The Criminal Procedure Code - Kenya Law Reports

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www.kenyalaw.org 38 CAP. 75 Criminal Procedure Code Rev. 2009] Power to appoint public prosecutors. 22 of 1959, s.10. 7 of 2007 Powers of public prosecutors. 28 of 1961, Sch., 13 of 1982, 1 st Sch., 5 of 2003. Withdrawal from prosecution in trials before subordinate courts. Permission to conduct prosecution. L.N.299/1956, L.N.172/1960, L.N.474/1963, 13 of 1982,1 st Sch. 85. (1) The Attorney-General, by notice in the Gazette, may appoint public prosecutors for Kenya or for any specified area thereof, and either generally or for any specified case or class of cases. (2) The Attorney-General, by writing under his hand, may appoint any advocate of the High Court or person employed in the public service, to be a public prosecutor for the purposes of any case. (3) Every public prosecutor shall be subject to the express directions of the Attorney-General. 86. A public prosecutor may appear and plead without any written authority before any court in which any case of which he has charge is under trial or appeal; and if a private person instructs an advocate to prosecute in any such case the public prosecutor may conduct the prosecution, and the advocate so instructed shall act therein under his directions. 87. In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Attorney- General*, at any time before judgment is pronounced, withdraw from the prosecution of any person, 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. 88. (1) A magistrate trying a case may permit the prosecution to be conducted by any person, but no person other than a public prosecutor or other officer generally or specially authorized by the Attorney-General in this behalf shall be entitled to do so without permission. (2) Any such person or officer shall have the same power of withdrawing from the prosecution as is provided by section 87, and the provisions of that section shall apply to withdrawal by that person or officer. (3) Any person conducting the prosecution may do so personally or by an advocate. InstItutIon of proCeedInGs Making of Complaint
www.kenyalaw.org Rev. 2009] Criminal Procedure Code CAP. 75 39 89. (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 without warrant. (2) A person who believes from a reasonable and probable cause that an offence has been committed by another person may make a complaint thereof to a magistrate having jurisdiction. (3) A complaint may be made orally or in writing, but, if made orally, shall be reduced to writing by the magistrate, and, in either case, shall be signed by the complainant and the magistrate. (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 presented by a police officer. (5) Where the magistrate is of the opinion that a complaint or formal 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 his reasons for the order. 90. (1) Upon receiving a complaint and having signed the charge in accordance with section 89, the magistrate may 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 by a witness or witnesses. (2) The validity of proceedings taken in pursuance of a complaint or charge shall not be affected either by a defect in the complaint or charge or by the fact that a summons or warrant was issued without a complaint or charge. (3) A summons or warrant may be issued on a Sunday. proCesses to Compel the appearanCe of aCCused persons Summons Complaint and charge. 10 of 1983, Sch. Issue of summons or warrant. 13 of 1982, 1 st Sch.
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