
prosecution is not that it shall win acase, but that justice shall be done.

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As such, he is in a peculiar and very
definite sense the servant of the law,
the twofold aim of which is that guilt
shall not escape or innocence suffer.
He may prosecute with earnestness
and vigor-indeed, he should do so. But
while he may strike hard blows, he is
not at liberty to strike foul ones. It is
as much his duty to refrain from
improper methods calculated to
produce wrongful conviction as it is
to use every legitimate means to bringabout a just one.
If the accused is acquitted, theprosecutor should not feel that he has “lostthe case” for the State does not “lose” if oneof its citizens is acquitted on a criminal
charge. The prosecutor should be able tosay that the accused was acquitted only
because the evidence was insufficient tosupport a conviction. He should never haveto say that although the evidence wasotherwise satisfactory he failed to conduct
his case properly.
It is as well too to remember the salutary
words of a great South African judge,
Curlewis J. A, in the case of R. v. Hepworth,1928 AD 265 at 277:
A criminal trial is not a game where
one side is entitled to claim the benefitof any omission or mistake made by
the other side, and a judge’s position
in a criminal trial is not merely thatof an umpire to see that the rules of
the game are observed by both sides.
The prosecutor stands between thepolice and the citizen and is expected tomake sure that a prima facie case is madeout in respect of each charge before theaccused is put to the expense andinconvenience of being brought to court andcalled upon to plead.
B. Presentation of the State Case
The prosecutor must understand all thefacts of his case and be able to present themin a clear and logical sequence so that the224

court is able to follow the evidence with theminimum of mental effort. From themagistrate’s point of view, it is relatively
easy to try a case which is presented in a
logical sequence and in such a way that therelevance of each piece of evidence isreadily apparent.
A properly presented case enables themagistrate to concentrate on his prime
duty of judging the innocence or the guiltof the accused. It should not be necessary
for the magistrate to have to shoulder the
additional burden of trying to follow a badly
presented case.
It is a waste of every one’s time to
produce unrelated and unexplained facts
and exhibits before the court and expect
the magistrate to be able to understandwhat they are all about. In addition, it isunfair to the accused who should also beable to follow the evidence with theminimum of difficulty.
It is also the duty of the prosecutor toensure that a correct charge is filed against
the accused person. Section 214 of the
Criminal Procedure Code empowers thecourt to amend or substitute a charge if theoriginal charge is shown to be defective.
The ease with which a prosecutor is able
to present and prosecute his case is directly
proportional to the amount of preparatory
work he carries out. He must read the filecarefully, he must know or find out therelevant laws; and he must plan thepresentation of his case with care andcommon sense.
The magistrate’s burden is greatly
increased when the prosecutor is
inexperienced. As pointed out by theSupreme Court in S. v. Manger, 1985 (1)ZLR 272:
It is not part of the magistrate’s job toassist an inexperienced prosecutor.
The ways in which a magistrate may
assist a prosecutor are strictly limited
and no prosecutor should ever appear
in court feeling that if things go wrong
during the trial the magistrate will
help him.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
The prosecutor does not go into court justto lead in evidence of the facts containedin his file. His job is more exacting thanthat. He has to lead the evidence, judge
its veracity and effect on the court, form
an opinion concerning what facts seem tobe common cause and what facts are indispute and be prepared to argue themerits of his case, either on a point of law
or on the facts. To do this, he must take asustained and intelligent interest in all theevidence given.
Prosecuting is hard work and theprosecutor must be on his toes all the time.
The successful prosecutor is always
learning something new.
C. Legal Ethics
Public prosecutors, whether admitted aslegal practitioners or not, are bound by the
ethics of the legal profession. Members of
the legal profession are bound by strict
rules, which are administered by the law
society. These rules are intended primarily
to protect the public, particularly theclients of the legal practitioners, but arealso intended to maintain an acceptablelevel of conduct within the profession itself.
The rules, thus, regulate dealings between
lawyers and the conduct of lawyers in theirdealings with the courts. Publicprosecutors do not have clients, as such,
but they deal with members of the publicin the form of the accused and thewitnesses and with defense lawyers. A
major part of their task involves dealing
with the courts.
The public nature of a prosecutor’s task
makes it is essential that his conduct in
the performance of that task be above
reproach.
“Ethics” involves a consideration of
moral questions. Conduct which is ethicalis morally correct and honourable. As
mentioned above, the prosecutor’s task is
not to win at all costs. It would be easy to
win cases if one was dishonest or devious.
In a civilized country which adheres to therule of law, such conduct is completely
unacceptable, being as it is immoral andthus unethical.
Prosecutors are bound by ethical rules
at all stages of their task, not merely whenpresenting a case in court. Ethicalconsiderations arise before and after thestart of court proceedings and even whena prosecutor is off duty.
IV. PRIVATE PROSECUTIONS
A. The Attorney General in Kenya is the
Director of Public Prosecutions. The
authority is given to him by theConstitution of Kenya in section 26 (3)thereof to institute and undertake criminal
proceeding against any person in Kenya
and before any court (except a courtmartial) and in respect of any offense. A
prosecution is the process of institution andundertaking criminal proceedings against
any person in a court of law. The Attorney
General is, therefore, responsible for all
public prosecutions in the country. Every
public prosecutor shall be subject to his
directions.
B. There may be certain instances wherea private person may wish to institutecriminal proceedings against another.
First and foremost, there is noconstitutional provision for this, i.e., theConstitution of Kenya has not, as it hasdone in the case of the Attorney General,
expressly authorized a private person to
institute and undertake criminal
proceedings. However, the Criminal
Procedure Code, which is subordinate to
the Constitution, has under section 88
thereof, permitted a private person to
conduct a criminal prosecution against
another with permission of the court. Thissection reads:(i) A Magistrate trying a case may
permit the prosecution to be
conducted by any person, but noperson other than a public225

RESOURCE MATERIAL SERIES No. 53
prosecutor or other officer generallyor specially authorized by the
Attorney-General in this behalf
shall be entitled to do so without
permission.
(ii) Any such person or officer shall havethe same power of withdrawing
from the prosecution as provided bysection 87, and the provisions of that
section shall apply to withdrawal bythat person or office.
(iii) A n y p e r s o n c o n d u c t i n g t h eprosecution may do so personally orby an Advocate.
In private prosecutions, the A.G. is in law
entitled to take over a private prosecution
from the private prosecutor. After he hastaken over the private prosecution, the said
prosecution becomes a public prosecution
after which he may terminate theproceedings as was the case in Republic
Through Herman M. Asava & Another v.
Peter F. Kibisu, in which the accused wascharged with assault, confinement andmalicious damage to property.
In addition to this, the High Court of
Kenya has given the following guidelines
on how a private prosecution may beundertaken. This was done by the thenChief Justice A.A. Simpson and the lateJustice S. K. Sachdee when they stated on
12 July 1983 in H. Ct. Cr. Revision No. of
1983 Richard Kimani & S. M. Maina v.
Nathan Kahara as follows:
The right of private prosecution is aconstitutional safeguard. In thewords of LORD DIPLOCK in the
GOURIET CASE (Supra) at p. 498; itis useful constitutional safeguard
against capricions, corrupt or biased
failure or refusal of police forces andthe Office of the Director of Public
Prosecutions to prosecute offenders
against the criminal law...when an
application is made under section 88
to conduct a prosecution, we thinkthat the magistrate should question226

the applicant to ascertain whether areport has been made to the AttorneyGeneral or to the police and with what
result. If no such report has been
made, the magistrate may either
adjourn the matter to enable a report
to be made and to await a decision
thereon or in a simple case of trespassor assault proceed to grant permission
and notify the police of that fact.
The magistrate should ask
himself,How is the complainant
involved? What is his locus standi?
Has he personally suffered injury or
damage or is he motivated by malice,or political consideration?
C. It is a fundamental principle of law thatprivate rights can be asserted byindividuals and public rights can only beasserted by the Attorney-General as
representing the public. Even if it be truethat every citizen has sufficient interests
in seeing that the law is enforced, it does
not follow that every citizen has an interest
in an offense which has caused him no
damage or injury. The Attorney-General
has made his position clear. He will notallow private prosecutions, which are
motivated by personal vendetta or politicalconsiderations, to proceed. The guidelines
laid down in 1983 by the High Court asstated above must be followed. To allow
the mushrooming of private prosecutions
is to open doors to abuses of the criminal
process by individuals. Experience hastaught us that it is difficult to close suchdoors once they have been opened wide.
V. INSTITUTION OF
PROCEEDINGS
A. Proceedings may be instituted either by
the making of a complaint or by thebringing before a magistrate of a person
who has been arrested without warrant.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
B. A person who believes from areasonable and probable cause that anoffence has been committed by anotherperson may make a complaint thereof to amagistrate having jurisdiction.
C. A complaint may be made orally or inwriting, but if made orally, shall be reduced
to writing by the magistrate, and in either
case, shall be signed by the complainant
and the magistrate.
D. The magistrate, upon receiving any
complaint, or where an accused person who
has been arrested without a warrant isbrought before him, shall draw up or cause
to be drawn up and shall sign a formal
charge containing a statement of theoffence with which the accused is charged
unless the charge is signed and presented
by a police officer.
E. Where the magistrate is of the opinion
that a complaint or formal charge made orpresented does not disclose an offence, themagistrate shall make an order refusing
to admit the complaint or formal charge
and shall record his reasons for such andorder.
VI. PROVISIONS AS TO BAIL
When a person, other than a person
accused of murder, treason, robbery withviolence or attempted robbery withviolence, is arrested or detained without
warrant by an officer in charge of a police
station, or appears or is brought before acourt, and is prepared at any time while inthe custody of that officer or at any stageof the proceedings before that court to give
bail, that person may be admitted to bail.
Provided that, the officer or court may,instead of taking bail from the person,
release him on his executing a bondwithout sureties for his appearance.
The amount of bail shall be fixed with
due regard to the circumstances of the case,and shall not be excessive.

The High Court may, in any casewhether or not an accused person has beencommitted for trial, direct that the person
be admitted to bail or that bail required bya subordinate court or police officer be
reduced.
VII. PLEA BARGAINING
Plea bargaining is a new concept in the
E n g l i s h c r i m i n a l l a w. D u e t o i t sadversarial set-up, the parties or theiradvocates have no say in matters ofsentence which are peculiarly within theprovince of the trial court. The court hascomplete discretion as regards which
sentence should be passed, and theprosecution is not permitted to state that
an offence is serious as this is a matter forthe court to decide. It is strange, therefore,
to find the existence of plea bargaining in
our criminal law which is not only
adversarial in set-up in trials, but also does
not allow the parties or their advocates toenter into bargains with the court.
Plea bargaining is primarily arrived atgetting a lenient sentence for an accused
person. This is achieved as a result of
negotiations between the prosecution andthe defense whereby the prosecutor,
depending on the nature andcircumstances of the offence, may reduce acharge of murder to one of manslaughteror may decide to prefer a charge of simple
robbery instead of robbery with violence
which carries a death sentence. This could
be done in return for a plea of guilty by theaccused to the lesser offences.
In murder cases a judge is not bound to
take a plea of guilty to manslaughter even
if counsel for both sides have agreed to thiscourse of action.
In some cases, the prosecution may drop
all the charges against an accused person
in consideration of an accused becoming awitness in a more serious and complicated
case.

227

RESOURCE MATERIAL SERIES No. 53
Plea bargaining has its advantages anddisadvantages. Successful bargained pleas
do assist in reducing the backlog of casesin court. This increases the chances ofserious crimes ending up as minor
convictions which in turn may distort crime
statistics, which are vital in the study ofcriminology. As a result of plea bargaining,
the trial of an accused comes to a speedy
end as opposed to a charge hanging over
his head with uncertainty about theoutcome of the trial. If the trial is likely to
attract adverse press publicity, a plea of
guilty will put an end to this publicity.
VIII. SENTENCING
After the court has convicted an accused,
it proceeds to sentence. Defining what
sentence is a difficult exercise. It has been
defined as any order of the court made asa consequence of conviction, the aim ofwhich is to protect the innocent citizens ofsociety from the harmful acts of thecriminals.
Before sentencing, a prosecuting officer
is entitled as of right to inform the court
whether the accused is a first offender ornot. It was held in Shiani v. Republic that
it is improper for the prosecuting officer toinform the court that an offence is serious.
Under Kenya’s adversarial legal system,
this is a matter for the court to decide andto make findings since role of theprosecution is to present facts.
VIII. INVESTIGATING AGENCIES
Before a prosecution is mounted, there
has to be an investigation into the offence
allegedly committed. The investigation
will show the origins, the cause, themotives, the offenders and the surrounding
circumstances of the offence.
Some investigation may reveal
insufficiency of evidence to warrant aprosecution in court in which event thematter is close. Other investigations may
reveal sufficient evidence to warrant a

228

prosecution, yet a prosecution may not bemounted.
There are a number of agencies involvedin the investigation of crime as shown here
under:
A. The Police
1. Section 14 of the Police Act gives thefunction of the Kenya Police Force. The
Force shall be employed in Kenya for the
maintenance of law and order, thepreservation of peace, the protection of lifeand property, the prevention and detectionof crime, the apprehension of offenders, andthe enforcement of all laws and regulations
with which it is charged. It shall also be
the duty of the Force, provided in Section
16 of the Police Act, to regulate and control
traffic and to keep order on and prevent
obstructions in public places, and toprevent unnecessary obstructions on theoccasions of assemblies, meetings andprocessions on public roads and streets, orin the neighborhood of places of worshipduring the time of worship therein.
2. In the discharge of its functions, every
police officer shall promptly obey all lawfulorders in respect of the execution of his
office which he may from time to timereceive from his superiors in the Force. He
shall promptly obey and execute all orders
and warrants lawfully issued to him. He
shall promptly collect and communicate
intelligence affecting law and order andpromptly take all steps necessary to detect
offenders and bring them to justice and toapprehend all persons whom he is legallyauthorized to apprehend and for whose
apprehension sufficient ground exists.
Upon his enlistment to the Force, every
police officer swears that he will discharge
all the duties of a police officer according
to the law, without fear, favour, affection
or ill-will. The duty of investigation is
entrusted by the Commissioner of Police
to the Director of Criminal Investigations
Department covering the whole country.
See Figure 4.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
3. The Attorney-General, as the Directorof public prosecutions in Kenya, has theconstitutional role to instruct theCommissioner of Police to investigate any
matter which, in the Attorney-General’s
opinion, relates to any offense or suspected
offense [see section 26 (4) of theConstitution]. Upon being so instructed
the Commissioner of Police shall comply
with that requirement and shall report to
the Attorney-General upon completion of
the investigation. The power of the
Attorney-General may be exercised by him
in person or by officers subordinate to him
and acting in accordance with his generalor special instructions, The exercise of thisfunction the Attorney-General shall not be
subject to the direction or control of any
other person or authority.
4. The public is policed by the police, but
the police do police themselves.
Nevertheless, they are subject to laws of
the land. Where a police officer is alleged
to have committed an offence, he isinvestigated by fellow police officers. As amatter of police practice, the investigation
file has to be sent to the Director of the
Criminal Investigations Department andthereafter to the office of the AttorneyGeneral, who then decides whether aprosecution should be proceeded or not. It
is important to note that the CID sectionof the police force is charged with theinvestigation of serious crimes like fraud,murder and corruption. It also offers advice
and technical guidance in matters of crime
investigation to the police stations. Apartfrom CID, there are other specialized
sections within the police force like AntiStock theft, traffic and intelligence charged
with duties from which their titles arederived.
B. The Courts
The investigative role of the court
including the High Court as a trial court isvery limited due to the adversarial set-up
of Kenya’s legal system. Under this system

the role of the court is that of impartial
arbiters ensuring the observance of thetrial rules and thereafter the delivery ofjudgements.
1. Power to Summon Witnesses
Section 150 of the Evidence Act provides
that the courts may summon as a witness
any person whose evidence appears
essential to a just decision of the case. The
fact that the law permits the court to callwitnesses on its own volition is anindication that investigations are acontinuous process which end with the final
determination of the trial. It also showsthat investigation is not the exclusive
province of the police or the Office of the
Attorney-General. The difficulty faced by
the court in this enforced role wasexpressed by the former Court of Appeal
for East Africa in the case of Muriu andothers v. R. in the following words:
It has been said that a judge must notdescend into the arena so that his
judgement becomes warped by thedust of conflict. Conversely a judge
cannot sit in splendid isolation above
the conflict and not intervene evenwhen he detects a lacuna or ambiguityin the evidence.
2. Committal Proceedings
The investigatory role of the courts isclearly discernible in offences that are
triable only by the High Court. These
offences include murder and treason, which
are preceded by the holding of committal
proceeding before proceeding to trial. The
role of the Magistrate’s Court in thecommittal proceedings is to ensure that
only those cases where prima facie evidence
is disclosed that proceed for trial, thereby
excluding frivolous prosecutions. Once thecommittal bundles have been filed in court,
the committal magistrate after perusing
the bundles may make the following orders:229

RESOURCE MATERIAL SERIES No. 53(1) Commit the accused to stand trial in
the High Court.
(2) Commit the accused to stand trial in
the magistrates court competent to
try the offence. This will apply if it isa lesser offence like manslaughter(which is triable by a Senior,Principal or Chief Magistrate’s
Court).
(3) Discharge an accused.
(4) After discharging an accused, orderthat an inquest be held if thedeceased died in prison or police
custody.
The role of the High Court in committal
proceedings is very limited because it is thecourt that tries persons who have beencommitted for trial to itself.
3. Inquests
Closely related to the holding ofcommittal proceedings by the Magistrate’s
Courts is the conducting of inquests into
sudden or unnatural deaths in compliancewith sections 387 and 388 of the C.P.C. The
purpose of holding an inquest is todetermine the cause of death and thesurrounding circumstances where foul playis suspected or where a person has died inpolice or prison custody. At the conclusionof the inquest, the court may order for thearrest and charging of a suspect if theevidence discloses the commission of an
offence by the suspect. If at the terminationof the inquest the magistrate finds that anoffence has been committed by some person
or persons unknown, the magistrate isrequired by the law to send a copy of his
ruling to the Attorney-General who may
direct further investigations.
C. The Office of the AttorneyGeneral
1. The role of the Attorney-General in
the investigative process is indirectly tied
up with his prosecutorial powers as thechief prosecutor. In a number of offences,

230

the statutory consent of the AttorneyGeneral is required before a prosecution
can be mounted. These offences include
murder, sedition, incest, false claims, abuse
of office and the prevention of corruption.
Where a prosecution proceeds without the
sanction of the Attorney-General, theproceedings are null and void.
2. The fact that a prosecution of an
offence requires the consent of the
Attorney-General, does not stop the police
from arresting and charging a suspect incourt. However a trial does not begin until
the consent is filed in court. Where aprosecution requires the consent of the
Attorney-General, the investigating agency
has to send the investigation file to theoffice of the Attorney-General who, after
perusal of the same, may direct further
investigation, grant consent or direct awithdrawal of the charge against theaccused. The purpose of requiring theconsent is to ensure that there is prima
facie evidence to warrant a prosecution andalso that the charge is properly drawn out
since such charges are technical and,
therefore, need technical expertise.
3. The Attorney-General’s role in thecommittal proceedings in murder cases has
been considered. Apart from offences
requiring the Attorney-General’s consent
to prosecute, there are other cases of public
importance and interest that have to bereferred to him for directions. The
Attorney-General may also direct that an
inquest be held by a magistrate. In somecases, the Office of the Attorney-General
may simply advise the police to forward thefile to the magistrate, who will decide
whether or not to hold a public inquest.
4. The investigative role of the AttorneyGeneral ensures that only cases where
prima facie evidence is disclosed go for trial,and it also ensures that trials, are brought
to a speedy end by ensuring thatinvestigations are completed before a trial
commences; for courts are not supposed to
be used as commissions of inquiry.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
X. CONCLUSION
The criminal justice system starts assoon as a crime is reported to the police
and investigations start. A crime may bereported by the complainant or a memberof the public or it may have been committed
in the presence of law enforcement officers.
The Attorney-General is also empowered
under section 26 of the Constitution torequire the Commissioner of Police toinvestigate a matter where he thinks acriminal offense may have been committed.
Where investigations have taken place andthere is enough evidence to sustain acriminal charge in court, then prosecution
w i l l n o r m a l l y f o l l o w. U n d e r t h econstitution, the Attorney-General is incharge of criminal prosecutions. It is
important to emphasize that the decisionof whether or not to prosecute cannot
depend on and be entrusted to public
opinion. This would be tantamount toaccepting mob justice or instant justice.
The decision depends primarily on theinvestigation report carried out by theinvestigation agencies and whether thatreport contains enough evidence toestablish a prima facie criminal caseagainst a particular person. Hence is theextreme importance of thoroughinvestigations being carried out by thepolice and other investigation agencies inany criminal justice system. It is vital thatthe police and other investigation agencies
carry out proper investigation into allreported criminal cases. It is necessary tomention that failure by other criminal
justice agencies to work effectively andefficiently will greatly affect the role andfunction of the prosecution.

231

RESOURCE MATERIAL SERIES No. 53
Figure 1
THE STRUCTURE OF THE PUBLIC PROSECUTIONSATTORNEY-GENERALS CHAMBERS

ATTORNEY-GENERALSOLICITOR-GENERALDIRECTOR OF PUBLIC PROSECUTIONSASSISTANT DEPUTY PUBLIC PROSECUTORSENIOR PRINCIPAL STATE COUNSELPRINCIPAL STATE COUNSELSENIOR STATE COUNSELSTATE COUNSEL-ONE

STATE COUNSEL-TWO

232

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Figure 2
THE STRUCTURE AND ORGANIZATION OF THE KENYA POLICE FORCECOMMISSIONER OF POLICE

COMMANDANT
GSU

DCP
KPC

DCP
T&P

DCP
TRAF.

S\DCP
ADMIN.

DCP
ADM

DCP
PPOS

DCP
P\A

DCI

DCP
OPS

POLICE i\c
PROVINCE

PCIOS

POLICE i\c
DIVISIONS

DCIO

DSI

DCP
PRE-

D.S.
FINANCE

CMDt. CID TRNgSCHOOLPOLICE i\c
STATIONS233

RESOURCE MATERIAL SERIES No. 53
Figure 3
THE STRUCTURE AND ORGANIZATION OF THE CRIMINAL COURTS

COURT OF APPEALHIGH COURT OF KENYACHIEF MAGISTRATES COURTSENIOR PRINCIPAL MAGISTRATE’S COURT

PRINCIPAL MAGISTRATE’S COURTSENIOR RESIDENT MAGISTRATE’S COURTRESIDENT MAGISTRATE’S COURT

1st CLASS DISTRICT MAGISTRATE’S COURT

2nd CLASS DISTRICT MAGISTRATE’S COURT

3rd CLASS DISTRICT MAGISTRATE’S COURT

234

PCIO
NAIROBIAREA

O\CSPECIALUNIT

O\CPROSECUTIONSO\CDOCUMENT
EXAMINERDCIOSOC FLYING SQUAD

PCIORAILWAYSO\C
BANKINGFRAUDINVESTIGATIONS

PCIO
KAPU

O\C
BALLISTICSEXAMINER

PCIO
COAST

O\C
SCENES OF
CRIME

PCIO
PCIO
PCIO
PCIO
PCIO
PCIO
RIFT
WESTERN NYANZA CENTRAL EASTERN N\EASTERNVALLEYO\CO\CANTIINVESTIGATIONSNARCOTICS
BUREAU

DEPUTY DIRECTOR

DIRECTORCRIMINAL INVESTIGATION DEPARTMENT

THE STRUCTURE AND ORGANIZATION OF THE CRIMINAL INVESTIGATION DEPARTMENT

Figure 4

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

235

RESOURCE MATERIAL SERIES No. 53
Table 1ESTABLISHMENT AND STRENGTH—NAIROBI AREA

A. Judiciary
Nairobi Law Courts
Chief Magistrates
Senior Principal Magistrates
Principal Magistrates
Senior Resident Magistrates
Resident Magistrates
District Magistrate-1st Class
Total:

3
1
2
7
7
1
21

Makadara Law Courts
Principal Magistrates
Senior Resident Magistrates
Resident Magistrates
Total:

1
3
4
8

Kibera Law Courts
Principal Magistrates
Senior Resident Magistrates
Resident Magistrates
Total:

1
3
3
7

B. Prosecutors

Establishment
Strength

236

ACP
1

SSP
1
1

SP
2
1

C\I
4
2

I\P
35
35

NCO
5
1