CRIMINAL LITIGATION When the State Steps In
What Is Criminal Litigation?
Criminal litigation is the legal process through which the state, acting in the interest of society, investigates, prosecutes, and seeks to punish individuals or entities accused of committing a criminal offence. Unlike civil litigation, where one private party pursues a remedy against another, criminal litigation is a matter between the state and the accused. In Kenya, criminal prosecutions are brought in the name of the Republic, with the Director of Public Prosecutions (DPP) holding the constitutional mandate to institute and undertake criminal proceedings.
Criminal offences are acts or omissions that the law has declared to be harmful to society as a whole, not just to individual victims. They range from minor infractions such as traffic offences and petty theft, to serious crimes including fraud, assault, sexual offences, corruption, money laundering, terrorism, and murder.
In Kenya, criminal litigation is governed primarily by the Penal Code (Cap 63), the Criminal Procedure Code (Cap 75), the Evidence Act (Cap 80), and a growing body of specialised legislation including the Anti-Corruption and Economic Crimes Act, the Sexual Offences Act, the Narcotic Drugs and Psychotropic Substances Act, and the Counter-Terrorism and Prevention Act, among others.
The courts that handle criminal matters range from the Magistrates Courts — which handle the majority of criminal cases — to the High Court, which has jurisdiction over the most serious offences, including murder, treason, and robbery with violence. The Court of Appeal and the Supreme Court handle criminal appeals at the highest levels.
When Is Criminal Litigation Necessary?
Criminal litigation is not a matter of choice in the way civil litigation sometimes is. It is initiated by the state when there is sufficient evidence that a criminal offence has been committed. However, understanding when and how criminal litigation becomes relevant — whether as an accused person, a victim, or a witness — is essential knowledge for every citizen.