PUBLIC INTEREST IN CRIMINL PROCEEDINGS

The principle of legality is an integral part of the rule of law, a crime will not exist without a
legal ground, an commission or omission must be forbidden in law for it to amount as a crime.

Public interest means that what is for enduring good of the public to deter such offences since it
is the duty of State to protect its citizens, atrocities their lives and properties. Every criminal case
is a matter of public interest as the complainant is in the republic and the republic or the state is a
representation of such persons. The DPP has a duty to protect the interest of all Kenyans.

In Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69, the High Court held;

There is a public interest underlying every criminal prosecution, which is being

zealously guarded, whereas at the same time there is a private interest on the
rights of the accused person to be protected, by whichever means. Given these bi-
polar considerations, it is imperative for the court to balance these considerations
vis-à-vis the available evidence.

PARTIES IN A CRIMINAL LITIGATION

The Police.

According to R v Commissioner of Police & Another Ex Pate-Micheal Monari & Another

2012, the Court appreciated the duty and mandate of police stating that;

The police have a duty to investigate on any complaint once a complaint is made.
Indeed, the police would be failing in their constitutional mandate to detect and
prevent crime. The police only need to establish reasonable suspicion before
preferring charges. The rest is left to the trial court.

Illegally obtained evidence

Regina v Leatham, it was said ‘it matters not how you get it if you steal it even, it would be
admissible in evidence’.

Karuma, Son of Kaniu v The Queen [1955] AC 197

 The test to be applied both in civil and in criminal cases in considering whether
evidence is admissible is whether it is relevant to the matters in issue. If it is, it is
admissible and the court is not concerned with how it was obtained.

In John Muriithi & 8 others v Registered Trustees of Sisters of Mercy (Kenya)t/a “The
Mater Misericordiae Hospital & another [2018] eKLR where the ELRC (Wasilwa, J.)
pronounced that, ‘in Kenya, illegally obtained evidence is admissible so long as it is relevant to
the fact in issue or its admission would not affect the fairness of the trial’, and after making
reference to Article 50(4) of the Constitution which states;

Evidence obtained in a manner that violates any right or fundamental freedom in

the Bill of Rights shall be excluded if the admission of that evidence would render
the trial unfair, or would otherwise be detrimental to the administration of
justice…

HIERACHY OF COURTS IN KENYA & JURISDICTION.

Article 159(2) contains the discipline philosophy with respect to the exercise of Judicial
Authority, donated by the establishment of the Constitution in an attempt to save the judiciary
from themselves and for themselves- the history of the judiciary in Kenya.

Principles guiding the Courts, tribunals when exercising the judicial authority;

a. Justice to be served to all irrespective of status

b. Justice to be served without delay.
c. Promoting the ADR mechanism in dispute resolution
d. Justice to be administered without undue regard to procedural technicalities
e. Protection and promotion of the principles and purpose of the Constitution.

Administration of justice without undue regard to procedural technicalities/ Oxygen Rule.

The principle allows and aims justice not be hindered by rigid adherence to procedural rules,
thereby promoting fairness and equity in the judicial process.
In Raila Odinga & 5 Others v IEBC & Others (2013) eKLR the Court had this to say on the
effect of Article 159 of the Constitution;

Article 159(2) (d) of the Constitution which obliges a court of law to administer
justice without paying regard to procedural technicalities. The Article simply
means that a Court of law should not pay undue attention to procedural
requirements at the expense of substantive justice. It was never meant to
oust/defeat the obligation of litigants to comply with procedural imperatives as
they seek justice from the Courts of law.

Nonetheless, despite Article 159, adherence to the procedural requirements in litigation is not a
mere suggestion and courts will not shy away from favoring a litigant subjected to proceedings
in which procedural fairness has seemingly been sacrificed at the altar of substantive justice, that
entails notifying a party about the proceedings to accord them a chance to be heard.

However, the Courts allow the principle out of flexibility for administration of justice and not to
negate the importance of procedural rules. Justice Kiage in Nicholas Kiptoo Arap Korir Salat
v the Independent Electoral and Boundaries Commission and 6 Others [2013[ eKLR
observed that;

[the principle is] to aid in the overthrow or destruction of rules of procedure and
to create an anarchical free-for-all in the administration of justice. This Court,
indeed all courts, must never provide succor and cover to parties who exhibit
scant respect for rules and timelines. Those rules and timelines serve to make the
process of judicial adjudication and determination fair, just, certain and even-
handed. Courts cannot aid in the bending or circumventing of rules and a shifting
of goal posts for, while it may seem to aid one side, it unfairly harms the innocent
party who strives to abide by the rules.
 CHAPTER TWO

CASE ANALYSIS

Francis Karioko Muruatetu & another v Republic [2017] eKLR (Judgement)

The Constitutionality of the mandatory nature of the deaths sentence provided under
section 204 of the Penal Code
 JURISDICTION OF COURTS

Types of Jurisdictions

i. Geographical/Territorial

The jurisdiction to hear and determine cases is defined by law based on designated areas.

ii. Pecuniary/ Monetary

The jurisdiction to hear and determine cases is defined by law based on designated
financial value -levels. the pecuniary jurisdiction where the Court is presided over by a chief
magistrate has been increased from KES 7 million to KES 20 million shillings. - civil

SUPREME COURT

Constituted under Article 163 of the 2010 Kenya Constitution

Its composition involves the CJ, president of the Court, Deputy CJ & Other 5 judges

Jurisdiction of the Supreme Court involves;

i. Exclusive original jurisdiction to hear and determine the disputes arising to the
election to the office of the president
ii. Appellant jurisdiction to hear and determine appeals from the Court of Appeal or any
court or tribunal as prescribed under any legislation.
Appeals shall lie from the Court of Appeal to the Supreme Court as a matter of right
if it entails the Application and Interpretation of the Constitution or if the Supreme
Court or Court of Appeal certifies a matter to be of general public interests
iii. Advisory opinion on the request of the National Government, any state organ or any
county government on matters concerning county government.
CHAPTER 8
 BAIL

Bail is the money paid t