INTRODUCTION TO LAW NOTES

7. OUTLINE OF COURT PROCEDURE

7.1 CIVIL PROCEDURE

Definition of terms

PARTIES- ​ Any person who is cited in a civil claim is a party to the proceedings.

PLAINTIFF -The person who starts a civil case by making a claim against the
other in an ordinary civil litigation instituted through summons. The plural is
plaintiffs.

DEFENDANT The defendant is the person against whom an ordinary civil claim
is being instituted through summons. The plural is defendants.

APPLICANT The person who starts a civil claim the application procedure
against the other . An applicant usually institutes a claim by way of filing an
affidavit. The plural is applicants.

RESPONDENT​- The person against whom a civil claim is against . A

respondent usually replies or answers to the claim or request made by way of
filing an answering affidavit. The plural is respondents.

APPELLANT- The appellant is a party who institutes an appeal against a

court’s decision. The plural is appellants.

RESPONDENT - The respondent is the party against whom an appeal is being

made. The plural is respondents.

PLEADINGS​- These are claims and defences in a civil claim. These are court
processes filed by parties dealing with substantive issues to the claims. Summons
and pleas are examples of pleadings.
NOTICES​- These are court processes filed by the other party calling upon the
other party to act or do something. A request for further particulars or a notice
to plead is one such an example

RULING​- A ruling refers to a decision by the court magistrate which does not
necessarily lead to the finalisation of a matter but relates to regulating
admissions of exhibits or decisions relating to postponements, and objections.

ORDER​- A decision by the court commanding, or directing the parties. It is

usually a determination of the court to the substantive issues presented.
Warrants of executions and maintenance orders are orders issued by the court.

JUDGMENT - The finding of the court after assessments of fact and evidence
presented by the parties. It relates to the process of decision making which
usually relates to finding of both the law and facts after parties have made
presentations and representations in court.

SUBPOENING​- This refers to the process of calling, or inviting parties or

witnesses to come to court and give testimony. The document issued to invite
the witness is referred to as a subpoena.

DRAFTING​ - Refers to the process of preparing of pleadings or court processes.

FILING​- It is the process whereby parties take their pleadings and court
processes to court. Filing therefore refers to delivery of pleadings and processes
to court.

ISSUING​- It is the process of stamping of court processes, and pleadings.

Certain court processes have no authority unless they have been issued by the
court. The issuing refers to authentication and acknowledgment. All pleadings
and court processes such as summons, pleas, orders and warrants must be
issued, and therefore must have a stamp and signature of the clerk of court.
Once a pleading is issued, it has the authority of the court.
DELIVERY​- Is the act of giving or handing over by any party, of any document
or thing, for example; a letter.

SERVICE​- Is the process of delivery of pleadings or court processes, as

prescribed in the rules. Any party who files any pleading or process must serve
to the other party to enable them to have knowledge of the existence of such
documents or pleadings and act accordingly. Usually date and time of service
must be endorsed for purposes of calculating timelines. A return of service or
certificate of service must be prepared by the person who served as proof of
service.

CASE NUMBER​- Every civil case in Zimbabwe must have a reference number
and court officials must open an official file and give a case number to any case
opened. The case number is usually insequence indicating the number and the
year of issue. Any subsequent pleadings must always have the case number
inscribed.

SUMMONS​- The initial court process in an action procedure giving particulars

of the Plaintiff and defendant, including their full names, addresses, as well as
the cause of action and particulars of claim, explaining why the claim is being
made. The summons must also give notice or command the defendant to make
an answer to the court within a prescribed time.

APPEARANCE TO DEFEND​- A defendant who does not admit to the plaintiff’s

claim as outlined in the summons must enter or cause to be entered an
appearance to defend. This is a notice to the court and the plaintiff of the
intention to challenge the claim. The appearance to defend must also give the
preferred address of service of the defendant, for any subsequent court
processes. The appearance to defend must be issued and served to the plaintiff.

ADDRESS FOR SERVICE​- This refers to the addresses parties to the

proceedings choose as the addresses where court processes should be served.
An address of service must always be a physical address, such as a house
number, street number of village name. In addition, in magistrates Court cases,
an address for service should not be more than 15 km away from the court
which issued summons.

PLEA​- It refers to the defendant’s formal statement of his defence to the

plaintiff’s claim. It is the defendant’s reply to the summons, and may include
both factual and technical legal defences.

PRE-TRIAL CONFERENCE -It a meeting at courts before a civil trial between

the parties and the magistrate, to firstly the possibility of a settlement and end
the matter before the trial. If it’s not possible to settle, the parties, with the help
of the magistrate, must decide what issues must proceed to trial for
determination and admissions the court will have to consider during the trial.

JUDGMENT CREDITOR A party entitled to receive payment arising from the

judgment.

JUDGMENT DEBTOR​ A party who has to pay as per judgment.

JUDGEMENT FOR THE PLAINTIFF​ Judgement made in favour of the Plaintiff.

JUDGEMENT FOR THE DEFENDANT/RESPONDENT Judgement in favour of

the Respondent/Defendant

AFFIDAVITS ​- Written statements which set out facts to the knowledge of the
person signing for them. They must be complete and containing full details of
the person signing and must be signed before a commissioner of oaths
designated by law. The affidavit must never be argumentative but factual and
narrative.

DEPONENT​.- The one who deposes to an affidavit.

ADVERSARIAL SYSTEM​- This is whereby parties fight out each other in court
and the Magistrate’s duty is to guide and monitor the parties as an umpire. The
parties have to be transparent to each other there is no hide and seek.
 INQUISITORIAL SYSTEM​-Unlike the adversarial system, the Magistrate plays
an active role by being involved in the proceedings by inquiring and asking
questions.

7.2 TYPES OF PROCEDURES.

There are two basic forms of procedures which may be used for instituting proceedings
ie

​Action procedure (summons) and​;

Application procedure (Affidavits).

The general rule is that civil matters proceed by way of action .Application procedure is
only used where

1.​ an Act or Statute specifically states so .

2​. there is need for an interlocutory proceeding eg default judgement, interim relief etc

​3.​ where the matter is urgent

4. there is no material dispute of fact ie there is a dispute of material facts which

cannot be resolved on affidavit evidence.

7.3 ACTION PROCEDURE STAGES

Letter of demand

Most civil claims start with a letter of demand, reminding or warning the defendant to
pay the debt or risk matter being taken to court. The letter of demand must give a full
reminder to the defendant. However, the absence of a letter of demand does not
render the subsequent issuing of summons defective

STAGES

• Issuing of Summons
• Service of Summons
 • Appearance to defend
• Plea
• Reply
• Close of Pleadings
• Discovery of documents
• Pre-Trial Conference
• Set-down for Trial
• Trial
• Judgement

7.4 APPLICATION PROCEDURE.

As a general rule application procedure is not used for instituting civil matters unless
there is a provision which expressly authorizes its use in the Act, Rules or some other
statute. There are two types of Applications.

(A) The first is a Court Application which is made to the court and on notice to all the
interested parties.
(B) The second type is an Ex parte Application which is made to the Magistrate in
chambers and not on notice to other parties.

Ex parte applications can only be done if the matter is urgent and cannot be resolved
through court application or; if the rules or any other enactment so provides. Ex parte
Applications should be in writing stating briefly the grounds the terms of an order being
sought and grounds upon which an application is being made. A certificate of Urgency
may be attached to the Application if the party making the Application is legally
represented.
STAGES IN A COURT APPLICATION.

• Notice of application- founding affidavit and supporting affidavit

• Service of application

• Notice of Opposition-Opposing affidavit

• Replying affidavit

• Filing of Heads of Argument.

• Set-down

• Hearing

• Judgement

7.5 ENFORCEMENT OF COURT ORDERS ​ .

After the court has made a decision, that decision must be effected by way of
enforcement and there are various ways in which court orders can be enforced and
they include:

1) ​Attachment and sale in execution The property of the judgment debtor may be
attached by the messenger of court and sold through public auction and proceeds
remitted to the judgment creditor. This attachment of the property is through a warrant
of execution issued by the court. If the debt remains unsatisfied the Judgement
creditor can still make an application for the remaining property of the Judgement
debtor to attached. The general rule is that moveable should be attached first before
immovable.

2) ​Delivery After the court orders that the judgment debtor delivers, a warrant of
delivery is issued that the messenger of court uses to attach and deliver the property to
the judgment creditor.
 3​) Ejectment After a court orders eviction of the judgment debtor, a warrant of
eviction is issued, which is then used by the messenger of court to evict the judgment
debtor from the particular property/premises.

4) ​Garnishee order After the court orders that the judgment debtor pays the debt,
and the judgment debtor is gainfully employed and earns a regular salary, the court
may direct that the money be deducted directly from the judgment debtor’s employer
and get remitted to the judgment creditor. This application can be made Ex parte.
However, the applicant has to issue a notice 14 days before making the application to
the Director of the Salary Service Bureau if judgement debtor is employed by the state.
The Chief Paymaster of the Army and the Commander of the Army if the judgement
debtor is employed in the Zimbabwe National Army; or the Director of the Salary
Service Bureau and the Secretary to Parliament, where judgement debtor is a
Parliamentarian. The notice should contain the name of the judgement debtor, his or
her employee or force number and the Ministry, department, force or institution where
employed. The recipients of the notice should as soon as possible serve a notice on the
applicant indicating how much the judgement debtor earns by way of salary or wage,
the amount of deduction which can be made from salary or wage and the earliest date
from which deductions may commence.

The Clerk of court will then set the Application together with any notices before the
magistrate who may

• Refuse or grant the application in whole or in part

• Require the Applicant to appear and support his or her application in open court.

• Set aside the order if the judgement debtor appears on the return date to oppose
confirmation of the order. The opposition can only be on the grounds that the debt has
already been satisfied or the debt sought to be attached is for salary or wages and its
attachment will leave him with insufficient amount to sustain himself or herself .
 5) ​Civil imprisonment After the court orders that the judgment creditor pays the
debt and the judgment debtor has means but is unwilling to satisfy the debt, the court
may order civil imprisonment of the judgment debtor as a way of motivating the
judgement debtor to pay the debt. It is important to note that in terms of the Rules
summons for Civil Imprisonment can only be served on the Judgement Debtor
personally and not any anyone else.

6​) Costs The court may order that a party pays the costs of suit and such costs shall
be taxed and become an enforceable debt. The clerk of Court is the one who does that
taxation of costs and both parties should be present. The clerk of court shall allow all
costs, charges and expenses as appear to him to have been necessary or proper for the
attainment of justice and; shall not allow costs which to him appear to have been
incurred or increased by over caution, negligence or mistake. A party dissatisfied with
the taxation made by the Clerk of Court on any costs awarded or any fees or charges of
the messenger of court, may within seven days after knowledge thereof make an
application for review to the magistrate. A party dissatisfied by the findings of the
magistrate may after notice to the other party require the magistrate to state a case for
decision of a judge ie come up with a report. The parties can within a further 7 days
submit their contentions in writing to the magistrate who has within 14 days to lay the
case before the judge together with the contentions.

7.6​ ​ EXPLAINS THE APPEAL AND REVIEW PROCEDURES.

APPEAL

A party not satisfied with the decision of the magistrate may appeal to the High Court,
through a Notice of Appeal. The party appealing must pay the costs of preparing the
record of appeal as well as any other cost involved. An appeal is based on the decision
of the magistrate regarding facts or the law or both.
The notice should be filed within 21 days after the judgement appealed against. If a
party fails to file the notice within the stipulated period, it can make an Application for
Condonation (forgiveness) of late noting of appeal giving to the High Court giving its
reasons. The High Court may dismiss or when it grants the application then such party
can then proceed to note its Appeal. After the delivery of the notice the Magistrate shall
within 14 days deliver to the Clerk of Court his comments in writing having regard to
the

• facts he or she found proved,

• the grounds upon which he or she arrived at the judgement

• his or reasons for the ruling of law or for the admission or rejection of any evidence
so specified to be appealed against.

• The court appealed from

• The names of the legal practitioners of the parties. Thereafter the clerk of court shall
lodge with the Registrar of the High Court the original record and four typed copies,
which copies shall be certified as true and correct copies. .

REVIEW

A party not satisfied with compliance with rules and application of the law to the case
may apply for review of the decision of the Magistrate. This is only on procedural and
legal issues and not factual findings in general. Any party seeking review shall serve a
notice on the Clerk of court who shall proceed to prepare the record. The Clerk of Court
shall ensure that there is the original record together with 2 copies certified as true
copies. The record should be paginated and securely bound in a stout cover disclosing
the names of the parties and their legal practitioners. By consent of parties exhibits
and immaterial portions of lengthy documents having no bearing on the review may be
omitted from the record. The Clerk of court shall state payment at the prescribed fee
for the preparation of the record. Thereafter the Clerk of Court shall then lodge the
Original record together with the two copies of the record to the Registrar of the High
Court.

JURISDICTION IN CRIMINAL CASES

The courts which have jurisdiction in criminal cases are Magistrates’ courts, the High
Court, and the Supreme Court.

Magistrates courts
Magistrates’ courts are divided into regional courts and provincial courts. Regional
courts are the more senior. All magistrates are appointed by the Judicial Service
Commission.

Territorial jurisdiction
Regional magistrates’ courts are established for specific regional divisions. Other
magistrates’ courts are established for specific provinces, and magisterial provinces
follow the boundaries of the administrative provinces. All magistrates’ courts have
criminal jurisdiction within the regional division or province for which they are
established, and in certain cases they may try cases that occur outside it, e.g.:

• If a person does something outside Zimbabwe which is a crime under a statute which
has extra-territorial effect, any magistrates’ court can try that crime even if no element
of the crime took place within the court’s division or province.
• If any element of a crime is committed within a division or province, the court of that
division or province can try the crime even if the rest of the crime was committed
elsewhere .
• If a crime is committed within five kilometres from the boundary of a division or
province, or on a vehicle or train which is passing through a division or province or
within five kilometres of a division or province, the court of that division or province
may try the crime.
• A person charged with theft or receiving property knowing it to be stolen, or obtaining
property by means of a crime, can be tried by any court within whose division or
province he has had possession of any of the property.
• A person charged with incitement (i.e. with being an accomplice) or with being an
accessory after the fact to a crime (the old term for what is now an accessory) may be
tried by any court which can try the person who committed the crime concerned.
• If it is uncertain in which of several jurisdictions a crime has been committed, the
offender may be tried in any of them.
• With the accused person’s consent, the Attorney-General may direct that a trial should
be held in any division or province. Crimes that may be tried in a magistrates court
Magistrates’ courts do not have power to try all crimes:
1. No magistrate can try the crimes of murder, treason or any other crime for which the
death penalty may be imposed.
2. Only regional magistrates may try the crime of rape, unless: ➢ The
Prosecutor-General has remitted the case for trial or sentence to a magistrate who is
not a regional magistrate;
or ➢ The accused is a juvenile under the age of 18 and the Prosecutor-General has
authorised the trial to be held before a magistrate who is not a regional magistrate.

Magistrates’ jurisdiction as to punishment.

The extent of a magistrate’s jurisdiction as to punishment varies according to the grade
of the magistrate concerned.
Regional magistrates​:
In most cases the maximum sentence that a regional magistrate can impose on a
convicted person is a fine of level 12 or imprisonment for ten years, or both. That is the
ordinary jurisdiction of regional magistrates. In certain cases they can impose higher
sentences:
• In cases of public violence, malicious damage to property or aggravated robbery, their
jurisdiction is increased to a maximum of a fine of level 13 or 12 years’ imprisonment,
or both.
• In cases of theft, stock theft and unlawful entry into premises, they can impose the
maximum sentence prescribed for those crimes in the Criminal Law (Codification and
Reform) Act [Chapter 9:23] (the “Criminal Law Code”).
• For a sexual crime (rape, indecent assault, an unnatural crime, etc), they can impose
a fine of up to level 14 or up to 20 years’ imprisonment, or both.

Provincial magistrates.
In most cases the maximum sentence that a provincial magistrate can impose on a
convicted person is a fine of level 10 or imprisonment for five years, or both. That is the
ordinary jurisdiction of provincial magistrates. In certain cases they can impose higher
sentences:
• In cases of public violence or malicious damage to property, the jurisdiction is
increased to a maximum of a fine of level 11 or seven years’ imprisonment, or both. In
cases of theft, stock theft and unlawful entry into premises, they can impose the
maximum sentence prescribed for those crimes in the Criminal Law Code.
• For crimes relating to dangerous drugs specified in Chapter VII of the Criminal Law
Code, they can impose a fine up to level 12 or up to 10 years’ imprisonment.

Senior Magistrates​.
In most cases the maximum sentence that a senior magistrate can impose on a
convicted person is a fine of level 9 or imprisonment for four years, or both. In certain
cases, however senior magistrates can impose higher sentences:
• In cases of public violence or malicious damage to property, the jurisdiction is
increased to a maximum of a fine of level 11 or seven years’ imprisonment, or both.
• In cases of theft, stock theft and unlawful entry into premises, they can impose the
maximum sentence prescribed for those crimes in the Criminal Law Code.
• For crimes relating to dangerous drugs specified in Chapter VII of the Criminal Law
Code, they can impose a fine up to level 12 or up to 10 years’ imprisonment
Ordinary Magistrates
• For the crime of deliberately infecting someone with a sexually transmitted disease
(other than HIV) they can impose a fine of “up to or exceeding” level 14 or up to five
years’ imprisonment, or both.
• For the crime of deliberately infecting someone with HIV, they can impose up to 20
years’ imprisonment.
• For crimes relating to dangerous drugs specified in Chapter VII of the Criminal Law
Code, they can impose a fine up to level 13 or up to 15 years’ imprisonment.
The High Court has full criminal jurisdiction over all persons and criminal matters in
Zimbabwe. That means that it can try all crimes throughout Zimbabwe, and may
impose any lawful punishment on convicted persons. So the High Court sitting in
Harare, for example, can try persons for crimes committed in Bulawayo — though in
practice crimes committed in the western half of the country are tried by the High Court
in Bulawayo. The High Court also has jurisdiction over extra-territorial crimes, where
the statute that creates the crime concerned has extra-territorial operation. It can also
exercise jurisdiction over crimes committed wholly or partly outside Zimbabwe, in terms
of section 5 of the Criminal Law Code:
• if the conduct which completed the crime took place in Zimbabwe;
• if the crime is against public security in Zimbabwe or the safety of the State in
Zimbabwe; or
• if the crime has produced, or was intended to produce, a harmful effect in Zimbabwe,
or was committed with the realisation that there was a real risk or possibility that it
might produce such an effect.
Review jurisdiction
The High Court has power to review all proceedings and decisions of all inferior courts
in Zimbabwe. The exercise of its review powers in criminal cases will be dealt with later.
Note, however, that the High Court cannot review sentences which Parliament imposes
on its members (or even, presumably, on other people) for contempt, even though
Parliament is sitting as a court.
Appellate jurisdiction
The High Court has power to hear appeals from decisions of magistrates in criminal
cases, both in regard to conviction and sentence.
The Supreme Court​-
The Supreme Court is the final court of appeal in Zimbabwe, with power to hear and
determine appeals in criminal cases from any court or tribunal from which, in terms of
any enactment, an appeal lies to the Supreme Court. In criminal cases, this means that
appeals against decisions of the High Court lie to the Supreme Court.
The Constitutional Court –
The constitutional Court has referral powers in relation to criminal matters where the
subject matter relates to constitutional issues or constitutional rights violations arising
from a criminal case being handled by any court in Zimbabwe. In terms of Section 193
0f the constitution, only the Constitutional Court, the Supreme Court, the High Court
and Magistrates Court may exercise or be given jurisdiction in criminal cases.
PROSECUTION OF CASES

PLEAS
The various pleas that may be tendered by an accused person are set out in section
180(2) of the Criminal Procedure and Evidence Act. They are as follows:
Guilty
A plea of guilty to the charge is an admission of all the material facts stated in the
charge. After a plea of guilty there is no issue between him and the State. The accused
may, however, tender a plea of guilty to a lesser crime than the one charged: for
example, an accused charged with murder may tender a plea of guilty to culpable
homicide.
The prosecutor (not the court) then has discretion whether or not to accept the lesser
plea. The same applies where the accused pleads guilty to an alternative charge. If the
prosecutor accepts the plea it is not competent for the court to convict the accused of
the more serious crime that was charged. If, on the other hand, the prosecutor does
not accept it, then a plea of not guilty is entered and the trial goes ahead as if the
accused had pleaded not guilty — but the plea is regarded as an admission by the
accused of the facts that go to make up the lesser crime. For example, if the accused is
charged with murder and tenders a plea to culpable homicide, which plea is not
accepted by the prosecutor, then at the subsequent trial the accused will be regarded
as having admitted that he unlawfully caused the death of the deceased person.

PROCEDURE ON PLEA OF GUILTY IN THE MAGISTRATES’ COURT

In a magistrates court, if the accused person pleads guilty to the crime charged, or if he
pleads guilty to any other crime of which he could be convicted on the charge sheet
and the prosecutor accepts the plea of guilty to that other crime, the procedure to be
followed IS .

● Plea
● Verdict
 ● Mitigation
● Aggravation
● Sentence

WITHDRAWAL OF CHARGES
The prosecutor is entitled to withdraw charges against the accused at any stage,
whether before or after the accused has pleaded to them.
Withdrawal before plea
If the prosecutor withdraws charges before plea, the accused person can be charged
again later. He is ​not entitled to an acquittal​, but if he is in custody he must be
released (unless he is facing other charges). The decision to withdraw is the
prosecutor’s alone. Once he has indicated his intention to withdraw charges, the court
is not empowered to order that a charge be put to the accused. The act of withdrawing
terminates the proceedings against the accused.
Withdrawal after plea ​–
If the prosecutor withdraws charges after the accused has pleaded but before
judgment, the accused is ​entitled to an acquittal​. Again, the decision to withdraw is
the prosecutor’s alone and the court is not entitled to proceed with the trial after a
withdrawal. A prosecutor cannot, however, withdraw a charge after the accused has
been convicted because the court, having pronounced its verdict, is f​ unctus officio ​in
regard to verdict.

CONDUCT OF TRIAL

PLEA OF NOT GUILTY

By pleading not guilty, an accused person is regarded as having demanded the trial of
the questions involved, and that the prosecution should be put to the proof of its
allegations against him
The procedure is as follows after accussed has pleaded not guilty

State Case

Evidence in Chief

Each state witness is called from outside and the prosecutor leads evidence from the
witness ie , the witness gives his or testimony.

Cross-examination
After each State witness has been examined by the prosecutor, the accused or his legal
practitioner is entitled to cross-examine the witness. The purpose of cross-examination
is to elicit evidence which supports the cross-examiner’s case and, secondly, to cast
doubt on the evidence given for the opposing party. The witness should be given a fair
opportunity to explain the contradictions put to him. It is improper to let a witness’s
statement go unchallenged in cross-examination and then argue later that the witness
should not be believed.

Re-Examination
After a State witness has been cross-examined, the prosecutor is entitled to re-examine
the witness, to enable the witness to explain his answers to questions put to him in
cross-examination. Hence questions in reexamination must be confined to matters
arising from cross-examination. After all the evidence for the State has been led, the
prosecutor must close his case.
Discharge of accused at close of State case ​“If …the court considers that there is
no evidence that the accused committed, the offence charged, or any other offence of
which he might be convicted … it shall return a verdict of not guilty.” If the court
considers there is no evidence against the accused, then it must discharge him by
returning a verdict of not guilty. There is a basis for ordering the discharge of the
accused where:
• there is no evidence to prove an essential element of the crime;
• there is no evidence on which a reasonable court, acting carefully, might properly
convict;
• the evidence adduced on behalf of the State is so manifestly unreliable that no
reasonable court could safely act on it.
Because of the word “shall” in section 198(3), a court must discharge the accused in all
these three circumstances; the court has no discretion. All this is in terms of Section
198(3) of the Criminal Procedure and Evidence Act.

DEFENCE CASE
It is not in all cases that an application for discharge at the close of the State case is
made or granted. Where the matter proceeds, the procedure is the same as in the State
case ie
● Evidence in Chief
● Cross-examination
● Re-examination

Addresses by the parties

After the defence case has been closed the prosecutor is entitled to address the court,
summing up the whole case. He has the right to decide whether or not to do so. In his
address the prosecutor must, as always, be fair and not strive at all costs for a
conviction The accused or his legal practitioner also has a right to address the court. If
the judicial officer fails or refuses to permit this right to be exercised, it is an
irregularity.

Verdict
This is the decision by the judicial officer. The verdict must generally be given in open
court, subject to the rules relating to trials in camera. The court may adjourn the
proceedings to consider its judgment.

NOT GULITY.
If the verdict is one of not guilty, the accused is acquitted of the charge and is entitled
to be liberated from custody on that charge. Thus a verdict of not guilty results in an
acquittal.

GUILTY
If the court is satisfied beyond reasonable doubt that the accused is guilty, it will
convict him of the crime charged or of some other crime which the court has found
proved. Thus a verdict of guilty results in a conviction.

SENTENCING
MITIGATION​.
After the verdict has been passed, the accused person should mitigate ie give reasons
to persuade the court not to give a harsh sentence. There are grounds or reasons
acceptable at law in mitigation such as age, first time offender, showing signs of
contrition , pleading guilty, being employed or breadwinner etc.

AGGRAVATION​.
After mitigation, the prosecutor will aggravate ie give reasons to persuade the court to
impose a stiff or most appropriate sentence in its view. Below are some of the grounds
which can be argued in aggravation. However some are applicable in mitigation as well.
FACTORS CONSIDERED IN SENTENCING
● Age
● Gender
● Marital status and dependants
● Employment
● Character
● Plea of guilty
● Nature of crime
● Previous Conviction

TYPES OF SENTENCES
● Death penalty
● Imprisonment (Periodical/ Life imprisonment)
● Fine
● Community service
● Putting the convicted person under recognizance, with conditions
● corporal punishment

SCRUTINY, REVIEW AND APPEAL

Scrutiny- by Regional Magistrate
● Where a magistrate (other than a regional magistrate) sentences a person to a
period of imprisonment of more than three months but not exceeding 12
months, or to a fine of more than level 4 but not exceeding level 6, the clerk of
the court must send the record of the case to a regional magistrate within one
week after the sentence was imposed.
● Where the person was convicted on two or more counts, it is the aggregate
sentence imposed on him which determines whether or not the case must be
sent for scrutiny. The trial magistrate may include with the record any remarks
he may wish to make. Unless the trial magistrate orders otherwise, a transcript
of the evidence is not sent; the magistrate’s manuscript notes are sufficient.
A record will not be sent in the following cases:
• where the accused was represented by a legal practitioner or is a company;
• where the accused has requested that the case should be sent to the High Court for
review;

Automatic Review by High Court –

​
Where a magistrate (including a regional magistrate) sentences a person to a period of
imprisonment of more than 12 months, or to a fine of more than level 6, the clerk of
the court must send the record of the case to the registrar of the High Court within one
week after the sentence was imposed.
Where the accused person was convicted on two or more counts, it is the aggregate
sentence imposed on him which determines whether or not the case must be sent on
review.
As with scrutiny, the magistrate may include with the record any remarks he may wish
to make.
Review by Court Application
Another way to bring a case on review to the High Court is by court application, asking
the court to exercise its general powers of review where a party feels there were
procedural irregularities.

Appeal From Magistrates Courts​-

Appeals from magistrates’ courts in criminal cases lie to the High Court. There is greater
scope for appealing against a judgment or order of magistrates’ court than there is
against a judgment or order of the High Court. An appeal lies to the High Court:
• Against conviction and/or sentence and/or any order following sentence (e.g. an order
of forfeiture). Note, however, that this applies to convictions and sentences imposed by
magistrates courts. If a person is convicted by a magistrate and transferred to the High
Court for sentence, an appeal will lie against conviction and/or sentence as if he had
been convicted and sentenced by the High Court;
Appeal From other courts
Members of the Defence Forces who have been convicted by a court martial may
appeal to the Court Martial Appeal Court (i.e. the Supreme Court) against conviction on
any ground that involves question of law alone or mixed question of law and fact, or on
any ground which the Appeal Court certifies as sufficient. There is no provision for an
appeal against sentence. Members of the Police Force convicted of offences by a board
of officers may appeal against their conviction or sentence to the High Court.