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KSL ATP Criminal Litigation study materials
KSL ATP Criminal Litigation study resources

KSL ATP Criminal Litigation practice questions

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Question 1Police powers, arrest, detention and access to legal advice

Under Article 49(1)(f) of the Constitution of Kenya, 2010, an arrested person must be brought before a court as soon as reasonably possible and in any event not later than what period after arrest?

  1. Seventy-two hours
  2. Twelve hours
  3. Forty-eight hours
  4. Twenty-four hours Correct answer.

Explanation

Article 49(1)(f) fixes the outer constitutional limit at twenty-four hours after arrest, subject only to the rule that where that period ends outside ordinary court hours or on a day that is not an ordinary court day, the person is taken to court by the end of the next court day. Time runs from the fact of arrest, not from the completion of investigations.

Question 2Police powers, arrest, detention and access to legal advice

Which provision of the Constitution of Kenya, 2010 expressly entitles an arrested person to communicate with an advocate and with other persons whose assistance is necessary?

  1. Article 51(2)
  2. Article 49(1)(c) Correct answer.
  3. Article 50(2)(a)
  4. Article 49(1)(a)

Explanation

Article 49(1)(c) guarantees an arrested person the right to communicate with an advocate and with other persons whose assistance is necessary. The right arises at the point of arrest and supports the preparation of a defence.

Question 3Police powers, arrest, detention and access to legal advice

Article 49(1)(a) of the Constitution requires an arrested person to be informed promptly, in a language the person understands, of the reason for the arrest, the right to remain silent and which other matter?

  1. The consequences of not remaining silent Correct answer.
  2. The name of the complainant
  3. The maximum sentence for the suspected offence
  4. The identity of the arresting officer's commander

Explanation

Article 49(1)(a) requires prompt information, in an understood language, on three matters: the reason for the arrest, the right to remain silent and the consequences of not remaining silent. The purpose is to allow an informed choice on whether to speak.

Question 4Police powers, arrest, detention and access to legal advice

Article 49(1)(d) of the Constitution protects an arrested person against which of the following?

  1. Being compelled to confess or admit the offence Correct answer.
  2. Being detained for more than six hours without food
  3. Being photographed at the police station
  4. Being held in the same cell as a convicted prisoner

Explanation

Article 49(1)(d) protects an arrested person from being compelled to make a confession or admission that could be used in evidence. A coerced statement is both a constitutional violation and, ordinarily, inadmissible.

Question 5Police powers, arrest, detention and access to legal advice

Under Article 49(1)(h) of the Constitution, an arrested person is entitled to be released on bond or bail, on reasonable conditions, pending a charge or trial unless...

  1. the offence is punishable by imprisonment for five years or more
  2. the person has been arrested more than once that year
  3. the investigating officer has not completed investigations
  4. there are compelling reasons not to be released Correct answer.

Explanation

Article 49(1)(h) creates a presumption in favour of release on bond or bail on reasonable conditions; the only constitutional exception is the existence of compelling reasons. The burden of establishing compelling reasons lies on the prosecution.

Question 6Police powers, arrest, detention and access to legal advice

Under section 33 of the Criminal Procedure Code, what may a police officer do on arresting a person?

  1. Publish the arrested person's details in the Kenya Gazette
  2. Detain the person's motor vehicle indefinitely at the police station
  3. Search the arrested person and place articles found in safe custody Correct answer.
  4. Search the homes of the person's relatives without any warrant

Explanation

Section 33 permits the arresting officer to search the arrested person and place in safe custody the articles found on him, apart from necessary wearing apparel. This protects both the suspect and the property pending disposal of the case.

Question 7Police powers, arrest, detention and access to legal advice

Article 49(2) of the Constitution prohibits remand in custody for an offence punishable only by a fine or by imprisonment for not more than...

  1. two years
  2. one year
  3. three months
  4. six months Correct answer.

Explanation

Article 49(2) bars remand in custody where the offence is punishable only by a fine or by imprisonment for a period not exceeding six months. Such minor offences must be dealt with without custodial remand.

Question 8Police powers, arrest, detention and access to legal advice

A conductor catches a pickpocket, ties his hands and keeps him in the vehicle for three hours before driving to a police station. Under section 30 of the Criminal Procedure Code, what should the conductor have done?

  1. Released the suspect after recovering the stolen item
  2. Handed the suspect over to a police officer without unnecessary delay Correct answer.
  3. Recorded a written confession before handover
  4. Kept the suspect until the complainant agreed to withdraw the complaint

Explanation

Section 30 allows a private person to arrest a person who commits a cognizable offence in his view, but requires the arrested person to be handed over to a police officer, or taken to the nearest police station, without unnecessary delay. Prolonged private detention is unlawful.

Question 9Police powers, arrest, detention and access to legal advice

An officer sees a man running from a shop with a smashed window. The officer has no warrant. Which fact best justifies an arrest without warrant under section 29 of the Criminal Procedure Code?

  1. The shop owner's request that the man be locked up
  2. Reasonable grounds to suspect a cognizable offence Correct answer.
  3. The man's previous conviction for theft
  4. The man's failure to produce an identity card

Explanation

Section 29 permits arrest without warrant where the officer has reasonable grounds to suspect that a person has committed a cognizable offence, among other stated grounds. The grounds must rest on facts known to the officer at the time, not on past record or speculation.

Question 10Police powers, arrest, detention and access to legal advice

A suspect is arrested at 8.00 p.m. on a Friday. The twenty-four hours expire on Saturday, which is not an ordinary court day. Under Article 49(1)(f), when must he be brought before a court?

  1. Before eight o'clock in the evening on Saturday
  2. Within forty-eight hours of the arrest being made
  3. By the end of the next court day Correct answer.
  4. Within seventy-two hours of the arrest being made

Explanation

Where the twenty-four-hour period ends outside ordinary court hours or on a day that is not an ordinary court day, Article 49(1)(f)(ii) requires the arrested person to be brought to court by the end of the next court day. The police cannot extend detention by their own decision.

Question 11Police powers, arrest, detention and access to legal advice

A police officer wishes to search a private home for suspected stolen goods, and there are no urgent circumstances. Under section 118 of the Criminal Procedure Code, the officer should...

  1. Search first and report to the court within seven days
  2. Enter and search on the verbal authority of the Officer Commanding Station
  3. Apply to a magistrate for a search warrant Correct answer.
  4. Ask a neighbour to witness the search in place of a warrant

Explanation

Section 118 empowers a magistrate or justice of the peace to issue a search warrant upon information and after any necessary inquiry. Absent urgency or valid consent, a search of private premises requires such a warrant.

Question 12Police powers, arrest, detention and access to legal advice

A person is held in a police station for five days without being taken to court. Which remedy is expressly preserved by Article 51(2) of the Constitution?

  1. An application for prohibition against the police
  2. A petition for an order of habeas corpus Correct answer.
  3. An application for anticipatory bail
  4. An application to quash the charge

Explanation

Article 51(2) provides that a person detained or held in custody is entitled to petition for an order of habeas corpus. The court then inquires into the legality of the detention and may order release.

Question 13Police powers, arrest, detention and access to legal advice

Article 49(1)(e) of the Constitution requires that an arrested person be held...

  1. in a facility approved by the person's advocate
  2. separately from persons who are serving a sentence Correct answer.
  3. in a cell with at least one other detainee
  4. in the police station nearest to the alleged offence

Explanation

Article 49(1)(e) entitles an arrested person to be held separately from persons who are serving a sentence. The provision protects unconvicted detainees from the conditions and influence of convicted prisoners.

Question 14Police powers, arrest, detention and access to legal advice

A court sets bail at a sum far beyond the suspect's means for a minor theft, saying the amount will teach him a lesson. Which principle applies?

  1. Conditions must be reasonable, not punitive Correct answer.
  2. Bail must equal the value of the property stolen
  3. The court may fix any sum it considers deterrent
  4. Bail must be refused in every theft case

Explanation

Article 49(1)(h) requires release on reasonable conditions, and the Bail and Bond Policy Guidelines direct that bail be proportionate to the circumstances. A sum fixed to punish the suspect subordinates the constitutional right to a penal purpose and is improper.

Question 15Police powers, arrest, detention and access to legal advice

Under section 36 of the Criminal Procedure Code, what must the officer in charge of a police station do about persons arrested without warrant within the station's limits?

  1. Report the cases to the nearest magistrate Correct answer.
  2. Apply to the High Court for approval of each arrest
  3. Obtain the Director of Public Prosecutions' consent within twenty-four hours
  4. Publish their names in the Kenya Gazette

Explanation

Section 36 requires the officer in charge to report to the nearest magistrate the cases of all persons arrested without warrant within the station limits, whether or not they have been admitted to bail. The report is a safeguard against unreported and unlawful detention.

Question 16Police powers, arrest, detention and access to legal advice

Under the Criminal Procedure Code, a warrant of arrest issued by a court must...

  1. remain valid for seven days from the date of issue
  2. be executed only by the officer named in it
  3. be written, signed and name the person to be arrested Correct answer.
  4. be served on the suspect before the arrest is made

Explanation

A warrant of arrest must be in writing, signed by the judicial officer issuing it, and must identify the person to be arrested and the offence alleged. It must then be executed without unnecessary delay.

Question 17Police powers, arrest, detention and access to legal advice

Under Article 49(1)(g), at the first court appearance an arrested person is entitled to be...

  1. granted bail on personal recognizance in every case
  2. supplied with the complete police file immediately
  3. charged, told why detention continues, or released Correct answer.
  4. allowed to plead to a charge drafted by the police

Explanation

Article 49(1)(g) requires that at the first court appearance the person be charged, informed of the reason for the detention continuing, or released. The provision prevents detention from drifting on without judicial oversight.

Question 18Police powers, arrest, detention and access to legal advice

A suspect quietly submits when told that he is under arrest. Under the Criminal Procedure Code, which statement best describes the arresting officer's position?

  1. The officer must physically touch the suspect for the arrest to be valid
  2. Only so much restraint as is necessary for detention may be used Correct answer.
  3. Handcuffs must be applied in every arrest
  4. A warrant must be obtained before the suspect is moved

Explanation

The Criminal Procedure Code permits no more restraint than is necessary for the detention of the arrested person, and submission by word or action removes any need for physical compulsion. Handcuffing is a measure of restraint, not an automatic incident of arrest.

Question 19Police powers, arrest, detention and access to legal advice

A suspect who speaks only a minority language is charged, and no interpreter is provided at the hearing. Which constitutional right is most directly engaged?

  1. The right to examine witnesses
  2. The right to be present at the trial
  3. The right to an interpreter without payment Correct answer.
  4. The right to a public trial

Explanation

Article 50(2)(m) entitles an accused who cannot understand the language used at the trial to the assistance of an interpreter without payment. Without an interpreter the accused cannot follow the proceedings or participate effectively in the defence.

Question 20Police powers, arrest, detention and access to legal advice

Police arrest a man solely because they wish to question him about a complaint, and they have no reasonable suspicion that he committed an offence. Which statement is correct?

  1. The arrest is lawful if the Officer Commanding Station approves it
  2. The arrest is unlawful for want of reasonable suspicion Correct answer.
  3. The arrest is lawful if it lasts less than twenty-four hours
  4. The arrest is lawful because investigation requires his presence

Explanation

An arrest must rest on a lawful ground, such as reasonable suspicion of a cognizable offence; it cannot be used simply to hold a person for questioning. Detention to facilitate investigation without such grounds is arbitrary and breaches the arrested person's constitutional protections.

Question 21Police powers, arrest, detention and access to legal advice

Police deny a suspect access to his advocate for two days and then obtain a confession from him. Under Article 50(4) of the Constitution, how should the court treat the confession?

  1. Admit it because a confession is always relevant evidence
  2. Exclude it if admission would make the trial unfair Correct answer.
  3. Admit it if an inspector recorded it
  4. Admit it if the suspect signed every page

Explanation

Article 50(4) requires evidence obtained in a manner that violates a Bill of Rights guarantee to be excluded if its admission would render the trial unfair or otherwise be detrimental to the administration of justice. Denial of access to counsel contrary to Article 49(1)(c) is such a violation.

Question 22Police powers, arrest, detention and access to legal advice

At trial, the prosecutor invites the court to infer guilt from the accused's refusal to answer questions when he was arrested. How should the court treat that submission?

  1. Reject it only if the accused was assaulted while in custody
  2. Accept it if the accused had been informed of the right to remain silent
  3. Accept it, because silence in the face of accusation is an admission
  4. Reject it, because the Constitution guarantees the right to remain silent Correct answer.

Explanation

Article 49(1)(b) guarantees an arrested person the right to remain silent, and Article 50(2)(a) presumes innocence until proven guilty. Silence at arrest is therefore not an admission and cannot found an inference of guilt.

Question 23Police powers, arrest, detention and access to legal advice

A suspect is held for seventy-two hours before being charged. Which statement best reflects the legal position?

  1. The detention is unlawful, but the prosecution is not automatically barred Correct answer.
  2. The charge must be struck out because of the delay
  3. The court cannot examine the delay after a charge is filed
  4. The delay is cured once the court grants bail

Explanation

Detention beyond twenty-four hours without a court order breaches Article 49(1)(f), and the court before which the person is eventually taken may release him or grant other relief. The breach does not, however, automatically extinguish the prosecution.

Question 24Police powers, arrest, detention and access to legal advice

A statute provides that a person arrested for a specified offence may be held for fourteen days before first appearance. How does that provision stand with Article 49(1)(f) of the Constitution?

  1. It is valid because an Act of Parliament may extend constitutional time limits
  2. It is valid only for offences carrying more than ten years' imprisonment
  3. It is valid if the Director of Public Prosecutions consents
  4. It is void to the extent that it conflicts with the Constitution Correct answer.

Explanation

Article 2(4) provides that any law inconsistent with the Constitution is void to the extent of the inconsistency, and Article 2(1) declares the Constitution supreme. A statutory detention period longer than the constitutional limit is therefore invalid to that extent.

Question 25Professional conduct, ethics and client care in criminal practice

An advocate represented a client in a criminal trial that ended two years ago. The client now asks whether the advocate may discuss the case with a journalist. What is the advocate's professional position?

  1. The duty of confidentiality ends if the client fails to pay the final fee note.
  2. The duty of confidentiality ends once judgment is delivered in the trial.
  3. The duty of confidentiality ends when the advocate files a notice of ceasing to act.
  4. The duty of confidentiality survives the end of the retainer. Correct answer.

Explanation

Confidentiality is a continuing obligation that is not extinguished by judgment, by the end of the retainer or by withdrawal. Only the client's informed consent, or a recognised exception such as preventing serious crime or a statutory duty of disclosure, permits disclosure. Non-payment of fees is a civil debt and gives no licence to reveal client information.

Question 26Professional conduct, ethics and client care in criminal practice

An advocate is instructed to act for two men charged jointly with robbery. In conference, the first accused says the second was the one holding the gun, while the second says the first planned the raid. What should the advocate do?

  1. Continue for both but disclose each client's account to the other so they can align.
  2. Continue for both and simply avoid raising the question of the gun at trial.
  3. Act only for the accused who paid the retainer first and withdraw from the other.
  4. Withdraw from acting for both accused because their defences conflict. Correct answer.

Explanation

An advocate cannot act for two clients whose defences are irreconcilable, because advancing one client's case necessarily undermines the other's. Neither silence on a material issue nor mutual disclosure of confidences cures the conflict. The proper course is to decline or cease acting for both, subject to the court's leave once proceedings are on record.

Question 27Professional conduct, ethics and client care in criminal practice

A defence advocate has fully explained the consequences of giving false evidence, but the client still insists on testifying to an account he knows is untrue. What is the proper course for the advocate?

  1. Call the client and correct the falsehood when re-examining him.
  2. Call the client and put the account to him because instructions bind the advocate.
  3. Report the client's intention to the court and to the prosecutor at once.
  4. Decline to call the client and, if necessary, withdraw without disclosing why. Correct answer.

Explanation

An advocate must not present evidence he knows to be false, but the duty of confidentiality prevents him from informing the court of the client's confidences. The accepted course is to refuse to call the client and, if the client insists, to apply to withdraw without giving the true reason. The court may then be told only that professional reasons prevent further appearance.

Question 28Professional conduct, ethics and client care in criminal practice

A client charged with theft asks his advocate to accept a fee equal to 15 per cent of any sum recovered in a related civil suit if he is acquitted. What is the professional position?

  1. Permissible if the client signs a written acknowledgement of the financial risk.
  2. Permissible if the civil suit is filed only after the criminal case is concluded.
  3. Impermissible, because a criminal fee may not be contingent on the outcome of the case. Correct answer.
  4. Permissible if the percentage is disclosed to the court at the first mention.

Explanation

A fee that depends on the outcome of a criminal matter is improper because it gives the advocate a personal financial stake in the verdict and risks distorting advice, including advice on plea. Disclosure, timing or a written acknowledgement does not cure the objection. The advocate should charge a fee fixed independently of the result.

Question 29Professional conduct, ethics and client care in criminal practice

An advocate receives KES 200,000 from a client to be produced as cash bail at the next mention. He banks it in his office general account and pays a clerk's salary from it. What is the correct assessment?

  1. He acted properly because he can replace the sum before the mention date.
  2. He acted properly because bail money belongs to the client's family, not the client.
  3. He acted properly because the money had not yet been paid into court.
  4. He has misapplied client money by mixing it with office funds. Correct answer.

Explanation

Money received for a client's purpose is trust money; it must be held in a designated client account and used only for that client's purpose. Paying office expenses out of it is misapplication even if the sum is later replaced. Replacement may mitigate the loss but does not cure the professional breach.

Question 30Professional conduct, ethics and client care in criminal practice

Which step best reflects an advocate's client care obligations at the start of a criminal retainer?

  1. Take instructions from the relative who is paying the advocate's fee.
  2. Guarantee the client an acquittal so that he cooperates fully with the defence.
  3. Postpone any explanation of the process until the fee is settled in full.
  4. Confirm the scope of work, the fee basis and the client's objectives in writing. Correct answer.

Explanation

A client care letter at the outset records the scope of the work, the fee arrangement, who will handle the matter and how the client may raise concerns, so that expectations are clear on both sides. Promising a particular outcome is misleading and undermines trust. Instructions must come from the client even where a third party pays the fee.

Question 31Professional conduct, ethics and client care in criminal practice

An advocate is on record for an accused who has not paid the agreed fee, and the trial is listed for hearing next week. What is the appropriate professional step?

  1. Stay away from court on the hearing date to pressurise the client into paying.
  2. Apply for leave to cease acting, having given the client reasonable notice. Correct answer.
  3. Tell the court in open court that the client has not paid and seek an adjournment.
  4. Remain on record but decline to cross-examine the prosecution witnesses.

Explanation

Once an advocate is on record, withdrawal requires the court's leave and reasonable notice to the client. Non-payment is a civil debt to be pursued separately and is not a ground for abandoning the client on the eve of trial. Non-attendance or refusing to conduct the defence would itself amount to professional misconduct.

Question 32Professional conduct, ethics and client care in criminal practice

Counsel for an accused knows of a binding Court of Appeal decision that is adverse to her bail application. What is the correct approach?

  1. Disclose it and explain why it does not apply to her client. Correct answer.
  2. Say nothing, since the prosecutor carries the burden of finding authority on the point.
  3. Mention it only if the magistrate asks whether there is authority directly on point.
  4. Disclose it only after obtaining the client's written permission to do so.

Explanation

An advocate must not mislead the court and must bring relevant adverse authorities to its attention, because the duty to the court is independent of the opponent's diligence. Leaving binding adverse authority to the prosecutor is a breach of that duty. Disclosure is not a matter on which the client's consent is required.

Question 33Professional conduct, ethics and client care in criminal practice

A client awaiting trial for grievous harm tells his advocate that he intends to kill the main prosecution witness before the hearing. How should the advocate respond professionally?

  1. Inform the court and immediately withdraw from the case.
  2. Take reasonable steps to prevent the crime, including warning the witness or the police. Correct answer.
  3. Warn the client's family and take no other step.
  4. Keep silent, because all communications between advocate and client are absolutely privileged.

Explanation

Confidentiality yields where disclosure is necessary to prevent a serious crime or serious harm, and an intended killing clearly falls within that exception. Legal professional privilege protects communications from being given in evidence; it does not oblige the advocate to stand by while a witness is murdered. Any disclosure should be limited to what is necessary to avert the danger.

Question 34Professional conduct, ethics and client care in criminal practice

Advocate X acted for Mr M in a theft case and learnt about M's finances in confidence. M's former business partner now asks X to sue M in a civil fraud claim arising from the same dealings. What should X do?

  1. Accept, because a former client loses the right to object once the retainer ends.
  2. Accept, because the earlier matter was criminal and the new one is civil.
  3. Accept, provided X does not use any document from the criminal file.
  4. Decline, because the matters are substantially related and X holds M's confidences. Correct answer.

Explanation

An advocate may not act against a former client in a matter substantially related to the earlier retainer where confidential information could be used to that client's disadvantage. The duty of loyalty and confidentiality continues after the retainer ends. Avoiding the old file is not a sufficient safeguard, since the advocate's own knowledge cannot be erased.

Question 35Professional conduct, ethics and client care in criminal practice

An advocate who has never conducted a murder trial is instructed in one, with no leader available. What does the duty of competence require?

  1. Accept the brief and let a pupil in chambers conduct all the court appearances.
  2. Accept the brief because the client chose him and has agreed the fee.
  3. Accept the brief and learn the relevant law and procedure as the trial unfolds.
  4. Decline unless he can become competent or bring in an experienced advocate. Correct answer.

Explanation

Competence requires the knowledge and skill reasonably necessary for the task, and where these are lacking the advocate must either acquire them through proper preparation or associate someone who has them. Learning a capital case on the client's time risks the client's liberty. The client's choice of advocate does not relieve the advocate of the duty.

Question 36Professional conduct, ethics and client care in criminal practice

For six weeks a client on remand has asked his advocate for an update on his case, and the advocate has not replied. What is the best description of the position?

  1. No duty arises because the client is in custody and difficult to contact.
  2. The advocate should communicate only through the court once a plea has been taken.
  3. Updates are optional and depend on whether the client has paid in full.
  4. Failing to keep a client reasonably informed can amount to misconduct. Correct answer.

Explanation

Client care includes keeping the client informed of progress and of significant developments, and responding to reasonable requests for information. Persistent silence that leaves a remand client unable to give proper instructions is capable of amounting to professional misconduct. Custody, unpaid fees and the stage of proceedings do not suspend the duty.

Question 37Professional conduct, ethics and client care in criminal practice

A police officer who introduces arrested suspects to an advocate asks for 20 per cent of the fee in return. What is the professional position?

  1. The advocate must refuse, because sharing fees with a non-advocate for referrals is improper. Correct answer.
  2. The advocate may agree if the arrangement is disclosed to the client in writing.
  3. The advocate may agree if the share is paid from office funds rather than client funds.
  4. The advocate may agree if the percentage is reasonable by market standards.

Explanation

An advocate may not share professional fees with a person who is not an advocate, nor pay for introductions, because such arrangements compromise independence and amount to touting. Disclosure to the client does not cure the impropriety. The source of the money and the size of the share are equally irrelevant.

Question 38Professional conduct, ethics and client care in criminal practice

An advocate wants to complain about late disclosure by the prosecution. He arranges to see the magistrate in chambers without telling the prosecutor. What is the correct view?

  1. Proper, because disclosure complaints are administrative rather than adversarial.
  2. Improper only if the meeting is likely to prejudice the prosecution case.
  3. Improper, because that communicates with the court behind the other side's back. Correct answer.
  4. Proper, provided the advocate makes a note of what was said.

Explanation

An advocate must not communicate with the court on matters in issue without notice to the other side, since this undermines the adversary process and the appearance of fairness. Disclosure complaints should be raised in open court on notice or in a hearing at which both sides are present. Making a note of the conversation does not cure the impropriety.

Question 39Professional conduct, ethics and client care in criminal practice

A client charged with robbery says he will plead guilty because a police officer told him he would get a lighter sentence. What should the advocate do?

  1. Enter the guilty plea as instructed, because the plea decision belongs to the client.
  2. Record the guilty plea and then ask the court for a lenient sentence.
  3. Refuse to act further unless the client agrees to plead not guilty.
  4. Explain the charge, the possible sentence and the consequences, and let the client decide. Correct answer.

Explanation

The client decides how to plead, but only after clear advice on the elements of the charge, the maximum and any minimum sentence, and the consequences of conviction. A plea prompted by a police promise of leniency may be equivocal and unsafe. The advocate must advise without pressuring the client either way.

Question 40Professional conduct, ethics and client care in criminal practice

An advocate gives the court a written undertaking to file submissions by Friday. The client fails to send instructions and nothing is filed. What is the position?

  1. The undertaking lapses automatically when the client fails to give instructions.
  2. The advocate is personally bound and must honour it or face sanction. Correct answer.
  3. The undertaking binds the client, who is personally liable for the default.
  4. The undertaking is unenforceable for want of consideration.

Explanation

An undertaking given by an advocate is a personal professional promise to the court or to another party and is not excused by the client's default. The advocate must therefore comply, or seek release from the undertaking before the deadline expires. Breach exposes the advocate to disciplinary sanction and may ground personal liability.

Question 41Bail, custody and remand applications

Which constitutional provision guarantees an arrested person the right to be released on bond or bail on reasonable conditions?

  1. Article 29
  2. Article 50(2)(c)
  3. Article 25(a)
  4. Article 49(1)(h) Correct answer.

Explanation

Article 49(1)(h) of the Constitution provides that an arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. The other provisions address fair hearing, non-derogable rights and security of the person, not bail.

Question 42Bail, custody and remand applications

Under Article 49(1)(h) of the Constitution, bail may be denied only where the court is satisfied that there are:

  1. compelling reasons Correct answer.
  2. strong prosecution evidence
  3. serious charges
  4. victim objections

Explanation

Article 49(1)(h) makes the right to bail subject only to 'compelling reasons' shown by the respondent. Seriousness of the charge or the strength of the evidence may be relevant facts, but neither is itself the legal test for denial.

Question 43Bail, custody and remand applications

An arrested person must be brought before a court as soon as reasonably possible but not later than:

  1. 12 hours after arrest
  2. 24 hours after arrest Correct answer.
  3. 72 hours after arrest
  4. 48 hours after arrest

Explanation

Article 49(1)(f) requires production before a court as soon as reasonably possible and no later than 24 hours after arrest, with an extension to the end of the next court day if the 24 hours expire outside ordinary court hours. The other periods do not reflect this constitutional rule.

Question 44Bail, custody and remand applications

Cash bail deposited in court is best described as:

  1. refundable security Correct answer.
  2. a fine paid to the State
  3. victim compensation
  4. court fees

Explanation

Cash bail is security deposited to secure the accused's attendance, not a fine or court fee, and it is refundable when the case concludes unless it is forfeited for breach. The court holds it as a bond, not as state revenue or victim compensation.

Question 45Bail, custody and remand applications

The Bail and Bond Policy Guidelines in Kenya were issued by:

  1. the Director of Public Prosecutions
  2. the National Police Service
  3. the Judiciary Correct answer.
  4. Parliament

Explanation

The Bail and Bond Policy Guidelines were developed under the Judiciary's remit and issued in 2015 to guide courts, police and prosecutors on bail and bond decisions. They are not a statute enacted by Parliament or a policy of the DPP or Police Service.

Question 46Bail, custody and remand applications

Under Kenyan law, detention of a child offender pending trial should be used:

  1. if the child lacks a surety
  2. as a last resort Correct answer.
  3. whenever the offence is serious
  4. for all capital offences

Explanation

The Children Act and the Bail and Bond Policy Guidelines require that detention of a child pending trial be used only as a last resort and for the shortest appropriate period. The seriousness of the offence alone does not displace this principle; the court must consider alternatives such as parental supervision and bail.

Question 47Bail, custody and remand applications

In a bail application, the prosecution alleges that the accused is a flight risk. The burden of establishing this compelling reason lies with:

  1. the accused
  2. the surety
  3. the court
  4. the prosecution Correct answer.

Explanation

Because Article 49(1)(h) creates a right to bail, the party opposing it must justify denial by establishing compelling reasons such as a real flight risk. The accused does not bear the burden of disproving those reasons, though the accused may need to address them once raised.

Question 48Bail, custody and remand applications

When a court denies bail, it must:

  1. record the compelling reasons Correct answer.
  2. refer the matter to the DPP
  3. remand the accused for 14 days
  4. impose cash bail instead

Explanation

A court that denies bail must give reasons so that the decision can be reviewed and the compelling-reason standard is applied transparently. The Constitution and the Bail and Bond Policy Guidelines require recorded reasons, not merely a remand order.

Question 49Bail, custody and remand applications

In bail applications, the seriousness of the charge alone:

  1. mandates remand
  2. is not sufficient Correct answer.
  3. requires a cash bond
  4. justifies denial

Explanation

Seriousness of the charge is a relevant factor, but the Bail and Bond Policy Guidelines and case law require specific compelling reasons tied to the accused, such as flight risk or witness interference. Gravity alone cannot justify denial because that would undermine the constitutional presumption in favour of bail.

Question 50Bail, custody and remand applications

An accused person with a previous conviction applies for bail. The court should:

  1. remand for the entire trial
  2. automatically deny bail
  3. impose maximum cash bail
  4. consider it among other factors Correct answer.

Explanation

A previous conviction is a relevant factor when assessing character, antecedents and the likelihood of reoffending or absconding. It does not create an automatic bar to bail, and the court must still weigh all circumstances and apply the compelling-reason test.