Judicial attachment paper

18



Black's law dictionary
www.africanjournal.org
Article 50(1 (e)) of the constitution
http://www.duhaime.org/
Criminal procedure code
Criminal procedure code
Criminal procedure code
Criminal procedure code
http://www.internewskenya.org/
Criminal procedure code
In the Chief Magistrates Court at Meru CR676/2015(unreported)
In the Chief Magistrates Court at Meru CR534/2014(unreported)
In the Chief Magistrates Court at Meru TR369/2014(unreported)
In the Chief Magistrates Court at Meru CR2341/2015(unreported)
In the Chief Magistrates Court at Meru CR2298/2015(unreported)
In the Chief Magistrates Court at Meru CR2167/2014(unreported)
In the Chief Magistrates Court at Meru CR3425/2012(unreported)

In the Chief Magistrates Court at Meru Inquest….8/14(unreported)

In the Chief Magistrates Court at Meru CR151/2013(unreported)
In the Chief Magistrates Court at Meru CR2465/2014(unreported)
In the Chief Magistrates Court at Meru CR624/2013(unreported)
In the Chief Magistrates Court at Meru CR2349/2014(unreported)
Constitution of Kenya article 159 (2c)
Criminal procedure code
In the Chief Magistrates Court at Meru CR342/2015(unreported)
In the Chief Magistrates Court at Milimani CR71/2012(unreported)
Law Reform Commission of Tanzania Research Report of 1986
criminal procedure code
(1972) 2 ALL ER (704)
(1979) 27ALR 449 (HC)
Criminal procedure code
Criminal procedure code
The constitution of Kenya
Criminal procedure code
The civil procedure code





KENYATTA UNIVERSITY

BACHELOR OF LAWS DEGREE

RESEARCH PAPER PRESENTED IN FULFILMENT OF PART OF THE COURSE

REQUIREMENTS FOR JUDICIAL ATTACHMENT


Title of Research Paper: ADJOURNMENTS IN CRIMINAL CASES


Student Name: EKODERE BRIAN OMUSE


Student Registration No: L95S/14219/2013


Word Count: 4216


Date of Submitting Report: 3RD SEPTEMBER 2013



I am aware of the academic rules on Plagiarism and state that the work contained in this Research Paper is my own and does not contain any un-acknowledged work from other sources.

Name: EKODERE BRIAN OMUSE

Signature_______________
Contents
INTRODUCTION 3
What is adjournment? 3
PART 1 4
BACKGROUND OF ADJOURNMENTS IN CRIMINAL CASES 4
GOVERNMENT AGENCY DEALING WITH THIS ISSUE 5
MINI CONCLUSION 5
PART 2 5
1. When a request for adjournment is made by the prosecution 5
Some grounds used by prosecution to seek for an adjournment 6
2. When a request for adjournment is made by the accused person 8
REASONS FOR INCREASE OF ADJOURNMENTS IN CRIMINAL CASES 10
EFFORTS TO RESOLVE THIS ISSUE 11
ADJOURNMENTS OF CRIMINAL CASES IN OTHER GEOGRAPHICAL AREAS 12
MINI CONCLUSION 12
PART 3 13
ISSUE OF ADJOURNMENTS IN CRIMINAL CASES IN FOREIGN JURISDICTIONS. 13
MINI CONCLUSION 15
CONCLUSION 16
Bibliography 18




INTRODUCTION
What is adjournment?
According to the Black's law dictionary adjournment is, putting off or postponing of business or of a session until another day or time; the act of the court or legislative body by which the session or assembly is dissolved either temporarily or finally and the business in hand dismissed from consideration, either temporarily or finally and the business in hand dismissed from consideration, either definitely or for an interval.
In Bispham v Tucker, the term adjournments was defined as "the term adjournments comes from the word adjourn. The primary signification of the term adjourn is to put off or defer to another hearing date."
Adjournments become unnecessary if they too many of them are granted in a matter and they are grounded on unmerited grounds.
This issue interests me because while I was attached to Meru law courts I observed that there were a great number of adjournments most of which were unnecessary. This causes delay in completion of cases resulting in backlog of cases and also this delay is an infringement of the accused person's constitutional right, to have the trial begin and conclude without unreasonable delay.





PART 1
BACKGROUND OF ADJOURNMENTS IN CRIMINAL CASES
A request to adjourn can either be made by the prosecution or by the accused persons.
Statutory background
Granting or denial of a motion to adjourn is in the discretion of the court. Different Kenyan statutes have however made provisions that set some grounds for granting adjournments.
Section 205 of the Criminal procedure code gives the court power to adjourn the hearing of a case to a certain time and place to be then appointed and stated in the presence of the party or parties or legal representatives. This is the section which gives the court the discretion to adjourn.
Section 202 the Criminal procedure code provides for another ground for adjournment, it the complainant of a case having had notice of the time and place of hearing does not appear then the court shall grant an adjournment if it deems it fit to do so.
Section 211(2) the Criminal procedure code provides that if the court establishes that an accused person has a case to answer, and puts him to his defense, if the accused person has witnesses to call but they are not present in court, the court may adjourn if it is satisfied that the absence of those witnesses is not to any fault or neglect by the accused person.
Section 150 the Criminal procedure code provides that the court can adjourn a hearing for such time as he thinks necessary to enable the cross examination to be adequately prepared.


GOVERNMENT AGENCY DEALING WITH THIS ISSUE
The Judiciary Transformation Secretariat is tasked with overseeing the judicial reforms agenda and one of their objectives is to reduce backlog of cases and fasten the conclusion of cases. One way of reaching this objective is to eliminate unnecessary adjournments.
The judicial Review Division of the High court has formed a committee headed by Justice Mohammed Warsame that is dealing with the issue of unnecessary adjournments.
MINI CONCLUSION
The courts have discretion to adjourn under section 205 the Criminal procedure code. This discretion however has to be exercised judicially and sensibly. Interests of both the accused persons and prosecution have to be considered, in criminal matters.
PART 2
Adjournments in criminal proceedings are provided for in our statutes and even some of the grounds where they can be granted are provided. In our courts however, there are a lot of unnecessary adjournments being granted and this results in backlog of cases.
There are two instances where an adjournment can be granted in a criminal matter.
When a request for adjournment is made by the prosecution
This is where the prosecution makes a request before the court for the hearing of a matter to be adjourned to another date. The prosecution must state a ground or grounds for seeking adjournment.
In my court station in Meru, I observed that the prosecution is granted very many unnecessary adjournments by the court based on very petty grounds. Some days for example if 12 cases were scheduled for hearing, the prosecution may be awarded 8 adjournments and only 2 hearings proceed. Sometimes even no hearing would proceed.
Some grounds used by prosecution to seek for an adjournment

The prosecutor has just received the police file hence he has not had time to go through the file.
Republic v Dorothy M'Mugambi
The charge was stealing contrary to section 275 0f the Penal code.
The prosecutor had just received the police file and had not had time to go through it. The adjournment was awarded.
The prosecution has not received the police file for that matter.
Republic v Abu-Bakr Sharriff
The accused person was charged with rape contrary to section 3(1a) and 3(1b) of the sexual offences act. This matter came before court on the 3th of June 2015 scheduled for a hearing. The prosecutor requested for an adjournment stating that he had not received the police file for that matter. The accused person objected to this request stating that the matter had been in court since March 2014 and it had never proceeded because continuous adjournment on the grounds of absence of police file and the prosecutor being absent. This matter was adjourned to the 18th June 2015.
On the 18th June 2015 when the matter came up for hearing, the prosecutor requested for another adjournment stating he had not received the police file. Isiolo County hence was coming from very far. Prosecution was awarded the last adjournment of 10th July 2013.
On the 10th July 2013 when the matter came for hearing, the prosecution requested for an adjournment stating that he had not received the police file from the investigating officers. The accused person objected this request stating that the prosecution was granted the last adjournment.
The sitting magistrate looking at the history of the file he observed that the claims by the accused person were true. On looking at the charges levelled against the accused person however, he explained that charges like rape and defilement are hard to award a dismissal since it required approval from the Director of Public prosecution. He awarded the very last adjournment to 26th August 2015.

Witnesses in the matter are not present in court.
Republic vs Samuel Muchai The charge was causing death by dangerous driving and another charge was operating long distance public vehicle without valid licence.
The matter was up for hearing but the witnesses were absent in court hence witness summons were issued and the matter was adjourned till 30/7/2015.
The exhibits that the prosecution wishes to rely on are not present in court.
Republic v Winy Moraa
The charge was stealing contrary to section 275 of the penal code. The accused was accuse of stealing a television set
The prosecution requested for an adjournment because the exhibits they wished to rely on were not present in court.
They wish to amend the charges levelled against the accused.
Republic v Jane Kananu
The prosecution were seeking an adjournment on the grounds that the wrong charge was recorded hence they wanted to go and amend it. They had charged him with stealing instead of assault causing bodily harm.
The complainant is not present in court.
Republic vs Andrew Muriithi
The matter before the court was of grievous bodily harm contrary to section 234 of the penal code.
The complainant was absent and the mention was adjourned to the 16/6/2015.
Prosecution wishes to consolidate charges with another matter and seek adjournment to prepare consolidation and get witnesses.
Republic v Peter Munene
The prosecution made an application to the court to consolidate the matter with 1093/2011 since they are grounded on the same facts. They pray that if this application is granted that the court grant them an adjournment to open a fresh consolidation charge sheet. The court allowed consolidation and granted adjournment.
Proceedings have not been typed yet. This will apply in situations where the court had given an order that proceedings be typed.
Inquest …………Kenneth Mutuma and 4 others (deceased)
The proceedings were not completely typed as per the orders of the previous mention hence the case was adjourned till 16/6/2015
The prosecutor is not present. This also is a major cause of unnecessary adjournments. In my court station for instance, the prosecutor was studying and so he was absent most of the time.
The file for the matter is missing
The prosecution had been misinformed that the matter was coming up for mention while in fact it was coming up for hearing.
The investigating officer in charge of that matter has been transferred and the prosecution have not been able to find him.

Some of the grounds stated above that are used by the prosecution are very unnecessary. They are a direct result of lack of preparation on the part of the prosecution

When a request for adjournment is made by the accused person
This is when the accused person makes the request in court for an adjournment to another date. They must state their reasons for requesting for an adjournment.
Some grounds used by accused persons to seek for adjournments
They are not aware of the charges/charge levelled against them.
Republic v Quinter Kendi The accused person sought an adjournment on the grounds that he was not aware of the charges leveled against him. He also had not received witness statements hence was not prepared for cross examination.
The prosecution opposed this application for adjournment sitting that this matter had come to court severally. The accused person has never made a claim of not knowing the charges against him. Most of the witnesses for the case were minors who are in school. They were present in court but it was hard to get them to court as they were in school. He also told the court that the accused person was in custody.
The court granted the request for adjournment because a denial of that request based on those grounds, was an infringement of the accused constitutional rights.
Prosecution has not yet given them copies of witness statements hence they have not adequately prepared.
Republic v Cyrian Gitonga
The accused person had 3 witnesses present ready to proceed. The accused person requested for an adjournment stating that they have not received witness statements hence cannot properly cross-examine the witnesses. The court granted adjournment and ordered witness statements to be given to the accused person.
Their advocate is not present in court/not ready to proceed.
Republic v Ruth Makena
The accused was charged with an attempt to procure an abortion contrary to section 158 of the criminal procedure code. The advocate was not ready to proceed. The court granted the adjournment till 4/9/2015.
They seek an adjournment on the grounds that they are trying to negotiate with the claimant especially in family matters.
Republic v Reuben mbaina The accused requested for an adjournment stating that he was trying to negotiate with the complainant since this was a family matter. He prayed for time to see if the complainant would agree to negotiate and reconcile. The court granted the request stating that the constitution allows parties to reconcile through Alternative Dispute Resolution.
Rarely do the accused persons request for adjournments. Most of the time when they make such a request however, it is based on merited grounds compared to some of prosecution's grounds.


REASONS FOR INCREASE OF ADJOURNMENTS IN CRIMINAL CASES
Adjournments granted in criminal matters are so many and most are granted under unnecessary grounds. Such adjournments are what constitute unnecessary adjournments. This is mainly as a result of the courts leniency to the prosecution. This is clearly proven by courts continuously granting the prosecution adjournments on unmerited grounds. Adjournments are granted even on grounds that are as a result of unaccountability of the prosecution e.g. the prosecution was misinformed that the matter was coming up for mention while in fact it was coming up for hearing. It is the responsibility of the prosecutor to write down when a matter is to come before the court and whether it is a mention or hearing.
Section 205(d) provides that where a hearing has been adjourned to another date agreed upon by the parties, the set hearing date ought not to be altered without the consent of the parties. This provision however, is not adhered to by our courts. The magistrates just ask the accused persons if they are opposing as a formality. Opposition of the request for adjournment by accused person is not considered most times.
Republic vs Carolyne Kageni
The prosecution requested the court for an adjournment because the police file for that matter had not arrived. The accused person objected this request stating that he was he was sick (had tuberculosis) and people in remand were smoking hence affecting his health. The magistrate awarded the adjournment.
There are no strict statutory provisions governing the issue of granting of adjournments in criminal cases. Our statutes only provide for the grounds one can get an adjournment but they do not limit the number of adjournments one can get in a matter or strict measures governing them.
The prosecution is not diligent in their work and this is exhibited by some of the grounds for seeking adjournments. E.g. the police file has not arrived. They should be organized and get files in advance. This helps to avoid the last minute rush where they pick files on the morning of the hearing. Some files are even delivered to them while they are in court.
Sometimes magistrates grant adjournments so that the proceedings of the day end early than usual so that they can handle other matters outside courts. This is especially on Fridays. For example in Meru law courts on Fridays proceedings ended as early as 11.00 am with majority or all hearings adjourned.
EFFORTS TO RESOLVE THIS ISSUE
The Judicial Review Division of the high court has formed a committee headed by High court judge Justice Mohammed Warsame. This committee comprises of judges, lawyers and representatives of state organs. Their main objective is to speed up cases and one of the issues the committee will be dealing with is unnecessary adjournments. Justice Mohammed Warsame also promised to make sure that dates fixed for hearing of cases is maintained and not changed easily.
The Judiciary Transformation Secretariat is tasked with overseeing judicial reforms agenda. One of their main agendas is to reduce backlog of cases and fasten the conclusion of cases. One way of reaching this objective is to eliminate unnecessary adjournments


ADJOURNMENTS OF CRIMINAL CASES IN OTHER GEOGRAPHICAL AREAS
This issue is a common problem in many local jurisdictions, especially the courts located in the rural areas. In most cases, it is magistrate courts especially who are notorious for granting unnecessary adjournments
IN MILIMANI LAW COURTS-There were approximately seven hearings for criminal cases scheduled for the day. Out of those, 5 or all would be granted adjournments. Almost all the requests for adjournments were made by the prosecution. Rarely did the accused persons request for adjournment and even on those rare occasions, the requests were often rejected.
Republic vs Kevin Waweru and Another
The two minors were charged with defilement contrary to section 8(1) of the sexual offences act. The boys were 16 and 16 years respectively and were accused of defiling an 11 year old girl. Prosecution however had not received the police file hence prayed for an adjournment. The presiding magistrate gave orders that the file be availed by 2.00pm. The file was later brought to court but the prosecution again prayed for an adjournment claiming that witnesses were not in court. The accused persons opposed this claim for adjournment sitting that the accused persons were minors and were required to be in school and that prosecution had been granted the last adjournment. The request for adjournment was granted.
IN MAKADARA LAW COURTS- There were approximately 14 criminal cases scheduled for hearings in one day. Out of these, about 10 would be adjourned and 4 proceed. Most of the adjournments that were being granted were requested by the prosecution and rarely did accused persons request for adjournments.
MINI CONCLUSION
This issue of unnecessary adjournments in criminal case is a rapist problem in several of our local jurisdictions. Although there are measures that have been set up to remedy this issue, it is still a major problem causing backlog of cases and delay of delivery of justice. Most adjournments are granted to the prosecution and most are on unmerited grounds.






PART 3
Issue of unnecessary adjournments is a major concern all over the world. Research has proven that it is one of the major reasons why people opt to settle dispute using other dispute resolution mechanisms and that most delays are caused by unnecessary adjournments
ISSUE OF ADJOURNMENTS IN CRIMINAL CASES IN FOREIGN JURISDICTIONS.
THE UNITED KINGDOM
A judge has inherent power to adjourn a criminal trial either before its commencement or during proceedings. A request to adjourn can be made by either the prosecution or counsel for accused.
The prosecution has no redress if its application for an adjournment is refused or if an adjournment to which it is opposed is granted.

GROUNDS FOR REQUESTING OF ADJOURNEMENT BY PROSECUTION
To enable a change of venue to be arranged.
For further evidence to be obtained.
Introduction of unexpected evidence by opposing counsel.
Absence of a necessary witness.
GROUNDS FOR REQUESTING OF ADJOURNEMENTS BY COUNSEL FOR ACCUSED.
Unexpected absence of counsel
To allow legal representation to be finalized
The withdrawal of counsel.
The illness of accused person
An application for adjournment will not be successful if:
It is a result of inaction on the part of the applicant.
It will not significantly benefit the party seeking the adjournment
It is a tactical move designed to delay the trial or to avoid hearing before a particular judge.
Republic v Cabangh
This was an appeal by defence before Justice Geoffrey Lane J. The CA judge upheld the decision by the trial judge to order the trial to proceed and disallow the application by the defence to adjourn until a prosecution witness became available. This move was a delaying tactic to delay the trial.
An application to adjourn that is made by the defence need not be granted even if it is of real benefit to the accused. The judge in exercising his discretion is not confined to regard the interests of the accused person. He is entitled to regard the interests of justice. An application to adjourn by the defence is outweighed by drawbacks to others e.g. the co-accused or witnesses.
Mclnnes vs Republic
This was an appeal by the defence of a decision by the high court refusing to grant an adjournment. This was a rape case and the court of appeal upheld the decision of the high court stating "the high court judge had exercised his discretion correctly in refusing an adjournment because the benefit to the accused was outweighed by the drawbacks to others especially the victim."
An accused person who is convicted and is dissatisfied by an adjournment decision will not find the Court of Appeal receptive to his complaint. This is unless the decision to grant or refuse adjournment is resulted in a denial of natural justice or prevented the accused person from presenting his defence properly.


MINI CONCLUSION
The process of granting of adjournments in the United Kingdom is very clear and elaborate. This helps to prevent the issue of unnecessary adjournments. The judges in exercising of their discretion do it judicially considering the interests of the accused person, the prosecution and above all the interest of justice.





CONCLUSION
The court has the discretion to allow or disallow an adjournment. This discretion is granted to them by section 205. In doing so however, the courts should see that it is in the interest of justice.
This discretion should also be exercised according to statute. Section 205(d) provides that where a hearing has been adjourned to another date agreed upon by both parties, the hearing date ought not to be altered without the consent of both parties. The courts should follow this provision because most times it disregards the opposition to adjourn made by the accused person.
Research has proven without a doubt that most delays in conclusion of criminal cases is caused by unnecessary adjournments. These tendencies by the court to grant adjournments over petty reasons causes backlog of cases and unreasonable delay in conclusion of cases. This is a breach of article 50(2) (e) which provides that accused persons have the right to have the trial begin in conclude in time.
The agencies that have been set up to deal with this issue e.g. the committee formed by justice Mohammed Warsame, the head of The Judicial Review Commission of the high court are yet to deal with the issue. The committee was formed in the year 2011 and had their first meeting on 07/10/2011 and their main objective is to speed up cases and one way of doing so is to curb unnecessary adjournments.
From observing proceedings by our local courts it seems that the agencies are yet to make policies that reform our judicial system and control the issue of adjournments in criminal cases.




RECOMENDATIONS
Section 205 should be amended to provide a limit to the number of adjournments that can be awarded in an issue. The setting of the maximum number of adjournments that can be granted will control over on the party applying for the adjournment to prove that the ground is a merited one.
Request for adjournment that is based on a ground that is resulting from inaction by the applying party or negligence to their duties should not be granted. Adjournments should only be granted on merited grounds that result from circumstances beyond the control of the party requesting.
Judges who grant unnecessary adjournments should be fined. Introduction of fines to such judges will help curb the tendency of judges to grant adjournments so that the court proceedings end early especially on Fridays.
Adjourning of cases. This will speed up the conclusion of trials and will reduce backlog of cases.
The clause in Order 17 Rule 1(1) that provides once a suit is set down for hearing, it shall not be adjourned unless the party applying for the adjournment satisfies the court that it is just to grant the adjournment, should be adopted into the criminal procedure code. Adoption of this clause lays the burden.


Bibliography
PRIMARY SOURCES
CASES
Bispham v Tucker
Republic v Dorothy M'Mugambi
Republic v Abu-Bakr Sharriff
Republic vs Samuel Muchai
Republic v Winy Moraa
Republic v Jane Kananu
Republic vs Andrew Muriithi
Republic v Peter Munene
Inquest …….Kenneth Mutuma and 4 others (deceased)
Republic v Quinter Kendi
Republic v Ruth Makena
Republic v Reuben Mbaina
Republic vs Carolyne Kageni
STATUTES
The Civil Procedure Act Cap 21 Laws of Kenya. (n.d.)
The Criminal Procedure code CAP 79 of the Laws of Kenya. (n.d.).
The Criminal Procedure Code of The UK. (n.d.).
The Constitution of Kenya 2010
SECONDARY SOURCES
BOOKS
Judiciary, T. (2010). The Judiciary Bench Book for magistrates in criminal cases. Judiciary.
Patendon, R. (1990). Judicial discretion and criminal litigation. New York TorontoReporting, N. C. (2010). The constitution of kenya. National Council for Law Reporting.
Tanzania, L. R. (1986). Research Report. Dar-es-salaam.
INTERNET SOURCES
www.internewskenya.org
www.duhaime.org
www.africanjournal.org