LECTURE 4: THURSDAY 10 TH NOVEMBER 2011 – 5.30AM-8.

30PM – SHERIA
HALL

RULES OF CRIMINAL RESPONSIBILITY

1. PRESUMPTIONS
 There are certain presumptions that are recognized in criminal practice.
 They arise mainly as matters of evidence, in terms of what the prosecution may be
required to prove, and what may be presumed.
 Presumption is a rule which requires that upon proof of one fact, the court may or
must infer that some other fact exists or it may presume the existence of those
facts.
 This implies the existence of two sets of facts; when one set is proved, the other
may be presumed to exist by virtue of the facts proved.
 It is a rule of expediency
 The law appreciates the fact that, because it is not possible to get direct evidence
in all matters hence you can only presume.
 What this means is that it is acceptable for courts to draw inference and
conclusion from already recorded facts.
 For example the presumption of death: If someone has been un -heard off for the
last seven years and there is evidence to show that no one has seen or heard off
him then it is acceptable to presume that he is dead.
 Since you cannot make this presumption then you have to go to court to make this
presumption upon proving that no one has heard or seen him in the last 7 years.
 This presumption is made based on three s et of facts
 He is lost
 He is unheard off for seven years
 He has not been seen by anyone in the last 7 years

CLASSIFICATION OF PRESUMPTIONS

 Presumptions are classified into

a) Presumptions of law and
b) Presumptions of fact.

A) PRESUMPTION OF LAW
 A presumption of law is a fact that the court must presume exists.
 Presumptions of law are classified into two Irrebuttable and Rebuttable

i) Irrebuttable Presumptions of Law. (Conclusive Presumption)

 An irrebuttable presumption of law is a presumed fact which if fo und to exist
cannot be the contradicted by evidence.
 It is also known as a conclusive presumption
 Section 14 (1) (3) has examples of Irrebuttable presumptions of law .
PENAL OFFENCE FACTS Interpretation
CODE
14 General Rules of 14 (1)-A person under the age of 8
This is an irrebuttable presumption of
Criminal years is not criminally responsible
law; once it is established that the
for any acts or omission
Responsibility suspected offender is a child less than
(Immature age) eight years old no charges o ught to be
brought against him. No evidence can
be led to prove that he committed the
offence
14 General Rules of 14 (3)- A male person under the It follows that one it is proved that the
Criminal age of 12 is presumed to be boy is under twelve no evidence
incapable of having carnal
Responsibility knowledge
should thereafter be led to prove that
(Immature age) he has committed rape or defilement.

CASE EXAMPLES

Mwachia vs. Republic (1991) KLR 398 (Wambilyangab J).

Mumbi vs. Republic

The accused was around 8 years of age, she was charged with murder of an infant baby
girl of about (2-3years).The high court discharged the accused because there was
insufficient evidence to show that the accused was above 8 years. The court gave her the
benefit of doubt and presumed that she was below 8 years and under section 14 (1) of the
penal code released her.

ii) Rebuttable Presumptions of Law (Provisional Presumptions)

 A rebuttable presumption of l aw is one that can be contradicted by evidence.
 A particular fact is presumed to exist but the presumption can be displaced by
evidence to the contrary.
 Section 14(2) of the Penal Code, for example, creates a rebuttable presumption of
law. It states that a child under twelve is not criminally liable, unless it can be
proved that at the time of the offence he had capacity to know that he ought not to
do the act.
 It is also a rebuttable presumption of law that a marriage ceremony constitutes a
valid union. Once a marriage ceremony is proved, it is presumed that the resulting
union is valid, but evidence can be led to show that although there was a marriage
ceremony the resulting union was not valid.
 Section 29 of the Weights and Measures Act creates a rebuttable presumption of
law to the effect that possession of a measuring instrument is proof that the
possessor intended to use the instrument for trade purposes.

CASE EXAMPLE
Mwakima and three others vs. Republic (1989) KLR 530 (Bosire J)

Kariuki and another vs. Republic (2005) 2 LA 97 (Omolo, Githinji and Waki JJA).
PRESUMPTION OF FACT (PROVISONARY )

 This is a fact that the court may presume to exis t on the proof of another fact.
 1t presupposes the existence of two sets of facts.
 The court may on the proof of one fact or set of facts presume that the other fact
or set of facts are equally proved.

CASE EXAMPLE

Gathere s/o Ndegwa vs. Reginain (1954) EACA 220 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Briggs JA)
It was held that it was an essential ingredient of the offence of consorting, defined in
the Emergency Regulations, 1952, that from the circumstances of consortment a
reasonable presumption should arise that the person consorting intended or was
about to act or recently acted with the person with whom he had consorted in a
manner prejudicial to public safety o r preservation of public order. In th e other
words proof of consortment entitles the court to presume an intention on the part of
the accused to act jointly with his accomplice or to presume that the accused
previously acted jointly with his accomplice.

Prabhulal vs. Republic (1971) EA 52 (Law Ag VP, Lutta and Mustafa JJA)

Rex vs. Mpande s/o Ndele (1938) 5 EACA 44 (Sir Joseph Sheridan Ci, Sir Charles
Law CJ and Lucie-Smith J).

Gathega s/o Waweru vs. Regina!?? (1954) 21 EACA 349 (Sir Newnham Worley
Ag P, Sir Enoch Jenkins Ag VP and Briggs IA).

Regina vs. Ramzan Ahined Jamal (1955) 22 EACA 504 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Holmes J), with respect to false pretences, where it was
said that the intent to defraud may be inferred from th e facts.

Westcott vs. Republic (1969) BA 624 (Sir Charles Newbold P, Duffus VP and Law
JA).

 They are usually subject of express provision by legislation or implied by case

law.
 The principle of presumption of fact applies with the proof of mens rea.
 The court normally infers mens rea or presumes mens rea (that is the elements of
intent, knowledge, foresight, etc.)
 Mens rea is the mental element/intention/knowledge which is some times hard to
prove.
 You can only presume the mens rea from the accused cond uct
 From the proved facts or the elements of the actus reus.
 The prosecution leads evidence on the actus reus elements of the offence, from
which certain inferences may be drawn on the mens rea of the suspect.
  During the defence, the suspect is expected to explain his conduct.
 The prosecution only needs direct evidence for actus reus elements then the court
makes inference for mens rea
 For example if you witness a shooting incidence where the accused aimed a gun
and shot the deceased on the chest. From t his conduct the court will infer that the
accused actually had the intention to kill the deceased. Otherwise why did he use
a gun and why did he shoot the deceased on the chest?

CASE EXAMPLE

Cleopas Hamisi Oforo vs. Republic vs. Republic Mombasa CACRA No . 26 Of 1984
(Kneller JA, Chesoni and Nyarangi Ag JJA)

It was said that intention may be inferred from facts and/or surrounding circumstances of
the particular case. On the facts of the case the appellant had, after receiving a share of
the stolen money, given almost all of it to a third party with the intention of putting it out
of the police reach. From the facts the court inferred the intention to permanently deprive
the true or special owner of the stolen property.

W I Lockhart-Smith vs. United Republic(l 965) EA 211 (Weston J)

Karingo vs. Republic (1 982) KLR 213 (Law, Miller and Potter JJA)

Mkendeshwo vs. Republic (2002) 1 KLR 461 (Omolo, Shah and Bosire JJA)

Dhirajlal Ramji Khetani vs. R (1957) LA 563 (Sir Newnham Worley F, Briggs Ag VP
and Forbes JA).

 The criminal procedure is divided into two parts namely

a) The Prosecution Stage- where witnesses are called and the court decides if
there is enough evidence to put the accused on his defense.
b) The Defence Stage- where the accused is given a chance to displace any
fact that was raised during the prosecution or rebut all the presumptions
made at the prosecution stage.

 There as a defence counsel you have to listen carefully to the prosecution and take
note of all the presumptions of facts made, with a view of rebutting this evidence
(destroying and creating a doubt over the facts).
 From the suspect’s defence or explanation, the inferences made or the
presumptions of fact drawn by the court from the evidence presented by the
prosecution may be rebutted.
CASE EXAMPLE

Harry Amwai Atemesi vs. Republic

In this unrecorded case, the appellant was an employee of Kenya Breweries Limited as
an accountant handling the financial affairs at their Kisumu branch. At one time he was
suspected to be embezzling th e company’s funds and an audit was initiated. The auditor
required the appellant to account for all the funds he had received on behalf of his
employer.
There was an amount of money which was un -accounted for, hence he was suspended.
During his suspension a huge amount of money was found in a carton on top of a safe.
The court ruled that the fact the money was found in his office, created a rebuttable
presumption that he had stolen the cash, because it was unaccounted for.

(Theft is described taking or mov ement of something that does not belong to you from
where it is supposed to be to another).
He could have displaced this presumption by producing the money or accounting for it,
since he was not able to account or produce the money he was found guilty.

NB: The case has two glaring facts

a) Money moved from where it was supposed to be (the safe) to another
hence presumption of theft
b) He could not account for the money (meaning he could not displace
the rebuttable presumption of theft)

Mbithi s/o Kisoi and others vs. Reginam (1955) 22 EACA 484

The appellant was a police informer who attended an oath taking ceremony, and was
convicted of taking an unlawful oath without compulsion, apparently because he sought
to distance himself from the police after taking the oath.. The appellate court declined to
infer or presume from the proved facts of the appellant’s attendance at the oath taking
ceremony, of taking the oath and later his wishing to have nothing more with the police,
that he had a guilty intent. In the opi nion of the appellate court that presumption could
only be made upon proof that the appellant attended the oath -taking ceremony with mens
rea. Since it had not been established whether he attended as an agent provocateur
(informer) or with mens rea he was given the benefit of the doubt and his appeal against
conviction allowed.

John Nzoli and another vs. R (1961) BA 575

Njoroge vs. Republic (1983) KLR 197, (1982 - 88) 1 KAR 142 (Madan, Potter JJA and
Chesoni Ag JA)

The court inferred common intent ion on the part of the appellants from their joint
presence at the deceased’s home, their actions and the omission of either of them to
dissociate himself from the assault on the deceased.
On a charge of murder, for example, where the suspect is said to ha ve shot an arrow at
the deceased, an inference could be made or it would be presumed that the suspect could
foresee that shooting an arrow towards the deceased could cause the deceased’s death or
grave injury. It could be inferred that the suspect desired to kill the deceased by shooting
the arrow towards him that is presumption that he had the mens rea or intent to kill
would be displaced should the suspect explain that he was not shooting at the deceased,
but that he was in fact hunting and that the arrow had been fired at his prey,
unfortunately the arrow found the deceased who happened to be in the same general
direction with the prey. In such scenario, the actus reus elements would remain true, that
an arrow was shot and it killed the deceased, but then the target was not the deceased but
the animal that the suspect was hunting.

Rex vs. Ndundu Mwarachubi and others (1948) 1 5 BACA 1 0 I (Sir Barclay Nihil I
CJ, Edwards and Sir Gray John Gray CJ)

Lainainbulu s/o Makalya and another vs. (1958) EA 706 (Sir Kenneth O’Connor P,
Briggs VP and Gould JA).

Libainbula vs. Republic (2003) KLR 683, 2 EA 547 (Tunoi, O’Kubasu JJA and
Onyango Otieno JA), with respect to drawing inferences relating to motive.

Ndunguri vs. Republic (2001) BA 17 9

The court made a rebuttable presumption of fact that the appellant who was last person
to be seen with the deceased, and in whose latrine the deceased’s body was retrieved,
knew the circumstance under which the deceased died, and uph eld his conviction for
murder.

Otende Osejani vs. Uganda (1965) EA 627

Where it was held that the discovery of a woman, who was cohabiting with the appellant,
with another man by the appellant in circumstances which would have amounted to
adultery was such as raise a presumption that the k illing of the man by the appellant was
done under provocation, taking into account the longstanding concubinage between the
appellant and the woman.

 The application of the doctrine of possession of stolen property relies on the

principle of presumption of facts.
 The principle is that where an accused person has been found in possession of
property very recently stolen, in the absence of an explanation by him to account
for his possession, a presumption arises that he was either the thief or a handler by
way of receiving.
 His possession raises a presumption of his guilty connection with any further
crime that accompanied the theft, such as burglary, arson or murder.
 Hence the prosecution does not have to prove that you are the thief.
  It is rebuttable because this presumption can be displaced by an explanation on
how the property came to be in the accused possession.
 Other possession case also rely on presumption e.g. if you are in possession of
witch craft paraphernalia then there is a rebuttable presumpti on that you had the
intention to cause fear or harm to the public .
 Or even the possession of drugs and psychotropic substances creates a rebuttable
presumption that you are a drug dealer or peddler.

CASE EXAMPLES
 It also applies in recent possession of st olen goods

Muturi Njoroge Njoroge vs. Republic Nakuru CACRA No. 1 8 of 19 99

It was stated in that the doctrine of recent possession is a presumption of fact arising
under section II 9 of the Evidence Act.

 It also applies in cases of receiv ing or handling stolen property

Wamavuno vs. Uganda (2001) 2 EA 608 (Odoki CJ, Oder, Tsekooko, Mulenga and
Kanyeihamba JJSC)

The principle was restated in that a court could presume that a man in possession of
stolen goods soon after the theft was either the thief or had received the goods knowing
them to be stolen, unless he could account for his possession. It is open to the court to
hold that an unexplained possession of recently stolen goods was incompatible with
innocence

Rex vs.Rajabali s/o Ibrahim 20(1) KLR 71 (Sir Joseph Sheridan CJ and Bartley J)

Maganbhai Panchal vs. Rex 19(2) EACA 84 (Sir Jos eph Sheridan CJ and Bartley J)

Christopher Mwangi vs. Republic (1982 -88) 1 KAR 1170 (1986-1989) BA 382
(Nyarangi, Gachuhi JJA and Masime Ag JA)

Abdul Ali Kassam vs. Reginam (1955) 22 EACA 530 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Lowe J)

Karingo vs. Republic (1982) KLR 213 (Law, Miller and Potter JJA).

 It also applies to murder cases

Ekai vs. Republic (1981) KLR 569 (Law , Potter JJA and Simpson Ag JA )

Wambura vs. Republic (1990 -1994) EA 609 (Nyalali CJ, Ra madhani JA and
Mapigano Ag JA)
Michael Mhuio vs. Republic (1975) LRT 72 (Biron J)

Mwani vs. Republic (2005) 2 KLR 371 (Tunoi, O’Kubasu and Githinji JJA)

Andrea Obonyo and others vs. R (1962) BA 542 (Sir Ronald Sinclair P, Sir Alastair
Forbes VP and Sir Trevor Gould JA)

Shabani s/o Juina alias Shabani s/o Nassero alias Shabani s/o Hassan vs. Reginain
(1953) 20 EACA 199 (Sir Barclay Nihill P, Sir Newnham Worley VP and Mayers J)

Mwaula and another vs. The Republic (1980) KLR 127 ( Law, Miller and Potter JJA)

Mkendeshwo vs. Republic (2002) 1 KLR 461 (Omolo, Shah and Bosire JJA)

 It also applies in respect of the presumption that the possessor of property

recently stolen in a violent or armed ro bbery is the robber.

Kariuki and another vs. Republic (2005) 2 EA 97 (Omolo, Githinji and Waki JJA )

Rex vs Yego s/o Kitwn (1937) 4 EACA 25 (Sir Joseph Sheridan CJ, Sir Sidn ey
Abrahams CJ and Hall CJ)

Arum vs. Republic (2006) 2 EA 10 (Tunoi, O’Kubasu an d Onyango Otieno JJA).

 Further reading can be obtained Kenya’s outline on Criminal Law Pg 391

Rex vs. Hassani s/o Mohanied alias Kinyonyoke (1 948) 1 5 EACA 121 (Sir Barclay
Nihi II CJ, Edwards CJ and Sir John Gray CJ)

It was held that the presumption of recent possession is a presumption of fact and not an
implication of law.

Francis Barrallon vs. Rex 119 (Maxwell Ag CJ and Sheridan J)

Maganbhai Panchal vs. Rex 19(2) EACA 84 (Sir Joseph Sheridan CJ and Bartley J)

Rex vs. Bakari /o Abdulla (1949) 16 EACA 84 (Sir Barclay Nihill Ci, Sir G Graham
Paul CJ and Edwards CJ)

Karanja vs. Republic (1983) KLR 501 (1975 -1985) EA (1982-88) 1 KAR 355 (Hancox,
Chesoni JJA and Platt Ag JA).
Buzoya and another vs. Republic (1975) BA 215 (Law Ag P, Mustafa Ag VP and
Musoke IA)

It was stated in that this includes the burden of proving that the accused is capable of
forming the necessary intent.

Malungu Kieti vs. R (1959) BA 797 (Forbes VP, Gould and Windham JJA)

It was said that the burden is not discharged where a probability emerges from the
evidence that the accused was incapable of forming that intent.

Uganda vs. Joseph Sempala Mukasa (1975) HCB 210 (Butagira Ag I)

Malingi vs. Republic (1989) KLR 225 (Bosire J)

It was emphasized that the doctrine of recent possession is a rebuttable presumption.

 In other cases of possession too presumptions of fact are also made from
proof of possession that the accused has guilty knowledge.

Oremo vs. Republic (1991) KLR 221 (Gachuhi, Masime JIA and Omolo Ag JA)

It was held that the court is entitled to draw an inference that an accused person in
possession of false documents which he uttered to his employer in order to obtain a
payment to himself must have known the documents were false.
2. BURDEN AND STANDARD OF PROOF
 The issue of proof is a matter of evidence and procedure.
 It raises the question of who has the burden to prove a certain fact and to what
standard?
 The general rule is that the burden of proof through out lies on the state.
 But that is not to say that the accused does not have any.
 There are two types of burden
a) Persuasive Burden
b) Evidential Burden
 The party with the burden of proof is said to have a persuasive burden i.e to
persuade the court.
 On the other hand evidential burden is the burden to lead evidence to proof a
certain fact or preposition.
 The state has both persuasive and evidential burden, because the burden of proof
lies with the state through out the case.
 In few instances an accused person might have the burden of proof.e.g
a) In a case where by the accused is accused of possession of recently stolen
goods there is a rebuttable presumption that he is the thief.In this case the
accused has a chance to displace this presumption by explaining the
circumstances under which he came to be in possession of the said goods,
in such a situation the accused has an evidential burden to proof those
circumstances.
b) The law presumes that every one is sane until proved otherwise. So if the
accused is pledging insanity in his defence,then he has the evidential
burden to prove the insanity.

CASE EXAMPLES

Republic vs. Subordinate Court of the first Class Magistrate at City Hall, Nairobi and
another, ex parte Yongindar Pall Sennik and another Retread Lirnited (2006) 1 EA
330 (Nyamu J)

It was stated that when a person is bound to prove the existence of any fact it is the law
that the burden of proof lies on that person. The general rule is that the burden proof
rests throughout with the state. This is founded on the maxim that he who alleges must
prove. The principal burden is on the accuser, and in criminal cases the accuser is
usually the state. Since the burden lies throughout on the state, the accused has no
burden or onus of proof except in a few cases where he would be under the burden to
prove certain matters.
Republic vs. Subordinate Court of the first Class Magistrate at City Hall, Nairobi and
another, ex parte Yougindar Pall Sennik and another Retread Limited (2006) 1 EA 330
Nyamu J),

It was stated that the burden can be shifted where th e law, pursuant to section 109 of the
Evidence Act, provides for it. This can be done by Parliament by a law shifting the
burden of proving certain facts, and the same is not a constitutional issue where any such
other law provides for it.

Republic vs. Nyambura and four others (2001) KLR 355 (Etyang J) and All Ahined
Saleh

A.’ngara vs. R (1959) BA 654 (Forbes VP, Gould and Windham JJA)

Seinfzikwe and others vs. Republic (1976 -1985) BA 536 (Wambuzi, Mustafa and
Musoke JJA)

Kiyengo vs. Uganda (2005) 2 E A 106 (Oder, Tsekooko, Karokora, Mulenga and
Kanyeihamba JJSC)

Sekitoleko vs. Uganda (1967) EA 531 (Sir Udo Udoma CJ)

Mkendeshwo vs. Republic (2002) 1 KLR 461 (Omolo, Shah and Bosire JJA).

A) BURDEN OF PROOF ON THE STATE

 The burden on the state is to prove the charge against the accused person beyond
reasonable doubt.
 The standard of proof is beyond reasonable doubt.
 This includes the burden to prove facts which justify the drawing of the inference
from the facts proved to the exclusion of any reasona ble hypothesis of innocence.
 Such burden never shifts to the accused.
 The state has to prove that the accused has committed the actus reus elements of
the offence charged, with the mens r ea required for that offence.
 Proof of the actus reus of the offence requires proof of all its elements.
 The state has to discharge its burden of proof on any given issue, and loses on that
issue if upon the evidence a doubt is cr eated in the mind of the court.
 Such doubt is resolved in favor of the accused person, and the state is said to have
failed to prove its case beyond reasonable doubt.
 Since the burden is proof of most of the issues in the case beyond reasonable
doubt, the guilt of the accused must be established beyond reasonable doubt.
 CASE EXAMPLES

 This includes the burden to prove facts which justify the drawing of the
inference from the facts proved the exclusion of any of any reasonable
hypothesis of innocence, as held in

Msembe and another vs. Republic (2003) KLR 521 (Mbaluto and Kubo JJ)

 Such burden never shifts to the accused.

Manyara s/o Malakoni vs. Reginam (1955) EACA 502 (Sir Barclay Nihill P, Sir
Newnharn Worley VP and Holmes J),

Rex vs. Kipkening arap Koske and another (1949) 16 EACA 135 (Edwards CJ, Sir
John Gray CJ and Ainley J)

Modakaa vs. Republic (2000) KLR 411 (Chunga Ci, Lakha and Keiwua JJA)

Dhalay vs. Republic (1995-1998) 1 EA 29 (Omolo, Tunoi JJA and Bosire Ag JA)

Ramanlal TrambaklalBhatt vs. R (1957) EA 332 (Sir Newnham Worley P, Sir Ronal d
Sinclair VP and Bacon JA)

Obar vs. Nyarongo (1955)22 EACA 422 (Sir Barclay Nihill P, Sir Newnham Worley
VP and Briggs JA).

 The accused must be convicted of concrete evidence, not mere suspicion.

Rex vs. Jsraili Epuku s/o Achietu 166 (Abrahams CJ, A P, Law CJ ahd.Lucie-.Smith
Ag CJ)
 In some cases where the facts proved are such as to raise a probable
presumption of guilt the court is entitled, in the absence of any
explanation, to convict.

Hatibu bin Rashid and another vs. The Quee n KLR 172 (Rudd and Forbes JJ)

Republic vs. Gachanja (2001) KLR 428 (Etyang J).

Guyo Fora Duba vs. Republic Nakuru CACRA No. 89 of 1999 (Tu noi, Laklia and
Keiwua JJA)

Moharned and three others vs. Republic (2005) 1 KLR 722 (Osiemo J).

Gupta vs. Republic (1983) KLR 381 (1982 -1988) 1 IKAR 56 (Law , PotterJJ and
Hancox Ag J)
JacinaNjokiNdirangu vs. Republic Nairobi CACRA No. 262 of 2007 (Omol o, Bosire
and Aluoch JJA)

Rex vs. John s/o Ngona and three others (1944) 11 EACA 119 (Sir Joseph Sheridan
CJ, Sir Norman Whitley CJ and Sir John Gray CJ)

On the issue of the age of the accused, for example, it was held that when on a capital
charge the age of an accused person is a matter of possible doubt the burden of proving
that the accused is above the age of eighteen always remains on the prosecution, and if
the state fails to prove beyond reasonable doubt that the accused is above that age, the
accused must be given the benefit of that doubt.

R vs. Kirzo (1942) 20 KLR 60 (Thacker J)

Dhaiay vs. Republic (1995-1998) 1 EA 29 (Omolo, Tunoi JJA and Bosire Ag JA)

Kamau s/o Muga vs. R (1963) EA 172 (Rudd Ag CJ and Edmonds J)

Kioko vs. Republic (1983) KLR 289 (1982 -88) 1 IKAR 157 (Madan, Kneller and
Hancox JJA)

Okethi Okale vs. Republic (1965) EA 555 (Crabbe, Duffus and Spry JJA)

It was stated that the burden of proof in criminal proceedings is throughout on the
prosecution, and it is the duty of the trial court to look at the evidence as a whole.

Mwaula and another vs. The Republic (1980) KLR 1 27 (Law, Miller and Potter JJA)

It was stated that mere silence by the accused person does not of necessity invite a
finding that the prosecution has established its case beyond all reasonable doubt. The
fact that the accused person takes no part at all in the proceedings after pleading not
guilty does not relieve the prosecu tion of the burden of proving th e inculpatory facts
beyond all reasonable doubt.

 The leading judicial pronouncement on the burden of on the state to prove a

criminal charge beyond all reasonable doubt was made by the House of Lords
in the case of Woolmington vs. Director of Public Prosecutions (1935) AC
462. The court said:’ Throughout the web of the English criminal law one
golden thread is always to be seen, that it is the duty of the prosecution to
prove the prisoner’s guilt.., if, at the end of the who le case there is a
reasonable doubt, created by either the prosecution or the prisoner..., the
prosecution has not made out its case and the prisoner is entitled to an
acquittal.’

 A distinction is drawn between the persuasive burden and the evidentia l

burden.
  Burden of proof is the persuasive burden that is the burden of persuading the
court.
 The evidential burden refers to the burden to adduce evidence to persuade the
court.
 Where burden of proof rests on a party, then they incur the persuasive burden
to convince the court, and to discharge that burden they incur a burden to lead
evidence in support of their case.
 This burden is recognized under section 111 of the Evidence Act, Cap 80
Laws of Kenya).

Jacinta Njoki Ndirangu vs. Republic Nairobi CACRA No. 262 of 2007 (Ornolo, osire
and Aluoch JJA)

The Court of Appeal indicated that whereas the burden of proof in all cases remains on
the state, to establish their case beyond reasonable doubt, and that the burden never
shifts to the accused, there is the evidential burden which shifts de pending on the
circurnstances.

 In the criminal process there are two stages in trial process, the prosecution’s
case and the defence case.
 The prosecution has the persuasive and evidential burden, during the
presentation of the prosecution’s case to adduce evidence suffi cient to
establish a prima facie case of the accused’s guilt.
 To establish a case against the accused, the state has the burden of adducing
evidence to prove the charge beyond reasonable doubt and to disprov e any
defence put forth by the accused.
 It is upon the state establishing a prima facie case or adducing sufficient
evidence of the actus reus and mens rea that the accused his put on his
defence.
 Upon being put on his defence, the accused incurs the evi dential burden of
leading evidence to displace any presumptions of fact drawn from the
evidence adduced by the prosecution.
 The accused person is entitled to any doubts arising from the prosecution’s
case, and especially where the evidence of the defence r aises any doubts about
their guilt.
 1t was however cautioned in that an accused person is not obliged to adduce
any evidence to support his defence or explanation.

CASE EXAMPLES

Muiruri vs. Republic (1983) KLR 205 (Abdullab J)

Mboche and another vs. Republic (1973) BA 95 (Simpson and Muli JJ)
Kioko vs. Republic (1983) KLR 289 (1982 -88) 1 KAR 157 (Madan, Kneller and Hancox
JJA)

Nyambura vs. Republic (2006) 2 EA 248 (O’Kubasu, Waki and Deverell JJA)

Sekitoleko vs. Uganda (1967) EA 531 (Sir Udo Udom a Ci)

Republic vs. Chivatsi and another (1989) KLR 333 (Bosire J).

Kongoro alias Athumam s/o Mrisho vs. Regmam (1956) 23 EACA 532 (Sinclair VP,
Rudd and Mayers JJ)

 The prosecution may, under section 212 of the Criminal Procedure Code, call
evidence to rebut defence evidence where the accused introduces a new matter
while presenting his defence case.
 However, it was cautioned that the prosecution should only be allowed to call
rebuttal evidence after the close of the defence only in cases where the evide nce
in rebuttal is evidence which the prosecutor could not by exercise of reasonable
diligence have foreseen.

Ali Hassan Mohammed vs. R (1959) BA 606 (Rudd Ag CJ and Harley J)

Mbugua Kariuki vs. The Republi c (Law, Wambuzi and Potter JJA)

It was emphasised in that the burden of proof remains on the state throughout, to
establish the case against the accused beyond reasonable doubt. Where the defence
raises an issue such as provocation, alibi, self -defence, the burden of proof does not shift
to the accused, instead the prosecution must negate that defence beyond reasonable
doubt and the accused assumes no onus in respect of any such defence.

Longinus Komba vs. Republic (1973) LRT 127 (Onyiuke J)

It was stated that an accused person ought to be convicted on the strength of the
prosecution’s case and not on the weakness of the accused’s defence, as the burden of
proof. in criminal cases, is on the state to establish its case beyond reasonable doubt.32
The fact that the accused may have told lies to the cour t rendering his defence weak does
not absolve the trial court from ascertaining from the whole evidence whether the offence
with which he is charged has been proved beyond reasonable doubt.

Ernest Asarni Bwire Abanga alias Onyango vs. Republic Nairobi CAC RA No. 32 of
1990 (Tunoi, Lakha and Keiwua JJA)

It was stated that where an accused person tells an obvious and deliberate lie which is
disproved or disbelieved, then such a lie is capable of providing corroboration to other
independent available evidence . In that case the lies that the appellant told to the father
of the deceased and to the police as to his whereabouts and that of the deceased were
treated as being capable of providing corroboration and credence to the circumstantial
evidence that he knew the circumstances of the deceased’s death.

Oremo vs. Republic (1991) KLR 221 (Gachu hi, Masime JJA and Omolo Ag JA)

It was held that the prosecution is not required to negative each and every imaginable
possibility, but only to negative such possibilitie s as are reasonably raised by the
defence.

Festo Shirabu s/o of Musungu vs. R (1955) 22 EACA 454

Oloo s/o Gai vs. R (1960) EA 86.

May vs. Republic (1 981) KLR 129 (Law, Miller and Potter JJA)

It was held that it is not the duty of the prosecution to investigate possible defences,
except in the case of a disclosed alibi.

Rex vs. Kanji Gordhan (1948) 15 EACA 84 (Sir Barclay Nihill CJ, Edwards CJ and
Ainley J)

Wibiro alias Musa vs. R (1960) EA 184 (Sir Kenneth O’Connor P. Forbes VP and
Gould JA)

It was held that the absence of any acceptable defence cannot be treated as a factor
strengthening the evidence for the prosecution, and a court adopting that approach
would be misdirecting itself on onus of proof.

 Corroboration was defined as other evidence t o give certainty or lend

support to a statement of fact.

Mukungu vs. Republic (2002) 2 EA 482 (K wach, Bosire and O’Kubasu JJA)

Rex vs. Taibali Mohamedbhai (1943) 10 EACA 60 (Sir Joseph Sheridan CJ, Sir
Norman Worley CJ and Mark Wilson Ag CJ)

Rex vs. Manual Ishwerlal Purohil (1952) EACA 58 (Sir Joseph Sheridan CJ, Sir
Norman Whitley CJ and Sir Henry Webb CJ)

Mutonyi vs. Republic (1982) KLR 203 (Madan, Miller and Potter JJA)

It stated that one of the important elements of corroboration is that it affect s an accused
person by connecting him or tending to connect him with the crime and confirming in
some material particular, not only the evidence that the crime has been committed but
also that the accused committed it.
Geoffrey Nguku vs. Republic (1982 -88) 1 KAR 818 (Hancox JA, Platt and Gachuhi Ag
JA)

Modakaa vs. Republic (2000) KLR 411 (Chunga CJ, Lakha and Keiwua JJA).

Okeyo Kigeni vs. Republic (1965) EA 188 (Crabbe, Duffus and Spry JJA )

B) BURDEN OF PROOF ON THE ACCUSED PERSON

 The burden of proof rests always with the prosecution, and there is never a burden
on the accused to disprove the charge.

Kioko vs. Republic (1983) KLR 289 (1982 -88) 1 KAR 157 (Madan, Kneller and Hancox
JJA)

It was held that the law does not require the accused to prove hi s innocence,7 and
therefore it is erroneous for a court to refer to certain acts and omissions of the accused
as being inconsistent with his innocence.

 It is only in a few exceptional cases that the accused is burdened wIth proof. The
standard of proof where the burden of proof is on the accus ed is on a balance
probability.

Mwakima and three others vs. Repu blic (1989) KLR 530 (Bosire J)

It was stated in that where the law places the burden of proof on the accused person the
standard of proof is never, un less the law clearly says so, as high as that on the
prosecution to prove a charge beyond reasonable doubt. In that case, the trial court had
erroneously held that the duty on the accused was to explain the circumstances of his
possession of the item in qu estion was beyond reasonable doubt.

 There are several types of cases where the burden of proof of certain exculpating
facts is cast on the accused.

Mkendeshwo vs. Republic (2002) 1 KLR 46 1 (Omolo, Shah and Bosire JJA)

It was said that generally the accused assumes no legal burden of establishing his
innocence, except for certain limited cases where the law places a burden on the accused
to explain matters which are peculiarly within his own personal knowledge.

Prabhulal vs. Republic (1971) EA 52 (La w Ag VP, Lutta and Mustafa JJA)

It was held that before there is burden of proof on the accused the prosecution must lay
some factual foundation.
Lubogo and others vs. Uganda (1967) EA 440 (de Lesta ng VP, Duffus and Spry JJA)

Mwihanzbi 5/0 Chinyele and a nother vs. Regina (1953-57) 2 TLR 128 (Law Ag J),
Festo Shirabu s/o of Muswigu vs.R (1955) 22 EACA 454

Mbugua Kariuki vs. The Republic (L aw, Wambuzi and Potter JJA)

Oloo s/a Gal vs. R (1960) EA 86,Muiruri vs. Republic (1983) KLR 205 (Abdullah I)

Obar vs. Nyarongo (1955) 22 EACA 422 (Sir Barclay Nihill P, Sir Ne wnham Worley
VP and Briggs JA)

Kiyengo vs.Uganda (2005) 2 EA 106 (Oder, Tsekooko, Karokora, Mul enga and
Kanyeihamba JJSC)

Republic vs. Nyanibura and four others (2001) KLR 355 (Ety ang J).

Cheminingw’a vs. Reginarn (1956)23 EACA 451 (Sir Newnham Worle y P, Briggs Ag
VP and Bacon JA)

 In cases where the accused raises the defence of intoxication.

Macharia vs. Republic (2001) KLR 155 (Omolo, Shah and O’Kubasu JJA)

Mbunde vs. Republic (1969) EA 475 (B iron J)

Hatibu bin Rashid and another vs. The Queen KLR 172 (Rudd and Forbes JJ)

 The accused person has the burden of adducing evidence to support any defence
that he may wish to raise. This would be the evidential burden, not the persuasive
burden. He is not allowed to raise a specific defence unless there is some
evidence, however slight or weak, which supports it.

Ali Ahmed Saleh Aingara vs. R (1959) EA 654 (Forbes VP, Gould and Windham JJA)

Okero vs. Republic (1981) KLR 459 (Law, Miller and P otter JJA).

Ali Hassan Mohammed vs. R (1959) EA 606 (Rudd Ag CJ and Harley J)

Republic vs. Gachanja (2001) KLR 428 (Etyang J).

AREAS/CASES WHERE THE ACCUSED HAS THE BURDEN OF PROOF
 There are several areas where the accused person has the burden of proof these
are
1) Insanity
2) Statutory Burden
3) Negative Averment
 4) Possession Cases
5) Corruption Cases
6) Murder Cases

1) INSANITY
 Where the accused pleads insanity or raises the defence of insanity, the burden of
establishing the defence of insanity rests with him.
 The general principle, as stated in section 2 of the Penal Code, is that every
person is presumed sane until the contrary is proved.
 Since it would be the accused alleging insanity, the burden of proving the
allegation would rest with him.

In Godiyano Barongo s/a .Raigwire (1952) 19 EACA 229 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Bourke J)

It was stated that the burden resting on the accused when attempting to rebut a natural
presumption which must prevail unless the contrary is proved will never be so heavy as
that which rests upon the prosecution to prove the facts which they have to establish and
it will not be higher than the burden which rests on a plaintiff or defendant in civil
proceedings.

Okethi Okale vs. Republic (1965) EA 555 (Crabbe , Duffus and Spry JJA)

Kimani vs. Republic (2000)2 EA 417, K.LR 303 (O molo, Tunoi and Lakha JJA).

Cheininingw’a vs. Reginain (1956) 23 EACA 451 (Sir Newnham Worley P, Briggs Ag
VP and Bacon JA)
where the accused pleads intoxication causing temporary insanity.

Kimani vs. Republic (2000) 2 EA 417, KLR 303 (Omolo, Tunoi and Lakha JJA).

Rex vs. Kabande w/o Kihigwe (1948)15 EACA 135 (Sir Barclay Nihill CJ, Edwards CJ
and Lloyd-Blood J)

Rex vs. Noormahorned Kanji 34 (Sir Joseph Shéridah çJ, Sir Roger Hall CJ and Law
CJ)

George Ngugi Mungai vs. Republic Nyeri CACRA No. 122 of 2000 (K wach, Bosire and
O’Kubasu JJA)

The Republic vs Jeremano M’Ngai (1977) KLR 18 (Sachdeva J)

Kongoro alias Athumani s/o Mrisho vs. Reginain (1956) 23 EACA 532 (Sincl air VP,
Rudd and Mayers JJ)
Marandu M’Arimi vs. Republic (1982-88) 1 KAR 161 (Madan, Potter and Hancox
JJA).

Rex vs C W Ross KLR 148 (Sir Joseph Sheri dan CJ, Law Ag CJ and Thomas J)

Where it was held that for the accused to exempt himself from criminal responsibility for
murder he must satisf’ the court beyond any doubt that he was insane in the legal sense
at the time of committing the act, is not good law.

Liundi vs. Republic (1976-1985) EA 251 (Mustafa JA)

It was explained that the accused must show, on the evidence , that insanity is more likely
than sanity, and it would be sufficient if the accused produces such a preponderance of
evidence as to show that the conclusion he seeks to establish, that he was insane at the
time he committed the offence, is substantially most probable of the possible views of the
facts.

2) STATUTORY BURDEN
 A statute may expressly place a burden upon the acc used to prove a certain fact.
 For example, section 323 of the Penal Code, which creates the offence of having
or conveying suspected s tolen property, casts a burden of proof on the accused of
satisfying the court of how he came by the property. In such case, the state still
has the burden to prove the elements of the offence beyond reasonable doubt, and
it is only after the state dischar ges that burden that the burden shifts to the
accused.
 Section 29 of the Weights and Measures Act places the burden of proof on an
accused person found in possession of a measuring instrument to explain that the
instrument he is found in possession of w as for use for trade purposes.
 Section 50(c) (ii) of the Traffic Act places the burden of proving that a notice of
intended prosecution was invalid on the accused person.
 Where an act creates a burden then the accused person has to prove that it is to the
contrary.
 The standard of proof in this case is a balance of probability

Vithaldas Dayabhai Lodhia vs. Regina (1953-57) 2 TLR 103 (Mahon J)

It was held that in cases where the accused is charged with the unlawful possession of
something, and the prosecutio n produces ample evidence to prove that the accused was
found in such possession, the onus shifts to the accused of proving that his possession
was lawful Or that he was without knowledge of the possession . In that case the appellant
was charged with being in unlawful possession of raw gold contrary to section 8 of the
Gold Trading Ordinance. Section 8 of the Ordinance provided that; ‘If any raw gold is
found in tlie possession, power, or control of any person that person shall , unless he
proves that he obtained it lawfully, be guilty of an offence against this Ordinance.’ He
was found by the court to have been in possession of raw gold, whereupon the court held
that the onus of proving that his possession of the gold was lawful had shifted to him, but
he had failed to give an explanation of his possession to the court.

 It also applies in cases where section 104 of the Evidence Act is relevant, which
provides that the accused has the burden of proving the existence of
circumstances bring him within any exce ption or exemption from, or qualification
to, the operation of the law creating the offence with which he is charged and the
fact of proving a fact especially within the knowledge of such a person is on him.

Regina vs. Lesororuwa s/o Mbario (1953 -57) 2 TLR 45 (Abernethy J)

Where the accused was convicted of killing an animal contrary to section 13(b) of the
National Parks Ordinance. Section 13 (b) of the National Parks Ordinance provided that
‘It shall not be lawful for any person except with the permiss ion of the Trustees or of an
officer or a servant of the Trustees duly authorized by them to give such permission,
within a national park, to kill, injure, capture or disturb any animal or take or destroy
any egg or nest.’ On appeal, the High Court, dismis sing the appeal, held that if a person
killed animals destroying his crops or killing his cattle in national park without
permission the onus was on him to prove that he had the right to do so.

In Bombay Trading Stores (U) Limited and another vs. R (1962 ) EA 589 (Sir Ronald
Sinclair P, Sir Alastair Forb es VP and Sir Trevor Gould JA)

It was held that whether a statute by way of an exception casts the burden of proof on the
accused person is a matter of construction of the legislation as a whole. On the
construction of the relevant provisions of the relevant provisions of the Pharmacy and
Poisons Ordinance, the court found that the statute created an exception affecting the
burden of proof. The enactment placed the burden on the accused of proving that they
were authorized to sell Part I poison, and also that the customer to whom they sell the
poison is a person to whom they were authorized to sell Part I poison to under the
provisions of the statute.

El Mann vs. Republic (1970) EA 24 (Sir Charles Newbold P , Duffus VP and Law JA)

Mwakima and three others vs. Republic (1989) KLR 530 (Bosire J)

The Republic vs. Wahome (1977) KLR 153 (Kneller and Sa chdeva JJ).

M K Bhandari vs. R (1961) EA 367 (Sir Ronald S inclair CJ and Pelly Murphy J)

Where it was held that a burden of proof is placed on the owner of a motor vehicle to
show that he was not in charge of the vehicle when he fails to comply with the
notification requiring him to attend court to answer the charge.

Samson Ngure s/o Matu vs. R (1963) BA 660 (Rudd and Wicks JJ)
Greene vs. Republic (1970) EA 62 (Mwendwa CJ and Chanan Singh J) and (Sir
Charles Newbold P, Duffus Vp and Spry JA).

Attorney-General vs. Vithaldas Dayabhai Lodhia (195 3-57) 2 TLR 80 (Crawshaw J)

Gamalieri-Mubito vs. R (1961) EA 24 4 (Sir Kenneth O’Connor P, Gould Ag VP and

Newbold JA).

Okero vs. Republic (1981) KLR 459 (Law, Miller and Potter JJA)

It was held that where a statute lays down a rule and provides an exception to that rule,
the burden of proving that the accused was wi thin the exception lies with the accused.
The appellant in the matter had been convicted of using a motor vehicle at night, under
section 119 (1) (n) of the Traffic Act, which exempted vehicles carrying products
belonging to the Kenya Breweries Limited. Th e appellant pleaded that he fell under the
exception as he was an agent of Kenya Breweries Limited. It was held that the state had
no led evidence to disprove the appellant’s contention. The appeal was allowed.

Abdul Hussein vs. R (1959) EA 105 (Sir Ronald Sinclair CJ and Rudd J)
Where it was held on the facts of the case that the prosecution had established a prima
facie case against the appellant and consequently the burden lay on him of proving the
existence of circumstances which would exempt him from the operation of the by-law that
he was charged of contravening.

3) NEGATIVE AVERMENT
 A negative averment is a statement of fact expressed in the negative, such as the
doing of something without a licence or without lawful authority.
 Once the state proves the positive elements in the charge, the accused then has to
disprove the negative element by producing affirmative counter evidence.

Hatibu bin Rashid and another vs. The Queen KLR 172 (Rudd and Forbes JJ)

Where the appellants were convicted of moving maize without a permit, the court said
that where the facts proved are such as to raise a probable presumption of guilt the court
is entitled, in the absence of any explanation, to convict, the court used the example of
possession cases, where a person is proved to have been in possession of property which
has recently been stolen is charged with the theft of the property, in the absence of a
reasonable explanation as to how a person came by the property the c ourt may properly
convict him.

 Another example, in the case of driving a motor vehicle without a licence, the
state has to prove the fact of driving and allege that he drove without a licence,
and the accused has to prove that he had a licence at the material time.

John Nzoli and another vs. R (1961) EA 575 (Sir Ronald Sinclair CJ and Rudd J)
 The appellant had been convicted of carrying fare paying passengers without a public
service licence in force. The conviction was upheld on appeal. It was found that the
vehicle had carried a passenger or passen gers on hire or reward, and the onus was
therefore on the appellant to show that there was a public service vehicle licence in force,
and since the onus was not discharged the appellant was guilty as charged.

 In cases of doing something without authority , the state has to prove that the
accused did something that required authority and allege that the accused had no
authority, and then the accused incurs the burden of provi ng that he had such
authority.
 For example, the offence created under section 96 of the Penal Code envisages a
person doing something, without lawful excuse, the burden of proof of which lies
upon him, which amounts to incitement to violence and disobedience.

PENAL OFFENCE FACTS Interpretation

CODE
96 Unlawful 96-Any person, who without lawful section 96 of the Penal Code
Assemblies, Riots excuse, the burden of proof envisages a person doing something,
whereof, lies upon
and Other him,utters,prints or publishes any
without lawful excuse, the burden of
Offences Against words or does any act or thing, proof of which lies upon him, which
Public Tranquility indicating or implying that it is or amounts to incitement to violence and
(Incitement to might be desirable to do or omit to disobedience
violence and do any act the doing or omission of
which is calculated
disobedience of a) to bring death or physical injury
the law) to any person, to any class,
community or body of persons
b) to lead to the damage or
destruction of property. Or
c) to prevent or defeat by violence
or by other unlawful means the
execution or enforcement of any
written law or to lead to defiance
or disobedience of any such law or
of any lawful authority

is guilty of an offence and is liable

for imprisonment for a term not
exceeding 5 years.

Timiseo Karyarugolcwe vs. R (1957) EA 345 (McKisack CJ).

Bhaloo vs. Republic (1970)EA 591 (Georges CJ)

Williams vs Russel (1933) 29Cox CC4

According to Talbot J “where it is an offence to do an act without lawful authority, the
person who sets up the authority must prove it, t he prosecution need not prove the
absence of lawful authority ”

4) POSSESSION CASES
 Where the doctrine of recent possession is applied, the onus is cast on the accused
to give a reasonable explanation which may be reasonably true as to how he came
to be in possession of the goods.

Thomasi Mwanjoka vs. Republic (1975) LRT 141 (Mnzavas J)

It was pointed out that the shift of onus occurs only after the court has found that the
possession was in fact sufficiently recent to the theft, and even then a convictio n should
be based on the strength of the prosecution case and not on the weakness of the defence.

 The onus of proof on the part of the accused also arises in all other cases of
possession.

In Gupta vs. Republic (1983) KLR 381 (1982 -1988) 1 KAR 56 (Law, P otter JJ and
Hancox Ag J)

It was said to apply in the case of possession of un -customed goods contrary to section
185(d) (iii) of the Customs and Excise Act, where it was held that once the prosecution
has proved guilty knowledge on the part of the accuse d of possession of un-customed
goods, the onus shifts to the defence to give an explanation to show absence of guilty
knowledge.

 If the defence gives a convincing explanation it becomes the duty of the

prosecution to adduce evidence to demolish such expla nation to re-establish guilty
knowledge beyond reasonable doubt.

Kariuki Kamau and others vs. Reginam 202 (Sir Barclay Nihill P, Sir Newnham
Worley VP and Briggs JA),

It was held that where possession of a firearm is proved against an accused person, th e
onus is upon him to prove lawful authority or excuse for such possession.

Remtullah Panju vs. Rex (1943) 10 EACA 94 (Sir Joseph Sheridan CJ, Sir Norman
Worley and Gray CJ)

It was held that for the offence of being in unlawful possession of somethi ng, the burden
of proof is on the accused to show that he came into possession of the thing lawfully, and
not upon the prosecution to show that the accused was knowingly in unlawful possession.
Ismail Abdulrehman vs. Reginam (1953) 20 EACA 246 (Sir Barcla y Nihill P, Sir
Newnham Worley VP and Mahon J)

It was however pointed out that it is only in connection with the nature or quality of the
accused’s possession that the onus of proof shifts to the accused to give an account to the
satisfaction of the court as to how he came by the goods; there is no shifting the onus in
respect of the fact of possession.

LeonardArthur Barton vs. Rex KLR 75 (Sir Joseph Sheridan CJ and Bartley J)

Warnburavs. Republic (1990 -1994) EA 609 NyaIali CL Ramadhani JA and Mapigano

AgJA) and Tenywa vs. Uganda (1967) EA 102 (Sir Udo Udoma CJ)

5) CORRUPTION CASES
 In corruption cases the accused bears the burden of proving that advanta ge was
not accepted corruptly.

Haining vs. Republic (1970) EA 620 (Spry VP, Law and Lutta JJA)

It was held that the accused must prove on a balance of probability that he did not accept
the advantage corruptly as an inducement or reward.

6) MURDER CASES
 In murder cases where it is established that the accused person was the last seen
with the deceased, the accused incurs the burden of explaining the circumstances
tinder which he parted with the deceased, otherwise a presumption arises that the
deceased knew the circumstances under which the deceased died.

Ndunguri vs. Republic (2001) EA 179 (Omolo, Sha h arid Bosire JJA)

Where evidence showed that the appellant was the last person to be seen with the
deceased and the deceased’s body was later retrieved from the appellant’s latrine. This
was a matter of circumstantial evidence, where the evidence of the circumstances pointed
to the guilt of the appellant, and the court held that the appellant had the onus of
explaining the circumstances under which he and the deceased parted, since this
knowledge was peculiarly within his knowledge. He was unable to disch arge the burden
and his conviction of murder was upheld.

Ernest Asami Bwire Abanga alias Onyango vs. Republic Nairobi CACRA No. 32 of
1990 (Tunoi, Lakha and Keiwua JJA)

The appellant was the last person who was seen with deceased when he was still alive.
He was thereafter found dead under a bed in a room at a hotel which had been booked by
the appellant. There was proof beyond all reasonable doubt that the deceased was killed
in that room and the appellant was the only person in actual physical charge of t he room.
The appellant was convicted of murder and an appeal against the conviction was
dismissed.

Kasaja s/o Tibagwa vs. Regina (1952) 19 EACA 268 (Sir Barclay Nihill P, Sir
Nwenham Worley VP and Sir 1-lector Heame CJ)

The circumstances that were consid ered for the conviction of the appellant were that a
spear belonging to him was found near the deceased’s body and the fact that the
appellant did not answer the alarm raised in the village shortly after the murder. This
was held on appeal as insufficient to establish guilt beyond doubt.

Wambura vs. Republic (1990 -1994) EA 609 NyaIali CL Ramadhani JA and Mapigano
Ag Ja)

Tenywa vs. Uganda (1967) EA 102 (Sir Udo Udoma CJ)

In Kimani vs. Republic (2000) 2 EA 417, KLR 3 03 (Omolo, Tunoi and Lakha JJA)

The conviction of the appellant was based on the evidence that on the day the deceased
was last seen alive, the appellant was seen leaving with the deceased carrying a panga,
and she was later seen leaving a dumping site, where the deceased’s body was later
found, carrying a panga and blood stained clothes.

 The principle relating to circumstantial evidence was initially stated in

Samson Daniel vs. Rex 154 (Abrahams CJ .Ag .P, Lucie -Smith Ag CJ and Webb J),

Where it was said that on a trial for murder, circu mstantial evidence must lead to the
inevitable conclusion that the death was the act or contrivance of the accused. If there is
an alternative which can with any reasonable probability account for the death, this
excludes the certainty which is required to justify a verdict of guilty.

 It was subsequently restated in

Rex vs. Kipicering arap Koske and another (1949) 16 EACA 135 (Edwards Ci, Sir
John Gray Ci and Ainley J),
And it is this restatement that has been applied in most of the cases thereafter.
In Ernest Asamni Bwire Abanga alias Onyango vs. Republic Nairobi CACRA No. 32
of 1990 (Tunoi, Lakha and Keiwua HA)

It was said that when a case rests entirely on circumstantial evidence, such evidence
must satisfy three tests:
(i) the circumstances from which an inference of guilt is sought to be
drawn, must be cogently and firmly established,
 (ii) (ii) those circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused, and
(iii) (iii) the circumstances taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within all
human probability the crime was committed by the accused and
none else.

Mwangi and another vs. Republic (2004) 2 KLR 32 (OmoloTunoi and Ringera Ag JA)

Warui vs. Republic (2002) 1 KLR 750 (Chunga CJ, Shah and Owuor JJA)

Simeon Mbelle vs. Republic (1982) 1 KAR 578 (Kneller and Hancox JJA and Chesoni
Ag JA)

Mohamed and three others vs. Republic (2005) 1 KLR 7 22 (Osiemo I)

Salim Menza Mganga vs. Republic Mombasa CACRA No. 16 of 1997 (Kwach, Shah
and Pall JJA)

Karanja vs. Republic (1983) KLR 501 (1976 -1985) EA (1982-88) 1 KAR 355 (Hancox,
Chesoni JJA and Platt Ag JA)

Sawe vs. Republic (2003) KLR 364 (Kwach, L akha and O’Kubasu JJA)

C’hande Bin Khanzis Mtunibatu vs. R (1961) E A 587 (Sir Kenneth O’Co nnor P,
Crawshaw JA and Law J)

Ilanda s/o Kisongo vs. B (1960) EA 780 (Sir Alastair Forb es VP, Gould and Crawshaw
JJA)

Karukenya and four others vs. Republic (1987) KLR 458 (Kneller, 1 -tancox JJA and
Chesoni Ag JA)

Omar Mzwigu Chimera vs. Republic Mombasa CACRA No. 56 of 1998 (Kwach, Shah
and Owuor JJA).

Libambula vs. Republic (2003) KLR 683, 2 EA 547 (Tunoi, O’Kubasu JJA and
Onyango Otieno Ag JA),

On the relationship between motive and circumstantial evidence.

 Compare with

Jacinta Njoki Ndirangu vs. Republic Nairobi CACRA No. 262 of 2007 (Omolo, Bosire
and Aluoch JJA)
 George Karanja Mwangi and others vs. Republic (1982 -8 8) 1 KAR 567 (Hancox JA,
Chesoni and Nyarangi Ag JJA).

If the circumstantial evidence falls short o f the standard required in law, the accused
person would be entitled to an acquittal, as was the case in

Jane Wangui Mathenge vs. Republic Nyeri CACRA No. 11 of 1996 (Gicheru, Kwac h
and Lakha JJA).

Benjamin Bundeh Garc[h and another vs. Republic (1982 -88) I KAR 587 (Kneller JA,
Chesoni and Nyrangi Ag JJA).

See Rex vs. Wayaga Nagugu (1948) 15 EACA 74 (Sir Barclay Nih ill CI, Pearson and
Ainley JJ)

C’hivatsi and others vs. Republic (2003) 2 EA 395 (Kwach, Omolo and O’Kubasu JJA)

Andrea Obonyo and others vs. R (1962) BA 542 (Sir Ronald Sinclair P, Sir Alastair
Forbes VP and Sir Trevor Gould JA)

Mwangi vs. Republic (2005) 2 KLR 371 (Tunoi, O’K ubasu and Githinji JIA)

Mkendeshwo vs. Republic (2002) 1 KLR 461 (Omolo, Shah and Bosire JJA).

7. IGNORANCE OF THE LAW

 Ignorance or mistake of law is not a defence.

 Indeed, mens rea does not mean that the accused must have been aware of the
illegality of his conduct.
 Ignorance of the law is a defence only where knowledge of the law is expressly
stated to be an element of the offence.
 This principle is stated in section 7 of the Penal Code, where it is stated that
ignorance of the law does not afford any excuse for any act or omission which
would otherwise constitute an offence unless knowledge of the law by the
offender is expressly declared to be an element of the offence.

PENAL OFFENCE FACTS Interpretation

CODE
7 General Rules As 7-Ignorance of the law does not Unless a crime has knowledge as an
To Criminal afford any excuse for any act or element then ignorance of the law is
omission which would otherwise
Responsibility constitute an offence unless
not defence
knowledge of the law by the
(Ignorance of the offender is expressly declared to be
Law) an element of the offence.
  It was applied in the case of

R vs Bailey (1800) R &R 1

Where a sailor was convicted of contravening a statute of which he could not possibly
have known since it was enacted when he was away at sea, and the offence was
committed before the news of the enactment could reach him.

 This rule is justified on several grounds.

I. One, it is presumed that everyone knows the law. This is on the proposition
that since most crimes are also moral wrongs, it is to be expected that the
person affected has some rough idea of the law. Drive rs, for example, are
generally expected to know what is required of them legally, even if they
may not know the specific content of the law.
II. Secondly, it is difficult to prove that the accused knew the law.
III. Thirdly, it is a rule of expediency. According to

Lord Ellenborough in Billie vs Lumley (1802) 2 East 469,

“Everyone must be taken to know the law, otherwise in almost every case the
excuse of ignorance of the law would be raised as a defence. ”

Uganda vs. Ni/co/la and another (1966) EA 345 (Sir Ud o Udoma CJ)

It was said that ignorance of fac t is a good defence to a criminal charge.

8. MOTIVE

 This is covered by section 9(3) of the Penal Code.

 The subsection appears in the section dealing with intention, and it therefore
means that the reasons be hind the conduct of the accused are irrelevant with
respect to determining intention.

PENAL OFFENCE FACTS Interpretation

CODE
9 General Rules As 9 (3)-Unless otherwise expressly The general rule is that motive is not a
To Criminal declared ,the motive by which a consideration in determining criminal
person is induced to do or omit to
Responsibility do an act or to form an intention, is
responsibility
immaterial so far as regards
(Intention and criminal responsibility
Motive)

 The existence of a motive of itself does not, unless otherwise provided, enhance
or lessen an individual’s responsibility in law f or the commission of a crime.
Karukenya and four others vs. Republic (1987) KLR 458 (Kneller, Hancox JJA and
Chesoni Ag JA)

It was stated that the prosecution does not have to prove motive; neither is evidence
of motive sufficient to prove the commission of a crime by the person who possesses
the motive.

Karukenya and four others vs. Republic (1987) KLR 458 (Kneller, Hancox JJA and
Chesoni Ag JA).

 Motive was defined

Libainbula vs. Republic (2003) KLR 683, 2 EA 547 (Tunoi, O’Kubasu JJA and
Onyango Otieno Ag JA)

to mean that which makes a person do a parti cular act in a particular way.

Mwachia vs. Republic (1991) KLR 398 (Wambilyangah J).

 Motive exists for every very voluntary act.

 Motive is not material in criminal liability, unless it is expressly declared to be so
by the definition of the offence.
Matangule and another vs. Republic (1990 — 1994) EA 318 (Ramadhani, Mnzavas and
Mapigano AJA).

In Ghulam Rasul and another vs. Reginain 229 (Sir Barclay NihilI P, Sir Newnham
Worley VP Briggs JA)

It was said that motive could be a relevant factor for the offence of obtaining by false
pretences.

In Mkendeshwo vs. Republic (2002) 1 KLR 461 (Omolo, Shah and Bosire JJA)

It was held that failure to prove the appellant’s motive did not per se invalidate his
conviction.

 A good motive cannot make lawful an evil act.

 This is why euthanasia, the so called me rcy killing, is still a crime.

In R vs Windle (1952)

A husband gave his wife an overdose of sleeping pills with the intent kills her so as to
save her from continuing to go through suffering. He was convicted of murder despite his
good motive.
R vs Smith (1960)

Where a person gave a bribe to a p ublic officer with the motive of exposing corruption by
public officers. He was found guilty of corruption despite his good intentions.

Langat vs. Republic (2002) 2 KLR 191 (C hunga CJ, Shah and Bosire JJA)

It was held that as per section 9(3) of the Pena l Code, it is clear that unless expressly
declared by a provision of law creating an offence, the motive by which a person is
induced to do or omit to do an act or to form an intention is immaterial so far as regards
criminal responsibility. Based on that provision, the court held that the appellant’s
motive for cutting his father was not a matter the trial court could properly consider in
coming to a decision as to his guilt or innocence.

 However, motive is still in certain respects a relevant factor in d etermining

criminal responsibility in some cases.

Kabiru vs. Republic (2007) 1 EA 107 (Bos ire, Githinji and Deverell JJA)

It was held that motive is a factor to be taken into account as part of the circumstantial
evidence on the culpability or otherwise of an accused.

Libambula vs. Republic (2003) KLR 683, 2 EA 547 (Tunol, O’Kubas u JJA and
Onyango Otieno Ag JA)

It was held that motive is an important element in the chain of presumptive proof and
where a case rests purely on circumstantial evidence.

 Motive is drawn from the facts, and it is often proved by the conduct of a
person.

Karukenya and four others vs. Republic (1987) KLR 458 (Kneller, Hancox JJA and
Chesoni Ag JA)

It was held that evidence of motive is admissible and a matter to be consid ered together
with all other evidence. It was however stated that although motive and opportunity are
important matters to be taken into consideration they cannot themselves be co rroboration
to other evidence.

R vs. Kejhemeiza w/o Tindikawa (1940)7 EACA 6 7

R vs. Wanjerwa (1944) 11 EACA 93 .

  Motive is one of the Factors considered in murder cases to establish malice a
fore thought.
 It helps the court to address criminal responsibility in certain circumstances
especially where the evidence is insufficient to establish mens rea
 Motive was considered in

Kabiru vs Republic

It was held that motive is a factor to be considered together with the circumstantial
evidence

Libambula vs. Republic (2003) KLR 683, 2 EA 547 (Tunoi, O’Kubasu JJA and
Onyango Otieno Ag JA)

With respect to robbery with violence.

Kasaja s/o Tibagwa vs. Regina (1952) 19 EACA 268 (Sir Barclay Nihill P, Sir
Newnharn Worley VP and Sir Hector Hearne CJ)

for example, where there was inadequate evidence from which the court could draw an
inference that the murder was committed by the appellant; the court was of the view that
a strong motive could have swu ng the balance the other way.

See also

Rex vs. Anderea Owori s/o Yowana 54 (Sir Joseph Sheridan CJ, Sir G Graham Paul
CJ and Thacker J)

Rex vs. Mazabia bin Mkomi (1941) 8 EACA 85 (Sir Joseph Sheridan CJ, Sir Henry
Webb CJ and Sir Norman Whitley CJ)

Rex vs. Frank Mwale (1936) 3 EACA 102 (Sir Joseph Sheridan CJ, Hall CJ)

Rex vs Nyirantarama w/o Beihweihwa (1943) 10 EACA 59 (Sir Joseph Sher idan CJ,
Mrk Wilson Ag CJ and Lucie -Smith J), and Law CJ)

George Ngugi Mungai vs. Republic Nyeri CACRA No. 122 of 2000 (Kwach, Bosire and
O’Kubasu JJA)

Rex vs. Pirinin bin Kunjanga 64 (Abrahams CJ. Ag P. Sir Joseph Sheridan CJ and
Lucie-Smith Ag CJ)

Sohan Singh s/o Lakha Singh vs. R (1958) EA 28 (Sir Kenneth O’Connor P, Briggs
VP and Forbes JA)
Kongoro alias Athurnani s/o Mrisho vs. Reginam (1956) 23 EACA 532 (Sinclair VP,
Rudd and Mayers JJ).

Siduwa Were vs. Uganda (1964) EA 596 (Newbold, Crabbe and Spry JJA),

It was said that while there is no necessity to prove motive, the complete absence of
motive must weaken whatever case there may be against the accused person. Motive was
one of the matters considered

Rex vs. Nyode s/n Wopera (1948) 15 EAC A 145 (Sir Barclay Nihill CJ, Mark - Wilson
Ag CJ and Lloyd Blood J)

To determine the appellant’s criminal responsibility for murder.

See also

Nyakite s/o Oyugi vs. R (1959) BA 322 (Sir Kenneth O’Connor P, Forbes VP and
Windharn JA)

Rex vs. Pengaunusu s/n Mwendagumo alias Pandaunusu s/n Musfwala (1943) 10
EACA 47 (Sir Joseph Sheridan CJ, Sir Norman Whitley CJ and Mark Wilson Ag CJ)

Rex vs Ndambia a Wanduru (1937) EACA (Sir Joseph Sheridan CJ, Sir Rbger Hall CJ
and Dalton Ci), Ogwang vs. Uganda (1999) E A 254 (Wambuzi CJ, Tsekooko,
Karokora, Mulenga and Kanyeiharnba JJSC)
Rex vs. Kabande w/o Kihigwe (1948)15 EACA 135 (Sir Barclay Nihill CJ, Edwards CJ
and Lloyd-Blood J).

Paskazia Kabailcye vs. Reginarn (1954)21 EACA 359 (Sir Newnham Worley Ag P, Sir
Enoch Jenkins Ag VP and Briggs JA)

with respect to being an accessory after the fact to murder.

Rex vs. Munchili s/o Chui and others (1948) 15 EACA 47 (Nihill CJ, Sir G Graham
Paul CJ and Thacker J)

Kinuthia s/n Kamau vs. Rex (1950) 17 EACA 319 (Sir Barc lay Nihill CJ, Sir Graham
Paul CJ and Edwards CJ)

Rex vs. Hussein s/o Mohamed (1942) 9 EACA 52 (Sir Joseph Sheridan CJ, Sir
Norman Whitley CJ and Hayden J).
Gathitu s/n Kionthi vs. Reginam 23 EACA 526 (Sincl4ir VP, Briggs and Bacon JJA)

Motive was one of the factors considered in to determine whether the prosecution
witnesses were accessories after the fact of murder. They had assisted in the burying of
the body of the deceased in secrecy and had not reported the crime to the police. It was
held that they were neither accessories after the fact of murder nor accomplices. It was
held that their intention in assisting the appellant was not relevant, what mattered was
their motive. They were motivated by fear, not a desire to help the appellant escape
justice.

 Motive is also relevant in corruption cases.

Sewa Singh Mandla vs. Republic (1966) EA 315 (Sir Clement de Lestang Ag p, Spry
Ag VP and Law JA)

It was held that a corrupt motive was an essential ingredient of an offence under the now
repealed Prevention of Corruption Act, as the accused person’s state of mind, which
includes motive and intention, is an essential and material factor in determining whether
he is acting corruptly or not. The appellant, in the matter, was a magistrate, convicted of
corruptly of giving a bribe to a police officer to induce him to forebear from taking
proceedings on traffic offences which had allegedly been committed by the driver of the
motor vehicle in which the appellant was traveling. The appellant admitted giving the
money, saying that he wanted to test the police office and to know whether it was true
that the Kenyan police in fact take bribes. The appellate court found that his motive was
innocent, and quashed the conviction, It was observed that the appellant’s mot ive was not
a dishonest one, but one directed to the detection and suppression of corruption rather
than encouraging it.

See also

Habib Kara Vesta and others vs. Rex 191 (Abrahams CJ Ag P, Lucie -Smitli Ag CJ and
McDougall Ag Ci)

Where the court took the view that a genuine police spy is not an accomplice, and
therefore his evidence does not require corroboration, if his motive is the capture of
offenders and not perpetration of offences.

Habib Kara Vesta and others vs. Rex 191 (Abrahams CJ Ag P. Luci e-Smith Ag CJ and
McDougall Ag CJ)

was approved and followed in

R vs. Hashain Jiwa 16 EACA 90.

R vs. Jetha 14 EACA 122,

Another corruption case, it was said that the essence of the offence of corruption is the
motive which animates the giver.

AG vs. Shamba All Kajembe (1958) EA 505

The court defined ‘corruptly’ to mean the corrupt purpose or motive must be in the mind
of the person charged.

See also

R vs. Paulo Alule (1961) BA 728 (Sheridan J)

Rex vs. Musya wa Mbithzika KLR 82 (Sir J W Bar th CJ and Thomas J).

Makubi vs Republic (1968) EA 667 (Hamlyn J)

It was held that essence of the offence of corruption is the motive which animates the
giver.

R vs.Akberali K Jetha (1947) 14 EACA 122 .

 There is no record under Kenyan law of a definitio n of an offence or crime

which makes motive an element relevant to criminal liability.
 A good motive can however be considered as a mitigating factor. It was
considered in

Republic vs. Raphael s/o Ma deje (1973) LRT 80 (Mnzavas J)

Where the accused was convicted of carrying a greater number of passengers than
allowed by the relevant law. On revision, in reducing the amount of fine imposed by the
trial court, the High Court considered that in Tanzania at the time the welfare of
passengers might have requi red that they be carried in excess, forcing the accused to
overload his bus, not because the accused wanted to break the law, but possibly because
the excess passengers pleaded that they be carried in an overloaded bus rather than be
stranded on the road. The court took judicial notice of the fact that bus -conductors are
often put in an impossible situation; they either have to comply with the request of their
passengers and break the law, or refuse the passengers’ pleas and thereby earn a bad
name to the detriment of their business.

 Motive is also relevant when it comes to making distinctions between

different offences, especially when deciding which of the different offences is
to be charged.
Titus Muiwa Muia vs. Republic Nairobi CACRA No. 38 of 1993 (T unoi, Shah and
Lakha JJA)

The court considered the motive driving the perpetrators of the crime to determine
whether the appropriate charge to bring against the appellants was murder or robbery
with violence. The facts were that persons raided a residenc e and stole several items. In
the course of the theft a servant at the residence was strangled to death. Three suspects
was subsequently apprehended and charged with murder. The charge was later
substituted with that of robbery with violence. On appeal, on the propriety of the
substitution, the Court of Appeal found that, on comparison of the particulars of the
charge of murder and robbery with violence, it was clear that the facts disclosed two
offences and the principal motive as disclosed by the evidence was stealing, and therefore
the charge of robbery with violence was proper in the circumstances.