Kenya Act or statute

Parliament of Kenya

Criminal Procedure Code

Jurisdiction: Kenya
Structure: 427 provisions
Citation: Cap. 75
Dates: As at 11 Dec 2023

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Dates: As at 11 Dec 2023

Source attribution: Source: Kenya Law

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Purpose and legislative effect

“This Act may be cited as the Criminal Procedure Code.”

This Act may be cited as the Criminal Procedure Code. Section 2 provides definitions of terms used in the Code, including "cognizable offence", "drug related offence", "non-cognizable offence", and other specified terms. This section provides that offences under the Penal Code and offences under other laws are to be inquired into, tried and otherwise dealt with according to this Code; it also permits the High Court to apply English High Court procedure where this Code's procedure is inapplicable and preserves the effect of bilateral agreements regarding members of foreign armed or police forces present in Kenya. Section 10 has been repealed. Section 11 has been repealed.

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APPEALS FROM SUBORDINATE COURTS - 370.[Repealed by ActNo. 13 of 1967, s. 5.]

Section 370 was repealed by ActNo. 13 of 1967, s. 5.

Section 370

APPEALS FROM SUBORDINATE COURTS - 377.[Repealed by ActNo. 13 of 1967, s. 5.]

Section 377 was repealed by ActNo. 13 of 1967, s. 5.

Section 377

SUPPLEMENTARY PROVISIONS - 382. Finding or sentence when reversible by reason of error or omission in charge or other proceedings

A court must consider whether an objection could and should have been raised earlier when determining if an error, omission or irregularity occasioned a failure of justice.

Section 382

SUPPLEMENTARY PROVISIONS - 389. Power to issue directions of the nature ofhabeas corpus

Section 389(2) gives the Chief Justice the power to make rules of court to regulate procedure in cases under this section.

Section 389

SUPPLEMENTARY PROVISIONS - 394. Expenses of assessors, witnesses, etc.

Courts may order the Government to pay reasonable expenses of complainants or witnesses attending court proceedings, subject to rules the Minister may make.

Section 394

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Provisions 401–427

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Showing 27 of 427 provisions

Provision 13Repeal 10Offence 3Commencement

Part XI

APPEALS FROM SUBORDINATE COURTS

§ 370APPEALS FROM SUBORDINATE COURTS - 370.[Repealed by ActNo. 13 of 1967, s. 5.]Repeal

Section 370 was repealed by ActNo. 13 of 1967, s. 5.

Section 370.[Repealed by ActNo. 13 of 1967, s. 5.]

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§ 371APPEALS FROM SUBORDINATE COURTS - 371.[Repealed by ActNo. 13 of 1967, s. 5.]Repeal

Section 371: Repealed.

Section 371.[Repealed by ActNo. 13 of 1967, s. 5.]

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§ 372APPEALS FROM SUBORDINATE COURTS - 372.[Repealed by ActNo. 13 of 1967, s. 5.]Repeal

Section 372 has been repealed.

Section 372.[Repealed by ActNo. 13 of 1967, s. 5.]

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§ 373APPEALS FROM SUBORDINATE COURTS - 373.[Repealed by ActNo. 13 of 1967, s. 5.]Repeal

Section 373 has been repealed.

Section 373.[Repealed by ActNo. 13 of 1967, s. 5.]

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§ 374APPEALS FROM SUBORDINATE COURTS - 374.[Repealed by ActNo. 13 of 1967, s. 5.]Repeal

Section 374 is repealed.

Section 374.[Repealed by ActNo. 13 of 1967, s. 5.]

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§ 375APPEALS FROM SUBORDINATE COURTS - 375.[Repealed by ActNo. 13 of 1967, s. 5.]Repeal

Section 375 has been repealed.

Section 375.[Repealed by ActNo. 13 of 1967, s. 5.]

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§ 376APPEALS FROM SUBORDINATE COURTS - 376.[Repealed by ActNo. 13 of 1967, s. 5.]Repeal

Section 376 was repealed.

Section 376.[Repealed by ActNo. 13 of 1967, s. 5.]

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§ 377APPEALS FROM SUBORDINATE COURTS - 377.[Repealed by ActNo. 13 of 1967, s. 5.]Repeal

Section 377 was repealed by ActNo. 13 of 1967, s. 5.

Section 377.[Repealed by ActNo. 13 of 1967, s. 5.]

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§ 378APPEALS FROM SUBORDINATE COURTS - 378.[Repealed by ActNo. 13 of 1967, s. 5.]Repeal

Section 378 has been repealed.

Section 378.[Repealed by ActNo. 13 of 1967, s. 5.]

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§ 379APPEALS FROM SUBORDINATE COURTS - 379. Appeals from High Court to Court of AppealProvision

Section 379 sets out when appeals from the High Court to the Court of Appeal are permitted (including appeals against conviction, certain sentences, and review/certification processes), restrictions on appeals after guilty pleas, bail pending appeal (except in death sentences), procedures for review and declaratory judgments following acquittal certified by the Director of Public Prosecutions, and powers to review sentences certified by the DPP.

Section 379. Appeals from High Court to Court of Appeal Section 379(1)(a) against the conviction, on grounds of law or of fact, or of mixed law and fact; Section 379(1)(b) with the leave of the Court of Appeal, against the sentence, unless the sentence is one fixed by law. Section 379(2)(a) a term of imprisonment of twelve months or less; or Section 379(2)(b) a fine exceeding two hundred shillings but not exceeding two thousand shillings; or Section 379(2)(c) a fine of two hundred shillings or less, where the Court of Appeal or the trial judge is of the opinion that the case involves a question of law of great general or public importance, may, with the leave of the Court of Appeal, or upon a certificate of the trial judge that it is a fit case for appeal, appeal against his conviction on any ground which appears to the Court of Appeal, or to the judge, to be a sufficient ground of appeal. Section 379(3) No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by the High Court, except as to the extent or legality of his sentence. Section 379(4) Save in a case where the appellant has been sentenced to death, a judge of the High Court, or of the Court of Appeal, may, where an appeal to the Court of Appeal has been lodged under this section, grant bail pending the hearing and determination of the appeal. Section 379(5) Where a person has been acquitted in a trial before the High Court in the exercise of its original jurisdiction and the Director of Public Prosecutions has, within one month from the date of acquittal or within such further period as the Court of Appeal may permit, signed and filed with the Registrar of that court a certificate that the determination of the trial involved a point of law of exceptional public importance and that it is desirable in the public interest that the point should be determined by the Court of Appeal, the Court of Appeal shall review the case or such part of it as may be necessary, and shall deliver a declaratory judgment thereon. Section 379(5A) Where the Director of Public Prosecutions certifies that a sentence passed by the High Court in the exercise of its original jurisdiction should be reviewed by the Court of Appeal, the Court of Appeal may, after giving the accused person or his advocate an opportunity of being heard, make such order by way of enhancement of sentence or maintaining the sentence passed as is consistent with the ends of justice. Section 379(6) A declaratory judgment under subsection (5) shall not operate to reverse an acquittal, but shall thereafter be binding upon all courts subordinate to the Court of Appeal in the same manner as an ordinary judgment of that court. [Act No. 22 of 1959 , s. 39, Act No. 7 of 1990 , Sch., L.N. 274/1990, Act No. 12 of 2012 , Sch.]

Section 379Verify source

§ 379AAPPEALS FROM SUBORDINATE COURTS - 379A. Appeal to the Court of Appeal on High Court's original jurisdictionProvision

Where, in specified serious criminal proceedings, the High Court has granted bail or bond, the Director of Public Prosecution may, as of right, appeal that decision to the Court of Appeal.

Section 379A. Appeal to the Court of Appeal on High Court's original jurisdiction Section In proceedings under section 203 or 296(2) of the Penal Code ( Cap. 63 ), the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances (Control) Act ( Cap. 245 ), the Prevention of Organized Crimes Act ( Cap. 59 ), the Proceeds of Crime and Anti-Money Laundering Act ( Cap. 59A ) and the Counter-Trafficking in Persons Act ( Cap. 61 ), where the High Court, in exercise of its original jurisdiction, has granted bail or bond to an accused person, the Director of Public Prosecution, may, as of right, appeal against that decision to the court of appeal and the order may be stayed for a period not exceeding fourteen days pending the filing of an appeal. [Act No. 19 of 2014 , s. 21.]

Section 379AVerify source

Part XII

SUPPLEMENTARY PROVISIONS

§ 380SUPPLEMENTARY PROVISIONS - 380. Proceedings in wrong placeProvision

A criminal court's finding, sentence or order must not be set aside only because the proceeding occurred in a wrong area, unless the error caused a failure of justice.

Section 380. Proceedings in wrong place Section No finding, sentence or order of a criminal court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed took place in a wrong area, unless it appears that the error has occasioned a failure of justice. [L.N. 124/1964.]

Section 380Verify source

§ 381SUPPLEMENTARY PROVISIONS - 381.[Repealed by ActNo. 33 of 1963, 1st Sch.]Repeal

Section 381 was repealed by Act No. 33 of 1963, 1st Schedule.

Section 381.[Repealed by ActNo. 33 of 1963, 1st Sch.]

Section 381Verify source

§ 382SUPPLEMENTARY PROVISIONS - 382. Finding or sentence when reversible by reason of error or omission in charge or other proceedingsProvision

A court must consider whether an objection could and should have been raised earlier when determining if an error, omission or irregularity occasioned a failure of justice.

Section 382. Finding or sentence when reversible by reason of error or omission in charge or other proceedings Section Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint , summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. [Act No. 33 of 1963 , 1st Sch.]

Section 382Verify source

§ 383SUPPLEMENTARY PROVISIONS - 383. Distress not illegal for defect in proceedingsProvision

Persons who make distress under this Code shall not be treated as trespassers because of a defect or want of form in the summons, conviction, warrant of distress or other related proceedings.

Section 383. Distress not illegal for defect in proceedings Section No distress made under this Code shall be deemed unlawful, nor shall any person making it be deemed a trespasser, on account of a defect or want of form in the summons, conviction, warrant of distress or other proceedings relating thereto.

Section 383Verify source

§ 384SUPPLEMENTARY PROVISIONS - 384. Statements irregularly taken undersection 246Provision

Section 384 titled "Statements irregularly taken undersection 246."

Section 384. Statements irregularly taken undersection 246

Section 384Verify source

§ 385SUPPLEMENTARY PROVISIONS - 385. Magistrates empowered to hold inquestsProvision

Certain magistrates are empowered to hold inquests.

Section 385. Magistrates empowered to hold inquests Section A magistrate empowered to hold a subordinate court of the first, or second class, and a magistrate specially empowered in that behalf by the Chief Justice, shall be empowered to hold inquests. [L.N. 299/1956, L.N. 172/1960, L.N. 474/1963, Act No. 5 of 2003 , s. 97.]

Section 385Verify source

§ 386SUPPLEMENTARY PROVISIONS - 386. Police to inquire and report on suicide, etc.Offence

Police officers must, in specified circumstances, forward bodies for examination subject to Ministerial rules and weather/distance conditions; persons who find a body or become aware of a death must immediately report it to the nearest administrative officer or police officer.

Section 386. Police to inquire and report on suicide, etc. Section 386(1)(a) has committed suicide; Section 386(1)(b) has been killed by another or by an accident; Section 386(1)(c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence; or Section 386(1)(d) is missing and believed to be dead; Section 386(2) When, except in the case of a missing person believed to be dead there is any doubt regarding the cause of death, or when for any other reason the police officer considers it expedient to do so, he shall, subject to any rule made by the Minister, forward the body, with a view to its being examined, to the nearest medical officer or other person appointed by the Cabinet Secretary in that behalf, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render the examination useless. Section 386(3) When the body of a person is found or a person has committed suicide or has been killed by another or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, a person finding the body or becoming aware of the death shall immediately give information thereof to the nearest administrative officer or police officer . [L.N. 299/1956, L.N.172/1960, Act No. 11 of 1993 , Sch., Act No. 12 of 2012 , Sch., Act No. 18 of 2018 , Sch.]

Section 386Verify source

§ 387SUPPLEMENTARY PROVISIONS - 387. Inquiry by magistrate into cause of deathCommencement

A magistrate empowered to hold inquests must hold an inquiry into the cause of death when a person dies in police or prison custody; in other specified cases a magistrate may hold such an inquiry; the magistrate may disinter a body for examination and must take steps (including issuing warrants) or report findings to the Director of Public Prosecutions as specified.

Section 387. Inquiry by magistrate into cause of death Section 387(1) When a person dies while in the custody of the police, or of a prison officer, or in a prison, the nearest magistrate empowered to hold inquests shall, and in any other case mentioned in section 386 (1) a magistrate so empowered may, but shall in the case of a missing person believed to be dead, hold an inquiry into the cause of death, either instead of or in addition to the investigation held by the police or prison officer, and if he does so he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. Section 387(2) Whenever the magistrate considers it expedient to make an examination of the dead body of a person who has been already interred, in order to discover the cause of his death, the magistrate may cause the body to be disinterred and examined. Section 387(3) If before or at the termination of the inquiry the magistrate is of the opinion that the commission by some known person or persons of an offence has been disclosed, he shall issue a summons or warrant for his or their arrest, or take such other steps as may be necessary to secure his or their attendance to answer the charge; and on the attendance of the person or persons the magistrate shall commence the inquiry de novo and shall proceed as if he had taken cognizance of an offence. Section 387(4) If at the termination of the inquiry the magistrate is of the opinion that an offence has been committed by some person or persons unknown, he shall record his opinion and shall forthwith send a copy thereof to the Director of Public Prosecutions. Section 387(5) If at the termination of the inquiry the magistrate is of the opinion that no offence has been committed, he shall record his opinion accordingly. Section 387(6) In the case of an inquiry relating to a missing person believed to be dead the magistrate shall at the termination of the inquiry report the case together with his findings to the Director of Public Prosecutions and shall make recommendations as to whether or not the period regarding the presumption of death provided for by section 118A of the Evidence Act ( Cap. 80 ) should be reduced and if so what lesser period should, in the circumstances of the death, be substituted for the period of seven years. [L.N. 474/1963, Act No. 11 of 1993 , Sch., Act No. 12 of 2012 , Sch.]

Section 387Verify source

§ 388SUPPLEMENTARY PROVISIONS - 388. Powers of Director of Public Prosecutions as to inquiries into cause of deathOffence

The Director of Public Prosecutions may direct a magistrate to hold or reopen an inquiry into the cause of a death, may direct disinterment, must give directions for missing persons believed dead, shall direct magistrates to make orders about presumptive death periods, and the Registrar‑General is empowered to issue death certificates on production of a court-certified order.

Section 388. Powers of Director of Public Prosecutions as to inquiries into cause of death Section 388(1) The Director of Public Prosecutions may at any time direct a magistrate to hold an inquiry, in accordance with section 387 , into the cause of a particular death to which the provisions of that section apply and shall in the case of missing person believed to be dead give such directions as he deems fit. Section 388(2) When an inquiry has been terminated under section 387 , and it appears to the Director of Public Prosecutions that further investigation is necessary, the Director of Public Prosecutions may direct the magistrate to reopen the inquiry and to make further investigation, and thereupon the magistrate shall have full power to reopen the inquiry and make further investigation and thereafter to proceed in the same manner as if the proceedings at the inquiry had not been terminated: Provided that the provisions of this subsection shall not apply to an inquiry at which a magistrate has recorded his opinion that the offence of murder or manslaughter has been committed by a person. Section 388(3) When giving any direction under this section, the Director of Public Prosecutions may also direct whether the body is to be disinterred and examined. Section 388(4) Upon receiving a report under section 387 (6) the Director of Public Prosecutions shall after considering the recommendations of the magistrate direct him to make an order as to the period which should be recorded before the death is presumed and upon the expiration of such period the Registrar-General shall be empowered on the production to him by the proper officer entitled to apply for and receive a grant of representation under the Law of Succession Act ( Cap. 160 ), of a court certified copy of the magistrate’s order, to issue to that person an appropriate certificate of death in accordance with the Births and Deaths Registration Act ( Cap. 149 ). [Act No. 22 of 1959 , s. 40, Act No. 11 of 1993 , Sch., Act No. 12 of 2012 , Sch.]

Section 388Verify source

§ 389SUPPLEMENTARY PROVISIONS - 389. Power to issue directions of the nature ofhabeas corpusProvision

Section 389(2) gives the Chief Justice the power to make rules of court to regulate procedure in cases under this section.

Section 389. Power to issue directions of the nature ofhabeas corpus Section 389(1)(a) that any person within the limits of Kenya be brought up before the court to be dealt with according to law; Section 389(1)(b) that any person illegally or improperly detained in public or private custody within those limits be set at liberty; Section 389(1)(c) that any prisoner detained in a prison situated within those limits be brought before the court to be there examined as a witness in any matter pending or to be inquired into in that court; Section 389(1)(d) that any prisoner so detained be brought before a court martial or commissioners acting under the authority of a commission from the President for trial to be examined touching any matter pending before the court martial or commissioners respectively; Section 389(1)(e) that any prisoner within those limits be removed from one custody to another for the purpose of trial; and Section 389(1)(f) that the body of a defendant within those limits be brought in on a return of cepi corpus to a writ of attachment. Section 389(2) The Chief Justice may make rules of court to regulate the procedure in cases under this section. [Act No. 27 of 1961 , Sch., L.N. 124/1964.]

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§ 389ASUPPLEMENTARY PROVISIONS - 389A. Procedure on forfeiture of goodsOffence

If a court decides goods should be forfeited and no other written law sets the procedure, the court must serve notice on the person believed to be the owner (or advertise if the owner is unknown), may at a specified time order forfeiture unless cause is shown, must not forfeit goods of a person found innocent, and may order sale and payment to partly interested persons.

Section 389A. Procedure on forfeiture of goods Section 389A(1) Where, by or under any written law (other than section 29 of the Penal Code ( Cap. 63 )), any goods or things may be (but are not obliged to be) forfeited by a court, and that law does not provide the procedure by which forfeiture is to be effected, then, if it appears to the court that the goods or things should be forfeited, it shall cause to be served on the person believed to be their owner notice that it will, at a specified time and place, order the goods or things to be forfeited unless good cause to the contrary is shown; and, at that time and place or on any adjournment, the court may order the goods or things to be forfeited unless cause is shown by the owner or some person interested in the goods or things: Provided that, where the owner of the goods or things is not known or cannot be found, the notice shall be advertised in a suitable newspaper and in such other manner (if any) as the court thinks fit. Section 389A(2) If the court finds that the goods or things belong to some person who was innocent of the offence in connexion with which they may or are to be forfeited and who neither knew nor had reason to believe that the goods or things were being or were to be used in connexion with that offence and exercised all reasonable diligence to prevent their being so used, it shall not order their forfeiture; and where it finds that such a person was partly interested in the goods and things it may order that they be forfeited and sold and that such person shall be paid a fair proportion of the proceeds of sale. [Act No. 13 of 1967 , s. 4.]

Section 389AVerify source

§ 390SUPPLEMENTARY PROVISIONS - 390. Persons before whom affidavits may be swornProvision

Affidavits and affirmations to be used before the High Court may be sworn or affirmed before a judge of the High Court, a magistrate, the Registrar or Deputy Registrar of the High Court or a commissioner for oaths.

Section 390. Persons before whom affidavits may be sworn Section Affidavits and affirmations to be used before the High Court may be sworn and affirmed before a judge of the High Court, a magistrate, the Registrar or Deputy Registrar of the High Court or a commissioner for oaths. [Act No. 10 of 1983 , Sch.]

Section 390Verify source

§ 391SUPPLEMENTARY PROVISIONS - 391. Shorthand notes of proceedingsProvision

Shorthand notes may be taken of proceedings at trials before the High Court or a subordinate court, and if the court directs, a transcript of those notes shall be made and is the official record.

Section 391. Shorthand notes of proceedings Section Shorthand notes may be taken of the proceedings at the trial of a person before the High Court or a subordinate court, and a transcript of those notes shall be made if the court so directs, and the transcript shall for all purposes be deemed to be the official record of the proceedings at the trial. [Act No. 22 of 1959 , s. 41.]

Section 391Verify source

§ 392SUPPLEMENTARY PROVISIONS - 392. Right to copies of proceedingsProvision

A person affected by a judgment or order can get a copy of the judgment, order, deposition or other part of the record if they apply and pay for it, except when the court decides to provide it free.

Section 392. Right to copies of proceedings Section If a person affected by a judgment or order passed in proceedings under this Code desires to have a copy of the judgment or order or any deposition or other part of the record, he shall on applying for the copy be furnished therewith provided he pays for it, unless the court for some special reason thinks fit to furnish it free of cost.

Section 392Verify source

§ 393SUPPLEMENTARY PROVISIONS - 393. FormsProvision

The High Court may, from time to time, approve forms for use; such forms, if used, shall be sufficient.

Section 393. Forms Section Forms which the High Court may from time to time approve, with such variations as the circumstances of each case may require, may be used for the respective purposes therein mentioned, and if used shall be sufficient.

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§ 394SUPPLEMENTARY PROVISIONS - 394. Expenses of assessors, witnesses, etc.Provision

Courts may order the Government to pay reasonable expenses of complainants or witnesses attending court proceedings, subject to rules the Minister may make.

Section 394. Expenses of assessors, witnesses, etc. Section Subject to any rules which may be made by the Minister, any court may order payment on the part of the Government of the reasonable expenses of a complainant or witness attending before the court for the purposes of an inquiry, trial or other proceeding under this Code. [Act No. 33 of 1963 , First Sch., L.N. 300/1956, L.N. 173/1960, Act No. 7 of 2007 , Sch.]

Section 394Verify source

Legislative relationships

4 referenced instruments

Names are derived from the stored provision headings and citation-enrichment layer. Treat this as a research index and verify each relationship against the source text.

A–F

2 instruments

Appeal on High Court's original jurisdiction Section In proceedings under section 203 or 296(2) of the Penal Code
Section 379A
Evidence Act
Section 387

N–S

2 instruments

Penal Code
Section 389A
Succession Act
Section 388

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