The Criminal Procedure Code (Amendment) Bill, 2026

SPECIALISSUE

Kenya GazetteSupplementNo.62(NationalAssembly BillsNo.11)

REPUBLICOFKENYA

KENYA GAZETTE SUPPLEMENT

NATIONAL ASSEMBLY BILLS,2026

NAIROBI,13thMarch,2026

CONTENT

| Bill for Introductioninto theNational Assembly- | Bill for Introductioninto theNational Assembly- | |---------------------------------------------------|---------------------------------------------------| | | PAGE | | The Criminal Procedure Code(Amendment) Bill,2026 | 289 |

PRINTEDANDPUBLISHEDBYTHEGOVERNMENTPRINTER,NAIROBI

THE CRIMINALPROCEDURE CODE (AMENDMENT)BILL,2026

A Bill for

• AN ACT of Parliament to amend the Criminal Procedure Code

ENACTEDbytheParliamentofKenya asfollows-

• 1.This Act may be cited as the Criminal Procedure Short title. Code(Amendment) Act,2026.
• 2.Section2 of the Criminal Procedure Code (hereinafter referred toas the"principalAct'),is amended-
• (a) in the definition of"Registrar of the High Court" by deleting the wordsincludes a Deputy Registrar of theHigh Court and a district registrar of the High Courtand substituting therefor the words "means the Registrar of the High Court appointed pursuant to section 18 of the High Court
• (Organization and Administration) Act";
• (b)in the definition of "summary trial,by deleting
• the words "subordinate court and substituting therefor the words"magistrate's court";and
• (c)by inserting the following new definitions in
• proper alphabetical sequence-

"intersexperson" means a person with a congenital condition in which the biological sex characteristics cannot be exclusively categorized in the common binaryof female ormaledue to inherentand mixed anatomical,hormonal,gonadal orchromosomal patterns,which could be apparent prior to,at birth,in childhood, puberty or adulthood;

"person with mental illness"has the meaning assigned toitundersection2of theMental HealthAct;

• 3.Section 4 of the principal Act is amended by
• deleting the words "subordinate court"and substituting therefor thewords"magistrate's court"

Amendment of

section 2of Cap. 75.

Cap.248.

Amendment of

section4ofCap 75.

• 4.Section 5 of the principal Act is amended in
• subsection (2),by deleting the words "subordinate court" and substituting therefor the words"magistrate's court"
• 5.Section 7of the principal Act is amended-
• (a)insubsection(l),by deleting the words "subordinate court ofthe first classand substituting therefor the words "magistrates
• court";
• (b) by deleting subsection (2);
• (c)by deleting subsection(3).
• 6.Section 14 of the principal Act is amended in
• subsection(3) by deleting the words"subordinate court" and substituting therefor the words"magistrate's court"
• 7.Section 15 of theprincipal Act is amended-
• (a)in subsection (I) by deleting the words"corporal punishment";
• (b)by inserting thefollowingnew subsection immediatelyafter subsection(1)-
• "(lA) The operational period under subsection (1) shall notexceed the term of the sentence imposed."
• 8.The principal Act is amended by inserting the following new section immediately after section 27-

Mode of searching an intersex person.

• 27A.Whenever it isnecessary to causean intersex person to be searched,the search shall wherereasonablypracticablebe conducted bya person ofthe sex which theintersex person shall prefer with strict toregard to decency and in such manner as to protect the dignity of the intersex person.
• 9.Section 36 of the principal Act is amended by
• deleting the words"subordinate court"wherever they appear and substituting therefor the words "magistrate court".
• 43.
• 10.The principal Act is amended by repealing section

Amendment of section5of Cap. 75.

Amendment of section7of Cap. 75.

Amendment of section 14of Cap. 75

Amendmentof section 15of Cap.

75.

Insertion ofnew

section27Ain Cap.75.

Amendment of section36 of Cap. 75:

Repeal of section

43of Cap.75.

| 11.The principal Act is amended by repealing section | Repeal of section 44ofCap.75. | |--------------------------------------------------------|---------------------------------| | 12.The principal Act is amended by repealing section | Repeal of section 45of Cap.75. | | 13.The principal Act is amended by repealing section | Repeal of section 46of Cap.75. | | 14.The principal Act is amended by repealing section | Repeal of section 47of Cap.75. | | 15.The principal Act is amended by repealing section | Repeal of section 48ofCap.75. | | 16.The principal Act is amended by repealing section | Repeal of section 49of Cap.75. | | 17.The principal Act is amended by repealing section | Repeal of section 50of Cap.75. | | 18.Theprincipal Actis amended byrepealing section | Repealofscction 51of Cap.75. | | 19.Theprincipal Act is amended by repealing section | Repeal of section 52of Cap.75. | | 20.Theprincipal Act is amended byrepealing section | Repeal of section 53of Cap.75. | | 21.The principal Act is amended by repealing section | Repeal of section 54ofCap.75. | | 22.The principal Act is amended by repealing section | Repeal of section 55of Cap.75. | | 23.The principal Act is amended by repealing section | Repeal of section 56ofCap.75. | | 24.The principal Act is amended by repealing section | Repeal of section 57of Cap.75. | | 25.The principal Act is amended by repealing section | Repeal of section 58of Cap.75. | | 26.The principal Act is amended by repealing section | Repeal of section 59ofCap.75. | | 27.The principal Act is amended by repealing section | Repeal of section 60of Cap.75. | | 28.The principal Act is amended by repealing section | Repeal of section 61of Cap.75. |

• 29.The principal Act is amended by repealing section 61A.
• 30.Section 67 of the principal Act is amended by
• deleting the wordsprovince or district"wherever they appear and substituting therefor the words"county or subcounty".
• 31.Section 68 of the principal Act is amended in
• subsection(l) bydeletingtheword "district"and substituting therefor the word"county"
• 32.Section 77 of the principal Act is amended in
• subsection (2)by deleting the words "sections 140,141, 145,166 and 167of the Penal Code(Cap.63)"and substituting therefore the words"Sexual Offences Act""
• 33.The principal Act is amended by deleting section 79 andsubstituting therefor thefollowingnew section-

Transferofcases betveen magistrates.

79.A magistrate may transfera case of which the magistrate has taken cognizance to any othermagistrate with competent jurisdiction to try thatcasewithin thelocal limits of the magistrate's jurisdiction,whether evidence has been taken in thatcase or not.

• 34.Section 80 of the principal Act is amended by court of the first classand substituting therefor the words "another magistrate's court with competent jurisdiction"
• 35.Section 82of the principal Act is amended-
• (a)in subsection (l) by deleting the words"may enter a nolle prosequi,either by stating in court or by informing the court in writing that the Republic intends that the proceedings shall not continue" and substituting therefor the wordswith the permission of the court may enter a nolle
• prosequi';and
• (b) in subsection (2).by inserting the words "with the permission of the court"immediately after the
• words"nolle prosequi is"

Repeal of section 61A of Cap.75.

Amendment of section 67 of Cap.

75.

Amendment of

section68of Cap. 75.

Amendmentof section 77 of Cap. 75.

Repeal and replacement of

section 79 of Cap. 75.

Amendment of section80ofCap. 75.

Amendment of

section 82 of Cap. 75.

• 36.Section 87 of the principal Act is amended by deleting the words"subordinate court"and substituting
• therefor the words"magistrate's court".
• 37.The principal Act is amended by repealing section 89.
• 38.The principal Act is amended by repealing section 90.
• 39.Section 105 of the principal Actis amended in
• subsection(l)by deleting the words"empowered to hold a subordinate court of the first class and substituting therefor the words"with competent jurisdiction".
• 40.Section 120 of the principal Act is amended by
• inserting the following new subsection immediately after subsection(4)-
• "(5) If that person is an intersex person,the provisions of sections27A shall apply."
• 41.Section 123 of the principal Act is amended in
• subsection (3),by deleting the words "subordinate court" and substituting therefor the words"magistrate's court"
• 42.Section 131 of the principal Act is amended in
• subsection(3),by deleting the word"movable"
• 43.Section 137B of the principal Act is amended by deleting the words"subordinate court"and substituting therefor the words"magistrate's court".
• 44.Section 143 of the principal Act is amended in
• subsection (l) by deleting the words "subordinate court" and substituting therefor the words"magistrate's court".
• 45.Section 149 of the principal Act is amended in subsection (4) by deleting the words "subordinate court" and substituting therefor the words"magistrate's court".
• 46.Section 154 of the principal Actis amended in subsection () by deleting the words "magistrate empowered toholda subordinatecourtofthefirstclass and substituting therefor the words"magistrate's court with competentjurisdiction".
• 47.Section 156 of the principal Act is amended by
• deleting the words"other than a magistrate empowered to

Amendment of section87of Cap. 75.

Repeal of section 89of Cap.75.

Repeal of section 90of Cap.75.

Amendment of

section 105of Cap.75.

Amendment of section 120of Cap.75.

Amendment of section 123of Cap.75.

Amendmentof section 131of Cap.75.

Amendmentof section 137Bof Cap.75.

Amendment of section 143of

Cap.75.

Amendmentof section 149of Cap.75.

Amendmentof section 154of Cap.75.

Amendment of section156of Cap.75.

hold a subordinate court of the first classand substituting therefor the words"with competentjurisdiction".

• 48.Section 157 of the principal Act is amended in subsection (1)bydeletingthe words "magistrate empowered to hold a subordinate court of the firstclass(as the case may be)and substituting therefor the words "magistrate's court with competent jurisdiction as the case may be".
• 49.The principal Act is amended by repealing section
• 162 and substituting therefor thefollowingnewsection-

Fitness to stand trial.

• 162.(1) This section shall apply where, in the course of criminal proceedings against an accused person,a question arises,at the instance of the defence,the prosecution,the court or any other person,as to whether or not the accused person is fit to be tried.
• (2)An accused person shall be deemed tobe unfit to be tried if such person is unable,by reason of mental illness,to understand the nature or course of the proceedings so as to-
• (a)plead to the charge;
• (b) instruct a legal representative;
• (c)make a proper defence;or
• (d)understand the evidence.
• (3)Where an accused person is before court being tried or is to be tried,any question as to whether or not such person is fit to be tried shall be determined by the court.
• (4) For the purposes of determining whether or not to exercise a power under subsection(3),the court-
• (a) for that purpose,may commit an facility for a period ofnotmore
• accused person to a mental health than fourteen days;and

Amendment of section157of Cap.75.

Repeal and replacementof section 162of Cap.75.

• (b) shall direct that the accused person concernedbe examined bya qualified mental health practitioner in the mental health facility.
• (5)Within theperiod of committal authorised by the court under subsection (4), the medical officer in charge of the mental health facility shall report to the court on whether,in his or her opinion,the accused person committed under subsection(4)(a),is a person with mental illness and is in need of inpatient care or outpatient care or treatmentinamental health facility.
• (6) Where the court determines that an accused person is unfit to be tried that court shall adjourn the proceedings until further order,and may-
• (a) if the court is satisfied, having considered the evidence of a medical officer adducedpursuant to subsection (5) andany other evidence before it,that the accused person is a person with mental illnessand is in need ofinpatient treatment ina mental health facility, commit the accused person to a specified mental health facility;
• (b)if the court is satisfied,having consideredtheevidence ofa medical officer adducedpursuant to subsection(5)and any other evidence before it,that the accused person is a person with mental illnessand is in need of outpatient care or treatment in a mental health facility,make such order as the courtmay deem fitinrelation to the accused person for outpatient care or treatment in a mental health facility:

Provided that the court may release the accused person on bail on sufficient security being given that the accused person will be properly taken care ofand prevented from doing injury to themselves or any other person,and for securing attendance before court or such other officer as the court may appoint in that behalf;or

• (c)where the court determines that the accused person is fit to be tried,the proceedings shall continue.
• (7)Where,on the trial of an accused person,a question arises as to whether or not the person is fit to be tried and the court considers it is expedient and in the interests ofthe accused so to do,the court may defer consideration of the question until any time before opening the case for the defence and if,before the question falls to be determined, the courtreturnsaverdictin favour of the accused person or finds the accused person not guilty,as the case may be,on the count oreach of the counts on which the accused is being tried,the question shall not be determined and theperson shallbe acquitted.
• (8)Upon a determination having been made by the court that an accused person is unfit to be tried, the court may, on application to it in that behalf,allow evidence to be adduced before it asto whether or not the accused person did the actalleged and if the court is satisfied that there isa reasonabledoubt as towhether the accused did the act alleged,the court shall
• order the accused to be discharged.
• (9)Where evidence is adduced before the court under subsection (8) but the court decidesnotto order the accused person tobe

discharged,no person shall publish a report

of the evidence or decision until such time, ifany,as-

• (a) the trial of the accused person concludes;or
• (b)a decision is made not to proceed with the trial of the person or the trial is otherwise not proceeded with.
• (10) A person who contravenes the provisions of subsection (9) shall be guilty of an offence and shall be liable,on conviction,to a fine not exceeding one hundred thousand shillings 10 to imprisonment for a term not exceeding twelvemonthsortoboth.
• 50.The principal Act is amended by repealing section 166andsubstitutingtherefor thefollowingnewsection-

Special finding of not guilty.

• 166.(l) Where an accused person is tried for an offence and the court finds that the accusedperson committed the offence or made the omission alleged against him or her and,having heard evidence relating to the mental condition of the accused person, finds that-
• (a) the accused person was a person with mental illness atthe time;and
• (b) the mental illness was such that
• the accused person oughtnot tobe held responsible for the actor omission alleged by reason ofthe fact that the accused-
• (i) did not know the nature or
• consequences of the act or omission;
• (ii) did not know that what the accused person was doingwas
• wrong:or

replacementof section 166of

Repealand Cap.75.

• (ii)was unable to refrain from committing the act or omission,

the court shall return a special finding to the effect that the accused person is not

guilty by reason ofinability tounderstand the nature or consequences of his or her actsor omissions.

• (2)The court shall commit a person to aspecified mental health facility for a period ofnot more than fourteen days and direct that during such period the person be examined by the medical officer in charge of the mental health facility.
• (3) The court may,on application, after consultation with the medical officer in charge of the mental health facility, extend theperiod of committal under subsection (2),but the period or the aggregate of the periods for which an accusedperson maybe committed shall not exceed six months.
• (4)Within the period of committal authorised by the court under subsection (2),the medical officer in charge of the mental health facility shall report to the court on whether,in his or her opinion,the accused person committed under subsection (2) has mental illness and is in need of inpatient care or treatment in a mental health facility.
• (5)If the court,having considered any report submitted toit andsuch other evidence as may be adduced before it,is satisfied that an accused person found not guiltybyreason ofinability to understand the nature or consequences of his or her acts or omissions pursuant to subsection (1) has mental illness and is in need of inpatient care or treatment in a mental

health facility,the court shall commit that person to a specified mental healthfacility.

• 51.The principal Act is amended by repealing section 167.
• 52.Section 171 of the principal Act is amended-
• (a) in subsection (l),by deleting the words "of a subordinatecourtofthefirstorsecond class;and
• (b)by deleting subsection(2)and substituting therefor the following new subsection-
• (2) A judge of the High Court or a magistrate who acquits or discharges a person accused of an offence may, if theprosecution for the offence was originally instituted on a summons or warrant issued by a court on the application ofa privateprosecutor,order the private prosecutor to pay to the accused such reasonable costs as
• the judge or magistrate may deemfit:

Provided that-

• (i) the costs shall not exceed twenty thousand shillings in the High Court or ten thousand shillings in the case of an acquittal or discharge by a magistrate's court;and
• (ii) no such order shall be made if the judge or
• magistrate considers that the private prosecutor had reasonable grounds for making his complaint.
• 53.Section 197 of the principal Act is amended subsection (1)(a) by inserting the word "or a computer" immediatelyafter theword"typewriter".
• 54.Section 198 of the principal Act is amended by deleting subsection (4) and substituting therefor the following new subsection-
• "(4) The language of all courts shall be Kiswahili,English and Kenya Sign Language."
• 55.Section 202 of the principal Act is amended by deleting the words "subordinate court"and substituting therefor the words"magistrate's court"

Repeal of section

167 of Cap.75.

Amendment of section 171of Cap.75.

Amendment of section 197of Cap.75,

Amendment of

section198of Cap.75.

Amendment of section202of Cap.75.

• 56.Section 205 of the principal Act is amended by
• deleting subsection (3).
• 57.Section 219 of theprincipal Act is amended by deleting the words "subordinate court"and substituting
• therefor the words"magistrate's court"
• 58.Section 221 of theprincipal Act is amended-
• (a)by deleting subsection(l) and substituting therefor the followingnew subsection-
• (1) Where a person of not less than eighteen yearsof ageisconvicted byamagistrate's courtof an offence which ispunishableby either that court oranother magistrate court with competent jurisdiction,and the court convicting him,after obtaining informationas tohisorhercharacterand antecedents,is of the opinion that they are such that greater punishment should be inflicted than it has power to inflict, that court may,instead of dealingwith him or her itself,commit him or her in custody to the other magistrate's court with competent jurisdiction for sentence."
• (b)in subsection (2),by deleting the words "subordinate court of thefirst class" and substituting thereforthewords s"magistrate's court";and
• (3),by deleting the words "subordinate courtofthefirstclass" and substituting therefor thewords s"magistrate's
• (c)insubsection court".
• 59.Section 275(6)(b) of the principal Act is amended by deleting the words"(provided that the assessors,if any,
• havebeen discharged)".
• 60.Section 277 of theprincipal Act is amended-
• (a) in paragraph (c)by deleting the words "and the
• assessors":and
• (b)in the proviso by deleting the words "and assessors";

Amendmentof

section275(6)(b) of Cap.75

Amendment of

scction277(c)of Cap.75.

Amendment of section205of Cap.75:

Amendment of section219of Cap.75.

Amendment of

section 221of Cap.75.

• 61.The principal Act is amended by repealing section 280 and substituting therefor the followingnew section-

Refusal to plead.

• 280.If an accused person being arraigned upon an information stands mute of malice,or neither will nor by reason of infirmity can, answer directly to the information,the court may enter a plea of"not guilty"on behalf of the accused person,and plea so entered shall have the same force and effect asif the accused person had actuallypleaded it;or else the court shall thereupon proceed to try whether the accused person be of sound or unsound mind, and,if he is found of sound mind,shall proceed with the trial,and if he is found of unsound mind,and consequently incapable of making his defence,shall proceed as provided under section 166.
• 62.Section 334 of the principal Act is amended in subsection (3) by deleting the words "magistrate holding court of the first or second classand substituting therefor the words"magistrate's court with competent jurisdiction"
• 63.Section 347 of the principal Act is amended in
• subsection (l)(a)by deleting the words"subordinate court of the first or second classand substituting therefor the words"magistrate's court".
• 64.Section 348 of the principal Act is amended by deleting the words "subordinate court"and substituting therefor the words"magistrate's court".
• 65.Section 348A of the principal Act is amended by deleting the words"subordinate courtwherever they appear and substituting therefor the words"magistrate's court".
• 66.Section 350 of the principal Act is amended in
• subsection (2)by deleting the words "subordinate court" wherever they appear and substituting therefor the words "magistrate'scourt".
• 67.Section354(3)of theprincipal Actis amended-

Repeal and section280of

replacement of Cap.75.

Amendment of section334of Cap.75.

Amendment of

section347of Cap.75.

Amendment of section348of Cap.75.

Amendment of

section348Aof Cap.75.

Amendment of section350of Cap.75.

Amendment of section354of

Cap.75.

• (a)inparagraph thewords "subordinate court"wherever they appear and substituting therefor thewords s"magistrate's
• (bb),bydeleting court";and
• (b)inparagraph (c),by deleting thewords "subordinate court"wherever they appear and substituting therefor the words "magistrate's court".
• 68.Section356of the principal Act is amended-
• (a)in subsection (1),by deleting the words "subordinate court"wherever they appear and substituting therefor thewords "magistrate's court";and
• (b) in subsection (2),bydeletingthewords "subordinate court"and substituting therefor the words"magistrate's court"
• 69.Section 357of theprincipal Act is amended in subsection (l) by deleting the words"subordinate court" wherever they appear and substituting therefor the words "magistrate's court".
• 70.Section358of theprincipal Act is amended-
• (a) in subsection (l),by deleting thewords "subordinate court"wherever they appear and substituting therefor the words s"magistrate's court"';
• (b)in subsection (2),bydeletingthewords "subordinate court"and substituting therefor the words"magistrate's court";and
• (c)in subsection (4),by deleting the words "subordinate court"and substituting therefor the words"magistrate's court".
• 71.Section 359 of the principal Act is amended in
• subsection (1)by deleting the words"subordinate courts" and substituting therefor the words"magistrate'scourts"
• 72.Section 360 of the principal Act is amended by deleting the words "subordinate court"and substituting therefor the words"magistrate's court"

Amendment of section356of Cap.75.

Amendment of

section357of Cap.75.

Amendmentof section358of Cap.75.

Amendment of section359of Cap.75.

Amendmentof scction360of Cap.75.

73.Section361 of the principal Act is amended-

• (a)in subsection(l),bydeleting thewords ""subordinate courtwherever they appear and substituting therefor the words "magistrate's court";
• (b) insubsection (2),bydeleting thewords "subordinate court"wherever they appear and substituting therefor thewords"magistrate's court";
• (c)in subsection (3),bydeleting the words
• "subordinate court"and substituting therefor the words"magistrate's court";and
• (d) insubsection (4),bydeleting the words substituting therefor the words s"magistrate's
• "subordinate courtwherever they appear and court".
• 74.Section 362 of the principal Act is amended by deleting the words "subordinate court"wherever they appear and substituting therefor the wordsmagistrate's court".
• 75.Section363 of theprincipal Act isamended-
• (a)by deleting subsection (l)and substituting therefor thefollowing new subsection-
• (b)by deleting subsection (2) and substituting therefor the followingnew subsection-
• (2)If a presiding magistrate or head of the court station acting under subsection (l) considers that a finding. sentence or order of the magistrate's court is illegal or improper,or that the proceedings were irregular,it shall forward the record with its remarks thereon to the High Court.

76.Section364of the principal Act is amended-—

• (a) in subsection (1),by deleting the words "subordinate court"wherever they appear and substituting therefor the words "magistrate's court";

Amendment of section361of Cap.75.

Amendmentof section362of Cap.75.

Amendment of section363of Cap.75.

Amendment of section364of Cap.75.

• (b) in subsection (2),by deleting the words
• "subordinate courtand substituting therefor the words"magistrate's court";and
• (c)insubsection(3),by deleting the words "subordinate court"and substituting therefor the words"magistrate's court"
• 77.Section 366of the principal Act is amended by
• deleting the words "subordinate court"and substituting therefor the words"magistrate's court".
• 78.Section 385 of the principal Actis amended by
• deleting the words"magistrate empowered to hold a subordinatecourt of the first or second class" and substituting therefor the words"magistrate's court".
• 79.Section386of theprincipal Actis amended-
• (a)in subsection (1),by deleting the word "Minister" and substituting therefor the words "Cabinet Secretary";and
• (b) in subsection (2),by deleting the word "Minister" wherever it appears and substituting therefor the words"Cabinet Secretary"
• 80.The principal Act is amended by inserting the
• followingnewsectionsimmediately aftersection389A-

Disposal offorfeited 389B.Where,on the order of a court, goods. goodsandotherformsofpropertyaretobe forfeited to the State,such goods and Cap.412C property shall be disposedofby the Chief Registrarin accordance withPartXIVofthe PublicProcurement and Asset Disposal Act.

Release of exhibits.

• 389C.Unless forfeited,all exhibits produced in court shall remain the property of their proprietors and shall,upon proof of such proprietorship,be released to them after judgment unless an appeal has been preferred in which case they shall be released after the determination of the appeal or where no appeal has been filed upon expiry of the time allowed forfiling the appeal:

Amendment of

section366of Cap.75.

Amendment of section385of

Cap.75.

Amendment of

section386of Cap.75.

Insertion ofnew

section389B in Cap.75.

Provided that in appropriate cases,

nothing shall prevent a court from ordering therelease ofsuchexhibits totheir proprietors at any other stage of the trial.

• 81.Section 391 of the principal Act is amended by
• deleting the words"subordinate court"and substituting therefor the words"magistrate's court".
• 82.Section 394 of the principal Actis amended by deleting the word "Minister"and substituting therefor the words"Cabinet Secretary";
• 83.The principal Act is amended by inserting the followingnew sectionimmediately aftersection394-

Criminal Procedure 395.(1)There is established a Criminal Rules Committee. Procedure Rules Committee consisting of-

• (a) the Chief Justice,or a judge of the Courtof Appeal nominated by the Chief Justice,who shall be the
• chairperson;
• (b)a judge of the High Court;
• (c) two magistrates,one male and one female and one of whom shall be theSecretary to the Committee;
• (d) the Attorney-General or a state counsel nominated by the Attorney-
• General;
• (e) the Director of Public Prosecutions or a prosecution person nominated by the Director ofPublic
• Prosecutions;
• (f)theInspector-General ofPolice or a person nominated by the Inspector-
• General of Police;
• (g)theCommissioner Generalof Prisons or a person nominated by the Commissioner Generalof Prisons;
• (h) the Chief Executive Officer of the Ethics and Anti-Corruption

Amendment of section391of Cap.75.

Amendmentof section394of Cap.75.

Insertion ofnew

section in Cap.75

Commission or an officer of the Ethics and Anti-Corruption Commission nominated by the Chief Executive Officer;

• (i) theSecretary,Probation and Aftercare Servicesor a person nominated by theSecretary;
• (j)two advocates one male and one female,of not less than five years standing nominated by the Law Society of Kenya;and
• (k) two representatives of court users one male and one female, nominated by the Chief Justice.
• (2)Subject to thepowersof the Chief Justiceunder sections 178 (5),201,329F, 357 and 389,the powersof the AttorneyGeneralundersection 137O,and the powers of the Cabinet Secretary under sections 386 and 394,the Criminal Procedure Rules Committee shall have the power to make Rules not inconsistent with this Act and, subject thereto,to provide for any matters relatingto theprocedure ofcriminal courts.
• (3)TheChief Justice may,in consultation with the Criminal Procedure Rules Committee,issue practice notes or directions to resolve procedural difficulties arising under this Actin order to facilitate the attainment of the objects of thisAct.

MEMORANDUMOFOBJECTSANDREASONS

Statement of the Objects and Reasons for the Bill

The principal object of this Bill is to amend the Criminal Procedure

Code to alignitwith theprovisionsofArticle 27of the Constitution on the righttoequal treatment andfreedom from discrimination;Article28ofthe Constitution on the right to dignity;Article 29 of the Constitution on the freedom andsecurity of theperson;Article3l of the Constitution on the right to privacy;Article 39 of the Constitution on the right to property; Article 48of the Constitution on the rightofaccess to justice;Article49 of the Constitution on the rights of arrested persons;Article 50 of the Constitution on theright to fairhearing,and Article51 of the Constitution on therightofpersonsdetained,heldincustody orimprisoned

The Bill further seeks to amend the Criminal Procedure Code to review theprovisionsrelating to the transfer of cases between magistrates; power of nolle prosequi,languageof the courts and administrativeunits with constitutional provisions and to provide for the forfeiture of immovable property;and disposal of forfeited goods and release of exhibits.TheBill alsoprovidesspecialprovisionsfor thetrialand defense ofpersons withmental illness and aligns the Actwith the Mental Health Act (Cap. 248). The Bill seeks to enhance procedural efficiency, professionalism,and accountability in the protection of the rights of arrested persons and further ensure the effective functioning of the criminal justice system in Kenya.

The Bill is informed by legislative reform proposals submitted to

Parliamentby theNational Council on theAdministration ofJustice.

Clause 1 of theBill is the short title.

Clause2of theBill seeks toamend section2oftheprincipal Actin thedefinition of"Registrar of theHigh Courtto align with theprovisions ofthe High Court (Organization and Administration)Act.2015 that establishes the office of "Registrar of the High Courtand remove under thatAct.

The amendment also seeks to review the definition of "summary trial"by deleting thereference to"subordinate court"and substituting with the words"magistrate's court" to align with section 2 of the Magistrates Courts Act (Cap.1o) that provides for the definition of magistrate's court" to mean a subordinate court established by Article 169(1)(a)of the Constitution. The proposal further seeks to introduce new definitions of the words"person with mental illnessand intersex persons.

Clauses 3and 4of theBill seek toamendsections 4and5 of the principal Act by deleting the reference to"subordinate court"and substituting with the words"magistrate's courttoalign with section 2of the MagistratesCourts Act (Cap.10) that provides for the definition of "magistrate's court" to mean a subordinate court established by Article 169(1)(a)oftheConstitution.

Clause 5of theBill seeks to amend section 7of theprincipalAct by "subordinate court of the second class"and substituting with the words "magistrate's court"to align with section 2 of the Magistrates' Courts Act (Cap.10) that provides for the definition of"magistrate's court"to mean a subordinatecourtestablished byArticle169(1)(a)of the Constitution.The ranks of"subordinate court of the first classand"subordinate court of the second class"donot exist under the Magistrates'CourtsAct (Cap.10).

Clause 6of the Bill seeks to amend section 14of the principal Act by deleting the reference to"subordinate court"and substituting with the words "magistrate's court to align with section 2 of the Magistrates Court Act(Cap.10) that provides for the definition of"magistrate's court" tomean a subordinate court established by Article 169(1)(a) of the Constitution.

Clause 7 of the Bill proposes to amend section 15 of the principal

Act to ensure that the term of the suspended sentence shall not exceed the term of the sentence provided for the offence.The amendment further proposes the deletion of the wordscorporal punishmentas a mode of punishment.Article 29(e)of the Constitution providesfor the rightofa personnot to besubjected to corporal punishment.

Clause 8of theBill seeks to introduce a newsection 27A into the principal Act to provide for the mode of searching an intersex person which shall where reasonably practicable,be conducted bya person of the sex which the intersexperson preferswith strict regard to decency of the intersexperson.Further,thesearch is tobe conducted in conformitywith

Article 28of the Constitution thatprovidesfor theright tohuman dignity.

Clause9of theBill seekstoamend section36 of theprincipal Act to amend section 36 of the principal Act by deleting the reference to "subordinate court"and substituting with the words"magistrate's court" to align with section 2 of the Magistrates'Courts Act (Cap. 10) that provides for the definition of "magistrate's court"to mean a subordinate courtestablished by Article169(1)(a)of the Constitution.

Clauses 10-29of the Billpropose to repeal sections43-61A of the

principal Act thatprovideforprocedure tobefollowed by thecourt in mattersrelating to securityforkeeping thepeace and good behaviour.The sectionsproposedforrepealprovidefor thepre-emptive arrestofaperson without the commission of an offence andobligate such a person to execute a bond,based on a suspicion thathe orshe is likely to commit a crime,without the conduct of a trial to establish the person's guilt or innocencecontrary toArticles 27,28,39,49,and 50(2)of the Constitution.

Clause30 of the Bill seeks to amend section 67 of theprincipal Act by deleting reference to"province or district"and substituting with the word"county or subcounty"to align the with the administrative units set out in Article 6(l) of the Constitution and section 48 of the County Governments Act,20i2 thatprovide for sub-counties as administrative units.

Clause31of theBillproposes to amend section68 of theprincipal Act by deleting reference to"district"and substituting with the word "county"to align the with the administrative units set out in Article 6(1) of the Constitution.

Clause 32 of the Bill proposes to amend section 77 of the principal Act todeletereference tosections 140,141,145,166and 167ofthePenal Code(Cap.63) which wererepealed by theSexual Offences Act,2006. Further,the proposed amendments seek to make reference to the Sexual Offences Act No.3 of 2003 toprovide thatall proceedingsin trials relating to theSexual OffencesActNo.3of2006shall beheldinprivate. The amendments seek toprovide for theright to privacy ofvictims of sexualoffencesin linewith Article31 of the Constitution.

Clause33of the Bill proposes to amend section 79 of the principal Act that relates to the transfer of cases between Magistrates.The amendment seekstodelete referenceto"subordinate court"and "subordinate court of the second class"and substituting with the words "magistrate's court" to align with section 2 of the Magistrates'Courts Act (Cap.1O)that provides for the definition of"magistrate's court"to mean a subordinatecourtestablished by Article169(1)(a)of the Constitution.The rank of"subordinate court of the second classdoes not exist under the Magistrates'Courts Act(Cap.10).

Clause34 of theBill proposes to amend section 80 of the principal Act to delete reference to"a magistrate holding a subordinate court of the first class"and substituting with thewords"another magistrate's court with competent jurisdictionto align with section 2of the Magistrates Courts Act (Cap.1o) that provides for the definition of "magistrate's courtto mean a subordinate courtestablished by Article169(1)(a)ofthe Constitution.The rank of "subordinate court of the first classdoes not exist under the Magistrates Courts Act (Cap.10).

Clause35 of theBill proposes to amend section 80 of theprincipal Act toprovide that a nolleprosequi shall not be enteredproceed without the permission of the Court.Article 157(8)of the Constitution provides that the Director ofPublicProsecutionsmay not discontinue a prosecution without thepermission ofthe court.

Clause 36 of the Bill seeks to amend section 87of the principal Act

by deleting the reference to"subordinate court"and substituting with the words "magistrate's court"to align with section 2 of the Magistrates Courts Act (Cap.10) that provides for the definition of "magistrates courtto mean a subordinatecourt established byArticle 169(1)(a)of the Constitution.

Clauses37and38of theBillseeks torepealsections89 and90of the principal Act that provide for the manner ofmaking complaints and drawing ofcharges and the subsequent issuance of summons and warrant ofarrest.The provisionsprovide that an accused person can be directly be brought before a Magistrate,who can then draft a charge and take plea without the process of drafting a charge and making a decision to charge is adhered to contrary to Article 49 of the Constitution that safeguards the rightofan accusedperson tobeinformedofthereasonfor thearrest and

Article50 of the Constitution on theright to fair hearing.

Clause39 of theBill seeksto amend section 105of the principal Act to deletereference to"empowered to hold a subordinate court of the first align with section 2 of the MagistratesCourts Act(Cap.10) thatprovides for the definition of"magistrate's court"tomean a subordinate court established by Article 169(1)(a)of the Constitution.The rank of "subordinate court of the first class" does not exist under the Magistrates CourtsAct(Cap.10).

Clause 40 of theBill seekstoamend section 120 of theprincipal Act torequire a police officer or other person executinga search warrant to conduct any searches in relation to intersex persons in a manner that gives strict regard to decency and protects the right to dignity of intersex persons.

Clause 41of theBill seeks to amend section I23of theprincipalAct by deleting the reference to"subordinate court"and substituting with the words"magistrate's court" to align with section 2 of the Magistrates' Court Act(Cap.10)that provides for the definition of "magistrates court"

tomean a subordinate court established by Article 169(1)(a)of the

Constitution.

Clause 42 of the Bill seeks to amend section 131(3) of the principal

Act toinclude theforfeitureofimmovablepropertywhere title to thesame has been deposited to courtforbail andbond purposes.

Clause 43of theBill seeksto amend section137of theprincipalAct by deleting the reference to"subordinate court"and substituting with the words"magistrate's court"to align with section 2 of theMagistrates Courts Act (Cap.10) that provides for the definition of "magistrates court" to mean a subordinate court established by Article 169(1)(a)of the Constitution.

Clause44of theBill seeks toamend section 143of theprincipalAct

by deleting the reference to"subordinate court"and substituting with the words "magistrate's court"to align with section 2 of the Magistrates Courts Act (Cap.iO) that provides for the definition of "magistrates court"to mean a subordinate court established by Article 169(1)(a)of the Constitution.

Clause 45 of theBill seeks toamendsection149of theprincipal Act

by deleting the reference to"subordinate court"and substituting with the words"magistrate'scourtto align with section 2of the Magistrates Courts Act (Cap.10) that provides for the definition of"magistrates courtto mean a subordinate court established by Article 169(1)(a)of the Constitution.

Clause46of theBill seekstoamendsection154of theprincipalAct

to deletereference to"magistrate empowered to hold a subordinate court of the first class"and substituting with the words"magistrate's court with competent jurisdictionto align with section 2 of the Magistrates'Courts Act(Cap.10) that provides for the definition of"magistrate's court"to mean a subordinate court established by Article 169(1)(a) of the Constitution.The rank of "subordinate court of the first class"does not existunder the Magistrates'CourtsAct(Cap.10).

Clause 47of theBill seeksto amend section 156of theprincipal Act to delete reference to "other than a magistrate empowered to hold a subordinate court of the first class"and substituting with the words"with competent jurisdiction to align with section 2 of the Magistrates'Courts Act(Cap.IO) that provides for the definition of"magistrate's court"to mean a subordinate court establishedby Article 169(l)(a) of the Constitution.The rank of"subordinate court of the first class"does not exist under the Magistrates'Courts Act(Cap.10).

Clause48of theBill seeks to amend section 157of theprincipal Act to delete reference to"magistrate empowered to hold a subordinate court of the first class"and substituting with the words"magistrate's court with competentjurisdictiontoalign with section 2of theMagistratesCourts Act(Cap.10) that provides for the definition of"magistrate's court" to mean a subordinate court established by Article 169(l)(a) of the Constitution.The rank of"subordinate court of the first classdoes not exist under the Magistrates'Courts Act(Cap.10).

Clauses 49 and 50 of the Bill seek to delete and substitute sections 162and 167of theprincipalActto provide forthe procedure tobe followedwhile handlingpersonswho arefound tobeunfit tostand to trial and establish timelines for their treatment and periodic review of such persons to enhance access to treatment and rehabilitation rather than imprisonmentandpunishment.

Clause51of theBill seekstorepeal section167of theprincipal Act that provides for the detention of an accused person with mental illness person atthepleasureof thePresidentfor an indeterminate periodcontrary toArticle29 oftheConstitution thatprovidesforprotectspersonsfrom cruel,inhuman,and degrading treatment.

Clause52of theBill seeks to amend section171of theprincipal Act todeletereference to"subordinate court"or"subordinatecourt of the first class or second"and substituting with the words"magistrate's court" to align with section 2 of the MagistratesCourts Act(Cap.10) thatprovides for the definition of"magistrate's courttomean a subordinate court established by Article169(1)(a)of theConstitution.Therank of "subordinate court of the first class or second classdoes not exist under the Magistrates Courts Act(Cap.10).

Clause53of theBillseeksto amendsection197oftheprincipalAct to enable theuse ofcomputersin the taking ofevidencein trials.

Clause54of theBillseeksto amend section 198of theprincipalAct to provide the language of all courts to be Kiswahili,English and Kenya Sign Language to reflect thenational and official languagesas set out in

Article 7 of the Constitution.

Clause55of theBill seeksto amend section202oftheprincipal Act seeks by deleting the reference to"subordinate court"and substituting MagistratesCourts Act (Cap.Io) that provides for the definition of "magistrate's court" to mean a subordinate court established by Article 169(1)(a)of the Constitution.

Clause56of theBill seeks to amend section205of theprincipal Act

by deleting subsection(3) that makesprovision for detention ofpersons in detention camps as mode ofpunishment.The Detention Camps Actwas repealed by the CommunityServiceOrdersActNo.10 of1998.

Clause58 of theBill seeks to amendsection221 of theprincipal Act to deletereference to"subordinatecourt"or"subordinate court of the first class or second"and substituting with the words "magistrate's court" to alignwith section2of theMagistrates'CourtsAct(Cap.10) thatprovides for the definition of"magistrate's court" tomean a subordinate court established byArticle169(1)(a) of the Constitution.Therankof "subordinate court of the first class or second class does not exist under the Magistrates'Courts Act (Cap.10).

Clauses59 and 60of the Bill seeks to amend sections275and 277 of the principal Act to delete reference to "assessors".The role of assessors in murder trials was abolished in the Statute Law (Miscellaneous Amendments)Act,2007.

Clause 61of theBill seeks toamend section280 of theprincipalAct todeletetheprovision forpostponementofa trial an accusedpersonwith mental illness and their subsequent detention atpleasure of the President in a lunatic asylum prison or other suitable place for safe custody for an indeterminate period which is cruel,inhuman,and degrading treatment contrary toArticle29 of the Constitution.

Clauses 62-79 of the Bill seeks toamend sections 334,347,348, 348A,350,354,356,357,358,359,360,361,362,363,364,366,385an 386 of the principal to delete reference to"subordinate courtor "subordinate court of the first class or second"and substituting with the words"magistrate's court"to align with section 2 of the Magistrates Courts Act(Cap.10) that provides for the definition of"magistrate's courttomeana subordinatecourtestablished byArticle 169(1)(a)of the Constitution. The rank of"subordinate court of the first class or second class"does not exist under the MagistratesCourts Act (Cap.10).

Clause80of theBill seeksto insert newsection389Band389Cin to theprincipal Acttoprovidefor thedisposal offorfeitedgoodstothe stateby theChiefRegistrarof theJudiciary inaccordancewith thePublic Procurement and Asset Disposal Act,20i5.The amendment further providesfor therelease of exhibits,to theirrightful proprietors upon proof ofsuchproprietorship after judgment or at any other stageofthe trial where the Court deems appropriate in accordance with Article 40 that

safeguards against the arbitrary deprivation of a person'sproperty.

Clause81oftheBill proposes to amend section391of theprincipal

Act seeks by deleting the reference to"subordinate court"and substituting with the words "magistrate's court"to align with section 2of the Magistrates'Courts Act (Cap.1O) that provides for the definition of "magistrate's court" to mean a subordinate court established by Article 169(1)(a)of the Constitution.

Clause82of theBill proposes to amend section394 of theprincipal

Act by deleting thereference to"Minister"and substitutingwith thewords "Cabinet Secretary"in line with the Constitution.

Clause 83 of the Bill proposes to introduce new section395into the

principal Act toprovide to establish the Criminal Procedure Rules procedure ofcriminal courts.

Statement on the delegation of legislative powers and limitation offundamentalrightsandfreedoms

This Bill does not delegate legislative powers nor does it limit

fundamental rightsand freedoms.

Statementonwhether theBill concernscounty governments

The Bill does not concern county governments in terms of Article

110(1)of the Constitution as it doesnot contain provisions that affect the functions and powersof the county governments as set out in the Fourth Schedule to the Constitution.Criminal law and courtsare functionsof the national governmentasprovided inparagraphs7(b)and 8ofPart 1of the Fourth Schedule to the Constitution.

Statement as to whether the Bill is a money Bill within the meaningofArticle 114of theConstitution

The enactment of this Bill shall notoccasion additional expenditure ofpublicfunds.

Dated the25thFebruary,2026.

GEORGEGITONGAMURUGARA,

Chairperson,Departmental Committeeon Justice and LegalAffairs.

Section2ofCap.75whichitisproposedtoamend-

2.Interpretation

In this Code,unless the context otherwise requires-

"cognizable offence"means an offence for which a police officer may,in accordance with the First Schedule orunder any law for the time being inforce,arrestwithout warrant;

"complaint"deleted by Act No.7of2007,Sch.;

"drug related offence"means any specified in Part V of the Dangerous Drugs Act (Cap.245) and includesthe possession, manufacture,distribution or receipt of any drug of any quantity whatsoever;

"non-cognizable offence"means an offence for which a police

officermay not arrestwithoutwarrant;

"officer in charge of a police stationincludes any officer superior in rank to an officer in charge ofa police station and also includes,when the officer in charge of the police station is absent from the station-house, or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to that officer,and is above therank of constable,or,when the Inspector-General of the National PoliceService so directs,any otherpolice officer so present;

"plea agreement"means an agreement entered into between the prosecution and an accused person in a criminal trial in accordancewith

PartIV;

"police officer"means a police officer or an administration police

officer;

police station"means a place designated by the Inspector-General asa police station under section 40 of the National Police Service Act,

2011.

"prosecutor"means a public prosecutor or a personpermittedby the court to conduct a prosecution under section88 of the Act;

"public prosecutor"means the Director of Public Prosecutions,a state counsel,a person appointed under section 85or a person acting under

the direction of the Director ofPublicProsecutions;

"Registrar of the High Court"includes a Deputy Registrar of the High Court and a districtregistrar of theHigh Court;

'summary trialmeans a trial heldbya subordinatecourtunderPart

VI.

Section4of Cap.75whichitisproposed toamend-

4.Offences under Penal Code(Cap.63)

Subject to this Code,an offence under the Penal Code(Cap.63) may

be tried by the High Court,or by a subordinate court by which the offence is shown in the fifth column of the First Schedule to this Code to be triable.

Section5ofCap.75which itisproposed toamend-

5.Offences under other laws

• (1) An offence under any law other than the Penal Code (Cap.63) shall,when a court is mentioned in that behalf in that law,be tried by that court.
• (2) When no court is so mentioned,it may,subject to this Code,be tried by theHigh Court,or by a subordinate court by which the offence is shownin thefifthcolumn ofthe FirstSchedule to this Code tobetriable.

Section7of Cap.75whichit isproposed to amend-

7.Sentences which subordinate courts may pass

• (1)A subordinate court of thefirst class held by-
• (a)a chief magistrate,senior principal magistrate,principal magistrate or senior resident magistrate may pass any sentence authorizedbylawfor any offence triableby thatcourt;
• (b)a resident magistrate may pass any sentence authorized by law for an offence under section 278,308(1)or322of thePenal Codeor
• under theSexual Offences Act,2006.
• (2)Subject to subsection(1),a subordinate court of the first class may pass the following sentences in cases where they are authorized by law-
• (a) imprisonment for a term not exceeding seven years;
• (b) a fine not exceeding twenty thousand shillings;
• (c)repealed by Act No.5 of2003,s.60.
• (3)A subordinate court of the second class may pass the following sentences in caseswhere they areauthorized bylaw-
• (a)imprisonmentfor a termnotexceedingtwoyears;
• (b)a fine not exceeding ten thousand shillings;
• (c)repealed by Act No.5of 2003,s.60.

• (4)Deleted by Act No.5of2003,s.60.
• (5)In determining the extent of a court's jurisdiction under this section to pass a sentence of imprisonment,the court shall have jurisdiction topass the fullsentence ofimprisonmentprovided for in this section inaddition to any termofimprisonmentwhichmaybeawarded in defaultofpaymentofa fine,costsor compensation.

Section14ofCap.75which itisproposed toamend-

14.Sentences in cases ofconviction ofseveraloffences atone trial

• (1) Subject to subsection (3),when a person is convicted at one trial oftwo or more distinct offences, the court may sentence him,for those offences,to the several punishmentsprescribed thereforwhich the court is competent to impose; and those punishments when consisting of imprisonmentshall commence the one after the expiration of theotherin the order the court may direct,unless the court directs that the punishments shall run concurrently.
• (2) In the case of consecutive sentences,it shall not be necessary for the court,by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence,to send the offender for trial before a higher court.

3. (3) Except in cases to which section 7(1) applies,nothing in this section shall authorize a subordinate court to pass,on any person at one trial,consecutive sentences— 4. (a) of imprisonment which amount in the aggregate to more than fourteen years,or twice the amount of imprisonment which the court,in the exercise of its ordinary jurisdiction,is competent to impose,whichever is the less;or 5. (b) of fines which amount in the aggregate to more than twice the amountwhich thecourt is so competentto impose. 6. (4) For the purposes of appeal,the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall bedeemed tobe a singlesentence.

Section15ofCap.75whichitisproposedtoamend-

15.Suspended Sentences

• (1)Any court which passesa sentence of imprisonment fora term of notmore than twoyearsforanyoffencemay order thatthe sentence shall not take effect unless during the period specified by the court (hereinafter called the"operational period") the offender commits another offence,

whether that offence is punishable by imprisonment,corporal punishment orby a fine.

• (2)Where the offender is convicted of an offence during the operationalperiod the sentence for the firstoffencein respect ofwhich the offender was convicted under subsection (l) shall thereupon take effect.
• (3) Where under subsection (2) the sentence passed for the first offence under subsection (l) takes effect the sentence passed for the subsequent offence shall run consecutively to the sentence passed for the firstoffence

Section36of Cap.75which it isproposed to amend-

36.Detentionofpersons arrestedwithoutwarrant

When a person has been taken into custody without a warrant for an offence other than murder,treason,robbery with violence and attempted robbery withviolence theofficer inchargeofthepolicestation towhich appearpracticable to bring thatperson beforean appropriate subordinate court within twenty-four hours after he has been so taken into custody, inquire into the case,and,unless the offence appears to the officer to be of a serious nature,release the person on his executing a bond,with or withoutsureties,for a reasonable amount to appear before a subordinate court ata time and place to be named in the bond,but where a person is retained in custody he shall be brought before a subordinate court as soon aspracticable:

Provided thatan officer in charge ofa police station may release a person arrested on suspicion on a charge of committing an offence,when, after due police inquiry,insufficient evidenceis,in his opinion,disclosed

onwhich toproceedwith the charge.

Section43ofCap.75which itisproposed toamend-

43.Security forkeeping thepeace

• (1)Whenevera magistrate empowered to hold a subordinate court of the first class is informed that aperson is likely to commit abreach ofthe peace or disturb thepublic tranquillity,orto do any wrongful actthatmay probably occasion a breachof thepeaceor disturb thepublic tranquillity themagistrate shall examine theinformant on oath andmay as hereinafter provided require thepersoninrespectofwhom theinformationislaid to show cause why he should not be ordered to execute a bond,with or without sureties,forkeeping thepeacefor such period,notexceeding one year,as the magistrate thinks fit.

• (2)Proceedings shall not be taken under this section unless either the person informed against,or the place where the breach of the peace or disturbance is apprehended,is within the local limits of the magistrates jurisdiction.
• (3) When a magistrate notempowered to proceed under subsection (1)hasreason to believe that a person is likely to commit a breach of the peace or disturb the public tranquillity,or to do any wrongful act that may probably occasion a breach ofthepeace or disturb thepublic tranquillity, and that a breach of the peace or disturbance cannot be prevented otherwise than by detaining the person in custody,the magistrate may, after recording his reasons,issue a warrant for his arrest (if he is not already in custody or before the court),and may send him before a magistrate empowered to deal with the case,with a copy of his reasons.
• (4)A magistrate before whom a person is sent under this section may detain that person in custody until the completion of the inquiry hereinafter prescribed.

Section44ofCap.75whichitisproposed toamend-

44. Security for good behaviour from persons disseminating seditious matter

Whenever a magistrate empowered to hold a subordinate court of the first class is informed on oath that there is within the limits of his jurisdiction apersonwho,withinorwithout thoselimits,either orally orin writing or in any other manner,disseminates,or attempts to disseminate orhas recently disseminated,or in any way abets the dissemination of-

• (a)Repealed by ActNo.5of2003,s.62;
• withinKenya orislikely to lead to thecommissionofanoffence; or
• (c)matter concerning a judge which amounts to libel under the Penal Code,

the magistrate may,in the manner provided in this Code,require that person to show cause why he should not be ordered to execute a bond, with or without sureties,for his good behaviour for such period,not exceeding one year,as the magistrate thinks fit.

Section45ofCap.75which itisproposed toamend-

• 45.Securityforgood behaviourfrom suspectedpersons

Whenever amagistrate empowered to hold a subordinatecourt of the first class is informed on oath that a person is taking precautions to conceal hispresence within the local limits of the magistrate's jurisdiction, and that there is reason to believe that the person is taking those precautions with a view to committing an offence,the magistrate may,in themanner hereinafterprovided,require thatperson to showcause why he should not be ordered to execute a bond,with sureties,for his good behaviour for suchperiod,not exceeding oneyear,as themagistrate thinks fit.

Section46ofCap.75whichitisproposed toamend-

46.Securityforgoodbehaviourfromhabitual offenders

Whenevera magistrate empowered to hold a subordinatecourt of the first class is informed on oath that a person within the local limits ofhis jurisdiction-

• (a)is by habit a robber,housebreaker or thief;or
• (b) is by habit a receiver of stolen property,knowing it to have been
• stolen;or
• (c)habitually protectsor harbours thieves,or aidsin the concealment or disposal of stolenproperty;or
• (d)habitually commitsorattemptsto commit,or aidsor abets in the commission of,an offence punishable under Chapter XXX ChapterXXxlIllor ChapterXXXVIof thePenal Code;or
• (e)habitually commits or attempts to commit,or aidsor abets in the
• commissionof,offences involvinga breach of thepeace;or
• (f) is so desperate and dangerous as to render his being at large
• withoutsecurityhazardoustothecommunity:or
• (g)is a member ofan unlawful societywithin themeaning ofsection 4(1)of the SocietiesAct(Cap.108),

the magistrate may,in the manner hereinafter provided,require that person to showcause why he should not be ordered to execute a bond, with sureties,forhis good behaviourfor suchperiod,not exceedingthree years,as the magistrate thinks fit,or why an order (hereinafter in this Part referred to asa restriction order) should not be made that he be taken to the district inwhich his home is situated and berestricted to that district

during a period of threeyears:

Provided thatwhere amagistrate isof the opinion that,havingregard to all the circumstances of the case,it is desirable that the person be restricted to some other district he may specify that the person shall be so

restricted.

Section47of Cap.75whichitisproposedtoamend

47.Order to be made

When a magistrate acting under section 43,section 44,section 45or

section 46 deems it necessary to require a person to show cause,he shall make an order inwriting setting out-

• (a) the substance of the information received;
• (b) in the case of a restriction order,the district to which the person concerned is to be restrictedfor aperiodof threeyears;
• (c)in any other case-
• (i) the amount of the bond to be executed;
• (ii) the termforwhich itis tobeinforce;and
• (ii) the number,character and class of securities,if any, required.

Section48of Cap.75whichit isproposed to amend-

48.Procedure in case ofperson present in court

If theperson in respect ofwhom an order under section 47 ismade present in court,it shall be read over to him or,if he so desires, the substance thereofshall beexplained to him.

Section49ofCap.75which it isproposed toamend-

49.Summons orwarrant in case ofpersonnotsopresent

If the person in respect of whom an order ismade under section 47 is

not present in court,the magistrate shall issue a summons requiring him to appear,or,when the personisin custody,a warrant directing the officerin whosecustodyheis to bringhim before thecourt:

Provided that,whenever it appears to the magistrate upon the report ofa police officer or upon other information (the substance of which report or information shall be recorded by the magistrate)that thereis reason to fear the commission ofa breach ofthepeace,and thata breach of thepeacecannotbepreventedotherwise thanby theimmediate arrestof

the person,the magistrate may at any time issue a warrant for his arrest.

Section50ofCap.75whichitisproposedtoamend-

50.Copy oforder under section 47 to accompany summons or warrant

Every summons or warrant issued under section 49 shall be

accompanied by a copy of the order made under section 47,and the copy shall be delivered by the officer serving or executing the summons or warrantto theperson served with orarrested under it.

Section51of Cap.75whichit isproposed toamend-

51.Power to dispense with personal attendance

The magistrate may,if he sees sufficient cause, dispense with the personal attendance ofaperson called upon to showcause why he should not be ordered to execute a bond for keeping the peace,and may permit him to appearby an advocate.

Section52ofCap.75whichitisproposed toamend-

52.Inquiry as to truth of information

• (1)When an order undersection 47has been read or explained under brought before amagistrate in compliance with or in execution ofa summons orwarrantissued under section 49,themagistrate shallproceed to inquire into the truth ofthe information uponwhich the action has been taken,and to take such further evidence asmay appear necessary.
• (2) The inquiry shall be made,as nearly as may be practicable,in the manner prescribed by this Code for conducting trials and recording
• evidence in trialsbefore subordinate courts.
• (3) For the purposes of this section, the fact that a person comes within theprovisionsofsection 46maybeprovedby evidenceofgeneral repute or otherwise.
• (4) Where two or more persons have been associated together in the inquiries,as the magistrate thinks just.

Section53ofCap.75which itisproposed to amend-

53.Order to give security

• (1) If upon an inquiry it is proved that it is necessary for keeping the peaceormaintaininggood behaviour that theperson inrespectofwhom the inquiry ismade shouldbemade subject to a restrictionorder orshould execute a bond,with or without sureties, the magistrate shall make an order accordingly:

Provided that-

• (i no person shall be ordered to give security ofa nature different from,or of an amount larger than,or for a period longer than, thatspecifiedintheordermadeunder section47;

• (i)the amount of a bond shall be fixed with due regard to the
• circumstances of the case and shall not be excessive;
• (ili) when the person in respect of whom the inquiry is made is a minor,the bond shall be executed only by his sureties.
• (2)Aperson inrespectofwhom an order ismade under this section may appeal to the High Court,and the provisions of Part XI (relating to appeals)shall apply to the appeal.

Section54ofCap.75whichit isproposedtoamend-

54.Discharge of person informed against

If on an inquiry under section 52 it is not proved that it is necessary for keeping the peace or maintaining good behaviour that the person in respect ofwhom the inquiry is made should be subject to a restriction order or should execute a bond,the magistrate shall make an entry on the record to thateffect,and,if the person is in custody only for thepurposes of theinquiry,shallreleasehim,or,ifheisnotncustody,shall discharg him.

Section55ofCap.75which itisproposed toamend-

55.Commencementofperiodforwhich securityisrequired

• (1) If a person in respect ofwhom an order is made under section 47 or section 53 is,at the time the order ismade,sentenced to or undergoing a sentenceof imprisonment,theperiod ofsuch order shall commenceon the expiration of the sentence.

2. (2) In other cases,theperiod shall commence on the date of the order 3. unless the magistrate,for sufficientreason,fixesa later date.

Section56of Cap.75whichit isproposed toamend-

56.Contentsofbond

Thebond to beexecuted byaperson shall bind him tokeep thepeace or to be of good behaviour,as the case may be,and in the latter case the commission or attempt to commit or theaiding,abetting,counselling or procuring the commission ofan offence punishable with imprisonment, whereveritmaybecommitted,shali be abreachofthebond.

Section57of Cap.75which it isproposed toamend-

57.Power to reject sureties

A magistrate may refuse to accept a surety offered under any of the preceding sections of this Part on the ground that,for reasons to be recorded by the magistrate,the surety isan unfit person.

Section58ofCap.75which it isproposed toamend-

58.Procedure on failure ofperson to give security

• (1) If a person ordered to give security does not give security on or before the date on which the period for which security is to be given commences,he shall,except in the case mentioned in subsection (2),be committed to prison,or,if he is already in prison,be detained in prison until thatperiod expires oruntil within that period he gives the security to the court ormagistratewho made the orderrequiring it.
• (2) When a person hasbeen ordered by a magistrate to give security for a period exceeding one year,the magistrate shall,if the person does not give security,issue a warrant directing him to be detained in prison pending the orders of theHigh Court,and the proceedings shall be laid as soon as convenientlymay bebefore thatcourt.
• (3) The High Court,after examining the proceedings and requiring from the magistrate any further information or evidence which it thinks necessary,may make such order in the case as it thinks fit.

4. (4)Theperiod,if any,forwhich any person isimprisoned forfailure 5. to give security shall not exceed three years. 6. (5) If the security is tendered to the officer in charge of the prison,he shall forthwith refer the matter to the court ormagistrate who made the 7. order,and shall await the ordersof the court or magistrate.

Section59ofCap.75whichit isproposed toamend-

59.Power to release persons imprisoned for failure to give security

Whenever a magistrate empowered to hold a subordinate court of the security may be released without hazard to the community,the magistrate shall make an immediate report of the case for the orders of the High Court,and thatcourt may order theperson to be discharged.

Section 60 of Cap.75which it isproposed to amend-

60.PowerofHigh Court to cancel bond

The High Court may at any time,for sufficient reasons to be recorded in writing,cancel any ordermadeunder section 47or section53.

Section61of Cap.75which it isproposed to amend-

61.Discharge ofsurities

• (1)A surety for thepeaceableconduct orgood behaviour of another subordinate court of the first class to cancel a bond executed under any of

the preceding sections of this Part within the local limits of his jurisdiction.

• (2) On the application being made,the magistrate shall issue his summons or warrant,as he thinksfit,requiring the person for whom the suretyisbound toappearor tobebroughtbeforehim.

2. (3)When the person appears or is brought before the magistrate,the 3. magistrate shall cancel the bond and shall order theperson to give,for the unexpired portion of the term of the bond,fresh security of the same description as the original security. 4. (4)Every such ordershall for thepurposes of sections56,57,58 and 59be deemed tobeanordermade under section53.

Section6lAofCap.75which itisproposedtoamend-

61A.Breach ofrestriction order

A person who,whilst subject to a restriction order,is found outside the districtnamed in the order without thewrittenpermission of thechief officerofpoliceofthedistrict,orwhofails to complywith anycondition attached to that permission,shall be guilty ofan offence and liable to imprisonmentforatermnotexceedingtwelvemonths.

Section67ofCap.75whichitisproposed toamend-

67.Accusedperson to be sentto districtwhere offence committed

Where a person accused of having committed an offence within

Kenya has escaped orremoved from theprovince or districtwithin which the offence was committed and is found within another province or district,the court within whose jurisdiction heis found shall cause him to be brought before it,and shall,unless authorized to proceed in the case, send him incustody to thecourtwithin whose jurisdiction the offence is alleged to have been committed or require him to give security for his surrender to that court there to answer the charge and to be dealt with accordingto law.

Section68of Cap.75whichitisproposed toamend-

68.Removalof accused person underwarrant

• (l)Where aperson is to be sent in custody in pursuanceof section 67,a warrant shall be issued by the court within whose jurisdiction he is found,and thatwarrant shall be sufficient authority to anyperson towhom it is directed to receive and detain theperson therein named and to carry him and deliver himup to thecourtwithinwhosedistrict theoffencewas committedormaybe tried.

• (2)The person to whom the warrant is directed shall execute it according to its tenorwithout delay.

Section77ofCap.75which it isproposed toamend-

77.Court to be open

• (1) Subject to subsection (2),the place in which a criminal court is held for the purpose of trying an offence shall be deemed an open court to which thepublic generally may have access,so far as it can conveniently
• contain them:

Provided that the presiding judge or magistrate may order at any stage of the trial of any particular case that the public generally or any particular person shall not have access to or remain in the room or buildingused by the court.

• (2)Notwithstanding the provisions of subsection (1),the proceedings in the trialofany caseunder sections 140,141,145,166and 167ofthe Penal Code (Cap.63) shall be held in private and no person shall,in relation to such trial,publish or cause to bepublished by any means-
• (a) any particulars calculated to lead to the identification of the
• victim;or
• (b)any pictureofthevictim.
• (3) A person who contravenes the provisions of subsection (2)
• commitsan offence and is liable on conviction-
• (a)in the case of an individual,to a fine not exceeding one hundred thousand shillings;and
• (b) in the case of a body corporate,to a fine not exceeding five hundred thousand shillings

Section79of Cap.75which itisproposed to amend

79.Transfer of cases between magistrates

A magistrate holding a subordinate court of the first class-

• (a)may transfer a case of which he has taken cognizance to any magistrateholdingasubordinatecourtempowered to trythatcase within the local limits of the first class subordinate courts jurisdiction;and
• (b) may direct or empower a magistrate holding a subordinate court of the second class who has taken cognizance ofa case and whether evidence has been taken in that case or not,to transfer it for trial to himself or to any other specifiedmagistrate within the

local limitsofhisjurisdictionwho is competent to try theaccused and that magistrate shall dispose of the case accordingly.

Section80of Cap.75whichitisproposed toamend-

80.Transfer ofpart-heard cases

If in the course of any trial before a magistrate the evidence appears to warrant a presumption that the case is one which should be tried by some other magistrate,he shall stayproceedings and submit the case with a briefreport thereon to a magistrate holdinga subordinate courtof the first class empowered to direct the transfer of the case under section 79.

Section82ofCap.75whichitisproposed toamend-

• 82.Power of Director of Public Prosecutions to enter nolle prosequi
• (1)In any criminal case and at any stage thereof before verdict or judgment,as the case may be,the Director of Public Prosecutions may enter a nolle prosequi,either by stating in court or by informing the court in writing that the Republic intends that the proceedings shall not continue,and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered,and if he has been committed to prison shall be released,or if on bail hisrecognizances shall be discharged;but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts.
• (2) If the accused is not before the court when a nolle prosequi is entered,the registrar or clerk of the court shall forthwith cause notice in writing ofthe entry of the nolle prosequi to be given to thekeeper of the prison in which the accused may be detained.

Section87of Cap.75which itisproposed toamend-

• 87.Withdrawal from prosecution in trials before subordinate courts

Ina trial before a subordinatecourt a publicprosecutor may.with the consent of the court or on the instructions ofthe Director of Public Prosecutions**,at any time before judgment is pronounced,withdraw from theprosecution ofanyperson,and upon withdrawal-

• (a)if it is made before the accused person is called upon to make his defence,he shall be discharged,but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;
• (b)if it is made after the accused person is called upon to make his defence,he shall be acquitted.

Section89 ofCap.75which it isproposed toamend-

89.Complaint and charge

• (1)Proceedings may be instituted either by the making of a complaint or by the bringing before a magistrate of a person who has been arrested withoutwarrant.
• **Powers delegated to the Solicitor-General;Deputy Public Prosecutor;Assistant Deputy Public Prosecutor;Principal State Counsel; Provincial State Counsel, Central and Eastern Provinces;Provincial State Counsel,Coast Province; Provincial State Counsel,Nyanza Province; Provincial State Counsel, Rift Valley Province; and Provincial State Counsel,Western Province.(L.N.106/1984.)
• (2)A person who believesfrom a reasonable and probable cause that an offence hasbeen committed by anotherperson maymakea complaint thereof to a magistrate having jurisdiction.
• (3)A complaint may bemadeorally orinwriting,but,ifmade orally shall be reduced to writing by the magistrate,and,in either case,shall be signed by the complainant and themagistrate.
• (4)The magistrate,upon receiving a complaint,or where an accused person who has been arrested without a warrant is brought before him, shall,subject to the provisions of subsection (5),draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence with which the accused is charged,unless the charge is signed and presentedbyapoliceofficer.
• (5)Wherethemagistrate isof theopinion that a complaint orformal charge made or presented under this section does not disclose an offence, the magistrate shall make an order refusing to admit the complaint or
• formal charge and shall record hisreasons for the order.
• (6)Repealed by Act No.10of1983,Sch.

Section90of Cap.75which it isproposed to amend-

90.Issue of summons or warrant

• (1) Upon receiving a complaint and having signed the charge in accordancewith section89,the magistratemay issue either a summons or a warrant to compel the attendance of the accused person before a subordinate court having jurisdiction to try the offence alleged to have been committed:

Provided that a warrant shall not be issued in the first instance unless the complaint has been made upon oath either by the complainant or bya

witness or witnesses.

• (2) The validity ofproceedings taken in pursuance ofa complaint or charge shall not be affected eitherby a defect in thecomplaint or charge or by thefact thata summonsorwarrantwasissued withouta complaintor charge.

2. (3)A summons or warrant may beissued on a Sunday.

Section105ofCap.75whichitisproposed toamend-

105.Warrantsmay be directed tolandholders,etc.

• (1)A magistrate empowered to hold a subordinate court of the first class may direct a warrant to a landholder,farmer or manager of land within thelocal limitsofhisjurisdiction for thearrest of an escaped convict orperson who has been accused ofa cognizable offence and has eludedpursuit.
• (2) The landholder,farmer or manager shall acknowledge in writing thereceiptofthewarrantandshallexecuteitiftheperson forwhose arrest itwas issued is in or enterson his land or farm or the land under his
• charge.
• (3) When the person against whom the warrant is issued is arrested, he shall bemade over with thewarrant to the nearest police officer,who shall cause him to be taken before a magistrate having jurisdiction,unless security is taken under section 103.

Section120ofCap.75whichit isproposed toamend-

120.Persons in charge of closed place to allow ingress and egress

• (1) Whenever a building or other place liable to search is closed,a person residing in or being in charge of the building or place shall,on demand of thepoliceofficer or otherperson executing thesearch warrant and on production of the warrant,allow him free ingress thereto and egress therefrom and afford all reasonable facilitiesfor a search therein.
• (2)Ifingress into oregressfrom thebuildingorotherplacecannotbe soobtained,thepoliceofficer or otherperson executingthesearch warrant mayproceed in themannerprescribed by section22orsection23.
• (3) Where a person in or about the building or place is reasonably suspected of concealing about his person an article for which search should be made,that person may be searched.

• (4) If thatperson isa woman the provisions of section 27 shall be observed.

Section123ofCap.75which it isproposed toamend-

123.Bail in certain cases

• (1) When a person,other than a person accused of murder,treason, robbery with violence,attempted robbery with violenceand any related offence is arrested or detainedwithoutwarrant by an officer in charge of a police station,or appears or is brought before a court,and is prepared at proceedings before that court to give bail,thatperson may be admitted to bail:

Provided that theofficeror courtmay,insteadof takingbail from the

person,release him on his executing a bond without sureties for his appearance asprovided hereafter in this Part.

• (2) The amount of bail shall be fixed with due regard to the circumstances of the case,and shall not be excessive.
• (3) The High Court may in any case direct that an accused person be admitted to bailor that bail required bya subordinatecourtor police

3. officer be reduced.

Section 131ofCap.75which it isproposed toamend-

131.Forfeiture ofrecognizance

• (1) Whenever it is proved to the satisfaction of a court bywhich a recognizance under this Code has been taken,or,when the recognizance is for appearance before a court,to the satisfaction of that court,that the recognizance has been forfeited,the court shall record the grounds of proof,andmay call upon any person bound by the recognizance to pay the

2. penalty thereof,or toshowcausewhy it shouldnotbepaid. 3. (2) If sufficient cause is not shown and the penalty is not paid,the courtmay proceed to recover it by issuing a warrant for the attachment and sale of the movable property belonging to that person,or his estate if 4. heisdead. 5. (3)A warrant may be executed within the local limits of the 6. jurisdiction of the court which issued it: and it shall authorize the attachment and sale of the movable property belonging to the person without those limits,when endorsedby a magistrate within the local limits ofwhose jurisdiction theproperty is found.

• (4) If the penalty is not paid and cannot be recovered by attachment
• and sale,the person so bound shall be liable,by order of the court which issued the warrant,to imprisonmentfora term notexceedingsix months.
• (5) The courtmay remit a portion of the penalty mentioned and enforcepaymentin part only.
• (6) When a person who has furnished security is convicted of an offence the commission ofwhich constitutesa breachof the conditions of his recognizance,a certified copy of the judgment of the court by which he was convicted may be used as evidence in proceedings under this section against his suretyor sureties,and,if thecertified copyis soused,thecourt shall presume that the offence was committed by him unless thecontrary isproved.

Section137BofCap.75which itisproposed toamend-

137B.Pleaagreementonbehalfof theRepublic

Aplea agreement on behalf of the Republic shall be entered into by

the Director ofPublic Prosecutions or officers authorized by the Director ofPublic Prosecutions in accordance with article 157(9)of the prosecute:

Provided that in any trial before a subordinate court,a public prosecutor may with theprior written approval of theDirector ofPublic Prosecutions or officers subordinate to him,as the casemay be,enter into aplea agreement in accordance with section 137A (1).

Section143ofCap.75which itisproposed toamend-

• 143.Leave of Director ofPublic Prosecutions necessary before prosecution instituted
• (1)Proceedings for the trial of a person who is not a Kenya citizen for an offence committed within exclusive economic zone and the territorial waters shall notbe instituted in any court exceptwith the leave of the Director of Public Prosecutions and upon his certificate that it is expedient that proceedings should beinstituted:

Provided that-

• (i proceedings before a subordinate court previous to the committalofan accusedpersonfor trialor to thedetermination ofthecourt that the offender is to beput upon histrial shall not be deemedproceedingsfor the trial of theoffencecommitted by the offender for thepurposes of the consent and certificate;

• (ii)it shall not be necessary to aver in a charge or information that the consentor certificate of the Director ofPublicProsecutions required by this section has been given,and the fact of their having been given shall be presumed unless disputed by the accused person at the trial;and the production of a document purporting to be signed by the Director of Public Prosecutions and containing the consent and certificate shall be sufficient evidence for all the purposes of this section of that consent and certificate;
• (ili) this section shall not prejudice or affect the trial of an act of piracy asdefined by the LawofNations.
• (2)In this section,"offence"means an act,neglect or default of such adescription as would,if committed in England,be punishable on indictmentaccording to the lawofEnglandfor thetimebeinginforce.

Section149ofCap.75which it isproposed toamend-

149.Penalty fornon-attendance ofwitness

• (1)A person summoned to attend as a witness who,without lawful excuse, fails to attend as required by the summons,or who,having attended,departs without having obtained the permission of the court,or who fails toattendafter adjournmentof thecourt after beingordered to attend,shall be liable by order of the court to a fine not exceeding five thousand shillings.
• (2)The fine shall be levied by attachment and sale of movable propertybelongingto thewitnesswithin thelocal limits ofthe jurisdiction ofthecourt.
• (3)In default of recovery of the fine by attachment and sale the witness may,by order of the court,beimprisoned asa civil prisonerfor a termoffifteendaysunless thefineispaidbefore theend of term.
• (4)Forgoodcause shown,theHigh Courtmay remit orreduce a fine imposed under thissection by a subordinatecourt.

Section154ofCap.75whichitisproposedtoamend-

154.Issue ofcommissionfor examination ofwitness

• (1) Whenever,in the course of a proceeding under this Code,the High Court or a magistrate empowered to hold a subordinate court of the first class is satisfied that the examination of a witness is necessary for the ends of justice,and that the attendance of the witness cannot be procured without an amount of delay,expense or inconvenience which,under the circumstances of the case,would be unreasonable,the court or magistrate

may issue a commission to anymagistratewithin the local limits ofwhose jurisdiction the witnessresides,to take the evidence of thewitness.

• (2) Themagistrate towhom thecommission is issued shall proceed to theplace where thewitness is or shall summon thewitness before him, and shall take down his evidence in the same manner,and may for this purpose exercise the same powers,as in the case of a trial.

Section156ofCap.75whichitisproposed toamend-

156.Power of magistrate to apply for issue of commission

Whenever,in the course of a proceeding under this Code before a magistrate other than a magistrate empowered to hold a subordinate court

ofthe first class,it appears that a commission ought to be issuedfor the examination of a witness whose evidence is necessary for the ends of justice,and that the attendance of the witness cannot be procured without an amount of delay,expense or inconvenience which, under the circumstances of the case,would be unreasonable,the magistrate shall apply to the High Court,stating the reasons for the application;and the High Court may either issue a commission in the manner provided in section 154 orreject theapplication

Section157ofCap.75which itisproposed to amend-

157.Returnof commission

• (1)Aftera commission issued under section 154orsection 156 has been duly executed it shall be returned,together with the deposition of the witness examined thereunder,to the High Court or to the magistrate empowered to hold a subordinatecourt of the first class(as the case may be),and the commission,the return thereto and the deposition shall be open at all reasonable times to inspection of the parties,and may,subject to all just exceptions,be read in evidence in the case by either party,and shall formpartoftherecord.
• (2)A deposition so taken,if it satisfies the conditions prescribed by section34of the Evidence Act(Cap.80)may also be received in evidence ata subsequentstageof the case before anothercourt.

Section162of Cap.75whichitisproposed toamend-

162.Inquiry by court as to soundness of mind of accused

• (1)***When in the course of a trial or committal proceedings the
• court has reason to believe that the accused is of unsound mind and consequently incapable ofmaking his defence,it shall inquire into the fact ofunsoundness.

• 2) If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence,it shall postpone further proceedings in the case.

2. ***Powers delegated to the Minister and to the Permanent Secretary of the Ministry for the time being responsible for prisons,by L.N. 3. 579/1963. 4. (3) If the case is one in which bail may be taken,the court may release the accused person on suficient security being given that he will beproperly taken care of and prevented from doing injury to himself or to anyother person,andforhis appearance before the court orsuch officer as the court may appoint in that behalf. 5. (4)If thecase isone in which bail may not be taken,or if sufficient security is not given,the court shall order that the accused be detained in safe custody in such place and manner as it may think fit,and shall transmit the courtrecord ora certified copy thereof to the Minister for consideration by the President. 6. (5)Upon consideration of the record the President may by order underhis hand addressed to the court direct thatthe accused bedetained in a mental hospital or other suitable place ofcustody,and the court shall issue a warrant in accordance with that order;and the warrant shall be sufficient authority for the detention of the accused until the President makes a further order in the matter or until the court which found him incapable ofmakinghisdefence orders him to be broughtbefore it again in themannerprovided by sections163 and 164.

Section166ofCap.75whichitisproposedtoamend-

166.Defence of lunacy adduced attrial

• (1) Where an act or omission is charged against a person as an offence that he was insane so as not to be responsible for his acts or

2. offence,and it is given in evidence on the trial of that person for that omissions at the time when the act was done or the omission made,then if it appears to thecourtbeforewhichtheperson is tried thathedid the act or made the omission charged butwas insane at the time he did or made it, the court shall makea special finding to the effect that the accused was guilty ofthe actor omission charged butwas insanewhen he did the actor made theomission.

• (2) When a special finding is so made,the court shall report the case for the order of thePresident,and shall meanwhile order theaccused to be kept in custody in such place and in such manner as the court shall direct.

• (3) The President may order the person to be detained in a mental hospital,prisonor othersuitableplaceofsafecustody.

2. (4)The officer in charge of a mental hospital,prison or other place in which a person is detained by an order of the President under subsection (3) shall make a report in writing to the Minister for the consideration of the President in respect of the condition,history and circumstances of the person so detained,at the expiration of a period of three years from the dateof thePresident'sorder and thereafter at the expirationofeachperiod of twoyearsfrom thedateof thelastreport. 3. (5) On consideration of the report,the President may order that the person so detained be discharged or otherwise dealt with,subject to such conditions as to hisremainingunder supervision in anyplace orby any person,and to such other conditions for ensuring the safety and welfare of the person in respect ofwhom the order is made and of the public,as the President thinksfit. 4. (6)Notwithstanding the subsections(4)and (5),a person or persons thereunto empowered by thePresident may,at any time after a person has been detained by order of the President under subsection (3),make a special report to the Minister for transmission to the President,on the condition,history and circumstances of the person so detained,and the President,on consideration of the report,may order that the person be discharged or otherwise dealt with,subject to such conditions as to his remaining under supervision in any place or by any person,and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public,as the President thinksfit. 5. order of the President under subsection (3)be transferred from a mental hospital to a prison or from a mental hospital,or from anyplace in which he is detained or remains under supervision to either a prison or a mental hospital.

Section167ofCap.75which it isproposed toamend-

167.Procedure when accused doesnotunderstand

• (1)*If the accused,though not insane,cannot be made to understand the proceedings-
• (a) in cases tried by a subordinate court,the court shall proceed to hear the evidence,and,if at the close of the evidence for the prosecution,and,if the defence has been called upon,of any evidence for the defence,the court is of the opinion that the

• evidence which it has heard would not justify a conviction,it shall acquit and discharge the accused,but if the court is of the opinion that the evidence which it has heard would justify a conviction it shall order the accused to be detained during the President's pleasure;but every such order shall be subject to confirmation by the High Court;
• (b) in cases tried by the High Court,the Court shall try the case and at the close thereof shall either acquit the accused person or,if satisfied that the evidence would justify a conviction,shall order that the accused person be detained during the President's
• pleasure.
• (2)A person ordered to be detained during thePresident's pleasure shall be liable to be detained in such place and under such conditions as thePresidentmay from time to time by order direct,andwhilst so detained shall be deemed tobein lawful custody.
• (3)The President may atany time of his own motion,or after him,order that a person detained as provided in subsection (2) be discharged or otherwise dealt with,subject to such conditions as to the person remaining under supervision in any place or by any person,and such other conditions for ensuring the welfare of the detained person and thepublic,as the President thinksfit.
• (4) When a person has been ordered to be detained during the Presidents pleasure under paragraph (a) or paragraph (b) of subsection (1), the confirming or presiding judge shall forward to the Minister a copy of the notes of evidence taken at the trial,with a report inwriting signed by him containing any recommendation or observations on the case he may think fit to make.

Section 171ofCap.75which it isproposed to amend-

171.Power to order costs against accused orprivate prosecutor

• (1) A judge of the High Court or a magistrate of a subordinate court of the first or second classmay order a person convicted before him of an offence to pay to thepublic or private prosecutor,as the case may be,such reasonable costs as the judge or magistrate may deem fit,in addition to any other penalty imposed.

2. (2)A judge of the High Court or a magistrate of a subordinate court of the first or second class who acquits or discharges a person accused of an offence may,if the prosecution for the offence was originally instituted on a summonsorwarrant issued bya court on theapplicationofaprivate

prosecutor,order the private prosecutor to pay to the accused such

reasonable costs as the judge or magistrate may deemfit:

Provided that-

• (i) the costs shall not exceed twenty thousand shillings in the High Court or ten thousand shillings in the case of an acquittal or discharge by a subordinate court;and
• (ii)no such order shall be made if the judge or magistrate considers that theprivateprosecutor hadreasonable grounds formakinghis complaint.

Section197ofCap.75whichitisproposed toamend-

197.Manner ofrecordingevidence before magistrate

• (1) In trials by orbefore a magistrate,the evidence of the witnesses

2. shall berecorded in thefollowingmanner- 3. (a) the evidence of each witness shall be taken down in writing or on a typewriter in the language of the court by the magistrate,or in his presence and hearing and under his personal direction and superintendence,and shall be signed by the magistrate,and shall form partoftherecord; 4. (b)such evidence shall not ordinarily be taken down in the form of question and answer,but in the form of a narrative:

Provided that the magistrate may take down or cause to be taken down any particular questionand answer.

• (2)Notwithstanding the provisions of subsection (1),a record of any proceedings ata trial by orbefore a magistrate may be taken in shorthand if the magistrate so directs:and a transcript of the shorthand shall be made
• if the magistrate so orders,and the transcript shall formpart of therecord.
• (3)If a witness asks that his evidence be read over to him the magistrate shall cause that evidence to be read over to him ina language
• which he understands.

Section198ofCap.75which itisproposed toamend-

198.Interpretation ofevidence to accused orhis advocate

• (1) Whenever any evidence is given in a language not understood by the accused,and he is present in person,it shall be interpreted to him in open court in a language which he understands.

• (2) If he appears by advocate and the evidence is given in a language other than English and not understood by the advocate,it shall be interpreted to the advocate in English.

2. (3)When documents are put in for the purpose of formal proof,it shall be in the discretion of the court to interpret as much thereof as appearsnecessary. 3. (4) The language of the High Court shall be English,and the 4. language of a subordinate court shall be English or Swahili.

Section202of Cap.75which it isproposed to amend-

202.Non-appearance of complainant at hearing

• If,in a case which a subordinate court has jurisdiction to hear and determine,the accused person appears in obedience to the summons served upon him at the time andplace appointed in the summons for the hearing of the case,or is brought before the court under arrest,then,if the complainant,having had notice of the time and place appointed for the hearing of the charge,does not appear,the court shall thereupon acquit the accused,unless for some reason it thinks it proper to adjourn the hearing of the case until some other date,upon such terms as it thinksfit,in which event it may,pending the adjourned hearing,either admit the accused to bail or remand him to prison,or take security for his appearance as the court thinksfit.

Section205of Cap.75which it isproposed toamend-

205.Adjournment

• (1)The court may,before or during the hearingofa case,adjourn the presence and hearingof the party orparties or their respective advocates
• hearing to a certain time andplace to be then appointed and stated in the then present,and in the meantime the court may allow the accused person togo at large,ormay commit him to prison,or may release him upon his entering into a recognizance with or without sureties conditioned for his appearance at the time and place to which the hearing or further hearingis adjourned:

Provided thatno such adjournment shall be for more than thirty clear days,or,if the accused person has been committed to prison,for more than fifteen clear days,the day following that on which the adjournment is madebeing counted as thefirst day.

• (2) Notwithstanding subsection (1),the court may commit the accused persons topolice custody-

• (a)fornotmore than threeclear days if there isnoprison within five
• miles of the court-house;or
• (b)for notmore than seven clear days if there is no prison within five miles of the court-house and the court is not due to sit again at that court-house within three days;or
• (c)at the request of the accused person,for not more than fifteen
• clear days.
• (3)For thepurposes of this section,in relation to any case where the maximum sentence for the offence with which the accused person is charged is punishable only by fine,or by imprisonment not exceeding twelve months with or withouta fine"prison"shall be deemed to include a detention camp established in accordance with the Detention Camps Act (Cap.91).

Section219ofCap.75whichitisproposed toamend-

219.Limitation of timefor summary trials in certain cases

Except where a longer time is specially allowed by law,no offence

themaximumpunishmentforwhichdoesnotexceedimprisonmentforsix months,or a fine of one thousand shillings,or both,shall be triable by a subordinate court,unless the charge or complaint relating to it is laid within twelve months from the time when the matter of thechargeor complaintarose.

Section221ofCap.75which it isproposed toamend-

221.Committal tohighercourtforsentence

• (1)Where a person ofnotless than eighteen yearsof age is convicted by a subordinate court of the second class of an offence which is punishableby either thatcourt ora subordinate court of the firstclass,and the court convictinghim,after obtaining information as to his character and antecedents,is of the opinion that they are such that greater punishment should beinflicted than it haspower to inflict,thatcourt may, instead ofdealingwith himitself,commithim incustody to theResident Magistrate's Court for sentence.
• (2) Where a person who is not less than eighteen years of age is convicted bya subordinatecourtofthefirstclassofan offence whichis punishableby eitherthat court or theHigh Court,and thecourt convicting him,after obtaining information as to his character and antecedents,is of than it has power to inflict,that court may,instead of dealing with him itself,commit him in custody to theHigh Courtforsentence.

• (3)Where the offender is committed under subsection (1)or
• subsection (2) for sentence,the court to which he is committed shall inquire into the circumstances of the case,and may deal with the offender in anymanner inwhichhecouldbedealtwithif he hadbeen convicted by that court;and,if that court passes a sentence which the court convicting him had not the power to pass, the offender may appeal against the sentence to theHigh Court (if sentenced by a subordinate court of the first class),or to the Court of Appeal (if sentenced by the High Court),but otherwise he shall have the same right of appeal in all respectsas if he had been sentenced by the court which convictedhim.

Section275ofCap.75which itisproposedtoamend-

• 275.Orders for amendment of information,separate trial,and postponementoftrial
• (1) Everyobjection to an informationfor a formal defecton theface thereof shall be taken immediatelyafter the information has been read overto the accusedperson and not later.
• (2)Where,before a trial upon information or at any stage of the trial, itappears to the court that the information is defective,the court shall make an order for the amendmentof the information as the court thinks necessary to meet the circumstances of the case,unless,having regard to the merits of the case,the required amendments cannot be made without injustice;and any amendments shall be made upon such terms as to the
• court shall seem just.
• (3) Where an information is so amended,a note of the order for amendment shall be endorsed on the information,and the information shall be treated for the purposes of all proceedings in connexion therewith
• ashavingbeen filedin the amended form.
• (4) Where,before a trial upon information or at any stage of the trial, the court is of the opinion that the accused may be prejudiced or embarrassed inhis defence byreason ofbeing charged withmore than one offence in the same information,or thatfor any otherreason it is desirable to direct that the accused should be tried separatelyfor anyone or more offences charged in an information,the court may order a separate trial of
• any count or counts of the information.
• (5)Where,before a trial upon information or at any stage of the trial, the court isof theopinion that thepostponement of the trial of the accused is expedient as a consequence of the exerciseofanypower of the court under this Code,the court shall make such order as to thepostponement of
• the trial as appears necessary.

• (6) Where an order of the court is made under this section for a separate trial or forpostponement of a trial-
• (a)Repealed byAct No.7of2007,Sch.;
• (b) theprocedure on the separate trial of a count shall be the same in all respects as if the count had been found in a separate information,and theprocedure on the postponed trial shall be the same in all respects(provided that the assessors,if any,have been discharged) as if the trial had notcommenced;and
• (c) the court may make such order as to admitting the accused to bail, and as to the enlargement of recognizances and otherwise,as the
• court thinks fit.
• (7)A power of the court under this section shall bein addition to and notin derogation ofany otherpower ofthecourt for thesame or similar purposes.

Section277of Cap.75whichit isproposed toamend-

277.Procedure in case ofprevious convictions

Where an information contains a count charging an accused person with having been previously convicted for an offence,the procedure shall be asfollows-

• (a) the part of the information stating the previous conviction shall not be read out in court,nor shall the accused be asked whether he has been previously convicted as alleged in the information, unless and until he has either pleaded guilty to or been convicted of the subsequent offence;
• (b)if hepleads guilty to or is convicted of the subsequent offence,he shall then be asked whether he has been previouslyconvicted as alleged in theinformation;
• (c)if he answers that he has been so previously convicted,the judge may proceed to pass sentence on him accordingly;but if he denies that he has been so previously convicted,or refuses to or does not answer the question,the court and the assessors shall then hear evidence concerning theprevious conviction:

Provided that,ifupon the trial ofa person for a subsequent offence thatperson givesevidenceofhisown good character,the advocatefor the prosecution,in answer thereto,may giveevidence of the conviction of that person for the previous offence or offencesbefore a verdict of guilty is returned,and the court and assessors shall inquire concerning the previous conviction or convictions at the same time that they inquire concerning the subsequent offence.

Section280 of Cap.75which it isproposed toamend-

280.Refusal to plead

• (1) If an accused person being arraigned upon an information stands
• mute of malice,or neither will nor by reason of infirmity can,answer directly to the information,the court may order the Registrar or other officer of the court to enter a plea of"not guilty"on behalf of the accused person,and plea so entered shall have the same force and effect as if the accused person had actually pleaded it;or else the court shall thereupon proceed to trywhether theaccusedperson beofsound or unsoundmind and,ifheisfoundofsound mind,shallproceedwith the trial,and ifheis found of unsound mind,and consequently yincapable of making his defence,shall order the trial to be postponed and the accusedperson to be kept meanwhile in safe custody in such place and manner as the court thinksfit,and shall report thecasefor the order of thePresident.
• (2) The President may order the accused person to be confined in a lunatic asylum,prison or other suitableplacefor safe custody.

Section334of Cap.75which it isproposed toamend-

334.Warrant forlevy offine,etc.

• (1) Whena court ordersmoney to bepaid by anaccusedperson orby a prosecutor or complainant for fine,penalty,compensation,costs, expenses or otherwise,the money may be levied on the movable and immovablepropertyof thepersonordered topay itby distressand sale under warrant;but if he shows sufficient movable property to satisfy the orderhisimmovablepropertyshall notbesold.
• (2) The person may pay or tender to the officer having the execution of thewarrant the sum therein mentioned together with theamount of the expensesof the distress up to the time ofpayment or tender,and thereupon the officer shall cease to execute it.

3. (3)A warrant under this section may be executed within the local limits of the jurisdiction of the court issuing it,and it shall authorize the distress and sale ofproperty belonging to the person without those limits when endorsed by a magistrate holdinga subordinate court of the first or second classwithin the local limitsofwhosejurisdiction thepropertywas found.

Section347ofCap.75which it isproposed toamend-

347.Appeal toHigh Court

• (1)Save asisin thisPartprovided-

• (a)a person convicted on a trial held by a subordinate court of the first or second classmay appeal to the High Court;and
• (b)Repealed by Act No.5of2003,s.93.
• (2)An appeal to theHigh Court may be on a matter of fact aswell as on amatteroflaw.

Section348of Cap.75whichitisproposed toamend-

348.No appeal on plea of guilty,nor in petty cases

No appeal shall be allowed in the case of an accused person who has pleadedguilty andhasbeen convictedon thatplea by a subordinatecourt, except asto theextent orlegality of the sentence.

Section348Aof Cap.75which it isproposed toamend-

• 348A.Right of appeal against acquittal,order of refusal or order ofdismissal
• subordinate court or High Court,or where an order refusing to admit a complaint or formal charge,or an order dismissing a charge,has been made by a subordinate court or High Court, the Director of Public Prosecutionsmay appeal to the High Court or the Court ofAppeal as the casemaybe,from the acquittal or orderon a matteroffact andlaw.
• (2)If the appeal under subsection(1)is successful,the High Court or Court of Appeal as the case may be,may substitute the acquittal with a conviction and may sentence the accused person appropriately.

Section350of Cap.75whichit isproposed toamend-

350.Petition of appeal

• (1) An appeal shall be made in the form of a petition in writing presented by the appellantor hisadvocate,and every petition shall (unless the High Court otherwise directs) be accompanied by a copy of the judgmentor order appealed against.
• (2)A petition of appeal shall be signed,if the appellant is not represented by an advocate,by the appellant,and,if the appellant is represented by an advocate,by the advocate,and shall contain particulars ofthemattersof law or fact in regard to which the subordinatecourt appealed from is alleged to have erred,and shall specify an address at which noticesor documents connected with the appeal may be served on the appellant or,as the case may be,on his advocate; and the appellant shall not be permitted,at the hearing of the appeal,torely on a ground of appeal other than those set out in thepetition of appeal:

Provided that-

• (i) subject to the provisions of paragraph (i),where,within five days of the date of the judgment or order appealed against,the appellant or his advocate has applied to the subordinate court which passed thejudgment ormade the orderfor a copy of the record of the proceedings before that court,and where the appeal is enteredwithin theperiod oflimitation prescribed by section349 butbeforereceipt by the appellant or hisadvocate of the copy of the record,the petition of appeal may be amended onnoticeinwritingto theRegistrarof theHigh Courtand to the Director ofPublicProsecutions and without leave of the High Court,within seven days of the receipt by the appellant or his advocate of the copy of therecord applied for;
• (ii) the provisions ofparagraph (i) shall not apply where the petition ofappeal is signed by an advocate who represented the appellant
• in the proceedings before the subordinate court appealedfrom;
• (ili)where a copy of the record of the proceedings before the orhis advocate,the date of the receipt thereof by the appellant or his advocate shall be certified to the High Court by the subordinate court,and shall for the purposes ofthis subsection
• be deemed tobe-
• (a) if the copy of the record is delivered otherwise than by post, thedateofdelivery;and
• (b) if the copy of the record is delivered by post,the date on which it is shown,on an advice of the delivery of a registered postal article issued underregulation 37(3) of the East African Postal Regulations,or any provision of law amending or replacing that regulation,to have been
• delivered,

and no such copy of a record shall be delivered by post otherwise

than by registered post;

• beamendedwith theleaveof theHigh Court and onsuch terms and conditions,whether as to costs or otherwise,as the High Courtmay see fit to impose;
• notice in writingofan application for leave to amend a petition ofappeal shall begiven to theRegistraroftheHigh Court and to the Attorney-General not less than three clear days,or such

shorter period as the High Court may in any particular case allow,before the application is made;and an application for leave to amend a petition of appeal shall bemade either at the hearingof theappeal or,ifmadepreviously,by way ofmotion in open court.

Section354of Cap.75whichit isproposed to amend-

354.PowersofHigh Court

• (1) At the hearing of the appeal the appellant or his advocate may address the court in support of the particulars set out in the petition of appeal and therespondent or his advocatemay then address thecourt.
• (2) The court may invite the appellant or his advocate to reply upon anymatters of law or fact raised by therespondent orhis advocate in his

3. address. 4. (3) The court may then,if it considers that there is no sufficient ground for interfering,dismiss the appeal or may- 5. (a) in an appeal from a conviction- 6. (i)reverse the finding and sentence,and acquit or discharge the accused,or order him to be tried by a court ofcompetent jurisdiction;or 7. (ii) alter the finding,maintaining the sentence,or,with or without altering the finding,reduce or increase the sentence; or 8. (ili) with or without a reduction or increase and with or without altering the finding,alter the nature of the sentence; 9. (b) in an appeal against sentence,increase or reduce the sentence or 10. alter thenature of the sentence; 11. refusing to admit a complaintor formal chargeor an appeal from an order dismissing a charge,hear and determine the matter of law and thereupon reverse,affirm or vary the determination of the subordinate court,or remit the matter with the opinion of the High court thereon to the subordinate court for determination,whether by way of rehearing or otherwise,with such directions as the High Court may think necessary,and make such other order in relation to the matter,including an order as to costs,as High Courtmay thinkfit;

• (c) in an appeal from an acquittal,an appeal from an order refusing
• dismissing a charge,hear and determine the matter of law and thereupon reverse,affirm or vary the determination of the subordinate court,or remit the matter with the opinion of the High Court thereon to the subordinate court for determination, whether by way ofre-hearing orotherwise,with such directions as the High Court may think necessary,and make such other order in relation to the matter,including an order as to costs,as the High Court may think fit;
• (d)in an appealfrom anyotherorder,alter orreverse theorder,
• (4)Subject to subsection (5),an appellant,notwithstanding that he is in custody,shall be entitled to be present,if he desires it,at the hearing of the appeal:

Provided that where the appeal is on some ground involving a question of lawalone,he shall notbe entitled to bepresent except with the leaveoftheHigh Court.

• (5) Therightof an appellantwho isin custody to be present at the hearing of the appeal shall be subject to his paying all expenses incidental to his transfer to and from the place where the court sits for the determination ofthe appeal:

Provided that the court may direct that the appellant be brought before the court in a case where in the opinion of the court hispresence is advisable for the due determination of the appeal,in which case the

expenses shall bedefrayed outofmoneysprovided byParliament.

• (6)Nothing in subsection (1) shall empower the High Court to impose a greater sentence than might have been imposed by the court which tried the case.
• (7)DeletedbyAct No.10of1969,Sch.

Section356ofCap.75which it isproposed toamend-

• 356.Bail and stay ofexecutionpending the enteringof an appeal
• (1) The High Court,or the subordinate court which has convicted or order pending the entering ofan appeal,on such terms as to security for the paymentofmoney or the performance ornon-performance of any act

or the suffering of anypunishment ordered by or in the sentence or order as may seem reasonable to theHigh Court or the subordinate court.

• (2)If theperson in whose favourbail or a stay of execution isgranted under this section is ultimately liable to a sentence of imprisonment,the time during which the person has been released on bail,or during which the execution was stayed,shall be excluded in computing the term of his sentence,unless the High Court,or failing that court the subordinate court which convicted and sentenced theperson,otherwise orders.

Section358of Cap.75whichit isproposed to amend-

358.Power to takefurther evidence

• (1) In dealing with an appeal from a subordinate court,the High Court,ifit thinks additional evidence isnecessary,shall record itsreasons, and may either take such evidence itself or direct it to be taken by a
• subordinate court.
• 2) When the additional evidence is taken by a subordinate court,that court shall certify the evidence to the High Court,which shall thereupon proceed to dispose of the appeal.
• (3) Unless the High Court otherwise directs,the accused or his advocate shall bepresentwhen the additional evidence is taken.
• (4) Evidence taken in pursuance of this section shall be taken as if it wereevidence takenata trial before a subordinate court.

Section359of Cap.75whichit isproposedto amend-

359.Number of judges on an appeal

• (1)Appeals from subordinate courts shall be heard by one judgeof the High Court,except when in any particular case the Chief Justice,or a judge towhom the Chief Justice hasgiven authority in writing,directs that the appeal be heard by one judge of theHigh Court.
• (2)If on the hearing of an appeal the court is equally divided in opinion the appeal shall bereheardbefore three judges.

Section360of Cap.75whichit isproposed to amend-

360.Abatementofappeals

Every appeal from a subordinate court (except an appeal from a sentence of a fine) shall finally abate on the death of the appellant.

Section361of Cap.75whichitisproposed toamend-

361.Second appeals

• (1)A party to an appeal from a subordinate court may,subject to subsection (8),appeal against a decision of the High Court in its appellate

jurisdiction on a matter of law,and the Court of Appeal shall not hear an

appeal under this section-

• (a)on a matter of fact,and severity of sentence is a matter of fact;or
• (b)against sentence,except where a sentence has been enhanced by the High Court,unless the subordinate court had no power under section 7 to pass that sentence.
• (2) On any such appeal,the Court ofAppeal may,if it thinks that the judgment of the subordinate court or of the first appellate court should be set asideorvaried on the groundofa wrong decision on a question of law, make any order which the subordinate court or the first appellate court could have made,or may remit the case,together with its judgment or order thereon,to the first appellate court or to the subordinate court for determination,whether ornot by way ofrehearing,with such directions as
• theCourtofAppeal may thinknecessary.
• (3)If it appears to the Court of Appeal that a party to an appeal,
• thoughnotproperly convicted on some count,hasbeenproperly convicted on some other count,the court may,in respect of the count on which it considers that the appellant has been properly convicted,either affirm the sentencepassed by the subordinate court orby thefirstappellatecourt or pass such other sentence (whether more or less severe) in substitution therefor as it thinks proper.
• (4)Where a party to an appeal has been convicted of anoffence and the subordinatecourtor thefirst appellate courtcould lawfullyhavefound him guilty of some other offence,and on the finding of the subordinate court orof the firstappellatecourt it appearsto the CourtofAppeal that the court must havebeen satisfiedoffactswhich proved himguilty of that otheroffence,the Court of Appeal may,insteadof allowingor dismissing the appeal,substitutefor the convictionentered by the subordinatecourt or by thefirst appellatecourt a conviction ofguilty ofthat other offence,and pass such sentence in substitution for the sentence passed by the subordinate court or by the first appellate court as may be warranted in lawforthat otheroffence.
• (5) On any appeal brought under this section,the Court of Appeal may,notwithstanding thatit may be of the opinion that thepointraised in the appeal might be decided in favour of the appellant,dismiss the appeal if it considers that no substantial miscarriage of justice has in fact occurred.
• (6) Where an appeal under this section is pending,a judge of the
• High Court may grant bail to a convicted person who is a party to the appeal.

• (7)For the purposes of this section,an order made by the High Court in the exercise of its revisionary jurisdiction or a decision of the High Court on a case stated shall be deemed to be a decision of the High Court in itsappellate jurisdiction.
• (8)This section shall not apply to-
• (a)a decision of the High Court in its appellate Jurisdiction exercised under section347(1)(b);or
• (b)a refusal by the High Court to admit an appeal out of time under section349,

and any such decision orrefusal shall befinal.

Section362ofCap.75whichit isproposed toamend-

362.Power ofHigh Court to call forrecords

The High Court may call for and examine therecord of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to thecorrectness,legality orproprietyof any finding,sentence or order recorded or passed,and as to the regularity of anyproceedings of any such subordinate court.

Section363of Cap.75which it isproposed to amend-

363.Subordinate courtmay call forrecords ofinferior court

• (1)A subordinatecourtof thefirst classmay call forand examine the recordofanycriminalproceedingsofa subordinatecourt ofa lower class than it and established within its local limits of jurisdiction,for the purpose of satisfying itself as to the legality,correctness or propriety of any finding,sentence or order recorded or passed,and as to the regularity
• of the proceedings.
• (2) If a subordinate court acting under subsection(1) considers that a finding,sentenceororderofthecourtof lowerclassisillegal orimproper, or that the proceedings were irregular,it shall forward the record with its remarks thereon to theHigh Court.

Section364ofCap.75which itisproposed to amend-

364.Powers of High Court on revision

• (1) In the case of a proceeding in a subordinate court the record of which hasbeen calledfor orwhichhasbeen reported fororders,or which otherwise comes to itsknowledge,theHigh Court may-

• (a)in the case of a conviction,exercise any of the powers conferred on it asa courtofappealby sections354,357and358,andmay enhance the sentence;
• (b)in the caseof any other order other than an order of acquittal
• alter orreverse the order.
• (c)inproceedingsunder section203or296(2)of the Panel Code,the Preventionof Terrorism Act,theNarcotic Drugs and PsychotropicSubstances (Control) Act,the Prevention of Organized Crimes Act,the Proceeds of Crime and Anti-Money Laundering Act,the Sexual Offences Act and the CounterTrafficking in Persons Act, where the subordinate court has granted bail to an accused person,and the Director of Public Prosecution hasindicated his intention to apply forreviewof the order of the court,the order of the subordinate court may be ofthe applicationforreview.
• (2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:

Provided that this subsection shall not apply to an order made where

a subordinate court hasfailed topass a sentencewhich it was required to pass under the writtenlaw creating the offence concerned.

• (3)Where the sentence dealt with under thissection has beenpassed by a subordinate court,the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed thanmighthavebeeninflicted by thecourtwhich imposed the sentence.
• (4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal intoone ofconviction.
• (5) When an appeal lies from a finding,sentence or order,and no appeal isbrought,noproceedingby way ofrevision shall beentertained at
• the insistence of theparty who could have appealed.

Section366of Cap.75whichitisproposedtoamend-

366.Number of judges in revision

All proceedings before theHigh Court in the exercise of its revisional jurisdiction may be heard and any judgment or order thereon may be made

orpassed by one judge:

Provided thatwhen thecourt iscomposed ofmore than onejudge and the court is equally divided in opinion, the sentence or order of the subordinate court shall be upheld.

Section385of Cap.75which it isproposed toamend-

385.Magistrates empowered tohold inquests

A magistrate empowered to hold a subordinate court of the first,or second class,and a magistrate specially empowered in that behalf by the Chief Justice,shall be empowered to hold inquests.

Section386of Cap.75whichit isproposed toamend-

386.Police to inquire and report on suicide,etc.

• (1) The officer in charge of a police station,or any other officer information thataperson-
• (a)has committed suicide;
• (b)has been killed by another or by an accident;
• (c)has died under circumstances raising a reasonable suspicion that some other person has committed an offence:or
• (d)is missing and believed to be dead;

shall immediately give information thereof to the nearestmagistrate empowered to hold inquests,and,unless otherwise directed by any rule made by the Minister,shall proceed to the place where the body of the deceased person is,and shall there make an investigation and draw up a report on the apparent cause of death,describing such wounds,fractures, bruises and other marks of injury as may be found on the body,and stating in what manner,or by what weapon or instrument (if any), the marks appear to have been inflicted;and the report shall in the case ofparagraph (a),(b)or(c):be forwarded forthwith to the nearest magistrate empowered to hold inquests;and in the case of paragraph (d) shall immediately send to theDirectorofPublicProsecutions through the Inspector-General of the National Police Service asfull a report as possible togetherwith details of all supporting evidence relating to the circumstances surrounding the disappearance and the grounds upon which the death of that person is presumed to have taken place.

• (2)When,except in the case of a missingperson believed to be dead there is any doubt regarding the cause of death,or when for any other reason the police officer considers it expedient to do so,he shall,subject to any rule made by the Minister,forward the body,with a view to its being examined,to thenearest medical officer or other person appointed

by the Minister in that behalf,if the state of the weather and the distance admit ofits being so forwardedwithout risk of such putrefaction on the

road as would render the examination useless.

• (3)When the body ofa person is found ora person has committed suicide or has been killed by another or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence,apersonfindingthebody orbecomingawareof the death shall immediately give information thereof to the nearest administrative officerorpolice officer.

Section391of Cap.75which it isproposed toamend-

391.Shorthand notesofproceedings

Shorthand notes may be taken of the proceedings at the trial of a

person before the High Court or a subordinate court,and a transcript of those notes shall be madeif the court so directs,and the transcript shall for allpurposes be deemed to be the official record of theproceedings at the trial.

Section394 of Cap.75which it isproposed toamend-

394.Expenses of assessors,witnesses,etc.

Subject to any rules which may be made by the Minister,any court may order payment on the part ofthe Government of the reasonable expenses of a complainant or witnessattending before the courtfor the purposes of an inquiry,trial or other proceeding under this Code.