The law on double jeopardy in Kenya protects people for being tried twice for the same offense. Section 50 (2) of the constitution emphasizes on the importance of a fair trial for every accused person.
Section 50 (2) also states that no one should be charged for an offense in respect of an omission or act for which the accused was already convicted or acquitted. Below is a look at the implications of the law on double jeopardy.
The legal Latin phrase, “nemo debet bis vexari pro ura et eadem causa” means that no one shall be punished twice for the same event. This protection against double jeopardy gives a person the right to the defense of “autrefois convict or autre fois acquit”. The basis of this legal concept is that legal processes must be final. An accused person must be protected from the prejudice of going through a 2nd trial after the state has reviewed his defense. The double jeopardy concept also protects citizens from oppression by the state.
In cases where multiple criminal offenses arise from one transaction, there are certain variables that are used to determine whether double jeopardy applies. The two tests applicable in these situations are: same evidence test and same transaction test. The same evidence test prevents the mounting of a second prosecution based on evidence used in the first prosecution. If this same evidence is required for a second litigation, then the second litigation is null and void based on the double jeopardy concept.
Based on the second same transaction test, all acts occurring at the same criminal episode are classified as the same offense. This test ensures that the state prosecutes at one trial all offenses that have a common goal or intent.
In closing, the defense of autrefois convict or autre fois acquit can be used to claim double jeopardy in cases where a person is being tried for the second time for an offense that they were either convicted or acquitted in an earlier case. Generally, the prosecution is not allowed to use the same evidence for two consecutive prosecutions. Furthermore, to avoid different trials for one offender, the state is required to prosecute at one trial.
For Kenya Case Law on Double Jeopardy, you can read Petition 371 of 2012 that was heard in Milimani law court.