Criminal Procedure Code

The Director of Public Prosecutions may appoint public prosecutors (by Gazette) and may appoint advocates or public servants by writing; every public prosecutor must follow the Director's express directions.

A public prosecutor may appear and plead without written authority in courts for cases he charges; the public prosecutor may conduct prosecutions when a private person instructs an advocate, and the advocate so instructed must act under the public prosecutor's directions.

If withdrawal is made before the accused is called upon to make his defence, the accused shall be discharged; but that discharge does not prevent later proceedings for the same facts.

A magistrate may allow someone to conduct a prosecution; public prosecutors and officers authorized by the Director of Public Prosecutions are entitled to do so without permission; persons conducting prosecutions may act personally or through an advocate.

Proceedings may begin by complaint or by bringing an arrested person before a magistrate; complaints can be oral or written and must be signed by the complainant and the magistrate; the magistrate must draw up and sign a formal charge unless a police officer has signed it; if the magistrate considers the complaint or charge does not disclose an offence, the magistrate shall refuse it and record reasons.

A magistrate may, after receiving a complaint and signing the charge under section 89, issue a summons or warrant to compel an accused to attend a subordinate court; however, a warrant shall not be issued in the first instance unless the complaint is made on oath, and a summons or warrant may be issued on any day including Sunday.

A court must issue every summons in writing, in duplicate, signed and sealed by the presiding officer or another officer directed by the High Court.

Summons must be served by a police officer, an officer of the court issuing it, or another person the court directs; if practicable service should be personal by giving one duplicate; the person served must sign a receipt if required by the serving officer.

If a summons is left with someone on behalf of a person who cannot be found, that person must sign a receipt on the back of the other duplicate if the serving officer requires it.

If service cannot be effected by due diligence under sections 92 and 93, the serving officer must attach a duplicate summons to a conspicuous part of the person's house or homestead.

If a summoned person is in active Government service, the court must send the summons in duplicate to that person's head of office; the head must have it served as per section 92 and return it to the court with a signed endorsement, and that signature is evidence of service.

A summons for an incorporated company or other body corporate may be served on the company's secretary, local manager or other principal officer, or by registered letter to the principal officer at the company's registered office in Kenya; if sent by registered letter, service is deemed effected when the letter would arrive in the ordinary course of post.

If a court wants a summons it issued to be served outside its jurisdiction, it must send the summons in duplicate to a magistrate for service in that magistrate's local limits.

If the serving officer is not present at the hearing or the summons was served outside the court's local jurisdiction, an affidavit and a duplicate of the summons are admissible and the statements in them are deemed correct until disproved.

Magistrates may dispense with the accused's personal attendance for certain non-felony offences and must do so when the offence is punishable only by fine or by fine with imprisonment not exceeding three months if the accused pleads guilty in writing or appears by an advocate.

Section 261 was repealed by ActNo. 5 of 2003, s. 83.

Section 262 has been repealed.

Section 263 has been repealed by Act No. 7 of 2007 (Schedule).

Section 264 has been repealed.

Section 265 has been repealed.

Section 266 has been repealed by Act No. 7 of 2007, Schedule.

Section 267 has been repealed.

Section 268 was repealed by ActNo. 33 of 1963, 1st Sch.

Section 269 has been repealed by Act No. 7 of 2007, Schedule.

Section 270 has been repealed by ActNo. 7 of 2007, Sch.

Section 271 has been repealed.

Section 272 was repealed by Act No. 33 of 1963, 1st Schedule.

Section 273 has been repealed.

For an accused person tried on information in the High Court, the information must be read aloud to them by the Registrar or another court officer; that officer must explain it if necessary and the court interpreter must interpret it if necessary.

Section 275 authorizes the court to order amendment of defective informations, to order separate trials of counts, and to postpone trials; the court must make amendment or postponement orders when the section's conditions are met, and may make related orders (for bail, recognizances).

An information that fails to state a notified offence and cannot be amended under section 275 must be quashed on a motion before plea or in arrest of judgment; a written statement of such a motion must be delivered to the Registrar or other officer and entered on the record.

Parts of the information stating a previous conviction must not be read out in court, and the accused must not be asked about prior convictions, unless and until he has pleaded guilty to or been convicted of the subsequent offence.

If an accused person pleads "not guilty" when arraigned on an information, they are deemed to have put themselves upon the country for trial.

A defendant may plead autrefois acquit or autrefois convict by saying he was previously convicted or acquitted, or that he received the President’s pardon; if such pleas are pleaded and denied the court must try their truth; if the court finds the plea false the accused must plead to the information.

If an accused stands mute or cannot answer, the court may order the Registrar to enter a plea of "not guilty" for them; the court must then determine mental capacity and either continue the trial if sound, or postpone the trial, order custody and report to the President if unsound; the President may order confinement.

An accused person may plead not guilty, guilty, or guilty subject to a plea agreement.

When the accused pleads "not guilty", or such a plea is entered under section 280, the court must proceed to try the case.

The court may postpone or adjourn a trial for reasonable causes and on terms it thinks fit, may remand the accused to prison by warrant, may order the accused to be brought before it during remand, and may admit the accused to bail while on remand.

Section 284 was repealed by ActNo. 33 of 1963, 1st Sch.

Section 285 has been repealed by ActNo. 33 of 1963, 1st Sch.

Section 286 has been repealed.

Section 287 was repealed by Act No. 33 of 1963, 1st Schedule.

Section 288 was repealed by ActNo. 33 of 1963, 1st Sch.

Section 289 has been repealed by Act No. 33 of 1963, 1st Sch.

Section 290 is repealed by Act No. 33 of 1963, 1st Schedule.

Section 291 has been repealed.

Section 292: repealed by ActNo. 33 of 1963, 1st Sch.

Section 293 has been repealed.

Section 294 has been repealed.

Section 295 has been repealed.

Section 296 has been repealed.

Section 297 is repealed.

Section 298 has been repealed.

Section 299 has been repealed.

The advocate for the prosecution must open the prosecution's case against the accused and must call witnesses and present evidence supporting the charge.

Section 301 has been repealed.

Witnesses called for the prosecution may be cross-examined by the accused or their advocate, and may be re-examined by the prosecution's advocate.

Section 303 has been repealed.

Section 304 has been repealed by ActNo. 13 of 1982, 1st Sch.

Section 305 has been repealed.

After the prosecution's evidence concludes, the court must acquit if there is no evidence; if there is evidence, the court must inform accused persons of rights to address, give evidence, make unsworn statements, and call witnesses; the judge must record whether additional witnesses will be called; the prosecution may sum up if the accused declines to give evidence, otherwise the court must call the accused to begin defence.

The accused person or their advocate may open the accused's case, state facts or law relied on, comment on the prosecution's evidence, the accused may give evidence and examine witnesses, and may sum up the case after cross-examination and re-examination.

The accused person may examine any witness not previously summoned to give evidence at the trial if that witness is present.

If the accused introduces new defence evidence that the prosecution could not have reasonably foreseen, the court may allow the prosecution's advocate to adduce evidence in reply to rebut it.

When an accused person adduces evidence, the advocate for the prosecution is entitled to reply, subject to section 161.

If the accused says he will not give evidence and the court still considers there is evidence he committed the offence, the prosecution must sum up the case and the court must call on the accused to address the court (personally or by advocate).

Section 312 has been repealed by Act No. 33 of 1963, 1st Schedule.

Section 313 has been repealed.

Section 314 has been repealed.

Section 315 is repealed.

Section 316 has been repealed.

Section 317 has been repealed.

Section 318 repealed by ActNo. 33 of 1963, 1st Sch.

Section 319 has been repealed by Act No. 33 of 1963, 1st Schedule.

Section 320 has been repealed.

This section has been repealed.

When the case is closed, the judge must give judgment; if the accused is convicted the judge must pass sentence according to law.

When the judge convicts or the accused pleads guilty, the Registrar or other officer of the court must ask the accused if he has anything to say why sentence should not be passed, and failing to ask does not affect the validity of the proceedings.

An accused person may, before sentence, move in arrest of judgment on specified grounds; the court may hear or adjourn that motion; if the court decides for the accused, the accused shall be discharged from the information.

The court may sentence the accused person at any time during the session if no motion in arrest of judgment is made, or if the court decides against the accused person upon a motion.

A court trying a person for an offence may reserve giving its final decision on questions raised at the trial.

A judge in a High Court trial may reserve and refer questions that arose during the trial to a panel of two or more High Court judges; if so referred, the High Court may review and determine the question and may alter the sentence and make such orders as it thinks fit.

A judgment cannot be stayed or reversed because of an objection that could have been amended during trial or for informality in swearing witnesses.

The court may receive evidence before passing sentence to inform itself of the proper sentence.

Defines terms used in this Part including "family victim", "primary victim", "personal harm", "victim" and "victim impact statement".

This Part applies to an offence being dealt with by any court when the offence results in death or actual physical bodily harm to any person.

The section allows a court to receive and consider victim impact statements after conviction but before sentencing; if the primary victim died as a direct result of the offence the court must receive and acknowledge a family victim's statement; the court may make such statements available to prosecutor, offender or others on conditions including preventing the offender from keeping copies.

Giving a victim impact statement is not mandatory; a court must not receive or consider a victim impact statement if the victim or any of the victims to whom the statement relates objects; the absence of a victim impact statement must not give rise to any inference that an offence had little or no impact on a victim.

Victim impact statements must be written; certain representatives may act for an incapable primary victim; courts may only consider statements that meet the Part's requirements.

The Chief Justice may make rules of court necessary or expedient for carrying this Part into effect.

All evidence in a trial under this Code shall be taken in the presence of the accused, or if the accused's personal attendance has been dispensed with, in the presence of his advocate (if any).

Section 195 was repealed by Act No. 46 of 1963, 2nd Schedule.

This section has been repealed.

Magistrates must record each witness's evidence in writing or typewriting in the court's language, sign the record, ordinarily record evidence as a narrative (not Q&A), may direct shorthand with an ordered transcript, and must read evidence to a witness on request in a language the witness understands.

The High Court must use English; a subordinate court must use English or Swahili. The court has discretion to interpret documents as necessary.

When a magistrate records a witness's evidence, the magistrate must also record any remarks he considers material about the witness's demeanour during examination.

Rules for proceedings when a magistrate is succeeded: the succeeding magistrate may pass sentence or make orders; where evidence was partly recorded by a predecessor the accused may demand resummoning of witnesses and the succeeding magistrate must inform the accused of that right; the High Court can set aside a conviction and order a new trial if prejudice resulted.

The Chief Justice may make rules of court about how evidence is recorded in High Court cases, and the judges must take down the evidence or its substance according to those rules.

If the accused appears but the complainant (who had notice) does not, the court shall acquit the accused unless it adjourns the hearing, and if adjourned may admit to bail, remand to prison, or take security pending the adjournment.

When both the complainant and the accused appear, or the complainant appears and the accused's personal attendance has been dispensed with under section 99, the court must proceed to hear the case.

If a complainant satisfies the court before a final order that there are sufficient grounds to withdraw the complaint, the court may allow the withdrawal and must thereupon acquit the accused.

The court may adjourn hearings and may allow the accused to go at large, commit them to prison, or release them on recognizance; adjournments are limited in maximum duration and special short adjournment rules apply where no prison is within five miles.

If an accused fails to appear at an adjourned hearing the court may proceed as if the accused were present unless the accused is charged with a felony; if the complainant does not appear the court may dismiss the charge with or without costs; the court may set aside a conviction in absence if satisfied absence was beyond the accused's control and he had a probable defence; the person effecting apprehension must endorse the date of apprehension on the warrant; if the accused is charged with a felony or the court refrains from convicting in his absence the court shall issue a warrant for apprehension and bring him before the court.

The court must state the charge and ask the accused to plead; record admissions and convict when admitted (unless sufficient cause), hear the case if not admitted, enter not guilty if accused refuses, and may require the complainant to outline facts after conviction before sentence.

If the accused does not admit the charge, the court must hear the complainant and witnesses; the accused or advocate may question prosecution witnesses; if unrepresented the court must ask and record whether the accused wishes to question each witness.

Section 209 has been repealed.

If, after hearing the evidence and arguments at the close of the prosecution's case the court finds there is no case to answer, the court must dismiss the case and immediately acquit the accused.

When, after the prosecution evidence and submissions, the court thinks the accused must make a defence, the court must explain the charge, inform the accused of the right to give evidence on oath (with risk of cross-examination) or to make a statement from the dock, ask about witnesses or other evidence, and hear any defence; if witnesses are absent but their absence is not the accused's fault and they could give material evidence, the court may adjourn, issue process or take steps to compel attendance.

If an accused introduces a new matter in their defence that the prosecutor could not reasonably have foreseen, the court may allow the prosecutor to present evidence in reply to rebut it.

The prosecutor (or their advocate) and the accused (or their advocate) have the right to address the court in the same manner and order as in a High Court trial under this Code.

If a charge is altered the court must call on the accused to plead; the accused may demand recall and further cross-examination of witnesses, and the prosecution may re-examine; the court must adjourn the trial if the accused was misled by a variance.

After hearing both sides and their witnesses and evidence, the court must either convict the accused and pass sentence, make an order against him according to law, or acquit him.

The court may receive evidence before passing sentence or making an order, to inform itself of the proper sentence or order.

A conviction or order may be drawn up afterwards if required, and must be signed by the court that made it or by the court's clerk or other officer.

Order of acquittal bar to further procedure

Subordinate courts may not try offences punishable by at most six months' imprisonment or a fine of one thousand shillings (or both) unless the charge or complaint is laid within twelve months; a longer time is allowed only if specially permitted by law.

Section 220 has been repealed by ActNo. 5 of 2003, s. 80.

Subordinate courts that lack power to impose sufficient punishment may commit adult offenders for sentence to a higher court; the receiving court must inquire and may impose any sentence it could impose if it had convicted the offender; limited appeal rights are preserved.

Section 222 was repealed.

Section 223 was repealed by ActNo. 33 of 1963, 1st Sch.

Section 224 has been repealed by Act No. 33 of 1963, 1st Schedule.

Section 225 is repealed.

Section 226 has been repealed.

Section 227 has been repealed.

Section 228 was repealed by ActNo. 33 of 1963, 1st Sch.

Section 229 has been repealed by ActNo. 33 of 1963, 1st Sch.

Section 230 has been repealed.

Section 231 has been repealed.

Section 232 has been repealed by ActNo. 5 of 2003, s. 82.

Section 233 was repealed by ActNo. 5 of 2003, s. 82.

Section 234 was repealed by ActNo. 5 of 2003, s. 82.

Section 235 has been repealed.

Section 236 has been repealed.

Section 237 was repealed by ActNo. 13 of 1982, s. 7.

Section 238 has been repealed.

Section 239 has been repealed by ActNo. 13 of 1982, s. 7.

Section 240 was repealed by Act No. 13 of 1982, s. 7.

Section 241 has been repealed.

Section 242 was repealed by ActNo. 13 of 1982, s. 7.

Section 243 has been repealed by Act No. 13 of 1982, s. 7.

Section 244 has been repealed.

Section 245 has been repealed.

Section 246 has been repealed.

Section 247 — repealed (Repealed by ActNo. 5 of 2003, s. 82.)

Section 248 has been repealed by ActNo. 5 of 2003, s. 82.

Section 249 has been repealed by Act No. 5 of 2003, s. 82.

Section 250 has been repealed by ActNo. 5 of 2003, s. 82.

Section 251 was repealed by Act No. 5 of 2003, s. 82.

Section 252 was repealed.

Section 253 is repealed by Act No. 5 of 2003, s. 82.

Section 254 was repealed by ActNo. 13 of 1982, s. 8.

Section 255 has been repealed.

Section 256 was repealed.

Section 257 has been repealed (Repealed by ActNo. 13 of 1982, s. 8.).

Section 258 was repealed by Act No. 13 of 1982, s. 8.

Section 259 has been repealed by ActNo. 13 of 1982, s. 8.

This section has been repealed.

When a person is sentenced to death, the court must inform them of the time limit for filing an appeal.

A certificate signed by the Registrar or another court officer stating that a death sentence has been passed and naming the condemned person is sufficient authority to detain that person.

After a death sentence and confirmation (or if no appeal is confirmed), the presiding judge must send the trial notes and a signed written report to the President; the President must communicate his decision to the judge (or successor), and the judge must enter its tenor and substance in court records. If execution is ordered the warrant must state place/time and burial directions; if commuted the order must specify the punishment; if pardoned the pardon must state whether free or subject to conditions. The President's warrant/order/pardon is sufficient legal authority to carry out the sentence or directions.

The sentencing judge or magistrate must issue a warrant ordering imprisonment in any prison in Kenya (except death sentences); the warrant authorises prison officers and others to carry out the sentence. Sentences commence on and include the day pronounced, and prior custody is to be accounted for.

A person ordered to pay may pay or tender the sum (and distress expenses) to the officer executing the warrant, which stops execution.

A person claiming an interest in attached property must file a written notice (with affidavit of value) before proceeds are received; the court must stay execution on receipt, notify the objector to appear, hear evidence, and may release property if satisfied; failure to establish the claim lets execution proceed; failure to comply does not deprive other remedies.

Courts may suspend imprisonment for unpaid fines and release a convicted person on bond (appearance within 30 days), may require bonds, allow installment payments, and must inquire into means before issuing a commitment warrant.

If an officer reports there is no or insufficient property to levy a distress warrant, the court may commit the person ordered to pay to prison for a time specified in the warrant unless the money and expenses are sooner paid.

The court may commit a person to prison instead of or after distress when distress would be ruinous, there is no property to distrain, or other sufficient reason appears; the imprisonment is for the time specified in the warrant unless the money and expenses are sooner paid.

A person committed for non-payment may pay the sum specified in the warrant (plus authorised expenses) to the person holding him; that custodian must discharge him if he is not detained for any other matter.

An officer in charge of a prison must, on the prisoner's application, at once take the prisoner before a court; the court must certify the amount of reduction in the term of imprisonment and make any required order.

A warrant for executing a sentence may be issued by the judge or magistrate who passed the sentence, or by that judge or magistrate's successor in office.

Section 342: Limitation of imprisonment for non-payment of fine, etc.

When a person twice convicted of serious offences is being sentenced, the court may order that person to be subject to police supervision for up to five years after release; the High Court may also make such an order on revision; if the conviction is set aside the order becomes void.

Persons under police supervision must comply with conditions including residing within a specified area, not transferring or leaving residence without written consent, keeping the officer informed of residence and contacts, and presenting themselves when called by the officer.

A person convicted of specified offences shall be subject to police supervision for five years from their release from prison.

Persons under police supervision must comply with requirements under section 344 or 344A; failure is an offence punishable by imprisonment (up to 6 months; up to 12 months for repeat convictions). Police officers may arrest without warrant on reasonable suspicion.

The court may at any time amend defects in substance or form in an order or warrant.

A person convicted after trial in a first- or second-class subordinate court may appeal to the High Court.

An accused person who pleaded guilty and was convicted on that plea by a subordinate court is not allowed to appeal, except on the extent or legality of the sentence.

The Director of Public Prosecutions may appeal certain acquittals or orders from subordinate courts or the High Court to the High Court or Court of Appeal; if that appeal succeeds, those courts may substitute a conviction and impose sentence.

The court to which an appeal is made may admit an appeal filed after fourteen days for good cause, and must admit if the failure to enter the appeal was caused by the appellant or advocate being unable to obtain a copy of the judgment or record within a reasonable time after applying.

An appeal must be made by a written petition presented by the appellant or his advocate; such petition must normally include a copy of the judgment or order appealed against (unless the High Court directs otherwise).

If an appellant is in prison, the appellant may give their appeal petition and copies to the prison officer, who must forward them to the Registrar of the High Court.

A judge may summarily reject an appeal (without setting it down for hearing) where the appeal argues the conviction is against the weight of evidence or the sentence is excessive and the judge is satisfied the evidence supports the conviction and there is no material raising reasonable doubt or warranting sentence reduction.

If a High Court judge is satisfied a conviction cannot be supported and the DPP writes that they do not support it, the judge may summarily allow the appeal.

If the High Court does not dismiss the appeal summarily, it must notify the appellant and respondent of the time and place for hearing and provide the respondent with a copy of the proceedings and grounds of appeal.

Section 354 describes who may address the High Court on appeal, the court's powers on findings and sentences (including reversing, varying, remitting or altering orders), the appellant's right to be present if in custody (subject to conditions and payment of transfer expenses), and limits on the High Court imposing a greater sentence than the trial court.

When the High Court decides an appeal it must certify its judgment or order to the lower court that recorded the conviction, sentence or order appealed against; that lower court must then make orders conformable to the High Court's decision and amend records if necessary.

The High Court or the subordinate court that convicted or sentenced a person may grant bail or stay execution of a sentence or order pending the entering of an appeal, on reasonable terms.

After an appeal is entered, the High Court or the subordinate court which convicted or sentenced the appellant may order release on bail; if not released, that court shall, at the appellant's request, suspend execution of the sentence pending the appeal. A person refused bail by a subordinate court may appeal to the High Court. The Chief Justice may make rules of court for procedure under this section.

The High Court may order additional evidence and must record reasons; subordinate courts must certify such evidence and the High Court must then dispose of the appeal; the accused or advocate must be present unless the High Court directs otherwise.

Appeals from subordinate courts are to be heard by one judge of the High Court; if a hearing is equally divided the appeal must be reheard before three judges.

An appeal from a subordinate court ends when the appellant dies, except appeals against fines.

Section 361 grants the Court of Appeal broad powers on second appeals to set aside or vary judgments on questions of law, make orders the lower courts could have made or remit cases, substitute convictions or sentences, dismiss appeals if no substantial miscarriage of justice occurred, and allows a High Court judge to grant bail while an appeal is pending.

The High Court may call for and examine records of criminal proceedings from any subordinate court to satisfy itself about the correctness, legality or propriety of findings, sentences or orders and the regularity of the proceedings.

A first-class subordinate court may call for and examine records of criminal proceedings from a lower-class subordinate court within its local jurisdiction; if it finds illegality, impropriety or irregularity it must forward the record with remarks to the High Court.

Section 364 gives the High Court powers on revision: in convictions it may exercise appellate powers and may enhance sentence; it may alter or reverse non-acquittal orders; in certain listed serious-offence proceedings it may stay a subordinate court's bail order for up to fourteen days pending review applications; the High Court must not increase punishment beyond what the subordinate court could have imposed and may not convert acquittals into convictions.

Parties have no automatic right to be heard before the High Court while it exercises its powers of revision, but the court may choose to hear a party either personally or by an advocate.

Proceedings before the High Court in its revisional jurisdiction may be heard, and judgments or orders on them may be made or passed, by one judge; but if a multi-judge court is equally divided, the subordinate court's sentence or order is to be upheld.

When the High Court revises a case it must certify its decision or order to the lower court that recorded or passed the original sentence or order; the court receiving the certificate must make orders conformable to that decision.

Section 368 has been repealed.

Section 369.[Repealed by ActNo. 13 of 1967, s. 5.]