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ATP 108. Commercial Transactions

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Curriculum

Lesson CM1: Contract Law Essentials for Commercial Practice 2 lessons

Commercial transaction

What did Carlill v Carbolic Smoke Ball Co decide?

Lesson CM2: Sale of Goods, Agency and Commercial Instruments 1 lesson

sales of goods

Lesson CM3: Business Vehicles: Companies and Partnerships 1 lesson

Business Vehicle

Lesson CM4: Insolvency, Security and Commercial Dispute Resolution 1 lesson

Insolvency

Exams problem questions with answers 1 lesson

Problem questions

About this course

Criminal Litigation: key law at a glance

Only 8.4% of candidates passed this unit in April 2026. The commonest failure is vague law. Learn every line on this page.

Point	Rule and authority
THE CONSTITUTION
Rights on arrest	Art 49(1): (a) informed promptly of the reason, the right to silence and the consequences of not keeping silent; (b) to remain silent; (c) to communicate with an advocate; (d) not to be compelled to confess; (e) held apart from convicts
Production in court	Art 49(1)(f): within 24 hours; if the 24 hours end outside court hours or on a non-court day, by the end of the next court day
First appearance	Art 49(1)(g): charged, or told why detention continues, or released
Bail	Art 49(1)(h): release on reasonable conditions unless there are compelling reasons; no remand for an offence punishable by fine only or up to six months (Art 49(2))
Fair trial	Art 50(2): presumed innocent (a); charge in sufficient detail (b); time and facilities (c); advocate (g); state advocate where substantial injustice would result (h); silence (i); advance disclosure of evidence (j); no self-incrimination (l); interpreter (m); appeal (q)
Exclusion of evidence	Art 50(4): evidence obtained in breach of a right excluded if admission would make the trial unfair or be detrimental to the administration of justice
DPP	Art 157(6): institute, take over and discontinue proceedings; discontinuance needs the court’s permission (Art 157(8)); independence and public interest (Art 157(10) and (11))
Disclosure	Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR
CRIMINAL PROCEDURE CODE (CAP 75)
Charge	Statement of the offence and particulars (s.134); joinder of counts (s.135); rules for framing (s.137)
Amendment	Court may amend a defective charge; accused may recall witnesses (s.214); no reversal for a defect unless it caused a failure of justice (s.382)
Withdrawal	With the court’s consent before judgment: discharge before the defence is called, acquittal after (s.87(a))
Plea	s.207; procedure for a guilty plea (Adan v Republic [1973] EA 445)
Plea agreements	ss.137A to 137O
Case to answer	Subordinate court s.210; High Court s.306; prima facie case (Ramanlal Trambaklal Bhatt v R [1957] EA 332)
Defence options	s.211
Insanity	Special finding (s.166)
Custody credit	Period in custody taken into account in sentence (s.333(2))
Appeals	To the High Court (s.347); no appeal on a guilty plea except on the extent or legality of sentence (s.348); within 14 days (s.349); second appeal on law only (s.361)
Revision	High Court revisional powers (ss.362 to 364)
EVIDENCE ACT (CAP 80) AND CASES
Confession	Defined (s.25); inadmissible unless made in court before a judge or magistrate, or before a police officer (not the investigating officer) not below the rank of Inspector and a third party of the person’s choice (s.25A); excluded if caused by inducement, threat or promise (s.26); Evidence (Out of Court Confessions) Rules, 2009
Co-accused	Confession implicating a co-accused may be taken into consideration (s.32)
Burden	Woolmington v DPP [1935] AC 462; s.107; burden on accused for exceptions (s.111)
Identification	R v Turnbull [1976] 3 All ER 549; Roria v Republic [1967] EA 583; Maitanyi v Republic [1986] KLR 198; Wamunga v Republic [1989] KLR 424
Circumstantial evidence	Only reasonable inference (R v Kipkering arap Koske (1949) 16 EACA 135; Simoni Musoke v R [1958] EA 715)
Recent possession	Isaac Ng’ang’a Kahiga v Republic [2006] eKLR
Sexual offences	Conviction on the victim’s evidence alone if reasons recorded (s.124 proviso)
Children	Voir dire before unsworn evidence (Oaths and Statutory Declarations Act, s.19)
Alibi	No burden on the accused (Ssentale v Uganda [1968] EA 365); raise it early (Karanja v Republic [1983] KLR 501)
PENAL CODE (CAP 63) AND SENTENCE
General defences	Bona fide claim of right (s.8); mistake of fact (s.10); insanity (s.12); intoxication (s.13); defence of person or property (s.17)
Offences	Theft (s.268); stealing (s.275); stealing by servant (s.281); robbery with violence (s.296(2)); handling stolen goods (s.322)
Muruatetu	Mandatory death sentence for murder unconstitutional (Francis Karioko Muruatetu v Republic [2017] eKLR); confined to murder under ss.203 and 204 (Muruatetu directions [2021] KESC 31 (KLR))
Minimum sentences	Sexual Offences Act minimum sentences stand (Republic v Joshua Gichuki Mwangi, Supreme Court Petition E018 of 2023, 12 July 2024)
Guidelines	Judiciary Sentencing Policy Guidelines; Bail and Bond Policy Guidelines (2015)
Victims	Victim Protection Act, 2014

UNIT 4 OF 9 · CRIMINAL LITIGATION

Lesson CR1: The Constitutional Framework, Arrest, Charge and Bail

Self-paced revision lesson · about 60 minutes

INTRODUCTION

Every criminal case in Kenya begins in the Constitution. Articles 49, 50 and 51 give arrested persons, accused persons and detainees rights that shape what the police, the prosecution and the court may do at each step. A good revision answer starts with the right, then the statute that gives it effect, then the remedy when it is breached.

BY THE END OF THIS LESSON YOU WILL BE ABLE TO

· Explain the rights of an arrested person and of an accused person under Articles 49 and 50

· Describe how a criminal case is commenced, including the role of the Director of Public Prosecutions

· Apply the constitutional presumption in favour of bail and the grounds for refusing it

· Identify the remedies available when arrest, detention or charging is unlawful

· Structure a short bail application

1. Rights on arrest and in custody

Article 49 gives an arrested person the right to be informed promptly, in a language the person understands, of the reason for the arrest, the right to remain silent and the consequences of not remaining silent. The person must be allowed to communicate with an advocate and other persons whose assistance is necessary (Article 49(1)(c)), must not be compelled to make any confession or admission that could be used in evidence (Article 49(1)(d)), and must be held separately from persons serving a sentence (Article 49(1)(e)).

Under Article 49(1)(f), an arrested person must be brought before a court as soon as reasonably possible, but not later than twenty-four hours after the arrest, or, if the twenty-four hours end outside ordinary court hours or on a day that is not an ordinary court day, the end of the next court day. At the first appearance the person must be charged, or told the reason for continued detention, or released (Article 49(1)(g)). The court then decides whether the person is to be released on bail or bond or detained, and it must give reasons for any detention. A person may not be remanded in custody for an offence punishable only by a fine or by imprisonment for not more than six months (Article 49(2)).

Informed of the reason for arrest and of the right to silence
Access to an advocate and to family
No compulsion to confess
Production before a court within the constitutional period
Presumption of release on bail or bond pending trial

REMEMBER THE ORDER

State the right, name the Article, then give the remedy. Examiners reward answers that finish with what the court can do when the right is breached.

2. How a case is commenced

Most prosecutions begin with a complaint to the police, an investigation and a charge sheet. Under Article 157(6) the Director of Public Prosecutions may institute criminal proceedings, take over proceedings started by another person or authority, and discontinue them before judgment, though discontinuance needs the permission of the court (Article 157(8)). The DPP acts independently (Article 157(10)), having regard to the public interest, the interests of the administration of justice and the need to prevent abuse of legal process (Article 157(11)). Under section 87(a) of the Criminal Procedure Code, a prosecutor may, with the consent of the court, withdraw a charge before judgment: withdrawal before the accused is called on to make a defence leads to a discharge, which does not bar a fresh charge, and withdrawal afterwards leads to an acquittal.

A charge must disclose an offence known to law and give the accused reasonable information about it. Section 134 of the Criminal Procedure Code requires every charge to contain a statement of the specific offence and such particulars as are necessary for giving reasonable information as to the nature of the offence, and section 137 sets out the rules for framing it, including the section of the law creating the offence. Article 50(2)(b) gives the accused the right to be informed of the charge with sufficient detail to answer it. A defective charge may be amended under section 214, and under section 382 a conviction is not reversed for a defect in the charge unless it occasioned a failure of justice. A charge that discloses no offence cannot be saved.

3. Bail and bond

Article 49(1)(h) gives an arrested person the right to be released on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released. The presumption is therefore in favour of release. The prosecution carries the burden of showing compelling reasons, and the court must decide on facts rather than on suspicion.

The usual compelling reasons are the likelihood that the accused will abscond, interfere with witnesses or evidence, or commit further offences, and in rare cases a risk to the accused’s own safety. The Bail and Bond Policy Guidelines issued by the Judiciary in 2015 explain how courts should consider these factors and the conditions that may be attached, such as a surety, a cash bail or reporting to a police station. Section 123 of the Criminal Procedure Code governs the grant of bail, and it must now be read with Article 49(1)(h), which applies to every offence, including murder.

Gravity of the offence is relevant but is not by itself a compelling reason
Fixed ties to the community support release
Conditions must be proportionate to the risk shown
A bail ruling can be reviewed if circumstances change

4. Unlawful arrest and constitutional remedies

An arrest without reasonable suspicion, or a detention beyond the constitutional period, is unlawful. The remedies include an application for habeas corpus, a petition under Article 22 to enforce the Bill of Rights, damages for wrongful arrest or malicious prosecution, and an application to have evidence excluded under Article 50(4) where its admission would render the trial unfair or be detrimental to the administration of justice.

An unlawful arrest does not automatically end the prosecution. The court looks at the effect of the breach on the fairness of the trial, and at the remedy that fits the breach. Say this in an answer, because many candidates wrongly state that any breach leads to an acquittal.

EXAM POINT

Remedies depend on the effect of the breach. An unlawful arrest or detention gives a claim for damages under Article 23, and evidence obtained through the breach may be excluded under Article 50(4), but the trial itself goes on unless the breach makes a fair trial impossible.

Worked example: A bail application on a charge of stealing by servant

THE SCENARIO

Achieng is arrested on Monday and charged on Tuesday with stealing by servant. She has a fixed home, a job and no previous record. The prosecution opposes bail on the ground that she may interfere with the employer’s records.

THINKING IT THROUGH

· Start with Article 49(1)(h): release is the rule and detention needs compelling reasons.

· Ask what evidence supports the claim of interference. The records are held by the employer, so her access to them has ended with her suspension, and the prosecution must show a real risk.

· Offer conditions that meet the concern: no contact with named witnesses, no entry to the employer’s premises, a surety and reporting to the police station.

· Close by asking for reasonable terms, because excessive bail amounts to a denial of bail.

Common mistakes to avoid

Treating gravity of the charge as automatic proof that bail should be refused
Misstating the period in Article 49(1)(f): 24 hours, or the end of the next court day if the 24 hours end outside court hours or on a non-court day
Confusing an amendment of a defective charge with the substitution of a different offence
Claiming every procedural breach leads to an acquittal
Giving no reasons or facts in a bail application

Bail application skeleton

The charge and the stage of the proceedings
The constitutional presumption in favour of release
Facts that show the accused will attend court
Response to each ground raised by the prosecution
Proposed conditions and surety
Request for a ruling with reasons

KEY TAKEAWAYS

· Release is the starting point under Article 49(1)(h); detention needs compelling reasons

· The prosecution must prove compelling reasons by facts

· The DPP prosecutes independently and in the public interest

· A charge must disclose an offence and give reasonable information

· Remedies for breach depend on the effect on the fairness of the trial