A Handbook for Public Prosecutors

6. Procedure in Trials

Chapter 6 PROCEDURE IN TRIALS Accelerated trials and disposal of cases Section 2 of Act No. 19 of 1992 introduced into the Criminal Procedure Act provisions for the holding of what is called a preliminary hearing. Those provisions are contained in section 192 of the Criminal Procedure Act. It is there provided that where an accused person pleads not guilty, the court must as soon as is convenient hold a preliminary hearing in open court in the presence of the accused or his advocate and the public prosecutor to consider such matters as are not in dispute and which will promote a fair and expeditious trial. In the course of the preliminary hearing, the court must explain to the accused person the nature and purpose of such hearing. At the conclusion of the preliminary hearing, the court must prepare a memorandum of matters agreed or not in dispute. These should be read to the accused person in a language which he understands. The public prosecutor and the accused and/or his advocate will then be made to sign the memorandum and the same will be duly filed in the court record. The purpose of a preliminary hearing is to narrow down matters which are in dispute in which evidence will be required to establish or rebut them. Those recorded as agreed or not in dispute are deemed to have been duly proved. However, at the trial the court may demand that they or some of them be formally proved. A public prosecutor must not go for a preliminary hearing without some preparation. For that reason, he should not ask for a preliminary hearing when investigations have not yet been completed. He must know what ought to be proved in the case and if he has the necessary evidence to prove the commission of the offence charged. Besides, he should try to anticipate what the line of defence might be. It has been held, however, that the omission to hold a preliminary hearing is not fatal to the proceedings if no failure of justice resulted thereby (see Pagi Msemakweli v. Republic, (1997) TLR 331). Summoning witnesses After the preliminary hearing has been conducted, the court will set a date for the hearing of the case. Before the date of the trial the public prosecutor or his investigator will file in court a list of witnesses which the prosecution desires to call at the trial. On receipt of such list the magistrate will cause to be issued under his hand witness summonses for service to be effected on the witnesses by police (see s. 142 CPA). The witness summons contains the name of the court issuing it, the place of trial, the case number, the name of the parties to the case, the name and address of the witness and the date and time of the trial. In some cases a court officer may serve the summonses. Disobedience to court summons and consequences of non-appearance of witnesses If, without sufficient cause or excuse, a witness does not appear in obedience to the summons, the court, on proof of the proper service of the summons a reasonable time before, may issue a warrant to bring such witness before the court at a specified time and place. Or, where the court is satisfied by evidence on oath that such person will not attend until compelled to do so, it may issue a warrant for his arrest and cause him to appear before it (see s. 144 CPA). When the witness has been brought under a warrant of arrest he may be released on his furnishing a surety by recognizance to the satisfaction of the court for his appearance on the hearing date. Should he fail to furnish the security, he may be remanded in custody until the day of hearing of the case in which he is required to give evidence (see s. 145 CPA). In a case where a witness duly summoned to attend does attend but departs without the permission of the court, he may be ordered to pay a fine not exceeding five hundred shillings (see s. 147 CPA). Presence of accused As a general rule, the accused must be present throughout the trial (see Vithlani v. Republic, (1957) EA343). Also, as we have seen earlier, before the trial commences, the charge should be read over to him again. But it would seem that this is not necessary (see Hagaigwa s/o Chacha and Another v. Republic, 62 Part 1...