BACHELOR OF LAWS

UNIT TITLE: CONSTITUTIONAL LAW

UNIT CODE: BLW 1103

SEMESTER 1.1 2024

GROUP 2 ASSIGNMENT

NO NAME REG NO

1 UZWANYI KENNEDY BLAW/2024/31367

2 MALI KOINANGE BLAW/2024/32531

3 SYLVIA NASIKE BLAW/2024/33238

4 KELVIN WAWERU BLAW/2024/33729

5 KING’ORI EDNALD BLAW/2024/34271

6 WAKOLI SAM BLAW/2024/33302

7 MAUREEN KUNGU BLAW/2024/32440

Question

Odongo and Mary work in a petrol station as customer attendants. Odongo and Mary
have each worked in the petroleum retail sector for more than 10 years. On 15 th June 2021,
Odongo (unable to control his smoking urge) decided to smoke two puffs of his favorite
brand of cigarette, Nyota. On lighting the cigarette, the petrol pimp next to him exploded
burns causing superficial burns to Odongo and Mary’s hands. As the pump was burning, a
strong gust of wind blew and spread the fire to Mary’s face causing very slight burns on
her chin. At the hospital, Mary’s burns were treated as non-fatal as they were on the
surface of her hands and face. Mary was given medicinal ointment and went home on the
same day to recuperate. It was expected that the burn wounds would heal within two days.
After the first day, Mary not being content with the medicinal services, consulted a
witchdoctor with a view to “restore her beauty”. The witchdoctor’s concoction resulted to
severe gangrene infection that ultimately resulted in Mary suffering multiple organ failure
leading to her ultimate death. Odongo, having learnt of Mary’s death, is apprehensive that
he will be charged for Mary’s murder.

With the aid of case laws and relevant statutory provisions, advise Odongo on whether he
can be held criminally responsible for Murder?

INTRODUCTION

We are going to critically analyze the liabilities upon Mr. Odongo and the witchdoctor, discuss
the facts, relevant case laws and Statutory provisions with the help of logical reasoning and
necessary doctrines in torts and criminal law and come up with an analysis that will be the basis
of our advice to Mr. Odongo about whether he is criminally responsible for the Murder of Mary
as shown below:

Facts of the case:

1. Odongo and Mary have been colleagues in a petrol station for more than 10 years.
 2. Odongo was smoking near a petrol station causing an explosion which caused superficial
burns on Mary’s hands and very slight burns on her chin.
3. Mary’s burns were treated as non-fatal at the hospital, as they were on the surface and
hence she was expected to have healed within two days.
4. Mary was not contented and as such consulted a witchdoctor, whose concoction caused
severe gangrene infection which led to Mary’s death

Issues:
Whether Odongo can be held criminally responsible for the murder of Mary.
Whether the witchdoctor can be held liable for the death of Mary.

Rule:
Section 203 of the Penal code of Kenya defines murder as causing death of a person with
malice afterthought through an unlawful act or omission. “203. Any person who of malice
aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

Chapter 63 of the Penal code - Murder and man slaughter,

202. (1) Any person who by an unlawful act or omission causes the death of another person is
guilty of the felony termed manslaughter.

(2) An unlawful omission is an omission amounting to culpable negligence to discharge a duty

tending to the preservation of life or health, whether such omission is or is not accompanied by
an intention to cause death or bodily harm.

Section 206 of The Penal Code. Malice aforethought shall be deemed to be established by
evidence proving any one or more of the following circumstances –

(a) an intention to cause the death of or to do grievous harm to any person, whether that person is
the person actually killed or not;

(b) knowledge that the act or omission causing death will probably cause the death of or grievous
harm to some person, whether that person is the person actually killed or not, although such
knowledge is accompanied by indifference whether death or grievous bodily harm is caused or
not, or by a wish that it may not be caused;

(c) an intent to commit a felony;

(d) an intention by the act or omission to facilitate the flight or escape from custody of any
person who has committed or attempted to commit a felony.

Constitution of Kenya 2010 Art 26. (1) Every person has the right to life

Sec 11 of The Evidence Act Cap 80. Facts inconsistent with, or affecting probability of, other
facts. Facts not otherwise relevant are relevant— (a) if they are inconsistent with any fact in
issue or relevant fact; or (b) if by themselves or in connection with other facts they make the
existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Sec 7 of The Evidence Act Cap 80. Facts causing or caused by other facts. Facts which are the
occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which
constitute the state of things under which they happened or which afforded an opportunity for
their occurrence or transaction are relevant.

Sec 14 of The Evidence Act Cap 80. Facts showing state of mind or feeling.

(1) Facts showing the existence of any state of mind, such as intention, knowledge, good faith,
negligence, rashness, ill-will or good-will towards any particular person, or showing the
existence of any state of body or bodily feeling, are relevant, when the existence of any such
state of mind or body or bodily feeling is in issue or relevant.

Sec 107 of The Evidence Act Cap 80. Burden of proof.

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the
existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof
lies on that person.

Application:
Under application we are going to discuss in length who is criminally liable to the death of Mary
and why, how are they liable and what are the possible consequences for the probable crime of
Murder in this case and the reasoning behind our decision as backed by relevant Case Laws and
Statutory Provisions. This will also include dissenting opinions and a general advice to Mr.
Odongo

To establish murder, the prosecution must prove three elements:

1. Death of a human being: In this case, Mary did die due to complications from the
gangrene infection.
2. Act of homicide: The explosion caused by Odongo’s smoking near the petrol
pump can be considered an act of homicide.
3. Malice aforethought: Malice aforethought refers to the intention to cause harm or
kill. Odongo’s smoking was reckless, but did he intend to harm Mary
specifically?

1) Death of human Being

In our scenario with Odongo and Mary:

● Mary's death resulted from complications caused by the witchdoctor's treatment, not
directly from the initial fire caused by Odongo.

It's important to note that legal definitions and procedures regarding death can vary depending on
the specific jurisdiction

2) Proving act of Act of homicide

To prove an act of homicide, specifically murder, the prosecution needs to establish several
elements:

i. Actus Reus (Latin for "guilty act")

This element refers to the physical act of killing. The prosecution must demonstrate that the
defendant caused the victim's death. In your scenario with Odongo and Mary, proving Odongo
directly caused Mary's death would be difficult due to the intervening events (wind and
witchdoctor).

ii. Mens Rea (Latin for "guilty mind")

This element refers to the mental state of the defendant at the time of the act. For murder, the
prosecution typically needs to prove malice aforethought. This can be:

● Intention to kill

● Reckless disregard for human life (knowing your actions could result in death)

In Odongo's case, lighting a cigarette near a gas pump wouldn't necessarily imply malice
aforethought.

iii. Absence of Justification or Excuse

Even if the prosecution establishes the above two elements, Odongo might have a legal defense
like:

● Accident: Odongo's initial act (lighting the cigarette) might be considered accidental.

Novus actus interveniens: The strong wind and Mary's decision to see a witchdoctor could be
seen as intervening acts that broke the causal link between Odongo's actions and Mary's death.

Burden of Proof

The burden of proof lies with the prosecution to establish all the elements of homicide beyond a
reasonable doubt. In this scenario, proving Odongo's guilt for murder would be challenging due
to the lack of clear causation and potential defenses.

3) Malice aforethought.

Malice aforethought shall be deemed to be established by evidence providing either of the

following circumstances: -

(a) an intention to cause the death of any person, whether that person is the person killed or not,
or
(b) knowledge that the act or omission causing death will probably cause the death of some
person, whether such person is the person actually killed or not, although such knowledge is
accompanied by indifference whether death is caused or not, or by a wish that it may not be
caused.”

Here's how malice aforethought applies to Odongo's situation:

● Unlikely to be present: It's improbable that Odongo intended to kill Mary by lighting a
cigarette near a pump.

● Recklessness debatable: While Odongo might have been careless by smoking near
gasoline, it wouldn't necessarily be considered reckless disregard for human life. A
reasonable person wouldn't necessarily foresee the chain of events that led to Mary's
death.

In murder cases, proving malice aforethought is crucial for the prosecution. In Odongo's
scenario, establishing malice aforethought would be difficult for the prosecution because his
actions seem more like negligence rather than a deliberate plan to harm Mary.

Remoteness of Damages

Remoteness of damage presents an intriguing concept. When harm results from a wrongful act,
there is a need for accountability. The crucial inquiry revolves around determining the extent of
liability and the factors influencing this determination.

An event constituting a wrong can constitute of single consequence or may constitute of

consequences i.e. series of acts/wrongs. The damage may be proximate or might be remote, or
too remote.

In the case of:

Scott v. Shepherd:
‘A’ threw a lighted squib into a crowd, it fell upon ‘X’. In order to prevent injury to himself, X
did the same thing and it fell upon Y. Y in his turn did the same thing and it then fell on B, as a
result of which B lost one of his eyes. A was held liable to B. His act was the proximate cause of
damage even though his act was farthest from the damage in so far as the acts X and Y had
intervened in between.

General illustration of Remoteness of damages

A person is going driving on a road, he hits a girl on the footpath, the girl tumbles on a bicycle
breaks her finger, the bicycle man loses his balance and gets in front of a fuel tanker, the tanker
to save the man on the bicycle steers left but unfortunately hits the railing to a river bridge and
falls into it, the lock of the fuel tank breaks and the oil spills into the river, the driver with the
truck drowns.

In the above case:

The girl being hit is the direct damage and it is the direct damage caused by the act of A

the damage caused to the cyclist is proximately caused by the falling of the girl and is remote to
the act of A

the damage caused to the truck driver and the loss of material (fuel and fuel tank) is remote to the
act of A and proximate to the act of the cyclist. And it is to be noted that the accountability to
negligence is made on the assumption that the person is aware of the fact that rash driving can
lead to fatalities. (though the expected and the actual results might not be the same).

Now, the starting point of any rule of the remoteness of damage is the familiar idea that a line
must be drawn somewhere. It would be unacceptably harsh for every tort feasor to be responsible
for all the consequences which he has caused.

Certainly, the question of where to draw the line on recover-ability of consequential losses
cannot be answered by a mathematically precise formula. Judges have used their discretion from
time to time, and in that process, two formulas have been highlighted:

i. The test of reasonable foresight

ii. The test of directness
The Test of Reasonable Foresight
If the consequences of a wrongful act could be foreseen by a reasonable man, then they are not
too remote. If on the other hand, a reasonable man could not have foreseen the consequences,
then they are too remote. And, an individual shall be liable only for the consequences which are
not too remote i.e. which could be foreseen.

The Test of Directness

According to the test of directness, a person is liable for all the direct consequences of his
wrongful act, whether he could foresee them or not; because consequences which directly follow
a wrongful act are not too remote.

In the case of Mary and Odongo, basing on the two formulas of reasonable foresight and the test
of directness, we have deduced that Odongo having worked at the petrol station for more than
10yrs is expected to have reasonable foresight whether the accident happened or not, On the
test of directness, together with negligence the witchdoctor is directly liable to the death of
Mary as provided for by section 202 (2) of the Penal Code which states that ‘’An unlawful
omission is an omission amounting to culpable negligence to discharge a duty tending to the
preservation of life or health, whether such omission is or is not accompanied by an intention
to cause death or bodily harm.’’

The cause of the slight burns on Mary' s chin was as a result of nature, I.e. Act of God, strong
wind blowing and Odongo isn't the cause for Mary's death. In R V Kingo'ri and another was
pointed out that the mere presence at the commission of an offence does not make a person a
party to a crime.

In this case the witchdoctor did not intend to harm Mary but she ended up dying due to the
concoction from the witchdoctor which amounts to negligence, If Mary was alive at this point
she might have brought an action against Odongo may be held criminally liable for a
misdemeanor for recklessness causing burns on Mary's hands, Section 244 of the penal code of
Kenya it makes it a misdemeanor for a person to omit to do an Act which is their duty ought to
do and thereby causing harm to another person. If someone else would have sought the
witchdoctor for the same services offered to Mary, they would have died due to the gangrene
infection, therefore the two formulas can be used to draw a line between the doctors who
attended to Mary and the Witchdoctor. Since the witchdoctor did not have any ill intent and as
proved beyond reasonable doubt as provided for by Section 206 of the Penal Code together
with Section 14 of the Evidence act which states that evidence should be provided that a person
had an ill will intent to cause harm, whether it results to death or not.

He negligently administers this medication concoction though he didn't intend the outcome, R
Vs Kiilu where the court held that the head teacher and deputy head teacher could not oversee
the tragic events that took place. He may use this as a defense where the action of death was
unforeseeable and his sentence reduced to manslaughter.

The witchdoctor's concoction was the cause of Mary's death since it affected gangrene that led to
multiple organ failure that eventually led to her death.

The witchdoctor may be charged under section 2 cap 67 under the witchcraft Act of Kenya,
any person who holds himself out as a witchdoctor able to cause fear, annoyance or injury to
another in mind, person or property, or who pretends to exercise any kind of supernatural power,
witchcraft, sorcery or enchantment calculated to cause such fear, annoyance or injury, shall be
guilty of an offence and liable to imprisonment for a term not exceeding five years. Based on this
the prosecution will have to prove beyond reasonable doubt that he's liable for Mary's murder,
after they prove that indeed the witchdoctor had an intention to averse harm on Mary.

Dissenting Opinion on the possible charges to Mr. Odongo:

Odongo can be held liable of Mary's death as shown below:

The principal elements of murder are: the causing of death of another person, by an unlawful act
or omission, with malice aforethought and the death occurs within a year and a day after the act
or omission. Under the elements of actus reus for the offence (the act or omission, and the result
or consequence of the act or omission) the specific result is death. For Odongo’s case, if through
investigations evidence suggesting Odongo had malice intent comes up and connects his act or
omission to the death of Mary then actus reus and mens rea will be proven making Odongo
criminally liable in the case.
Section 213 of the penal code defines causing death to include acts which are not the immediate
or sole cause of the death. Odongo in this case can be held responsible for Mary’s death under
the circumstances that he inflicted bodily injury on Mary and as a consequence of that injury
Mary sort treatment from hospital and since she was dissatisfied, she went ahead to seek
medication from the Witchdoctor in order to restore her beauty. In Tindira s/o Chiru and another
v Rex (1951) 18 EACA 180 (Sir Barclay Nihill P, Sir Newnham Worley VP and Lockhart-Smith
JA), the court observed that if medical evidence were that the cracking of the deceased skull and
the consequent hemorrhage would not have caused death but for the deceased’s own refusal to
have medical attention or the omission of his relatives to obtain medical attention in good time,
then under the Tanzanian equivalent of section 213 (e) of the Kenyan Penal Code, appellant
would be deemed rightly to have caused death.

As it is defined in section 206 of the Penal Code, malice aforethought is said to be proved by
evidence of any of the following circumstances:

a) An intention to cause the death of another

b) An intention to cause grievous harm to another
c) Knowledge that the act or omission causing death will probably cause death or grievous
harm to some person
d) An intent to commit a felony
e) An intent to facilitate the escape from custody of or the flight of any person who has
committed a felony or an attempt of it.

To focus on the point on Knowledge, it can be concluded that having been working at the fire
station for 10years Odongo had knowledge that smoking at a fire station is forbidden and
harmful, it can also be concluded that, his action led to all the activities that followed thereafter
up to the death of Mary, making Odongo a suspect in the case even if not as first offender.

As covered by section 206(a) of the Penal Code, that it must be proven that a suspect intended
to cause the death of another and although the suspect in this case Odongo may not have had
intend to cause murder to the victim.

In Rex v Gwangire s/o Sinyangwire (1935) 2 EACA 133 (Sir Joseph Sheridan CJ, Abrahams
CJ and Fretz Ag CJ), the appellant was convicted of murder. On appeal, it was held that the
appellant must have known that to strike a man on the head with a spear was a dangerous act,
even if he did not intend to kill, he either intended to cause dangerous harm or was indifferent as
to the result of his act.

Section 206(b) of the Penal Code imports the element of recklessness to malice aforethought. It
is the case of a person performing an act or omission in the knowledge that death is a likely
result. The act causing death must be one which is intrinsically likely to kill and which the
offender knows is likely to kill or cause grievous harm, although there being no evidence of
express malice, Odongo is likely to bear Liability in this case.

In Rex v Tirugurwa bin Byantimba (1943) 10 EACA 44 (Sir Joseph Sheridan CJ, Sir Norman
Worley CJ and Lucie-Smith J), the appellant had set fire on a house with the result that the
deceased was burnt to death. Evidence showed that the appellant had knowledge that the
deceased was sleeping in the house at the material time. He was convicted of murder; an appeal
against the conviction was dismissed.

CONCLUSION

In conclusion our advice to will be that, Odongo may bear liabilities through various probable
charges including recklessness, negligence, arson if the above factors are proven in Court as
provided for by the Evidence Act, Penal Code of Kenya and The Constitution of Kenya
2010, Odongo may therefore be charged for or as a result of the principal of causation which
establishes a causal link between his actions and the deceased harm. In order for Odongo to be
held liable for negligence or other tortious conduct, the State must prove both factual causation
(causation in fact) and legal causation (proximate cause).

The principle of causation in tort law requires the State to prove that the Odongo’s actions were
both the factual cause and the legal cause of the harm suffered. This involves demonstrating that
the harm would not have occurred but for Odongo’s conduct and that the harm was a foreseeable
consequence of the defendant's actions.

The witchdoctor on the other hand is criminally liable to the death of Mary, and if his intent is
proven as provided for by Evidence Act, Penal Code of Kenya and The Constitution of
Kenya 2010, then he will be charged of murder, either or man slaughter. The witchdoctor thereof
becomes apart from the causation and sequence due to the principle of Remote Cause of
Damages as dissected by the two formulae: The test of reasonable foresight and the test of
directness.

REFERENCES;

https://www.toppr.com/guides/legal-aptitude/law-of-torts/remoteness-of-damages-law-of-tort/

https://kenyalaw.org/lex/actview.xql?actid=Const2010

http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%2080

http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%2067

http://www.kenyalaw.org/lex/actview.xql?actid=CAP.%2063