The Kenyan Constitution and Criminal Procedure Code (CPC) protects Kenyans from being prosecuted by the state twice over the same offence.
In what is known as double jeopardy, the prosecution is not allowed to use the same evidence for two consecutive prosecutions.
To ensure every person gets a fair trial, double jeopardy further states that to avoid different trials for one offender, the state must prosecute at one trial.
Section 50 of the Kenyan Constitution in affirming that a Kenyan cannot be tried twice over the same crime states, “No one should be charged for an offence in respect of an omission or act for which the accused was already convicted or acquitted.”
Limitations of Double Jeopardy
CPC in Sections 138-142, gives three limitations to the law of jeopardy to ensure no crime goes unpunished.
“A person may be charged and tried again for a separate offence arising from the same set of facts as those of the crime for which the accused was previously convicted or acquitted,” the law states.
Further, a person can be retried for consequences which arise after a conviction or acquittal, if they were not known at the time of conviction or acquittal.
“If the court that tried the accused in the first instance was not competent to try the offence for which he is subsequently charged, the case can go into retrial,” CPC directs.
How to determine whether Double Jeopardy applies.
To prevent the State from using loopholes arising from CPC, there are two parameters that measure if a case qualifies for the double jeopardy rule.
The parameters are; the same evidence test and same transaction test.
The same evidence test prevents the State from retrying a case by relying on the evidence it used in the first prosecution.
For example, if a Kenyan had been acquitted of a corruption case but is arrested again with the same evidence, the second litigation is declared null and void based on the double jeopardy concept.
On the transaction test, all acts occurring at the same criminal episode are classified as the same offence.
This is meant to ensure that the State prosecutes all offences with a common goal or intent at one trial.
