- In criminal cases, the prosecution's case has to be airtight and devoid of any doubt that the accused committed the crime, for the court to convict them.
- In civil cases, however, it is about probability, which party has a stronger case. A preponderance of evidence does the burden of proof.
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Have you ever wondered what differentiates murder crime from a land dispute?
Well, murder crime falls under a criminal case in that even though it affects people at a personal level, it also affects society at large.
A criminal case is usually prosecuted by the state.
For land matters, which fall under a civil case may involve disputes between individuals, businesses or organisations.
This means that the defendant (accused person) and plaintiff (complainant) are either individuals or organisations.
Criminal offences may include robbery, murder, assault, defilement, rape and arson.
Civil offences can be land and property disputes, trespassing, invasion of privacy, negligence and, family disputes including divorce and custody.
They can also be about money issues including debts and bankruptcy, injuries, discrimination and employment issues.
How is the verdict decided in the different cases?
High Court Advocate Shadrack Wambui says the standard of proving a criminal case is higher as compared to that of a civil case.
In a criminal case, the prosecution has to convince the court that the accused person (defendant) is guilty beyond a reasonable doubt.
According to the Legal Information Institute 'Beyond reasonable doubt' means that the prosecution has to convince the court that there is no other reasonable explanation that can come from the evidence presented at the trial.
"Criminal cases are different. The standard is beyond a reasonable doubt. So much so that the court might pronounce someone not guilty, not because there was no evidence, but because it was not sufficient to eliminate the doubt that the court might be having," Wambui said.
The prosecution's case has to be airtight and devoid of any doubt that the accused committed the crime, for the court to convict them.
In civil cases, however, it is about probability, which party has a stronger case. The burden of proof is done by a preponderance of the evidence.
This simply means that they have to prove that something is more likely than not or that there is a more than 50 per cent greater chance that the claim is true.
In the case that one cannot provide that, or the evidence is equally balanced, then the person has not carried his or her burden of proof on the element.
What are the punishments?
Wambui adds that the outcome desired by the parties involved in both cases is different.
In criminal cases, there is a desire that the offender is severely punished through jail term while in civil cases, it might be compensations or civil jail.
Civil jail comes into play when the court orders a person who fails to meet the compensation amount to be put in jail until they pay their debts.
"In criminal cases, there is a high risk of the accused being sent to jail. In these cases, the question is not about the person who has been offended. The question is on the implication of the conduct of the accused in the society," he said.
If the defendant is found guilty in a criminal case, the judge has the power to either imprison or fine the person or order both.
Kenya Sentencing Policy Guidelines, says the objective of the punishment is to provide justice for the victim by punishing their assaulter, deter crime, rehabilitate the convict and/ or protect the community.
The sentence can be custodial - jail term, or non-custodial - community service or fine.
In a civil case, when one is found to have breached a contract or the law, the judge gives justice to the aggrieved party by providing monetary relief against the damages.
The objective of the punishment is to settle disputes between the parties before the court - the plaintiff (the person bringing the case before the court) and the defendant.