Week 9 Judgements

WEEK 9
JUDGEMENTS
Introduction
After hearing a case in its entirety, the court must render a reasoned, written determination
on the guilt or innocence of the accused.
Judgment can be pronounced either immediately upon termination of the trial or at a

subsequent time (ss. 168(1) & 322, CPC). If the court intends to pass judgment at some
subsequent time, it must give notice of the date and time to the parties and their advocates, if
any (s. 168(1), CPC). While the CPC does not prescribe a period within which judgment should
be pronounced, the right to a speedy trial demands that the trial court issue a judgment without
unreasonable delay, especially if the accused is detained.
The accused should be present during the pronouncement of the judgment unless either personal
attendance has been dispensed with during trial and the sentence is a fine, or the accused is
acquitted (s. 168(2), CPC). However, the absence of a party at the delivery of the judgement or
failure to notify the accused person of the date of delivery of judgment does not invalidate the
judgment (s. 168(3), CPC). In Joseph Kamau Githu v DPP (High Court at Nakuru Criminal Appeal
No. 34 of 2013), the accused had repeatedly failed to attend court when judgment was scheduled
to be delivered and warrants of arrest had been issued against him. The trial court subsequently
delivered the judgment in his absence, and the Court of Appeal, relying on section 168(3) of the
CPC, held that the accused’s absence did not invalidate the judgment.
The substance of the judgment must be explained in open court (s. 168(1), CPC). The
whole judgment should be read out in open court if either party requests.
If the accused applies for a copy of the judgment, he or she
is entitled to one without delay (s. 170, CPC). An accused
is also entitled to a translation of the judgment in their
own language upon request, if practicable. Any person
affected by a judgment or order passed by a superior court
is entitled, on application and payment, to a copy of the
judgment, order, deposition or other part of the record. The
court may, for special reasons, provide them free of charge
(s. 392, CPC).
Determination
Every accused person has the right to a fair trial, which

includes the right to be presumed innocent until the
contrary is proved (art. 50(2)(a), CoK). For the court to
convict an accused, the prosecution must prove beyond
reasonable doubt that the accused is guilty (Stephen Nguli
Mulili v R Court of Appeal at Nairobi Criminal Appeal No. 90
of 2013; Miller v Ministry of Pensions [1947] 2 All ER 372;
DPP v Woolmington (1935) UKHL 1).
To arrive at its determination, the court should analyse

and weigh the prosecution and defence evidence in its
totality. The court should not look at the prosecution and
the defence cases separately, but as a whole, while bearing
in mind the burden on the prosecution. In Okethi Okale &
Others v R ([1965] EA 555), the court held that the failure
to consider the defence case is contrary to natural justice.
Reiterating this position, the Court in Karura v R (Court of
Appeal at Nairobi Criminal Appeal No. 170 of 1984)
proceeded to consider the defence case which ought to have
been considered by the trial court.
The court must not convict on the basis of mere inferences

or conjecture without credible evidence proving the guilt of
the accused person. In R v Danson Mgunya (Court of Appeal
at Mombasa Criminal Appeal No.
21 of 2016), the appellate court rejected the prosecution’s

claim that the trial court ought to have drawn an
inference that the accused shot and
killed the deceased, even though there was no evidence that
the gun belonged to the accused. The court in Joan
Chebichii Sawe v R (Court of Appeal at Nairobi Criminal
Appeal No. 2 of 2002) drew a careful distinction between
circumstantial evidence and suspicion: even strong
suspicion by itself cannot justify conviction. It cited R v
Kipkering arap Koske & Another ((1949) EACA 135) stating
that ‘to justify the inference of guilt, the inculpatory facts
must be incompatible with the innocence of the accused,
and incapable of explanation upon any other reasonable
hypothesis than that of his guilt’.
Contents of the Judgment
Section 169 of the CPC sets out the contents of a

judgment. Every judgment must be written by or under the
direction of the presiding judge or magistrate, who must
sign at the last page. The judgment will then be dated at
the time of delivery by the presiding officer or any other
person who delivers the judgment in open court. When the
judgment is delivered, a person who is convicted must be
informed of the right of appeal, and the time frame for
appealing, which starts to run immediately.
The court in Peter Mwangi Waithaka v R (Court of Appeal

at Nairobi Criminal Appeal No. 3 of 2013) emphasised that
the court is required to sign and date the judgment. The
judgment should include:
i) name of the
accused.
ii) the charge or
charges.
iii) a summary of the evidence adduced by both

prosecution and defence.
iv) the point or points for

determination.
v) the decision made on each

point.
vi) the reasons for the decisions clearly

set out.
vii) in the case of

conviction:
a. specify each offence and relevant section of the
law, of which
the accused is
convicted.
b. punishment imposed for each count for which the

accused is convicted (s. 169(2), CPC).
viii) in the case of acquittal (s. 169(3), CPC):
a. state any offence of which he/she is acquitted.
b. an order to set accused at liberty.
The pages of the order should be numbered consecutively.
In the case of a child dealt with in the Children’s Court, the

words
‘conviction’ and ‘sentence’ must not be used. The court

should refer to a
‘finding of guilt’, and a consequent ‘order’ (s. 189, Children

Act (CA)).
While the court is obligated to comply with section 169 of

the CPC, non-compliance does not automatically
invalidate a conviction, and a determination is premised
upon the merits of each case. The consideration is
whether, in all the circumstances, non-compliance has
caused injustice.
In R v George Onyango Anyang & Another (High Court
at Siaya Criminal Appeal No. 53 of 2016), the trial court
considered the evidence and made a general conclusion
rather than setting out the points for determination as
required by section 169(1) of the CPC. The appellate court
noted this failure, but then proceeded to evaluate the
evidence and consider the points for determination. Having
done this, it acquitted the appellants.
Failure to indicate the specific count that each accused was

convicted of was held to be incurable in Nyanamba v R
(Court of Appeal at Kisumu Criminal Appeal No. 121 of
1983), where the two accused had been charged jointly with
two counts of robbery and one separate count against each
accused. The conviction was quashed because the omission
had caused injustice.
If a joint trial involves more than one accused, the court
must consider the evidence against each separately and
arrive at a separate decision for each of them (Morris Gitonga
Njeru v R High Court at Embu Criminal Appeal No. 16 of
2013; Munyole v R Court of Appeal at Kisumu Criminal
Appeal No. 97 of 1985).
The judgment must be written in either English or Kiswahili

(s. 169(1), CPC; s. 34, High Court (Organization and
Administration) Act); s. 33, Court Of Appeal (Organization
and Administration) Act); s. 198, CPC).
The judgment should not contain derogatory language.

In Didacus
Ollack Diego v R (High Court at Nairobi Criminal Appeal No.

1079 of
1983) the court reiterated the caution given in Okeno v R

([1972] EA
32): ‘… a dispassionate approach and clear finding of fact,

are more indicative of judicial approach, and do not lay the
magistrate open to a charge of possible bias’. The court may
express strong condemnation of the conduct of the accused,
but it must be careful not to be abusive or, for example,
imply that the conduct is what might be expected of those
belonging to a particular race, religion etc.
Conviction for Offences Other Than Those Charged

If the evidence tendered does not disclose the offence
charged, but instead proves commission of a lesser
offence, the court may convict the accused person for the
proved lesser offence (s. 179, CPC; Robert Mutungi Muumbi
v R Court of Appeal at Malindi Criminal Appeal No.
5 of 2013). This is true even if the charging papers did not

include the lesser offence. For example, if an accused is
charged with murder and the prosecutor proved all elements
except malice aforethought, the accused can be convicted of
manslaughter (R v Nicholas Ngugi Bangwa High Court at
Nairobi Criminal Case No. 49 of 2011). Similarly, a person
charged with robbery can be convicted of stealing if it is
proved that the person fraudulently and without right took
an object, but it is not proved
that the person used or threatened to use actual violence. Paul Njagi
Mugambi v R (Court of Appeal at Nairobi Criminal Appeal No. 75 of
1979).
The substituted offence must be both lesser than and cognate with the offence
charged. The term ‘cognate’ refers to offences that are ‘related or alike; of the same
genus or species’ (Robert Mutungi Muumbi v R Court of Appeal at Malindi
Criminal Appeal No. 5 of 2013). For example, an accused charged with
defilement can be convicted of sexual assault (John Irungu v R Court of Appeal
at Mombasa Criminal Appeal No. 20 of 2016). In Lawrence Omondi Otieno v R
(Court of Appeal at Kisumu Criminal Appeal No. 368 of 2006), the court held
that causing grievous bodily harm was cognate with robbery with violence. The
offence of affray was held not to be cognate to the offence of assault in Janet
Nyoroka v R (High Court at Meru Criminal Appeal No. 73 of 2009). It held that
affray requires proof of involvement in a fight in a public place, which is not an
element of assault.
If the facts support a conviction for attempt but not the completed offence, an
accused charged with committing an offence may be convicted of having
attempted to commit it even if attempt was not included in the charges (s. 180,
CPC).
the circumstances of the case justify a sentence of three years or less (s. 3,
CSOA). Community service orders must be distinguished from probation orders,
which are not subject to this limitation (s. 4, POA).

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WEEK 9

Judgment can be pronounced either immediately upon termination of the trial or at a

Every accused person has the right to a fair trial, which

To arrive at its determination, the court should analyse

The court must not convict on the basis of mere inferences

21 of 2016), the appellate court rejected the prosecution’s

Contents of the Judgment

Section 169 of the CPC sets out the contents of a

The court in Peter Mwangi Waithaka v R (Court of Appeal

iii) a summary of the evidence adduced by both

iv) the point or points for

v) the decision made on each

vi) the reasons for the decisions clearly

vii) in the case of

b. punishment imposed for each count for which the

viii) in the case of acquittal (s. 169(3), CPC):

a. state any offence of which he/she is acquitted.

b. an order to set accused at liberty.

The pages of the order should be numbered consecutively.

In the case of a child dealt with in the Children’s Court, the

‘conviction’ and ‘sentence’ must not be used. The court

‘finding of guilt’, and a consequent ‘order’ (s. 189, Children

While the court is obligated to comply with section 169 of

Failure to indicate the specific count that each accused was

The judgment must be written in either English or Kiswahili

The judgment should not contain derogatory language.

Ollack Diego v R (High Court at Nairobi Criminal Appeal No.

1983) the court reiterated the caution given in Okeno v R

32): ‘… a dispassionate approach and clear finding of fact,

Conviction for Offences Other Than Those Charged

5 of 2013). This is true even if the charging papers did not

Mugambi v R (Court of Appeal at Nairobi Criminal Appeal No. 75 of

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