• Stephanie Marimba

The Process of a Criminal Case



Criminal cases are cases between a Republic or state versus an individual. In Kenya, the process of a criminal case is governed by the Criminal Procedure Code and is as follows:


Step 1: Filing a Complaint

This is done at a police station and requires the complainant to make the complaint which will be recorded in an occurrence book. The complainant will then be issued a reference number which they can use as reference throughout the investigation. The police can also record any statements given by the complainant or a relevant witness which determines whether they will draft a charge.


Step 2: Arrest

If there is an offence believed to have been committed, the police will then arrest and charge the offender and keep him/her in custody or release them on bail. This will be recorded on a charge sheet that will describe the offence, the contravening law and the names of the involved parties. The offender can only be held in custody for 24 hrs before they are brought to court. If they are arrested during the weekend or public holiday, they must be brought before the court before the end of the next court day. Once this is done, the case will be forwarded to the state prosecutors who will then decide whether the offence has enough evidence to proceed to court.

For minor offences, the offender will be issued a citation and instructions on when to appear in court.


Step 3: Appearance in Court and Plea

For all first instance offences, offenders will appear in a Magistrates Court. This is except in cases regarding murder and capital crimes such as treason. It is during this appearance that offenders will be informed of the charges against them and make their plea, guilty or not guilty. If a person pleads guilty, they will be convicted and sentenced by the Judge. If they plead not guilty a bail/bond hearing will commence where the court will determine whether the offender is a flight risk or qualifies for bail/bond. This will be done by the presentation of evidence by both the prosecution and the defence which the court will review and use to make their decision. If the court determines that you are not a risk, cash bail will be paid and you will be released to appear in court for your next hearing date. However, if the court denies you bail, it will give its reasons upon which you will be placed in remand. In remand, you have the right to have your case mentioned every two weeks. Remand however does not apply to offences that are punishable by a fine only or imprisonment for less than six months.


Step 4: Trial

This is the part of the process whereby both the prosecution and defence present their case in court to be determined by a judge. The trial begins with opening statements from the prosecution first and defence second. After this, the prosecution will present their case which includes presenting any relevant legislation, evidence and witnesses. Following this, the defence will have the opportunity to present their case which also includes any relevant law, witnesses and evidence. Both parties will also have the opportunity to cross-examine each other’s witnesses. Once this is over, the prosecution followed by the defence will have the opportunity to give their closing statements. Relying on the above, the present judge will make a determination on the case which includes them giving a judgement as well reasons for their decision. If the defendant is found guilty, they will be convicted and given a sentence.


Step 5: Sentencing

Sentencing is the next step following the conviction of the defendant. When deciding the defendant's sentencing, the Judge will base their decision on the sentencing guidelines for that specific offence or crime. The defence however can at this time present any mitigating circumstance that would lessen their sentencing. Examples of these are the offence being the first one committed by the defendant, the defendant being of old age or the defendant being the breadwinner of their family. Once the judge has decided on this sentence, the case will conclude. If either party is unsatisfied with the decision, they have the right to appeal. However, this can only be on a point of law and not fact.






Disclaimer: This document is not to be taken as legal advise.