The Criminal Procedure Code - Kenya Law Reports

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www.kenyalaw.org 64 CAP. 75 Criminal Procedure Code Rev. 2009] Power of magistrate to apply for issue of commission. Return of commission. 46 of 1963, s. 183. Cap. 80. Adjournment of inquiry or trial. Procedure where person charged is only witness. Right of reply. (2) Any such party may appear before the magistrate by advocate, or, if not in custody, in person, and may examine, cross-examine and re-examine (as the case may be) the witness. 156. Whenever, in the course of a proceeding under this Code before a magistrate other than a magistrate empowered to hold a subordinate court of the first class, it appears that a commission ought to be issued for 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 or reject the application. 157. (1) After a commission issued under section 154 or section 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 subordinate court 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 form part of the record. (2) A deposition so taken, if it satisfies the conditions prescribed by section 34 of the Evidence Act may also be received in evidence at a subsequent stage of the case before another court. 158. In a case in which a commission is issued under section 154 or section 156, the proceedings may be adjourned for a specified time reasonably sufficient for the execution and return of the commission. evIdenCe for defenCe 159. (Repealed by 46 of 1963, 2nd Sch.) 160. Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution. 161. In cases where the right of reply depends upon the question whether evidence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply: Provided that the Attorney-General or the Solicitor-General when
www.kenyalaw.org Rev. 2009] Criminal Procedure Code CAP. 75 65 appearing personally as advocate for the prosecution shall in all cases have the right of reply. proCedure In Case of the lunaCy or other InCapaCIty of an aCCused person 162*. (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 of making his defence, it shall inquire into the fact of unsoundness. (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. (3) If the case is one in which bail may be taken, the court may release the accused person on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person, and for his appearance before the court or such officer as the court may appoint in that behalf. (4) If the case is one 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 court record or a certified copy thereof to the Minister for consideration by the President. (5) Upon consideration of the record the President may by order under his hand addressed to the court direct that the accused be detained in a mental hospital or other suitable place of custody, 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 of making his defence orders him to be brought before it again in the manner provided by sections 163 and 164. 163. (1) If a person detained in a mental hospital or other place of custody under section 162 or section 280 is found by the medical officer in charge of the mental hospital or place to be capable of making his defence, the medical officer shall forthwith forward a certificate to that effect to the Attorney-General. (2) The Attorney-General shall thereupon inform the court which recorded the finding concerning that person under section 162 whether it is the intention of the Republic that proceedings against that person shall continue or otherwise. *Powers delegated to the Minister and to the Permanent Secretary of the Ministry for the time being responsible for prisons, by L.N.579/1963. Inquiry by court as to soundness of mind of accused. 22 of 1959, s.15, 13 of 1967, 1 st Sch., L.N.124/1964, 13 of 1982, 1 st Sch. Procedure where person of unsound mind subsequently found capable of making defence. 22 of 1959, s. 16, 13 of 1967, 1 st Sch. 20 of 1989, Sch.
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