UNIVERSITY OF NAIROBI SCHOOL OF LAW ASSESSING THE EFFECTIVNESS OF THE CRIMINAL JUSTICE SYSTEM IN ADDRESSING WRONGFUL CONVICTIONS IN KENYA

UNIVERSITY OF NAIROBI
SCHOOL OF LAW

ASSESSING THE EFFECTIVNESS OF THE CRIMINAL JUSTICE SYSTEM IN ADDRESSING WRONGFUL CONVICTIONS IN KENYA.

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BUNDI GLORIA KERUBO
G34/35117/2014
A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE BACHELOR OF LAWS (LL.B) DEGREE, SCHOOL OF LAW, UNIVERSITY OF NAIROBI. (GPR 456)
AUGUST 2018
“It is better ten guilty people escape than one innocent person suffers” English Jurist William Blackstone (176)

UNIVERSITY OF NAIROBI
SCHOOL OF LAW

ASSESSING THE EFFECTIVNESS OF THE CRIMINAL JUSTICE SYSTEM IN ADDRESSING WRONGFUL CONVICTIONS IN KENYA.

BUNDI GLORIA KERUBO
G34/35117/2014
A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE BACHELOR OF LAWS (LL.B) DEGREE, SCHOOL OF LAW, UNIVERSITY OF NAIROBI. (GPR 456)
AUGUST 2018
“It is better ten guilty people escape than one innocent person suffers” English Jurist William Blackstone (176)
DECLARATION
I, Bundi Gloria Kerubo hereby declare that this Dissertation which I submit for the degree of Law at the University of Nairobi, School of Law is my original work and has not previously been submitted for a degree at another university.

Signed ________________________ Date____________________________
BUNDI GLORIA KERUBO
This dissertation has been submitted with my approval as the University supervisor.

Signed________________________ Date____________________________
DR NKATHA KABIRA

DEDICATION
This dissertation is dedicated to my Father, my mother and my entire family for their unceasing love and support during the entire period of my preparation.

ACKNOWLEDGEMENT
First I want to thank the God almighty for the care and strength during this entire period. I also want to immensely thank my supervisor, Dr. Kabira Nkatha for your guidance throughout the writing of this dissertation. Without you, I would not have made it this far! May God grant you the strength to continue guiding many more. Lastly, I want to thank my family for the continuous support through encouraging me to soar to greater heights. Thank you.

LIST OF STATUTES
The Constitution of Kenya (1963) (Repealed)
The constitution of Kenya, 2010
Evidence Act Cap 80 Laws of Kenya
Advocates Act Cap 16 Laws of Kenya
Legal aid Act 2016 Laws of Kenya
Magistrate Court Act Laws of Kenya
Judicature Act Cap 8 Laws of Kenya
Criminal Procedure Code Cap 75 Laws of Kenya
Penal Code Cap 63 Laws of Kenya
Prevention of Torture Act (2017) Laws of Kenya
INTERNATIONAL LEGAL INSTRUMENTS
International Covenant On Civil and Political Rights(ICCPR)
LIST OF CITED CASES
Thembekile Molaudzi v state
Abdi Ali Bare v Republic 2015 eKLRMurungu Mbogo v Chief of the Kenya Defence Forces and another 2018 eKLRPetition 340 of 2012 2012 eKLRTeresia Wanjiku Njoroge v Standard Chartered Bank 2013 eKLRValentine Ondieki and 2 others v Republic 2005 eKLRWachira Wehere v The Hon. Attorney General 2010 eKLRMwandawiro Mghanga v Attorney General 2017 eKLRKenneth Stanley Njindo Matiba v Attorney General 2017 EklrTeresia Wanjiku Njoroge v Standard Cjartered Bank 2013 eKLRAli Cheptengei v Attorney General 2005 eKLR
LIST OF ABBREVIATION
IPOA Independent Policy and Oversight
CPC Criminal Procedure Code
TJRC Truth Justice, and Reconciliation Commission
TABLE OF CONTENTS
Declaration
Dedication
Acknowledgments
List of Statutes
List of Cited Cases
List of Abbreviation
Abstract
CHAPTER ONE: INTRODUCTION TO THE STUDY……………………………………..14
Introduction …………………………………………………………………………………..12
Statement of the problem……………………………………………………………………..17
Research questions….………………………………………………………………………..17
Objective of the study ……………………………………………………………………… 18
Hypothesis…………………………………………………………………………………………18
Theoretical Framework………………………………………………………………………19
Critical legal Theory………………………………………………………………………19
Procedural Justice Theory………………………………………………………………..20
Literature Review…………………………………………………………………………….20
Research Methodology…………………………………………………………………………….22
Conclusion……… ………………………………………………………………………………..22
1.11 Chapter breakdown…………………………………………………………………………22
CHAPTER TWO: HISTORICAL BACKGROUND OF THE CRIMINAL JUSTICE SYSTEM AND CAUSES OF WRONGFUL CONVICTIONS IN KENYA
Introduction…………………………………………………………………………………..24
Historical Background of the criminal justice system and wrongful convictions in Kenya …25
Pre-colonial Period……………………………………………………………………….25
Colonial Period…………………………………………………………………………..26
Post-Colonial Period……………………………………………………………………..29
Pre 2010………………………………………………………………………………….32
Post 2010…………………………………………………………………………………33
2.3 Causes of wrongful conviction caused by the Criminal Justice System in Kenya…………………………………………………………………………………………….34
2.3.1 Eye witness misidentification ……………………………………………………………..34
2.3.2 False confessions…………………………………………………………………………..36
2.3.3 Inadequate representation by Advocates………………………. …………………………37
2.3.4 Insufficiency and Inaccuracy of evidence …………………………………………………38
2.3.5 Police and prosecutorial misconduct………………… ……………………………………40
2.3.6 Bribery and corruption……………………………………………………………………..42
2.4 Conclusion…..……………………………………………………………………………….43
CHAPTER THREE: EFFECTS OF WRONGFUL CONVICTIONS ON THE CRIME VICTIMS AND THEIR FAMILIES
Introduction………………………………………………………………………………44
Effects of wrongful convictions on the crime victims and their families………………..44
Denial of justice……………………………………………………………………….45
Unjust denial of the Right to Liberty and the Freedom of Movement………………..45
Economic loss………………………………………………………………………..46
Susceptible to torture, degrading and inhuman treatment……………………………47
Psychological trauma…………………………………………………………………49
Lack of proper medical care…………………………………………………………50
Lack of proper diet……………………………………………………………………51
Loss of life……………………………………………………………………………51
Lack of acceptance from the society…………………………………………………52
3.3 Conclusion……………………………………………………………………………53
CHAPTER FOUR: RECOMMENDATIONS ON HOW TO REDRESS THE CRIMINAL JUSTICE SYSTEM SO AS TO REDUCE THE CASES OF WRONGFUL CONVICTIONS
4.1 Introduction……………………………………………………………………………….54
4.2 Recommendations on how to redress the criminal justice system so as to reduce the cases of wrongful convictions…………………………………………………….……………………54
4.2.1 Adoption of best practice from other jurisdiction…………………………………………54
4.2.2 Increase in the oversight of the police by the Independent Policing Oversight Authority…………………………………………………………………………………………55
4.2.3 Reforming of the law of evidence………………………………………………………….56
4.2.4 Reforming the police force…………………………………………………………………56
4.2.5 Enforcement of compensation to wrongful convicted persons……………………………..56
4.2.6 Total implementation of Article 50 of the Constitution of Kenya………………………….57
4.2.7 Absolute enforcement of rights and freedoms……………………………………………..58
4.3 Conclusion……………………………………………………………………………………59
CHAPTER FIVE: CONCLUSION OF THE STUDY
5.1 CONCLUSION………………………………………………………………………………60
BIBLIOGRAPHY………………………………………………………………………………..62
ABSTRACT
What the law assures and proclaims and what the law does are disparate. The constitution of Kenya 2010 guarantees the right to a fair trial and access to justice for all individuals. But this right can only be realised where the processes that lead to a conviction or sentencing are accurate, fair, impartial and that which, follows a virtuous procedure. Where this is not followed there is a prospect of the outcome being a miscarriage of justice such as a wrongful conviction. Kenya’s criminal Justice system has portrayed its inability and lack of effectiveness in ensuring that Justice as the core principle of it’s justice system has been achieved. This is through the occurrence of wrongful convictions. The study will assert and give an overview the ineffectivness of the Kenya’s Criminal Justice System in addressing wrongful convictions through analyzing case laws and pointing out the errors in the Criminal Justice System process. It will further analyze the adverse effects of the flawed Criminal Justice system to the victims. That, although the Criminal Justice System has in many instances realized justice, it has similarly failed in many instances. As a result of its errors, the outcome being the denial of Justice through wrongful convictions.

The findings of this study unveils the flaws and further recommends how the Criminal Justice System can be effective in dealing with wrongful convictions in Kenya.

CHAPTER ONE
INTRODUCTION TO THE STUDY
1.1 INTRODUCTION
This dissertation examines the causes of wrongful convictions brought about by the Criminal Justice Processes. It confirms that indeed wrongful convictions are as a result of the flawed criminal justice system and argues that the Criminal Justice System has proved insufficient in realising Justice.

In September 13th 2013, the Independent Policing Oversight Authority (IPOA) released its first study that exposed a stunning reality, that in two thirds of felony cases reviewed in Kenya, the accused had been tried for crimes, even though law enforcement had not gathered sufficient evidence to charge them.
The criminal justice system in Kenya is founded on common law which evolved from England. The criminal justice system is an important aspect in the attainment of justice and fairness for any individual who has been offended .In as much as no system is perfect, any justice system, must attain certain minimum requirements in order to minimize errors especially in criminal cases that are vital and sensitive. The importance of justice is that what is wrong is punished and the good is upheld and therefore creating a safe environment for the society to live in. However this has not been fully accomplished in Kenya. As a result of the flawed criminal justice system, wrongful convictions has been a major issue impending justice as the real offenders walk freely and the innocent are prosecuted and punished therefore inhibiting perfect justice.

One of the worst types of injustice is the miscarriage of justice through wrongful convictions. Wrongful conviction can be defined as the conviction of innocent persons, by the court of law. It occurs where the evidence adduced leads to a specific person as the perpetrator of an offence and later leading to the conviction of the person whereas the person is innocent or where the accused persons feels compelled to plead guilty and they are innocent in order to avoid long prison sentences or court processes. Wrongful conviction has not been a problem only in Kenya, but also in other jurisdictions. An example is in the United States of America where since 1989, 1761 people have been exonerated based on evidence that arose proving their innocence.

There have been a number of cases of wrongful convicted persons in Kenya. The reasons often cited include coerced confessions, misidentification of eye witnesses, corrupt judges, and inadequate representation by the advocates. This may be either intentionally or unintentionally. The problem with this is that even though the case is exonerated nothing can compare to the injustice experienced by the innocent and the violation of the individual’s constitutional right to freedom, and not to be deprived of it without just cause. This is according to article 29 of the constitution of Kenya. Moreover the safety of the country may be at risk where serious crimes have been committed and the real perpetrators are free.

This study is an analysis of Kenyan’s flawed criminal justice system as being a major cause of wrongful convictions.

THE STATEMENT OF THE PROBLEM
Despite the fact that, justice has prevailed in a large number of cases in Kenya, many people have also escaped the hands of justice leaving a large number of people who have been wrongly convicted for a crime they did not commit. This is attributed to the flaws in the methods of adducing evidence and the court’s criminal justice processes. With the rampant problem of wrongly convicted persons in Kenya, there is need for the criminal justice system to address the problem and to make reforms so as to improve the accuracy of the justice process. Therefore, the paper will seek to show how certain flaws in the criminal justice in Kenya have contributed to wrongful convictions.

RESEARCH QUESTIONS
This research addresses the following;
Why and how has Kenya’s criminal justice system not adequately addressed wrongful conviction?
What is the impact of wrongful convictions to the affected persons and their families?
How can the Kenyan justice system can be reformed towards accuracy and efficiency to avoid cases of wrongly convicted person?
OBJECTIVE OF THE STUDY
The main objective of this paper is to try and find out how the criminal justice system can be effective in dealing with the issue of wrongful convictions in Kenya.
THE RESEARCH HYPOTHESIS
The paper will seek to ascertain and prove the following;
That the criminal justice system in Kenya has not adequately addressed wrongful convictions.

That the criminal justice system in Kenya is a greatly flawed system and its errors are the major cause of wrongful convictions.

THEORETICAL FRAMEWORK
The paper is based on the following theories; Critical Legal Theory and Procedural Justice Theory.

Critical Legal theory
Critical legal theory is defined as, a theory that, exists to support interests of a certain class, and is a collection of believes that support injustices committed in the society. According to Karl Max, the wealthy and the powerful are seen to use the law to cause injustices and to their advantage, by using it as an instrument of oppression. The critical legal studies theorists strongly affirm that, the decisions of legal proceedings are often indeterminate and cannot be completely relied on to reach a fair and just outcome. They often argue that what the law does and says are two different things. In relation to wrongful convictions, it is seen that the main causes are pointed out to the flawed criminal justice system. The main aim of any court process is for the outcome to be fair and just. This theory applies in wrongful convictions as at times witnesses offer false confessions and also corrupt judges who implicate a crime on someone who is innocent due to bribery from the wealthy.

Procedural justice theory
Procedural justice theorists such as Tom Tyler, asserts that, the processes that are to be used by decision makers in court should be fair and proper. This can be linked to the legal proceeding and process that, are used in coming up with judicial decisions which should be fair. In connection to wrongful conviction, mostly the outcome of wrongful convictions is caused by lack of a fair process in the criminal justice system such as false confessions, false testimony by expert witness and corruption.

LITERATURE REVIEW
It cannot be disputed that there is a wealth of literature on the contribution of the criminal justice system to wrongful convictions both nationally and internationally. Dr Naughton says that wrongful convictions will continue as long as the criminal justice system still relies on certain evidence such as circumstantial, eye witness and expert witness which has been scientifically disputed. Michael Naughton’s book on the Innocent and the Criminal Justice System, critically examines the wrongful convictions and the plea of the innocent. In his book he provides a large wealth of cases, and statistics on how the criminal justice system is seen to work against the innocent. In his book he also discusses and examines the miscarriage of justice which is caused both intentionally and unintentionally. Also an article by Olivia Goldhill reveals and examines, over four cases that show and portray the errors of the criminal justice system that have caused wrongful convictions in the United Kingdom some dating from 1978, where she relates the prosecution and conviction of innocent persons to DNA evidence, false confession and lack of investigation. The relevance of this book to my study is that it portrays some of the causes of wrong convictions as the problem is not just limited to Kenya.

In comparison to other jurisdictions, not much literature has been written in Kenya regarding the contribution of the flawed criminal justice system to wrongful convictions. However, an article by Ann Ngige on Stolen Years and the Injustice of Wrongful Conviction contributes to this study. In her article she strongly asserts that indeed the conviction of the innocent is a problem in Kenya, and there is need for redress or incorporation of necessary reforms in the criminal justice system. In my research I will therefore seek to critically expound on the main causes of wrongful conviction as the amount of literature in Kenya, in relevance to wrongful convictions is scarce in comparison to other jurisdictions. There is therefore need to incorporate more research articles and materials that elaborate on wrongful convictions in Kenya.

1.9 RESEARCH METHODOLOGY
The method that will be used to gather information will be desktop or qualitative research. I will incorporate information from judicial decisions, books, reports, scholarly writing and articles. The dissertation will also refer to relevant texts and websites. The research will also compare the practice of other jurisdiction through analysis of data relating to wrongly convicted person especially in Canada and the United States of America. The reason for choosing this jurisdictions, is that as the problem has been greatly elaborated in this jurisdiction, apart from the fact that it has registered the highest numbers of wrongful convictions globally. However, the research is fully focused on Kenya.
1.10 CONCLUSION
In conclusion, the study will give an insight of the criminal justice system in Kenya by outlining its flaws, which as a result are the cause of wrongful convictions in Kenya. Through those insights, the study suggests recommendations on how to minimize the incidence of wrongful convictions in Kenya.

1.11 CHAPTER BREAKDOWN
The following is the chapter breakdown;
Chapter 1: The first chapter will be the introduction which will seek to give an overview of the dissertation by introducing the topic and outlining various aspects of the dissertation such as the theoretical framework, the literature review, the research questions, the hypothesis and the research methodology. It will also address the organization of the paper through the chapter break down.

Chapter 2: The second Chapter will elaborate on the historical background of the Criminal Justice System in Kenya and the operation of the court processes and the context on how the criminal justice system in Kenya, has prevented the realization of article 50 of the constitution through its contribution to the causes of wrongful convictions in Kenya.

Chapter 3: Chapter three addresses the adverse effects of wrongful convictions to the victims and their families.
Chapter 4: Chapter four proposes recommendations on how to reduce the cases of wrongful convictions in Kenya through various ways such as the incorporating of best practices from other jurisdictions.
Chapter 5: Chapter five concludes by giving a summary of the whole study.

CHAPTER TWO
HISTORICAL BACKGROUND OF THE CRIMINAL JUSTICE SYSTEM, WRONGFUL CONVICTIONS AND THE CAUSES OF WRONGFUL CONVICTIONS
2.1 INTRODUCTION
A fair and effective criminal justice system is instrumental in any democratic state. Its fairness and effectiveness, can be displayed, through its processes and accuracy in ensuring that, justice as the core of any court process is achieved in any criminal case. The criminal justice system in Kenya, has the power and mandate accorded to it by the constitution of Kenya to take those who are accused of a crime through a trial system. The appurtenance of the criminal justice system include the following; the enforcement of the law and statutes in place, prosecution, defence and correctional facilities.The main justification of the criminal justice system is to ensure that justice is served, that the wrong is punished, and the good is upheld and therefore creating a safe environment for the society to live in.The criminal justice system in Kenya has been faced with a number of challenges that have been seen to impede justice dating from the colonial period. One of the major challenges, is the failure to be accurate and adequate in the conviction of criminal cases. Therefore resulting to wrongful convictions. The issue of wrongful convictions is still a major challenge in Kenya with cases involving wrongful convictions during the 1970’s evolving now. Stories are told through our media and other avenues of persons who do not understand the reasons why they are facing the harsh hands of the law. Some are silent about it awaiting the completion of their sentences while others have completed their sentences.
This chapter will seek to explore the background of the history of wrongful convictions and the criminal justice system in Kenya dating from the precolonial period to date. It will also explore and focus on the causes of wrongful convictions caused by the criminal justice processes.

HISTORICAL BACKGROUND OF THE CRIMINAL JUSTICE SYSTEM AND CONTEXT OF WRONGFUL CONVICTIONS IN KENYA.2.2.1 The Pre-colonial Period
The systems of law and justice that exists today in Kenya did not exist in the pre-colonial era. The systems of justice before the British settled in Kenya, were informal and indigenous legal institutions that adhered to customary law. The laws were largely unwritten and differed from one ethnic community to the other and were dependent on each’s community cultural practice. Traditional African communities in Kenya embraced traditional dispute resolution mechanisms such as restorative justice values in punishing offenders and solving of various conflicts that arose. This customary practices were cultivated by their community council of elders and the local chiefs. The practice of restorative justice embroiled a process where the various parties involved such as the victim, the accused and their family members would assemble and try to resolve their issues through fines, compensation, banishment and reconciling the parties. For example in the Meru community a council of elders known as Njuri Ncheke adjudicated cases and disputes in the community where reconciliation was seen to have failed. Where an injustice was found to have been committed, the council of elders would order for compensation to the victim by the offender. Most importantly, they primarily focused on the preservation of the community norms and culture.

2.2.2The Colonial Period
The Kenyan legal system has borrowed heavily from the English legal system which was brought forth by the British’s colonization of Kenya and can be traced back to when Kenya became a British colony. Before 1895, Kenya was seen to lack a structured legal system and with the settlement of the British in Kenya as its protectorate there was need for a structured administrative system for effective governance of its inhabitants. In 1895, the British set up the East Africa Protectorate and as a result consular courts were established to serve the British and other foreign persons as there was need for formalized court systems that would seek to address the grievances of the British settlers .However African societies were still allowed to practice their indigenous justice systems in their various communities.
In the year 1896, British policing as a method of law enforcement was incorporated in East Africa Protectorate, Kenya, Mombasa to aid in administration and to ensure compliance of the British settler’s laws by the African communities. Thus the beginning of the roots of the police in Kenya as law enforcement agencies. On 12th August 1987, the East African Order of Council was enacted and as a result Kenya received English Common law. This led to establishment of various divisions of court systems led by magistrates and administrative officers. The Indian evidence act was also enacted on the same day and Kenya imported the Indian Evidence act which provided the rules that were to be used in the admissibility of evidence in criminal cases such as oral evidence, witness testimony and confessions. On the same date, a court with jurisdiction of all persons was established which was later renamed the High Court of East Africa. In 1906, the police ordinance act from India was enacted and a result, there was the creation of a new Kenyan police force that sought to control the native population. Their recruits primarily consisted of the British and Indians. They were extensively involved in various human rights violations in a bid to aid the British’s interests. The native court ordinance was promulgated in 1907. Its enactment led to the setting up of native tribunals administered by the Chief Native Commissioner that sought to serve various ethnic groups through each’s community, council of elders, headmen and chiefs.

The roots on the history of wrongful convictions through unlawful detentions traces back to the settlement of the white settlers and the colonialist in the Kenyan lands. In 1922, Africans sought to protest against land alienation, and the kipande system through the East African Association, a political organisation led by Harry Thuku, This led to the detention of their leader, Harry Thuku, without any trial by the colonial administrators. The year 1926, prompted the establishment of the Criminal Investigation Unit.It’s mandate through its police force was to investigate suspected criminals through interviewing of witnesses, obtaining evidence, recording and tabulating information on suspected individuals.

1st August 1930, marked the commencement of the penal code in Kenya, which established the code of criminal law and constituted of substantive law. On the same date the criminal procedure commenced which established the procedure to be followed in prosecution of criminal cases which is still used to date. It subsumed the commencement of a trial with the arrest of an accused person by a police officer with or without a warrant of arrest, in relevance to any offence committed that has been cited in the Penal code or any other laws in Kenya. It also included the bond or bail process which commenced with the CPC empowering any officer to admit bail to an accused person provided the offence did not involve murder, treason, robbery with violence or any other related offence. Thereafter, the accused was then to be arraigned in court and the charges are read to them in order for them to take a plea on whether they are guilty or not. The trial then proceeded with the application of laws of evidence through admissibility of evidence and summoning of witnesses. The prosecution had the burden of proof beyond reasonable doubt to determine that there is adequate evidence to convict the accused. If there is proof beyond reasonable doubt, a judgment would be drafted according to the procedures stipulated in the CPC and the accused is sentenced. The basis of the Criminal Procedure Code was the English laws that were imported from England. Despite the fact that the procedures in the CPC still apply to date, it has undergone a couple of amendments with a number of sections having been repealed.
In 1905, the African courts Ordinance abolished the native tribunal and replaced them with the African courts. On the 20th October, a state of emergency was declared, by the British Governor Evelyn Baring as a result of the Mau Mau rebellion, which led to the arresting and detaining of Kenyan leaders by the British officers without trial.A number of Africans were wrongfully convicted and imprisoned. In 1962, the African courts that were set up in 1950 where transferred from the provincial administration to the judiciary and therefore the emergence of a unified court system in Kenya.

2.2.3 The Post-Colonial Period
After Kenya gained its independence in 1963 a unified judicial system was established that incorporated both the African customary law and the British system unlike before where they operated separately. On 10th December 1963, Kenya enacted its own Evidence act similar to the Indian Evidence Act, that spelled out the rules for the admissibility of evidence in the court process. The independence constitution was promulgated in 12th December 1963, which established the supreme court.

The assent of Preservation of Public Security Act on 5th June 1966 by president Jomo Kenyatta had a negative impact in the criminal justice system as it provided the state with powers to detain individuals without trial. On 4th July 1967, the Judicature Act was enacted which spelled out the various procedures and rules to be used in the court for administration of justice.On the same year the magistrate court was enacted that spelled out various procedures for magistrate courts.

On 22nd August, 1978, Moi assumed presidency after the death of Jomo Kenyatta. The significance of this was that Kenya was marred with illegal convictions and unfair trials to suppress any opposition against the government. The court systems were manipulated to advance Moi’s political interest while the police were used to aid various trial injustices. The year 1982, on 27th May marked a crisis in unlawful detention and wrongful conviction in Kenya, with Stephen Mureiithi being the first individual to be detained without trial after challenging Moi in court. An attempted coup on 1st August 1982, led president Moi ordering for the unlawful arrest of ex-service officers of the Kenya Air Force and detention without fair trial. Among them being Willy Mutunga and Wamwere. In Murungu Mbogo v Chief of the Kenya Defence Forces and another2018 eKLR the petitioner John Muruge Mbogo, a member of the Kenya Armed Forces was arrested on 1st August 1982 tortured, and subjected inhuman treatment in a bid to extract a confession from him. He was not charged with any offence and he was detained without trial and his constitutional and fundamental rights infringed for four years. The court in its determination held that the petitioner’s rights had been violated during his unlawful arrest and detention on 1st August 1982.
In March 1986 at President Daniel Arap Moi illegally arrested at least 75 journalists and students for committing various crimes.Many were held illegally for weeks and months while others died under that unlawful detention.In Wachira Wehere v The Hon. Attorney General 2010 eKLR, the plaintiff was arrested and unlawfully detained in 1986 and then held in Nyayo House Torture Chambers where he was tortured before his trial. During his trial he was psychologically forced to plead guilty as the officers who had previously tortured him where present during his trial and therefore instigated fear in him. He was therefore wrongfully convicted as a result of his plea.

2.2.4 Pre 2010
The introduction of multipartism in the 1990’s marked a drastic increase in unlawful arrests as the judicial lost immense power due to manipulation by its leaders. Many people were arrested and jailed even though trials conducted on them failed to expose any crime. The police conducted themselves with lack of accountability and justice as they were violent and corrupt. On 4th July 1990, Kenneth Matiba and Charles Rubia were jailed without trial. In the same year on 7th July Saba Saba day, more than 1000 opposition leaders who were fighting for multipartism were arrested and detained. A constitutional amendment Act no 12 of 1991 repealing section 2A of the constitution which had converted Kenya to a one party state, witnessed the re-introduction of multipartism and a two five year term limit for presidency. Between 1994-1997, the Kenyan legal and penal system in Kenya, was engrossed with a number of difficulties. There was lack of fairness in hearing court cases as politicians corrupted the outcome of cases they were interested in. The judiciary was used as an accomplice in the perpetuation of unfair trials and wrongful convictions. Those arrested in court by the orders of president Moi were also unrepresented. The constitutional amendment on the 8th November 1997, led to the abolition of the Preservation of Security act marking the end of preventive detention.

The cleaning of the judiciary, commenced between the year in the year 2003 where a number of judges and magistrates were investigated and suspended as a result of corruption and giving of unfair and favourable judgment in previous cases during Moi’s presidency. The Truth and Justice committee was set up on 28th December 2008 to address the injustices and violation of human rights caused since December 1963 as a result of unfair trials and wrongful detentions. One of the predominant aim of the TJRC was to identify the victims of wrongful imprisonment among recommending reparation and compensation. A report done by the TJRC on unlawful detention ascertained that about 320,000 Africans were unlawfully detained for various reasons during the colonial period.

2.2.5 Post 2010
The courts have undergone a number of reforms over the past years. A new constitution was enacted on August 27th 2010 to repeal the independence constitution, whose provisions such as giving the president immense control and power contributed to wrongful conviction. Currently through the enactment of the constitution of Kenya 2010, the courts that operate and preside over matters include; the Supreme Court, which is the highest court, The Court of Appeal, The High court, Khadis courts and Magistrate courts. The head of the judiciary is the chief justice who is currently David Kenani Maraga. Criminal cases are heard in the High court and the Magistrate courts.

The National Police Service Act was enacted on 30th August 2011, which extensively elaborates on the functions of the police in relevance to various crimes. On 11th November the IPOA act was enacted to provide for civilian oversight over the police to prevent impunities such as unfair trial.

Kenya indeed has a criminal justice system that is well established through various amendments in its legislations and laws and its courts systems that seek to attain justice in criminal trials. However, it has not proved adequate in the realization of criminal justice as it has not achieved its sole purpose of ensuring fairness and justice especially in the prevention of wrongful convictions. Cases of wrongful imprisonment have still emerged despite the amendments put in place.

The causes of wrongful convictions caused by the components of the criminal justice systems in Kenya will be outlined below.

2.3 Causes of wrongful convictions caused by the Criminal Justice System in Kenya
Wrongful convictions are said to be caused by the errors of the criminal justice system and court processes that lead to the punishment and sentencing of the innocent. Many causes have played a role in the conviction of innocent people. The main causes that accrue to Kenya will be discussed below.

Eye witness misidentification
Section 125(1) of the Evidence Act states that a person shall be competent to testify unless the court considers that they are prevented from understanding the questions put before them or giving rationale answers.

Eye witness misidentification refers to a situation where during the trial court process, a person called forth to adduce evidence identifies a certain person as the perpetrator of a crime where they are not. Eye witness misidentification is one of the most common causes of wrongful convictions. Eye witness evidence may seem or look persuasive before a judge or magistrate. Eye witness, misidentification is usually unintentional. This is because the human mind, is prone to errors and inaccuracy. A research conducted revealed that in as much as the human mind can remember certain things, it is not like a tape recorder, as it cannot recall events exactly the way they are. Therefore an eyewitness can be sure that the accused is the perpetrator of the crime they saw whereas they may not be. In relevance to the human memory, it is malleable and its inaccuracy can be contributed to the fact that even suggestions could influence it and easily alter it.Therefore the evidence of eyewitness should not be relied on exclusively due to its inaccuracy, and should be taken with caution. However rarely do police, prosecutors and jurors disbelief eyewitness evidence despite its errors, in most jurisdictions and precisely in Kenya.Furthermore in certain traumatic events, such as rape, the event may not be forgotten but stress, fear and trauma may cause confusion and prevent the person from being able to remember detailed information of the events.

In Abdi Ali Bare Vs Republic
Abdi was charged with the offence of an attempted murder contrary to section 220(a) of the penal code. He was found guilty after seven witnesses testified for the prosecution. The appellant during the trial gave sworn evidence as he tried to proof that he did not commit the offence. However, the end results was his conviction, of attempted murder and a sentence of life imprisonment. The appellant being dissatisfied, appealed and upon the examination of the grounds raised there was lack of proof beyond reasonable doubt that he committed the offence. He was therefore set free although he was in the progress of serving his sentence. A wrongful conviction had been made.

False confessions
Article 49 of the constitution of Kenya 2010 states that a person should not be compelled to make any confessions or admissions that could be used as evidence against them.

Furthermore section 26 of the evidence act, states that confessions to proof guilt, made by an accused person shall not be admissible in court if it appears to have been made by use of threat or inducement.

In Kenya, the police department has been marred with allegations of gross misconduct and failure to properly execute their duties when conducting investigations since the colonial period.
Innocent accused persons may make incriminating statements, confess and plead guilty to crimes that they did not commit. Hardly is their confession rendered inadmissible. There are many factors that contribute to innocent persons pleading to be guilty. Sometimes false confessions by the innocent maybe influenced by external forces. Often the police interrogation process may influence an innocent person to plead guilty as it uses psychological techniques, trickery and deception on the accused.
In Wachira Wehere v The Hon. Attorney General 2010 eKLR
The plaintiff confirmed to have pleaded guilty to the crime, as a result of the presence of the police who had tortured and the torture he had experienced while being held by the police. He was therefore convicted as a result of his plea.

The main cause of the police interrogation may sometimes not be for the sole purpose of ‘interrogation’ but may be to make the person called in for questioning to confess. Furthermore the police may even lie to the suspect that they have evidence and information that they indeed committed the crime. Also when the process reaches interrogation the police are somehow convinced that the person arrested is the perpetrator of the crime, and they will therefore try to force information out of the person through the pressure they apply on the person. Also poor mental health may be a factor in the making of false confessions. Furthermore, an accused person may be threatened and forced to plead guilty to an offence they did not commit. They may accept the coercion due to fear and discomfort of the unknown thus causing them to be wrongfully convicted.
Inadequate representation by the advocates
According to the constitution of Kenya article 50, in relevance to fair hearing, the accused has a right to be accorded with an advocate at the states expenses where substantial injustice would otherwise result from lack of representation.

Also according to the Legal Aid Act of Kenya 2016 section 35, the state is required to provide legal aid services at the expense of the state for persons who are legible for the service. In most cases the possibility of success of a case without a good, hardworking or diligent advocate is almost nil. Often, the advocate accorded to a case may be inadequate and unreliable.Substandard lawyering or advocacy may cause an innocent individual to be sentenced.
In Kenya, poor legal representation, is a major issue and thus the setting up of the Advocate Complaints Commission under the Advocates Act (Cap 16) that deals with complaints against any advocate under sextion53(1).
Furthermore, lack of vigilance of the advocate in the gathering of evidence and calling of witnesses in the case may adversely affect the outcome of a case. The above problem is manifested in Kenya where, even during regular court proceedings the advocates portray mediocrity and lack of vigilance through inability to comply with court orders and late submission of documents among others. Even though a person may be innocent the effect of poor representation may cause them to be convicted. This is more common with those that have financial constraints and therefore cannot afford good advocates. The competence of an advocate in any trial in our jurisdiction, is therefore a vital factor in the resulting outcome of a case.
Insufficiency and inaccuracy of evidence adduced in court
Section 48 of the Evidence Act Cap 80 states that where a court has to form an opinion of foreign law, science or art, finger or other impressions, the type of evidence will be deemed to be admissible if made by specially skilled persons known as experts.

Evidence such as forensic and science may be challenged in the court room, due to the errors associated with it.

Even methods used in analysis of forensic evidence that seem to be the most accurate are prone to errors in the laboratories due to contamination and therefore they may produce inaccurate and incorrect results. Forensic science methods include the examination of bite marks, comparison of hair, expert witness and tool mark and impression evidence. Some of the expert evidence is based on scientific testing in the laboratories. In as much as some of these methods, such as fingerprints, comparison of hair, tool mark examinations, and footprint and tire impressions, are relatively accurate, they are prone to errors. Where an expert gives evidence relying on their findings and it goes unchallenged, there may be a possibility, that it may be inaccurate which may lead to false convictions. Furthermore there may be misconduct and dishonesty by the expert witness who may even alter the evidence. Other types of expert comparisons, such as handwriting are seen to need more attentiveness in analyzing to avoid errors. During trial, the evidence from expert witness is rarely disregarded to be untrue. The thought that the expert may have been dishonest in their findings is also rarely in the minds of the magistrates and the judges. Due to the errors of forensic science, wrongful convictions occur. There have been a number of criticism of the admissibility of forensic evidence in court. However, the above methods are still being used despite its shortcoming therefore proving a major cause in cases of wrongful convictions.

In Teresia Wanjiku Njoroge v Standard Chartered BankThe appellant was convicted for the offence of the conspiracy to defraud contrary to section 317 of the penal code. She was charged with three accounts of stealing millions of money from the Standard Chartered Bank. In her defence, she argued that the accusations were based on presumptions and were not true. She claimed that in the transactions she carried out she used the required stipulated procedure. However, the court found her guilty and she was sentenced to a fine of two million or alternatively a one year’s imprisonment. However, in her appeal, the case was overturned, and it was found that she was not guilty of the crime of conspiracy. This was due to lack of sufficient evidence. Her conviction was therefore quashed and the sentencing put aside.

In the above case despite the fact that she was later set free, she had been wrongfully convicted and had served one year in prison, which was her full sentence. Furthermore, she had to raise her daughter in prison, and she endured psychological trauma due to the wrongful conviction. The ineffectivness of the criminal justice system in Kenya is the cause of such cases were the innocent are convicted whereas they evidence is insufficient or inaccurate.

2.3.5 Police and prosecutorial misconduct
Prosecutorial misconduct refers to a situation where the prosecutor acts in an illegal manner or either through an act of omission or the abuse of power thus causing a wrongful conviction.

Valentine Ondieki and 2 others v Republic
The accused had been charged in Narok court for the offence of trafficking 753 kilograms of marijuana, which earned them a life sentence. On appeal the jail term was dismissed due to the fact that, actual drugs were not even produced as evidence in court as they were not available. Judge Kimaru affirmed that in such cases the exhibits should not be destructed before the case is closed.

Prosecutorial misconduct may occur through; the failure to turn the relevant evidence so that it may be used in the trial, the introduction of evidence that is untrue or false, failure to disclose evidence that may exonerate the suspect or prove their innocence, the use of witnesses who are unreliable or dishonest, violating the rules in the admission of evidence in a trial and even the tampering of evidence.

Generally, the work of the police in relevance to a crime is to properly investigate and find the relevant facts in connection to the crime so as to find the offenders of the crime. The skill of investigation by the police in a crime requires the knowledge of the law, in relevance to collection of evidence, interrogation of witnesses and the analysis of evidence. Where the relevant law is not well followed, the outcome of the case may not be fair and just. In the part of the prosecution, pressure to convict the criminal especially were the crimes committed are high end may make them focus on the wrong suspect therefore wrongfully convicting them. Misconduct by the prosecution may be unintentional, however they may also commit certain errors intentionally. Police and prosecution misconduct has been a major cause of wrongful convictions especially in our country Kenya where the confidence in the police and the prosecution by the public is very low due to their tendencies of being dishonest.

2.3.6 Bribery and corruption
Socio economic status has a big impact in many factors that are involved in the society. Those of high status can almost get away with anything. In relevance to the criminal justice system bribery and corruption has found its way in our judiciary. Furthermore Kenya is known to be one of the countries with the highest leading cases of corruption. People with a high social status have been known to buy the influence of magistrates and judges in an attempt to achieve their personal interest. An innocent person may therefore end up being disadvantaged where a crime has been committed by an individual who has the means of influencing the court processes so that they may be free through corruption. In as much as bribery and corruption is prohibited by the law, it has still found its way in our criminal justice system therefore causing wrongful convictions. 2.4 CONCLUSIONIt is important that ‘criminal justice’ includes the word ‘justice’, since laws and processes used in the trial of a crime should be fair. Justice should be the sole aim of any criminal justice system. This chapter demonstrates the history of wrongful convictions and the flaws in the criminal justice system processes. The findings of the study assert that due process of law which is a fundamental constitutional principle that guarantees legal proceeding to be just and fair, if not followed result to the miscarriage of justice of a wrongful conviction.

CHAPTER THREE
EFFECTS OF WRONGFUL CONVICTIONS ON THE CRIME VICTIMS
3.1 INTRODUCTION
Chapter three will seek to proffer an analysis of the effects of wrongful convictions to crime victims caused by the flaws of the criminal justice system in Kenya.

Unlawful imprisonment destroyed Kenneth Matiba’s health! Kenneth Matiba had been brought in with a fake name, Mr Muchiri, from prison after realizing that his health was deteriorating. It was the state’s intention to keep Matiba’s health a secret from his family members but after they realised that his family had been informed about his ill health they resolved to seek action. On Sunday May 26, 1991, Kenneth Matiba was released from detention, with poor health and having suffered a stroke due to the extreme conditions he experienced in the prison cells.This is an account by Dr. Gikonyo, Matiba’s family doctor.

The constitution of Kenya 2010 article 48 states that the state shall ensure the access of justice for all person. A person who has been detained, held in custody or imprisoned retains all the rights and fundamental freedoms except to the extent to which the right is incompatible with the fact that the person is detained or imprisoned. This is according to article 51 of the constitution of Kenya. However, this is scarcely the case in Kenya as those detained and imprisoned experience inhumane treatment. Their rights and freedoms are disregarded. Apart from their denial of the right to freedom and not be denied without unjust cause, victims of wrongful convictions endure a number of hardships, gross violation of human rights and challenges as a result of this miscarriage of justice.

3.2 EFFECTS OF WRONGFUL CONVICTIONS ON THE VICTIMS AND THEIR FAMILIES
3.2.1 Denial of Justice
A fair trial in any justice system which is a norm of international human rights and a right enshrined in article 50(2) of the Constitution of Kenya is an instrumental aspect in the criminal justice system and its processes. In Kenya, the access and denial of justice is acknowledged to be caused by high costs of legal assistance and the ineffectiveness of the criminal justice systems. Victims of wrongful convictions suffer as a result of unfair trials and therefore the denial of true justice. Even worse where the victims are not exonerated and therefore, have to complete their sentences whereas they are innocent. Furthermore, the denial of justice by sentencing an innocent person does not necessarily affect the victim of the wrongful conviction but also where the original perpetrators of the crime are free the society is at a substantial risk of the perpetrator committing a similar crime to another person.

3.2.2 Unjust denial of the Right to Liberty and the Freedom of Movement
The right to Liberty and the freedom of movement of all persons is a fundamental human right that has been enshrined in a number of international laws and conventions including the Universal Declaration of Human Rights. Article 39(1) of the constitution of Kenya outlines the right of every person’s freedom of movement. An individual who has been detained is entitled to have all his constitution rights and freedoms respected to an exception of the freedom of movement. Victims of wrongful convictions are denied the right to freedom of movement and liberty as they are detained in prison and correctional institutions as a form of reforming them. Far worse, is that the denial of this freedom of movement as a result of being confined in prison, is the fact that it is unjust and unfair for those that have been wrongfully convicted. In Mwandawiro Mghanga v Attorney General 2017 eKLRr the Petitioner, Mwandawiro Mghanga claimed that he was detained without trial by State agents on many occasions without trial. He claimed that he was detained at Buru Buru Police Station for two days, in Mariakani Police Station, Kileleshwa Police Station and also imprisoned at Kamiti Maximum prison. He was also unlawfully held at Nyayo House for a period of time. The allegations by the petitioner were not denied by the Respondent. It was held that his right to liberty was violated under section 72 of the repealed constitution as he was arrested and detained unlawfully without trial thus infringing his right to liberty.

3.2.3 Economic Loss
The ability of any individual to have a sustainable means of income and to move up the economic ladder, is vital in a person’s life. Wrongful convictions are likely to lead to the loss of employment and as a result the loss of a means of income with its effects lasting a lifetime. The adverse impact of the loss of income due to the inability of be productive while being imprisoned does not only affect the victims wellbeing and dignity but additionally the secondary victims of the wrongful conviction which is the immediate family of the wrongful convicted person. The victim’s family is likely to be subtle to vulnerability, due to financial loss and they may also lack the basic needs therefore imposing suffering on them. Whereas the victim of a conviction was self-employed, the effects will result to drastic poor performance or even closing down of their businesses. All this being an outcome of the miscarriage of justice of wrongful conviction brought by the impaired trial process. In the case of Ali Cheptengei Saikwa v Attorney General (Case No.35 of 2005), Ali was arrested in September 1987 and sentenced to three years’ imprisonment. As a result of the unjust imprisonment he lost his employment together with all terminal benefits. It was held that he was to be compensated and awarded damages for the violation of the right to liberty and torture. Ali Cheptengai’s conviction was seen to led to economic loss as he had been confined in prison and therefore the reason he had lost his employment.
3.2.4 Susceptible to Torture, Degrading and Inhuman Treatment
Despite the fact that torture and inhuman treatment has been widely sensitized globally and prohibited under international and our Kenyan national laws, it still occurs in our country especially to those that have been detained or imprisoned. Under article 7 of The International Covenant on Civil and Political Rights no one shall be subjected to torture or to cruel, inhuman or degrading treatment. The Constitution of Kenya, article 29(d) also prohibits the subjection of any person to torture, cruel, inhuman or degrading treatment. However it does not describe what amounts to torture, cruel or degrading treatment. The Moi regime was engrossed with a number of wrongful convicted persons who experienced torture, and degrading treatment in prison cells despite their innocence. In the early 1980’s torture chambers where constructed where suspects were interrogated under strenuous conditions in bid to extract confessions from them. Furthermore a research conducted revealed that torture in Kenya still takes place in secrecy through police misconduct where there are arbitrary arrests grounded on false charges. In Kenneth Stanley Njindo Matiba v Attorney General 2017 eKLR the petitioner Kenneth Matiba filed a petition alleging the violation of his fundamental rights, under the repealed constitution of Kenya. He further asserted that he had been subjected to degrading and inhuman treatment under his unlawful arrest and imprisonment contrary to section 74 of the repealed constitution such as the exposure to severe cold weather among poor diet which was unsuitable for his health. It was held that Kenneth Matiba’s right to be free from torture, cruel and inhuman treatment under Section 74(1) of the repealed Constitution that outlined that no person shall be subjected to torture or inhuman punishment or any other treatment was violated by agents of the State during his unlawful imprisonment.

The effects of torture, and inhuman treatment especially to victims of wrongful convictions is not only a gross violation and abuse of their human rights but its effects, may immensely impact those that are subjected to it whereas they are innocent compared to those that are guilty of a crime.
On 13th April 2017, president Uhuru Kenyatta assented the Prevention of Torture Act 2017 that prohibits torture and degrading treatment and provides penalties and redress for any person that endured torture. However, the success of the implication of this law is not assured especially where the violation of this right is perpetuated in enclosed areas such as prison cells as torture is likely to psychologically affects the victims therefore preventing them from seeking redress where this right has been violated.

3.2.5 Psychological Trauma
The psychological trauma of being wrongful convicted, on the innocent individuals, is devastating and may bring forth life-long negative psychological impact on the victims. Furthermore, those who have been wrongful convicted have no alternative but to adjust to the conditions and lifestyle of the prison institutions through the acceptance of the unjust outcome of their trial. The effects of this being various conditions such as post-traumatic stress. Furthermore, the fear of not being accepted by their families and the society despite their innocence may also affect them psychologically. In the case of Teresia Wanjiku Njoroge v Standard Chartered Bank the accused Teresia Wanjiku was wrongfully convicted after the judge found her guilty of the offence of a conspiracy to defraud. She was therefore sentenced. She was later set free. However, she claimed that due to the wrongful conviction she had to raise her daughter in prison as she was pregnant during the conviction. She also ascertained that she suffered mental anguish, trouble and anxiety. All this was as a result of the wrongful conviction.

Families of wrongful convicted persons may also experience emotional distress as a result of the loss of their family member through their imprisonment.

Whether a wrongful convicted person’s conviction is quashed or they complete their sentence, the psychological trauma experienced as a result of the injustice may last for a lifetime. Moreover, they are likely to suffer stigma as ex-convicts.
3.2.6 Lack of Proper Medical Care
The right to the highest attainable standard of health by every person and the right to health care services has been encompassed in the constitution of Kenya 2010 article 43(a).

Proper medical conditions at prisons and the access to quality medical care by any convicted person are a rare course in Kenya. The conditions are extremely dehumanizing with overcrowded and congested confinement areas, lack of basic drugs and also equipments. Due to this poor conditions convicts are likely to suffer from various health conditions and sicknesses. Where a wrongful convicted person has an existing medical condition, the condition may worsen. In Kenneth Matiba case, he was wrongfully convicted without any trial and experienced deterioration of his health while at Kamiti Maximum Prison. Despite his efforts in informing the prison officers that he was unwell, nothing was done till they realised that he’s life was on danger. No convicted person should be denied proper medical care. However, having to endure the miscarriage of justice through a wrongful conviction and furthermore lack of proper medical care is far worse felt by wrongfully convicted person.

3.2.7 Lack of Proper Diet
Despite the constitution of Kenya affirming the right to be free from hunger and to adequate food of acceptable quality, the nature of food served in Kenyan prisons are of poor quality and nutritional value. Furthermore, the quality of the food may be a cause of ill health to the convicts. Whereas a convicted person suffers from a certain health condition that requires a diet with high nutritional value the convict may be at a disadvantage. Moreover, at times they may be denied food for a couple of days or given very little food. Wrongful convicted person have no alternative but to endure these challenges while being confined in prisons. An infringement of their right under article 43(c) of the constitution of Kenya
3.2.8 Loss of Life
In Kenya, a large number of successful appeals against the death sentence affirms that a number of people may have been wrongly convicted and even possibly executed due to the errors in criminal justice system and the lack of a fair trial. During the Moi’s regime, a number of convicts were reported to enigmatically die while being confined while others endured the death penalty during Jomo Kenyatta’s presidency till 1978 as a result of committing various capital offences.

Unexplained death in prison is not a rare course in Kenya. Families of convicts may be contacted to be informed about the death of their family member. Often, the cause of their death is not revealed to their families, as material facts of the causes of their death may be concealed, where it appears that the circumstances of the death are due to a wrongful act or negligence. The loss of life of a victims of wrongful conviction to the secondary victims of the conviction is that they are subjected to pain, suffering and grief. Attributed to a wrongful conviction.
3.2.9 Lack of Acceptance by the society
Any previously convicted person is likely to experience stigmatization from the society and even their families after their release or after completion of their sentences. The secondary victims of the wrongful conviction such as the children of the wrongfully convicted person may also experience stigma for the offence of their convicted family member from the society. The term guilty by association is likely to be the cause of their stigma despite the wrongful conviction. Wrongfully convicted persons are likely to suffer stigmatization and denial by the society especially where they were convicted of certain offences such as rape. The effects of the stigmatization may even be worse after their release, than during their trial. Moreover, the society is still likely to refer to them as convicted persons. As a result of a wrongful conviction.

3.3 CONCLUSION
In the light of the above effects, the adverse consequences of wrongful convictions will still continue to affect the victims and their families even after incarceration. A wrongful accusation should not necessarily lead to a wrongful conviction. However, where the criminal justice system is flawed, the wrongful accusation is likely to be fueled and as a result causing a wrongful conviction. Attributed to the flawed criminal justice. The findings of this chapter asserted that, a wrongful conviction is not only the denial of justice but rather the infringement and violation of a number of human rights that are intertwined and are expected to arise as a result of the wrongful conviction.

CHAPTER FOUR
RECOMMENDATIONS ON HOW TO REDRESS THE CRIMINAL JUSTICE SYSTEM SO AS TO REDUCE THE CASES OF WRONGFUL CONVICTIONS4.1 INTRODUCTION
The criminal justice system in Kenya is in need of reforms so as to improve its reliability, accuracy and efficiency in realization of fairness and justice according to article 50 of the constitution. The suffering experienced by the innocent whereas the guilty walk free is unfair as it undermines the principle of fairness and justice. Chapter four will seek to draw out the recommendations on how to redress the criminal justice system so as to reduce the incidence of wrongful convictions in Kenya.
4.2 RECOMMENDATIONS ON HOW TO REDRESS THE CRIMINAL JUSTICE SYSTEM SO AS TO REDUCE THE CASES OF WRONGFUL CONVICTIONS
4.2.1 Adoption of best practice from other jurisdiction
Canada has a well- developed framework to deal with the incidence of wrongful conviction. For example, Innocence Canada was set up to address the exoneration of individuals convicted of crimes that they did not commit among recommending of various legal reforms.The United States of America has also established a number of Innocence Projects and justice Commissions that suggest reforms and also seek to assist any convicted persons through representation and investigating convicted persons who claim to be innocent and have been wrongfully convicted for crimes for which did not commit. Through their investigations, a number of wrongfully convicted persons have been exonerated and set free. Similarly, in Kenya, there should be a National Criminal Justice Commission Act whose mandate is to set up various innocence commissions to examine all the components of the criminal justice system and review the legal framework of the entire justice system in Kenya.

Currently in Kenya the only avenue available for exoneration is appealing of the case and the power of mercy advisory committee that was set up in 2011. The power of mercy advisory committee is chaired by the attorney general. Its mandate is to advices the president on matters pertaining injustices. However still, there is no proper avenue that a convict can turn to, where they wish to be released on the grounds of their innocence.

4.2.2 Increase in the oversight of the police by the Independent Policing Oversight Authority
There should be an establishment of several bodies that reviews and re-investigates cases that have been marred with injustices caused by wrongful convictions. In Kenya, the International Justice Mission was established to assist in aiding justice through offering help to the innocent. The Independent Policing Oversight Authority was also established in 2011 so as to provide civilian oversight over the police. This is through ensuring, that the police adhere to the laws and regulations required in criminal justice processes and that they effect the protection of human rights. Through their oversight police misconduct will be prevented and therefore reducing the incidence of wrongful conviction. The impact of the IPOA has not been clearly grounded and therefore the need to actively increase its activities to reduce wrongful convictions.
4.2.3 Reforming of the law of evidence
Reforms should be made in the law of evidence in relevance to admissibility of forensic evidence and eyewitness identification. Not all forensic evidence should be considered admissible, unless the findings from the expert witnesses are compared with the findings from other experts. This will prevent overreliance on information from a single expert witness. Furthermore, comparison with other expert witnesses may eliminate doubt and enhance accuracy. Also only specific laboratories should be accredited with the mandate of establishment of findings in relevance to scientific evidence used in criminal justice processes.
4.2.4 Reforming the police force
In actualizing the constituents of the Constitution of Kenya 2010, a Police Reform Implementation Committee (PRIC) was established. This was in order to transform the police force to be professional and accountable in offering its services to the public. There is need for the police to be thoroughly and intensively trained and properly educated on the methods of interrogating their suspects. This is so as to prevent intimidating the suspects thus forcing them to self-incriminate themselves through their statements. With the above, the problem of wrongful convicted persons due to police misconduct during investigation will subside.

4.2.5 Enforcement of compensation to wrongful convicted persons
The criminal justice system should enforce statutes on the compensation of wrongful convicted person. A payment plan to ensure that those that are wrongfully convicted are compensated should be well established and adhered to. In as much as no amount of money can amount to the emotional and psychological distress that those who are convicted endure, a certain amount of money should be paid to them to compensate for their loss of freedom and deprivation of time from their loved ones especially their families and friends. This is because when most individuals are convicted and later exonerated, they may have to start over, as the society may not accept them Currently, Kenya does not have any compensation statute to aid those who are wrongly convicted. There is therefore need for a compensation plan targeting wrongfully convicted persons to be enacted.
4.2.6 Total implementation of Article 50 of the Constitution of Kenya
In as much as the constitution of Kenya provides for the provision of an advocate in certain cases where lack of an advocate may disadvantage the accused, it is not yet as effective as it should. Also where the state provides for advocates they should ensure that the advocates are diligent to ensure they put their best foot forward in the arguing of their case. The best solution is that the criminal justice system should set up a well founded and funded public defender system. The state is known for poor pay of public defenders. Therefore, the state should pay a reasonable amount to the advocates to motivate them so as to prevent them from offering poor services. Also they should ensure that, that the advocates in the defender system are well equipped and have access to the necessary experts. This will therefore motivate them and enable them to work hard in the cases presented before them thus avoiding wrongful convictions due to inadequate representation or poor representation.

4.2.7 Absolute enforcement of rights and freedoms
The Constitution of Kenya, contains various provisions which seek to ensure that the fundamental rights and freedoms of convicted persons are maintained and upheld. The right to a fair trial should be thoroughly observed, among ensuring that convicted person’s fundamental rights are not compromised.

4.3 CONCLUSION
All the players of the criminal Justice system should seek to undergo reforms as they all uniformly contribute to unjust outcomes. Through the recommendations suggested above, a noticeable change will be observed in the pursuant of Justice and in the reduction of the incidence of wrongful convictions in Kenya. Furthermore, where a wrongful conviction occurs well founded avenues will come in hand, in the taking up of such cases in an attempt to address the miscarriage of justice of a wrongful conviction.

CHAPTER FIVE
CONCLUSION OF THE STUDY
This dissertation was triggered by the inability of the criminal justice system to fulfill its sole purpose in ensuring that true justice in the outcome of criminal cases is attained. It ascertained the ineffectiveness of the criminal justice system as it elaborated how its errors immensely contributed to the denial of justice through wrongful convictions.
It is vital for all the key players in a criminal justice system to work together with utmost accountability to effectively minimize the incidence of wrongful convictions. The right to a fair trial as engrossed in the constitution of Kenya, is a key pillar in enhancing the rule of law and in aiding justice. Indeed, Kenya has experienced progressive reforms in its criminal justice system which have been seen to positively impact the criminal justice system. Through the promulgation of the 2010 Constitution and the implementation of various statutes, the criminal justice system has attempted to correct it flaws in a bid to ensure the principle of justice and fairness is enhanced. This concept of justice according to article 50 of the constitution must be actively realised in Kenya’s criminal justice system. Chapter one of this dissertation identified that the criminal justice system in a Kenya, is flawed and the need of redress as it has proven ineffective through its consistent negative outcomes. It also set out a comprehensive background for the subsequent chapters in the dissertation.

Chapter two critically analysed the historical background of wrongful convictions and the criminal justice system in Kenya. It furthermore, elaborated on the causes of wrongful conviction in Kenya by displaying how, various key players in the criminal justice system have a hand in causing of wrongful convictions. It analysed the causes of wrongful convictions and further illustrated how certain persons were convicted whereas they were innocent through various case studies.

Chapter three entailed a depth analysis of the implications of a wrongful conviction caused by the ineffectiveness of the criminal justice system to the victims and to their families.

Finally, chapter four concludes the study through suggesting recommendations to address the problem of wrongful conviction in Kenya
In conclusion the study affirms that although wrongful convictions cannot be completely eliminated, the criminal justice system can be reformed so as to drastically minimize wrongful convictions. The sole purpose of justice in criminal justice process should be upheld. The injustices of wrongful convictions need to be actively confronted. The suggested reforms will go a long way in ensuring that a wrongful conviction happens only where no course of action would have prevented the error from occuring.

BIBLIOGRAPHY
BOOKS
Naughton M, The Innocent And The Criminal Justice System (Palgrave Macmillan 2013)
Mwalili J, The Role And Function Of Prosecution Criminal Justice System ·
Novak A, ‘Capital Punishment In The Pre-Colonial African Society’
Hornsby C, KENYA A History Since Independence (IB Tauris 2012)
The Criminal Justice System In Kenya: An Audit (1st edn, 2015)
Malombe D, W WaheireJ Mawira, Surviving After Torture (Kenya Human Rights Commission 2009)
JOURNAL ARTICLES
Omondi D, ‘Survey: Kenya Ranked Third Most Corrupt Country In The World’
Lubale G, ‘Courts System In Kenya’ (Gabriellubale.com, 2012)
Ngige A,’Stolen Years: The Injustice of Wrongful Convictions – The Lex Jotter ‘Wrongful Convictions – Criminal Justice – Iresearchnet’ (Criminal Justice)
‘Wrongful Convictions In The Criminal Justice System (BP-285E)’ (Publications.gc.ca)
‘Corruption Scandal In Kenyan Judiciary | DW | 24.02.2016’ (DW.COM, 2016)
Ojiende TL Oloo, ‘Researching Kenyan Law – Globalex’ (Nyulawglobal.org) <http://www.nyulawglobal.org/Globalex/Kenya.html> accessed 15 July 2018
Kinyanjui S, ‘RESTORATIVE JUSTICE IN TRADITIONAL PRE – COLONIAL “CRIMINAL JUSTICE SYSTEMS” IN KENYA’ (Lawschool.unm.edu)
‘HARRY THUKU: FATHER OF KENYAN NATIONALISM FEMINIST ADVOCATE AND THE FIRST MAN IN KENYA TO LED PROTEST AGAINST WHITE-SETTLER DOMINANCE’ (Kwekudee-tripdownmemorylane.blogspot.com, 2013) <https://kwekudee-tripdownmemorylane.blogspot.com/2013/12/harry-thuku-father-of-kenyan.html> accessed 14 July 2018
‘Kenya History Timeline – Historic Overview Of Kenya, Africa’ (Crawfurd Homepage) <http://crawfurd.dk/africa/kenya_timeline.htm> accessed 12 July 2018
Kibwana,K(Kituochakatiba.org,2018) <http://www.kituochakatiba.org/sites/default/files/publications/Constitutionalism%20in%20East%20Africa%201999.pdf> accessed 18 July 2018
‘Summary Of The TJRC Report 2013 1 SUMMARY OF THE TRUTH, JUSTICE, AND RECONCILIATION COMMISSION (TJRC) REPORT’ (Kituochasheria.or.ke, 2013) <http://www.kituochasheria.or.ke/wp-content/uploads/2016/04/TJRC-Report-2013-GS-with-isbn1.pdf> accessed 20 July 2018
Abadi M, ‘The Number Of Wrongfully Convicted Prisoners Being Exonerated Is Skyrocketing’ (Business Insider, 2016) <http://www.businessinsider.com/number-of-wrongful-convictions-graphic-2016-5> accessed 17 September 2017
Barone E, ‘The Wrongfuly Convicted’ <http://time.com>wrongly-convicted> accessed 17 September 2017
Bowry P, ‘Criminal Justice System Breaking Down’ (The Standard, 2015)<https://www.standardmedia.co.ke/article/2000170007/criminal-justice-system-breaking-down> accessed 17 September 2017
Ngige A, ‘Stolen Years: The Injustice Of Wrongful Convictions’ <http://mulenwa.wordpress.com> accessed 17 September 2017
‘Wrongful Convictions – Criminal Justice – Iresearchnet’ (Criminal Justice) <http://criminal-justice.iresearchnet.com/system/wrongful-convictions/> accessed 20 September 2017
’10 Of The Worst Wrongful Imprisonment Cases – Justice, Wrongful Imprisonment, Wrongful Conviction, Injustice, Prison, Jail, Innocent, – Oddee’ (Oddee) <http://www.oddee.com/item_98768.aspx> accessed 17 September 2017
Zimmermann A, ‘Marxism Law And Evolution – Creation.Com’ (Creation.com) <https://creation.com/marxism-law-and-evolution> accessed 20 June 2018
Khaemba D, ‘How Matiba Almost Died In Detention: His Physician Dr Dan Gikonyo Recalls The Suffering’ (The Standard, 2018) <https://www.standardmedia.co.ke/article/2001277112/how-matiba-almost-died-in-detention-his-physician-dr-dan-gikonyo-recalls-the-suffering> accessed 30 July 2018
‘Addressing The Economic, Social And Cultural Roots Of Torture In Kenya’ <https://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/KEN/INT_CAT_NGO_KEN_41_9385_E.pdf> accessed 31 July 2018
WEBSITES
‘Critical Legal Theory’ (LII / Legal Information Institute, 2013) <https://www.law.cornell.edu/wex/critical_legal_theory> accessed 21 September 2017
‘Innocence Project – Help Us Put An End To Wrongful Convictions!’ (Innocence Project) <https://www.innocenceproject.org/> accessed 17 September 2017
(2017) <http://www.telegraph.co.uk/news/uknews/law-and-order/11075284/When-innocent-men-go-to-jail-misc> accessed 21 September 2017
‘Justice In Kenya’ (International Justice Mission) <https://www.ijm.org/justice-in-kenya> accessed 17 September 2017
‘The Lex Jotter In Law’ (2017) <http://mulenwa.wordpress.com>Stolen Years: The injustice- of- wrongful- conviction/> accessed 17 September 2017
‘The Purpose Of The Criminal Justice System | Centre For Crime And Justice Studies’ (Crimeandjustice.org.uk) <https://www.crimeandjustice.org.uk/resources/purpose-criminal-justice-system> accessed 17 September 2017
‘Why Is Justice Important?’ (Reference) <https://www.reference.com/government-politics/justice-important-b7a60c04434c1e01> accessed 17 September 2017
‘Wrongful Convictions – Criminal Justice – Iresearchnet’ (Criminal Justice) <http://criminal-justice.iresearchnet.com/system/wrongful-convictions/> accessed 20 September 2017
‘Theory’ (Proceduralfairness.org, 2018) <http://www.proceduralfairness.org/Theory-and-Research/Theory.aspx> accessed 20 June 2018
Mnyamwezi R, N KisesaB Sang, ‘Are-These-Kenya-S-Worst-Prisons’ (The Standard, 2015) <https://www.standardmedia.co.ke/…/are-these-kenya-s-worst-prisons> accessed 1 August 2018
Kisesa N, ‘Origin And History Of Death Penalty In Kenya’ <https://www.standardmedia.co.ke/article/2000126707/origin-and-history-of-death-penalty-in-kenya> accessed 3 August 2018
(2018) <Why is justice important? | Reference.com https://www.reference.com › Government & Politics › Law> accessed 24 January 2018
<http://The Criminal Justice System – victimsofcrime.org victimsofcrime.org/…/the-criminal-justice…> accessed 12 January 2018
<Causes of Wrongful Conviction – Western Michigan University https://wmich.edu/sociology/causes-wrongful-conviction> accessed 24 January 2018
<http:// Causes of Wrongful Convictions – West Virginia Universitywvinnocenceproject.law.wvu.edu/> accessed 25 January 2018
<http://Prosecutorial Misconduct – Definition … – Legal Dictionary legaldictionary.net/prosecutorial-misconduct> accessed 25 January 2018
<https://www.lawteacher.net/free-law-essays/…/wrongful-convictions-in-canada.php> accessed 25 January 2018
<http://Compensating The Wrongly Convicted – Innocence Project www.innocenceproject.org/> accessed 25 January 2018
‘Causes Of Wrongful Convictions’ (Law.umich.edu) <https://www.law.umich.edu/clinical/innocenceclinic/Pages/wrongfulconvictions.aspx> accessed 24 January 2018
‘What Is PROSECUTORIAL MISCONDUCT? Definition Of PROSECUTORIAL MISCONDUCT (Black’s Law Dictionary)’ (The Law Dictionary) ;https://thelawdictionary.org/prosecutorial-misconduct/; accessed 25 January 2018
‘Wrongful Conviction’ (TheFreeDictionary.com) ;https://legal-dictionary.thefreedictionary.com/Wrongful+conviction; accessed 21 January 2018
African Customary Law Under The Reception Of English Law’ (Kenyalawresourcecenter.org) <http://www.kenyalawresourcecenter.org/2011/07/african-customary-law-under-reception.html> accessed 12 July 2018
‘APPLICATION OF EQUITY IN KENYA’ (Kenyalawresourcecenter.org) <http://www.kenyalawresourcecenter.org/2011/07/application-of-equity-in-kenya.html> accessed 12 July 2018
(Humanrightsinitiative.org) <http://www.humanrightsinitiative.org/programs/aj/police/ea/articles/draft_strategic_plan_2003-07.pdf> accessed 14 July 2018
‘Historical Background Of The Judiciary In Kenya | Supreme Courts | Judiciaries’ (Scribd) <https://www.scribd.com/document/37767730/Historical-Background-of-the-Judiciary-in-Kenya> accessed 14 July 2018
‘HISTORY-AND-THEORY-OF-CIVIL-PROCCEURE-IN-KENYA/’ <https://www.coursehero.com/file/17711517/HISTORY-AND-THEORY-OF-CIVIL-PROCCEURE-IN-KENYA/> accessed 14 July 2018
Sommer H, ‘History Of The Police In Kenya 1885-1960’ (Academia.edu) <http://www.academia.edu/4406247/History_of_the_Police_in_Kenya_1885-1960> accessed 14 July 2018
<https://www.coursehero.com/file/p4kef9t/In-October-1952-the-British-declared-a-State-of-Emergency-which-continued-until/> accessed 16 July 2018
‘CAP. 63’ (Kenyalaw.org) <http://www.kenyalaw.org/lex/actview.xql?actid=CAP.%2063> accessed 25 July 2018
‘CAP. 75’ (Kenyalaw.org) <http://kenyalaw.org/lex//actview.xql?actid=CAP.%2075> accessed 14 July 2018
‘Kenya’s Truth, Justice And Reconciliation Commission: Between Principle And Practice – ISS Africa’ (ISS Africa) ;https://issafrica.org/events/kenyas-truth-justice-and-reconciliation-commission-between-principle-and-practice; accessed 20 July 2018
‘Home – Innocence Canada’ (Innocence Canada) ;http://innocencecanada.com/; accessed 12 August 2018
‘Home – Innocence Canada’ (Innocence Canada) ;http://innocencecanada.com/; accessed 12 August 2018