CHAPTER 4

I
'
G:ENERAL RULES OF CRIMINAL REsPONSIBILITY

4.1 INTRODUCTION

Several principles govern criminal responsibility. Some of them relate to the substance
of criminal law while others are more relevant to the criminal process. In either case,
they have an impact on the accused person's responsibility for the alleged crime. ,

4.2 PRESUMPTIONS

There are certain presumptions that are recognised in criminal practice. They arise
mainly as matters of evidence, in terms of what the prosecution may be required to
prove, and what may be presumed. Presumption is a rule which requires that upon
proof of one fact, the court may or must infer that some other fact exists or it may
presume the existence of those fact~. 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 classified ~o presumptions oflaw and presumptions of fact.

(1) The Presumption of Innocence

The presumption of innocence underlies the criminal law of Kenya, 580 and it 1s
provided for in article 50(2)(a) of the Constitution, which provides that an accused
person is entitled, as part of the rights to a fair trial, to be presumed innocent until
the contrary is proved. According to article 50(2)(i), this includes the right to remain
silent and not to testify during the proceedings. This means that since the accused is
presumed to be innocent until the contrary is proved, he is not obliged during his trial
to say anything in an effort to prove his innocence.

(2) Presumptions of Law

Presumptions of law are classified into rebuttable and irrebuttable presumptions. A
presumption of law is a fact that the court must presume exists.

(a) Irrebuttable Presumptions

An irrebuttable presumption oflaw581 is a presumed fact which if found to exist cannot
be contradicted by evidence.582 They may also be described as absolute inferences
established by law and in respect of which evidence is not admissible to contradict
them. 583 Under section 14(1) of the Penal Code it is presumed that a person under
the age of eight years is not capable of committing an offence. This is an irrebuttable
-
~ ...... presumption oflaw; once it is established that the suspected offender is a child less than

580 See PhilipP Durand, Evidencefor Magistrates, Kenya Institute of Administration , Nairobi , 1969, v
581 Also known as a conclusive presumption.
582 See Mwachia v R epublic (1991) KLR 398 (Wambilyangah J) .
583 See generally Durand, s11pra, 63.
 William Musyoka WilUam Musyoka
64 Criminal Law General Rules of Criminal Responsibility · 65,

eight years old no charges ought to be brought against him.584 No evidence can be led
to prove that he corlimitted the offence. Under section 14(3) of the Penal Code, a boy
of!ess than twelvtt years is presumed incapable of having carnal knowledge. It follows
that once it is proved that the boy is under twelve no evidence should thereafter be
led to prove that he has committed rape or defilement.
consorting intended or was about to act or recently acted with the person ~ith whom
he had consorted in a manner prejudicial to public safety or preservation of public
588
order. In the other words proof of consortment entitles the court to presume an '
intention on the part of the accused to act jointly with his accomplice or to presume
that the accused previously acted jointly with his accomplice. 589 ._

(b) Rebuttable Presumptions (b) Statutory Presumptions

A rebuttable presumption of law is '._pne that can be contradicted by evidence. A Some presumptions of -fact are creatures of the statute. For example, the Anti-
particular fact is presumed to e~st b~i· the presumption can be displaced by evidence Corruption and Economic Crimes Act at section 58 creates a presumption of fact,
to the contrary. Section 14(2) of the 'Penal Code, for example, creates a rebuttable stated as a presumption of corruption, where the accused person is proved to have
presumption of!aw. It states that a child under twelve is not criminally liable, unless it done the act charged he would be presumed to have done that act corruptly unless
can be proved that at the time of the offence he had capacity to know that he ought the contrary is proved. 590 Section 29 of the Weights and Measures Act creates a
not to do the act. It is also a rebuttable presumption of!aw that a marriage ceremony presumption of fact concerning possession. Where a person carrying on trade is found
constitutes a valid union . Once a marriage ceremony is proved, it is presumed that to be in possession or control of a weight, measure, weighing or measuring instrument,
the resulting union is valid, but evidence can be led to show that although there was he shall be deemed to have the same in his p0ssession for use for trade. 591 Part V of the
a marriage ceremony the resulting union was not valid. Section 29 of the Weights and Evidence Act deals with presumptions as to documents. The court is to presume the
Measures Act creates a rebuttable presumption of law to the effect that possession of genuineness of such documents, u~ess the contrary is estabMhed. 592The documents
a measuring instrument is proof that the possessor intended to use the instrument for mentioned in these provisions include certified documents, 593 records of evidence, 5 9 ~
trade purposes. 585 gazette notices and related documq~s, 595 maps or plans, 596 laws and judicial reports, 597
The presumption of innocence would also come under this heading. A person powers of attorney, 598 certified copies of foreign judicial records, 599 books, 600 telegraphic
60 1
arraigned in court accused of an offence is to be presumed innocent until proven messages, among others. By virtue of section 83 (2) of the Evidence Act the· court
guilty. This is a rebuttable presumption of law that can be displaced by evidence to is to presume with respect to certified documents that the officer who purported to
the contrary, and it is usually displaced by proof by the prosecution through evidence sign or certifY it had the official character claimed in the document. Section 95 of the
produced in support of the charge that the accused comm.itted the offence beyond Evidence Aq enables the court to presume that every document called for and not
reasonable doubt. produced after notice to produce It was attested, stamped and executed in accordance
with the law. 602
(3) Presumptions of Fact 588 See also Rex v Cla11d Hularr [1 932) 14 KLR/EALR 140 (Sir Jacob Barth CJ, Sir j osep h Sheridan CJ and Law
~~· .
(a) The Princ~ple 589 See also Gatlrega sl o Waweru v Regiumu (1954) 21 EACA 349 (Sir Newnham Worley Ag P, Sir fnoch Jenkins
Ag VP and ~nggs JA) and Theodore Abrmg11 Okotlr v Rep11blic Mombasa CA!:RA No. 104 of 1999 (Gicheru ,
This is a fact that the court may presume to exist on the proof of another fact. 586 It , Shah and 0 Kubasu JJA). See Regma v Raurza11 Alr111ed ]a111al (1955) 22 EACA 504 (Sir Barclay Nih ill P, Sir
presupposes the existence of two sets of facts. The court may on the proof of one fact Newnham Wo rley VP and Holmes J), with respect to false pretences, where it was said that the intent to
defraud may be inferred from the facts. See also Wesrcotr v Rep11blic [1969) EA 624 (Sir C harles Newbold P,
or set of facts presume that the other fact or set of facts are equally proved. 587 In Gathere DuffusVP and Law JA). See also section 117(1) of the O ccupational Safety and Health Act, where it is to
s/o Ndegwa v Reginam (1954) 21 EACA 220 (Sir Barclay Nihill P, Sir Newnham , be presumed that a person found in a workj;llace at any time in whi ch work is going on or machinery is in
motion 1s employed m that workplace unless it is proved to th e contrary.
Worley VP and Briggs JA), for example, it was held that it was an essential ingredient of 590 See also sections 45 and 46 of the Societies Act, section 45 of the Weights and Measures Act and section 89(2)
the offence of consorting, defined in the Emergency Regulations, 1952, that from the (3) of the Penal Code. ·
circumstances of consortment a reasonable presumption should arise that the person 591 See also section 44 of the Weights and Measures Act.
592 Compare with section 13 of the Registration of Persons Act.
593 Secti on 83 of the Evidence Act.
584 See Rex 11 Kaburi wa Kimki aud another [1 938-1939) 18 KLR 171 (Sir Joseph Sheridan CJ and Lucie-Smith J). 594 Section 84 of the Evidence Act.
585 See Mwakima aud rli,~rhers v Repri'W,~.9iii9] KLR 530 (Bosire J) and Kariuki aud auorher 11 Republic [2005] 2 595 Sections 85 and 86 of the Evidence Act.
EA 97 (Omolo, Gitl1inJI a11<;\ W~·Jft>;J.
596 Secti on 89 of the Evidence Act.
586 Rebuttable presumptions are also known as provisional presumptions. See also Rusweri v Republic [1989] KLR
597 Section 90 of the Evidence Act.
614 (Platt, Gachuhi and Apaloo JJA). and 1\!falreudra Rajajai11 v Republic [1 966) EA 319 (Sir C lement de Lestang
Ag P, Spry AgVP and Law JA). _+ 598 Section 91 of the Evidence Act.
;.,
587 See Yirsufir Girta v R [1959) Eft 211 (Bennett J), Prablurlal v Republic [1971] EA 52 (Law Ag VP, Lutta and 599 Section 92 of the Evidence Act.
Mustafa JJA) and Rex v Mpaude s/o Ndele (1938) 5 EACA 44 (Sir Joseph Sheridan CJ, Sir C harles Law CJ 600 Section 93 of the Evidence Act.
and Lucie-Smith J). See also Pare/ v Republic [1 968] EA 97 (Sir C harles Newbold P, Duffus and Spry JJA),
601 Section 94 of the Evidence Act.
Larvreuce s/o Maliki 11 Republic (1973) 12 LRT 43 (OnyiukeJ) and Shilli Kibabu vTire Republic (1977) LRT 263
(Lugakingi ra Agj) with respect to the doctrine of res rpsa loquilor which is a presumption offact, where proof 602 See also section 118A of the Evidence Act, on the presumptio1 of death and section 119, on presumption of
of an accident raises, in some cases, a presumption of proof of negligence on the part of the defendant. likely facts. See also section 143(1) of the Children Act.
 William Musyoka
66 C ril'ninal Law
(c) Inferences as to mens rea Elements
The court normallf infers mens rea or presumes mens rea, that is the elements of
intent, 603 knowledge, 604 foresight, etc., from the proved facts or the elements of the actus
reus. 605 The prosecuti on leads evidence on the actus reus elements of the offence, from
which certain inferences may be drawn on the 1n.ens rea of the suspect. 606 During the
defence, the suspect is expected to explain his conduct. From the suspect's defence or
explanation , the inferences made or the presumptions of fact drawn by the court from
the evidence presented by the prosecp.tion may be rebutted.607 In Mbithi s/o Kisoi and
others v Reginam (1 955) 22 EAC~ 48~. (?ir Barclay Nihill P, Sir Newnham WorleyVP
and Paget Bourke Ag JA), the appellant was a police informer w ho attended an oath
taking ceremony, and was convicted of taking an unlawful oath without compulsion,
apparently because he sought to distance himself from the police after taking the
oath. The appellate court declined to infer or presume from the proved facts of the
appellant's attendance at the oath- taking ceremony, of taking the oath and later his
wishing to have nothing more with the police, that he had a guilty intent. In the
opinion of the appellate court that presumption could only be made upon. proof
that the appellant attended the oath-taking ceremony with mens rea . Since it had not
been established whether he attended as an agent provocateur or with mens rea he was
given the benefit of the doubt and his appeal against conviction allowed. 608 In Njoroge
v Republic [1983] KLR 197, [1982-88] 1 KAR 142 (Madan, Potter JJA and Chesoni
AgJA), the court inferred common intention on the part ofthe appellants from their
j oint presence at the deceased's home, their actions and the omission of either of them
to dissociate himself fi:om the assault on the deceased.609
603 In H K Bwire v Uga 11da [1965] EA 606 (Sir Udo Udoma CJ), it was stated th at it is a well-established principle
of law that a man's intention in doing an act can seldom be capable of positive proof, as such an intention can
on ly be impli ed fi:om th e overt acts of th e person co ncerned. Where intent is an essential ingredient in the
commission of an offei7ce such intent can o nly be inferred as a necessary conclusion from the acts done by
the person concerned. See also Paipai Arib11 v U..~a11da (1964] EA 524 (Sir Udo Udoma CJ) and Abd111la Abdul
Majid A I- As11ag a11d others v R [1963] EA 223 (Sir Ronald Sincl air P, Sir Trevor Gould AgVP and N ewboldJA).
604 See Garlwm v R epi.tblic [2005] 2 KLR 58 (Tunoi, O'Kubasu and Deverell JJA).
605 See W J Lockhart-SIIlith v U11ired R epublic (1965] EA 211 (Weston J), Karin go v B.,epublic [1982] KLR 213
(Law, M iller and Potter JJA), i\!lkeudesluvo v R epublic (2002] 1 KLR 461 (Omolo, Shah and Bosire JJA) and
Dhimjlal Ra111ji Kh eta 11i v R [1 957] EA 563 (Sir Newnbam Worley P, Briggs AgVP and Forbes JA).In Cleopas
Hm11isi Oforo v Rep11blic v R epublic Mombasa CACRA No. 26 of 1984 (Kneller JA, Cbesoni and Nyarangi Ag
JJA), it was said that intention may be inferred fi-om fac ts and/or surrounding circumstances of the particu lar
case. O n the facts of th e case the appellant bad , after receivin g a share of the stolen money, given almost all of
it to a third party with the intentio n of putting it o ut of the police reach. From the facts the court inferred
the intentio n to permanen tly deprive the true or special owner of the stolen pro perty. See also Peter Celesti11o
Nyaga v Rep11blic Nyeri CACRA No. 184 of 1987 (Nyarangi, Apaloo JJA and Masime Ag J A)(Republic of
Kenya, Court of Appeal Judgements, Criminal Appeals, 1987, 167).
606 In Rex v Mahi11da M11bago [1 935] 16(2) KLR 138 (Webb J and Gamble Ag J), it was observed that normally
the law presumes that a person intends the natural consequ ences of his actions, which means from the acts
607
in acting in the way he did.
. .
proved by th e prosec ution the court should draw certain conclusions on the intention of the accused person
.
See Ha rry A llllllfl)'i ~~i vRep ubli~iill'tJ C ACRA No. 48 of 1994 (Kwach, Tunoi JJA and Bosire AgJA) ,
,.vhere the court found th';rt·tht 1ri$EJ1;,,t had been asked to accoun t fo r all the money he was shown to have
received on accoun t of his employer but he failed to do so. lt was said that a rebuttable presumption was raised
that he had stolen the mo ney. It was held that the onus was on him to rebut that presu mption . It was said
that he co uld do so, eith er by pwducing the money, or by showing how it had been applied, if at all , for th e
benefi t of the employer. H e had'been given an opportunity but he failed to do so.
608 See also j olm Nzoli and a11other 11 R (1961] EA 575 (Sir Ronald Sinclair C) and Ruddj).
609 See also R ex v N dlllldll Mwamchllbi a11d others (1948) 15 EACA 101 (Sir Barclay Nihill CJ, Edwards C) and Sir
Gray John Gray CJ) and Lamamblltll slo Maka lya a11d another v R [1 958] EA 706 (Sir Kenneth O'Connor P,
Briggs VP and Gould JA).
William Musyoka
General Rules of Crim inal Responsibility· 67,
On a charge of murder, for example, where the suspect is said to h~ve shot an
arrow at the deceased, an inference could be made or it would be presumed that the
suspect could foresee that shooting an arrow towards the deceased could cause the '
deceased's ·death or grave injury. 610 It could be inferred that the suspect desired to kill
the deceased by shooting the arrow towards him, that is presumptionlhat h e had the
mens rea or intent to kill would be displaced should the suspect explain that he was
not shoot111g at the deceased, but that he was in fact hunting and that the arrow had
been fired at his prey, unfortunately the arrow found the deceased who happened to
be 111 the same general direction with the prey. In such scenario, the actus reus elements
would remain true, that an arrow was sho t and it killed the deceased, but thew the
target was not the deceased but the animal that the suspect was hunting. In Ndunguri v
Republic [2001] 1 EA 179 (Omolo, Shah and Bosire JJA), the court made a rebuttable
presumption offact that the appellant who was last person to be seen with the deceased
and in whose latrine the deceased's body was retrieved, knew the circumstance uncle:
which the deceased died, 611 and upheld his c~mviction for murder. 6t2
There is also the presumption that a person is taken to intend the natural and
probable consequences ofhis own ac~s. Such presumption woufd mean that the actions
of the person ar_e conscious as opposed to being mistakes . A court can from proof of
the ac~us reus elements of the offer~ draw conclusions on the mens rea element of
mtentwn. It was pointed .o ut in Rex v Mah inda Mu bago [1935] 16(2) KLR 138 (Webb
J and Gamble Ag J) that the presumpt~on does not extend to accidental acts. ·
(d) Presumption arising from Recent Possession of Stolen Property
The application of the doctrine of possession of stolen property relies on the principle
of presumption of facts. 613 The principle is that where an accused person has been
foun.d 111 possesswn of property very recently stolen, in the absence of an explanation
by h1m to account for his possession, a presumption arises that he was either the thief
•
610 See Libm11bu/a vRcpublic [2003] KlR 683,2 EA 547 (Tunoi, O 'KubasuJJA and Onyango-Otieno AgJA) , with
respect to drawmg m ferences relating to motive.
6 11 See also Kibocha 11 Republic (2009] KLR 376 (.bEO Bosire, PN Waki and A Visram JJA)
612 See Oteude Osejani 11 Uga11da [1 965] EA 627 (Sir Samuel Quashie- ldun P, Si r Clement de Lestang and Law
JJA), where It was held that the d1scovery of a woman , w ho was cohabiting with the appellant, w ith anoth er
man by th e appellant In cncumstances whJCh would have amounted to adultery was such as to raise a
presumption that the klllmg of th e man by the appellant was don e under provocation, takin g into account the
long-standmg concubmage between the appellant and the woman . l t was sta ted in Muimri Njoroge v R epublic
Nakuru CACRA No .. l 8 of 1999 (Tuno i, Lakha and O w uor JJA), that the doc trin e of recent possession is a
613
presumptton of f.1c t ansm g under sectwn 11 9 of th e Evid ence Act.
It also appli es in cases of receiving or handling stolen property, see R ex v Rajabali slo Jbmhi,;I [1 942] 20 (1)
~R 71 (Sirjos,eph Shendan CJ and Bartley J),Yusu[ll Citra v R [1 959] EA 211 (Bennett]), Maganbhai Pallchal
R ex [1 940- 1941) 19 KLR 84 (Sn j oseph Shendan C) and Bartley J), Christopher Mwangi 11 Republic [1982-88]
1 KAR ; 170 [19~6-1989] EA 382 (Nyarangi, Gachu hi JJA and Masime AgJA), Abdul A li Kassum v Regi11 mu
(1955) 2_ EACA ~30 (Su Barclay Nih ill P, Sir Newnham WorleyVP and Lowe ] and Kari 11go v Republic [1982]
7
KLR _1 3 (Law, Miller and Potter JJA). It also applies to murder cases, see Ekai v R epublic [1981) KLR 569
(Law, Potter JJA and Sm1pson Ag JA), Wm11bura v R epublic [1 990- 1994] EA 609 (Nyalali CJ, R amadhani JA
and M ap1gano.Ag JA), Michael MliJ•to 11 R epublic (1975) LRT 72 (Biro n J), Mwangi v Republic [2005] 2 KLR
37 1 (TunoJ, 0 Kubasu and G1th111Jl JJA), Abdullah I brahim ." R [1 960) EA 43 (Law J), and Andrea Obo 11 y0 and
others "R [1962] EA 542 (S1r Ronald Smcla1r P, Sue Alastau- Forbes VP and Sir Trevor Gould JA). H owever, it
does not apply to the offences created under the Stock Theft and Produce Act, see Rex v Kimweuo amp Korie
[1 938- 1939] 18 KLR 39 (Str Joseph Shendan CJ,Thacker J and Lane Ag J).
 William Musyoka
68 Criminal Law
or a handler by way of receiving. 614 His possession raises a presumption of his guilty
connection with any further crime that accompanied the theft, 615 such as burglary,
arson, robbery 616 .!'Or murder. 617 The principle was restated in Wamavuno v Uganda
[2001] 2 EA 608 (Odoki CJ, Oder,Tsekooko, Mulenga and KanyeihambaJJSC), that
a court could presume that a man in possession of stolen goods soon after the theft
was either the thief or had received the goods knowing them to be stolen, unless he
could account for his possession. It is open to the court to hold that an unexplained
possession of recently stolen goods w · ~· incompatible with innocence.618 It was held in
Rex v Hassani,..5/o Mohamed alias Kin)io~yoke (1948) 15 EACA 121 (Sir Barclay Nihill
CJ, Edwards CJ and Sir John Gray cn.,~that the presumption of recent possession is a
presumption of fa~t and not an implication oflaw. 619
In other cases of possession too presumptions of fact are made from proof of
possession that the accused has guilty knowledge. In Oremo v Republic [1991] KLR
221 (Gachuhi, Masime JJA and Omolo AgJA), it was held that the court is entitled to
draw an inference that an accused person in possession of false documents which he
uttered to his employer in order to obtain a payment to himself must have known the
documents were false. In Alley Ali and another v Republic (1973) LRT 152 (Mfalila Ag
J), it was held that where it is established that a forged document was at all material
times in the possession of the accused, a reasonable presumption can be drawn that the
accused forged the document even without proof of the hqndwriting.
(e) Presumption Arising from Failure to call a Witness
There is also the presumption of fact arising where a party fails to call a crucial witness
that his evidence would have been unfavourable to the party. 620 The principle was
stated in Rex v H K A Uberle (1938) 5 EACA 58 (Whitley CJ, Gamble J and Johnston
614 See Shabani s/o J11111a a7ias Slwbani s/o Nassero alias Slwbani s/o Hassan 11 Regina111 (1953) 20 EACA 199 (Sir
Barclay Nihil! P, Sir Newnham Worley VP and Mayers J) , Mwanla and another 1111le Reprtblic [1 980] KLR 127
[1976- 80] 1 KLR' 1656 (Law, Miller and Potter JJA) , Rashid 11 R epublic [2011] 2 EA 350 (Rutakangwa,
Mbarouk and Bw~na JJA), M'lirluunia 11 Republic [2008] 2 EA 214 (Oj wang and Lenaola JJ) and Mkendeshwo
11 Republic [2002] i KLR 461 (Omolo, Shah and Bosire JJA). See also Kariuki and anorher 11 R epublic [2005] 2
EA 97 (Omolo, Githinji and Waki JJA) , in respect of the presumption that the possessor of property recently ,
stolen in a violent or armed robbery is the robber.
615 In Kilotne 11 Republic [1990] KLR 193 (Bosire J), it \Vas held that where the presumption arises, the accused
incurs the burden of rebutting the presumption.
616 See Patrick Kabtte Maina and others 11 Republic Nairobi CACRA No.8 of 1986 (Platt, Gachuhi and Apaloo JJA)
(Republic of Kenya , Court of Appeal Judgements, Criminal Appeals, 1986, Vol II ,21).
617 See also Rex 11 Yego s/o Kit11111 (1937) 4 EACA 25 (Sir Joseph Sheridan CJ, Sir Sidney Abrahams C] and Hall
C]) and Awm 11 Republic [2006] 2 EA 10 (Tunoi, O'Kubasu and Onyango-Otieno JJA).
618 See also Francis Barrallo11 11 Rex [1919-1921] 8 KLR/EALR 119 (Maxwell Ag C] and Sheridan J) and in
Maganbhai Panclta/11 R ex [1 940-1941 ] 19 KLR 84 (Sir Joseph Sheridan CJ and Bartley J), Rex 11 Bakari s/o
Abdulla (1949) 16 EACA 84 (Sir Barclay Nihill CJ, Sir G Graham Paul C] and Edwards CJ) and Karanja 11
Republic [1983] KLR 501 [1976- 1985] EA [1 982-88]1 KAR 355 (Hancox, Chesoni JJA and PlattAgJA). It
was stated in Bnzoy~!0 another 11 R~p1 bli: ~1975] EA 215 (Law Ag P, Mu~ ta£1 AgYP and Musoke JA) , that this
includes the burden~.J:Q~itW . ' . 'accused is capable of forming the necessary intent. In Malnngn Kieti
11 R [1 959] EA 797 (Forbes\r!l;Cfould and WindhamJJA), it was said that the burden is not discharged where
a probability emerges from the evidence that the accused was incapable of forming that intent. See also Jagat
Singh 11 Regina111 (1953) 20 E7\c;A 283 (Sir Barclay Nih ill P, Sir Newnham Worley VP and S'i~ Enoch Jenkins
w : . 624
619 See also Uganda" Joseph Se111pala Mnkasa (1975) HCB 210 (Butagira AgJ).ln Malingi 11 Republic [1989] KLR
225 (Bosire ]), it was emphasised that the doctrine of recent possession is a rebuttable presumption.
620 It was also said in Geqffrey Nguku 11 Republic [1982-88]1 KAR 818 [1976- 85] EA 387 [1985] KLR 412
. (Hancox JA...,Plat\ ~.nP. Gachuhi Ag JA) that this presumption is not confined to oral testimony as it can also
. appiy·i6' dvld'enc.!' of a tape recording which is withheld.
Winlam Musyoka
General Rules of Criminal Responsibility · 69, .
Ag J), where it was said that the court is entiled to presume that evid~nce which
c~uld be and is not produced would, if produced, be unfavourable to the person who
621
Withholds It. It arose in Kingi v Republic [1972] EA 280 (Sir Jain'es Wicks q and '
Simpson J), where the appellant was charged with and convicted of stock theft. His
defence was that he had bought the cattle from a man whose iden~ty was known
to the police. The prosecution did not call the alleged vendor'-to give evidence. The
convictiOn was quashed on appeal. It was held that as the alleged vendor had not
been called the court was entitled to presume that his evidence would have been
unfavourable to the prosecution. 622
(f) Presumption in Murder Cases where deceased Last seen with the Acc~sed
A presumption arises in murder cases where there is evidence that the accused
person was the last person seen with the deceased, that the accused knew about the
circumstances of the deceased's death, and therefore the accused is expected to explain
how he and the deceased parted companyY: The presumption is rebuttable as it can
be displaced by an explanation by the accused. It arose in Ndunguri v Republic [2001]
1 EA 179 (Omolo, S~ah and Bosire JJA) , where the court found that there was a
presumption that arose from the fads that the deceased was last seen in the company
of the deceased, and the body of the deceased was later retrieved from the latrine of the
accused, which meant th~t the accU'ted had some explaining to do, failing which the
court would have basis to conclude that the accused was responsible for the death. 624
(g) Presumption of Corrupt Conduct
The Anti-Co}Tuption and Economic Crimes Act creates, at section 55, a rebuttable
presumption of corrupt conduct where the prosecution adduces evidence showing that
the accused has unexplained assets. It was held in Kenya Anti-Corruption Commission v
Amuti [2011] 1 EA 291 (Rawal J) that this is a legal burden and not only an evidentiary
burden. .
•
621 See also Rex 11 Mohamed Shalt s/o La/ Shah (..1939) 6 EACA 97 (Sir Joseph Sheridan q Wh'tl CJ d s .
,
Llewelyn CJ). ' ' t ey an a
622
See also Laila Jhina Mawji and another 11 Reginam (1955) 22 EACA 524 (Sir Barclay NihiiJ .P, Sir Newnham
Worley VP and LoweJ), Augnstino Njoroge Rirlw alias Cltabash and artother 11 Republic Nairobi CACRA No.
99. of 1986 (Nyarangt, Gachuhi JJA and Kwach Ag JA)(Republi c of Kenya, Court of Appeal Judgements
Cmmnal Appeals, 1986,Vol. II, 137) , Bukenya aud others 11 Uganda [1 972] EA 549 (Spry Ag p Lutta AgVP d
Mustafa JA) and Abdi El111i and others 11 R (1956) 23 EACA 568 (Sir Newnham Worley P, Briggs A y p :~d
Edmonds]). g
623 See MakQ/.1 and another" Republic [201OJ 2 EA 283 (Bosire, Githinji and Nyamu JJA), where the presumption
arose. There was evtdence that a prosecution witness left the appellants assaulting th e deceased, the deceased
and the appellants had been dnnkmg together, they did not explain how they parted with th e deceased, and
that th e deceased was subsequently found dead. The t ourt held that a rebuttable presumption arose that either
the appellants ktlled the deceased or that they knew how he met his death. See also Kibocha " Republic [2009]
KLR 376 (SEO Bome, PNWaki andAVisram JJA).
See also Jacinta Njoki Ndimngu 11 R epublic Nairobi CACRA No. 262 of 2007 (Omolo, Bosire and Aluoch
JJA) , Emest A sanu Bwire Abanga alias Onyango " Republic Nairobi CACRA No. 32 of 1990 (Tu noi, Lakha and
Ketwua JJA),Joseph Cheboi Kabon 11 Republic Nakuru CACRA No. 86 of 1999 (Gicheru, Owuor and Keiwua
JJA), George Karmya Mwang1 and others "Republic [1982-88] 1 KAR 567 (Hancox JA, Chesoni and Nyarangi
Ag J~A), Muchene "Repub/1c [2002] 2 KLR 367 (Chunga CJ, Tunoi and Ow.t1p.t:JJA} 4p9 Dhalq)( 1 R, p/j . .
[1 99::>-1998]1 EA 29 (Omolo,TunOIJJA and BosireAgJA). .'\ l I(; r
riMOt\.E 'tJ'NlVERSII y
LIBRARY
rAor..., 1"\_F\ 1"'\1 A

William Musyoka
70 Criminal Law
(h) Presumption that an accomplice is unworthy of credit, unless he is
corroboratep
Accomplices ar~ generally considered to be competent witnesses by virtue of section
141 of the Evidence Act. Under that provision a conviction is not to be regarded
as illegal merely because the evidence of an accomplice has not been corroborated.
However, such evidence is usually treated with circumspection as such accomplice
witness is likely to give tainted evidence purposely to implicate the accused and to
exonerate himself. It is on this basis th~t -practice is that although the court may convict
on the uncorroborated evidence of aq:'~_s:complice, there is the presumption that such
evidence is unworthy of credit.., and he court should look for corroboration; and
where the court is inclined to conviction the basis of such uncorroborated evidence,
it must warn itself of the danger of acting on such evidence.
(i) Evidential and conclusive presumptions about consent
Lack of consent is a critical factor in rape. It is usually difficult to prove lack of consent
using direct evidence and therefore its proof is necessarily dependent on the principle
of presumptions. Under section 44(1) of the Sexual .Offences Act, a complainant is
presumed not to have consented if it is proved that certain specified circumstances existed
and the accused person knew that those circumstances existed. The circumstances in
question include: a person used violence against the complainant at or during the
time of the commission of the act; a person did an act that caused the complainant
to fear that immediate violence would be used against him; the complainant was
detained and the accused was not detained at the material time; the complainant was
asleep or unconscious at the time; the complainant suffered a disability at the time
which prevented him from communicating to the accused whether the complainant
consented; and the accused or other person administered a substance causing the
complainant to be stup~fied or overpowered at the time of the commission of the
offence. Section 45 of the Sexual Offences Act creates conclusive presumptions with
respect to lack of con~ent. There would be conclusive lack of consent where the
accused person intentionally deceives the complainant as to the nat.ure or purpose of
the act and where the accused intentionally induces the complainant to consent to the
act by impersonating a person known personally to the complainant.
4.3 BURDENS AND STANDARDS OF PROOF
(1) The Principle
The issue of proof is a matter of evidence and procedure. It was stated in Republic v
Subordinate Court if the first Class Magistrate at City Hall, Nairobi and another, ex parte
Yougindar Pall Sennik and another Retread Limited [2006] 1 EA 330 (Nyamu J), that
when a person is boun~~.P!Oj~ •. : e~stence of any fact it is the law that the burden
of prooflies on that person. Th.'ese matters are dealt with in sections 107, 108, 109 and
110 of the Evidence Act. Acwrding to section 107 (1) of the Evidence Act, the burden
is on a party who desires any c.c)'irt to give judgement as to any; legal right or liability
dependent on the existence of facts which he asserts to prove the existence of those
facts . Section 107 (2) of the Evidence Act states that when a person is bound to prove
Wil4am Musyoka
General Rules of Criminal Responsibility . 71
the existence of a certain fact the burden of proving that fact lies on that person. 625
Section 109 of the Evidence Act places the burden of proving the existence of any
particular fact on the person who wishes the court to believe in its existence; unless it '
is provided by any law that the proof of that fact lies on any particular person. Section
110 of the Evidence Act places the burdeo. of proof of admissibility of e-vidence on the
person who asserts that such evidence is necessary.
The general rule in criminal cases is that the burden of proof rests throughout
with the prosecution, usually the state. 626 This is founded on the maxim that he who
alleges must prove. The principal burden is on the accuser, and in criminal cases the
accuser is the prosecution, usually the state. Since the burden lies throughout on' the
state, the accused has no burden or onus of proof except in a few cases where he would
be under the burden to prove certain matters. 627 In Republic v Subordinate Court of the
first Class Magistrate at City Hall, Nairobi and another, ex parte Yougindar Pall Sennik a11d
another Retread Limited [2006] 1 EA 330 (Nyamu J), it was stated that the burden can
be shifted where the law, pursuant to section .1 09 of the Evidence Act, provides for it.
This can be done by Parliament by a law shifting the burden of proving certain facts,
and the same is not a constitutional issue where any such othe1: law provides for !t.
(2) Burden on the State
......,
The state or prosecution .has the burden of proof in criminal cases. 628 The burden is
linked to the presumption of innocence. 629 The standard of proof is beyond reaso.nable
doubt. 630 The state has to prove that the accused has committed the actus reus elements
of the offence charged, with the mens rea required for that offence. 631 Proof of_the actus
reus of the oftence requires proof of all its elements. 632 The state has to discharge its
burden of pr~of on any given issue, and loses on that issue if upon the evidence a doubt
625 See Durand, supra , 27.
626 See Republic v Nyambura and four others [2001] KLR 355 (EtyangJ) and Ali Ahmed Saleh Amgara v R [1 959] EA
654 (Forbes 'vP, Gould and Windham JJA).
627 See Semji.1kwe and others v Republic [1 976-1 985] EA 536 (Wambuzi, Mustf"a and Musoke JJA), Kiyengo v
Uganda [2005] 2 EA 106 (Oder, Tsekooko, Karokora , Mulenga and Kanyeihamba JJSC), Sekitoleko v Uganda
[1967] EA 531 (Sir Udo Udoma CJ), Mnyele v Republic [2010) 2 EA 315 (Mbarouk, Luanda and MassatiJJA)
and Mkendeshwo v Republic (2002)1 KLR 461 (Omolo, Shah and BosireJJA).
628 This includes the burden to prove facts which justifY the drawing of the inference from the facts proved to the
exclusion of any reasonable hypothesis of innocence, as held in Msembe and another v Republic [2003) KLR 521
(Mbaluto and Kubo JJ). Such burden never shifts to the accused. It was said in W Mil bum v Regina [1954) TLR
27 (Abernethy J), that it is an elementary rule that it is for the prosecution to prove its case beyond reasonable
doubt and that should be kept in mind in all cr iminal cases. See also Manyara s/o Malakoni v.Reginam (1955)
22 EACA 502 (Sir Barclay N ihill P, Sir Newnham Worley VP and Holmes J), Rex v Kipkering arap Koske and
another (1949) 16 EACA 135 (Edwards CJ, Sir John Gray CJ and Ainley J), Modakaa v Republi, [2000) KLR
411 (Chunga CJ, Lakha and Keiwua JJA), Mbuthia v Republic [2010) 2 EA 311 (Tunoi ,Waki and Nyamu JJA),
Dlwlay v Republic [1995-1998) 1 EA 29 (Omolo, Tunoi JJA and Bosire AgJA) , Raman/a/ Trmnbak/al Bhau v
R [1957) EA 332 (Sir Newnham Worley P, Sir Ronald Sinclair VP and Bacon J A) and Obar s/o Nyarongo 11
Reginam (1955) 22 EACA 422 (Sir Barclay Nih ill P, Sir Newnham WorleyVP and BriggsJA). ·
629 See generally Durand, supra, 38 - 40.
630 See Rex 11 lsraili Ep11ku s/o Achietu (1934) 1 EACA 166 (Abrahams CJ, A P, Law CJ and Lucie-Smith Ag CJ),
where it was held that the accused must be convicted on concrete evidence, not mere suspicion. See also
Hatibu bin Rashid and another vThe Queen [1 956) 29 KLR 172 (Rudd and ForbesJJ), where the court said that
in some cases where the facts proved are such. as to raise a probable presumption of guilt the court is entitled,
in the absence of any explanation , to convict. See also Republic v Gachanja [2001) KLR 428 (Etyang J).
631 See G11yo Fora D11ba v Rep11blic Nakuru CACRA No. 89 of1999 (Tunoi, Lakha and KeiwuaJJA) and Mohamed
a11d three others v Republic [2005]1 KLR 722 (Osiemo J).
632 See Gupta v Republic [1983) KLR 381 [1982-1988) 1 KAR 56 (Law, Potter JJ and Hancox Ag J) and Jacinta
Njoki Ndirangu v Republic Nairobi CACRA No. 262 of2007 (Omolo, Bosire and Aluoch JJA).
 William Musyoka
72 C riminal Law
is created in the mind of the court. Such doubt is resolved in favour of the accused
person, 633 and the st~te is said to have failed to prove its case beyond reasonable doubt.
1 Bwire A banga alias Onyango v R epublic Nairobi C AC RA No. 32 of 1990 (Tunoi, Lakha
Since the burden is proof of m ost of the issu es in the case beyond reasonable doubt,
the 0auilt of the afc used must be established beyond reasonable doubt. 634 It w as stated
in M waula and another v The R epublic [1980] KLR 127 [1 976 - 80] 1 KLR 1656 (Law,
Miller and Potter JJA) , that mere silence by the accused person does not of necessity
invite a finding that the prosecution has established its case beyond all reasonable
doubt. The fact that the accused person takes no part at all in the proceedings after
pleading not guilty does not reliev .;h e prosecution of the burden of proving the
inculpatory facts beyond all reas.pnabl ' _doubt. 635
· It was emphasised in M bugua Kariuki v The R epublic [1976- 80] 1 KLR 1085 (L~w,
Wambuzi an d Potter JJA) , that the burden of proof remains on the state throughout,
to establish the case against the accused beyond reasonable doubt. Where the defence
raises an issue such as provocation, alibi, self-defence, the burden of proof does
not shift to the accused , instead the prosecution must negate that defence beyond
reasonable doubt and the accused assumes no onus in respect of any such defence. 636
In Longinus Komba v R epublic (1 973) LRT 127 (Onyiuke J) , it was stated that an
accused person ought to be convicted on the strength of the prosecution's case and
not on the weakness of the accused's defence,637 as the burden of proof, in criminal
cases, is on the state to establish its case beyond reasonable doubt. 638 The fact that the
accused m ay have told lies to the court rendering his defence w eak does not absolve
the trial court from ascertaining from the whole evidence whether the offence with
633 In R ex 11 j ohn s/o Ngo na and three others (1944) 11 EACA 11 9 (Sir Joseph Sheridan CJ, Sir N orman W hitley CJ
and Sir John Gray CJ), on the issue of th e age of the accused, for example, it was held that when on a capital
charge the age of an accused person is a matter of possible doubt; th e burden of provmg that the accused Is
above the age of eighteen always remains on the prosecution , and if the state fa ils to prove beyond reasonable
doubt that th e accused is above that age, the accused must be given the benefit of that doubt. See also R ex 11
Kiripo [1 942]20( l )KLl} 60 (Thacker]) , Dhalay 11 R epnblic [1 995- 1998]1 EA 29 (Omol o,TunoiJJA and Bosire
Ag JA), Kaman s/o Mnga 11 R (1 963) EA 172 (Rudd Ag CJ and Edmonds J) and K 10ko 11 R epubhc [1983) KLR
289 (1 982-88]1 KAR 157 (Madan, Kneller and Han coxJJA).
634 See Dlwlay 11 Repn ~lic [1995-1998)1 EA 29 (Omolo,TunoiJJA and Bosire AgJA). In O kethi O kale 11 Repnblic
(1 965) EA 555 (Crabbe, Duffus and Spry JJA), it was stated that th e burden of proof 111 c nnunal proceedmgs
is throughout on th e prosecution , and it is the duty of the trial court to look at t"h e evidence as a whole. In ,
j oel Kipsoi arap Leting 11 R epnblic Nairobi C AEAC RA N o. 114 of 1975 (Law Ag P, MusokeJA andTrevelyan
J) (R epublic of Kenya, Court of Appeal Judgemen ts, C riminal Appeals, 197 4-1 976,_ 33), a co nviction of the
appellant on preponderan ce of the evidence was quashed on th e holdmg that a co nviction cannot be decid ed
o n a mere preponderance of evidence, as that suggests that the tnal court was satisfi ed beyond reasonable
doubt of th e appellant's guilt.
635 The leading judicial pron oun cement on the burden of the state to prove a crimi nal charge beyond all
reasonable doubt was made by the House of Lords in th e case of J¥oolrniugtou 11 Director of Pnblic Prosemtious
(1935) AC 462. The co urt said: 'Throughout the web of the English criminal law one golden thread is always
to be seen, that it is the du ty of the prosecution to prove the prison er's guilt. .. if, at the end of the whole case
th ere is a reasonable doubt, created by eith er the prosecution or th e prison er. .. , the prosecution has not made
o ut its case and the prison er is entitled to an acquittal.' See also Omari s/o Hassaui 11 Regiuam (1956) 23 EAC A
580 (Sir N ewnhamWorley P, Briggs JA and C onnell]), wh ere it was held that while th e trial court is entitled
to take into accounl·a refusal by th ., accused to give evidence on oath , such refu sal cannot be used to bolster
up a weak case or r:t~,£1::e ~']! : . trii rru m provi ng its case beyond reason able doubt.
636 See also Festo Shirabn s/o oj M r:Snugn 11 Regiuam (1955) 22 EACA 454 (S ir Barclay Nihil! P, Sir Newnham
Worley VP and Briggs JA) and Olao s/o Cai 11 R (1 960) EA 86. It was held in May 11 R epublic (1 981] KLR 129
(Law, Miller and Potter JJA), th~ it "is not th e duty of the prosecution to investiga te possible defences, except
in the case of a disclosed ahbL :tt
637 See also Odindo·11 R epublic [1 969) EA 12 (Sir john Ainley CJ and Trevelyan]), where it was said it is wrong to
convict a person simply because his defence is weak, or mistaken, or false. See also Kingi 11 R epublic [1 972) EA
280 (Sir James Wicks CJ and Simpson J).
638 See also R ex 11 Ka11ii Co rdhau (1948) 15 EACA 84 (Sir Barclay Nihill CJ, Edwards CJ and Ainley J).
Willi,am Musyoka
General Rules of C riminal R esponsibility . 73
which he is charged has bee~ proved beyond reasonable doubt.639 But in E rnest A sami
and Keiwu a JJA) , it was stated that where an accused person tells, an obvious and ,
deliberate lie which is disproved or disbelieved, then such a lie is capable of providing
640
corroboration to other independent available evidence. In that case t,he lies that the
appellant told to the father of the decea~ed and to the police as to his whereabouts
and that of the deceased were treated as being capable of pn; viding corroboration
and credence to the circumstantial evidence that he knew the circumstances of the
641
deceased 's death . In Oremo v Republic [1991] KLR 221 (Gachuhi, Masime JJA and
Omolo Ag JA) , it was held that the prosecution is not required to negative each and
every imaginable possibility, but only to negative such possibilities as are reason~bly
raised by the defence.
(3) Burden on the Accused
The burden of proof rests always with the prosecution, and there is never a burden
on the accused to disprove the charge. 642 In K ioko v R epublic [1983] KLR 289 [1 982-
88] 1 KAR 157 (Madan, Kneller and H ancox JJA) , it was held that the law does not
require the accused to prove his innotence, 643 and therefore it is erroneous for a court
to refer to certain acts and omissions of the accused as being inconsistent w ith his
644
innocence. It is only in a few exC"tptional cases that the accused is burdened with
proof. The standard of p roof where the burden of proof is on the accused 1s . on .a
639
In Wibiro alias Musa " R (1960) EA 184 (Sir Kenneth O' Connor P, Forbes VP and Go uldJA), it was held
that the absence of any acceptable defence cannot be treated as a fac tor strengthening the evidence for th e
prosecution, and a court adopting that approach would be misdirecting itself on onus of proof.
640
Corr~boration was defi ned in Mu kuugu 11 R epublic [2002) 2 EA 482 (Kwach, Bosire and O 'Kubasu JJA),
Wasluugton Obado Wariuga 11. R epublic Nairobi C AC RA N o. 19 of 1984(Kneller JA, Chesoni a.1 d N yarangi
Ag JJA) (R epubli c of Kenya, Court of Appeal Judgements, C riminal Appeajj , Vol. 1, 1984, 35), R ex 11 Tnibali
Moharuedbh ai (1943) 10 EACA 60 (Sir Joseph Sh eridan CJ, Sir Norman Worley CJ and Mark Wilson Ag CJ)
and R ex 11 Mamlal lshwerlal Purohit (1942) EACA 58 (Sir Joseph Sheridan CJ, Sir Norman W hitley CJ and
Sir H e~y Webb CJ), as other evidence to give certain ty or lend supp ort to a statement offa ct. In Muton yi 11
R epubhc f1 982] KLR 203 (Madan , M iller and Potter JJA) , it was stated that one of the important elements
of corroboration IS th at It affects an accused person by connecting him or tendin g to co nnect him with th e
cnme and co nfirming in som e material pa rtic~dar, not only th e evidence that the crime has been committed
but also rhat the accused committed it. See also Ce~ffrey N,~uku " Republic [1 982-88]1 KAR 818 [1 976- 85]
EA 387 [1 985] KLR 412 (Hancox JA , Platt and Gachuhi Ag JA) and Modakaa 11 Republic [2000] KLR 411
(Chunga CJ, Lakha and Keiwua JJA). ·
641
See al~keyo Kigeni " R epublic [1965) EA 188 (C rabbe, Duffus and Spry JJA). .
642
See Ln~ and others 11 Uganda [1 967] EA 440 (de LestangVP, Du ffus and Spry JJA) and Mwihambi slo Chinyele
ar;d another II Regrna [195 3-57] 2 TLR "128 (Law Ag j ), Festa Shirabn s/o of Musnngu " R eginam (1955) 22 EACA
4::>4 (Su· Barclay Nilull P, S~r Newnham Worley VP and Briggs JA), Mbugua Kariuki 11 The R epublic [1976- 80)
1 KLR 1085 (Law, Wambuz1 and Potter JJA) and Oloo s/o Cai 11 R f1 960] EA 86, Mnimri 11 R epublic ["1 983]
KLR 205 (Abdullah]), Obar s/ o Nyarougo 11 Reginanr (1955) 22 EACA 422 (Sir Barclay Nihill P, Sir Newnham
Worley VP and Briggs JA), Kiyengo 11 Ugauda (2005] . 2 EA 106 (Oder, Tsekooko, Karokora, Mulen ga and
Kanye1hamba JJSC) , M nyele 11 Repnblic [20 10J 2 E A 315 (M barouk, Lu anda and Massa ti JJA), and R epublic
" Nyambum and fo ur others [2001 ] KLR 355 (Etya ng J). See also Chenriuingw' a " R eginam (1956) 23 EACA
451 (S1r N ewnham Worley P, Briggs Ag VP and Bacon JA), in cases where the accused raises the defence of
intoxica tio n.
643
Se~ also Macharia v R epublic [2001 ] KLR 155 (Omolo, Shah and O'Kubasu JJA) , M bu11de" Republic [1969) EA
47~ (Biron ]),Joseph Kirnanzi M unywoki 11 R epublic [2006) eKLR (Tunoi, Waki and O nyango-Otieno JJA) and
Hatibn bin R ashid and another 11 Th e Queen. [1956] 29 KLR 172 (Rudd and Forbes JJ).
644
See also Mbnude 11 R epublic [1969] EA 475 (Biron J) and Karmtja 11 R epnblic [2008) 2 EA 169 (Om ondi J).
 William Musyoka
74 Criminal Law
balance probability. 645 It was stated in Mwakima and three others v Republic [1989] KLR
530 (Bosire J) , that where the law places the burden of proof on the accused person,
the standard of ploof is never, unless the law clearly says so, as high as that on the
prosecution to f)rove a· charge beyond reasonable doubt. In that case, the trial court
had erroneously held that the duty on the accused to explain the circumstances ofhis
possession of the item in question was beyond reasonable doubt. 646
(a) The burden imposed by section 111 of the Evidence Act
There are several types of cases wk~re the burden of proof of certain exculpating
facts is cast on the accused. Sectioi$·J11 of the Evidence Act places the burden of
proof on the accused person in certain cases where the accused alleges existence of
certain circumstances bringing the case within any exception or exemption from
or qualification to the operation of the law creating the offence with which he is
charged647 and the burden of proving any fact especially within his knowledge. 648
However, the burden would be discharged if the court is satisfied by the evidence
adduced by the prosecution as to the existence of those circumstances. It was said in
Mkendeshwo v Republic [2002] 1 KLR 461 (Omolo, Shah and Bosire JJA), that generally
the accused assumes no legal burden of establishing. his innocence, except for certain
limited cases where the law places a burden on the accused to explain matters which
are peculiarly within his own personal knowledge. 649 In Prabhulal v Republic [1971]
EA 52 (Law Ag VP, Lutta and Mustafa JJA) , it was held that before there is burden of
proof on the accused the prosecution must lay some factual foundation. 650 The court
in Kibocha v Republic [2009] KLR 376 (SEO Bosire, PN Waki and A Visram JJA)
found on the facts that the appellant was the last personto be seen with the deceased
before her death; consequently he had the evidential burden under section 111 of the
Evidence Act to explain what had happened to her.
It was said in Mohamed Hassan Ismail v Reginam (1955) 22 EACA 461 (Sir Norman
Worley P, de Lestang and Windham JJ), that some cases cover both situations; that is
exceptions and exemptions from and qualifications to the operation of the law, on
the one hand, and facts especially within the knowledge of the accused on the other.
645 The accused person has the burden of adducing evidence to support any defence that h e may w ish to raise.
This wo uld be the evidential burden, not the persuasive burden. H e is not all owed to raise a specific defence
unless there is some evidence, however slight or weak, w hich supports it. See Ali Ahmed Saleh Amgara v R
(1959] EA 654 (Forbes VP, Gould and Windham JJA), Raining v Republic (1970] EA 620 (Spry VP, Law and
Lutta JJA) and Okero v Republic (1981] KLR 459 (Law, Miller and Potter JJA) .
646 See also A li Hassan Mohmwned v R 11959] EA 606 (Rudd Ag CJ and Harley J) and Republic v Gachmija (2001]
KLR 428 (Etyangj).
. t . .
647 See generally Durat~~a,:3~; - ~~·~ I" " · of the case that the prosecution had established a prima facie case against the appellant and consequen tly th e
648 See generally Omparkash Chan/{, v R [1961] EA 643 (Sir Ronald Sinclair CJ and RuddJ).
649 See also Dhmiji HallS raj Hirji Chanda ria v Republic [1 966] EA 246 (Sir C lement de Lestang Ag P, Spry Ag VP
650
...
and Law JA) and M111ita v Rep;tbli( (2009]2 EA 305 (O'Kubasu,Waki and Aganyanya JJA).
In Elitnlint v R epublic (2008] :r<J)R 309 (Bosire, Deverell and Aganyanya JJA), blood collected at the scen e of
robbery was subj ected to a DNA test and it matched that of the appellant. It was held that under section 11 1
of the Evidence Act, the presence of the appellant's blood at the scene of crime placed hjm at the scene and
that raised a rebuttable presumption of fact that he was one of the attackers. The court concl uded that the
appellant did not offer any explanation to rebut the presumption.
William Musyoka
General Rules cif Criminal Responsibility . 75
(i) exceptions,exemptions from and qualijications to the operation ofthe law
Some legal provisions provide for exceptions or exemptions of some persons from the
operation of the law or qualify the operation of the law. Where a p'erson falls under
such exception to or exemption from or the qualification to the law the operation
of the law, the law in question would not apply to himY If the accu\ed alleges that
1
circumstances existed which brought him under the exception-to or exemption from
or qualification to the operation of the law, and is therefore the law does not apply to
him; the burden would be on him to prove those circumstances.652 It was observed in
Doto s/o Mtaki v R [1959] EA 860 (Sir Kenneth O'Connor P, ForbesVP and Gould
JA) that proving such circumstances does not amount to establishing a defence. '
In Bombay Trading Stores (U) Limited and another v R [1962] EA 589 (Sir Ronald
Sinclair P, Sir Alastair Forbes VP and Sir Trevor Gould JA), it was held that whether
a statute by way of an exception casts the burden of proof on the accused person is
a matter of construction of the legislation as a whole. On the construction of the
relevant provisions of the relevant provisions of the Pharmacy and Poisons Ordinance,
the court found that the statute created an exception affecting the burden of proof.
The enactment placed the burden on the accused of proving that they were authorised
to sell Part 1 poison, and also that the customer to whom they sell the poison is a
person to whom they were authoristf(i to sell Part 1 poison to under the provisions of
the statute. 653
The issue also arose in Regina v Lesororuwa s/o Mbario [1953-57] _2 TLR 45
(Abernethy J), where the accused was convicted ofkilling an animal contrary to section
13(b) of the National Parks Ordinance. Section 13(b) of the National Parks Ordinance
provided that 'It shall not be lawful for any person except with the permission of the
Trustees or of an officer or a servant of the Trustees duly authorised by them to give
such permission, within a national park, to kill, injure, capture or disturb any animal or
take or destroy any egg or nest.' On appeal, the High Court, dismissing the appeal, held
that if a persori killed animals destroying his crops or killing his cattle in natjonal park
without permission the onus was on him to prove that he ha~ the right to do so. 654
The issue was also considered in Raojibhai Bhailalbhai Patel v R [1959] EA 97
(Forbes VP, Gould and Windham JJA), where the appellant had been convicted of
possession of currency notes without an exchange control permit. The relevant statute
regulating foreign exchange dealing "granted an exemption, which the appellant
pleaded. The conviction was upheld on the holding that although there was a burden
651 See generally Durand, supra, 44.
652 See generally Step!teu Kiama Maiua v Republic Mombasa CACRA No. 215 of1986 (Platt, Gachuhi and Apaloo
JJA)(Republic of Kenya , Court of Appeal Judgements, Criminal Appeals, 1986, Vol. I I, 353). ·
653 See also Abdul Husseiu 11 R [1 959] EA 105 (Sir Ronald Sinclair CJ and Rudd J) , w here it was held on the facts
burden lay on him of proving the existence of circumstan ces which would exempt him from the op eration of
the by-law that he was charged of contravening.
654 In Okero 11 R epublic (1 981] KLR 459 (Law, Miller and Potter JJA), it was held that where a statute lays down a
rule and provides an exception to that rule, th e burden of proving that the accused was w ithin the exception
lies with the accused. The appellant in the m atter had b een convicted of using a motor vehjcle at night,
under section 119(l)(n) of the Traffic Act, which exempted vehicles carrying products belonging to the
Kenya Breweries Limited. The appellant pleaded that h e fell under the exception as he was an agent of Kenya
Breweries Limited. It was h eld that the state had no lead evidence to disprove th e appellant's contention. The
appeal was allowed.
 William Musyoka
76 Criminal Law
on the appellant to show that he fell under the exemption, he had made no attempt
at all to discharge the onus. 655
I lawful excuse, the burden of proof of which lies upon him. 660
(ii) facts especi'tllly within the knowledge of the accused
In some cases an obligation is placed on an accused person by section 111 of the
Evidence Act to prove any fact especially within his knowledge. Such obligation
usually arises iri regulatory legislation. It was said in Mwaitige v R [1961] EA 4 70 (Sir
Kenneth O'Connor P, Crawshaw ~n,d Newbold JJA), that such obligation does not
place a burden on the accused to pr ·./e that no offence was committed, but rather that
certain facts 'were clearly within th .:. knowledge of the accused and the prosecution
was in the circumstances not bound to prove such facts.
Such obligation arises in cases of negative averment. 656 A negative averment is a
statement of fact expressed in the negative, such as the doing of something without a
licence or without lawful authority. Once the state proves the positive elements in the
charge, the accused then has to disprove the negative element by producing affirmative
counter evidence. 657 In Hatibu bin Rashid and another v The Queen KLR 172 (Rudd and
Forbes JJ), where the appellants were convicted of moving maize without a perm.it, the
court said that where the facts proved are such as to raise a probable presumption of
guilt the court is entitled, in the absence of any explanation, to convict.The court used
the example of possession cases, where a person is proved to have been in possession
of property which has recently been stolen is charged wi~h the theft of the property,
in the absence of a reasonable explanation as to how a person came by the property
the court may properly convict him. 658
For example, in the case of driving a motor vehicle without a licence, the state
has to prove the fact of t;lriving and allege that he drove without a licence, and the
accused has to prove that he had a licence at the material time. In John Nzo li and
another v R [1961] EA 575 (Sir Ronald Sinclair CJ and Rudd J), the appellant had
been convicted of car~yi~g fare-paying passengers without a public service licence in
force. The conviction was upheld on appeal. It was found that the vehicle had carried a
passenger or passen'gers on hire or reward, and the onus was therefore on the appellant
to show that there was a public service vehicle licence in force, and since the onus
was not discharged the appellant was guilty as charged.In cases of doing something
without authority, the state has to prove that the accused did someth.ing that required
authority and allege that the accused had no authority, and then the accused incurs
633 See also Bombay 11·adirrg Sto res (U) Lirr1itcrl and arrotlrer v R (1 962] EA 589 (Sir Ronald Sinclair P, Sir Alastair
Forbes VP and Sir Trevor Gou ld JA) and On1parkaslr Clrarrdi v R [1961] EA 643 (Sir Ronald Sinclair CJ and
RuddJ).
656 According to the court in Jmnes Mnte1rri s /o Mbiti 11 Rex (1949] 23(2) KLR 98 (Madera J and Keatinge Ag
J), averments of po~w fact are nc,l'i::i\!Ots ii:speciall y within the knowl edge of the accused, and therefore the
burden of proof of su~fticts ~- . .~e-prosecution rather than on the accused. In the matter the accused was
charged with carryi ng passeng'ers for hire or reward contrary to the provisions of th e Transport Licensing
Ordinance. The court found that it was up to the prosecution to show that th e accused carried such passengers
for hire o r reward, and that duty. w'as not on the accused to prove that there were no such passe ngers in his
vehicle. See also Karrji arrd Karrf{11 R [1961] EA 411 (Sir Alastair Forbes VP, Gould JA and Sir Owen Corrie
Ag JA). ' Newnham Worl ey P, Briggs Ag VP and Bacon JA), where the accused pleads intoxication causing temporary
657 See R ex " Fatelr Ali Slralr Mnsldrad (1939) 7 EACA 41 (Sir Joseph Sheridan CJ, Whitley CJ and Webb CJ).
658 See also Tirr1iseo Karyarngokwc v R (1957'1 EA 345 (McKisack CJ) and Rex 11 Fatelr Ali S!Ja!r Mrrslrlrad (1939) 7
EACA 41 (Sir joseph Sheridan C.T.Whitley C] and Webb CJ).
Wi~jam Musyoka
General Rules of Crirninal Responsibility. 77
the burden of proving that he had such authority. 659 For example, the offehce created
under section 96 of the Penal Code envisages a person doing something, without
In Moharned Hassan Ismail v Reginam (1955) 22 EACA 461 (Sir Norman Worley
P, de Lestang and Windham JJ), the appellant had been convicted 3f possession of
a firearm and ammunition without the requisite certificate . .His possession of the
firearm and ammunition was proved and admitted. Both sides did not lead evidence as
to the requisite certificate, but the prosecution called evidence to show that when the
appellant was asked to produce the current firearm certificate he said he had it, but did
not produce it although he was given opportunity to do so. It was held on appeal•that
the fact relating to whether or not the appellant had the requisite firearm licence was
a fact peculiarly or especially within his knowledge and he was obliged to prove that
he had the licence upon pleading that he did have one. The burden of proof was on
him to show that he had the required licence. In this case, the conviction was upheld
on the grounds that the appellant did not discharge the burden. 661
(b) Insanity
Where the accused pleads insanity or ra1ses the defence of insanity, the burden of
establishing the defence of insanity -q:'sts with him. 662 The general principle, as stated in
section 11 of the Penal Code, is that every person is presumed sane until the contrary
is proved. 663 Since it would be the accused alleging insanity, the burden of proving the
allegation would rest with him. The accused would incur a similar burdeh where he
pleads the defence of intoxication causing temporary insanity. 664 In Godiyano Barongo
s/o Rugwire p952) 19 EACA 229 (Sir Barclay Nihill P, Sir Newnham WorleyVP and
Bourke J), it was stated that the burden resting on the accused when attempting to
rebut a natural presumption which must prevail unless the contrary is proved will
never be so heavy as that wh.ich rests upon the prosecution to -prove the facts which
•
659 See Blwloo " R epublic (1 970] EA 59 '1 (Georges CJ) and Mo!Jmucd Hassan IS111ail11 Rcgilla/11 _(1955) 22 EACA
461 (Sir Norman Worley P, de Lestang and Windham JJ)
660 According to Talbot J in Willim11s 11 R11ssell (1931 - 1934) CC 640 (Lord Hewart CJ,Talbot and Charles JJ),
where it is an offence to do an act without lawful authority, the person who sets up the authority must prove
it, the prosecution need not prove the absence of lawful authority. See also sections 352(g), 359,366,375 ,376,
378,379, and 383 of th e Penal Code. See also section 59(1) of the KenyaDefen ce Forces Act. See also sections
3, 4, 6, 8 of the Trespass Act. ·
661 See also R 1 Ceutml Africa Co11tractors Ltd (1944] 21 (2) KLR 32, 0/ranJi Hansmi Hi1ji Clrandaria ri Rcpnblic
[1966] EA 246,Mandm:l D eiJrai v Reginnn1 (1955) 22 EACA 488 (Sir Barclay Nihill P, Sir Newnham WorleyVP
and Sir John Griffin CJ) and ClrilllaJIIal Motiblrai Hi~a Patel 11Tire Attomcy-Ceueml (1960] EA 388 (Sir Kenneth
O 'Connor P, Gould and Windham JJA).
662 See Okerlri Okale 11 Rcpnblir [1965] EA 533 (Crabbe, Duffus and Spry JJA) and Kin1mri 11 R epnblic [2000] 2 EA
417, KLR 303 (Om olo,Tunoi and Lakha JJA). See also Clrenriningw'a 11 R~~inmn (1956) 23 EACA 45 1 (Sir
insanity.
663 See Kin1m1i 11 Repnblic (2000] 2 EA 417, KLR 303 (Omolo,Tunoi and LakhaJJA).
664 See C/renlinin.~lll'a ;, Regi11a1n (1956) 23 EACA 451 (S ir Newnham Worley P, Briggs AgVP and Bacon JA).
 William Musyoka
78 Criminal Law
they have to establish and it will not be higher than the burden which rests on a
plaintiff or defendant in civil proceedings. 665
I
(c) Statutoey Burden
A statute may expressly place a burden upon the accused to prove a certain fact. 666
It was stated in A li Ahmed Saleh Amgara v R [1959] EA 654 (Forbes VP, Gould and
Windham JJA) that section 111 of the Evidence Act does not apply to cases where
the burden of proof is placed on the accused by statute. For example, section 323 of
the Penal Code, which creates the ~!fence of having or conveying suspected stolen
property, casts-a burden of proo(on tWe;.-1ccused of satisfYing the court of how he came
by the property. In such case, the state still has the burden to prove the elements of the
offence beyond reasonable doubt, and it is only after the state discharges that burden
that the burden shifts to the accused. 667 Section 29 of the Weights and Measures Act
places the burden of proof on an accused person found in possession of a measuring
instrument to explain that the instrument he is found in possession of was for use for
trade purposes. 668 Section SO(c)(ii) of the Traffic Act places the burden of proving that
a notice of intended prosecution was invalid on the accused person. 669 For most of the
offences created under the Trespass Act, the burden .of proof has been placed on the
accused, by virtue of sections 3(2), 4, 6(2), 7(1) and 8 ofthe saidAct. 670 Section 3(2)
of the Trespass Act, for example, places the burden of proof on the accused, once it is
established that he had entered or was on private land, to p~;ove that he had reasonable
665 See also Rex" Kaba11de 11>/ o Kiiligllle (1948)15 EACA 135 (Sir Barclay Nihil! C), Edwards C) and Lloyd-Blood
J), Rex v Noon11ailo111ed Km~ji (1937) 4 EACA 34 (Sir Joseph Sheridan CJ, Sir Roger H all C) and Law CJ),
George Ngugi Mungai "Rep11blic Nyeri CACRA No. 122 of2000 (Kwach, Bosire and O'Kubasu JJA), Kimani
v Rep11blic [2000] 2 EA ,417, KLR 303 (Omolo,Tunoi and LakhaJJA) , Tile Republic v ]erema110 M'Ngai [1977]
KLR 18 [1976- 80]1 kLR 1510 (Sachdeva J), Ko11goro aliasAtl111111ani s/o Mris!Jo v Regi11nll/ (1956) 23 EACA
532 (SinclairVP, Rudd and Mayers JJ) and Marandu M'Arimi v Republic [1 982-88]1 KAR 161 (Madan, Potter
and Hancox JJA). The decision in Rex v C W Ross [1932] 14 KLR/EALR 148 (Sir Joseph Sher idan CJ, Law
Ag CJ and Thoma$ J), w here it was held that for the accused to exempt himself from crinlinal responsibility
for murder he must satisfy the court beyond any doubt that he was insane in th e legal sense at the time of •
committing the act, is not good law. It was explained in Liundi v Republic [1 976-1985] EA 251 (MustafaJA),
that the accused must show, on the evidence, that insanity is more likely than sanity, and it would be sufficient
if the accused produces such a preponderance of evidence as to show that the conclusion he seeks to establish,
that he was insane at the time he committed the offence, is substantially most probable of the possible views
of the facts.
666 See El Mann v Republic [1970] EA 24 (Sir Charles Newbold P, DuffusVP and Law JA). See section 25 of the
Sexual Offences Act).
667 See Maino v Republic [1983] KLR 498 (Aganyanya J), with respect to burden of proof where the accused
person pleads lawful possession of excuse for possession of a forged currency, where he is charged with an
offence under sec tion 359 of the Penal Code. See also sections 96, 132 of the Penal Code. See also section 45
of the Weights and Measures Act.
668 See M111akima and three others 11 Rep11blic [1 989] KLR 530 (Bosire J). See also sec tion 44 of the Weights and
. ~ .
M easures Act. i?~ . , ~- · i' .- · Act.
669 See Til e Republic v wdr,'onii[1~'tf;'~R 153 [1976- 80] 1 KLR 598 (Kneller and Sachdeva JJ). See also M
K Bhandari "R [1961] EA 367 (Sir Ronald Sinclair CJ and Pelly Murphy J), where it was held that a burden
of proof is placed on the ow"er of!\ motor vehicle to show that he was not in charge of tile vehicle when
he fails to comply with the notification requiring him to attend court to answer the charge. See also Samso11
Ngure s/o Matu v R [1 963] EA ~0 (Rudd and W icks JJ) and Creme v Republic [1970] EA 62 (Mwendwa C)
and Chanan Singh]) and (Sir C harles Newbold P, DuffusVp and Spry JA).
670 See Nyamwaya v Kisunn1 CoutU)' Council [1972] EA 322 (Spry VP, Law and Lutta JJA), w here it was held that
before the burden is cast on th.e accused, the prosecution must first prove beyond reasonable doubt that the
accused was on private land.
WiJ!iam Musyoka
General Rules of Criminal Respo11sibility. 79
excuse or the consent of the occupier to enter or be on the land. 671 Section 68 of the
Narcotic Drugs and Psychotropic Substances (Control) Act places the burden of proof
on the accused with respect to establishing that there existed any licence, authority or '
other matter of exception or defence. 672 Under this provision there is no burden on
the prosecution to negative any such matter by evidence. <.
In Vithaldas Dayabhai Lodhia v Regina [1953-5 7] 2 TLR 103- (Mahon J), it was held
that in cases where the accused is charged with the unlawful possession of something,
and the prosecution produces ample evidence to prove that the accused was found
in such possession, the onus shifts to the accused of proving that his possession was
lawful. 673 In that case the appellant was charged with being in unlawful possession
of raw gold contrary to section 8 of the Gold Trading Ordinance. Section 8 of the
Ordinance provided that; 'If any raw gold is found in the possession, power, or control
of any person that person shall, unless he proves that he obtained it lawfully, be guilty
of an offence against this Ordinance.' He was found by the court to have been in
possession of raw gold, whereupon the court held that the onus of proving that his
possession of the gold was lawful had shifted to him, but he had failed to give an
explanation of his possession to the, court. 674
(d) Possession Cases ....,
· Where the doctrine of recent possession is applied, the onus is cast on the accused 'to
give a reasonable explanation which may be reasonably true as to how he came to be in
possession of the goods. 675 In Thomasi Mwanjoka v Republic (1975) LRT 141 (Mnzavas
J), it was pointed out that the shift of onus occurs only after the court has found that
the possession was in fact sufficiently recent to the theft, and even then a conviction
should be based on the strength of the prosecution case and not on the weakness of
the defence. 676 In Mbatha v Republic [2010] 1 EA 241 (O'Kubasu, Onyango- Otieno
and Aganyanya JJA), it was held that an accused person is not required to prove himself
innocent, but -if he is in a situation where he is found with items which were recently
stolen, he would be the only person in a position to explain his possession of the items.
The onus of proof on the part of the accused also arises in all other cases of
•
possession. In Gupta v Republic [1983] KLR 381 [1982-1988] 1 KAR 56 (Law, Potter
JJ and Hancox Ag J), it was said to apply in the case of possession of uncustomed
goods contrary to section 185(d)(iii) of the Customs and Excise Act, where it was held
that once the prosecution has proved guilty knowledge on the part of the accused of
possession of uncustomed goods, the onus shifts to the defence to give an explanation
671 See also the Witchcraft Act, section 5, whic h crinlinalises possession of charms, and casts the burden on an
accused person who is found in such possession to show reasonable cause why he should retain any such
charm. See also Kade11ge v Republic [1975] EA 244 (Simpson J). See also sections 45 and 46 of th e Societies
Act, section 12 of the R.egistration of Persons Act and section 117(1) of the Occupational Safety an.d Health
672 Compare with section 25 of the Sexual Offences Act, w hich burdens the accused with proof of the fact that
a sexual relationship between him and the complainant existed before the position of authority or trust arose.
673 Or that he was without knowledge of the possession.
674 See also Attorney-General 11 Virhaldas Dayabhai Lodhia [1953-57] 2TLR 80 (Crawshaw J) and Gamalieri M11b ito
v R [1 961 ] EA 244 (Sir Kenneth O'Connor P, Gould AgVP and NewboldJA).
675 See LeonnrdArtl111r Barton v R ex [1940-1941]19 KLR 75 (Sir Joseph Sheridan C) and Bartley J)
676 See Wambura v Republic [1990- 1994] EA 609 (Nyalali CJ, Ramadhani JA and Mapigano AgJA) and Te"J'"'" v
Uganda [1967] EA 102 (Sir Udo Udoma CJ)
 William Musyoka
80 Cri1nina l Law
to show absence of guilty knowledge. If the defence gives a convincing explanation it
becomes the duty o.f the prosecution to adduce evidence to demolish such explanation
to re- establish guifty knowledge beyond reasonable doubt. 677 In Kariuki Kamau and
others v Regin.anl (1954) 21 EACA 203 (Sir Barclay Nihill P, Sir Newnham Worley
VP and Briggs JA) , it was held that where possession of a firearm is proved against an
accused person, the onus is upon him to prove lawful au thority or excuse for such
possession. In Rerntullah Panju IJ Rex (1943) 10 EACA 94 (Sir Joseph Sheridan CJ, Sir
Norman Worley and Gray CJ), it was held that for the offence of being in unlawfi.1l
possession of something, the burden~f ,, proof is on the accused to show that he cam e
into possession of the thing la'¥fully1iqpd not upon the prosecution to show that the
accused was knowingly in unlawful possession. 678 lt was however pointed out in Ismail
Abdulrehrnan v Reginam (1953) 20 EACA 246 (Sir Barclay Nihill P, Sir Newnham
Worley VP and Mahon J) that it is only in connection with the nature or quality of
the accused's possession that the onus of proof shifts to the accused to give an account
to the satisfaction of the court as to how he came by the goods; there is no shifting the
onus in respect of the fact of possession.
(e) Corruption Cases
In corruption cases the accused bears the burden of proving that advantage was not
accepted corruptly. In Raining v Republic [1970] EA 620 (Spry VP, Law and Lutta JJA),
it was held that the accused must prove on a balance of probabili ty that he did not
accept the advantage corruptly as an inducement or reward.
(g) Murder Cases
In murder cases where it is established that the accused person was the last person
seen with the deceased, the accused incurs the burden of explaining the circumstances
under which he parted with the deceased, otherwise a presumption arises that the
deceased knew the citcumstances under which the deceased died.m This arose in
Ndun.guri v Rep14blic [2001] 1 EA 179 (Omolo, Shah and Bosire JJA), where evidence
showed that the appellant was the last person to be seen with the deceased, and the
deceased's body was later retrieved fro m th e appellant's latrine. This was a matter of •
677 See also Rex 11 Kiuu1gj;,W P l\lgel~rrll IW~~ ~ KLR. 153 (Sir Joseph Sheridan CJ, Lucie-Smith and T hacker JJ )
wtth respect to stock t!1eft> ~ .:j . <'1f
678 See R ex 11 Kipsoi amp Soiyor [1940- '194'1] 19 KLR 89 (H ayden and Bartley JJ). See also R ex v Dervji Pmgl1ii
Mehta (1946) 13 EACA 80 (S.ir Joseph Sheridan CJ, Sir Norman W hitley CJ and Sir John Gray CJ), w ith
respect to un lawful possession o(.i1Jinerals.
. ":II
679 In Ki1uaui v R epublic [2000] 2 EA 417, KLR 303 (Omolo, Tunoi and Lakha JJA) , the conviction of the
appellant was based on the evidence that on th e day th e deceased was last seen alive, the appellant was seen
leaving with the deceased carrying a pauga, and she was later seen leaving a du mping site, wh ere the deceased 's
body was b ter found, carrying a panga and blood stained clothes. See also Kiboc/Ja v Republic [2009] KLR 376
(SEO Bosire, PN Waki and A Visram JJA).
wq~iam Musyoka
General Rules t!f. Crim imd Responsibility. 81
circumstantial evidence, r,~o where the evidence of the circumstances pointed to the
guilt of the appellant, and the court held that the appellant had the onus of explaining
the circumstances under which he and the deceased parted, since this knowledge '
was peculiarly within his knowledge. He was unable to discharge the burden and
his conviction of murder was upheld. 6$ 1 In Ernest Asarni Bwire A banga. alias Onyango v
Republic Nairobi CACRA No. 32 of1990 (Tunoi, Laklu and KeLwuaJJA), the appellant
was. the last person who was seen with the deceased when he was still alive. He was
thei·eafter found dead under a bed in a room at a hotel which had been booked by the
appellant. There was proof beyond all reasonable doLJbt tl;lat 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 682 In Kasaja s/o Tibagwa v Regina (1952) 19 EACA 268 (Sir Barclay
Nihill P, Sir Nwenham Worley VP and Sir Hector Hearne CJ), the circumstances that
were considered for the conviction of the appellant were that a spear belonging to
him was found near the deceased's body and the fact that the appellant did not answer
680 In Makau aud anor/Jer 11 Republic [201 01 2 EA 283 (Bosire, Githinji and Nyamu JJA) circumstantial evidence
was defined as evidence of surrounding circumstances ti·om which an inferen ce may be 'drawn as to the
commission a criminal offence. The principle relating to circumstantiol evidence was initially stated in Sm nson
Daniel v R ex (1934) 1 EACA 134 (Abrahams CJ Ag P, Lu cie- mith Ag Cj and Webb J ), where it was said that
on a tri<\l fo r murd er, circumstantial evidence must lead to the inevitable co nclusion that the death was the
act or co ntriva nce of the accused. If th ere IS an alternative w hi ch can w ith any reaso nable probability account
fo r th e death, this excludes the certainty which is required to justify a verdict of guilty. It was subseque ntl y
restated in R ex 1• Kipkerirrg nmp Kuske arrd mrarlrer ( 1949) 16 EACA 133 (Edwards CJ, Sir John G toy CJ and
Ainley J), and it is th is restatement that has been applied in most of the cases th ereafter. In Errrcsr Asarr1i Brr•ire
Abarrga 11lias Orryarrgo 11 Rcprrblic Nairobi CACRA No. 32 of 1990 (Tunoi, Lakha and Keiwua JJA), it w'lS
said that w hen a case rests en tirely on circumstantial eviden ce, such evidence must sa tisfy three tests: (i) the
circumstances ti-orn wh ich an inference of guilt is sought to be drown, must be cogently and fir:r~ll y established,
(ii) those circumstances should be of a definite tendency ·un erringly poir~ing towards guilt of the accused ,
and (i ii) the circ umstances taken cumulatively, should form a chain so complete that there is no escape from
th e conclusion that within all human probability the crime \-vas committed by the accused and none else.
See also Mwarrgi nrrd arro1/Jer 11 Republic [2004] 2 KLR 32 (Omolo, Tunoi and Ringera Ag JA) , lvlii'Crrdll!!l I!
Reprrblic [2006] 1 KLR 133 (Githinji, Onyango-Orieno and Deverell JJA) , Warrri I! Reprrblic [2002] 1 KLR
750 (C hunga CJ, Shah and Owuor JJA), Si111eorr i\llbelle v Reprrblic [1982] 1 KAR 578 (Kn eller, Han cox JJ A
and Chesoni Ag JA), i\llol1mrred arrd r/Jree orlwrs 11 Republic [2005] I KLR 722 (Osiem o J), Snli111 Merrza 1\~earrgn
11 Republic Mornbasa CACRA No. 16 of 1997 (Kwach , Shah and Pall JJA), Kmm1jn I' R epublic [1 983 1 KLR
501 [1976-1985] EA [1982-88] I KAR 353 (Hancox, Chesoni JJA and Platt AgJA), Smile v R eprrblic [2003]
KLR 364,1 EA 280 (Kwach, Lakha and O'KubasuJJ A), Mbur/Jia I' Republic [2010] 2 EA 311 (Tunoi ,Wak i and
Nyamu JJ A), Clwrrde Birr Kl1m uis !Vlruulbalu I! R [1961] EA 587 (S ir Ken neth O'Co nnor P, Crawshaw JA on d
Law J),Aii "Republic [19901KLR 154 (GithinjiJ),l/nndn s/o Kisorrgo 11 R [19601 EA 780 (Sir Alastair ForbesVP,
Gould and Crawshaw JJA), Bcrrja111iu Sm1zier v R [1962] EA 50 (Sir Alastair Forbes Ag I~ Crawshaw AgVP and
Newbold JA), Knrrrkcrrya arrd forrr ollrers 11 R epublic [1987] KLR 458 (Kneller, H ancox JJA and Chesoni AgJA),
Smuucl Nduugu Ndirau,gu 11 Republic Mombasa CACRA No. 46 of 1983 (Kneller JA, Cheson i and Nyarangi
Ag JJA) (Rep ublic of Ken ya, Court of Appeal Judgements, Criminal Appeals, 1983, 65) , and Ouwr: Mz 1111gu
C lliruem v Republic Mombasa CACRA No. 56 of 1998 (Kwach, Shah and Owuor JJA) . See also Libmubuln 11
R epublic [2003] KLR 683,2 EA 547 (Tunoi , O'Kubasu JJ A and Onyarigo-Otieno Ag JA), on the relationship
betwee n n1otive and c irc umsGlntial eviden ce.
681 Compare with Jaciura Njoki Ndimugu 11 R epublic Nairobi CACR.A No. 262 of 2007 (Omolo, Basin:: and
Aluoch JJA) .
682 See also Ceol}ie Kamuja lvl111augi nud 01/Jers 11 R epublic [1982-88] 1 KAR 567 (HancoxJA, Chesoni and Nyarangi
Ag JJA) . If the circumstantial evidence tails short of the standard required in law, the accused person would
be entitled to an acquittal, as was the case injnue Waugui Marl1eugc v R epublic Nyer i CACRA No. 11 of 1996
(Gicheru, Kwach and LakhaJJA). See also Beuja111iu Buude/J Cardl1 nud mwrher v Republic [1982-88] 1 K.AR 587
(Kneller JA , Cheson i and Nyrangi AgJJA).
 William Musyoka
82 Criminal Law
the alarm raised in the village shortly after the murder. This was held on appeal as
insufficient to esta~lish guilt beyond doubt. 683
I
(4) Persu<tSive and Evidential Burden
A distinction is drawn between the persuasive burden and the evidential burden.
Burden of proof is the persuasive burden, that is the burden of persuading the court.
The evidential burden refers to the burden to adduce evidence to persuade the court.
Where burden of proof rests on a ·party, then they incur the persuasive burden to
convince the court, and to discharge·,that burden they incur a burden to lead evidence
in support of their case. In ]atinta ~joki Ndirangu v Republic Nairobi CACRA No.
262 of 2007 (Ori1olo, Bosire and Aluoch JJA), the Court of Appeal indicated that
whereas the burden of proof in all cases remains on the state, to establish their case
beyond reasonable doubt, and that the burden never shifts to the accused, 684 there is
the evidential burden which shifts depending on the circumstances. 685 This burden
is recognised under section 111 of the Evidence Act. In Maina and another v Republic
[2009] 1 EA 289 (Bosire, O'Kubasu and Nyamu JJA), the accused incurred an
evidential burden in a case where the accused were seen assaulting the deceased, took
him away and on returning him he was in bad shape. The court held that if the accused
were interested in saving the deceased from a mob as they alleged in their defence they
would have taken him to a police station. The court found that how the deceased got
the fatal wounds was a matter within the accused's personal knowledge and they had
the evidential burden of explaining it.
In the criminal trial process there are two stages in the proceedings, the prosecution's
case and the defence case. The prosecution has the persuasive and evidential burden,
during the presentation of the prosecution's case to adduce evidence sufficient to
establish a prima facie case of the accused's guilt. To establish a case against the accused,
the state has the burden of adducing evidence to prove the charge beyond reasonable
doubt and to disprovd any defence put forth by the accused. It is upon the state
establishing a prima facie case or adducing sufficient evidence of the actus reus and
mens rea that the accused is put on his defence. At this stage when a prima facie case
is made out the presumption of innocence is displaced, and the accused is expected •
to explain himself. 686 Upon being put on his defence, the accused incurs the burden
of leading evidence to displace any presumptions of fact drawn from the evidence
683 See Rex v Wayaga Nagugu (1948) 15 EACA 74 (Sir Barclay Nih ill CJ, Pearson and Ainley JJ), Chi!Jatsi an.d others
"Republic [2003] 2 EA 395 (Kwach, Omolo and O 'Kubasu JJA),Andren Obonyo and others "R [1 962] EA 542
(Sir Ronald Sinclair ,1?, Sir Alastair F,llJ~ Vj and Sir Trevor Gould JA),MHinllgi "Republic [2005] 2 KLR 371
(Tunoi , O 'Kubasu a~ith.(nj}-1. ::t'fvikendcshwo" RepHblic [2002] 1 KLR. 461 (Omolo, Shah and Bosire
JJA). . The Crown v Mohat11ed bi11 El-Bakri (1939- 1950) 7 ZLR 100 (Si r John Gray CJ).
684 See also Kioko v RepHblic [1 98~ KLR 289 [1982-88] I KAR 157 (Madan, Kneller and HancoxJJA) , Nyamb11ra
v Republic [2006] 2 EA 248 (0''\'tbasu, Waki and Deverell JJA), Sekiroleko v Ugmtda [1 967] EA 531 (Sir Udo
Udoma CJ) and RepHblic v Chi!Jiftsi a11d aHothcr [1 989] KLR 333 (Bosire J).
685 See also Kcmgoro alinsAtliiCIIIOIIi s!o Mrisho v R egiuaut (1956) 23 EACA 532 (SinclairVP, Rudd and MayersJJ)
and Ken.yn A11ti-Corruptiou Co111111ission "Au 111ti [2011 ] 1 EA 291 (Rawal J).
686 See Rex" Moha111ed Shah s/o La/ Shah (1939) 6 EACA 97 (Sir Josep h Sheridan CJ,Whitley CJ and Sir Joseph
Llewelyn Dalton CJ).
Wil_l.jam Musyoka
General Rules of Criminal Respo11sibility. 83
adduced by the prosecution. 687 The accused person is entitled to any doubts arising
from the prosecution's case, and especially where the evidence of the defence raises
any doubts about their guilt. 688 It was however cautioned in Muiruri• v Republic [1 983] '
KLR 205· (Abdullah J), that an accused person is not obliged to adduce any evidence
to support his defence or explanation. . "
4.4 IGNORANCE OF THE LAW
Ignorance or mistake of law is not a defence. 689 Indeed, mens rea does not mean that
the accused must have been aware of the illegality of his conduct. Ignorance of the law
is a defence only where knowledge of the law is expressly stated to be an element of
the offence. This principle is stated in section 7 of the Penal Code, where it is stated
that ignorance of the law does not afford any excuse for any act or omission which
would otherwise constitute an offence unless knowledge of the law by the offender is
expressly declared to be an element of the offence.690 It was applied in the case of R v
Bailey (1800) R &R 1, where a sailor was convicted of contravening a statute of which
he could not possibly have known since it was enacted when he was away at sea, and
the offence was committed before tpe news of the enactmen( could reach him.
This rule is justified on several grounds. One, it is presumed that everyone knows
the law. This is on the proposition"-'that since most crimes are also moral wrongs, it
is to be expected that the person affected has some rough idea of the law. prive.rs,
for example, are generally expected to know what is required of them le!?ally, even if
they may not know the specific content of the law. Secondly, it is difficult to prove
that the accused knew the law. Thirdly, it is a rule of expediency. According to Lord
Ellen.borough 'in Billie v Lumley (1802) 2 East 469, everyone must be taken to know
the law, otherwise in almost every case the excuse of ignorance of the law would
be raised as a defence. 691 It was noted in R v John Gedeon and another [1957] EA
664 (Lowe J), while acknowledging that ignoranc~ of the law is no excuse, that no
person is expected to know all the laws, making it, therefore, necessary to consider the
conditions prevailing in the country or territory in so far as ~hey affect the degree of
knowledge of the accused person in each case.This was a traffic matter where the court
took into account the fact the accused were unsophisticated and uneducated African
drivers who were not expected to know the law to the same extent as educated and
experienced drivers from an advanced,.society could be expected to know.
687 The prosecution may, under section 212 of the Criminal Procedure Code, call evidence to rebut defence
evidence where the accused introduces a new matter whi le presenting his defence case. However, it was
cautioned in Ali Hassan Moham111ed v R [1 959] EA 606 (Rudd Ag CJ and Harley J) , that· the prosecution
shou ld only be allowed to call rebuttal evidence after the close of the defence only in cases where the evidence
in rebuttal is evidence which the prosecutor co uld not by exercise of reasonable diligence have foreseen. See
688 See Mboche and auother v Rep11blic [1973] EA 95 (Simpson and MuliJJ).
689 See generally Joseph M Nyasani , supra, 99 - 104. See also Heresi A11da/a v Republic Kisumu CACRA No 180
of 1985 (Kneller JA , Platt and Gachuhi Ag JA) (Republic of Kenya, Court of Appeal Judgements, Criminal
Appeals,Vol. ll , 1984, 20 1).
690 In Uga11da v Nikolla a11d a11other [1966] EA 345 (Sir Udo Udoma CJ), it was said that ignorance of fact is a good
defence to a criminal charge.
691 At page 472.
 William Musyoka
84 Crim inal Law
j
4.5 OBLIQUE REsULTS
T his is addressed in' section 9(2) of the Penal Code. Unless proof of a specific intent is
required by statute, the particular result intended to be caused is immaterial to liability.
A specific intent is intent to produce a particular result. Under section 9(3) of the
Penal Code, apart from offences constituted by proof of a specific intent, by definition
in the penal statute, for all other offences the particular result intended is irrelevant. A
person may intend one thing, and another thing may happen, either independently or
simultaneously with the intended r .S~)lt. Either way the person will still be liable for
the other result, the oblique one, alth~b~gh the same is not what he intended, provided
--~· lf .. ~
that he had foresight of that result. ·
In Reg v Serne and another (1886- 1890) 16 Cox CC 311 (Stephen]) , it was said
that where a person for some purpose of his own (say to claim some money) sinks
a boat at sea with the result that the passengers are drowned, he will be guilty of
murder. It matters not that he may have hoped that the passengers would be picked
by a passing boat, nor that he did not specifi cally intend their death; provided he has
knowledge that death would probably occur fron1. the sinking. 692 All that matters is
that the intended result be unlawful or wrongful in. the first place, or that the act was
evil in the fmt place.
J . of the accused person's criminalli~ility is very slight.700 In Kabiru v Republic [200.7]
4.6 MOTIVE
(1) The Principle
Motive is covered by section 9(3) of the Penal Code: It is provided that motive is
immaterial so far as criminal responsibility is concerned. The subsection appears in
the section dealing with intention, and it therefore means that the reasons behind the
conduct of the accused693 are irrelevant with respect to determining intention. 69 + The
existence of a motive bf itself does not, unless otherwise provided, enhance or lessen
an individual's respohsibility in law fm· the commission of a crime. 695 In Karukenya
and four others v Republic [1987] KLR 458 (Kneller, Hancox JJA and Chesoni AgJA),
it was stated that· the prosecution does not have to prove motive: neither is evidence ,
of motive sufficient to prove the commission of a crime by the person who possesses
the motive.
692 At 313.
693 See generally Tibamanya Mwene Mushanga, H omicide and lts Social Ca nses, LawAfi·ica Publishing (K) Ltd,
2011, Nairobi , 103 :- 151, Tibama'lY" Mwene Mushanga, C ril/le and Oe1;iance, Law Africa Publishin g (K) Ltd ,
2011, Nairobi , 92 -~np ;rib;un . .· "~ ~ene Mu shan ga, C riminal Honr'icide in Ugauda, Law Africa Publishing
(K) Ltd, 2011 , Nairobi, :97·~ •;..
694 For an analysis of the relationshi p between motive and intention , read Joseph M Nyasani , L<;~a l Philosoph y:
jnrispmdence, Consolata Institute of Philosophy Press, Nairobi, 200 1, ~7- 51. In Ogeto v R epnblic [2004] 2
KLK 14 (Om olo, Githinji JJA ~d Onyango-Otieno Ag JA), it was held that th e prosecution is not o bliged to
prove motive for the commissihn of any crime, and evidence of motive is not sufficient by itself to prove the
commission of a crime by tl~ e person who possesses the motive. See also Mnngai 11 R epnblic (2006] 2 KLR 262
(Omolo, Tunoi and Githinji JJA).
695 See G/wla//1 Rasnl and another v R eginarn (1954) 21 EACA 229 (Sir Barclay Nihil! P, Sir Newnham Worley VP
and Briggs JA) and Cham 11 Republic [2007]1 EA 43 (Tunoi , Waki and Deverell JJA).
WiJ~iam Musyoka
General Rules of Crirninal Respousibility . 85
Motive was defined in Libambula v Republic [2003] KLR 683, 2 EA 547 (Tunoi,
O'Kubasu JJA and Onyango-Otieno AgJA), to mean that which makes a person do a
particular act in a particular way. 696 Motive exists for every very voluntary act. Motive '
is not material in criminal liability, 697 unless it is expressly declared to be so by the
definition of the offence. A good motiv~ cannot make lawful an evil ~ ct. This is why
euthanasia, the so-called mercy killing, is still a crime. 698 In L£!ngat v Republic [2002]
2 KLR 191 (Chunga CJ, Shah and Bosire JJA), it was held that as per section 9(3) of
the ·Penal Code, it is clear that unless expressly declared by a provision oflaw creating
an offence, the motive by which a person is induced to dq or omit to do an act or to
form an intention is immaterial so far as regards criminal responsibility. Based on. that
provision, the co urt held that the appellant's motive for cutting his father was not a
matter the trial court could properly consider in coming to a decision as to his guilt
or tnnocence.
(2) Relevance of Motive
(a) As Part of Circumstantial Evidence
However, motive is still in certain ·t~espects a relevant factor in determining criminal
responsibility in some cases699 particularly in cases where the evidence on the degree
1 EA 107 (Bosire, Githinj i and Deverell JJA), it was held that motive is a faG~or to
be taken into account as part of th; circumstantial evidence on the culpability or
otherwise of an accused. 7" 1 It had been held earlier in Libambula v Republic [2003] KLR
683,2 EA 547 (Tunoi, O'Kubasu JJA and Onyango-Otieno AgJA) , that motive is an
important element in the chain of presumptive proof and where a case rests purely on
circumstantial evidence.702 Motive is draw n fi·om the facts, and it is often proved by the
conduct of a person. In Karukenya and four others v R epublic [1 987] KLR 458 (Kneller,
Hancox ]]A and Chesoni AgJA), it was held that evidence of motive is admissible and
a matter to be considered together with all other evidence. It was however ,stated that
•
696 See also M111achia v R epublic (1991] KLR 398 (Wa mbilyangah J). See also Durand , supra, 6.
697 See Mntnu.~ule aud auother v Republic [1 990,. 1994] EA 3 18 (Ramadhani , Mn zavas and Mapigano AJA). In
C/udam Rasul aud auother v R cgiumu ( 1 95 ~) 21 EACA 229 (Sir Barclay Nihilll~ Sir N ewnham WorleyVP and
Briggs J A), it was said that motive could be a relevant tactor for the oHence of obtaining by false preten ces. In
Mkendeshwo /J Repnblic [2002] 1 KLR 461 (O molo, Shah and Bosire JJA), it was held that f.1i lure to prove th e
appellant's motive did not per sc invalidate his conviction.
698 In R. /J Windle (1952] 2 1<13 826 , a husband gave his wife an overdose of sleepin g pills with th e intent to kill
her so as to save her fi·om continuing to go through suffering. He was convicted of murder despite hi s good
motive. See also Regina v Sl/lith (1 960] 2 QB ~2 3 (Hilbery and Pearson JJ), where a person gave a bribe to a
public offi cer with th e motive of exposing corruption by public officers. He was found guiity of corruption
despite his good intenti ons.
699 Sec section 8 of the Evid ence Act.
700 See R" Kershennez a rtJ! o Tnnki11m11'a ( 1 9 ~0) 7 EACA 67, R "WanjcrtJa ( 1944) 11 EACA 93 and Clwge "Rep 11 blic
[1 985 J KLR 1 (Hancox , Nya ran gi JJA and Pl att Ag JA).
701 See Kiondo Hal/lisi v Rcp11blic [1 963] EA 209 (Spry J), Rex v D11/oo dl o Cidaknngn and others ( 1947) H EAC A
132 (Nihil! CJ, Sir G Gra ham Paul CJ and Thacker J), Habib Kam Vesra and others /J R ex (1934) 1 EACA 191
(Abrahams CJ Ag P, Lu cie-Smith Ag CJ and McDougall Ag CJ), Rex v Hashanr jirl'a (1949) 16 EACA 90 (Sir
Graham Paul CJ, Edwards CJ and Thacker]) , Rex 11 Katenri and another (1909-1910] 3 EALR 79 (Barth J) and
R v Dalpmrn Harishanker Mehta (1948) 15 EACA 123 (Sir Barclay Nihil! CJ, Sir john Gray CJ and Bartley J).
702 See also Durand, snpm, 6.
 William Musyoka
86 Criminal Law
although motive and opportunity are important m.atters to be taken into consideration,
they cannot the1ns~lves be corroboration to other evidence. 703
I
(b) In Mulder Cases
It is one of the factors considered in murder cases to establish malice aforethought. 704 In
Kasaja s I o Tibagi!Ja v Regina (19 52) 19 EACA 268 (Sir Barclay Nihill P, Sir N ewnham
Worley VP and Sir Hector Hearne CJ), for example, where there was inadequate
evidence from which the court coulddraw an inference that the murder was committed
by the appell~nt; the court was of the~~iew that a strong motive could have swung the
balance the other way. 705 In Siauwa ~rev Uganda [1964] EA 596 (Newbold, Crabbe
and Spry JJA), it was said that while there is no necessity to prove motive, the complete
absence of motive must weaken whatever case there may be against the accused person.
Motive was one of the matters considered in Rex v Nyode s I o Wopera (1948) 15 EACA
145 (Sir Barclay Nihill CJ, Mark-Wilson Ag C] and Lloyd-Blood]), to determine the
appellant's criminal responsibility for murder. 706 It was one of the factors considered
in Gathitu s lo Kiondu v Reginam (1956) 23 EACA 526 (Sinclair VP, Briggs and Bacon
JJA), to determine whether the prosecution witnesses were accessories after the fact of
murder. They had assisted in the burying of the body of the deceased in secrecy and
had not reported the crime to the police. It was held that they were neither accessories
after the fact of murder nor accomplices. It was held that their intention in assisting
the appellant was not relevant, what mattered was their motive. They were motivated
by fear, not a desire to help the appellant escape justice.
(c) In Corruption Cases
In Sewa Singh Mandla v Republic [1966] EA 315 (Sir Clement de Lestang Ag p, Spry
AgVP and Law JA),it was held that a corrupt motive was an essential ingredient of an
offence under the now, repealed Prevention of Corruption Act, as the accused person's
703 See Rex v Keihemeiz a wlo Tindikawa (1940) 7 EACA 67 (Si r Joseph Sheridan CJ,Whit!ey CJ and Lucie-Smith
] ), Rex v Warijenva•(1944) 11 EACA 93 (Sir Joseph Sheridan CJ, Sir Norman Whitley CJ and Sir John Gray
CJ) and Wadtira and others v The Republic [1979] KLR 293 [1976- 80] 1 KLR 1457 (Trevelyan and Hancox
JJ).
704 Motive was considered in Libambula 11 Republic [2003] KLR 683, 2 EA 547 (Tunoi, O'Kubasu JJA and
Onyango-Otieno AgJA), wi th respect to robbery with violence.
705 See also R ex 11 Auderea Owori s /o Yowana (1947) 14 EACA 54 (Sir Joseph Sheridan CJ , Sir G Graham Paul CJ
and Thacker J) , Rex 11 Moz abia bin Mkorni (1941) 8 EACA 85 (Sir Joseph Sheridan CJ, Sir H enry Webb CJ
and Sir Norman Whitley CJ), Rex v Frauk Mwale (1936) 3 EACA 102 (Sir Joseph Sheridan CJ , Hall CJ) , Rex
v Nyiran tamma w/o Beihweihwa (1943) 10 EACA 59 (Sir Joseph Sheridan CJ, Mrk Wilson Ag CJ and Lucie-
Smith J), and Law CJ), also George Ngugi Mw1,~ai v Republic Nyeri CACRA No. 122 of2000 (Kwach, Bosire
and O'KubasuJJA), R ex v Pirrnin bin K1ijanga (1935) 2 EACA 64 (Abrahams CJ,Ag P, Sir joseph Sheridan CJ
and Lucie-Smith Ag CJ), Sohan Singh s/o Lakha Singh "R [1958] EA 28 (Sir Kenneth O'Connor P, Briggs VP
and Forbes JA), and Kon<~oro alias Athumani s/o Mrisho v Reginan·1 (1956) 23 EACA 532 (SinclairVP, Rudd and
MayersJJ).
706 See also Nyakite s!o.:[)J'"gi v R [19 ~f>.;;.)22
(Sir Kenneth O'Connor P, Forbes VP and Windham JA), Rex
v Pengaunusu slo ~a,g!!~n~;q}N,<{!Ai"'"'hifaunusu
s/o Musifwala (1943) 10 EACA 47 (Sir Josep h Sheridan CJ,
Sir Norman Whitley CJ and Mark Wilson Ag CJ), Rex 11 Ndambia 1110 Wa11.dur11 (1937) 4 EACA (Sir Joseph
Sheridan CJ, Sir Roger Hall CJ and Dalton CJ), Ogwang 11 Uganda [1999]2 EA 254 (Wambuzi CJ,Tsekooko,
Karokora, Mulenga and Kanfeil"\ambaJJSC) and Rex v Kabande w /o Kihigwe (1948)15 EACA 135 (Sir Barclay
Nihill CJ, Edwards CJ and Lloyf,BloodJ) . See also Paskaz ia d!o Kabaikye v Regina111 (1954) 21 EACA 359 (Sir
Newnham Worley Ag P, Sir Enoch Jenkins AgVP and Briggs JA), with respect to being an accessory after the
fact to murder. See also Rex 11 Mu11.du/i s/o Chui and others (1948) 15 EACA 47 (Nihill CJ, Sir G Graham Paul
CJ and Thacker J), Kinuthia s/o Kamau v Rex (1950) 17 EACA 319 (Sir Barclay Nihill CJ, Sir Graham Paul CJ
and Edwards CJ) , and Rex v Hu ssei11. s/o Mohmned (1942) 9 EACA 52 (Sir Joseph Sheridan CJ, Sir Norman
Whitley CJ and Hayden]).
Wi~~am Musyoka
General Rules of Criminal Responsibility . 87
state of mind, which includes motive and intention, is an essential and material factor
in determining whether he is acting corruptly or not. The appellant, in the matter,
was a magistrate, convicted of corruptly giving a bribe to a police 'officer to induce '
him to for-bear from taking proceedings on traffic offences which had allegedly been
committed by the driver of the motor vehicle in which the appellant was travelling.
The appellant admitted giving the money, saying that he waqted to test the police
office and to know whether it was true that the Kenyan police in fact take bribes.
The appellate court found that his motive was innocent, and quashed the conviction.
It was observed that the appellant's motive was not a dishonest one, but one.. directed
to the detection and suppression of corruption rathe~ than encouraging it. 70? In
Makubi v Republic [1968] EA 667 (Harnlyn J), it was held that essence of the offence
of corruption is the motive which animates the giver. 708
(d) As a Mitigating Factor
A good motive can however be considered as a mitigating factor. It was considered
in Republic v Raphael slo Madeje (1973) LRT 80 (Mnzavas J), where the accused was
convicted of carrying_a greater number of passengers than :rllowed by the relevant
law. On revisio!:l, in reducing the ·amount of fine imposed by the trial court, the
High Court considered that in Tanzania at the time the welfare of passengers might
have required that they ~e carried ci' excess, forcing the accused to overload hi~ bus,
not because the accused wanted to ~reak the law, but possibly because -the excess
passengers pleaded that they be carried in an overloaded bus rather than be stranded
on the road. The court took judicial notice of the fact that bus-conductors are often
put in an impossible situation; they either have to comply with the request of their
passengers and break the law, or refuse the passengers' pleas and thereby earn a bad
name to the detriment of their business.
(e) In Distinguishing between Different Offences
Motive is also relevant when it comes to making distinctions between different
offences, especially when deciding which of the different offe~ces is to be charged. In
Titus Mu lwa Muia v Republic Nairobi CACRA No. 38 of1993 (Tunoi, Shah and Lakha
JJA), for example, the court considered the motive driving the perpetrators of the
crime to determine whether the appropriate charge to bring against the appellan s-was
,
murder or robbery with violence. 709 Th~ facts were that persons raided a residence and - ' ·
stole several items. In the course of the theft a servant at the residence was strangled
to death. Three suspects was subsequently apprehended and charged with murder. The
707 See also Habib Kara Ves ta and others v Rex (1934) 1 EACA 191 (Abrahams CJ Ag P, Lucie-Smith Ag CJ and
McDougall Ag CJ), w here the court took th e view that a genuine police spy is not an accomplice, and
therefore · his evidence does not require corroboration, if his motive is the capture of offenders and not
perpetration of offences. Habib Kara Vesta aud others " R ex (1 934) 1- EACA 191 (Abrahams CJ Ag P,. Lucie-
Snuth Ag CJ and McDougall Ag CJ) , was approved and followed in Rex "Hasham Jiwa (1949) 16 EACA 90
(Sir Graham Paul CJ , Edwards CJ and Thacker J). In Rex v Akbarali K J etha (1947) 14 EACA 122 (Nihil! CJ,
S1r G Graham Paul CJ and Thacker J) , another corruption case, it was said that the essence of the offence of
corruption is the motive which animates the giver. In The Attorney-General 11 Shamba Ali Ka;embe [195 8] EA
505 (Sir Ke1meth O'Connor P, Briggs VP and Forbes JA), the court defined 'corruptly' to mean the corrupt
purpose or motive must be in the mind of th e person charged. See also R v Paulo Alule [1961] EA 728
(Sheridan]) and Rex 11 Musya wa Mbitln~ka [1931 ]13 KLR 82 (Sirj W Barth CJ and Thomas]).
708 See also Rex 11 Akbarali K]etha (1947) 14 EACA 122 (Nihill CJ, Sir G Graham Paul CJ and Thacker J).
709 See alsojames Moina M111angi "Republic Nairobi CACRA No. 32 of 1979 (Madan, Miller and Porter JJA)
(Repubhc of Kenya, Court of Appeal Judgements, Criminal Appeals, 1977-1982, 271).
 William Musyoka
88 Criminal Law
charge was later substituted with that of robbery with violence. On appeal, turning on
the propriety of th~ substitution, the Court of Appeal found, on comparison of the
particulars of the c'harges of murder and robbery with violence, that it was clear that
the fact~ disclos&d. two offences and the principal motive as disclosed by the evidence
was stealing, and therefore the charge of robbery with violence was proper in the
circmnstances. 710
(f) Motive and accessories aft~r the fact
The motive behind the accused per.Son's act or omission is relevant in determining
whether a pe~son has been an "'ficces "· ty after the fact or not. In Rex v Saidi Nsubuga
s/o Juma and another (1941) 8 EACA 81 (Sir Joseph Sheridan CJ, Sir Norm.an Whitley
CJ and Sir Henry Webb CJ), it was said that a person who helps hide a dead body,
knowing that the deceased had been murdered could be an accessory after the fact
to the murder, because his act could be motivated by the desire to assist the murderer
may escape punishment. 7 11 It was one of the factors considered in Cathitu s/o Kiondu
v Reginam (1956) 23 EACA 526 (Sinclair VP, Briggs and Bacon JJA), to determine
whether the prosecution witnesses were accessories after the fact of murder. They had
assisted in the burying of the body of the deceased· in secrecy and had not reported
the crime to the police. It was held that they were neither accessories after the fact of
murder nor accomplices. It was held that their intention in assisting the appellant was
not relevant, what mattered was their motive. They were motivated by fear, not a desire
to help the appellant escape justice.
4. 7 jUDICIAL IMMUNITY
This is dealt with in section 15 of the Penal Code. The general rule is that a judicial
officer is not criminally responsible for anything done or omitted to be done by him
in the exercise of his judicial functions. The provision protects judges, magistrates
and other judicial officers (such as justices of the peace and commissioners of assize)
from criminal prosecLition arising fi·om the exercise of their judicial functions. 712 They
therefore commit no offence when they act beyond the powers invested in them
by the law or for their failure to perform their judicial duties. I~ Attorney-General v •
0/uoch [1972] EA 392 (Spry Ag P, Lutta Ag VP and Mustafa JA), it was held that no
legal proceedings can arise in respect of acts done by judicial officers in discharge or
purported discharge of judicial functions . It was explained by Lutta Ag VP, that, as a '
matter of public policy, this is necessary if such judicial officers are to discharge their
duties without fear of harassment by those who may feel aggrieved by the judicial
7 10 See also j ol11r Yall/IIIW v R ep11blic Kisumu CACRA No. 66 of 1985 (Hancox, N yarangi JJA and Gachu hi AgJA)
(Republic of Kenya, Court of Appeal Judgements, C riminal Appea ls, 1985,Vol. 1, 129).
/
711 See also Ka111bi a/1(1 rl~;e others 11 Repr~~li~ [1989] KLR -+~ 5 (Jvladan, Law a~~d PottcrJJA) ,where it was held that
a prosecution Witn~*1s.a.n acces ~f~r th e £:1 ct of' (,lllrder, as he hid a blood-stained pa11ga wh ich had
been used to kill th e v!cti'Iri's; R1d: '11at although he had foreknowl edge of th e intended cr im e and kn owl edge
after its com missio n, he had taken no steps to preve nt its commission or to give information to the authoriti es
that it had been committed, rp eaning therefore that his motive was to assist the murderer escape justice.
7 12 The immuni ty is not available. '~ere the officer is exercisi ng an exec utive as opposed to a judicial fun ction .
In Oddo 11 R ep11blic [1 970] EA :f54 (Georges CJ), a justice of the peace w ho arrested a person suspected of
operating a shop without a licence, and had him remanded in custody for three days before he was charged in
court, was convicted of wro ngful confmement. It was held that he was nor protected by judicial immunity as
at th e time he arrested the suspect w itho ut a warrant he was nor acting as a judicial officer, but as an exec urive
officer of th e court.
Willj.am Musyoka
General Rules of Criminal Responsibility . 89
officers' actions. In Kionywaki v R epublic [1968] EA 195 (Biron J), a justice of the
peace caused the complainant to be arrested and detained for refusing to attend a local
primary court following the complainant's refusal to assist in a self-help scheme. The ,
justice of the peace was subsequently charged and convicted of wrongful confinement.
On appeal, the conviction was quasheg. It was held that although~ the arrest and
confinement of the complainant were unlawful and unjustified, the appellant was
inmmne from criminal process for such act. ~
Judicial immunity extends to cover police officers in respect of acts done by them
in obedience to a warrant purporting to be issued by a judge or magistrate. By virtue
of section 30 of the Police Act, a court on the production of a warrant containing
the signature of a judge or nugistrate should accept such warrant as sufficient proof
that the act complained of was done in obedience to such warrant and should enter
judgement in favour of the police officer in any suit filed against him. 713
4.8 AUTREFOIS ACQUIT, AUTREFOIS CONVICT
I
These are pleas at the bar, in answer to a criminal charge. 7 1.They can be raised in cases
where a suspect is obJecting to a c]:large on the grounds that he had been previously
acquitted of the same charge or that he had been previously convicted of the same
charge. 715 This would be where the'f'erson had been either acquitted or convicted in
a previous trial on a similar charge based on the same facts as that with which- he "is
now charged. 716 The~e pleas are provided for in section 279 of the Criminal Pro~edure
Code. Where they are pleaded and denied the court should try whether they are true
or not. In Ngarachu and al'l.other v Republic [2004] 2 EA 215 (Ochieng and M akhandia
Ag JJ), the appellants had been convicted of robbery with violence. On appeal against
the conviction, it transpired that the appellants had earlier been charged with and
convicted of simple robbery, based on the same facts, and where the complainant was
one and the same person·. It was held the principle of autrifois convict applied and that
the appellants should not have been charged with the same facts upon which they had
earlier been convicted of. 717 The appeal was allowed.
In Salim bin Kamma (1951) 18 EACA 304 (Sir Barclay Nihill P, Sir Newnham '
Worley VP· and Hearne CJ), accused was convicted of affray. He was subsequently
charged before ano ther magistrate of assault causing actual bodily harm by stabbing
another in the course of the affray. HB<pleaded autrifois convict. It was held that if the
713 See also section 16(1) of the Admjnistratio n Police Act.
714 See P L 0 Lumumba , Criminal l'rocedll re in Kenya, LawAfi·ica Publishing (K) Ltd , Na irobi , 2012 , 69.
715 See Joseph M Nyasani , Legal Philosophy :Jurisprudel/ce, Consolata Institute of Philosophy Press, Nairobi, 2001 ,
120 - 122. See generally Patrick Kiage, Esse11tials of Crirni11al Procerl11rc in Kenya , LawAfi·ica Publishin g (K) Ltd ,
N airobi , 100 -1 02.
716 See R ex 11 Zatfera li Tayabali Mnl/a Dandji (1948) 15 EACA 89 (Sir Barclay Nihill CJ, Edwards CJ and Sir John
Gray CJ), where it was said that on a plea of anrrefais corwicr the rest is not whether th e £:1cts reli ed on are
the same at th e two trials, but rather wheth er th e ~ quitta l or conviction on th e previous charge necessarily
involves an acquittal or conviction on the subsequent charge. The appellant had pleaded guilty to smuggling
ivory contrary to the provisions of the Customs Management (Export Control) Order, 1941i. He was later
charged with attemptin g to export game animal trophies without the written permission of the ga me warden.
H e pleaded a 111r~{ois cowicr, which plea was dismissed by the trial court. The appellate court upheld the
rej ection of the pl ea.
717 See also R ex v Chacha Osinda a11d 11110 others [1 932] 14 KLR./ EALR. 170 (Sir Jacob Barth CJ and Ga mble J),
R ex" Mar un s/o Kilwto (Circular to Magistrates No. 12 of 1947 22 (2) KLR 124 Horn e and Bourke JJ) and
R~gina v Alwnaay bin T<aay [1953-57] 2 TLR 24 (Lowe J).
 William Musyoka
90 Criminal Law
facts disclosed only one act or omission then the law bars any subsequent prosecution
on a charge for another offence based on the same act. But a previous conviction or
acquittal does 1iot prevent a person from being subsequently charged with a different
offence whiah could have been joined with the first charge at the former trial. 718
In R vAbsolom s/o Mo hanga and another [1957] EA 660 (RuddAg CJ and Forbes]),
the respondents were police officers who took two women from the cells and had
carnal knowledge of them without their consent. The respondents were subsequently
charged under the Police Act (in what are known as orderly room proceedings) over
their acts with conduct to the pkejudice of good order and discipline, convicted and
sentenced. They were later brou~'!:.! before a magistrate charged with rape. The plea
of autrifois acquit was raised-rand d<iepted. On appeal by the state, it was held that the
magistrate sho~ld have rejected the plea of autrifois acquit. In the opinion of the court,
the offence which was the subject of the orderly room charge was based on the same
facts, but it was not the same offence of rape; and. for the plea of autrifois acquit to be
effectual, the previous conviction must be the same, or practically the same offence as
that subsequently charged. 719
In Haji Sedi Semuyaga v Uganda (1975) HCB 237 (Law Ag P, Mustafa Ag VP
and Musoke JA), it was held that the principle. of autrifois acquit does not apply in
cases where the subsequent charges are based on different facts from those which
the accused h ad been charged with and acquitted of earlier. The appellant had been
acquitted of an alleged conspiracy on 1 November 197Q with one Edrisa Kinvuga to
steal 36 bags of rice. He was subsequently charged with an alleged conspiracy between
25 and 30 October 1972 with one Christopher Ouma to steal 72 bags of rice. He
pleaded autrifois acquit. The trial court applied the principle of autrifois acquit, and
discharged him on the finding that the theft and conspiracy charges were substantially
the same as the earlier ones for which he had been acquitted. On appeal it was held
that the trial court was wrong, since the two sets of charges were based on different
facts; to wit, the co9-spiracy was alleged to have occurred on different dates involving
different persons. 7 ~0
These pleas .are only good where the convictions or acquittals remain in force.
It would appear that a conviction which is overturned on appeal on the grounds
that it was not supported by the facts presented to the trial court would technically
amount to an acquittal, and therefore a bar to a subsequent charge on the same facts.
It would appear, however, that a conviction that has been reversed on appeal for being
erroneous in law is no bar to a subsequent trial on the same facts. 721 In Rex v Abdi
Mage and others (1948) 15 EACA 86 (Sir Barclay Nihill, Edwards CJ and Sir John
Gray CJ), it was held that quashing a conviction on the basis that the trial record is
indecipherable and leaving it open to the state to institute fresh proceedings de novo
does not bar the plea of autrifois convict to a subsequent charge, and to prevent such
a scenario the better order foJ; the appellate court to ma_ke would be to order a new
i?:.:.._ . .· . ' -_-.,.;· ;..
-· ~ . . ...... _# i;·~ ~.,
· ;;.:
718 See El Mann v R epnblic [1<}'10] EA 24 (Sir Charles Newbold P, DuffusVP and Law JA).
719 See Re An Application by Ajir Siugh [1959] EA 782 (Rudd J).
720 Compare with Rex v Mahuua biu Kashiba (1939- 1950) 7 ZLR 59 (Sir John Gray CJ).
721 See The Quee11 v Drury aud orhers (1849) 18 LJMC 189 (Coleridge J).
Willi,Slm Musyoka
Ge~. eral Rules of Crim.inal Responsibility 91
triaF 22 . In Rex v Kimnyongo arap Kimanjo [1932]14 KLR/EALR 164 (Sir Jacob Barth
CJ), it was held that where a higher court quashes a conviction and sentence and does
not order a re-trial, the accused person cannot again be placed on trial for the same
offence, as .he would be entitled to plead autrifois acquit. In the opinion of the court,
following the principle that no one shouJd be in jeopardy twice on th,e same charge,
the effect of an order quashina a conviction and sentence without ordering a re-trial
0 ~
has the effect of an acquittal and it is a bar to further proceedings on the same charge
with the same evidence.
It would also appear that where the consequences of a criminal act had not
happened, or were not known to the court at the time of the acquittal or conviction,
there is no bar to a subsequent trial. This is the position under section 140 of the
Criminal Procedure Code, which provides that a person convicted or acquitted of
any act causing consequences which together with such an act constitute a different
offence from. that for which such person was convicted or acquitted may be afterwards
tried for such last-mentioned offence, if the c:onsequences had not happened or were
not known to the court to have happened at the time when he was acquitted or
convicted. The principle was applied in the English case of R. v Thom.as [1949] 2 All
ER 662 (Humphreys, Hilbery and Croom-Johnson]]), where a person was convicted
for the felony of wounding his wife. The wife subsequently died, and the convict was
charged with her murder. He pleacre'd autrifois convict to the murder charge, bll;.t t~e
plea was reject~d. On appeal, the rejec~ion of the plea was .upheld.
It was held in Rex v jiwan Nathu and m10ther (1944) 11 EACA 62 (Sir Norman
Worley CJ, Sir Henry Webb CJ and Lucie- Smith J), that if a trial court discharges an
accused person where the state fails to present evidence against him, that would be
the case of a discharge under section 87(a) of the Criminal Procedure Code, and it
is not an acquittal and therefore the plea of autrifois acquit would not be available to
the accused should the state thereafter charge him of the same offence for which he
had been previously discharged. 723 The same applies to a dismissal of a charge under
section 202 of the Criminal Procedure Code, such dismissal is not a bar to snbsequent
t
proceedings.
It was pointed out in Haji Sedi Semuyaga v Uganda (1975) HCB 237 (Law Ag P,
Mustafa Ag VP and Musoke JA), that a discharge on the grounds of autrifois acquit is
not an acquittal but merely a finding o;· order that the accused person should not be
placed on his trial. The same would apply to a conviction. In A . E. Mtemba v Republic
(1973) LRT 96 (Bramble J), it was impliedly held that where a conviction is quashed
on the grounds that the evidence does not disclose the offence charged, and the court
cannot under section 179 of the Criminal Procedure Code substitute it for another,
the accused cannot plead autrifois acquit, and the state can still bring new charges . The
appellant had been convicted of obtaining goods by false pretences, which charge was
quashed upon the finding that the evidence did not support a charge of obtaining
by false pretences but theft. The court how ever found that it could not substitute
722 This decision was followed with approval in Blwgubhai Lalbhai Patel 11 Rex [1 952] 25 KLR 127 (Sir Hector
Hearne CJ and Bourke J). See also AJ Si111pso11 11 N alwru Disrria Couucil [1940] 19 KLR 27 Thacker and
Bartley JJ).
723 See Republic,, Owako aud others [1974] EA 507 (Trevelyan ) ). See also Seu111ynga v Ugauda (Law Ag E Mustafa
Ag VP and Musoke JA), where it was remarked that a discharge o n the grounds of aurrifOis ncqulf 1s not an
acquittal , but merely a finding or order that th e accused person 1s not to be placed upon h1s tnal.
 William M usyoka
92 Criminal Law
the conviction for theft, as obtaining by false pretences is not cognate to theft, and
indicated that the state could bring new charges since the appellant could not plead
autrrifois acquit. 1
(/
4.9 DoUBLE jEOPARDY
This concept is closely related to the pleas of autrrifois acquit and autrrifois convict. The
rule is that it is unjust for a person to be punished more than once for the same offence
or crime. It is a protection against double punishment. The courts have interpreted
the rule to mean that a person 6arinot be convicted twice for the same offence. 724 It
was stated in Myano s/o niine v l~x (1951) 18 EACA 316 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Sir Hector Hearne CJ), following Salim bin Karama (1951)
18 EACA 304 (Sir Barclay Nihill P, Sir Newnham WorleyVP and Hearne CJ), that if
the facts of a case disclose two acts the accused may be charged with and punished for
both, but if all the facts amount to one act and no more, he cannot be punished twice
for that act. 725
In Rex v Kildare Robert Eric Dobbs (1951) 18 EACA 319 (Sir Barclay Nihill P,
Sir Newnham Worley VP and Sir Hector Hearne CJ), the appellant was charged
with stealing by a person employed in the public service and unlawful possession
of government trophies. He was convicted on both counts, and given concurrent
sentences. On appeal, it was held that whilst it was open to the prosecution to charge
him with two offences he cannot be punished twice for the same act. It was held to
have been wrong for the trial court to have passed sentence on both counts. The act
disclosed two offences, and the appellant should have been punished for only one
of them. The sentence for the second count was sei: aside. 726 In Santokh Singh Kehar
v Reginam (1955) 22 EACA 430 (Sir Barclay Nihill P, Sir Newnham WorleyVP and
Sir Enoch Jenkins JA), the accused stood charged on two counts: with attempting to
procure another to. commit the offence of destroying certain documents required for
court proceedings 'and with attempting in the same transaction to procure the same
person to steal the said documents. The accused was convicted of both charges. On
appeal, the court held that the appellant had been punished t':"ice for the same act. 727
724 See section 62 of the Police Act and rule 3 of the Traffic Rules.
725 See also Hnji Molerli11a n11rl a11otlter "R [1960) EA 678 (Sir Audley McKisack CJ). See also Atito "Republic
(1975J EA 278 (Law Ag P, Mustafa Ag VP and Sir Dermot Sheridan J), where it was said that where a sinf;le
accident causes the death of several persons , the accused should only be charged with one count of causing
death by dangerous driving, as the number of deaths caused is immaterial. It was held that it would amount
to being punished twice if the several counts of dangerous driving were to be charged as the offence in the
circ umstances is that of dangerous driving causing death and the number of deaths caused was immaterial. See
also Kn11ta11 s!o Knmuyu (1955) 22 EACA 440 (Sir Barclay Nihill P, Sir Newnham WorleyVP and Briggs JA),
where the appellant was convicted on two counts each of which charged him with wounding with intent.
Both counts related to one and the same act, but each alleged a different intent. It was held that the appellant
had been punished twice in respect of the same unlawful act, namely that of having unlawfully wounded the
complainan t. ~ co~1yiction ~eioof the counts was quashed to·regularise the situation. See also Seij11 s!o
Bakari" R [196cfEA~~ '&!'astair ForbesVP, Gould andWindhamJJA).
726 See also Kab11ngn s!o Magingi" R..egi11am (1955) 22 EACA 387 (S ir Barclay N ihil! P, Marion] and Holmes]). In
M11irtll'i "Rep11blic [1 973} EA 86 (Trevelyan and H ancoxJJ), the appellant had been chaq~~d with shopbreaking
and theft and with robbe'r;A-w ith violence in respect of the same in cident and was convicted of both offences.
On appeal , it was held that' theft was a constituent element of both offences charged, and as a person cannot
be convicted or sen tenced on two charges where the same act is an offence under the different laws, one of
the sentences imposed by the trial court had be set aside
727 See also Sitwile s/o Mpina anrl others v Rex (1934) 1 EACA 182 (Abrahams CJ, Ag P, Law CJ and McDougall
AgCJ).
Willi~m M usyoka
General Rules of Crim.in.al Responsibility 93
The desire of the appellant was to achieve the destruction of the said documents to
prevent their being used at a pending trial. It was in furtherance of this objective that
he procured the other person to steal and destroy the documents, and therefore the
whole transaction amounted to one act.
It was stated in Cosma s I o Nyadago V ' Reginam (1955) 22 EACA 4'50 (Sir Barclay
Nihill P, Sir Newnham Worley VP and Briggs JA) that it is perm.i.ssible to lay different
charges, relating to the same crinlinal act or omission, or based on the same facts if
the said facts disclose several offences, in several courts in the alternative. But in Seifu
s/o Bakari v R [1960] EA 338 (Sir Alastair ForbesVP, Gould and WindhamJJA), the
point was made that where the charges are in the alternative, the proper course, upon
conviction of the accused on one count, is for the court to refrain from entering a
verdict on the other to avoid double conviction or punishment. mThe appellant had
been convicted on two counts of attempted murder and attempting to strike with an
arrow with an intent to do grievous harm, with the sentences running concurrently.
The second count was in the nature of an . alternative; both counts were founded
on the same act, the shooting of ·an arrow ~t the complainant. The conviction and
sentence on the second count were set aside. In Shah v Repuhlic [2002] 2 KLR ·526
(Ouna J), the court held that no court should try any suit or issue in" which the
m.atter directly and substantially in issue has been directly and substantially in issue in
a former suit between parties under"\trhom they or any of them claim or suit in which
such issue has been heard and fully ~ecided by the court. The matter before .~ou~t
was a criminal application seeking to have certain charges or complaints accepted
by a criminal magistrate's court rejected as similar charges or complaints had been
previously br~ught against the accused and fully heard and determined.
The rule is also stated in the Kenya Defence Forces Act in sections 211 and
212. At section 211, it is ·provided that where a person, any person, is tried by a civil
court for a civil offence, and has already been sentenced to or awarded punishment
for an offence· under Part VI of the Kenya Defence Forces Act, what are known as
service offences, consisting of an act or omission which constitutes the civil offence
(whether wholly or in part) may be convicted of the civil ~£fence notwithstanding
the previous conviction of the offence under Part VI of the Kenya Defence Forces
Act. Section 211(2) is explicit that the principle of double jeopardy does not apply
in the circumstances, but the civil court should in sentencing the offender take into
account the punishment imposed in re;pect of the offence under Part VI of the Kenya
Defence Forces Act. It will be noted that the penalties prescribed under the Kenya
Defence Forces Act are lighter than the comparable offences created under the Penal
Code. Double jeopardy will not apply where trial is before a civil court, where there
is a conviction by a court martial.
728 See Muintri "Rep11blic [1973) EA 86 (Trevelyan and H ancox JJ), where the appellant was charged and convicted
of shop breaking and theft and with robbery with violence in respect of the same incident. It was held on
appeal that theft is a consti tuent of the two offences charged and that it was improper to convict the appellant
on two charges w here the same act is an offence under different laws. See also Rex v Kildare Robert Eric Dobbs
(1951) 18 EACA 319 (Sir Barclay Nihil! P, Sir Newnham Worley VP and Sir Hector Hearne CJ) and Cosnta
s/o Nynrlngo "Regi11ant (1955) 22 EACA 450 (Sir Barclay Nihill P, Sir Newnham WorleyVP and BriggsJA).
 William Musyoka
94 Criminal Law
Section 212 of the Kenya Defence Forces Act on the other hand, applies the
principle. 729 It states that where a person has been tried of an offence by a civil court
or under Part \1"1 of the Kenya Defence Forces Act or has had a conviction taken into
consideratio'h in terms of section 211 (2) of the Kenya Defence Forces Act; or he has
been charged with an offence under Part VI and the charge has been dismissed or has
been convicted by his commanding officer or other superior authority; or has had an
offence condoned by his commanding officer, should not be tried by a court martial.
In short, he should not be tried under the Kenya Defence Forces Act for an offence
which has already been dispose~ - of. Double jeopardy applies where trial is before a
court martial, where there js a ci ryyiction by a civil court or acquittal or dismissal for
an offence under Part VI of the k""enya Defence Forces Act either by court martial or
other authority under the Kenya Defence Forces Act.
4.10 HusBAND AND WIFE
The law has several rules relating to the criminal responsibility of husbands and wives.
Most of these rules are influenced by the rule which protects communications during
marriage, which is stated in section 130(1) of the Evidence Act, to the effect that no
person is to be compelled to disclose any comm:unication made to him or her during
marriage, by the other spouse; neither should a person be permitted to disclose such
communication without the consent of the person who made it.
'
(1) Marital Coercion
At common law it was presumed that married women did not have will power. A wife
charged with a felony in her husband's presence was presumed, unless the contrary was
proved to have acted under his coercion, and was entitled to an acquittal. Section 19
of the Penal Code has changed the common law position and provides that coercion
by the husband is ~0 longer presumed for offences committed by a married woman
in the presence of her husband, but it would be a good defence if the wife can in fact
prove coercion by the husband. 730 This, however, will be no defence where the charge
is that of treason or murder. Both the common law and the Penal Code do not make
any although the general provision, at section 16 of the Penal Code, on compulsion
would be applicable in such a situation.
In Rex v VT-'czmbogo and anor [1924-26] 10 KLR/EALR 3 (Pickering and Sherid~n
JJ), the issue of marital coercion under the Indian Penal Code arose. The woman had
been married under customary law; the issue was whether she was to be presumed
to have acted under her husband's coercion in accordance with the common law
rule. The court held that under the Indian Penal Code there was no room for the
application of the common law presumption. This was before the current Kenyan
Penal Code came into force, which provides for the defence of marital coercion to be
proved. The for~East_--~.f/'~ 'court of Appeal in Lenson Ambindwile s/o Mafubila
v Reginam (1955) 2:iE~CA 448 (Sir Barclay Nihill P, Sir Newnham Worley VP and
Briggs JA), said that the decision in Rex v Wambogo and anor [1924-26] 10 KLR/EALR
3 (Pickering and Sherida~JJ), should, after the coming into force of the Kenyan Penal
729 See also the proviso to section 62 of the Police Act, which provides that no police officer should be punished
twice for the same offence. See also the proviso to rule 3 of the Traffic Rules.
730 See Rex" arap Kiptalam [1 915-1916] 2 EALR 102 (Hamilton and BarthJJ).
W illi.am Musyoka
General R~des of Criminal Responsibility 95
Code, be read in the light of section 20 (now section 19) of the Penal Code of Kenya
which is in effect an enactment of the common law presumption.
(2) Spouses as Parties to Offences
~
The common law also created a duty on lhe part of the wife to care for her husband
and to keep his secrets, which means that a wife does not became an accessory after
the fact to her husband's crime by sheltering him from justice. T he reverse however is
not true in common law: a husband who harbours a wife who has conunitted crimes
becomes punishable as an accessory to her crimes. The Kenyan law treats the spouses
equally in this respect. Under section 396(2) of the Penal Code neither the wife 'n or
the husband becomes accessory to the other spouse's crime by reason of receiving or
assisting him or her in order to enable her to escape punishment.
(3) Spouses and Conspiracy
At common law a husband and wife cannot be convicted of conspiracy with each
other alone; unless there is a third party involved or the spouse is found to have incited
the other spouse to commit the cri~ue if the elements of incitement are proved. T h e
Kenyan Penal Code does not carry a provision to that effect, but the common law rule
is deemed to apply by virtue of the J"Utiicature Act, which applies the English common
law in Kenya. The term 'conspiracy' is held to mean, as in English law, 'conspiracy other
than that between husband and wife only.' This position was stated in, among other
cases, Laila ]hina Mawji and another v The Queen [1 957] AC 126, (1956) 23 EACA 609
(Lord Oaksey, Lord Tucker, Lord Cohen, Lord Keith and Lord Somervile of Harrow),
that a husband cannot be convicted of conspiracy with his wife.
(4) Spouses and Theft
Regarding the law of theft, spouses enjoy certain privileges. The law treats husband
and wife as having sufficient common possession of their property, alth9ugh the
matrimonial law does not recognize common ownership ~ etween them, so that
neither of them can be guilty of stealing from the other. However, under section 27 4
of the Penal Code, a person who procures a husband or wife, while the husband or
wife is still living together with the other spouse, to deal with the property of the
other spouse, knowing it to be the prop~rty of such spouse, in a manner which would
amount to theft if the two were not married, would be guilty of theft. This provision
presumes the application of common law rule that it is not theft for spouse to a
takes the other's property. A person who procures one spouse to take the property of
another spouse may be charged with and convicted of theft. A secret adulterer, who
procures a wife to steal from her husband, is guilty of theft, even if the wife i_s protected
by the inmmnity which attaches to marriages.
(5) Spouses and Offences involving Personal Violence
Criminal proceedings are maintainable for personal violence, except that at conunon
law a husband cannot normally be guilty of rape on his wife. The common law position
is that the wife had given a general consent to sexual intercourse with her husband
upon the celebration of the marriage. Rape may, however, be committed when the

96 Criminal Law
parties are separated by a judicial order. 73 1 No offence would be committed where
the parties are ,merely living apart, and it does not matter that divorce proceedings
1
are pending. m This position is now fairly controversial. The concept of spousal rape
has gained ·ct rrency, although there are no reported cases in Kenya of convictions for
spousal rape.
(6) Spouses and the Law of Evidence
(a) Non-compellability of Spd11ses
"' apply to married couples. 733 According to section
In the la; of evidence, var(ous riflE~
127 (2) of the Evidence Act in criminal proceedings a husband or wife is a competent
defence witness where the other spouse is charged with a criminal offence. Such
spouse cannot however . be compelled and can only testify on the application of
the person who is charged. It would appear that neither a husband nor a wife is
competent to testify against his or her spouse when he or she was on triaU 34 A number
of exceptions, however, are allowed to this general rule. On a charge of bigamy, the
first marriage has to be proved and therefore the spouse in the second marriage, who
in any case in law is not a spouse at all, is a competent and compellable witness. 735 On
certain charges of an offence against morality, the spouse would be a competent and
compellable witness. 736 On acts or omissions affecting the person or the property of
the spouse of the accused or the children of either of the spouses, the application of
the rule would mean that there would be no evidence, given that the complainant
would be an incompetent and uncompellable witness; hence the exception which
makes the complainant spouse both competent and compellable. 737
(b) Spouses of a Valid Marriage
Under section 127 (4) of the Evidence Act, husband and wife refer to the husband and
wife of a valid mautiage, whether monogamous and polygamous, whether contracted
under statute or ,custom.ary law. The principle of presumption of marriage applies
in criminal law, In Kalume wa Tuku alias Saidi v R eginam (1954) 21 EACA 201 (Sir
Newnham Worley Ag P, Sir Enoch Jenk.ins Ag VP and Briggs JA), the court treat~d
as husband and wife for criminal law purposes parties who lived together as husband
and wife, though not regularly married. The appellant had for many years lived with
the deceased as her husband, although they had never been married. When one d~y
731 See R 11 Clarke [1 94'.!] 2 All ER 448 (Byrne J).
. t . .
732 See Th e Qu ee~ UJI,~ (l 8 46·· ·:~8r2 Cox CC 291 (Eri e ]).
• : .-...... _ i.: /!- G .-
733 See R ex 11 .A.nderea EMru ! "/c> Oko111em (1941) 8 EACA 87 (Sir joseph Sheridan
Wilson])
73-t See Rouge 11 R epublic [2603.]. J( LR 692 (Tunoi , O 'Kubasu JJA and Onyango-Otieno Ag JA). See also Perera
Sebaggala 11 R ex [ 1 932-1 9~j 5 ULR 4 (Sir Sidn ey Abrahams CJ and Gray Ag J) .
735 See secti on 127(3)(a) of th e Evidence Act.
736 See section 127(3)(b) of th e Evidence Act.
737 See section 127(3){c) of the Evidence Act. See also johu Odongo Baunba '' Republic Mombasa C ACRA N o. 79
of 1997 (Ch eso ni Cj, Kwach and Tunoi JJA).
William Musyoka Will~m Musyoka
General Rules if Criminal R esponsibility . 97
he found her in bed with another man, he killed her. It was held that the· defence of
provocation was available to him. 738
(c) Colonial Attitude to African Marriages
The colonial courts tended to hold that the common law rules envisa~ed a Christian
marriage, which is strictly monogamous, but not marriages unde1· other systems oflaw
which tend to be potentially polygamous. Indeed, the attitude of the colonial courts,
as reflected in the case of Rex vAmkeyo [1917-1918] 7 EALR 14 (Ham.ilton CJ and
Pickering AgJ), was that the African customary law marriige was not a marriage but
mere wife purchase, and the common law was therefore of no application to it. 'The
decision in Rex vAmkeyo [1917- 1918] 7 EALR 14 (Hamilton CJ and PickeringAgJ) ,
was followed by a host of decisions, such as Robin v Rex [1929-1930] 12 KLR/ EALR
134 (Sheridan Ag CJ, Guthrie-Smith J and Muir Mackenzie J) and Abdulrahman bin
Mohamed and another v R [1963] EA 188 (Sir Ronald Sinclair P, Sir Trevor Gould Ag
VP and Newbold JA) .739
The Privy Council, in the Tanzanian case of Laila jhina Mawji and another v The
Queen [1957] AC 126, (1956) 23 EACA 609 (Lord Oaksey, Lo.rd Tucker, Lord Cohen,
Lord Keith and Lord Somervile of Harrow) took the view that the English common
law rule applied to the spouses of al'H}' marriage, including a potentially bigamous law
marriage. In Rex v Daudi Odougo [1924- 1926] 10 KLR 49 (Sir J W Barth Cj arid
Pickering]), the court took a different view from the Rex vAmkeyo [1917-1918] 7
EALR 14 (Hamilton CJ and Pickering Ag J) approach, by holding that a woman who
has been married to a man in accordance with the recognized law and custom of her
tribe is his wi.fe. The appellant had been acquitted of adultery on the grounds that a
woman married under customary law was not within the meaning of the Indian Penal
Code. The trend after independence reflects a changed judicial attitude. In W illiam
Mu li v Francis K ithuka (1971) KHCD 118, Miller J stated that it was wrong to conceive
the idea that marriages under any of the customary laws of Kenya are inferior to those
protected by statute. 740
'
4.11 CORPORATIONS
A corporation has the same criminal responsibility as a natural person. A corp oration
is defined as a group of people who c'Ome together for a conm1on purpose, usually
to carry on business . The corporation is considered to be a legal entity or person,
738 See also O reudc Osejnui 11 Ugtwdn [1965] EA 627 (Sir Samuel Quashie-Idun P, Sir Clement de L~sta n g and Law
JJA),Joseph Knsabauo Kashaki 11 The R epublic Mumuza CAEACRA N o. 14 of 1973 (Wambuzi P, Mu stafa and
Musoke JJA) (R epubli c of Kenya, C ourt of Appeal Judgements, C riminal Appeals, 1974-1 976, 59) and Chncha
s/o Wmubum 11 Rcgiua111 (1 953) 20 EACA 339 (Sir Newnham Worley VP, Sir Hector Hea rn e CJ and Briggs
JA).Th e earli er decisions of the court in Rex 11 Aii s/o Lugulula (1938) 5 EACA 113 (SirjoselJh Sheridan CJ,
Whitley CJ and Knight-Bru ce Ag CJ), R ex 11 Paulo i\1ugweri s/o Erukaun (1947) 14 EACA 138 (Nihil! CJ, Sir
G Graham Paul Cj andThackerj ) and Rex 11 Wn~~us u s/o i\l[wnuiia (1 939) 6 EACA 76 (Sir j oseph Sheridan CJ,
CJ, Sir H enry Webb Cj and Whitley Cj and Sir Ll ewelyn Dalton Cj) are no longer good law. See Muugai 11 R epublic [1'.!76-1 98 5] EA 318
[1 982-88] 1 KAR. 611 [1 984] KLR 85 (Kn eller, Han cox JJA and N yarangi AgJA), concerning th e defences
of defence and provocation.
739 See R ex 11 Toya s/o Mn111urc [1932] 14 KLR/ EALR 145 (Sir jacob Barth CJ, Law Ag Cj and Thomas j ), R ex
" Nyn wa wa Nym11a [1933] 15 KLR / EALR 99 (Abrahams CJ, Sir Joseph Sheridan Cj and Gray Ag J), R ex 11
Auderea Edom slo Oko111era (1941) 8 EACA 87 (Sir j oseph Sheridan CJ, Sir H enry Webb Cj and Wilson]) and
R ex 11 Mwakio A sani s/o Mwauguku [1932]1 4 KLR./ EALR 133 (Sir Jacob Barth CJ, Sir C harl es Griffin CJ and
Pickering CJ).
740 See R ouge 11 R epublic (2003] KLR 692 (Tunoi , O ' Kubasu JJA and Onyango-Otieno Ag JA).
 William Musyoka WiJ!iam Musyoka
98 Criminal Law G eneral Rules of Criminal R esponsibility. 99

separate and distinct from its members. It has a corporate name, perpetual succession
and a common seal. Corporations are established either by statute or formed under
the Companie/ Act. In the Tanzanian case of Wilfi'ed Tj;enyi v R eginam (1956) 23 EACA
558 (Sir Ne~nham Worley P, Briggs AgVP and BaconJA), it was held that since the
words 'corporation' and 'company' were not defined in the Penal Code they must bear
their ordinary meanings.
A limited liability company was in R v ICR Haulage Ltd [1944] 1 All ER 691
(Humphreys, Croor11-]ohnson a ~. Stable JJ) , charged with the offence of conspiracy
to defraud. It raised the objectioa that it was not a natural person, it did not have a
mind and-therefore it coula not l(6rm a mens rea. The argument was rejected by the
court, which held that the acts and states of mind of a company's servants may be
treated as that of the company itself. The court set out the limits to criminal liability of
corporations: some offences, such as perjury and bigamy, by their very nature cannot
be con1.mitted by corporations, and for some offence, such as murder, the only available
penalty is corporal to which a corporation cannot be subjected.741 In Regina v Nassa
Ginners Limited (1955) 22 EACA 434 (Sir Barclay Nihill P, Sir Newnham Worley
VP and Briggs JA)a limited liability company was convicted of an offence under the
Factories Act for failing in its duty to securely fen·ce a machine called cotton opener. 742
on the partners/ 46 managers or organisers individually. The legal position regarding
unincorporated bodies was stated in Stephen Obiro v R [1962] EA 61 (Farrell]), where
the court said that an unincorporated body could theoretically be guilty of a criminal '
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. "Khe court found
that the charge against the society was bad in law as crimillal proceedings cannot
lie against an unincorporated body; it was further held that the plea of guilty by the
chairman of the society on behalf of the society was a nullity as it was not made by
a person duly authorised to plead on behalf of the socit;ty. In Uganda v Khimchand
Kalidas Shah and two others [1966] EA 30 (de Lestang and Law JJA), it was held, that
when one is dealing with a private company, evidence that stolen property was found
on its premises must tend to implicate the directors of the company, rather than the
company itself, with the offence of receiving or retaining. 747 Stolen property had been
found on a coffee farm and house owned by the company, and the issue was whether
this implicated the directors of the company, who were charged with receiving or
retaining stolen property. '
J
4.12 IMMATURITY

Unincorporated bodies, such as political parties, trade unions, partnerships743 and The law presumes innocence of r~1ors of certain ages , and affords them protection
firms do not have corporate existence. It was held in Nterekeiya Bus Service v Republic · from criminalliability. 748
[1966] EA 333 (Sir John Ainley CJ and Miller J) , that a firm or body corporate cannot
be charged, convicted and punished solely in the name adopted by the firm or society.
(1) Minors under Eight
A firm was charged and convicted of permitting someone drive a motor vehicle in Section 14 (1) of the Penal Code makes the irrebuttable presumption that a child
an unworthy condition. It was recorded that the accused was present in court and the under eight 'years is not criminally responsible for any offence. This means that no
fme was paid by someone whose name was unknown. The conviction was quashed person under eight years can be charged with a crime. 749 However, where an adult
on appeal. person uses such child to commit a crime, the adult will be liable, such as in cases
where a parent causes a child to commit theft, by sending him to steaL It was held in
According to section 23 of the Penal Code, where an offence is committed by
RC v Republic [2005] 2 KLR 239 (Omolo, Githinji andWakiJJA), that the philosophy
a corporate or non-corporate body, every person who is in charge of the control of
behind section 14(1) of the Penal Code is that such a person is incapable of forming
the managemen! of the affairs or activities of the corporate or non-corporate body is
guilty of the offence and is liable to be punished for it. 744 Crimir-ulliability arising fi·orp.
any intent or mens rea which is a necessary ingredient in many crimes. It was also held •
that a priori that a person under the age of eight cannot lawfully form an intention to
the activities and operations of corporations attaches on both the corporation and its
say or do an act which any other person can latch on to escape liability for a criminal
managers/ 45 but for such bodies as are not corporations criminal liability attaches
act. This principle was applied in Regublic v Wamboi Kamau [1965] EA 548 (Harris
J), where the accused who was aged about nine and faced a charge of murdering an
741 See Majestic Th eatre Co. Ltd 11 R egina [1952] 25 KLR 157 (Sir H ector H earne CJ and Bourke J), Keremeuti infant left in her care. The court acquitted her because it entertained doubts whether
Lyango111be and another v R [1 959] EA 678 (B ennett Ag CJ) and R epublic tl Intemational Trading and Credit
Corporation of Timganyika Ltd [1 969] EA 314 (DuffJ).
the accused was over eight years at the time of the commission of the offence.
742 See also Bo111bay Trading Stores (U) Li111ited and another v R [1962] EA 589 (Sir Ronald Sinclair P, Sir Alastair
Forbes VP and Sir Trevor Go uld JA) and Range v Republic [2003] KLR. 692 (Tuno i, O'Kubasu JJA and
Onyango-Otieno AgJA).
7 43 See Ne111chaud Je~ha ug Shah and ~a nother v R egina (1952) 25 EACA 161 (Sir Hector H earne CJ and Windham
J). > • .. . • •• ;- .1. .

7 44 See also section 42 b (~He '!;c, 1etie; Act, whi ch provides that where a society is convi cted of an offence under
the Act, every office r of the society should also be guilty of the like offence and liable to the like punishment .
However, such offi cer shtJuld not be convicted of such offence if he sa tisfi es the court (hm he exercised du e
diligence to prevent its coi1~ji ss i o n and that the offence occurred by reason of matters beyond its control. 746 See also section 60 of th e Weights and M easures Act.
745 See also section 108(5) of 'the O ccupational Safety and H ealth Act, section 66 of th e N arcotic Drugs and 747 See also R 11 Ka/sons Li111ited and others [1957] EA 347 (M cKisack CJ) .
Psychotropi c Substances (Control) Act, secti o n 61 of the Weights and Measures Act, section 50 of th e
748 See Tibamanya Mwene Mushanga, Ho111icide and Its Social Canses ,LawAfrica Publishing (K) Ltd, 2011 , Nairobi ,
Pharma cy and Poisons Act, section 181 of th e Children Act and section 165 of the Publi c Health Act. See
R v Ivan A rtluu· Ca111ps [1962] EA 403 (Sir Ronald Sinclair P, Sir Alastair Forbes VP and Crawshaw JA) and 44 - 45.
Mkeudeshwo 11 Republic (2002]1 KLR 461 (Omolo, Shah and Bosire JJA). 749 See R ex 11 Karuri wa Kiruki and another [1 939] KLR 171 (Sir Joseph Sheridan CJ and Lucie-Smith J).
 William Musyoka
100 Criminal Law
(2) Minors under Twelve
Section 14(2) of the Penal Code creates the rebuttable presumption that a child
under twelve js not criminally responsible. 750 This presumption of innocence covers
children in the age bracket of eight to eleven years. The presumption can be rebutted
by evidence that the child knew w hat he was doing was wrong. In R v Owen (1830)
4 C & P 236, it was held that it is not necessary to prove that the child knew that the
conduct was legally wrong, but it must be established that they knew that the same
was morally wrong. In Rex v Ker~~1·aw [1902] 18 TLR 357 (Bucknill J) , it was stated
that the prS'secut10n should seek t?.·mfer the relevant mens rea from the actus reus, as
in most cases, other evidence· mus ···b e adduced to the effect that the child knew that
he was doing something morally wrong. This is usually done by adducing evidence of
what the child was taught at home and at school.
An irrebuttable presumption is created by section 14(3) of the Penal Code that a
boy under twelve years is incapable of having carnal knowledge. This gives boys below
that age absolute inmmnity from charges of rape and other involving carnal knowledge.
In Rex v Opiri s/o Meope and another [1927-1 928] 11 KLR/ EALR 90 (Sheridan J) a
boy of twelve to thirteen assisted another boy of over fourteen to commit the offence
of rape. It was held the boy of over fourteen was ca.p able physically of committing rape
on a woman as he had reached the age of puberty. The other boy, however, although
incapable physically of committing rape himself was guilty as an abetter for assisting
his colleague. 75 1
(3) Procedure for Determining Age of a Minor
To avoid the possibility of an immature child being subjected to criminal liability,
or, conversely, a mature child unfai rly enjoying the protection afforded by section 14
of the Penal Code, the court is duty bound to satisfY itself judicially as to the age of
the accused, particul11rly in cases of doubt. 752 It is usually done through referring the
minor to a medical ,facility for ascertainment of age. 753 The best practice, according to
Republic v Wambu~ Kamau [1965] EA 548 (Harris J), is to inquire into the age of the
accused at the commencement of the proceedings rather than waiting for evidence on
the general issue. In Njuguna s/o Karanja v Reginam (1954) 21 EACA 196 (Sir Barclay'
Nihill P, S_ir N ewnham Worley VP and Briggs JA), it was stated that the responsibility
of determmmg the age of an accused person convicted of a capital offence is upon the
trial court which may either act on its own judgement or may, and in doubtful cases'
should, call for such expert or other evidence as is available. It was held in B irembo
and another v Uganda [2003] 1 EA 15 (Odoki CJ, Oder, Tsekooko, Mulenga and Kato
750 See R C " R epublic [2005] 2 KLR 239 (Omolo, Githinji and Waki JJA). In English case oi Walters v Lunt
a11d a/lather [195 'Ll..3 AllER 64?.(l;&E~;..Goddard CJ, Hilbery and O~;merod JJ ), parents were charged with
handlm g stolen pr~~K.:rhi; _ . ·~ 111 guestwn was a tri cycle that their seven-year-old son had taken from
anoth er child . It was held tl1an11 e parents were not guilty of han dlin g stolen property sin ce a chil d under eio-ht
years IS Incapable of conun.itting a crin1 e.
751 According to R v Waite [l89.2Ji QB 600, a boy below that age can be convicted of indecent assa ult if it can
be shown that he knew h1s aq.to be morally wrong.
752 See R ex "Alram~d bi11 Abdul H '!fid (1934) 1 EACA 76 {Abra hams C) Ag P, Lucie-Smith Ag C) and Horne J)
and Rex v K11labrmwo (1947) 14 EACA 116 (Nihill CJ, Si r G Graham Paul C) and Edwards Cj).
753
See also Keteta 11 R epublic (1 972) EA 532 {M adan Ag CJ) and 1\!l aina , R epublic [1970] EA 370 (Mwendwa
and M adan J).
Wi!liam Musyoka
General Rules of Crirninal Responsibility 101
JJSC), that such medical evidence is usually not conclusive evidence as ro the age of
the minor at the time of the commission of the offence.
It is also permissible to call for m edical evidence after convictio~, where the court '
is in doubt as to the age of the accused. That is what transpired in Rex v Ku labirawo
(1947) 14 EACA 11 6 (Nihill CJ, Sir G Graham Paul CJ and Edw\rds CJ), where
the trial court upon convicting the accused entertained dot-tbts as to his age, and
postponed sentence in order to call an expert medical witness. The state challenged
this procedure on appeal, but the appellate court was of the view that the trial court
followed the right procedure. The same approach was also employed in Jacob Maina
N yaga v Republic [1985] 2 KAR 73 (Hancock, N yarangi JJA and Platt Ag JA) , where
the Court ofAppeal in its rare exercise of its powers to call evidence before it, admitted
oral testimony from a speciality radiologist to help resolve the age of the appellant at
the time of the commission of the offence, as the trial court had not resolved the
matter. 754 After taking the medical evidence, the Court of Appeal concluded that the
appellant was above the minimum age when the offence was committed.
4.13 UsE oF FoRcE IN EFFECTING ARR.EsT
(1) The Principle
The law, through sections 18 and 241 of the Penal Code, 755 allows security-agents
and private individuals to use all n ecessary means and ali such force as are reasonable
to effect a lawful arrest of a wanted person. 756 Where issues arise as to 'whether the
means and force used in effecting arrest are reasonable, the court should consider the
behaviour of the person being arrested as well as the nature and gravity of the offence
allegedly committed or about to be committed by the suspect. 757 These provisions give
protection to persons lawfuJly effecting arrest, but there is criminal responsibility for
any excess force used in effecting the arrest. 75 H It was held in Rex v Machage s/o Mwita
(1935) 2 EACA 94 (Sir Joseph Sheridan P, Webb J and Gamble Ag J) and Uga nda v
Muherwa [1972] EA 466 (Mukasa J) , that a private person is not entitled (o cause the
death of a thief, or to incapacitate the thief with a weapo~ , in attempting to effect
754 See also Ezekiel Musyoka M utua aud auother 11 Rep11blic N airobi CACRA No.7 of 1986 (Platt,Apaloo JJA and
Masime Ag JA)(R epublic of Kenya, Court"of Appeal Judgements, Cr iminal Appea ls, 1986, Vol II , 7).
755 See generally Part II I of the Criminal Procedure Code on arrest. Apart fi·om sections 17 and 241 of the
Penal Code, secti on 28 of th e Police Act is stated in Anthony Njue Njem 11 R epublic [2006)'2 KLR 44 (Bosire,
O 'Kubasu and Onyango-Otieno JJA), to be part of the law wh ich provide the circumstan ces in w hich a police
officer may use a firearm. The Kenya Police Manual of 1980 also elaborates in greater detail on use of arms
by police officers. See also Musyoka aud others 11 Rep11blic l2003]1 EA 177 (Gicheru , Lakha and KeiwuaJJA).
756 See Zedekia Lukwago v R egi11m11 (1956) 23 EACA 507 (Sir Newnham Worley P, SinclairVP and Bacon JA) and
M'lbui v D yer [1 967) EA 315 (Farrell J). Compare with M uthiga v R epublic (1 987) KLR 134 (G icheru J), on
the defence of property, where force is used to ej ect a trespasser.
757 See Gitau a11d n11other 11 Republic (1967] EA 449 (Sir John Ainley C) and Rudd J).
758 See Rex '' Madwge s!o M111ita (1935) 2 EACA 94-' (S ir Josep h Sheridan P,Webb J and Gamble Agj) , where it
;:,
was held th at a priva te person is not entitled to cause the death of a thief in attemptin g to effect his arrest even
though the arrest could not otherwise be effec ted or to justi fy the incapacitation of a thief with a weapon.
See also Gideou J\lliauo v Republic Nairobi CACRA No. 13 of 1999 (Gicheru , Lakha and Bosire JJA), A ugustiuo
Orete n11d others v Ugauda (1966) 430 (Sir C harl es Newbold P, Duffus Ag VP and Law JA), Wn111eru 11 R epublic
[1 982] KLR 39 1 (Law, Miller and Potter JJA) and Gitau aud another v R epublic [1 967] EA 449 (Sir John Ainley
C) and RuddJ). Compare with Bukenya 11Attoruey-Geueral [1 972] EA 326 (Russell Ag J). See generally James
CJ S Read in 'Some Aspects of Manslaughter in East Africa ,' in (1965) 1 (4) East Afi·i can Law Journal 260 at 263
-266.
 William Musyoka
102 Crimina l Law
his arrest even though the arrest could not otherwise be effected, as that amounts to
excessive use of ~orce, of which private persons bear responsibility. 759
I
(2) Whefe it is Justified
In Manva s/o Robi v R [1 959] EA 660 (ForbesVP, Gould andWindhamJJA), the court
stated with regard to force used to effect arrest that it must be a question of fact in each
case whether the degree of force used in defence of property which caused death was,
in the particular circumstances o£ the case, justifiable, or if not justifiable, whether it
was such as to amount to manslaug. : ter or was so excessive as to constitute the offence
of murder. The deceased hacir gon&.· · o the homestead of the appellant armed with a
stick to claim cattle that did not belong to him. He believed that he had a legitimate
claim to the cattle, the dispute between him and the appellant was an old one, and
he did not act stealthily, but went to the home of the appellant openly to exercise a
right which he thought he was entitled to. Although he had a stick, he did not use it
or threat to use it against the appellant; neither did he attempt to conunit any forcible
crime. He did attempt 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. In the opinion of the court
the thrust of a spear into the chest of the deceased was calculated to kill, rather than
to prevent the removal of the cattle. 760
In the case of Muhidini s!o Asumani v R [1962] EA 383 (Sir Ronald Sinclair P,
Sir Alastair Forbes VP and Sir Trevor Gould JA), where 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 a panga,
killing him instantly. The deceased was a youth of sixteen, who was unarmed and
who made no effort to attack the landowner. There was, however, evidence that maize
thefts were prevalent'' in the area, perpetrated by armed gangs. The court found that
the landowner was ;entitled to effect arrest, but that the force he used was excessive
in the circumstances. He was convicted of manslaughter. In the more recent case of
Msiwa and another v Republic [1 999] 2 EA 190 (Mfalila, Samata and Lugakingira JJA),'
the deceased had reasonably assumed that the pursuing police officers were bandits,
since they were in civilian clothes, driving a civilian vehicle and they did not identifY
themselves, as a result he stopped his vehicle and attempted to run away. The police'
on their part genuinely believed that the deceased was an armed robber. They shot at
him and killed him. They were convicted of murder. Their appeal against conviction
was dismissed. The appellate court noted that the deceased was unarmed and was
already injured and therefore had an awkward run, which made him neither a threat
to the police officers nor a difficult subject to arrest. It was held that the shooting was
759 See also Samwel Onyango and another " Republic Kisumu CACRA No. 137 of 1987 (Platt, Apaloo JJA and
Masime AgJA) (Republic of Kenya , Court of Appeal Judgements, Criminal Appeals, 1987, 131).
760 See Mutua Mwalata " R ep11biii)'v1ombasa CACRA No. 153 of 1983 (Hancox JA, Chesoni and Nyarangi Ag
JJA)(Republic ofKenya, Court of Appeal Judgements , Criminal Appeals, 1983, 409). See also Rex 11lvloharned
Seken.do bin Nyange (1941) 8 EACA 67 (Sir Joseph Sheridan CJ, Sir Norman Whitley CJ and Sir H enry Webb
CJ), where the court stated the English position that where a man attacks another and the latter, without
fighting, flees and then turns and kills his assailant it is justifiable homicide if he had retreated as far as he could
and manslaughter if he had not. If there is no other way of saving his life it is justifiable.
Wi!Jiam M usyoka
General Rules of Criminal Responsibility 103
unjustified and therefore the police officers had malice aforethought. It was concluded
that the police used unreasonable force to effect an arrest.
In Musem bi s /o Kilonzo and another v R [1957] EA 422 (Sir Ronald Sinclair VP,'
Briggs and Bacon JJA), the accused, w ho were armed, sought to arrest the deceased
who had issued a threat to kill one of tlre accused persons and his wtfe. The deceased
ran away, and the accused gave chase. In the course of the chil.se he threw a knife at
the accused, but retained a kiboko which he used against one of the accused. One of
the accused fatally struck him with a panga. The accused were convicted of murder.
On appeal the conviction was substituted for manslaughter. The court found that the
accused were armed for a lawful purpose of effecting the arrest of the deceased, and
therefore they had embarked on a lawful undertaking with a lawful intent. It was
further held that it was the deceased who ftrst attacked the accused with his knife
and lashed out at them. with the kiboko, and he was intent on inflicting injury on the
accused.
In Yusuju alias Hema s/o Lesso v Regina (1952) 19 EACA 249 (Sir Barclay Nihill P,
Sir Newnham WorleyVP and Cox CJ), the accused pursued a fugitive intruder, who
fell and the accused struck him se":eral times on the head with a bill hook killing him.
He was convicted of murder. On appeal the court considered the fact that the accused
had a right to arrest the intruders, ~-t the degree of force he used was unnecessary and
grossly excessive. The nature of the attack by the accused on the intruder indica~ed the
accused's dominant intention was to kill the deceased in retaliation and not merely to
arrest him.The conviction for murder was upheld.76 1 In Patrick Mugo Mucliira v Republic
Kisumu CACRA No. 31 of 1996 (Kwach, Tunoi JJA and Bosire Ag JA)(Republic
of Kenya, Court of Appeal Judgements, Criminal Appeals, 1996, 31), the appellant, a
police officer, had been convicted of the manslaughter of a suspect. Medical evidence
showed that the deceased was shot on the back as he fled from the appellant. The
appellate court was of the view that the appellant's conduct was unjustifted. In its
opinion, a killing of a person can only be justified and excusable where the accused
person's action which caused the death was in the course of averting a felonious attack
and no greater force than is necessary is applied for that pur~ose; and that for the plea
to succeed it must be shown by the accused that he was in immediate danger or peril
arising from a sudden and serious attack by his victim.
4.14 SUPERIOR ORDERS
There is no provision in the Penal Code on superior orders, 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. It would
appear, as implied in Dafasi Magayi and others v Uganda [1965] EA 667 (Si~ Clement de
Lestang, Spry and Law JJA), that where an order is plainly unlawful, a person cannot
shelter behind it to escape criminal liability. This principle would apply basically with
761 See also the more recent case of Mungai " Republic [1976-1985] EA 318 [1982-88] 1 KAR 611 [1984]
KLR 85 (Kneller, Hancox JJA and Nyarangi Ag JA), where th e appellate court in quashing the appellant's
conviction of manslaughter, considered the fact that the appellant had acted for the purpose of preventing a
felony when he shot the deceased, and criticised the trial court for failing to consider the state of mind of the
appellant w hen he fired the shots , the general anguish of the moment and the fact that the deceased appeared
to be reaching for a gun. Given the circumstances, it would appear, the appellant acted rather reasonably.
 William Musyoka
104 Criminal Law
respect to the security forces , and it is designed to protect junior officers act on the
orders of their su,eriors.
4.15 DIP{OMATIC IMMUNITY
Under the Vienna Convention diplomats enjoy inununity from criminal prosecution.
Diplomats represent the government of one territory within the jurisdiction of
another territory. Diplomatic immunity may be described as a matter of policy
between governments designed ·for the purpose of maintaining good relations
between goyernments of the counft~es involved.762 The other explanation is that senior
diplomats represent their sov'ereig1~'1:>r Head of State, and therefore they are entitled
to the same protection, immunities and privileges as are enjoyed by the sovereigns
or heads of state that they represent. Where a diplomat commits a serious offence he
may be dealt with in three possible ways: either he will be declared perso11.a non grata
and therefore required to leave the country, or the accrediting country may recall
the offending diplomat, or it may waive the immunity and therefore allow the host
country to try the diplomat of the offence. This means that diplomatic immunity is
not absolute in the sense of excusing criminal liability. Indeed, upon being expelled by
the host country or recalled by the accrediting country the offending diplomat may
still be prosecuted by the authorities of the accrediting country before the courts of
that country. This is so because the privileges of immunity belong to the accrediting
country and not the individual diplomat.763
4.16 PRESIDENTIAL IMMUNITY
A sitting President enjoys inmmnity from criminal prosecution by virtue of article 143
of the Constitution of Kenya. 764 Under article 143(1) of the Constitution, criminal
proceeding are not to be brought against a substantive President or a person performing
the functions of that office during their tenure of office, this clearly means that the
immunity from pros~cution is not absolute, does not excuse the occupant of the office
of President of cri~nalliability. It only shields the person from criminal prosecution,
and not criminal 'liability, during the period he serves as Presi~ent. When he ceases
to occupy the office the person would be open to prosecution. Under article 143(4)•
of the Constitution, the immunity is not available for crimes for which the President
may be prosecuted under an international treaty to which Kenya is a party and which
prohibits such immunity. · '
;\.:
-~
762 See Ssekaana Musa, Crimina!' Procednre and Practice in Uganda, Law Africa Publishing (U) Ltd, 2010, Kampala ,
18.
763 See Ssekaana M usa, snpra, 19.
764 For a discussion of the position under Ugandan law, see Ssekaana Musa, supra, 20- 22.
CHAPTER 5
DEFENCES
5.1 INTRODUCTION
Defences in criminal law afford the suspect an escape from criminal responsibility, on
the basis that his behaviour was excusable or justified, and for that reason either the
mens rea or the actus reus elements required of the offence ~ere absent. The burden of
proo-f of the guilt of th~ accused lies throughout on the prosecution, and an ac~used
person raising a defence to a criminal charge does not have to discharge the burden
of proving his defence. The accused, however, has to discharge the evidential burden,
of presenting evidence which gives life to the defence. Thereafter the prosecution has
to disprove the defence raised by such evidence.765 The only exception to this general
position is with respect to the defence of insanity, an accused person who raises that
defence has the burden or onus of proving it, and he is expected to produce adequate
evidence to establish that he was ins.ane at the time of corrun.ltting the crime.
It was stated in Kiymgo v Uganda [2005] 2 EA 106 (Oder, Tsekooko, Karokora,
Mulenga and Kanyeihamba JJSC), tB'at the court is obliged to avail an accused pers<?n
. with a defenc~ available on the evidence before it, even if it was not raised his d~ty on
the part of the court is founded on the fundamental principle that the burg en of proof
in a criminal trial remained on the prosecution throughout and, except in special
cases, never shifts to the defence. 766 It was observed that the accused person is under
no burden to raise a defence, with the exception of the defence of insanity.
5.2 INSANITY
(1) The Principle
A person who commits a crime while suffering from a mlntal disorder may plead
t e defence of insani . The policy which underpins this defence is that it is wrong to
punish se wh e i attributable to illness rath.eLtharu:esponsihle .choices
on their art. 767 The defence of insanity is stated in section 12 of the Penal Code. The
la-;.~ at section 11 of the Penal Code,"creates the rebuttable presumption that every
person is sane.768 The presumption of saoity_is__.rebuttable by the accusecLpro.Ying that
he was not sane within the time of the commission of the alleged crime.769 In Tadeo
Oyee s/o D 1959] EA 407 (Sir Kenneth O'Connor P, ForbesVP and Windham
JA), it was statedt hatWfiere a defence of insanity is set up, the criminal responsibility
765 See Mbugua Kariuki vThe Republic (197 6 - 80]1 KLR 1085 (Law,Wambuzi and PotterJJA).
766 See Kiarie 11 Republic l1 984] KLR 739 [1976-1 98 5] EA 21 3 (Knell er JA, Ch esoni and N yarangi Ag JJA).
767 See Joseph M Nyasani , Legal Philosoph y:Jurisprudence, Consolata Institute of Philosophy Press, Nairobi , 2001,
67.
768 See Kin wui v R epublic [2000] 2 EA 417 , KLR 303 (Omolo, Tunoi and Lakha JJA).
769 See Modakaa v R epnblic [2000] KLR 411 (Chunga CJ, Lakin and KeiwuaJJA) , Ge01ge Ng ugi'Muugai v Republic
N yeri CACRA No. 122 of 2000 (Kwach , Bosire and O'Kubasu JJA) , Kougoro alias Atlwmani s/o Mrisho v
Reginam (1956) 23 EACA 532 (SinclairVP, Rudd and Mayers JJ) and Rex 11 C W Ross (1932]14 KLR/ EALR
148 (Sir Joseph Sheridan CJ, Law Ag CJ and Thomas J).