TOPIC 2: ENFORCEMENT OF CRIMINAL LAW

1. Investigation of a crime
2. Prosecution
3. Punishment/Sentencing

1. Investigating Crime
Information in relation to a crime is the process of gathering information, analyzing it, identifying the
relevant parties and organizing this in a form that makes sense.

The purpose of investigation is to determine whether an offence has been committed and if so who has
committed it. It also serves the purpose of gathering evidence that may be presented during trial. In an
investigation a wide range of witnesses, forensic tests, photographs, samples from the crime scene,
victim or suspect, medical reports and other important material that may give information on the
crime being information.

It is the totality of the evidence gathered during investigation that guides the State in deciding
whether there is enough evidence to put a person on trial.
The process of investigation is critical since the burden of proving a criminal case is placed upon the
prosecution and therefore there must be adequate evidence gathered to sustain a conviction.

Role of police in investigations

The Police Department is a unit that is specifically equipped for investigation. Article 243 of the
Constitution establishes the National Police Service (NPS).

The NPS consists of the Kenya Police Service and the Administration Police Service. The Constitution
also establishes the office of the Inspector General who has independent command over the NPS. The
Cabinet Secretary responsible for the police is at liberty to give direction to the I.G with respect to
investigation of a crime.

Article 157(4) of the Constitution gives the Director of Public Prosecutions (DPP) the mandate to
direct the I.G to investigate any information or allegation of criminal conduct. The constitutional
provisions relating to the police service are elaborated under the National Police Service Act.(NPSA)

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Section 28 of the NPSA provides for the establishment of the directorate of Criminal Investigations
Department. The functions of the directorate include the investigations of serous crimes including
homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy,
organized crime etc.

2. Prosecution

The state has an interest in safeguarding the public interest including the interest of the public in
having offender prosecuted. The onus is therefore upon the State to conduct prosecutions. An offence is
deemed to be a wrong against the state who is the complainant in a criminal case. That is the reason
why every criminal case is titled Republic Versus ABC.

It is the State which is the complainant through in ordinary parlance it is the victim of the crime who is
referred to as the ‘complainant’. It follows that all prosecutions are undertaken by the State on
behalf of the public through the Office of the Director of Public Prosecutions.

The powers of the DPP are under article 157 of the Constitution.
The DPP is appointed by the President after approval by the National Assembly.

The State powers of prosecution are vested in the Director of Public Prosecutions (DPP) under Article
157 of the Constitution, the pertinent part of which provides as follows;
“(6) The Director of Public Prosecutions shall exercise State powers
of prosecution and may- institute and undertake criminal
proceedings against any person before any court (other than a
court martial) in respect of any offence alleged to have been
committed.”
The decision to institute criminal proceedings by the DPP is discretionary. Such exercise of power is not
subject to the direction or control by any authority as Article 157(10) stipulates:
“(10) The Director of Public Prosecutions shall not require the
consent of any person or authority for the commencement of
criminal proceedings and in the exercise of his or her powers or
functions, shall not be under the direction or control of any person
or authority.”

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Thus, the office of the DPP is an independent office and the court will in ordinary circumstances be
reluctant to restrain the exercise of its powers. That notwithstanding, the process of the court must not
be misused or otherwise used as an avenue to settle personal scores. The criminal process should not be
used to harass or oppress any person through the institution of criminal proceedings against him or her.

Should the Court be satisfied that the criminal proceedings being challenged before it have been
instituted for purpose other than the genuine enforcement of law and order, then the court ought to
step in and stop such manoeuvres in their tracks and prevent the process of the court being used to
unfairly wield State power over one party to a dispute. This was pronounced in the words of the Court
in the case of Investments & Mortgages Bank Limited (I & M) v Commissioner of Police and
The Director of Criminal Investigations Department & DPP & 2 others, Nairobi HC
Petition No. 104 of 2012 2012 [2013] eKLR where Majanja J remarked as follows:
“27. I agree with the respondents that it is within their mandate
to investigate crimes where there is reasonable basis of commission
of offence and that in performance of their duties, they are
independent institutions. The office of the Director of Public
Prosecutions established under Article 157 is an independent office
which is empowered to conduct its duties free from any influence
or control by any authority. Its actions must be within the law and
in accordance with what the constitutional dictates. One such
dictate is that in the exercise of their powers, it is to “have regard
to the public interest, the interests of the administration of justice
and the need to prevent and avoid abuse of the legal process.”
Article 244 enjoins the National Police Service to amongst oth er
things “comply with constitutional standards of human rights and
fundamental freedoms.”
Under the current Constitution, Article 157 places an obligation on the office of the DPP, in exercising
powers conferred under the Constitution, to prevent and avoid abuse of the legal process. Article 157(11)
states that:
“In exercising the powers conferred by this Article, the Director of Public
Prosecutions shall have regard to the public interest, the interests of the
administration of justice and the need to prevent and avoid abuse of the
legal process.

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The office of the DPP exercises quasi-judicial powers and is subject to the Constitution and the law
which it must abide by.

In the previous constitutional set up, the functions of the DPP were undertaken by the Attorney
General (A.G) In the case of Githunguri v Republic [1985] KLR 91, at page 100, the Court of
Appeal observed, with regard to the Attorney General’s powers to institute proceedings under the
former Constitution:
“The Attorney-General in Kenya by section 26 of the Constitution is
given unfettered discretion to institute and undertake criminal
proceedings against any person “in any case in which he considers it
desirable so to do.”... this discretion should be exercised in a quasi-
judicial way. That is, it should not be exercised arbitrarily, oppressively
or contrary to public policy...”

3. Punishment/Sentencing
Sentence is passed when the accused has been convicted of an offence. The Penal Code in Chapter VI
deals with punishments upon conviction. Section 24 of the Penal Code provides for the punishments
that may be inflicted by a court, These are sentences of death, imprisonment, community service, fine,
forfeiture, payment of compensation, find security to keep peace and be of good behavoiur.

Sentence is the punishment that is meted out on an accused person who has been found guilty and
convicted.