INTRODUCTION- Lecture 2

1. Defining a crime
 Crimen – Latin word meaning accusation
 A crime can be defined as an act or an omission prohibited and punished by
law

1.1 Nature and characteristics of a crime

1.1.1 Public vs a private wrong

 A crime must have a harmful effect on the public
 It is not safe to leave crimes repressible only by compensation of the person
injured
 A crime may remain a crime long after it has ceased to be a threat to the
security of the public
 The state is the custodian of public security and order
 The public nature of a wrong lies in distinguishing civil and criminal
procedures

1.1.2 Distinguishing criminal law from civil law1

Civil law
- Primarily concerned with providing redress for legal wrongs on an
interpersonal level
- A civil action is brought by a the party who sustains the loss (the “claimant”)
- The remedy is usually damages for any loss suffered.

Criminal law
- Concerned with duties owed by individuals to society as a whole
- Prosecuted by, or in the name of the State
- If found guilty, a defendant will receive a criminal sanction (penalty).

Summary:
1. Complainant: In criminal law, any member of the public can be a
complainant; in civil law only the victim of the civil wrong can complain
2. Control of proceedings: in criminal law, the state – through the Director of
Public Prosecutions undertakes a public control of criminal proceedings; in
civil law, this is done personally by the plaintiff
3. Nature of remedy: in criminal law – punitive; in civil law – compensatory
4. The standard and burden of proof

Why is this distinction relevant?

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NB the same action might attract both civil and criminal liability e.g. assault and trespass to the person.

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 2. The purpose(s) and conditions of criminal liability

What concepts help us to define what should be criminalized?

A: Jeremy Bentham and Utilitarian thought

“Nature has placed man under the governance of two sovereign masters, pain
and pleasure. It is for them alone to point to what we ought to do…the
principle of utility…approves or disapproves of every action whatsoever,
according to the tendency which it appears to have to augment or diminish
happiness”. Bentham, (1789) Principles of Morals and Legislation, 11

 Laws should seek to maximise pleasure and minimise pain; the only basis for
criminalising conduct is to “achieve the greatest good for the greatest
number”. Criminalisation does this by deterring the dangerous, preventing
harm to victims, and cutting costs of offending.
 Linked to objective model of liability, which imposes fault on D if he inflicts
harm when a reasonable person would not have acted that way. It is outcomes
and the standards of society which matter.
 Justifies mala prohibita offences – regulatory offences for the benefit of all.

B: Immanuel Kant and the pursuit of Dignity

"Always act according to that maxim whose universality as a law you can at the
same time will" / “Act with reference to every rational being (whether yourself
or another) so that it is an end in itself”. Kant (1785), Foundations of the
Metaphysics of Morals, 437

 Laws should respect the inherent dignity of rational beings and treat them as
ends not means to an end. Criminalisation does this by protecting
fundamental rights.
 Linked to subjective model of liability, which imposes fault on D if he D
chooses to fundamentally infringe the autonomy or rights of another. It is
choices and the values of the offender which matter.
 Only justifies mala in se offences – those involving fundamental wrongdoing.

What do they say about each of these ideas?

A: Morality

 Could an individual/society be seriously wronged by immoral conduct?

 What about public condemnation of an act that is not a crime under the law?
For example, prostitution, homosexuality should these acts be punishable
under the law because of their immoral nature?
 Question: whose morals apply?

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 “The chief concern of the criminal law is to prohibit behaviour that represents
a serious wrong against an individual or against some fundamental social
value or institution” (Ashworth (2013) p1).

Wolfenden Report on Homosexual Offences and Prostitution (1957) Cmnd 247:

"The function of the law is to preserve public order and decency, to protect the citizen
from that which is offensive or injurious and to provide sufficient safeguards against
exploitation and the corruption of others, particularly those who are especially
vulnerable" (para. 13). It is not …the function of the law to intervene in the private lives of
citizens, or to seek to enforce any particular pattern of behaviour, further than it is necessary to
carryout the purpose we have outlined

 Lord Devlin in his book, The enforcement of morals (1965) 1 argues that there
is a public morality which is an essential part of the bond which keeps society
together. The public can use criminal law to preserve public morality

Lord Devlin The Enforcement of Morals 1965:

"There are acts so gross and outrageous that they must be prevented at any
cost...the suppression of vice is as much the law's business as the suppression of
subversive activities."

 In Shaw v DPP (1962) AC 220, (1961) 2 All ER 446 according to Lord

Simonds ‘there remains in the court of law a residual power to enforce the
supreme and fundamental purpose of the law, to conserve not only the safety
and order but also the moral welfare of the state.’

B: Harm
Feinberg (1984) Harm to Others (Oxford UP) identifies harm as ‘set-back interests
that are the consequence of wrongful acts of others’. Law can only be justified if it
prevents harm to others.

Furthermore, we should operate a ‘minimal harm’ principle – don’t criminalise

anything unless it causes more than minimal harm and the law will be effective and
useful in tackling the harm.

C: Autonomy/Fault
Criminal liability entails responsibility for one’s actions or conduct.
“individuals should be respected and treated as agents capable of choosing
their acts and omissions, and that without recognizing individuals as capable of
independent agency they could hardly be regarded as moral persons”
(Ashworth p26).

Which categories of person should not be held responsible for their actions? What is
the meaning of the term ‘autonomy’ and how important is it to criminal law?

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 D: the Correspondence principle
This term applies to the idea that the different elements of a crime must correspond
with one another. This is the idea that you should be responsible for what you do and
what you choose/aim to do; should not be held liable for a more serious criminal
outcome than the one envisaged. Moral luck – random circumstances shouldn’t make
you more or less liable than you would have been.

E: The principle of legality

Christian and others v. The Queen [2006] UKPC 47; [2006] All ER (D) 358 (Oct).
 Privy Council judgment: http://www.bailii.org/uk/cases/UKPC/2006/47.rtf
The principle of legality states that officials should act in accordance with law, and that
no one should be punished for an act that does not have a clear legal basis.

 Article 50 (2) n ii, Constitution of Kenya: Rights of an accused person ‘not to

be convicted for an act or omission that at the time it was committed or
omitted was not—
(i) an offence in Kenya; or

(ii) a crime under international law’

F: Fair Labelling
A key principle – that the label applied to an offender (what he is charged with) should
relate directly to what he has done. Why? Because the symbolic power of the criminal
law requires that it speak clearly about what D has done and why it is wrong.
Chalmers and Leverick (2008): it describes wrongdoing as well as differentiating it.

3. Rationale for studying criminal law

 Preventing crime
 Representatives of accused persons
 Judges /magistrates
 ODPP
 Making the criminal justice system better.

LECTURE 3

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 2. SOURCES OF CRIMINAL LAW IN KENYA

The judicature Act section 8. The constitution article 2(6)

 The constitution of Kenya.

 Statutes and subsidiary legislation
 Substance of the common law.
 International law

2.1 The Constitution

The Constitution as the supreme law of the land governs all law generally. It makes
provision for the prosecution system, the court system and the appeal system for
criminal cases, the rights and duties of both accused persons and victims.

Among the provisions that inform criminal law are;

 Chapter IV the Bill of Rights (see the Bill of Rights generally with particular
attention to Articles 25 26, 29, 33(2), and with more keen attention to
Articles 49, 50, and 51)
 Article 156(6-11) the powers of the Director of Public Prosecution

2.2 Statutes and subsidiary legislation

 The Penal Code, the Sexual offences Act and the Criminal Procedure code are
the main statutes that regulate criminal law. Other statutes include the
Traffic Act, Income tax, Banking Act whose major purpose is to regulate an
aspect of governance but which impose criminal sanctions on those who
breach the Act.
 Subsidiary legislations; A statute may give power to a minister or local
authority to make regulations and prescribe for their breach. Such laws are
known as subsidiary legislation and some create criminal offences.

2.3 Common law

 Continuous use of common law in the United Kingdom. In the United
Kingdom, serious offences like murder, manslaughter and conspiracy to
defraud are still derived from judicial pronouncements.
General agreement among the court not to create new offences or abolish those in
existence. The House of Lords in Knuller Ltd v Director of Pubic Prosecutions [1973]
AC 435 unanimously rejected the existence of a residual power vested in the courts
to create new offences or so widen existing offences as to make punishable conduct
of a type not hitherto subject to punishment. Jones (2006) UKHL 16; Goldstein and
Rimmington (2005) UKHL 63.

 Distinguish the situation in the United States:

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 In the US case Locke v State, Locke presented himself to a lady late at night in
the pretext of wanting to use her phone. Once in the house, he pulled out a
butcher's knife and subjected her to 2 episodes of cunnilingus (oral sex). He was
charged with an offence against the order of nature. In the state of Tennessee
where the defendant was being charged, the offence against nature was sodomy.
This offence was not the same. The lower courts ruled that it was an offence,
although the Penal code of Tennessee did not have cunnilingus as a crime
against nature, it was extended by analogy.

On appeal, by Locke-against the ruling, the federal court of appeal observed that
cunnilingus could not be deemed as an offence under the act of sodomy because
the laws had not defined it so. They therefore allowed the appeal. Rose (victim)
further appealed to the Supreme Court and by a majority decision it was held
that the state appeal be allowed and cunnilingus declared an offence against
nature. The courts extended offences against nature to include fellatio.

 Article 50 (2) n ii, Constitution of Kenya: Rights of an accused person ‘not to

be convicted for an act or omission that at the time it was committed or
omitted was not—
(i) an offence in Kenya; or

(ii) a crime under international law’

 Refer to the Contempt of Court Act (No. 46 of 2016):

 Kenya Human Rights Commission v. the AG, Constitutional Petition No. 87
of 2017. The High Court, on 9 Nov. 2018, declared the Contempt of court Act
unconstitutional for lack of public participation.
 Refer to the previous section 5 of the Judicature Act (Cap 8 Laws of Kenya):
Offence of disobedience of unlawful orders (now repealed by section 38 of
the Contempt of Court Act)
 Interpretational tool

2.4 International law

 Presidential immunity in criminal law:
 Traditional position vs. current constitutional position
Article 143 (1) ‘Criminal proceedings shall not be instituted or continued in any
court against the President or a person performing the functions of that office,
during their tenure of office.’ Article 143 (4) ‘The immunity of the President under
this Article shall not extend to a crime for which the President may be prosecuted
under any treaty to which Kenya is party and which prohibits such immunity.’

See Kenya Section of the International Commission of Jurists v Attorney General &
Another, e KLR 2011

 Article 50 (2) n ii, Constitution of Kenya

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 Rights of an accused person ‘not to be convicted for an act or omission that at
the time it was committed or omitted was not—
(i) an offence in Kenya; or

(ii) a crime under international law’

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 Lecture 4
3. CRIMINAL RESPONSIBILITY

3.1 Classification of crimes

 Common law practice of distinguishing crimes
i. Felonies – serious crimes
ii. Misdemeanours – less serious crimes

 The practice abolished by statute in England but still in use in Kenya

 See section 4 of the Penal Code for the definition of felony
 In England, crimes are classified differently:
i. Statutory or common law offences
ii. Arrestable and non arrestable offences
iii. Indictable or non indictable – forum of trial (whether the crown courts by
jury after an indictment by an examining magistrate or before the
magistrate without a jury)

3.2 Elements of a crime

For an accused person to be held criminally liable in criminal law, the prosecution
must proof:
a) The responsibility is attributed to the accused for a certain act or omission
forbidden by criminal law (actus reus)
b) The accused had a defined state of mind in relation to the forbidden act or
ommission (mens rea)
 actus non facit reum nisi mens cit rea – a person is not criminally liable for his
conduct unless the prescribed state of mind coincides with the prohibited act
 Ordinarily, when proving a crime, the prosecution need not break down the
crime into constituent parts to proof each element in turn, sensible the task is
of proving the crime as a whole.
 Sometimes, not easy to separate the two. An actus reus may implicate mens
rea. For example, possession of drugs, permits, making false staments etc
 The prosecutor must establish that the two elements occurred at the same
time

a) Actus Reus
 These are all the elements in the definition of a crime except the mental
element. While actus reus in some is equivalent to acts or omission, in others
e.g perjury it comprises the conduct and the circumstances
 No thought crimes e.g imagine battery vs. actual commission of battery
 Section 40 of the PC for the definition of treason

i) Commission
 The physical act or human conduct of the offence
 Often created by statute or common law (the class to give examples)

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  It would also take the nature of permitting the commission of a prohibited
act Ali s/o Mzee vs. R (1960) EA 404 (Murphy J) a driver and conductor
convicted for permitting persons to ride on the roof of a bus.

ii) Omission
 Statutes often make it an offence to omit to do something. For example, tax,
licences etc. Failure to remit these amounts to an offence.
 Can murder be committed by omission? Relate this to the ongoing case in
Penina Karibe case.

When will omission lead to a crime?

1. There can be no such a crime by omission even when done intentionally. (the
swimming pool example) unless one is under a legal duty to act
 These offences occurs when the legislature places a specific duty upon a
person to act in a particular fashion and penalizes those who do not
 See the Traffic Act, Income Tax Act, etc

2. By virtue of a public office which imposes a duty

 Discuss ongoing abuse of office cases (KPA,…

3. Where the defendant has taken upon him/herself a duty to act

a) Under a contract
b) By virtue of special relationship between D and V whereby D has care
of V by reason of his status
 Gibbons v Proctor (1918) 13 Cr App R 134, CCA: man and woman convicted
of murder of the man’s child by withholding food: intent – to cause the child
grievous harm as a result of which she died

c) Where D has voluntary undertaken the care of a helpless person

d) Where the defendant has created a dangerous situation-supervening
fault
 (Class discussion) What about where D digs a pit for A to fall in? What if D
had no such intention but leaves the pit uncovered then A falls in resulting to
grievous bodily harm?
 (Another illustration) There is a small fire started by Ron burning in a
brazier. The fire is quite safe and contained. Dick deliberately places a half-
full bucket of petrol beside the fire. The petrol catches fire and a large
conflagration occurs that damages Bill’s garden fence. Ron sees the fire but
does not attempt to put it out. Discuss whether Ron and/or Dick performed
the actus reus of criminal damage.

N/B: Sometimes in some circumstances the distinction between commission and

omission may be very difficult. i.e illegal possession of weapon, drugs

iii) Conduct

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  True conduct crimes like perjury are rare
 Expanded definition to include rape and abduction
 According to Glanville Williams in these crimes ‘you do not have to wait to
see if anything happens as a result of what the defendant does.’

Causation

 The factor connecting actus reus elements of conduct and consequence – did
action X cause result Y? In law the D's conduct must be both a factual and a
legal cause of the consequence e.g. death or criminal damage:
 An important element in result crimes. Often it is not disputed but when it is,
the prosecution must prove that D, by his own act or unlawful omission,
caused the relevant result
 Theoretical disputes as to whether causation is an element of actus reus.
Courts keen to avoid the issue
 Two approaches in determining causation:
i. causation in fact
ii. causation in law

a) Causation in fact or “but for”

 An issue of common sense. What D did and what happened are certainly
questions of fact
 As to whether D’s acts caused what happened is a bit more complicated –
needs the application of legal principles (causation in law)

The ‘but for’ test

 But for D’s act or omission, the event would not have occurred: D cannot be
regarded as the cause of an event if the event would have occurred in
precisely the same way had D’s acts never been done (D poisons V’s drink but
V dies of some natural causes before it has had any effects on V. D’s conduct
is not a ‘but for’ cause of V’s death
 A simple approach to this is to eliminate D’s behaviors from the narrative
then ask whether the result would have occurred anyway. If the answer is
yes, the D is not liable. D’s acts must be sine qua non of the prohibited
consequence
 Caution required: If D invites V for dinner and V is run over and killed on the
way. V would not have died ‘but for’ invitation of D. Does this make D
responsible for the death of V?

b) Causation in law
 A defendant's act need not be the sole or main cause of the prohibited result in
order to be found criminally liable for it. He or she must however, have
performed a culpable act which makes a more than minimal contribution to
the result.
 Applicable principles

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i. Connection between fault and result
ii. Negligible causes
iii. Contributory causes
iv. Intervening acts (novus actus interveniens)

i. Connection between fault and result

 D cannot be said to be liable if the culpable element in his conduct in no way
made a relevant contribution to the result
 R. v Dolloway (1847)2 Cox CC 273, cf Marsh (1997) Crim: D was driving a cart
on a high way with reins not in his hands but loose on the horse’s back. A
three year old child ran into the road a few yards in front of the horse and
was killed. Erle J. directed the jury that, if D had reins and by using the reins
could have saved the child, he was guilty of manslaughter; but that, if they
thought D could not have saved the child by the use of the reins, then they
should acquit him. If D had not been driving the cart at all, the incident could
not have occurred; and in that sense, he ‘caused’ it but it is necessary to go
further and show that the death was due to the culpable element in his
conduct – his negligence in not using the reins.
 Causation analysis must focus on the relevant act – which act is it that caused
the death?
ii. Negligible causes
 D’s acts must be a ‘substantial cause’ – more than negligible (de minimis
principle)
 D and V are roped mountaineers. V has fallen a 1,000 –foot precipice and is
dragging D slowly after him. D cuts the rope and V falls to his death 5 seconds
before both V and D would have fallen. Any acceleration to death is killing
but factors that produce a very trivial acceleration may be ignored. D’s act is
not a sufficiently substantial cause of V’s death.
 Substantial factors test: different people inflicting wounds on a person, one
wound leading to death while the other is a mere injury; a person talking to a
dying man increasing his exhaustion and therefore accelerating his death;

iii. Contributory causes

 The acts of D may not always be the sole or the main cause of the result.
 V suffers from meningitis but D struck him and he dies
 It is true that the death would not have been caused by meningitis at the time
when it occurred ‘but for’ the blows:
 What about, the blows would not have caused the death ‘but for’ meningitis?
Irrelevant question
 Of concern is the extent to which meningitis may have contributed to the
death
 Contributory causes are acts or omission of others including the conduct of
the deceased

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 Warburton v Hubbersty (2006) EWCACrim 627, CA. The Court of Appeal
rejected a submission that ‘where a person has died from a number of
injuries caused by different people and the defendant has caused (or been a
party to causing) injuries ‘A’, then the defendant would not have caused the
death unless the jury were sure that the deceased would have died from
injuries ‘A’ on their own.

iv. Intervening acts (novus actus interveniens)

 Intervening acts/omission that server the chain of causation
 They include
i. The accused subsequent act
ii. Acts of nature
iii. Acts by third party
iv. Medical interventions
v. Victims own conduct
vi. Intended consequences

i. The accused subsequent act

 An intervention by the original actor does not break the chain of causation if
the intervening act is part of the same transaction: D stabs V and then shots
him to death
 This is different if the act which causes the actus reus is part of a completely
different transaction: D having wounded V visits him in hospital and
accidentally infects him with small pox of which he dies.

ii. Acts of nature

 Acts beyond human control
 D assaults V leaving him unconscious in a building. All over sudden, an
earthquake occurs that brings down the building killing V. Is D liable for
murder or manslaughter?
 Student A and B are fighting at the poolside. Student A pushes student B in
the pull. Unable to swim, student B drowns to death.

iii. Acts by third party

 Innocent agent: D engages a minor/ an insane-or someone without mens rea
to commit an offence – D is liable for the crime committed in law
 Involuntariness: D startles E and E involuntary drops weight causing
damage to V’s property. No true intervening act, D caused the damage
 Justified and excused responses to an accused acts: In the case of Pagett
(1983) 76 Cr App R 279; in resistance to lawful arrest, D held a girl in front of
him as a shield and shot at armed policemen. The police instinctively

iv. Medical interventions

 Strict approach by the courts where chain of causation is broken by the
conduct of medical profession

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  Intervention by third parties intervening in a fully informed manner
(although not fully voluntary since they are under a duty of care)
 Generally, their conduct is sufficient to break the chain of causation
 Initially, bonafide treatment by competent medical officers was absolutely
protected from criminal responsibility such evidence was inadmissible.
 The real cause of the injury that necessitated medical intervention was held
to be responsible. Regardless of whether or not the treatment was proper or
improper.
 Later this was extended to less serious injuries
 case of Jordan (1956) 40 Cr App R 152, Jordan stabbed D who was admitted
to hospital and died 8 days later. Jordan was convicted of murder. On appeal,
it was established that death had not been caused by the stab wound, which
was mainly healed at the time of thedeath but by the introduction of large
quantities of some medication – to prevent infection – even after the
deceased had shown intolerance to it. The conviction was quashed.
 In Williams v R (1957) Crim LR at 430, termed the medical acts in Jordan as
grossly negligent but one that would be sufficiently dealt with in civil courts.
The court observed thus:
“The court was ‘disposed to accept it as law that death resulting from any normal
treatment employed to deal with a felonious injury maybe regarded as caused by
the felonious injury. But it was sufficient to point out here that this was not normal
treatment’. Surely treatment that is not normal is not necessarily negligent, even in
civil law.”
 This implied that doctors would be held responsible if the death arose from
‘normal treatment’
 In the case of Smith v R (1959) 2 QB 35, D stabbed V with a bayonet. One of
V’s comrades trying to carry V to the medical reception station, tripped twice
dropping him. At the reception station the medical officer, who was trying to
cope with a number of other cases, did not realize that one of the wounds had
pierced a lung leading to haemorrhage. He gave D treatment which, in the
light of the information regarding V’s condition available at the time of the
trail, was ‘thoroughly bad and might well have affected his chances of
recovery’. D’s conviction of murder was upheld and counsel’s argument, that
the court must be satisfied that the treatment was normal and that this was
abnormal was rejected.
 In Cheshire (1991) 3 All ER 670, the bullet wounds, which D inflicted upon V
had ceased to be a threat to life and there was evidence that V’s death was
caused by the tracheotomy performed and negligently treated by the doctors
so that it narrowed his windpipe and caused asphyxiation. The Court Appeal
upheld the conviction asserting that ‘the rare complication …was a direct
consequence of the appellant’s acts, which remained a significant cause of his
death.’
 There seems to be a lot of reluctance on courts holding medical doctors
criminally liable for their conduct during treatment in cases related to
homicidal assaults.

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v. Victims own conduct
 Slapping the head of someone with an egg shell skull or pricking a
haemophiliac does the victims condition break the chain of causation?
 Like in the law of torts, an accused in criminal law ought to take their victims
as they find them.
 Holland (1841) 2 Mood & R 351, D waylaid and assaulted V, cutting him
severally across one of his fingers with an iron instrument. V refused to
follow the surgeon’s advice to have the finger amputated, although he was
told that if he did not his life would be in great danger. The wound caused
lockjaw, the finger was then amputated, but it was too late and V died of
lockjaw. The surgeon’s evidence was that if the finger had been amputated
first, V’s life would probably have been saved. Maule J told the jury that it
made no difference whether the wound was in its own nature instantly
mortal, or whether it became the cause of death by reason of the deaceased
not having adopted the best mode of treatement. The question was whether,
in the end wound, inflicted by the prisoner was the real cause of death.
 In Blaue (1975) 3 All ER 446, D stabbed V, a young girl, and pierced her
lungs. She was told that she would die if she did not have a blood transfusion.
Being Jehova’s witness, she refused on religious grounds. She died from the
bleeding of the wound. D was convicted of manslaughter and argued that V’s
refusal to have a blood transfusion, being unreasonable, had broken the
chain of causation. The wound was held to have been the cause of the death
 Note circumstances under which contributory causes can be said to exist. Foe
example, People v Lewis (1899) 124 Cal, D received a gunshot from A from
which he would have died within an hour. He cut his throat and died within 5
minutes. A was convicted of manslaughter because the original wound was a
continuing and operating cause.

vi. Intended consequences

 This is where the intended unlawful consequences occur as a result of the
intervention of a new cause and not as a result of the acts of an accused
person, even though the accused intended similar consequences
 D administers poison to his mother with the intention of killing her, the
mother dies of a fatal heart attack. Even though D intended similar
consequences, the death is as a result of a new intervening cause ‘heart
attack’
 D will be held responsible for attempted murder even though in some
extreme cases, the courts have insisted that such an accused person should
be held responsible for the murder. See for example, Michael v R (1840) 9 C
& p 356

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 Lecture 5

b) Men’s Rea
 This is the bad intention, a guilty mind
 Mens rea is manifest in different forms:
i) Intention
ii) Recklessness
iii) Negligence
iv) Blameless inadvertence
 These forms imply different degrees of fault in criminal law
 All crimes require proof that an accused person had the relevant
blameworthy state of mind that is, fault element. Exceptions: offences of
strict liability

Mens rea concerns legal not moral guilt

 Mens rea concerns legal as opposed to moral guilt
 This is the mental element required by the definition of the particular crime –
the intention to fulfill the actus reus of that crime, or recklessness whether it
be fulfilled.
 ‘Rea’ – criminality of an act and not its moral quality
 Kingstone v R (1994) 3 WLR 519. D, paedophile, was charged with indecent
assault of a 15 year old boy, V. D and V had both been drugged
surreptitiously by P. P knew of D’s tendencies, and he drugged D and V in the
hope that D would indecently assault V and that he, P, would be able to video
record the events so as to blackmail D. the House of Lords reinstated D’s
conviction; simply because blame or moral fault was absent did not mean
that the necessary mens rea was also absent. Lord Mustill stated that:

Each offence consists of a prohibited act or omission coupled with whatever state of mind is called
for by the statute or rule of the common law, which creates the offence. In those offences which are
not absolute, the state of mind which the prosecution must prove to have underlain the act or
omission – the ‘mental element’ – will in the majority of cases be such as to attract disapproval. The
mental element will then be the mark of what may properly be called a ‘guilty mind’. The professional
burglar is guilty in a moral as well as a legal sense; he intends to break into the house to steal, and
most would confidently assert that this is wrong. But this will not always be so. In respect of some
offences the mind of the defendant, and still less his moral judgment, may not be engaged at all. In
others, although a mental activity must be the motive power for the prohibited act or omission the
activity may be of such a kind or degree that society at large would not criticize the defendant’s
conduct severely or even criticize it at all. Such cases are not uncommon. Yet to assume that
contemporary moral judgments affect the criminality of the act, as distinct from the punishment
appropriate to the crime once proved, is to be misled by the expression ‘mens rea’, the ambiguity of
which has been the subject of complaint for more that a century.

Forms of mens rea

Intention
 Shrouded in certainties and uncertainties
 Two categories of intention

15
i. Direct intention
ii. Oblique intention

Direct intention
 Distinction has to be made between an accused’s desire and purpose
 One can intend by having result as his purpose, without desiring it. E.g D
gives a lethal injection to put a patient out of pain, but whishes he did not
have to. (To distinguish purpose from desire. In criminal law, purpose is key
in determining mens rea)
 D has resolved to kill A. D fires a loaded gun at A with the object of doing so.
It is immaterial that D is a poor shot, A was nearly out of range and that his
chances of success are small.
 Thus, intention – according to one school of thought - should be limited to the
narrow definition of purposive or direct intention. Thus, result should never
be regarded as intention unless it was the actor’s purpose – unless he acted
in order to bring about the result.

Oblique intention
 Courts often interpret intention more broadly giving it a wider meaning –
sometimes called ‘oblique’ (as opposed to direct) intention. Here it is
sufficient that an accused has foreseen the prohibited result as one that is
highly probably, or virtually certain to occur, even if achieving that result is
not his purpose.

Recklessness
 In many offences, intention to cause a proscribed result or recklessness as to
whether that result is caused is sufficient to impose liability. A person who
does not intent to cause a harmful result may take an unjustifiable risk of
causing it. Unjustifiable taking risk in conduct which might harm others is
culpable behavior
 Sometimes, the risk might be recognized as being much greater, but the
social utility of doing the action justifies it. For example, an aircraft operator,
a surgeon performing an operation must all know that their conduct might
cause death but none of them would be described as reckless unless the risk
take is unreasonable one
 Risk taken can be justified by the social value of the activity involved relative
to the probability and the gravity of the harm, which might be caused. Was
the risk one that a reasonable and prudent person might have taken?

Subjective recklessness and malice

 The standard test for recklessness – traditionally called ‘Cunningham’
recklessness after the case of that name – requires not only proof of a taking
of an unjustified risk, but proof that D was aware of the existence of the
unreasonable risk – a subjective mens rea focused on D’s own cognition of the
existence of a risk.

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  In Cunningham (1957) 2 QB 396, D tore a gas meter from the wall of the cellar
of an unoccupied house to steal the money in it. He left the gas gushing out. It
seeped into a neighboring house and was inhaled by V whose life was
endangered. D was convicted of maliciously administering a noxious thing so
as to endager life. Because the judge directed the jury that ‘malicious’ meant
simply ‘wicked’, D’s conviction was quashed. The court of Appeal held inter
alia:
…in any statutory definition of a crime ‘malice’ must be taken not in the old vague sense of ‘wicked’ in
general, but as requiring either:
i. An actual intention to do the particular kind of harm that in fact was done, or
ii. recklessness as to whether such harm should occur or not (i.e the accused has foreseen that the
particular kind of harm might be done, and yet has gone on to take the risk of it). It is neither limited
to, nor does it indeed require, any ill-will towards the person injured

 Thus Cunningham was not guilty unless he was aware, when he broke off the
gas meter, or left the broken pipe with the gas gushing out, that someone
might inhale it.

Objective recklessness
This entails not having known or thought of the risk but as a reasonable person
ought to have known it. Therefore if the accused person does an act which creates
an obvious risk but when doing the act either does not give thought to the
possibility of there being risk or has recognised that there was some risk but
nonetheless gone on to do the act.

Negligence
 While recklessness is the conscious taking of unjustifiable risk, negligence is
the inadvertent taking of unjustifiable risk. If D is aware of the risk and
decides to take it, he is reckless; if he is unaware of the risk, but ought to have
been aware of it, he is negligent
 When D considers whether or not there is a risk and concludes wrongly and
unreasonably, either that there was no risk, or the risk was so small that it
would have been unjustifiable to take it, he is negligent.

Knowledge
 Often considered alongside intention
 Whereas intention is usually descriptive of the state of mind as to
consequences (for example, I intent to kill), knowledge is usually used in
relation to circumstances (importing substance knowing it is prohibited)

Criminal liability that need not mens rea

These crimes can be classified as crimes of
1. Strict liability.
2. Vicarious liability?.

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Strict liability
 These crimes usually do not require mens rea (one is held criminally liable
even when there is no proof of intention, recklessness, negligent or required
knowledge) as part of their element and they are invariably statutory so that
a mere commission of the act will constitute the offence.
 Almost always, strict liability offences are found in statutes. By enforcing
them, the courts merely profess to be implementing the intention of
Parliament, express or implied.
 In Hamed Abdallah vs R (1964) EA 270 it was held that the Transport
Licensing Ordinance, section 26 (1), created an absolute liability, and it was
no defence that the accused person was not party to or even aware of the
alleged breach of the conditions stated in the provision
 In traffic cases, on the charge of causing death by dangerous driving, the
courts have generally taken the position that mens rea is relevant for that
offence. Khalif vs R (1973) EA 364 it was held that dangerous driving is not
an absolute offence; there must be some fault on the part of the driver
 At common law, however, crimes of strict liability arise in;
1. crimes of libel
2. crimes of public nuisance
3. contempt of court (the only one applicable to Kenya)
 In R v Shepherd, Lord Diplock famously stated that courts will still discover
new crimes of strict liability from time to time.
 Strict liabilities are a reaction by parliament to save public fear. It may be a
reaction to traffic accidents etc.
 In Sweet v Parsley, the appellant was convicted of being involved in the
management of premises used in the smoking of cannabis. The trial court
agreed with the prosecution that this statutory act did not require mens rea
and the defendant will be guilty under the act and it was therefore not
necessary to prove that he knew that cannabis was being smoked in the
premise. She was convicted. She appealed and the appeal was allowed as
mens rea was essential unless the statute expressly excludes mens rea as part
of the offence.

Crimes of vicarious liability

 In vicarious liability acts of one person will be attributed to another.
 The doctrine has to be kept in strict limits as it remains of uncertain scope
 Distinguish personal duty from vicarious liability
 The true rule of vicarious liability is to be found in the law of torts where an
employer is held liable for all acts performed by an employee in the course of
the employee’s employment, or in close connection with it. This is not true in
criminal law
 Lloyd v Grace smith and co. In this case a solicitor's clerk, without the
knowledge of his employer, induced an old lady to transfer her property to
him under the pretext that it was necessary to facilitate the sale thereof and
then fraudulently sold the property and pocketed the proceeds. A second

18
 claim against the employer succeeded because the clerk was acting within,
the scope of his employer's authority.
 While it is clear that the clerk would today be criminally liable for those acts,
it is perfectly certain that the employer could never could never bear
criminal liability today even though has the civil liability.
 At common law an employer can be held liable for his employees crimes, as a
general rule, only if he participated in the commission of the crime unless it
was public nuisance, criminal libel and contempt of court.
 In Griffiths v Studebakers limited (1924), The respondents had been given
a limited trade license for their trade cars. They were charged as a company
with using on a public highway a motorcar carrying more than two
passengers in addition to the driver contrary to the conditions of their
limited trade license, which prohibited the driver from carrying more than
two passengers. Their servant had driven the car in the course of
employment by giving a trial. It held that the respondents were guilty
because they had used a motor vehicle contrary to the requirements of their
limited trade license. Hewart CJ said

It would be fantastic to suppose that a manufacturer, whether a limited company, a firm, or an

individual, would, even if he could, always show cars to prospective purchasers himself; and it would
defeat the scheme of this legislation if it were open to an employer, whether a company or a firm, or
an individual, to say that although the car was being used under the limited licence in contravention
of the conditions upon which it was granted: “My hand was not the hand that drove the car.” On these
facts there ought to have been a conviction of (the defendants) and also the driver as aider and
abetter.

 Justice Slate said "I am unable to agree that a distinction can be drawn
between using and permitting to be used where the person charged is
accompanied and the liability imposed is vicarious liability of the company
for the -breach of an absolute prohibition by its individual can either commit
an offence himself or he may cause or permit another to commit it. A
company can only commit an offence by its servants. A company can only-use
a motor vehicle in the sense of permitting another to commit it.
 Most certainly, this kind of decision would not stand today. In recent
jurisprudence Taj Din vs Rex, it has been held that apart from statute there is
no rule of law which makes a person criminally liable for the acts of his
servants
 The principle of vicarious liability does not therefore apply in criminal law

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 Lecture 6
GENERAL RULES OF CRIMINAL RESPONSIBILITY

1. Presumptions
Presumptions arise mainly as matters of evidence, in terms of what the prosecution
may be required to prove and what may be presumed. As a rule, presumptions
requires that upon proving one fact, the court may or must infer that some other
facts 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. Presumptions are categorized into two:
1. Presumptions of law
2. Presumptions of fact

1.1 Presumptions of law

These are facts that the court must presume exist. They are:
a) Rebuttable presumptions and
b) Irrebuttable presumptions (conclusive presumption)

 Rebuttable presumptions are those that evidence can be adduced to

contradict them. A fact is presumed to exist but the presumption can be
displaced by evidence to the contrary. For example, section 14 (2) of the
penal code states that a child under 12 years is not criminally liable, unless it
can be proved that at the time of the offence he had capacity to know that
what he was doing was wrong; a marriage ceremony is presumed to signify a
valid union – not always the case
 Irrebuttable presumptions of law is a presumed fact which if found to exist
cannot be contradicted by evidence. For example section 14 (1) of the penal
code presumes that a person under the age of 8 years is not capable of
committing an offence; section 14 (3) of the penal code presumes that a boy
of less than 12 years is presumed incapable of having carnal knowledge

1.2 Presumptions of fact

 These are facts that the court may presume exist on the proof of another fact.
It presupposes the existence of two sets of facts. Upon proof of one set of
facts, the court, may presume another set of facts as having been equally
proven. The court normally infers mens rea or presumes mens rea from
proved facts or elements of actus reus. The inferences made or the
presumptions of fact drawn by the court from the evidence presented by the
prosecution may be rebutted upon the suspect’s defence or explanation.
 In Libambula v R (2003) KLR 683 where the suspect was said to have shot an
arrow at the deceased, it was presumed that, the suspect could foresee that
shooting an arrow towards the deceased could cause the deceased’s death or
grave injury. Thus the suspect desired the kill the deceased – presumed mens
rea or intent to kill. This presumption may be displaced by the suspect’s

20
 evidence that he was not shooting at the deceased but he was hunting and
that the arrow had been fired at his prey
 Also applies in the offence of handling stole property. When found in
possession of stolen goods, the court presumes the person in possession of
the stolen goods is either the thief or had received the goods knowing them
to have been stolen unless he accounts for his possession.

2. Burdens and standards of proof

 Proving a criminal case is a matter of criminal procedure and evidence
 The general rule is that the onus of poof in criminal cases rests throughout
with the state.
 Founded on the maxim: ‘He who alleges must proof’
 R v Surbodinate court of the first class magistrate at City Hall, Nairobi and
another, ex parte Youngidar Pall Sennik and Another Retread Ltd (2006) 1 EA
330: it was stated that when a person is bound to prove the existence of any
facts it is the law that the burden of proof lies on that person.

Burden of proof on the state

 The onus to prove a criminal case is always on the state. The standard of
proof is beyond reasonable doubt. Any doubt is interpreted in favour of
an accused person
 Mwaula and another v R (1980) KLR 127: mere silence by an accused
does not invite the finding that the prosecution has established its case
beyond reasonable doubt

Burden of proof on the accused

 The accused never has a burden to disapprove the charge
 However, the onus to proof shifts to the accused in exceptional
circumstances as follows:
1. When the accused pleads insanity/ raises the defence of insanity
2. A statute may expressly place a burden upon the accused to prove a certain
fact. Section 323 of the Penal Code creates the offence of having or conveying
suspected stolen property – shifts the burden to the accused to satisfy the
court of how he came into possession with the property. Even then the state
still has to prove the crime beyond reasonable doubt, after which the burden
shifts to the accused. Section 29 of Weights and Measures Act places the
burden on an accused person found in possession of a measuring instrument
to explain that the instrument was for use for trade purposes.
3. After the state proving of the positive elements of a crime and an accused
makes a negative averment to the contrary, the accused has to proof the
negative element by producing affirmative counter evidence. For example,
driving without a license. The state has to proof this fact beyond reasonable
doubt. The accused has to prove that he had a licence at the time. Hatibu bin
Rashid and another v The queen KLR 172 (Rudd and Forbes JJ) the
appellants were convicted of moving maize without a permit. The court said

21
 that the facts had been proved such as to raise a probable presumption of
guilt, and in the absence of any explanation to convict.
 This may also be used in cases where the doctrine of recent possession
applies (handling stolen property), corruption cases, or murder where
particularly an accused is said to be the last person to be seen in the company
of the deceased. Ndunguri V R (2001) EA 179 (Omollo, Shah and Bosire)
The appellant was the last person to be seen with the deceased whose body
was later retrieved from the appellant’s latrine. 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 discharge his burden and his conviction was
upheld. Similarly, in Ernest Asami Bwire Abanga alias Onyango v R (1990)
(Tunoi, Lakha and Keiwua JJA) the appellant was the last person to be seen
with the deceased when he was still a live. He was thereafter found dead
under a bed in a hotel room, 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 the
room. The appellant was convicted of murder and an appeal against the
conviction was dismissed.

3. Ignorance of law
 General rule: ignorance of law is no defence
 Exception: where knowledge of the law is an expressly provided for by law to
be one of the elements of a crime.
 Section 7 of the Penal Code: ‘ignorance of law does not accord 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.’ R v Bailey (1800) 1. 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

4. Oblique results
 A person intends to commit crime A, but crime B happens either
independently or simultaneously with the intended crime A. this person will
be held liable for both crime A and B even though crime B is not what he
intended, provided that crime B could be foreseen. What matters is that the
intended results were unlawful in the first place.

5. Double jeopardy
 This is essentially an American concept which prohibits the second trial of a
person on account of the same facts or actual situations. The fifth
amendment of the US constitution provides "Nor shall any person shall be
subject for the same offence be twice put in jeopardy, of life or limb ".

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  In English law the principles applied in the plea of cause of action estoppels
which is either one of a autrefois acquit -meaning previously acquitted or
autrefois convict – meaning previously convicted respectively and they are
pleas that are made when the accused is charged again with the same facts.
 The case of Re Wilson observed in relation to autrefois acquit that the test
to establish in a plea that the defendant had been acquitted is
1. That the defendant had been acquitted of the same offence
2. That he could have been convicted at the previous trial of the offence which he is
now or subsequently charged.
3. That the two offences are substantially the same
 However, a conditional discharge is a bar to a plea of autrefois acquit. A
conditional discharge occurs where the prosecution requests to withdraw a
charge before the accused takes her defence and the magistrate discharges
her. Consequently, if similar proceedings are brought against the accused she
may not plead autrefois acquit.
 In the case R v Nathu and Another 1944 1 EACA 62 The accused were
discharged of certain offences and later charged of the same offences on the
same facts. However, the magistrate did not make a note of this in the case
file and there was some doubt as to whether the prosecution asked to
withdraw the charges. The court of Appeal held that magistrate had rightly
applied the section and discharged the accused and therefore had not
acquitted him. Thus, the plea of autrefois acquit was not available to him.
 With regard to autrefois convict the test is that the offence with which he is
now charged must be the same or practically the same as the one with which
he was previously charged on account of which he was convicted.
 In Republic v Thomas [1945] ALL E.R 662 the accused was convicted of
wounding his wife with intent to murder her and was sentenced to seven
years imprisonment. His wife later died of her wounds (within the year and a
day rule). The Court of Appeal held that although the accused had been
convicted and sentenced for the wounding he could still be tried for murder
and could not plead autrefois convict.
 This position is reflected in Kenya under the s140 of the Criminal Procedure
Code CAP 75 which states;
“A person convicted or acquitted of an act causing consequences which together with that act
constitute a different offence from that for which he was convicted or acquitted may be afterwards
tried for the last-mentioned offence, if the consequences had not happened or were not known to the
court to have happened at the time when he was acquitted or convicted.”

6. Privileges and immunities

Judicial immunity
 Section 15, Penal Code: ‘Except as expressly provided by this code, a judicial
officer is not criminally responsible for anything done or omitted to be done
by him in the exercise of his judicial functions, although the act done in excess
of his judicial authority or although he is bound to do the act omitted to be
done.’

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  In Attoney General v Oluoch (1972) EA 392 judicial immunity was said to
be a matter of policy that was necessary if such judicial officers are to
discharge their duties without fear or harassment by those who may feel
aggrieved by judicial officers actions.

8. Principle of Legality
 It is expressed in the Latin maxim ‘nulla poena sine lege’ loosely translated ‘no
man shall be made to suffer except for a distinct breach of criminal law which
shall be laid down beforehand in precise and definite terms that it prohibits.’
1. Extension by analogy of criminal offences to cover cases not obviously within it.
2. The retrospective imposition of criminality.
3. Prohibits the formulation of criminal statutes in excessively wide and vague
terms.
 In Kenya it is applied through Articles 50(2)(n) and 50(2)(p) of the
Constitution that states that an accused person has the right;
 Article 50(2)(n) states that an accused person has the right;
“not to be convicted for an act or omission that at the time it was committed or
omitted was not—
(i) an offence in Kenya; or
(ii) a crime under international law
 50(2)(p) states that an accused person has the right;

to the benefit of the least severe of the prescribed punishments for an offence, if the
prescribed punishment for the offence has been changed between the time that the
offence was committed and the time of sentencing;

 In the case of R v Price, the accused was charged with the offence of
attempting to burn a dead body through cremation instead of burying it as
was the practice then. Justice Steven acquitted the accused arguing that he
had not found any authority that created such an offence.
 It is unfair to apply to the accused retrospectively a law of greater severity
than the one in effect at the time of his conduct. It is divided at legislative
agencies in order to limit the abuse of power by public officials. The case of
Calder v Bull 3 U.S. 386 (1798) defined ex post facto laws as follows
1. Every law that makes all action done before the passing of the law and which
was innocently done criminal, and punishes such actions.
2. Every law that aggravates a crime or makes it greater than it was when
committed.
3. Every law that changes the punishment and inflicts a greater punishment than the
law annexed to the crime when committed.
4. Every law that alters the legal rules of evidence and receives less or different
testimony than the law required at the time of the commission of the offence in
order to conflict the offender.
 However in 1961, the House of Lords in Shaw v. Director of Public
Prosecutions handed down a decision which caused great consternation

24
 amongst lawyers and commentators: In the case Shaw had published a
booklet called the ‘Ladies Directory,’ which advertised the names and
addresses of prostitutes. The booklet:
“... left no doubt that the advertisers could be got in touch with at the telephone
numbers given and were offering their services for sexual intercourse and, in some
cases, for the practice of sexual perversions.”

Shaw was successfully prosecuted under a number of provisions of the Sexual

Offences Act 1956 and the Obscene Publications Act 1959(of England). He was also
convicted on a charge of "conspiracy to corrupt public morals" on the basis that,
when he published the booklet, Shaw was conspiring with the prostitutes "... to
debauch and corrupt the morals of youth and other subjects of the Queen."

Shaw complained to the House of Lords, inter alia, that the crime of conspiracy to
corrupt public morals was hitherto unknown. All five law Lords upheld the
conviction. Only Lord Reid maintained that the crime with which Shaw was charged
was an existing common law misdemeanour. The other four law lords went further.
They held that courts have a residual power to superintend offences which are
prejudicial to the public welfare. The majority built their argument upon the notion
put forward by Lord Mansfield almost two hundred years earlier, that the courts are
"guardians of public morals" and that they ought to restrain and punish "... whatever
is contra bonos mores et decorum".
 A principle of considerable importance but disquieting possibilities was
established by the House of Lords in Shaw v. Director of Public
Prosecutions. It is difficult not to regard the decision ... as a serious blow
to the principle nullum crimen sine lege.
 In the earlier case of R. v. Manley, Manley made false allegations of
robbery to the police. Before the Court of Criminal Appeal she was found
guilty of "unlawfully effecting a public mischief". This decision was widely
attacked as being an example of ex post facto punishment, as no such crime
existed before R. v. Manley. Courts had avoided following that case until
Shaw v. DPP provided an implied affirmation (and, in the judgment of
Viscount Simonds, an express affirmation) of the decision. Both Manley
and Shaw were found guilty of having committed crimes that were not
recognised as such when they committed the acts in question. These two
cases have been much criticised, yet they remain as examples of how the
principle of non-retroactivity has not been universally applied in British
courts. However, as stated earlier the House of Lords in its decision in
Knuller Ltd v DPP rejected the residual power of courts to create new
offences.

10. Use of force in effecting arrest

25
  Section 18 and 124 of the Penal Code allows security agents and private
individuals to use all necessary means and all such force as are reasonable to
effect a lawful arrest of a wanted person
 When determining the reasonableness of force used, the courts may be
guided by the behavior of the person being arrested and the nature and
gravity of the offence committed or about to be committed.
 In Marwa s/o Robi v R (1959) EA 660. The deceased had gone to the
homestead of the appellant armed with a stick to claim cattle that did not
belong to him. The dispute between the deceased and the appellant was a
long-standing one. Although the deceased was armed with a stick, he neither
used it on the appellant nor threatened to use it or commit any other forcible
crime. He however attempted to drive away the disputed cattle when the
appellant hit him fatally with a spear. The court found that the appellant was
entitled to use reasonable force to prevent the taking away of his cattle, but
the means used were disproportionate to the tort, which was being
committed by the deceased. The thrust of the spear into the chest of the
deceased was calculated to kill, rather than to prevent the removal of the
cattle.
 Similarly, in Muhidini s/o Asumani v R (1962) EA 383, a landowner went
out at night armed with a panga in search of thieves stealing from his farm.
Two people came running towards him, and as they ran past him, he slashed
one with the panga killing him instantly. The deceased was a youth of 16
with no intention of stealing. (discuss)

11. Corporations
 A corporation is a group of people who come together for a common
purpose, usually for business
 Corporations are legal entities with a legal personality distinct from the
natural persons – members, employees, directors – who make up the
corporation
 Corporations include Public Limited Companies, private limited companies,
limited liability partnerships and other organizations such as local
authorities
 In Kenya, a corporation is either established under statute or formed under
the companies Act
 A corporation has the same criminal responsibility as a natural person
 Although a corporation is in law a legal entity, common law still relies on the
culpability of the individual directors in fixing liability on the corporation
 The traditional concepts of actus reus and mens rea can be applied to the
company via its human controllers
 R v ICR Haulage Ltd (1944) 1 All ER 691. A limited liability corporation was
charged with conspiracy to defraud. It raised the objection that it was not a
natural person, it did not have a mind and therefore it could not form a men
rea. The court held that the acts and state of mind of a company’s servants
may be treated as that of the company itself.

26
 Some offences, by their nature, cannot be committed by corporations:
bigamy and perjury
 Section 23 of the Penal Code: where an offence is committed by a corporate
or non corporate body, every person who is in charge of the control of the
management of the affairs of the corporate or the non corporate body is
guilty of an offence and is liable to punishment for it
 Unincorporated bodies such as political parties, trade unions, partnerships
and firms do not have corporate existence. The principles of corporate
liability in criminal law do not therefore apply.
 In the case of a corporation, criminal liability is attached to the company and
its managers. In the case of unincorporated bodies, liability is attached on its
managers as individuals
 Stephen Obiro v R (1962) EA 61, the court observed that an incorporated
body could theoretically be guilty of an offence, but in practice no criminal
proceedings could be instituted against it, for there is no procedure for
bringing it before a court or receiving its plea. The plea of guilty by the
chairman of the society acting on behalf of the society was thus said to be a
nullity as it was not made by a person duly authorized to plead on behalf of
the society

27
 Lecture 7
PARTIES TO A CRIME

Either one party or a group of individuals can commit a crime. In the case of a group,
responsibility is attached to the level of involvement in the crimes thus the need for
classifying parties to a crime. There are two major distinctions of participants of a
crime: principal offenders and accomplices

a) Principal offender
 This is the person who directly and immediately performs the actus reus of
an offence.
 For example, in theft, it is the person who actually steals; murder – one who
pulls the trigger etc

b) Accomplices and consortees

 The difference between a principal and an accomplice is a fine one: unlike the
principal, an accomplice does not bring about the actus reus of the offence
 This refers to the association with the offenders.
 This is where one is accused for associating with actual perpetrators for an
offence in circumstances, which give rise to a presumption that there was
common intention to commit an offence.
 In practice, an accomplice is therefore likely to be either an aider, abettor,
procurer or accessory
 In Watete v Uganda (2000) EA 559, it was stated that a person is an
accomplice if he participated as a principal or accessory, in the commission of
the crime
 Section 20 of the Penal Code includes aiders, abettors and those who
counseled or procured (assisted or encouraged) the principle offender into
this category. Under common law, this would be classified as secondary
offenders or accessories
 Liningushu and others v R (2005) 1 EA 229; the second appellant was the
widow of the deceased, she did not actually kill the deceased, but she was the
mastermind of the crime and she is the one who procured the actual killers.
The third appellant was her daughter who facilitated the killing. Both were
held to be the principle offenders and convicted as such for murder
 The penal Code does not distinguish between principals in the first or second
or third degree as is the case in other jurisdictions. Neither does it
distinguish between secondary offenders and principal offenders as does the
common law.

1. Aiding and abetting

 This is the giving of assistance or encouraging principal offenders either
before or after the commission of a crime

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  Knowledge of the crime intended by other parties is key
 There is no clear distinction between these two terms
 Bonar v McLeod (1983) Scottish Crim. Case Rep 161, a senior police officer
who did nothing while one of his juniors assaulted a detained person, was
convicted as an accomplice for aiding and abetting. He was said to have had a
duty to intervene.

2. Counseling, procurers, instigators and inciters

 Covered under section 22 of the Penal Code
 A person who offers advice on the commission of a crime or procures
another to commit a crime upon conviction will be liable to the same
punishment as if he had committed the substantial offence
 In the case of advice, it is immaterial that the offence eventually committed is
different from the one counseled. Of importance is that the facts constituting
the offence committed are a probable consequence of the counsel
 R vs Benard (1858) 1 F & F 240, a person who counseled another to kill a
particular person was convicted of murder when the person counseled killed
a different person other than the one he had been counseled.
 R v Masabo s/o Mwendabantu 13 EACA 172, a woman was convicted of a
charge of counseling and procuring the murder of her husband. There was
evidence that the man who actually killed the husband was her lover. The
trial court inferred from the evidence that the wife was actively concerned in
the murder and must have counseled and procured her lover to kill him. The
Court of Appeal held that it could not be established from inferences that she
had beyond reasonable doubt aided, abetted, counseled and procured her
husbands death. This was a case of mere suspicion.

3. Accessories before and after the fact

 An accessory after the fact assists an offender evade punishment or by
destroying incriminating materials
 Covered under section 396, Penal Code

396. (1) a person who receives or assists another who is, to his knowledge, guilty of an offence, in
order to enable him to escape punishment, is said to become an accessory after the fact to the
offence.
(2) A wife does not become an accessory after the fact to an offence of which her husband is guilty by
receiving or assisting him in order to enable him to escape punishment; by receiving or assisting in
her husband's presence and by his authority another person who is guilty of an offence in the
commission of which her husband has taken part, in order to enable that other person to escape
punishment; nor does a husband become an accessory after the fact to an offence of which his wife is
guilty by receiving or assisting her in order to enable her to escape punishment.
 In R vs SaidiNsumbuga s/o Juma and another (1941) 8 EACA 81, it was
said that an accessory after the fact of murder can be convicted as such even
when no one has been convicted of murder provided that there is sufficient
evidence of such.

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  The Penal Code has got no provisions on accessories before the fact. In
practice however, this has been used interchangeably with aiders, abettors
and procurers

How does the law treat these parties?

 The law treats both the principal and secondary offenders in identical terms
in terms of punishment
 Question: what about a situation where a person is attacked by a group of
individuals but the medical evidence points to death resulting from a single
stab. (Open discussion as to the distinction between the two parties)
 Unless there is evidence that a particular member of the group inflicted the
fatal wound, the prosecution may have no alternative but to allege that each
member was either the principal offender or an accessory.
 What if there is only one fatal stab? Can the court find all accused persons
responsible as the principle offenders?
 Section 20, Penal Code provides thus:
20. (1) When an offence is committed, each of the following persons is deemed to have taken part in
committing the offence and to be guilty of the offence, and may be charged with actually committing
it, that is to say-
(a) every person who actually does the act or makes the omission which constitutes the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another
person to commit the offence;
(c) every person who aids or abets another person in committing the offence;
(d) any person who counsels or procures any other person to commit the offence; and in the last-
mentioned case he may be charged either with committing the offence or with counselling or
procuring its commission.
(2) A conviction of counselling or procuring the commission of an offence entails the same
consequences in all respects as a conviction of committing the offence.
(3) Any person who procures another to do or omit to do any act of such a nature that, if he had
himself done the act or made the omission, the act or omission would have constituted an offence on
his part is guilty of an offence of the same kind, and is liable to the same punishment, as if he had
himself done the act or made the omission; and he may be charged with doing the act or making the
omission.

 The distinction between principal offenders, accessories, secondary

offenders, aiders and abettors, is therefore more of an academic exercise.
Under Kenyan law, aiding and abetting, procuring and counseling of a person
to commit a crime have all been classified as a principal offender
 Separating principals and accessories is complicated by two factors:

1. Joint principalship: an offence can be committed by more than one

perpetrator (see e.g. Agatha Christie’s Murder on the Orient Express)

2. Innocent agency: where the actus reus of an offence is committed by an

innocent agent, the party who has induced that agent to act is not an
accomplice but a principal.

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Joint offenders
 Section 21, Penal Code provides as follows:
When two or more persons form a common intention to prosecute an unlawful purpose in
conjunction with one another, and in the prosecution of such purpose an offence is committed of
such a nature that its commission was a probable consequence of the prosecution of such purpose,
each of them is deemed to have committed the offence.

 R v Mughuria s/o Bwaya 10 EACA 105, it was said that the common
intention to use violence may be inferred from the fact that the gang is armed
with lethal or dangerous weapons even when if only one of them is so armed.
 R v Okute s/o Kaliebi and another (1941) 8 EACA 78. The deceased died
due to shock resulting from two independent beatings. There was no
evidence to an intent common to the two appellants. The court held that
since the death was caused by the effect of the second beating to which the
appellant was not a party, then they should be acquitted.
 R vs. Enoch Achila and another (1941) 8 EACA 63. The deceased was being
beaten by sticks by the first appellant as the second appellant held him on the
ground. The first appellant then came and twisted the deceased neck
dislocating it. They were convicted of murder. On appeal, the court
considered that the second appellant could not be convicted of murder
unless it was established that not only was he holding the deceased while the
first appellant was twisting his neck but also that he was identified with the
first appellants purpose.
 The mere presence at the scene of the crime does not make a party to the
crime without their participation, R v KingoriwaGakuha 13 EACA 81, this
does not include being a member of the gang committing an offence

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 Lecture 8
INCHOATE CRIMES

 Inchoate crimes are incomplete crimes

 They are divided into: incitement, attempts and conspiracies

1. Encouraging or Assisting Crime –encouraging or assisting another to commit a

crime, similar to accomplice liability (but offence never takes place). A unsuccessfully
tries to persuade B to burgle C’s house
2. Conspiracy – A and B agree that B will burgle C’s house
3. Attempt – B tries to break into C’s house, but does not succeed in doing so.

1. Encouraging or Assisting Crime

An inciter is one who:

“seeks to influence the mind of another to the commission of a crime…[and]
may take various forms, such as suggestion, proposal, request, exhortation,
gesture, argument, persuasion, inducement, goading or the arousal of cupidity.”
R v.Goldman [2001] Crim LR 894

Actus Reus
To incite another to commit an offence, whether or not the offence is actually
carried out:
DPP v. Armstrong [2000] Crim LR 379
R v. Goldman [2001] Crim LR 594

Mens Rea
The prosecution must prove the accused intended the offence incited to be
committed and intended any consequences inherent in the actus reus of the crime
intended.
R v. Curr [1968] 2 QB 944

2.Attempts
 Covered under section 388 of the Penal code:

(1) When a person, intending to commit an offence, begins to put his intention into execution by
means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his
intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.
(2) It is immaterial, except so far as regards punishment, whether the offender does all that is
necessary on his part for completing the commission of the offence, or whether the complete
fulfilment of his intention is prevented by circumstances independent of his will, or whether he
desists of his own motion from the further prosecution of his intention.

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(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact
to commit the offence.

 This is a situation where mens rea alone without prove of the actual actus
reus suffices to find an accused criminally liable.
 Section 389 provides for the punishment of these crimes as follows:

Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable,
if no other punishment is provided, to one-half of such punishment as may be provided for the
offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall
not be liable to imprisonment for a term exceeding seven years.

Question: Can there be accomplice liability for attempts? Consider DPP v.

Armstrong (2000) Criminal Law Review 379

3. Conspiracy
 Even though not defined under the Penal Code, the case of Mulcahy vs The
queen (1868) LR 3 HL 306 defined it as an agreement between two or more
people to do an unlawful act by unlawful means

Common law conspiracy

 There are 2 forms of conspiracy under common law:
a) Conspiracy to defraud
b) Conspiracy to corrupt public morals and outrage public decency

 There are three forms of conspiracy to defraud:

i. Where loss is suffered
ii. Where victim is deceived into taking an economic risk
iii. Where a public official is induced by deception to act contrary to his
public duty

i. Where loss is suffered

 Scott v. Metropolitan Police Commissioner (1975) AC 819: A defendant is

guilty of conspiracy to defraud if they cause economic loss to another with
the intent to cause such harm.
 R v Evans (2014) 1 WLR 2817: must show i) dishonest agreement;
ii)Unlawful means used iii) to damage ownership rights

ii. Where victim is deceived into taking an economic risk

 R v Allsop (1976) 64 Cr App R 29, per Shaw LJ: ‘Where a person intends by
deceit to induce a course of conduct in another which puts that other
person's economic interests in jeopardy he is guilty of fraud even though he
does not intend or desire that actual loss should ultimately be suffered.’

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 iii. Where a public official is induced by deception to act contrary to
his public duty
 Welham v DPP (1961) AC103 (forgery case): under this heading a defendant
can be guilty of fraud even if s/he had no intention of causing anyone to
suffer loss

 Conspiracy to corrupt public morals and outrage public decency

 Knuller v DPP (1973) AC 435: Court of Appeal defines the relevant terms:
 ‘Public morals’ are defined as the ‘publicly shared’ and essential moral rules
of society
 ‘Public decency’ refers to the requirement that the outrageous act is exposed
to general view, e.g published in a book or magazine
 ‘Corrupt’ and ‘outrage’: An appeal to standard sense of proprietary. No
requirement that anyone is actually outraged or corrupted.

Statutory conspiracy
 Conspiracy can either be a felony or a misdemeanor.
 A conspiracy becomes a felony in accordance to section 393 which provides
that
Any person who conspires with another to commit any felony, or to do any act in any part of the
world which if done in Kenya would be a felony, and which is an offence under the laws in force in
the place where it is proposed to be done, is guilty of a felony and is liable, if no other punishment is
provided, to imprisonment for seven years, or, if the greatest punishment to which a person
convicted of the felony in question is liable is less than imprisonment for seven years, then to that
lesser punishment.
 If the conspiracy is with regard to a misdemeanor, then the person
conspiring will be held responsible for the misdemeanor
 Section 394. ‘Any person who conspires with another to commit a misdemeanour, or to do any act
in any part of the world which if done in Kenya would be a misdemeanour, and which is an offence
under the laws in force in the place where it is proposed to be done, is guilty of a misdemeanour.’

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 Lecturer 9
GENERAL DEFENCES

 These are conditions that try to justify or excuse the commission of crimes
that are calculated towards achieving an acquittal of an accused person
 Absolute or partial
 Once an accused raises a defence, the onus is on the prosecution to proof
beyond reasonable doubt that the said defence does not apply to a particular
case.
 Defences are either specific or general. Specific to a particular offence or
general – applicable to more than one crime. It is not general in the sense
that it applies to more than one crime, some general offences are not
applicable to other crimes.

1. Insanity
 This is where an accused claim that he lacked mental capacity at the time of
commission of the acts alleged to constitute the criminal offence.

The test of insanity/ the M’Naghten Rule

 (1843); Daniel M’Naghten, intending to murder sir Robert Peel, killed Peel’s
secretary by mistake. His acquittal of murder on grounds of insanity
provoked controversy and was debated in the legislative chamber of the
House of Lords, which sought the advice of the judges and submitted to them
a number of questions. The answers to these questions became the famous
‘M’Naghten Rules”

…to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the
committing of the act, the party accused was laboring under such a defect of reason, from disease of
mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did
not know that he was doing what was wrong.

 This presents two lines of defence to an accused:

1. An accused must he acquitted if, because of a disease of mind, he did not
know the nature and quality of his acts (an effective denial of mens rea) or;
2. Even if he did know the nature and quality of his acts, he must be acquitted if,
because of a disease of mind, he did not know it was wrong
 Adopted under section 12 the Penal Code;

 The ‘nature and quality of his act’ refers to the physical nature and quality of
the act and not to its moral or legal quality. It simply means that D did not
know what he was doing: for example, A kills B under an insane delusion that
he is breaking a jar and where a mad man cuts a woman’s head thinking he is
cutting a loaf of bread

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  Regarding the second limb, the question the courts will be asking is: was the
accused able to appreciate the wrongness of his acts? Even if an accused did
not know that his acts were contrary to law, he will still be liable if he knew
that it was wrong ‘according to the ordinary standards adopted by ordinary
man’. The fact that an accused thought it was right is irrelevant if it is proven
that he knew that people generally considered it wrong
 In Philip Muswi s/o Musele v Reginam (1956) 22 EACA 622. The accused
was convicted of the murder of his wife. He argued that he did not know
what he was doing. Psychiatric evidence was tendered to proof that he was
depressed and though he was justified to kill his wife. That his believe as to
whether what he was doing was right or wrong was coloured by his believe
that his wife was practicing witchraft. He appealed asking the court to find
him guilty but insane. The appeal was dismissed as the court found that he
was able to give a fairly coherent account of what happened, suggesting that
he knew what he was doing.
 This rule has been criticized for being over-inclusive (Smith and Hogan, 13
Edn. (2009) 295). In England for example, this has been interpreted to
include everyday illness like diabetes
 Amnesia, Bipolar, Dementia, PTSD

Insane delusions and insanity

 Not covered under the Penal Code; applicable as a common law rule
 This is an insane believe which cannot be eradicated from a person’s mind by
reasoning with them.
 The rule is, an accused person suffering from insane delusions must be
treated as being in the same position of responsibility as if the facts with
respect to which the delusion exists were real. The defence would be
available, for example, in a case where a person is deluded into thinking that
another is attacking them to kill them, and he kills that other person in
purported self-defense. In such a case, if the facts are believed as he believed
them, he would be justified in killing in a reasonable self-defense
 Rex v Gerevazi s/o Lutabingwa (1952) 9 EACA 56. The accused murdered
his mistress and raised the defense that he was suffering from a delusion that
she was committing adultery with other men. (class discussion)
 The burden of proving insanity is on the accused and the standard of proof
required is on a balance of probability. However, after the accused has
proved the defence, the burden shifts on the prosecution to disapprove the
defence beyond reasonable doubt

Finding guilty but insane

 This is where the accused successfully proves the defence of insanity but the
prosecution proves actus reus, then a finding of guilty but insane is entered.
 Following such finding, the accused is detained during the pleasure of the
president – which period of time is indefinite
 Constitution Section?

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 3. Intoxication
13. (1) Save as provided in this section, intoxication shall not constitute a defence to any criminal
charge.
(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at
the time of the act or omission complained of did not know that such act or omission was wrong or
did not know what he was doing and -
(a) the state of intoxication was caused without his consent by the malicious or negligent act of
another person; or
(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of
such act or omission.
(3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a)
thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of
this Code and of the Criminal Procedure Code relating to insanity shall apply.(4) Intoxication shall be
taken into account for the purpose of determining whether the person charged had formed any
intention, specific or otherwise, in the absence of which he would not be guilty of the offence.
(4) Intoxication shall be taken into account for the purpose of determining whether the person
charged had formed any intention, specific or otherwise, in the absence of which he would not be
guilty of the offence.

 Section 13 P.C- As a general rule, intoxication is no defence

DPP V Majewski (1977) AC 443 per Lord Elwyn-Jones; Intoxication ‘in order to
escape from reality, to go on a trip, to become hallucinated’ is recklessness enough
in itself to provide mens rea

 The law recognizes 3 instances under which intoxication can be said to be a

defence:
1. Involuntary intoxication
 R v Kingston (1994) 99 Cr App R 286: involuntary intoxication is not a
defence unless there is complete lack of mens rea in the defendant.
2. Intoxication amounting to insanity
3. Intoxication negating intension

4. Infancy
 Section 14 (1) of the Penal Code creates an irrebuttable presumption that a
child under 8 years can never be held responsible for any criminal offence.
 Section 14 (2) creates a rebuttable presumption that a child under 12 years
is not criminally responsible unless it is proven that the child had the mental
capacity to comprehend the criminal acts
 Section 14 (3) creates an irrebutable presumption that a boy under the age of
12 years is incapable of having carnal knowledge. Thus this age group enjoys
total immunity from crime of rape or defilement.
 In Rex v Opiri s/o Meope and another EALR 90 a boy of 12 to 13 assisted
another boy of over 14 years to rape a woman. It was held that the boy of 14
was capable physically to commit rape on a woman as he had reached the
age of puberty. The other boy, though incapable of committing rape, he was
himself guilty as an abetter for assisting his colleague.

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 5. Duress/ compulsion
 An accused claim that he or she was compelled by another or others to
commit the crime which they are being charged for
 Provided for section 16 of the Penal Code which limits the application of the
offence to the following circumstances:
1. The offence is committed by two or more offenders
2. The compulsion consists of threats to kill or cause grievous bodily harm to
the person compelled if he refuses
3. The threat is applied through out the period of the commission of the
offence- future threats not applicable
4. Not applicable to justify murder/ attempted murder
 M’Kanyoro v R (1962) EA 110: the threats need not be articulate, they can
be inferred from conduct and surrounding circumstances

5. Necessity
 This is when an accused is confronted by two unpleasant alternatives and he
reasonably believes that his acts or omission would avert a greater harm
 Not expressly provided for under Kenyan law: section 240 Penal Code on
justified surgical operations
 R v Bourne (1938) 3 All ER 615. A surgeon operated on a 14 year old who
was pregnant after being raped by a soldier. The surgeon was acquitted of
murder on grounds of necessity.
 The courts have however declined to apply the defence to cases of murder: R
v Dudley and Stephens (1884) 14 QBD273. Three men and a boy of the
crew of a yacht were shipwrecked. After 18 days in an open boat, having
been without food and water for several days, the two accused suggested to
the third man that they should kill and eat the boy. He declined but two days
later, Dudley killed the boy who was now very weak. The three men fed on
the boy’s body, and four days later, they were rescued. The accused were
indicted for murder. The Jury, by a special verdict found that the men would
probably have died within the four days had they not fed on the boy’s body,
that the boy would probably have died before them, and that at the time of
the killing, there was no appreciable time of saving life, except by killing one
for the others to eat. He was convicted of murder but the sentence was
commuted to 6 months imprisonment.
 The court distinguished killing in self defense which was justified, from
killing of an innocent person to save one’s own.
 There are three interpretations of Dudley and Stephens
i. There is no defence of necessity in English Law
London Borough Southwark v Williams (1971) 2 All ER 175 Lord Denning
‘Necessity would open a door which no man could shut…’
ii. There is a defence of necessity but it is not applicable to murder
R v Howe (1987) AC 417, per Lord Hailsham

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 iii. Necessity is not a defence to murder if there was an element of
selection of the victim

6. Marital coercion
 Under common law, a wife charged with a felony in her husbands presence
was presumed, unless proven otherwise, to have acted under his coercion
and was entitled to acquittal.
 Section 19 of the Penal Code has changed this. Coercion by husband for
offences committed by the wife in the presence of the husband can no longer
be presumed unless wife proves it. This will however not apply in cases of
murder and treason
 At common law it was seen to be the duty of the wife to care for the husband
and keep his secrets. Thus, she does not become an accessory after the fact if
she were to shield the husband from punishment. However, given similar
circumstances, a husband was treated as an accessory after the fact. Section
396 (2) of the Penal Code treats spouses equally: none of them becomes an
accessory to the fact if they were to assist each other escape from
punishment after committing a crime.
 Under common law, husband and wife cannot be convicted of conspiracy
with each other unless a third party is involved or that one spouse incited
another to commit a crime even when the elements of incitement are proved.
No similar provisions under the penal Code. The common law position would
still apply is Such circumstances.
 Under both common law and section 274 of the Penal Code, a husband
cannot steal from a wife and vise versa. So long as the two are married
 It is presumed that they have common ownership of property
 Spousal rape under common law and the Sexual Offences Act
 Under common law a spouse was generally deemed to be an incompetent
witness at the trial of the other spouse except where the other spouse was
being tried for bigamy, treason

7. Superior orders
 There is no provision in the Penal Code in this regard but the principle is that
a person is not criminally responsible for an act or omission in obedience to
an order, which he is bound by law to obey, unless the order is manifestly
unlawful. One cannot hide behind an unlawful order to escape criminal
responsibility

8. Mistake of fact
 Section 10 of the Penal Code provides as follows:
10. (1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the
existence of any state of things is not criminally responsible for the act or omission to any greater extent than
if the real state of things had been such as he believed to exist.
(2) The operation of this section may be excluded by the express or implied provisions of the law relating to
the subject.

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  This defense applies where an accused holds honest and reasonable but
mistake and if the facts would have existed as the accused believed them to
have, he would still not have committed an offence by acting the way he did.
 Nyamweru s/o Kinyaboya v R (1953) 20 EACA 192, the accused had killed
his wife. It was suggested that he did so under the mistaken believe that she
had poisoned his beer. The court discounted the defence on the basis that if
indeed he had labored under such believe then it could not have been an
honest and reasonable mistake since the same was attributable to self-
induced drunkenness
 Chabijana v R EACA 104, the accused deliberately killed his father under the
honest belief that the father was at that moment killing the accused son by
supernatural means. If the belief was reasonable in law, the accused would
have been acting under a mistake of fact in defence of his son. An appeal
based on this argument was dismissed, as the court was of the view that a
belief in witchcraft was not a reasonable mistake of fact.

9. Alibi
 The physical presence of an accussed person at the scene of crime
 This is when an accused person claims that he was not at the scene of the
crime at the time when the crime is said to have been committed
 Karanja v R (1983) KLR 501 (1976-1985) EA the court observed that this
defence should not just be mentioned in passing, some evidence must at least
be given on it

10.Consent
 This is important in crimes that require the luck of consent from the victim of
the crime in proving actus reus
For example, the crime of rape: the Sexual Offences Act provides as follows:

3. (1) A person commits the offence termed rape if -

(a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;
(b) the other person does not consent to the penetration; or
(c) the consent is obtained by force or by means of threats or intimidation of any kind.

11.Accident
 A creature of section 9 (1) of the Penal Code: ‘a person is not criminally
responsible for an acts or omissions which occurs …by accident’
 In such incidents, the accused engages in an innocent act without any
element of mens reas: there is no foreseeability that his/her acts may lead to
the crime committed, neither is s/he reckless nor criminally negligent
 David Odindo Ojowo v R Kisumu CACRA No. 71 of 1983. The accused was
beating his wife when one of the blows fatally injured his six month daughter.
He was convicted on his plea of guilty for manslaughter. His reliance on the
defence of accident since the blow was meant for the wife was said to be
immaterial since a reasonable person ought to have foreseen the

40
 consequences and that his initial act was unlawful and intended to cause
grievous bodily harm.

12.Bona fide claim of right

 This is a claim that an accused was entitled in law to act in the manner that
he did. The accused must therefore proof that he honestly believed that he
was entitled to act in the manner that he did.
 Created by section 8 of the Penal Code: a person is not criminally responsible
in respect of an offence relating to property, if the act done or omitted by him
was done in an honest claim of right and without intention to defraud.
 Mainly common in theft cases, malicious damage to property et cetera-
generally property related crimes.
 Oyat v Uganda (1967) EA 827. Five oxen strayed into the land of the
appellant destroying crops. The appellant seized and impounded them in his
compound. The owner was ordered by the clan chief to pay compensation to
the appellant whereupon the appellant released four of them and retained
one until the owner paid the compensation. The owner pleaded inability to
pay the compensation and the appellant sold the ox. He pleaded bona fide
claim of right but he was convicted of theft. On appeal, the conviction was
quashed as the appellant was said to have right of lien.

13.Self defence/Defence of self/ defence of another/ defence of property

Lecturer 10
An overview of Criminal Practice in Kenya
Guest Lecture: Ms. Mary Wang’ele of the ODPP

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