Embakasi East MP Babu Owino was arrested on the 17th of January 2020 and charged on the 20th with attempted murder after he allegedly shot Felix Odhiambo alias Dj Evolve, at B-Club in Kilimani area, Nairobi. He was also charged with behaving disorderly while carrying a firearm.
The MP was later released on a Kshs 10 million cash bail on the 27th to be paid in four instalments of 2.5 million each over the next 3 months, part of which would go towards paying the DJ’s hospital bill. He then moved to the High Court seeking a review of his Sh10 million bail terms, claiming that the amount is too high [the court has since reviewed these terms]. This has come with a lot of backlash from the general public and even the Director of Public Prosecution, Noordin Haji and former Chief Justice Willy Mutunga over the bail terms.
But has the case been handled within the confines of the law?
Criminal cases, especially those involving high profile individuals, often cause a public uproar with members of the public demanding for justice to be served immediately. A criminal case develops in a series of stages and navigating it can be a daunting task for any person who has gotten into trouble with the law. One of the most frustrating aspects is the lack of information on what follows after one is arrested.
The Kenyan constitution clearly sets out the rights of persons from arrest through custody, trial and beyond as stipulated in Article 49.
This is a brief guide on the life span of a criminal case.
Arrest
Every criminal case starts with an arrest. An arrested person must be presented before the court as soon as reasonably possible. But not later than 24 hours after the arrest, unless the arrest has been made outside ordinary court hours or on a weekend.
Booking Process
After you are arrested you are then processed into police custody. Your name, address and reason for arrest are recorded in the occurrence book. Fingerprints and photographs may also be taken for further investigation and then you are placed in a cell. The arrested person is assigned a unique alphanumerical identification marker. The marker is commonly referred to as a case number. If the suspect committed a minor offence, the police may issue a citation to the suspect with instructions to appear in court at a later date.
Bail/Bond
Bail/Bond is a way that one may be released from police custody before appearing before the court. If granted, the suspect may pay the bail amount in exchange for a release but as a contingent on the suspect’s promise to appear at all scheduled court proceedings. Bail may be granted to a suspect immediately after booking or at a later bail review hearing.
Arraignment
All crimes are heard by the magistrate’s court in the first instance.
Some exceptions are made for the High Court by law, namely murder, treason, genocide, war crimes, and crimes against humanity.
The suspect makes his first court appearance at the arraignment. During the arraignment, the judge reads the charges filed against the defendant in the complaint and the defendant chooses to plead “guilty,” “not guilty” or “no contest” to those charges. The judge will also review the defendant’s bail and set dates for future proceedings.
Plea Bargain
A plea bargain, sometimes called a negotiated plea, is an agreement between the prosecutor and the defendant, most often brokered through the defendant’s attorney. It is during this stage that a defendant agrees to accept certain consequences resulting from the charges against them in exchange for some benefit.
Preliminary Hearings/Grand Jury Proceedings
Both preliminary hearings and grand juries are used to establish the existence of probable cause. If there is no finding of probable cause, a defendant will not be forced to stand trial.
A preliminary hearing is an adversarial proceeding in which counsel questions witnesses and both parties makes arguments. The judge then makes the ultimate finding of probable cause. This is what happens in Kenya.
The grand jury, on the other hand, hears only from the prosecutor. The jury may call their own witnesses and request that further investigations be performed. It then decides whether sufficient evidence has been presented to indict the defendant.
Note that the post-independence Kenya criminal justice system does not provide for a jury trial. It was removed with the end of colonial rule.
Pre-Trial Motions
Both the prosecution and the defence, in order to resolve final issues and establish what evidence and testimony will be admissible at trial, bring pre-trial motions.
Trial
At trial, the judge will either find the defendant guilty or not guilty. The prosecution bears the burden of proof in a criminal trial. Thus, the prosecutor must prove beyond a reasonable doubt that the defendant committed the crimes charged.
A magistrate, a judge of the High Court or a panel of judges makes the final determination of guilt or innocence after listening to opening and closing statements, examination and cross-examination of witnesses. If a judge finds the defendant guilty, the court will sentence the defendant.
Sentencing
During the sentencing phase of a criminal case, the court determines the appropriate punishment for the convicted defendant by putting into consideration a number of factors such as nature and severity of the crime, the defendant’s criminal history, the defendant’s personal circumstances and the degree of remorse felt by the defendant.
Appeal
An individual convicted of a crime may ask that a higher court review his or her case. If that court finds an error in the case or the sentence imposed, the court may reverse the conviction or find that the case should be re-tried.
So how long will it take for a criminal case to be resolved?
Most criminal cases terminate when a criminal defendant accepts a plea bargain offered by the prosecution. In a plea bargain, the defendant chooses to plead guilty before trial to the charged offences or to lesser charges in exchange for a more lenient sentence or the dismissal of related charges.
However, many variables can affect the duration of time from arrest to the resolution of a criminal case. Any number of parties can cause delay or in fact speed up the time needed to resolve a case. Although each case is unique, the severity of the crime, the criminal history of the defendant, the availability of witnesses, and the time needed for case preparation by both the prosecutor and defence attorney can all affect the duration of time a criminal case remains unresolved.
Review
Babu Owino was arrested within 24 hours of committing the crime he was accused of. He was then arraigned at Milimani courts to which he pled ‘not guilty’. This was then followed by his release on bail. He then moved to court with two applications. One, to seek a review of his bail terms issued at trial and two, to stop the DPP from making comments over the decision of the trial magistrate to release him on such bail terms, a request that has since been declined by the court.
The progression of the case up to now has been within the MP’s constitutional rights as an arrested person.
Add comment