PRINCIPAL OFFENDERS

These are parties deemed to have taken part in committing an offense and are considered to be
guilty of the said offense.
They are charged with the substantive offence and are liable to the same punishment.
WHO ARE PRINCIPAL OFFENDERS?
Under the Penal Code Section 201, what constitutes to be a principal offender is identified to
include:
i. Every person who actually does the act or makes the omission which constitutes the
offence (the perpetrator)
ii. Every person who does or omits to do any act for the purpose of enabling or aiding
another person to commit the offense (the enabler or aider)
iii. Every person who aids or abets another person in committing the offence (the aider or
abettor)
iv. Any person who counsels or procures any other person to commit the offence (the
counselor or procurer).
In the case of Republic vs Nyambura2 it was held that principal offenders in the first degree are
the actual offenders, while the principle offenders in the second degree are aiders and abettors.
PRINCIPLES
a) Burden of Proof
It is a principle that provides that the prosecution has a task of proving beyond reasonable doubt
the elements of crime against the accused. It requires that the liability of all the principal
offenders be proven that is there must be evidence of their participation to the commission of the
crime.
In the case of National Coal Board Vs Gamble3, the court stated that in respect to aiding and
abetting, the prosecution must prove that the act or omission upon which they rely as constituting
the alleged aiding and abetting was done or made with a view to assisting or encouraging the
principal offender to commit the offence or, in other words, with the motive of endorsing the
commission of the offence.
b) Mens Rea
There must be the intention to commit the crime, assist or encourage in its commission with
knowledge of facts of the offence. It also applies where the offence charged does not require a
mens rea.

1
The Penal Code, Section 20
2
Republic vs Nyambura
3
NCB vs Gamble (1959) 1 QB 11
In offences that require particular intent then the other party must intend to assist or encourage
with that intent. It also includes intention to assist or encourage commission of one range of
possible offences.
In the case of DPP vs Maxwell4, a member of a terrorist organization was liable as an accessory
for guiding the car taking a number of men to carry out a violent attack. Although he was not
aware on what form of attack they intended to carry out he intended to assist them.
This principle still applies where the assistance or encouragement is given time before the
commission of the crime.
c) Actus Reus
It is a principle that provides that there must be an actual commission of the crime or assistance
on the same. There must be evidence of the crime being committed for one to be considered a
principal offender. Mere presence of a party at the scene does not obviously mean that they
committed or helped in its commission, it has to be proved that they performed the action. It is
sufficient to prove that the particular defendant participated in the crime as one or other.
It also involved the omission (failure to act) which causes a criminally proscribed result. There
has to be a duty to act and failure to do the said act.
In Regina vs Antoine5, the trial judge was asked to rule on the question of what had to be proved
to determine whether the defendant did the act or made the omission charged.
RULES OF LIABILITY RELATING TO PRINCIPAL OFFENDERS
For liability to attach the accused must have had knowledge of the general nature of the crime
which other parties intend to commit.
This will be discussed in the following aspects:
i. ENABLER OR ABETTING
According the Black Law’s Dictionary, the term enabler or abettor is defined as assisting or
facilitating commission of a crime, or to promote its accomplishment.
Section 9 of the Penal Code6 provides that the motive which induced a person to omit or induce
an act is immaterial so far as regards criminal responsibility unless otherwise expressly declared.
For liability to attach the accused must have knowledge of the crime intended to be committed
and positively helps in its commission. For the aider or abettor to be convicted as a principal it is
necessary that an offence should have been committed
In Queen vs Coney7, it was held that to constitute an aider or abettor some active steps must be
taken by word, or action with the intention to instigate the principal or principals.
4
DPP vs Maxwell (1978) 3 All ER 1140.
5
On Appeal from the Court of Appeal Criminal Division (March 2000).
6
Penal Code Cap.63 Revised Edition 2009.
7
The Queen vs Coney (1882) 8 Q.B.D 534.
Encouragement does not necessarily amount to aiding and abetting, it may be intentional or
unintentional, a man may unwittingly encourage another in fact by his presence, by
misinterpreted words, or by gestures, or by his silence, on non-interference, or he may encourage
intentionally by expressions, gestures or actions intended to signify approval. In the case he aids
and abets, in the former he does not. It is no criminal offence to stand by, a mere passive
spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime.
The assistance must be to aid the commissioning of the offence. Proving of mere intention is not
enough to prove liability, there must be intention to encourage and an encouragement in fact.
ii. COUNSELING OR PROCURING
Counseling is regarded as encouraging another person to commit an offence or giving them
advice to do the same. In giving the advice, the counselor is regarded to have actually committed
the offence committed by the person counselled. Governed under Section 22 of the Penal
Code.
Procuring refers to the assisting in getting the resources or creating an environment for one to
commit an offence. In Liningushu & others vs Republic8, the second appellant was the widow
of the deceased, she did not actually kill the deceased, but was the mastermind of the crime and
she is the one who procured the actual killers. The 3rd appellant was her daughter, who facilitated
the killing. Both were held to have been principal offenders and convicted as such of murder.
It does not matter whether the offence committed is different as the one counselled as long as the
facts of constituting offence committed are a probable consequence of carrying out acts
counselled. In R vs Bernard, the counsellor was convicted as a principal to murder when the
person counselled to killed another person other than the one the person counselled to kill.
Inciting a person to commit a crime amounts to counselling as seen in the case of Ondimu s/o
Ondimu & Anor vs R9 where the second was jointly convicted of murder with another. He
verbally instigated the first accused by saying ‘Do not whip him, stab him’ at which the first
accused stabbed the deceased. There however has to be a causal link between the
procuring/counselling and commission of the crime.
iii. DUTY OR OMISSION
This occurs where the law imposes a duty to act at which its omission leads to aiding and
abetting to the commission of the crime. In Msembe & Anor vs Republic10, where an offence has
been committed, every person who does or omits to do any act for purpose of enabling or aiding
another to commit the offence is deemed to have taken part in committing the offence and guilty
of the same and can be convicted.
In such instances liability depends on level of control that accused person has over actions of the
perpetrator.

8
Liningushu & others vs Republic (2005) 1 EA 229.
9
Ondimu s/o Ondimu & Another vs Republic (1952).
10
Msembe & Another vs Republic (2003) KLR 521.
In Bonar vs McLeod11, a senior officer did nothing while his colleague, who was a junior officer,
assaulted a detained person. As a result, he was convicted as an accomplice for abetting and
aiding the offender. It was stated that he had a duty to intervene but failed to do so.
EXCEPTIONS TO THE GENERAL RULES RELATING TO THOSE RULES OF
EVIDENCE
1) WITHDRAWAL
A party might withdraw from the commission of a crime. This brings out the question of whether
the withdrawal exempts them from criminal responsibility. In R vs Whitefield, it was held that
just a mere change of mind does not relieve one from responsibility, there must be a supporting
action which proves their non-involvement in the crime.
In Wachira & others vs Republic12, three gang members raided a store and one ended up
shooting a bunch of people which resulted to them being charged with armed robbery. On
appeal, one of the offenders claimed to have run to the car when he saw his accomplice about to
fire. Court said held that he did not abandon the common purpose, he did not dissociate himself
from the crime and could have stopped the accomplice from shooting.
2) ACQUITTAL
Where one is acquitted for an offence, the other parties that were involved cannot be convicted
on the same offence as held in Kioko vs R.
3) CAUSAL LINK
There must be a causal link between the offence and perpetrator to establish liability leads to
presumption that the offender did not commit the offence. There must also be a causal link
between the contribution of a counsellor, aider, abettor, procurer and instigator to the
commission of the offence. Point of reference will be the Attorney General’s Reference of
197513.

11
Bonar & Hogg vs McLeod (1983) SCCR 161.
12
Criminal Appeal 588, 589 and 596 of 1979.
13
No. 1 of 1975 (QB 773).