Waswa v Republic (Criminal Appeal 132 of 2016) [2019] KECA 752 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that crime victims, including victims' families, have a real right to actively participate in criminal trials — not just sit quietly through them.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Constitution and the Victim Protection Act entitle a victim of an offence, or counsel watching brief for the victim, to participate in a criminal trial and to what extent
- 2.Whether the High Court judge erred in permitting the victim's counsel to participate on the terms specified
- 3.Whether the victim's participation impermissibly intrudes on the DPP's prosecutorial powers under Article 157 of the Constitution
- 4.Whether a victim or their advocate may cross-examine witnesses during the trial
Key legal issues
#Scope of victim participation in criminal trials under Article 50(9) and the VPA
The Constitution and VPA give victims a right to access justice and to be heard in the trial process, beyond the traditional passive watching-brief role
Article 50(9) mandated Parliament to legislate on victims' rights, fulfilled by the VPA, whose provisions (sections 9, 12, 13, 20) confer rights at various stages of the trial. These rights must be liberally construed like Bill of Rights rights, and the traditional watching-brief concept no longer reflects the law. The right to be heard persists through trial and appeal.
Right to cross-examine witnesses
A victim or their advocate may, with the trial court's permission, exercise the court's section 150 Criminal Procedure Code powers, including cross-examination, subject to the statutory safeguards
Section 150 gives the trial court suo motu power to summon and recall witnesses essential to a just decision, with a proviso allowing cross-examination by prosecutor and defence. Allowing the victim to invoke this power serves truth-finding and is compatible with the accused's fair trial and the DPP's prosecutorial powers so long as safeguards are observed.
DPP's prosecutorial monopoly under Article 157
Victim participation under the VPA does not usurp or dilute the DPP's constitutional role; it assists the court in reaching a just decision
The Court held that the victim's intervention prescribed by the VPA should be implemented by the trial court at appropriate stages as justice requires, and it is the trial court's duty to conduct a fair trial and protect constitutional principles. The DPP retains control of the prosecution.
No rigid parameters for victim participation
The Court declined to set exhaustive parameters, leaving the scope of participation to the trial court case by case
Victim participation arises in infinitely varied factual situations; a rigid prescription would limit judicial discretion and impede the administration of justice and legal development. The trial court should determine participation as occasion arises.
Meaning of 'complainant' in section 13 VPA
'Complainant' includes a family victim who lodges a formal complaint with police, so a family victim of a deceased primary victim may adduce omitted evidence and make submissions through an advocate
Neither the VPA nor the CPC defines 'complainant'. A narrow construction restricted to living complainants would derogate from the purpose of the Constitution and VPA and create artificial categories of victims with differing rights. The word therefore extends to a family victim who initiates prosecution by lodging a formal complaint.
Legal principles established
#- The concept of a victim's advocate holding a mere watching brief in a criminal trial is outdated; the victim has a right to be heard throughout the trial and appellate process, to assist the court rather than the prosecutor
- A victim or their advocate may exercise the full powers of the court under section 150 of the Criminal Procedure Code, including cross-examination of witnesses, with the permission and directions of the trial court and subject to the proviso safeguarding the parties
- The constitutional rights of an accused to a fair trial must be balanced with the statutory rights of the victim under the VPA, which must be exercised without prejudice to the accused's fair-trial rights
- The word 'complainant' in section 13 of the VPA includes a family victim who initiates prosecution by lodging a formal complaint with the police
- The extent of victim participation should not be rigidly prescribed but determined by the trial court as the justice of each case requires
- Victim participation does not affect the DPP's constitutional and statutory role to conduct the prosecution
Court orders
#- 1.Appeal dismissed in its entirety
- 2.The High Court ruling of 17th August 2017 permitting the victim's counsel to participate in the trial on specified terms upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- Criminal Case No. 34 of 2014
- Jurisdiction invoked
- First appellate appeal from the High Court ruling (Court of Appeal appellate jurisdiction)
Relief refused
#Setting aside the trial judge's orders permitting victim's counsel participation
The Court found the rights given to the victim conform to the Constitution and the VPA
Costs
No costs order recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The concept of “watching brief” in a criminal trial where an advocate for the victim does not play any active role in the trial process is now outdated.
Accordingly, we find that a victim of an offence or his advocate or representative may exercise the plenitude of the powers of the court under section 150 of the Code with the permission and directions of the trial court.
It is preferable that the exercise of the victim’s rights should be determined by the trial court as occasion arises and as the justice of each case requires.
Accordingly, the appeal is dismissed in its entirety.
Issues in the judgment
#The appellant's name does not appear anywhere in the judgment; the appeal is identified only by reference to the High Court case (Criminal Case No. 34 of 2014) and the murdered deceased (Mitch Barasa Kibiti)
The judgment contains no express costs order despite dismissing the appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Waswa v Republic (Criminal Appeal 132 of 2016) [2019] KECA 752 (KLR)", Case Analysis (2019). Criminal Appeal No. 6 of 2016 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/752/eng@2019-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.