Marking Scheme Criminal - November 2014 (Extradition Question)
Marking Scheme Criminal - November 2014 (Extradition Question)
Marking Scheme Criminal - November 2014 (Extradition Question)
Question 1
A) i) Comment [S1]: Maximum of 4 marks for any of
Determination of eligibility for surrender the points
(1) If a person is brought before a High Court under this Part, the Court shall determine whether the person is eligible for surrender
in relation to the international crime or crimes for which surrender is sought.
The person is eligible for surrender if—
(2)
(b) the Court is satisfied that the person is the person to whom the warrant or judgment relates;
(3) Notwithstanding subsection (3), the person is not eligible for surrender if he satisfies the High Court that a mandatory restriction
on the surrender of the person specified in section 51(1) of the International Crimes Act applies.
Before making a temporary surrender order, the Minister may seek undertakings from the ICC relating to one or more of the
following matters—
(a) the return of the person to Kenya;
(b) the custody of the person while travelling to and from and while in the ICC’s jurisdiction;
(c) such other matters, if any, that the Minister thinks
appropriate.
ii)
Procedure for Surrender under Extradition (Commonwealth Countries) Act Arrest of the fugitive
First, the request for extradition shall be made to the Attorney General who shall forthwith give written authority to commence
committal proceedings against the fugitive in writing. Apart from particulars of the fugitive and the facts and law relevant to the case,
the requesting country must also attach to the request, an overseas warrant issued in that country or a certificate of conviction and
sentence, and a statement of the amount, if any, of the sentence served, as the case may be.1 A magistrate may then proceed to issue a
warrant for the arrest of the fugitive.
However, a magistrate may also issue a provisional warrant of arrest without the authority to proceed from the Attorney General,
where the fugitive is, or is believed to be in or on his way to Kenya, having been satisfied that the circumstances and evidence would
merit issuance of the warrant in a similar offence against Kenyan law. In this case, the magistrate issuing the warrant is to give notice
to the Attorney-General and transmit to him all evidence and information upon which the warrant was issued, and the Attorney-
General may then issue an authority to proceed with committal proceedings or cancel the warrant and discharge the fugitive from
custody if he has been arrested under the warrant.
Where at the time of arraignment, the court is yet to receive the authority to proceed, it may set a reasonable time to be notified to the
Attorney-General, within which to await the authority to proceed, at the expiry of which, having not received such authority,the court
will discharge the fugitive.
Upon committal to custody, the court shall inform the fugitive of the right to make an application for habeas corpus2and he shall not
be surrendered until fifteen (15) days from the time of committal have expired, or while the application for habeas corpusis still
pending before the High Court.
Upon hearing the said application, the High Court may discharge the fugitive if it appears that it would be unjust or oppressive to
surrender him, since the extradition offence is trivial, much time has passed from the time of commission of the offence or
conviction, or, the accusation against him is not made in good faith in the interests of justice.
In fact, under Section 6 of the Act, a fugitive shall not be kept in custody, committed to custody or surrendered, if it appears,
a) that the offence the fugitive is accused or was convicted of is an offence of a political character, or
b) the request for his surrender, though on the face of it, is made on account of an extradition offence, it is in fact made for the
purpose of prosecuting him on account of his race, religion, nationality or political opinions, or
c) that he might, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of
his race, religion, nationality or political opinions, or
d) if they were charged with a similar offence in Kenya, they would be entitled to a discharge following previous conviction or
acquittal on the same facts.
In addition, the requesting country must also have made provision in law or an arrangement, that the fugitive shall only be dealt with
in respect of the offences which he is surrendered, such lesser offence (s) proved by evidence brought before the Court of committal,
or, any other extradition offence the Attorney-General consents to. Comment [S2]: Maximum 4 marks for each
point mentioned.
B)
DATE: 19 November 2014
This request is made under the bilateral agreement signed by Kenya and Zambia and under Legal Notice 208/1972. The evidence
obtained as a result of this letter of request cannot be used, without your consent, for any other purpose than that specified in the
request.
The office of the Director of Public Prosecutions is seeking assistance touching on a criminal matter that was investigated by the CID
and is pending before the Court of Kenya and which evidence indicates the subject is currently domiciled in the Republic Of Zambia.
In this instance Tumusiime Namirimu is required in Kenya to answer to charges of two counts of robbery with violence Annexed are
the summons issued.
THE NEED FOR ASSISTANCE
This request of assistance is being made in the interest of justice. It will not be used for political, military and fiscal purposes in
Kenya. The information will also not be used to imprison or try the person for an offence other than the offence for which extradition
was granted and committed before extradition.
The action of Ms. Tumusiime Namirimu of Theft is in contravention of Section 275 of the Penal Code Cap. 63 of the Laws of the
Republic of Kenya.
1. Charge Sheet.
2. Warrant of arrest.
3. Authentication certificate.
The Attorney General of the Republic of Kenya will be grateful for any assistance that the Competent Judicial and Administrative
Authorities of the Republic of Zambia can offer in response to this request as the criminal activities concerned have an adverse
bearing on the National understanding and security of Kenya.
The office of the Attorney General and the Kenya Police will assist in the investigation of any crime by the persons within the
jurisdiction of the Republic of Kenya in the spirit of Mutual Legal Assistance in the suppression of crime.
UNDERTAKING
We hereby undertake to abide by the terms and conditions of the governing legislation in the Republic of Zambia and Republic of
Kenya.
XXXXX
HIGH COMMISSIONER FOR KENYA TO ZAMBIA
FOR THE ATTORNEY GENERAL
CHARGE SHEET
Christian Names in Surname or Identity Sex Nationality Apparent Age Address(include
full or Name Father’s Certificate District and Location
Name No. where applicable)
CHARGE
THEFT CONTRARY TO SECTION 275 OF THE PENAL CODE,CAP 63 OF THE LAWS OF
COUNT I KENYA
PARTICULARS
OF OFFENCE TUMUSIIME NAMIRIMU: On the 19 day of November 2014 in Nairobi City County, stole xxx
bags of maize valued at Kshs.xxx the property of the government of the Republic of Kenya.
If Accused Date of Without or Date of Bond or Bail and Is Application made
Arrested Arrest with Apprehension Amount for Summons to Issue
Warrant Report to Court
No ------ ----- ---- ---- ----
Remanded or N/A
Adjourned
Complainant and REPUBLIC THROUGH C. I. D CENTRAL POLICE STATION
Address
Witnesses
Sentence
Court and date
…………………………………………………………
Officer in Charge
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MISCELLANEOUS APPLICATION NO 700 OF 2014
REPUBLIC….……………………………………………………APPLICANT
TUMUSIIME NAMIRIMU……………………………………………….RESPONDENT
WARRANT OF ARREST
(Pursuant to the provisons of Section 5((1) of the Extradition(Contiguous and foreign Countries) Act Cap 76 Laws of Kenya and
Section 102 of the Criminal Procedure Code of Kenya Cap 75)
TO: The Inspector General of Police
P.O Box 5677-889
Kenya
WHEREAS TUMUSIIME NAMIRIMU has this day been charged before this court for the offences of:
1. Theft contrary to section 275 of the Penal Code Cap. 63 Laws of Kenya.
THEREFORE you are hereby commanded forthwith to apprehend the said TUMUSIIME NAMIRIMU and to bring her before this
Court to answer to the said charge, and to be further dealt with according to Law.
DATED this……………………………..day of………………………….2014
……………………………………………..
CHIEF MAGISTRATE
AUTHENTICATION CERTIFICATE
… of the Republic of Kenya do hereby certify that the signature on the warrant of arrest is of TUMUSIIME NAMIRIMU and that all
documents attested and signed by her receive full faith and credence in Kenya.
xxxxxxxxx,
ATTORNEY GENERAL,
REPUBLIC OF KENYA
QUESTION2
a)(i) Theft by Servant Contrary to Section 281 of the Penal Code; handling stolen property contrary to section 322(1) of the Penal
Code; Assault Contrary to Section 251 of the Penal Code; Comment [S3]: 1 mark for each offence that is
identified, maximum of 3 marks.
ii) JOINDER OF COUNTS AND PERSONS
its uniting of parties or claims in single action
s.135 of cpc permits charging of offences together in the same charge sheet or information if the offences charged are
founded on same facts or form or are part of a series of offences of same or similar character
in r. v dalip singh(1943)1eaca 121 appellant charged with theft.
second count appellant charged with bribery and convicted
held although the two offences were different in character they were founded
on same facts as evidence clearly demonstrated that bribe was offered after appellant’s arrest for theft
in kamwan s/o mutia v r(1958)ea 471
accused charged with theft, breaking and entering premises, stealing money and
possession of bhang-magistrate convicted accused of fourth charge as well
on appeal, it was held 4th count should not have been included in the same charge sheet with three other dissimilar counts
since injustice did not arise because of the improper trial of the other three counts the conviction was not disturbed
similarly in r v muir (1938)2all er516 accused charged with 4 offences, two of rape of young girl on different occassions,
stealing from girl’s father and indecent assault on a totally different person.
held-indecent assault and other charges should not have been tried together
however the impropriety did not cause injustice conviction upheld.
s.136 permits following categories of persons to be joined in one charge &may be tried together
1. person accused of same offence committed in course of same transaction
2. persons accused of an offence and persons accused
of abetment or of an attempt to commit the offence
3 persons accused of different offences committed in the course of the same transaction
a person is said to abet if it is demonstrated that he participated in the same transaction
and that he actively assisted in the continuance or completion of the offence
malebe v r (1982)eklr 3 appellants were charged separately on separate counts in one charge sheet with offence of stealing by
servant c/s 281.
particulars showed offences
committed on separate dates, items stolen were different.
appellants not charged for having had a common intent
held-joint charge against several persons for separate offences on different dates amounts to misjoinder
the misjoinder occasioned
prejudice to the appellants because they did not know what charges were against them jointly or separately and when
committed.
misjoinder occasioned a failure of justice and being an incurable defect, trial was a nullity
joinder of persons
in yakobo uma and another v r [1963] ea 542, the two appellants were charged and tried jointly for the offence of ―doing an
act intended to cause grievous harm‖ only the first appellant was charged on the second count. the allegations in the
particulars showed that the incident involving
joinder of persons
the first appellant occurred on a different date and place and with a different weapon from the one said to involve the second
appellant. the complainant was however the same in each count.. on appeal, sir udo udoma cj ruled that the charge as laid
down was bad in law for misjoinder
Comment [S4]: Any of this points, maximum 3
marks
b) Statement of Offence: Theft by Servant Contrary to Section 281 of the Penal Code
Particulars of Offence: Ewang Nambo on 24 January 2014 at Nairobi within Nairobi County stole a cheque leaf the property of Karina
Korir and Company Advocates.
IN THE ALTERNATIVE
Statement of offence: Handling Stolen property contrary to Section 322(1) of the Penal Code
Particulars of Offence: Ewang Nambo and Colletta Gisecho on 24 January 2014 at Nairobi within Nairobi County jointly and
severally handled a stolen cheque leaf by retaining it knowing or having reason to believe the same to be stolen.
Statement of Offence: Assault causing actual bodily harm ontrary to Section 251 of the Penal Code
Particulars of Offence: Bruno Royford on 12 February 2014 along Mupe Road in Ongata Rongai Kajiado County assaulted one
Colletta Gisecho thereby occasioning him actual bodily harm. Comment [S5]: Each correct statement of
offence and particulars to earn 1 mark
QUESTION 3
a) Certiorari and Prohibition (2marks for each)
b) (i) STATEMENT OF FACTS
ITHE REPUBLIC OF KENYA
AT NAIROBI
HC. MISC. OF 2014
BETWEEN
OSINO ONYANGE………………..…………………………..……….APPLICANT Comment [AM6]: 1 MARK for capturing Osino as
AND the applicant
CABINET SECRETARY FOR INTERIOR AND COORDINATION OF
GOVERNMENT………………………………………………………….……….. 1 ST RESPONDENT
INSPECTOR GENERAL OF POLICE…………….………..……………………2 ND RESPONDENT
STATEMENT OF FACTS
(Under order LIII rule 1(2) of the Civil Procedure Rules and all enabling provisions of the law)
B. RELIEFS SOUGHT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NO. OF 2014
IN THE MATTER OF: THE LAW REFORM ACT CHAPTER 26 OF THE LAWS OF KENYA SECTIONS 8 AND 9
AND
IN THE MATTER OF: THE CONSTITUTION OF KENYA ARTICLES 23 AND 47
BETWEEN
AND
(Under Articles 23 and 47 of the Constitution of Kenya, 2010, Order 53 rule 3(1) of the Civil Procedure Rules, Sections 8 and 9
of the Law Reform Act Cap. 26 and all enabling statutes and laws)
TAKE NOTICE that pursuant to leave granted on the …. this honourable court shall be moved on the ……………day
of………………….2015 at 9.00 O’clock in the morning or soon thereafter as shall be shown on the daily cause list, for the advocate
for the above named ex parte applicant will move the Court for:-
WHICH APPLICATION is based on the grounds set out in the Statement filed in court, the Verifying Affidavit of Osino
Oyange dated …. and further and other grounds to be adduced at the hearing hereof.
xxxxxxxxxxxxx
ADVOCATES FOR THE APPLICANT Comment [AM12]: 1 MARK
Entry of Nolle Prosequi in any court by the DPP under S.82 of the CPC. A Nolle Prosequi can be entered either by
stating in court or by informing the court in writing that the Republic intends that the proceedings shall not continue.
[1 Mark]
Withdrawal under S.87 of the CPC by a public prosecutor of a case before a subordinate court.
[1 Mark]
b)
A Nolle Prosequi under S.82(1) leads to a discharge if entered before the close of the prosecution case; and to an
acquittal if entered after the close of the prosecution case – see Art.157(7) of the Constitution. [1 Mark]
Withdrawal either under S.87(a) or (b) leads to a discharge if made before the close of the prosecution case; and to an
acquittal if made after the close of the prosecution case – also see Art.157(7). [1
Mark]
NB: A discharge constitutes no bar to subsequent proceedings against the accused on account of the same facts;
while an acquittal constitutes a bar to subsequent proceedings on account of the same facts.
c) The omnibus instrument for use in terminating criminal proceedings in any court is a Nolle Prosequi. In the given scenario
it would take the following basic structure:
Republic ................................................................Prosecutor/Applicant
Versus
NOLLE PROSEQUI
IN EXERCISE of the powers conferred on the Director of Public Prosecutions by Article 157(6) & (8) of the Constitution of
Kenya Section 25 of the Director of Public Prosecutions Act, No. 2 of 2013, Section 82 of the Criminal Procedure Code,
Cap. 75 and delegated to me by Article 157(9) of the Constitution, the prosecution hereby seeks to enter a Nolle Prosequi
and informs this Honourable Court that the Republic intends that the proceedings against the accused person who is charged
with the offence of stealing by servant, contrary to Section 281 of the Penal Code, Cap. 63 SHALL NOT continue on the
following principal grounds:-
1. The key witness Abdi Makengeza who testified-in-chief before the court died before being cross-examined.
2. The prosecution cannot find a replacement witness without causing further delay to the continuation of the trial.
3. The events necessitating temporary halting of the proceedings were beyond the control of the prosecution.
4. It is in the interests of justice that the Honourable Court grants the prosecution permission to enter a Nolle Prosequi
in the prevailing circumstances.
a) Duplicity in relation to criminal charges simply means double; i.e. no one count of the charge should charge the
accused with having committed two or more separate offences. Duplicity is considered prejudicial to an accused person’s
right to a fair trial because it deprives the accused of an opportunity to know the precise offence he/she is accused of, which
undermines his/her capacity to defend himself/herself effectively. This violates his/her right under Article 50(2)(b) of the
Constitution to be informed of the charge with sufficient detail to answer it.
[5 Marks]
b) The necessary appeal documents to be filed in the High Court are Petition of Appeal under Section 350 CPC.
Unless the High Court otherwise directs, the Petition must be accompanied by a copy of the judgment or order appealed
against. In the given scenario there is no formal judgment written since the case was concluded through a purported plea of
guilty. Therefore the Petition is to be accompanied by a copy of the plea proceedings including the orders given thereat.
REPUBLIC OF KENYA
Versus
REPUBLIC ............................................................RESPONDENT
PETITION OF APPEAL
Signed,
Wakili Shupavu & Company
Advocates for the Appellant
To be served upon:-
a) That whereas the remedy of Habeas Corpus features both in the Constitution [Art. 25(d) and Art. 51(2) as well as in
the Criminal Procedure Code (S.389) and in the Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules, in
the given scenario the central legal instrument expected to be used is Chamber Summons supported by Affidavit as provided
for in the Habeas Corpus Rules (Rule 2).
b) That litigants seeking the Habeas Corpus remedy in Kenya have not used a uniform format for seeking the remedy.
Some litigants have used the traditional method employed in seeking prerogative writs where the application is brought in the
name of the Sovereign (Republic) at the instance of the Complainant/Victim as Ex-Parte Applicant while others have gone
straight to cite the Complainant/Victim or his representative as the Applicant. Since either method has been accepted by the
High Court in Kenya, candidates may use either method and earn marks in equal measure. In the present scenario, Mwenda
Pole’s wife, Zaxc ,inabu is cited as the Applicant on his behalf since he himself is being held incommunicado.
REPUBLIC OF KENYA
AND
AND
AND
Versus
CHAMBER SUMMONS
[Under Section 389 of the Criminal Procedure Code, Cap. 75
and Rule 2 of the Criminal Procedure (Directions in the Nature
Habeas Corpus) Rules]
LET ALL PARTIES CONCERNED attend the Hon. Judge in Chambers on the _ _ _ day of _ _ _ _ _ _ _ _ _ _, 2014 at 9:00
o’clock in the forenoon or soon thereafter as Counsel for the Applicant may be heard for Orders:-
1. That this application be certified as urgent.
2. That summons be issued directed at the Respondent requiring his appearance before this Hon. Court on _ _ _ _ _ _ _
_ _ _ _ _ at _ _ _ _ _ _ _ _ in the forenoon in person or by Advocate together with the original of any warrant or order for the
detention of Mwenda Pole in police custody.
3. That the Respondent produce Mwenda Pole, understood to be detained at Ngware Police Station, before this Hon.
Court on the date and time aforesaid and show cause why Mwenda Pole should not be forthwith released.
4. That the costs of this application be provided for.
WHICH APPLICATION is further supported by the annexed Affidavit of Zainabu w/o Mwenda Pole sworn on _ _ _ _ _ _ _ day
of _ _ _ _ _ _ _, 2014 and such further grounds as may be adduced at the hearing.
Signed
Halahala & Company
Advocates for the Applicant
To be Served upon:-
SUPPORTING AFFIDAVIT
To be Served upon:-
Director of Public Prosecutions
_____________
[7 Marks]
NB:
Ideally, Julius Kaisari should also swear an affidavit narrating Mwenda Pole’s activities for the short period he was at the
Seminar and how he left. However, in view of the candidates’ time constraints, it should suffice if only Mrs Zainabu
Mwenda Pole swears the Supporting Affidavit. A sample Affidavit by Julius Kaisari is, however, attached for those who get
round to preparing one (either in addition or as an alternative). The focus is that if candidates demonstrate general knowledge
of the applicable legal instruments and their basic structure, they should pass. Also, these applications are usually
accompanied by certificates of urgency but in this case it would be excusable if such certificate is omitted.
SUPPORTING AFFIDAVIT
To be Served upon:-
Director of Public Prosecutions
_____________