CD&E/ CPC

STW.
PROCEDURE IN TRIALS BEFORE SUBORDINATE COURTS

AUTHORITY: -C.P.C section 202 – 218.

SECTION 202 – NON-APPEARANCE OF COMPLAINANT

If on the hearing day the accused person appears in obedience to
a summons or is brought to court under arrest, then the
complainant having given notice of the day of hearing fails to
appear, the court shall dismiss the charge unless it thinks it is
proper to adjourn, the accused person may be reminded in prison
or be admitted to bail.

SECTION 203 – APPEARANCE OF BOTH PARTIES

If both parties appears, the court shall proceed to hear the case.

SECTION 204 – WITHDRAWAL OF COMPLAINT

If a complainant, at any time before final order is passed, satisfies
the court that there are sufficient grounds for permitting him to
withdraw his complain, the court may permit him to withdraw the
same and thereupon acquit the accused.

SECTION 205 – ADJOURNMENT:

1. It shall be lawful for a court at it’s discretion to adjourn a
hearing and in the meantime either remand the accused to
prison or admit him to bail. Provided that no such adjournment
shall be for more than thirty clear days, or if the accused has
been committed to prison, for not more than fifteen clear days.
2. The court may commit the accused to police custody:-
(a) For not more than three clear days if there is no prison
within five miles of the court house.
(b) For not more than seven clear days if there is no prison
within five miles of the court house and the court is not due
to sit again within three days.
(c)At the request of the accused person, for not more than
fifteen clear days.

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SECTION 206 – NON-APPEARANCE AFTER ADJOURNMENT
If on the day of hearing after adjournment the accused does not
appear, it shall be lawful for the court, unless the accused is
charged with a felony, to proceed with the hearing as if the
accused were present. If the complainant does not appear the
court may dismiss the charge. If the court convicts the accused in
his absence it may set aside such conviction upon being satisfied
that his absence was from, the causes over which he has no
control.

SECTION 207 – ACCUSED TO PLEAD

1. The substance of the charge shall be stated to the accused by
the court and he shall be asked whether he admits the charge
or denies the truth of the charge.
2. If the accused admits the charge his admission shall be
recorded and the court shall convicted him and pass sentence.
3. If the accused does not admit the charge, the court shall
proceed to hear the case.
4. If the accused refuses to plead the court shall order a plea of
not guilty to be entered for him.
5. (a) If the accused pleads:-
(b) That he has been previously convicted or acquitted on the
same fact of the same offence or,
(c) That he has obtained the president’s pardon for his
offence, the court shall first try whether such plea is true or
not.
(d) If such plea is found not to be true, the accused shall be
required to plead to the charge.

SECTION 208 – PLEA OF NOT GUILTY

1. If the accused denies the charge, the court shall proceed to

hear the complainant and his witness.
2. The accused person or his advocate may put questions to each
witness produced against him.
If the accused person does not employ an advocate, the court
shall at the close of the examination of each witness for the
prosecution ask the accused person whether he wishes to put any
questions to the witness and shall record his answer.

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SECTION 210- ACQUITALS

If at the close of evidence in support of the charge and summing

up by both parties, it appears to the court that a case is not made
up against the accused sufficiently to require him to make a
defense, the court shall dismiss the case and acquit him.

SECTION 211 – DEFENCE

If a case has been made sufficiently against the accused, the
court shall explain the substance of the charge to the accused
and inform him he has a right to defend himself. The court may
summon witness for the accused.

SECTION 212 – EVIDENCE IN REPLY

If the accused adduces evidence in his defence introducing new
matters which the prosecutor could not have foreseen, the court
may allow the prosecutor to adduce evidence in reply to rebut the
said matter.

SECTION 214 – VARIANCE BETWEEN CHARGE AND

EVIDENCE:

Where at any stage before the close of the prosecution case it

appears to the court that the charge is defective, the court may
order that the charge be altered either by way of amendment or
substitution or addition of a new charge provided that: -
(i) Where a charge is altered, the court shall call upon the
accused to
(ii) Plead to the altered charge
(iii) The accused may demand that the witness be recalled
and give their evidence afresh.

SECTION 215 – DECISION

The court having heard evidence from both parties shall either
convict the accused and pass sentence or shall acquit him.

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SECCTION 218 – ACQUITTAL BAR TO FURTHER
PROCEDURE.
The production of any copy of the order of acquittal, certified by
the clerk or other officers of the court, shall without other proof,
be a bar to any subsequent information or complaint for the same
matter against the same accused person.

REPUBLIC V SHAH- KENYA LAW REPORT

CASE NO. 35 OF 1983
The accused was charged in a chief Magistrates court with the
offence of theft and handling stolen property. He pleaded ‘’not
guilty’’ and was released on bail.
When the case came up for hearing the prosecutor stated that he
had been instructed to withdraw the case under section 87(a) OF
THE CRIMINAL PROCEDURE CODE Cap 75 and that they
intended to use the accused as a state witness.
The presiding magistrate observed that a mere discharge would
be inappropriate if the accused was intended to be used as a
state witness and he ordered an absolute withdrawal and
acquittal.

The Republic moved the High Court to set aside the order of the
magistrate.

THE HIGH COURT HELD.

1. In cases where there are no instructions from the

Attorney General to withdraw the case under
section 87 of the Criminal Procedure Code that the
withdrawal must be with the consent of the court.
The court has the discretion to either allow or refuse
to give its consent to such withdrawal.

2. Where the Attorney General gives instructions under

section 87 for a case to be withdrawn, the Court has
no alternative but to withdraw.

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 3. If the application is made after the accused has been
called upon to make his defence, the court has to
acquit and if it is made before, the court can only
discharge the accused person.

4. An absolute order of withdrawal and acquittal can

only be made under section 87(b) of the criminal
procedure code Cap 75, which provides that such an
order is only available. If it is made after the accused
has been called to make his defence. In this case no
witnesses had been called hence the section 87(b)
providing for an acquittal had no relevance in this
case section 87(a) providing for a discharge was
applicable.

5. Under section 204 of the criminal procedure code

the court may upon the application of the
complainant permit him to withdraw the case against
the accused if it is satisfied that sufficient grounds
for doing so exist. This did not apply in this case
because the withdrawal was upon the motion of the
prosecutor relying on section 87(a) of the criminal
procedure code.

6. Sections 210 and 215 of the criminal procedure

code were other provisions under which the accused
could be acquitted but they did not apply to this case
because no witnesses had been called.

7. The court would generally give consent to withdraw

a case except in exceptional cases since the
prosecution in any court of law should be left to the
prosecutor so long as the rights of an accused are
not being infringed.

ORDER OF AQUITTAL SET ASIDE AND SUBSTITUTED WITH

AN ORDER OF DISCHARGE

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