CRIMINAL CASES IN KENYA Common FAQs: Essential 2025 Legal Answers

Navigating the complexities of criminal cases in Kenya can be daunting. This comprehensive guide breaks down intricate legal procedures and clarifies your rights through expertly answered FAQs, ensuring you stay informed in challenging times.

In this article, we delve into the most common questions surrounding criminal cases in Kenya. By translating legal jargon into practical advice, our aim is to empower you with the insights needed to confidently navigate the legal landscape and secure the best possible outcome for your situation.

FAQs ABOUT CRIMINAL CASES IN KENYA

What should I do when a crime is committed against me?

You should report to the nearest police station for record and evidence before the matter is prosecuted in a Court of law. It is also advisable to seek legal advice from a Lawyer for qualified and professional advice on your issue.

What is the remedy when I am dissatisfied with a Court’s decision?

When dissatisfied with a Courts decision or process in which the trial was conducted, you have several options including Appealing, applying for Review and applying for Revision as well. As per Section 132, and Part XI of the Criminal Procedure Code, (elsewhere ‘CPC’), Appeals and Revision are done by higher Courts unlike review which is done by the trial Court.

What is the meaning of plea bargaining?

Plea Agreements are provided for under Sections 137A to 137O of the CPC. Generally, they give the accused persons an opportunity to bargain for some leniency while saving the Court’s time and expenses. They are either initiated by the Prosecutor or the accused for reduction of charge to a lesser offence, withdrawal of the charge or a stay of other charges or the promise of not proceeding with other possible charges subject to plea of guilty by the accused. However, it is of utmost importance to note that plea agreements do not apply to sexual offences, offences of genocide, war crimes and crimes against humanity.

Can a Court combine Sentences?

As per Section 12 of the CPC, a Court is entitled to combine any of the sentences it can issue within its jurisdiction.

What is the meaning of Consecutive and Concurrent sentences?

As per Section 14(1) of the CPC, such sentences are issued when a person is convicted at one trial of two or more distinct offences. As such, the Court reserves the discretion to sentence such a person, to the several punishments prescribed for the offences. Where the punishments consist of imprisonment, the sentences normally run one after the expiration (consecutively) of the other unless the court directs that the sentences should run synchronously (concurrently).

What is a suspended sentence and how does it operate?

As per Section 15 of the CPC, it is a legal penalty where the court convicts an offender but delays the enforcement of the sentence for a specified time known as operational period, during which if the offender commits another offence, whether the offence is punishable by imprisonment, corporal punishment or by a fine, the suspended sentence can be re-activated. As such, sentence passed for the subsequent offence runs consecutively to the suspended sentence.

Are police officers allowed to use force when enforcing arrest?

Absolutely. This is in accordance to Section 22(2) & (3) of the CPC. Where you forcibly resist or attempt to evade the arrest, a police officer or other person may use all means necessary to effect the arrest including use of reasonable force. Unreasonable use of force is however against the law.

Can a male Police Officer search a lady?

As per Section 27 of the CPC, a woman can only be searched under strict adherence to decency and ONLY by another woman.

When can a Police Officer arrest me without warrant in Kenya?

In Kenya a Police Officer can arrest without a warrant:

any person he suspects upon reasonable grounds of having committed a cognizable offence like murder among many more;
any person who breaches peace in his presence;
any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;
any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to that thing;
any person whom he suspects upon reasonable grounds of being a deserter from the armed forces;
any person whom he finds in a highway, yard or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit a felony;
any person whom he finds in a street or public place during the hours of darkness and whom he suspects upon reasonable grounds of being there for an illegal or disorderly purpose, or who is unable to give a satisfactory account of himself;
any person whom he suspects upon reasonable grounds is liable to be extradited under the Extradition (Contiguous and Foreign Countries) Act or the Extradition (Commonwealth Countries) Act;
any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on that person, any implement of housebreaking;
any released convict committing a breach of any provision for persons subject to police supervision; and
any person for whom he has reasonable cause to believe a warrant of arrest has been issued.^[1]
Can I arrest persons causing injury to my property?

Section 34 of the CPC allows private persons to arrest people who commit cognizable offences in their view, or suspects of a felony and people they found injuring their property without a warrant. They may effect the arrest themselves or by their servants or their agents. However, without unreasonable delay, they should handover the arrested persons to the police.

What happens where a Magistrate is replaced or otherwise transferred?

Section 200 of the CPC weighs on this issue. In the event the a Magistrate is replaced or transferred:-

The succeeding magistrate may deliver a judgment written and signed by their predecessor or act on the recorded evidence, or they may resummon witnesses and recommence the trial.
If a magistrate has delivered judgment but has not passed a sentence before leaving jurisdiction, the new magistrate may pass the sentence or make necessary orders.
The accused has the right to request the resummoning and rehearing of any witness if part of the evidence was recorded by the previous magistrate, and the new magistrate must inform them of this right.
If a conviction is based on evidence not wholly recorded by the convicting magistrate, the High Court may set aside the conviction and order a retrial if it finds that the accused was materially prejudiced.
What is Diversion in Criminal Justice System?

Diversion comes is an alternative to formal Criminal Court proceedings and it is only available to deserving cases. The Prosecutor has the discretion of deciding whether a matter should be diverted. In most instances, it is recommended for Child Offenders.

What is the difference between a Felony and Misdemeanour?

Section 4 of the Penal Code defines Felony to include serious offences punishable without proof of previous conviction, with death, imprisonment for three or more years and that are not declared misdemeanors. So, what is misdemeanour? Simply put, misdemeanor is an offence that is not a felony and as per Section 36 of the Penal Code, when no punishment is specially provided for any misdemeanour, it is punishable with imprisonment term of not more than two years or with a fine, or with both.

When does the Burden of Proof in criminal law in Kenya?

In Kenya, the general principle is that he who alleges must prove, and of course he must establish guilt beyond reasonable doubt since as a Constitutional right, the accused person remains innocent until proven guilty. Nonetheless, Section 111 of the Evidence Act Cap 80 Laws of Kenya, shifts burden on the accused person in some instances. For example, where the accused pleads self-defense, alibi or even provocation, it would be needless to state that they bear the burden of proving the facts oddly within their knowled

How to appeal a Criminal Case in Kenya?

As a general rule, all persons convicted of a criminal offence can appeal the decision to a higher Court as a right under Article 50(2)(q) of the Constitution. Normally, as per Section 349 of the CPC, an appeal must be entered within 14 days after judgement by the Trial Court. However, the Higher Court may for good cause admit an appeal after the period of the lapse of 14 days.

As per Section 350 of the CPC, an appeal from a Magistrates Court is preferred to the High Court through a Petition of Appeal. An Appeal from the High Court on the other hand is preferred to the Court of Appeal by way of a Memorandum of Appeal with Notice of Appeal being filed at the High Court. Further Appeals to the Supreme Court are by way of a Petition of Appeal. Importantly, remember to seek legal advice from your Lawyer for guidance and seamless navigation through your Appeal.

What is the Age of Criminal Liability in Kenya?

To delve into the age of Criminal liability in Kenya, we cite Section 221 of the Children Act 2022 which is the most current authority on the same issue. The section provides that persons below 12 years are not criminally liable and children who commit offences when below 14 years are presumed incapable of differentiating between right and wrong, unless the contrary is proved.

How does a criminal case start in Kenya?

In Kenya, Criminal Proceedings are instituted either by the making of a complaint or by the bringing before a Magistrate an accused person arrested without a warrant. In turn, to compel Court attendance of the accused, the Magistrate may issue either a summons or a warrant. In the alternative a person may lodge a complaint in the nearest Police Station and obtain an Occurrence Book [OB] number as investigations commence. After such investigations, charges will be drawn and arrests effected for arraignment preferably within 24 Hours.

What are the stages of Criminal trial in Kenya?

Basically, the Criminal trial process includes; formal complaint, investigations, compilation and presentation of evidence, and dispute resolution. Accordingly, parties appear in Court and the trial is commenced. The prosecutor opens the case against the accused and calls witnesses and adduces evidence in support of the charge as well. After the prosecution has called all its witnesses and tendered all the evidence and examination has been done, it closes its case whereupon the Court has to determine whether the accused has a case to answer.

Where the accused has a case to answer, the Defence case commences and the accused as well as their witnesses if any, are heard subject to rules of examination. The Matter thereafter proceeds to judgement and sentencing.

What are the rights of an accused person in Kenya?

The Rights of an accused person are enshrined under Article 50 of the Constitution of Kenya 2010. Among them includes the right to have their legal disputes resolved by the application of law decided in a fair and public hearing before a court or, and where suitable, another not only independent but also impartial tribunal or body.

Other rights of an accused person include but are not limited to the right:

to be presumed innocent until the contrary is proved;
to be informed of the charge, with sufficient detail to answer it;
to have adequate time and facilities to prepare a defence;
to a public trial before a court established under this Constitution;
to have the trial begin and conclude without unreasonable delay;
to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;
to choose, and be represented by, an advocate, and to be informed of this right promptly;
to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
to remain silent, and not to testify during the proceedings;
to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
to adduce and challenge evidence;
to refuse to give self-incriminating evidence;
to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;
not to be convicted for an act or omission that at the time it was committed or omitted was not an offence in Kenya; or a crime under international law;
not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;
to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.^[2]
How long does a Criminal trial take in Kenya?

This is largely dependent on many factors such as complexity of the matter, witnesses testifying, the workload of a particular Court Station among many other external and internal factors. And as such, time taken for different criminal matters vary. However, elements of unreasonable delay should not be evident as they point out to one thing, unfair trial to the accused.

What are the penalties of Criminal Offences in Kenya?

Where an accused person is found guilty and a conviction entered, the Court proceeds to impose a penalty through passing a sentence. From the Sentencing Policy Guidelines 2023 and Chapter 6 of the Penal Code some of sentences the Court can pass include:

Death Sentence;
Imprisonment;
Fines;
Forfeiture of property;
Compensation;
Security;
Community Service;
Probation;
Security for keeping peace; and
Absolute and conditional discharge.
Can a Criminal case be dismissed in Kenya?

Absolutely. Normally, some of the common grounds for dismissal of a criminal case include when proceeding amounts abuse of Court process, lack of sufficient evidence, and non-appearance of the complainant as per Section 206 of the CPC.

Who is a surety in the Criminal proceedings?

This is an individual who ensures that an accused appears in Court and abides by bail conditions by putting up security, such as money or property title with the Court as an undertaking. The Court has discretion to forfeit the security in case the undertaking in not honoured.

What is bail and how is it granted in Kenya?

Bail can be described as the Accused person’s release from legal custody, pending their criminal trial, on the promise that money will be paid in case of no-appearance in Court.

Can a person be tried in Absentia in Kenya?

Even though Article 50(2)(f) of the Kenyan Constitution guarantees the right of an accused person to be present during their trial, this right is not absolute and as such, it can be limited subject to Article 24.

Further, as per Section 206 of the CPC when an accused person does not appear before the court after an adjournment, the court may, proceed with the hearing or further hearing as if the accused were present, and where the complainant does not appear, the court may dismiss the charge with or without costs unless the accused is charged with a felony.

What is the role of a Defence Lawyer in Kenya?

A Defence lawyer in Kenya represents the accused in Criminal proceedings from the commencement to conclusion of matter subject to the Lawyer-Client agreement. This is to ensure that the accused person’s right to a fair trial under Article 50 of the Constitution is achieved.Some his roles in the trial are to ensure there are no irregularities against the accused, overseeing the Defence case, conducting examinations, drafting relevant documents as well as continued legal advice throughout the matter among other roles.

What is the role of a Prosecutor in a Criminal Case?

The prosecutor represents the state in prosecuting criminal cases against the accused. As such, they present the Prosecution Case which involves opening the case, calling witnesses, conducting examinations, recommending diversion and even plea agreements. In a nutshell, they act for the Republic since it is the state that has power to prosecute and not the Complainant or even the victim.

How is evidence presented in a Criminal trial in Kenya?

In Kenya, presentation of evidence is primarily governed by the Evidence Act to ensure admissibility and relevance. The Court takes oral and documentary evidence, electronic evidence, confession evidence as well as evidence from examinations.

Can the victim of a Crime Participate in Criminal Trial?

As per Section 9 (a) and (c) of the Victim protection Act 2014, it is the victim’s right to be present during the trial either in person or through a designated representative and to give their views in any plea bargaining. Moreover, as per Section 13, the victim may adduce evidence that has been left out or even give oral evidence as well as written submission.

What happens if an accused person pleads guilty?

When a person pleads guilty, then they formally acknowledge their guilt in regard to a charge. The plea is governed by Sections 207 & 281 of the CPC. Borrowing from the Court of Appeal case of Adan v Republic (1973) EA 45, the following must be considered before the Plea of guilty is accepted and acted upon by the trial Court:

The plea must be free, voluntary and unequivocal as well;
The accused person must fully understand the offence;
Where the offence pleaded is punishable by death, the Court must ensure the accused understands the consequences of his plea;
The prosecution after that states the facts and the accused person should accordingly be given an opportunity respond or even add any relevant facts; and
Where the accused person does not agree with the facts or raises any question of his guilt, then a plea of not guilty should be entered.
What is a ‘no case to answer submissions in Kenya?

In Kenya, a no case to answer submissions are normally the Defence side’s position and argument that the prosecution’s adduced or rather presented evidence has not established a prima facie case to warrant hearing of the defence case. This is the position taken in Section 210 of the CPC calling for the accused to be acquitted and the suit to be dismissed.

Can a Criminal matter be transferred to another Court in Kenya?

Criminal cases in Kenya can be transferred other Courts but before then, factors like fair trial, release on bond and clarity of the case among others are considered. Generally, transfer is undertaken by the High Court as well as other subordinate Courts to it. The High Court exercises its power to transfer cases from one Magistrate Court to another in exercise of supervisory jurisdiction over the Magistrate Courts. For Lower Courts, cases will be transferred to Magistrate Courts of competent jurisdiction where offences were committed outside their jurisdiction.

How are witnesses protected in criminal case in Kenya?

Section 10 of the Victim Protection Act, speaks to victim protection. Accordingly, a victim has the right to be free from intimidation, harassment, fear, tampering, bribery, corruption and abuse. In addition, victims have right to their safety and that of their family considered when determining the conditions of bail and release of the offender. Further, they also have right to property protection. FM Muteti & Company Advocates prides as the best Criminal Law Practicing Firm in Kenya equally tagging along the best criminal lawyers in Kenya. We pride in preparedness, rich experience and excellence

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