TOPIC SIX: SPECIFIC CRIMES/OFFENCES

1. OFFENCES AGAINST THE PERSON

1.1. MURDER – S.196

Actus Reus: Act of killing/causing the death of another

Mens Rea: Malice aforethought

Penalty: S.197 – Sentenced to death

Case law:

1.2. MANSLAUGHTER: S195

Actus reus: Act of killing/causing the death of another – omission can include recklessness/negligence

Mens Rea: *malice aforethought is not there

Penalty: S.198 – Imprisonment for life

1.3. INFANTICIDE

(a) The accused is female;

(b) The deceased was born alive;

(c) The accused caused the death of her child;

(d) The death of the child was caused by a wilful act or omission of the accused;

(e) The child was newly-born (under 12 months of age);

(f) The accused was not fully recovered from the effects of giving birth to the child;

(g) By reason of childbirth or the consequent effects of lactation the accused’s mind was disturbed

Actus reus: Death of a child under 12 months

Occurs when a woman suffering from a “disturbed mind” causes the death of her newborn child. the
offence dictates that this mindset must arise from the effects of childbirth or lactation

Mens Rea: -

Penalty: Imprisonment for life

1.4. ASSAULT

There are several categories of assault under Chapter 25 of the Penal Code.
Actus Reus: Unlawful use of force against another person

Mens Rea: Intention to use physical force to either cause grievous bodily harm/resist or obstruct
another person from performance of an act

2. OFFENCES AGAINST MORALITY

2.1. RAPE

Section 130(1) of the Penal Code creates the offence of rape, thus it is an offence for a male person to
rape a girl or a woman.

Section 130(2) of the Penal Code provides circumstances where a person can be said to have committed
rape after having sexual intercourse with a woman or a girl.

If a person takes advantage of his position to have sexual intercourse with a woman or a girl.

a) Being a person in a position;

b) Being on the management or on the staff of a remand home, other place of custody or a
woman’s or children’s institution;
c) Being a traditional healer;
d) Being a religious leader.

The issue of traditional healer taking advantage of their position to have sexual intercourse with their
female patients was discussed in the case of Kabulungu Juma v. R. [1991] T.L.R 154, the appellant a
medicine man was convicted of the offence of rape. However it was established that the woman
voluntarily consented to the intercourse believing that it was part of her treatment by the appellant of
her ailment. On appeal: A woman who is enslaved by strange ideas and beliefs allows a medicine man to
have intercourse with her in the hope that the sexual act was the medicine man’s way of examining her
pregnancy cannot be heard to complain of rape.

Ingredients of Rape:

Having Unlawful Carnal Knowledge of a Woman or a Girl:

Unlawful carnal knowledge has a religious and historical background. It is unlawful when it takes place
outside the marriage bonds. In the case of R. v. CHAPMAN [1959] 1 QB 100, the accused was convicted
for having unlawful sexual intercourse with a girl aged 16 years old. This case said that unlawful sexual
intercourse means illicitly sexual intercourse i.e. sexual intercourse outside the bonds of marriage.

As a general rule a husband can’t rape his wife. But there are exceptions these are: i) Where there is a
separation then if a husband has sexual intercourse with her he may be convicted of rape. The law
recognizes even separation arranged by the family or clan members. —s.130 (5) of the Penal Code. ii)
Another exception is where there is a decree nisi of divorce.
For the purpose of proving rape, it is not necessary to prove the completion of the act by the emission
of semen. Intercourse is deemed to be complete upon proved penetration only. Even slightest
penetration is sufficient.

One can see that, penetration is an important ingredient of the commission of rape. In the case of Fundi
Omari Madege v. R. (1970) H.C.D No.98, the accused was convicted of rape. Complainant stated that she
was raped but no evidence as to what she meant. She had said “the accused threw me to the ground
and threatened to kill me if I tried to raise an alarm, I was not wearing underwear”. The court said that:
In a case of rape there must be evidence of penetration of penis into the vagina though emission of
seeds is not necessary. The term rape as used by the complainant may amount to penetration or not.
Without Her Consent Lack of consent is one of the most important ingredients of the offence of rape.
The essence of rape is the absence of real consent on the part of the woman or girl.

Therefore in a situation where the woman consents to sexual intercourse what arises therefore cannot
amount to rape. Earlier under Common Law, apart from lack of consent, there should be force or fraud.
The current position is the emphasis on only one question; was the woman at the time of sexual
intercourse consented to it? It is not necessary for the prosecution to prove that what might otherwise
appeared to have been consented was in reality merely submission induced by force, fear or fraud. The
distinction between consent and submission is still controversial in law, because a person submits where
she/he yield or gives in to some pressure of some kind.

2.2. DEFILEMENT

2.3. INDECENT ASSAULT

2.4. INCEST

2.5. UNNATURAL OFFENCES

2.6. INDECENT PRACTICES

2.7. ABORTION

2.8. PROSTITUTION
 2.9. ABDUCTION

2.10. FEMALE GENITAL MUTILATION

3. PROPERTY OFFENCES
3.1. THEFT
3.2. ROBBERY
3.3. HOUSEBREAKING
3.4. BURGLARY
3.5. OBTAINING BY FALSE PRETENCES
3.6. CHEATING
4. COMMERCIAL CRIMES AND CORRUPTION
4.1. FRAUD
4.2. CONSPIRACY TO FRAUD
4.3. FORGERY
4.4. MONEY LAUNDERING
4.5. DRUG TRAFFICKING
4.6. COUNTERFEIT GOODS
4.7. TAX EVASION
4.8. CORRUPTION
4.9. HOARDING COMMODITIES

S.194A

Creating artificial shortage of commodities in the course of production is not a

crime but creating shortage of commodities in the course of supply is a crime
namely hoarding commodities.

The penalty of a minimum of 20 years imprisonment. The penalty for hoarding

commodity is provided under section 60(2) of the Economic and Organised
Crime Control Act.
5. IMMIGRATION OFFENCES