RDL 215/RCL 203

CRIMINAL LAW AND PROCEDURE

PREPARED BY;

MR. MR. EGIBERT A. BONDO

TOPIC TEN: THE INSTITUTION OF CRIMINAL PROCEEDINGS

Introduction
The institution of criminal proceedings is a critical phase in the criminal justice process for the
obvious reason that it is only once proceedings are underway that the accused person will find
himself subject to all the restraints and conditions that will serve to set him apart from his fellow
citizens, and set upon a course which potentially may result in his eventual loss of liberty or even
life. The substantive law governing the institution of criminal proceedings is to be found in Part
V of the CPA.

Who Has Authority To Institute Proceedings?

Criminal proceedings may be instituted either by the making of a complaint or by the bringing
before a magistrate a person who has been arrested with or without a warrant (s.128 (1) CPA)

The Complaint
A criminal proceeding is a contest between the state and the accused. This contest may be
commenced in two ways. The first and the most common way is by laying a complaint in court
under s. 128 (1) CPA. A Complaint is defined under s. 2 to mean an allegation that some person
known or unknown has committed an offence.
The first issue to be addressed therefore is the question of who has authority to institute
proceedings in this way. In other words, who may set the criminal process in train? Section
128(2) of the CPA specifies that any person who believes from a reasonable and probable cause
that an offence has been committed by another may make a complaint of the offence to a
magistrate having competent jurisdiction. That person may therefore be the aggrieved himself, or
1
someone acting on his behalf. The complaint may be made orally or in writing, although if it is
made orally, the magistrate must reduce it to writing. Regardless of whether the complaint is
initially made orally or in writing, the emergent document shall be signed by both the
complainant and the magistrate (s. 128(4) CPA). Having received and signed the charge in
accordance with s.128, the magistrate has the discretion to issue a summons or a warrant to
compel the attendance of the accused before a subordinate court which has the power to inquire
into or try the offence alleged to have been committed. However, no warrant may be issued
unless the complaint has been made on oath by the complainant or witnesses.

Complaint to a police officer

Where, as the result of a complaint, an accused person is arrested without a warrant, a formal
charge containing the statement of the offence with which the accused is charged shall be signed
and presented by the police officer preferring the charge (s. 128(6) CPA).

Refusal of Complaint or Charge where charge and particulars disclose no offence

The Court is not obliged to allow a complaint to proceed. If the magistrate is of the opinion that
the complaint or formal charge does not disclose any offence, then he may refuse to admit such
complaint or charge, although should he choose to do so, he must record his reasons for doing so
(s. 129 CPA).

Drafting of Charges
A charge is an accusation, or an indictment documents. It is sometimes known as information
which is legal document for commencing criminal cases in the High Court. The duty to
formulate an appropriate charge or information lies with the prosecutor and not the court, unless
it is a case under s. 128 (4) CPA where a complaint is made without a formal charge
accompanying it.

Purpose of Charge
A charge is intended to:
 Inform the accused about the accusation and the law applicable
 Avoid taking the accused by surprise

2
  Enable the accused prepare his defence
 Enable the court to control the proceedings and confine evidence and arguments to what
is in dispute and no more and
 Keeps records for future use for no person should be charged twice over the same
offence, same fact-autofois acquit, convict and pardon.

Form of Charges
The format of the charge is governed by section 135 CPA must be framed in accordance with
the following criteria;–
(a) Counts on a charge sheet must be headed “The Statement of Offence”, and must outline in
simple language the essential elements of the offence and the Act creating the offence (if any);
(b) The “Particulars of Offence” should follow the Statement of Offence. Again, the particulars
should be in simple language. If any rule of law limits the particulars to be given, nothing more
than that required by such rule of law need be stated;
(c) In cases where there are forms prescribed by the CPA, these forms must be used; in all other
cases, similar forms, adapted as necessary to meet the circumstances of the case, should be used.
The prescribed forms are to be found in the Second Schedule to the CPA;
(d) The counts on the charge sheet must be consecutively numbered;
(e) If an offence may be committed in alternative ways, those alternative ways of committing the
offence may be stated in the count charging the offence (and should be);
(f) In charging a count, it is unnecessary to negative any exemption or qualification created by
the Act creating the offence charged.

Formulation of a Charge

3
A charge should be in conformity with s. 135 CPA or samples in the 2 nd Schedule to the CPA. A
charge must contain five parts as per s. 135 CPA. These parts are:

1. Title eg
In the District Court of Ilala at Kisutu
Criminal Case No. 1 of 2010

2. Parties’ description

R v. Juma

3. Name of the Document

CHARGE SHEET

4. Statement of the offence and the law applicable

Murder contrary to s. 196 of the Penal Code

5. Particulars of the offence

Here you should state brief material particulars of the act or omissions constitution the alleged

offence, date, time, place, name of the victim (if nay), property involved (if applicable), and the

mental element of the crime that is, was the act intentional, fraudulent or otherwise unless it is

one of strict liability, or is such an offence whose mental element is imputed.

6. Description

4
Name, address and signature of the person laying the charge and the date when the same was

prepared. A space must also be left for court to put in the date on which the charge so prepared

was filed and admitted in court.

Meaning of Bail

Bail is an agreement between the accused (and his sureties if any) and the court that the accused

will pay a certain sum of money fixed by the court, should he fail to appear to attend his trial on

a specified date. Also bail is the temporary release of an accused person from the custody of

officers of law before determination of the matter.

Why Bail?

Because a person is presumed to be innocent until proved guilty by the court of law (presumption

of innocence)

Types of Bail

 Police bail: arises when an accused person is arrested by the police while waiting to

be sent to the court of law to answer charges or pending investigation of the matters

alleged against.

 Court bail: is a kind of bail which is granted by the court. This is done when an

accused person has appeared before the court of law. The court may release him

before determination of the matter.

5
  Bail pending appeal: a person may be granted bail after being convicted but when he

prefers an appeal, he may apply for bail pending appeal, whereby the appeal will be

heard while he is bailed out.

Purpose of Bail

The main purpose has always been to let the accused be free for a while pending his trial as long

as his guilty has not yet been established beyond reasonable doubts. However, this purpose is

subject to a number of limitations discussed hereunder.

Police Bail
If no formal charge has been brought against a person within 24 hours after the person was
arrested, the police must release the person (s. 64(1)(c) CPA 1985). The exception to this rule is
where the police officer in charge reasonably believes that the offence suspected to have been
committed is a serious one.

Power to grant police bail

When a police officer arrest a person reasonable suspected of committing any offence, they must
inform the person of their right to bail under s. 64 (s. 64(5) CPA 2002). Police bail may be
granted by the police officer in charge of the station upon that person under police custody
executing a bond (with or without sureties) to appear before a court if so required (s. 64(1)).

Conditions for granting police bail

One of the following conditions must be satisfied to release a person on police bail:

6
(a) the person was arrested without warrant;
(b) after due inquiry, police officer in charge of the station is of the opinion that there is
insufficient evidence which to proceed with the charge;
(c) the offence is not of a serious nature; or
(d) it appears that further inquiries must be carried out and they cannot be completed within a
reasonably short time. (s. 64(2)(a)-(d) CPA 2002)

If a person is under the age of fifteen, they may be released after their parent, guardian, relative
or other liable person entered a recognizance on their behalf (s. 64(3) CPA 2002). No fee or duty
is chargeable upon bail bonds in criminal cases, recognizance to prosecute or give evidence or
recognizance for personal appearance or otherwise issued or taken by a police officer (s. 64(4)
CPA 2002).

In considering whether to grant bail, the police officer may take into account the following;
s. 65 CPA 2002:

(a) The probability of the person appearing in court in respect of the offence if granted bail, that
is to say-
(i) the background and community ties of the residence, employment and family situation and to
his police record if known and
(ii) the circumstance in which the offence was committed, the nature and seriousness of the
offence, the strength of the evidence against the person and other information relevant to the
likelihood of his absconding;
(b) matters related to the interests of the person, that is to say-
(i) the period that the person may be obliged to spend in custody if bail is refused, and the
conditions under which he would beheld a custody;
(ii) the needs of the person to be free to prepare for his appearance before the court to obtain
legal advice and for other purposes; or
(iii) the need of the person for physical protection, whether the need arises because
he is incapacitated by intoxication injury or the use of drugs or arises from other causes; and,

7
(c) matters related to the protection of the community, that is to say, the likelihood of the person
interfering with evidence through intimidating witnesses or hindering police inquiries in any
other way.
Under s. 66, if a person is granted bail, they must undertake in writing that:
(a) they will appear before a specified court at a specified time and place, or at such other time
and place notified to them by a police officer;
(b) they will observe specified requirements as to their conduct while released on bail. Such
requirements do not include giving security, depositing money or the forfeiture of money.
Another person acceptable to the police may acknowledge in writing that they are acquainted
with the person charged and regards them as a responsible person who is likely to appear in court
to answer the charge (s. 66(c) CPA 1985). The person charged or other acceptable person can
enter into an agreement, without security, to forfeit a specified sum of money if the person
charged fails to appear in court to answer the charge (s. 66(d)). Alternatively, the person charged
or another acceptable person can enter into agreement and give security acceptable to the police
officer to forfeit a specified sum of money if the person charged fails to appeal in court to answer
the charge (s. 66(e)). The person or another acceptable person may deposit with the police officer
a specified sum of money to be forfeited if the person charged fails to appear in court (s. 66(f)).

Refusal of police bail

If a police officer refuses to grant bail, the reasons for this must be recorded in writing (s. 67(1)
CPA 2002). If bail is refused, or the person charged is unable or unwilling or arrange for an
acceptable person to comply with any of the conditions set for bail to be granted, the person will
be brought before a magistrate as soon as practicable (s. 66(2)). This should be no later than the
first sitting of a court at a police which is practicable to take the person for that purpose (s.
66(2)). Whilst waiting in police custody to be brought before a magistrate, the person may at any
time request a police officer for facilities to make an application for bail (s. 66(3)). If he does,
the police officer shall within such reasonable time and no later than 24 hours bring the person
before a magistrate (s. 66(3)).

Breach of bail conditions

8
Police bail may be revoked if the prescribed police officer believes or has reasonable grounds to
suspect that a person released on police bail:
(a) is absconding; or
(b) has failed or is likely to fail to comply with an undertaking given by him as a condition of his
release.
(s. 68 CPA). The person may then be arrested by a police officer.
If a person released on police bail wilfully and unreasonably fails to comply with an undertaking
given as a condition of his release, the person is guilty of an offence. If convicted of that offence,
the person could be sentenced to the maximum penalty that can be imposed upon conviction for
the offence (s. 69(1)). If the person was originally arrested for two or more offence, this relates to
the more serious of those offences (s. 69(2)). However, the court cannot impose a fine in excess
of 1000 shillings or a period of imprisonment in excess of six months for the offence of
breaching bail conditions (s. 69(3)).

Bail
Bail and bond may be granted by:
1) An officer in charge of a police station; or
2) A court in application for the grant of bail. (s.148 (1))

Instead of taking bail from that person, the officer or the court may release the accused on his
executing a bond with or without sureties for their appearance.

Exceptions to granting bail:

The right to bail does not apply in the following circumstances: (Statutory restrictions)
 Where the person is accused of treason;
 Where the person has previously been sentenced to imprisonment for a period exceeding
three years;
 Where the person has been previously granted bail by a court and failed to comply with
the conditions of bail or absconded;
 Where the person is charged with committing an offence alleged to have been committed
while they were released on bail by a court of law;

9
  The person is charged with an offence involving a serious assault on or threat of violence
to another person, or having or possessing a firearm or an explosive;
 If it appears necessary to the court for the person’s own protection or safety.
(s.148(5)(a)-(f))
 The DPP may issue a certificate in writing that it is likely that the safety or interests of
the Republic would be prejudiced if the accused were released on bail (s.148(4)). If such
a certificate is issued, the accused will not be granted bail in any circumstances.

Criteria for granting bail:

Bail is determined with regard to the gravity and other circumstances of the case. However, it
is not allowed to be excessive (s.148(2)). Clearly, if the accused is charged with a serious
offence, the prosecutions are likely to argue that there are substantial grounds for believing that
the accused will fail to surrender to custody if they are granted bail. The other circumstances
which may be taken into account will be particular to the facts of the case. This may include any
previous convictions of the accused, which may suggest there are grounds for believing that the
accused will commit further offences, or associations or community ties which suggest he has
close family ties to the area or is a member of a criminal gang.

Conditions on bail
Mandatory conditions on bail
If the magistrates grant bail to the accused, it is subject to the accused complying with two
mandatory conditions that are attached to that bail. These are:
1. Surrender of passport or other travel document; and
2. Restricting the accused’s movement to their town, village or other area of residence.
(s.148(6)(a) and (b))

Further conditions on bail

The court also has the power to attach further conditions on the grant bail to a accused.
These include:

10
  Requiring the accused to report to a police station or other authority within the area of his
residence at specified intervals (for example, 9am each morning); or
 Prohibiting the accused from visiting a particular locality or premises or associated with
specified persons (s.148 (7)(i)-(ii)).

In addition, the court has a general power to impose any condition it deems proper and just
which appear to the court:
 To be likely to result in the appearance of the accused for trial or resumption of the trial;
 As may be necessary in the interests of justice; or
 For the prevention of crime. (s.148(7)(iii))

Such conditions could include imposing a curfew for the accused to remain at his place of
residence between certain specified hours, not to communicate with prosecution witnesses or
requiring them to reside at a particular address. Another common condition imposed by the court
is the requirement that a surety be given.

Sureties
A surety may be used to ensure that a accused answers bail. A surety is a person who enters into
what is termed a “recognisance” of money and is under an obligation to use every reasonable
effort that the accused attends court. If the accused fails to answer their bail at the next hearing,
the court may call upon the person who entered the recognisance of money to appear before the
court to either pay the
penalty or explain why they should not pay over the sum (s.160(1)). The court will then
determine whether some or all of the surety should be paid. If the person cannot show a
sufficient cause why the sum should not be paid and the penalty is not paid, the court may issue a
warrant for attachment and sale of any moveable property belonging to that person, or their
estate if they are dead (s.160(2)). If the penalty is not paid and cannot be recovered by that
attachment and sale, they are liable for imprisonment of up to six months (s.160(4)).

If a surety dies, their estate is discharged from liability in respect of the bond (s.156). The person
discharged on bail may be required to find a new surety. If the sureties of a bond are insufficient,

11
through mistake, fraud or otherwise, the court may issue a warrant for arrest of the person
released on bail to be brought before the court. The court may order the person to find sureties. If
they fail to do so, the court may commit them to prison (s.154).

Further applications for bail

If a person is refused bail, on a certain ground or reason, subsequently he can still make another
application before the same court for bail when the ground or reason for earlier refusal is no
longer applicable to him. The subsequent application is made before the same court and before
the same judge or magistrate, unless it is impracticable to do so. Refer: The Director of Public
Prosecutions v. Ally Nur Dirie and Another 1988 TLR 252 (CA). If the prosecutor or police
officer become aware of a change of circumstances which in their opinion would mean a person
would not have been granted bail or would have required a greater amount of bail, the prosecutor
or police officer may bring this to the attention of the judge or magistrate. If the judge or
magistrate agrees that bail would not have been granted or that the circumstances require a
variation to the amount, they may issue a warrant of arrest. The accused person is granted the
opportunity to be heard during this second appearance. The judge or magistrate may then either
commit the person to await trial, admit him to bail for an increased amount or admit him to bail
for the same amount. (s.150).

Appeals against a bail decision

All orders made by a magistrate under ss. 148 – 160 may be appealed to the High Court (s. 161).
So, if the accused has been refused bail by the Magistrates Court or is unhappy with any of the
conditions placed on him (e.g. the level of surety is bound to discharge), they have the right to
appeal to the High Court. The High Court has the power to vary the terms of bail of a lower court
(s.149). The High Court has the power to direct the amount due on the recognisance to appear
and attend at the High Court (s. 162).

Powers of the High Court to Grant bail

You should not that the High Court is empowered to:

12
 i. Vary the conditions imposed by subordinate courts, s. 149 CPA, to fit the circumstances

of the case (see also s. 148 (3) CPA

ii. Admit or order the admission of the accused person to bail if the court subordinate to it is

reluctant to do so or offers to do so on unacceptable terms(read s. 149, 148 (3) CPA)

iii. Reduce the amount of bail or bond (see s. 149 CPA), or

iv. Discharge any sureties if any (see s. 149 CPA)

Change of the circumstances may as well compel the court to vary the conditions of bail or

change the bond amount as per s. 150 CPA. However, bail conditions cannot be changed without

the accused being heard per s. 150 CPA. Should the court think that there was a mistake or any

other thing which may have vitiated the validity of the previous bail, it may cancel the bail,

change the conditions or require new sureties or commit the accused to prison. See s. 154 CPA

“Quod iste et iste cur non ego”

13