Trial Defence

Trial defence is the representation of an accused person during the trial of a criminal charge — the presentation of evidence and arguments to a court with the objective of securing an acquittal or, where an acquittal is not achievable, the most lenient outcome possible. In Kenya, the right to a fair trial is guaranteed by Article 50 of the Constitution of Kenya, 2010, which includes the right to be presumed innocent until proven guilty, the right to be informed of the charge, the right to adequate time and facilities to prepare a defence, the right to call witnesses, the right to cross-examine the prosecution's witnesses, and the right to remain silent. The Criminal Procedure Code (Cap 75) and the Evidence Act (Cap 80) govern the procedural and evidential rules of the trial.

This area covers the full conduct of the trial, from the pre-trial preparation to the judgment. Advocates begin with a thorough review of the prosecution's evidence — the charge sheet, the witness statements, the exhibits, and the forensic and expert reports. Advocates identify the weaknesses in the prosecution's case — the inconsistencies in the witness statements, the gaps in the chain of custody of exhibits, the reliability of the identification evidence, and the admissibility of the evidence under the Evidence Act. Advocates develop a defence strategy that exploits those weaknesses and that presents the accused's case in the most favourable light.

Advocates conduct the pre-trial preparations — taking instructions from the accused, identifying and preparing defence witnesses, arranging for the attendance of defence witnesses in court, and preparing the accused for their own testimony (where they choose to testify). Advocates prepare the cross-examination of the prosecution's witnesses — formulating questions that expose inconsistencies, that challenge the credibility of the witnesses, and that elicit evidence favourable to the defence.

At trial, they conduct the cross-examination of the prosecution's witnesses — questioning them on their statements, their observations, and their conclusions, and challenging their evidence where it is inconsistent, improbable, or unreliable. Advocates raise objections to inadmissible evidence, to improper questions, and to procedural irregularities. Advocates make submissions on the admissibility of exhibits, the competence of witnesses, and the sufficiency of the evidence.

Advocates make submissions of no case to answer — at the close of the prosecution's case, they argue that the prosecution has not presented sufficient evidence to require the accused to present a defence, and they ask the court to acquit the accused without the need for a defence. Where the submission is successful, the accused is acquitted without having to testify or call witnesses. Where the submission is unsuccessful, they present the defence — calling witnesses, introducing exhibits, and (where appropriate) having the accused testify.

Advocates prepare and deliver the closing submissions — the final argument to the court, which summarises the evidence, highlights the weaknesses in the prosecution's case, emphasises the strengths of the defence case, and asks the court to acquit the accused. The work also covers the art of closing submissions — the structure, the rhetoric, and the strategic emphasis that can persuade a court to find reasonable doubt.

Advocates handle trials in the Magistrates' Courts (for most offences) and in the High Court (for capital offences and other serious matters). Trial work also involves expert evidence — including forensic evidence, medical evidence, and digital evidence — and in the management of trials that turn on complex technical or scientific issues.