Editor’s note: In this opinion article, Kimutai Kirui looks at what he describes as criminal justice in Kenya while describing the evidentiary architecture from the first report to final judgement in court. Kirui links his argument about criminal justice in Kenya to the Legal Resources Foundation Trust v Attorney General and 2 others (2019) case, where the High Court, sitting in Embu, ruled that charging for the P3 form is unconstitutional.
In Uasin Gishu County, P3 form fees range from KSh 1,000 to KSh 2,000, while at the Moi Teaching and Referral Hospital (MTRH), it goes up to KSh 10,000. While some counties have complied with court rulings on fee standardisation, compliance by MTRH and others remains unclear. Any charges should be verified for legality and compliance with applicable regulations and court orders.
The High Court has affirmed that the P3 Form is a public service and must be issued and completed free of charge. Any fee charged for it violates Article 48 of the Constitution on access to justice and has no legal basis.
Accordingly, no public authority, including police stations or medical practitioners, may lawfully levy charges for its issuance or completion. Any such demand is unlawful and void.
Criminal liability in Kenya is not triggered by the mere reporting of an offence. The victim and witnesses must record and sign statements.
In Kenya, a police incident report is entered in the Occurrence Book (OB) for investigative, insurance, and evidentiary reference. An OB entry may confirm that a complaint was received, but it is not a legal requirement for civil proceedings.
Criminal prosecutions are undertaken by the State through the Office of the Director of Public Prosecutions (ODPP). In assault cases, the victim is a witness, while the State prosecutes the matter under Republic v Accused. Separately, the victim may file a civil claim for compensation under Plaintiff v. Defendant.
An OB entry is an administrative record only; it does not establish facts or meet the evidentiary threshold for prosecution. For a matter to proceed beyond reporting, complainants and witnesses must record formal statements taken by an investigating officer, reviewed for accuracy, and signed to confirm their truth and voluntariness.
Statements, together with supporting physical, documentary, or digital evidence, give legal substance to an Occurrence Book (OB) entry; without them, a report may be incomplete and insufficient for prosecutorial consideration.
Criminal liability is established through admissible, corroborated, and procedurally compliant evidence, without which allegations may not proceed or result in conviction.
1. The foundational principle: Evidence before liability
In civil matters, OB/NO. is required. The criminal justice system is not self-executing.
A police report is only the entry point into a structured process that depends on:
- Witness statements
- Physical, documentary, and digital evidence
- Preservation of material proof
- Chain of custody integrity
Where these elements are weak or absent, investigative and prosecutorial action is significantly constrained. Witness statements are particularly central. They are not procedural formalities but the factual backbone of a case.
For a prosecution to succeed, witness accounts must be credible, consistent, and mutually corroborative, as well as aligned with other evidence.
2. The criminal justice process in Kenya
2.1 Reporting and Recording
The process begins when a complainant reports an offence at a police station.
The incident is entered into the Occurrence Book (OB)
An OB number is issued for reference and tracking
2.2 Investigation
Investigators then
- Record statements from complainants and witnesses
- Collect physical, documentary, and digital evidence
- Identify and trace suspects
- Conduct interviews or effect arrests where warranted
2.3 Review by the ODPP
Once investigations are complete:
- The file is forwarded to the Office of the Director of Public Prosecutions (ODPP)
- Prosecutors assess whether the evidentiary threshold is met
- A decision is made on whether prosecution is in the public interest
2.4 Arrest and Arraignment
If prosecution is approved:
- A charge sheet is prepared
- The accused is arrested or summoned
- Charges are read in court, and a plea is taken
- Bail or bond is considered
2.5 Trial
During trial:
- The prosecution bears the burden of proof
- Witnesses and exhibits are presented and tested through cross-examination
- The defence may raise a “no case to answer” submission
- The accused may testify, remain silent, or call defence witnesses
2.6 Judgment
The court evaluates:
- All oral and documentary evidence
- Legal arguments from both sides
- A verdict of guilty or not guilty is then delivered.
2.7 Mitigation and Sentencing
If convicted:
- The accused presents mitigating factors
- The court imposes an appropriate sentence
- The right of appeal is explained
3. The evidentiary gap: Why cases fail
Many cases collapse not due to institutional failure but due to evidentiary gaps, including the following:
- Refusal or delay in recording statements
- Witness reluctance or non-cooperation
- Poor preservation of physical or digital evidence
In such circumstances, prosecutorial discretion is limited by the insufficiency of admissible material.
4. Sexual offences and the medico-legal framework
4.1 The Role of the P3 Form
In sexual assault, rape, and defilement cases, the P3 Form (Police Medical Examination Report) is a central evidentiary instrument linking medical findings to criminal investigation.
It documents:
- Physical injuries
- Forensic observations
- Clinical findings relevant to the alleged offence
Its probative value depends on timely medical examination and proper procedural handling.
4.2 Immediate Medical Response (First 72 Hours)
Medical intervention should be sought urgently to enable the following:
- Post-Exposure Prophylaxis (PEP)
- Emergency contraception
- STI prevention and treatment
- Psychological support
4.3 Preservation of Forensic Evidence
Where possible:
- Do not wash or bathe immediately after the incident
- Preserve clothing in paper-based material (not plastic)
- Avoid altering potential evidence
These steps preserve biological traces critical for forensic analysis.
4.4 Issuance and Completion of the P3 Form
- The offence is reported at a police station (preferably Gender Desk)
- An OB number is issued
- The P3 Form is provided free of charge
- A medical officer completes the examination at a government facility or GBV recovery centre
The examination may include:
- Injury documentation
- Forensic sample collection
- Medical history recording
- Laboratory investigations
4.5 The PRC Form (MOH 363)
Alongside the P3 Form, clinicians complete the Post Rape Care (PRC) Form, which records:
- Detailed clinical history
- Circumstances of assault as narrated
- Examination findings
- Laboratory results
- Treatment administered
Together, the P3 and PRC forms form a comprehensive medico-legal record.
5. Legal safeguards and rights
The P3 Form is issued and processed free of charge in public facilities
Survivors are entitled to confidentiality and dignity throughout the process
Medical care and evidence preservation must not be delayed in cases involving minors, even in the absence of a guardian
6. Evidentiary significance in prosecution
In sexual offence cases, outcomes often depend on time-sensitive forensic evidence. Biological material degrades, injuries heal, and recollection weakens.
The P3 and PRC framework, therefore:
- Converts clinical findings into admissible evidence
- Strengthens corroboration in court
- Bridges the gap between medical care and prosecution
Without such documentation, even credible allegations may struggle to meet the criminal standard of proof.
Conclusion
The criminal justice process in Kenya is best understood as an evidentiary continuum. From the first report to final judgement, each stage depends on the quality, consistency, and preservation of evidence.
- Justice is not automatic—it is constructed.
- And it is constructed through procedure, participation, and proof.
The author is Kimutai Kirui, a Kenyan political analyst and human rights activist known for his work in Uasin Gishu County, where he has championed justice in cases ranging from police brutality to land disputes affecting widows.
Views expressed in this article are solely those of the author and do not represent the editorial position of news9.africa.
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