JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY

KAREN CAMPUS

UNIT –CRIMES

LECTURER -LEREKO OBONYO

GROUP MEMBERS:
LYNET ROTICH -LSG201-C002-0033/2017
MBOGO NICOLE WANGARE-LSS201-C002-0133/202
KISOI GRACE MUMBE– LSS201-C002- 0137/2020
MUMBI YVONNE– LSS201- C002-0141/2020
SYLVAN CHEMUTAI-LSS201-C002-0153/2020
DIANA WANGAMATI– LSS201-C002-0144/2020
In the face of the Supreme Court decision, in Francis Muuruatetu and another verses the
Republic, here the supreme court held that “the mandatory death penalty of murder is
unconstitutional” Should the offenses of murder and manslaughter be abolished and replaced
with a single offence of unlawful homicide?
Introduction
The case of Francis Muruatetu and another convict made world headlines in December 2017
when Kenya’s Supreme court declared that the mandatory death penalty for murder, imposed in
the case of the two men, was unconstitutional.
The difference between homicide, murder and manslaughter
Homicide is the killing of a person by another person. It may either be lawful or unlawful. This
is a broad term that includes both legal and illegal killings. For example, a soldier may kill
another soldier in battle, but that is not a crime. There are various situations in which the killing
of another person does not constitute a crime..
Unlawful Homicide : Culpable Homicide is the first kind of unlawful homicide. It is the causing
of death by doing:
i. An act with the intention of causing death.
ii. An act with the intention of causing such bodily injury as is likely to cause death; or
iii. An act with the knowledge that it was likely to cause death.
Without one or other of those elements, an act, though it may be in its nature criminal and may
occasion death, will not amount to the offence of Culpable Homicide.
Culpable Homicide – Essential Elements:
Culpable Homicide is the first kind of unlawful homicide as defined in Section 299, Indian Penal
Code it purports to define and explain as to when an act of causing death constitutes Culpable
Homicide. The important elements are:-
1)Causing of death of a human being.
2) Such death must have been caused by an act
i) With the intention of causing death; or
ii) With the intention of causing such bodily injury as is likely to cause death; or.
iii) the knowledge that the doer is likely by such an act to cause death.
Murder.
Murder is the unlawful taking of another person’s life. Section 203 of the penal code provides
that any person who of malice aforethought causes the death of another person by an unlawful
act or omission is guilty of murder. Section 204 of the penal code also states that, Any person
who is convicted of murder shall be sentenced to death.
In common law, murder is committed where a person of sound mind and discretion unlawfully
kills any human being in being with the intent to kill or cause grievous bodily harm
Manslaughter
Manslaughter on the other hand is the killing of another person without deliberation,
premeditation, or malice. The offence of manslaughter is punishable by the maximum penalty of
life imprisonment under section 205 of the Penal Code
It can be committed in one of four ways;
i)Killing by conduct that the defendant knew involved a risk of killing (reckless manslaughter)
ii)Killing by negligence act which involves a high risk substantial personal injury (gross
negligence manslaughter).
iii)Killing by conduct taking the form of an unlawful act involving a danger of some harm to the
person (‘unlawful act manslaughter)
The above three ways are usually classified as ‘involuntary manslaughter’. The remaining way of
manslaughter is usually described as ‘voluntary manslaughter’.
i)Killing with the intent for murder but where a partial defense applies, namely provocation
diminished responsibility or killing pursuant to a suicide pact.
ISSUE; Whether the offence of murder and manslaughter should be abolished and
replaced with the offence of unlawful homicide
Arguments against abolition of the distinction
 Homicides are committed in a wide range of circumstances.
 Morally, and as a matter of proper labelling, the category of murder should be reserved
for the most heinous or culpable killings.
 There is a moral principle at stake. Most intentional killings are in a class of their own
and are more heinous than unintentional killings.
First, the murder/manslaughter distinction is rooted in the historic principle that criminal liability
presupposes an intention to commit the relevant actus reus.
the law should differentiate between particularly heinous killings and those which are less
serious, such as those caused during the commission of lawful acts due to gross negligence.
 Even within involuntary manslaughter where the accused unintentionally kills the
deceased, there are great divergences in culpability.
 Arguably, it is inappropriate to label an accused who was “unlucky” – in the sense that a
single punch led to the death of a man – with the same crime as someone who repeatedly
kicked his victim in the head or stabbed him in the chest.
A murder conviction carries a unique stigma which highlights the gravity of the offence and
arguably acts as a deterrent.
  In its 2001 Consultation Paper the Law Reform Commission observed that the word
murder “has a very important symbolic and declaratory effect, and serves to convey the
seriousness of the particular killing and to indicate to society the nature and quality of the
offender’s crime.”
Lastly, if there were a single offence of unlawful homicide the focus of homicide trials would
shift to the sentencing stage.
 This would marginalize the role of fact finding in the criminal process.
 If the murder/manslaughter distinction were abolished and replaced by a single offence of
unlawful homicide, the judge would decide the impact of impact of provocation or self-
defense on the defendant’s culpability at the sentencing stage.
Arguments favoring abolition of the distinction
 In Hyam v DPP Lord Kilbrandon argued that the there was no reason for maintaining
the murder/manslaughter distinction following the English parliament’s abolition of the
death penalty for murder in 1965.
He stated: “There does not appear to be any good reason why the crimes of murder and
manslaughter should not both be abolished, and the single crime of unlawful homicide
substituted; one case will differ from another in gravity, and that can be taken care of by
variation of sentences downward from life imprisonment. It is no longer true, if it ever was true,
to say that murder, as we now define it, is necessarily the most heinous example of unlawful
homicide.”
Lord Kilbrandon’s call for an end to the murder/manslaughter distinction has found favour in
many quarters.
 Arguably, the murder/manslaughter distinction might in some situations appear arbitrary
from a moral viewpoint.
In People v Conroy (No 2) Finlay J stated that regarding the many, varied factors which must
be considered when sentencing a particular accused for homicide, there are no grounds for a
general presumption that the crime of manslaughter may not, depending on its individual facts,
be in many cases as serious as, or more serious than, the crime of murder, from a sentencing
viewpoint.
There is a body of opinion which contends that mens rea should not be relevant to criminal
responsibility, but should only have an impact on punishment.
 Those in favor of abolition maintain that creating a single unlawful homicide category
would eliminate the prominence of fault in determining guilt under the current system. It
would not be necessary to prove a “guilty mind” in order to prove that a murder had been
committed.
 It has also been suggested that abolition would be a means of overcoming the reluctance
of judges to convict for murder in the face of the mandatory life sentence and the
difficulty of proving an intention to kill in certain circumstances.
The Penal code gives the definitions of murder and manslaughter where and the differences
comes in the Men’s rea whereby for murder there is malice while for manslaughter there is no
malice and also the punishment given is different. Therefore, the distinction between an illegal
and legal killing is in the difference between murder and manslaughter.The issue arises from
both instances someone must have died and there is no much difference in the punishment given
either way as for the abolishment of the death penalty in murder. So in relation to those two
offences having not much difference in the end result of death and almost the same punishment
they should be replaced with unlawful homicide.
In common law, applying partial defense is able to reduce murder to manslaughter, thus avoiding
the mandatory life sentence. One instance is whereby an accused uses provocation as a defense,
according to the Homicide Act 1957 s3, a charge of murder can reduce to manslaughter when the
jury, on the reasonable man base, can find that the person charged was provoked to lose his self-
control. Therefore, the defense consists of a dual test, subjective test and objective test.Apart
from that, there’s whether the accused was characterized reduce the power of self –control
below that of the ordinary person when committing the offence.
The criticisms of provocation
Provocation is one of the most strongly criticized defenses in the criminal law. People have
advocated for provocation to be reformed or abolished with reference to the following;
First of all, provocation unfairly privileges certain factors over others as reducing an accused’s
level of criminal responsibility. A loss of self-control is only one factor to assess the
blameworthiness of a person who intentionally kills. There are other factors that may play an
equal role in the assessment process such as a person’s reasons for killing and the vulnerability
of the victim.
Besides, the current test for provocation is complex and difficult for juries to understand and
apply.
Reforming the law defense of provocation is a better decision. The court should take into account
all the circumstances of the defendant other than matters that only relevance to the defendant’s
conduct.
CONCLUSION
While the are arguments in favour of abolishing the murder/manslaughter distinction based
largely on moral diversity, cost-cutting, and administrative efficiency arguments, we are
supportive of retention because the labelling of offences is important and labelling is the basis of
the distinction between murder and manslaughter.
This is because we believe that the creation of a composite crime would seriously devalue the
gravity of murder in the criminal law.