The notes below are adapted from the Kenyatta University Teaching module and the students are adviced to take keen notice of the various legal and judicial reforms that might have been ocassioned since the module was adapted. the laws and statutes might also have changed or been repealed and the students are to be wary and consult the various statutes reffered to herein
KENYATTAUNIVERSITY SCHOOL OF LAW
LECTURER’SGUIDANCE MANUAL ON
LPR100: CRIMINAL LAW I
Thefollowing topics will be studied:
1.Definition of a crime
2.theories on causation of crime
3.historical origins of criminal law
4.the fundamental principles of criminal law
5.the elements of crime – the mens rea and actus rea
6.general principles of criminal liability
7.theories and categories of punishment
9.the death penalty
10.aims of imprisonment
12.law enforcement agencies – the Police Force (origins, functions); the prisons;
3-Generalrule of construction of Code.
CHAPTERIII-TERRITORIAL APPLICATION OF CODE
5-Jurisdictionof local courts.
6-Offencescommitted partly within and partly beyond jurisdiction.
CHAPTERIV-GENERAL RULES AS TO CRIMINAL RESPONSIBILITY
8-Bonafide claim of right.
17-Defenceof person or property.
18—Useof force in effecting arrest.
CHAPTERV—PARTIES TO OFFENCES
21-Jointoffenders in prosecution of common purpose.
22-Counsellinganother to commit offence.
23-Offencesby corporations, societies, etc.
24-Differentkinds of punishments.
26A-Recommendationfor removal from Kenya.
30-Suspensionor forfeiture of right to carry on business.
33-Securityfor keeping the peace.
35-Absoluteand conditional discharge.
36-Generalpunishment for misdemeanours.
38-Sentenceon escaped convict.
39-Cancellationor suspension of certificate of competency.
CRIMINALLAW- Brief Overview
UnderAfrican customary law, there is no clear division between criminal law andcivil
law.The question of punishing the offender and compensating his victim were matters
whichwere provided for under customary law. However the civil claims under customary
lawwhich can be made in the Magistrates court are stipulated in the Magistrates’Courts
Act(Cap 10) the limited jurisdiction of the High Court in matters affectingcustomary
lawhas also been observed. Crimes under customary law can not be prosecuted in the
courts.The criminal law of Kenya is now principally found in the Penal Code (Cap. 63).
Thereis a clear division between criminal law and civil law in the statute andcommon
Theinfluence of the English law on criminal law of Kenya is illustrated by the
termsof section 3 of Penal Code, which provides that,
“Thiscode shall be interpreted in accordance with the principles of legal
interpretationobtaining in England, and expressions used in it shall be presumed
sofar as is consistent with their context and except as may be otherwiseexpressly
provided,to be used with the meaning attached to them in English criminal law
andshall be construed in accordance therewith.”
However,there is a growing wealth of East African case law on the criminal law of
Kenya(the criminal law codes of Kenya, Uganda and Tanzania cases and only to English
andother commonwealth judicial decisions for guidance where there is no binding or
relevanteast African case.
THENATURE OF A CRIME
Acrime is an unlawful act or omission which is an offence against the State,although it
mayalso be an offence against an individual and thus give rise to civil liabilityas well.
Acrime is punished usually by a fine or a term of imprisonment, although there
areother ways of dealing with an offender, which will be explained later in thischapter.
Theprosecution is usually commenced in the name of the Republic so that a
prosecutionwill be described thus-Republic v. Kamau or R. v. Kamau. A private
individualcan, with permission, also institute a prosecution, but the power of the
Attorney-Generalto discontinue any criminal proceedings has been observed (Criminal
ProcedureCode, section 82).
Thatthe same facts can give rise to criminal and civil proceedings has also been
observed.When this occurs the crime will usually be prosecuted first.
Kenyahas inherited from English law the distinction between felonies and
misdemeanours.A felony is defined in the Penal Code as "an offence which is declared
bylaw to be a felony or, if not declared to be a misdemeanour, is punishable,without
proofof previous conviction, with death, or with imprisonment for three years ormore" .
Amisdemeanour is defined in the Penal Code as "any offence which is not afelony".
Wheneverthe term "offence" is used in this chapter it will include bothfelonies and
Examplesof felonies in the Penal Code are abduction (section 142), bigamy
(section171), manslaughter (section 202), murder (section 203) and handling stolen
goods(section 322). The punishment in all these cases is stipulated by theappropriate
sectionof the Penal Code, e.g. any person convicted of manslaughter is liable to
Whereterms of imprisonment are prescribed, the maximum only is usually stated,
whichleaves the court with a discretion. However, in some cases a minimum sentenceof
imprisonmentmay be stipulated, e.g. when a person is found guilty of handling stolen
goodshe is liable to imprisonment with hard labour for a term of not less than sevenor
morethan fourteen years (Penal Code section 322(2)).
Thepunishment for misdemeanours is not always stipulated in the section
definingthe misdemeanour. Section 36 of the Penal Code provides, " ... when in this
Codeno punishment is specially provided for any misdemeanour, it shall bepunishable
withimprisonment for a term not exceeding two years or with a fine, or withboth".
Examplesof misdemeanours in the Penal Code are perjury (section 108), criminal
libel(section 194) and false pretences (section 312).
Itis not accurate to describe felonies as the most serious offences and
misdemeanoursas the less serious offences. Many years ago in England, all felonies
generallycarried the death penalty, but a reaction against this grew up and the tendency
wasto classify new crimes as misdemeanours, no matter how serious they were. Thus,
whileperjury has always been a misdemeanour, to steal a loaf of bread from a shop isa
General Principles of Criminal Liability
Thecardinal maxim of the criminal law is, actus non facit reum nisi mens sit rea,which
means"the doing of an act does not make a man guilty unless he has a guiltymind". The
twoessential elements of any crime are actus reus (the prohibited act) and mensrea (the
Theterm actus reus presents no problem. The definition of every crime in the
PenalCode recites the prohibited act and the prosecution must prove that the accusedhas
committedthe prohibited act; the facts which hay been proved must fit the offence with
whichthe accused is charged.
Theelement of mens rea presents greater problems. How does the prosecution
provethat a man has a guilty mind? To prove mens rea the prosecution must show that
theact or omission must have been done voluntarily and secondly, that there musthave
beensome foresight of the consequences. There may have been intention to do theact, or
recklessnesson the part of the accused, so that he could foresee the consequences of his
actor did not care whether those consequences were brought about or not. No act is
punishableif it is done involuntarily. An involuntary act would be one committed by a
personwhile he was sleep-walking or was suffering from concussion, or insanity. Thisis
confirmedby section 9(1) of the Penal Code which provides that,
"... a person is not criminally responsible for an act or omission which occurs
independentlyof the exercise of his will, or for an event which occurs by
Therequirement of mens rea may be stipulated in the offence in the Penal Code. For
example,murder is defined in section 203 as,
"anyperson who of malice aforethought causes the death of another person by an
unlawfulact or omission is guilty of murder."
Themens rea is "malice aforethought". But, even with offences where mensrea is not
stipulated,it will be implied in the offences under the Penal Code. But, there areoffences
whereliability is strict. In other words, mens rea does not have to be proved. The
followingextract from the judgment of Wright, J. in Sherras v. De Rutzen, (1895) 1 Q.B.
918,was with approval by Biron, J. in Hamed Abdallah v. Republic, (1964) E.A. 270:
"Thereis a presumption that mens rea, an evil intention, or a knowledge of the
wrongfulnessof the act, is an essential ingredient in every offence; but that
presumptionis liable to be displaced either by the words of the statute creating the
offenceor by the subject matter with which it deals, and both must be considered
Ascan be seen, everything depends upon the wording of the statute. Examples of
absolute(strict) liability are offences under the Food, Drug: and Chemical SubstancesAct
(Cap.254), the Weights and Measures Act (Cap. 513) and licensing offences under the
TrafficAct (Cap. 403).
Qualifications to Criminal Responsibility
Thereare certain exceptions and qualifications to criminal responsibility.
Aperson under the age of eight years is not criminally responsible for any actor
omission(Penal Code, section 14(1)). This is an irrebuttable presumption of law.
Aperson under the age of twelve years is not criminally responsible for an actor
omission,unless it is proved that at the time of the act or making the omission he had
capacityto know that he ought not to do the act or make the omission (section 14(2)).
Thisis a rebuttable presumption of law. The reader of Charles Dickens Oliver Twistcan
judgefor himself whether the presumption was rebuttable in the case of the"Artful
Amale person under the age of twelve years is presumed to be incapable of havingcarnal knowledge (section 14(3)).
Thereare special statutory provisions as to the punishment of infants and young persons.
Ifa person under the age of eighteen years is in need of protection or discipline
(thiscan be for a variety of reasons), a Juvenile Court has power, inter alia, tocommit
thechild for a period not exceeding three years to the custody of a Children'sOfficer. The
latteris employed by a local authority. This is an alternative to placing a child inthe
custodyof a guardian.
TheChildren Act makes provision for the protectionand discipline of children, juveniles and young persons. For example, it regulatesthe proceedings in Juvenile Courts, approved schools for children, remand homesand the duties of certain local authorities which perform certain functionsunder the Act.
Everyperson is presumed to be of sound mind, and to have been of sound mind at any
timewhich comes in question until the contrary is proved (Penal Code, section 11);this is
arebuttable presumption of law.
Aperson is not criminally responsible for an act or omission if at the time of
doingthe act or making the omission he is through any disease affecting his mind
incapableof understanding what he is doing, or of knowing that he ought not to do theact
ormake the omission; but a person may be criminally responsible for an act oromission,
althoughhis mind is affected by disease, if such disease does not in fact produce uponhis
mindone or other of the effects above mentioned in reference to that act oromission
(section12). If the accused is incapable of understanding what he was doing, orincapable
ofknowing that what he was doing was wrong, he will not be held responsible forhis
criminalacts. In Tadeo Oyee s/o Duru v. R., (1959) E.A. 407, the Court of Appeal for
EasternAfrica held that a high-grade mental deficiency may be a "diseaseaffecting the
mind".Although the decision was based on section 12 of the Uganda Penal Code, it is
identicalwith the terms of section 12 of the Kenya Penal Code.
Ifthe accused kills his wife and is not aware of the nature of his act by reasonof
insanity,then he is not criminally responsible. Secondly, if he killed his wife in thebelief
thathe was the public hangman, although he knew what he was doing, he would not
knowit was wrong, and, therefore, would not be criminally responsible.
Ifthe accused is found guilty, but insanity is proved, the verdict is"guilty, but insane".
Theconvicted person is then detained until the President’s pleasure be known.
Intoxicationdoes not constitute a defence to any criminal charge (Penal Code, section
13(1)),unless the state of intoxication was such that "he did not know that suchact or
omissionwas wrong or did not know what he was doing ..... " If the intoxication issuch
asto amount to temporary insanity, or if it would negate mens rea, the accused isnot
guiltyof any crime.
Intoxicationcan be caused by alcohol or drugs.
Amistake as to the law is usually no defence.
Wherethere is a mistake of fact, it depends on whether or not he would have been
liableif the facts had been as he thought them to be. For example, if X shoots Ybelieving
thatY is Z, X, although he has made a mistake of fact will still be guilty of themurder of
Y.Conversely, if a man dreaming that he was struggling with a wild beast killedhis
baby,he would not be guilty of murder. Assuming that the facts were true, they would
nothave amounted to a crime. They might otherwise suggest insanity.
Aperson is not criminally responsible for an offence if it is committed by twoor more
offenders,and if the act is done or omitted only because during the whole of the time in
whichit is being done or omitted the person is compelled to do or omit to do the actby
threatson the part of the other offender or offenders instantly to kill him or do him
grievousbodily harm if he refuses; but threats of future injury do not excuse anyoffence,
nordo any threats excuse the causing of, or the attempt to cause, death (PenalCode,
section16). For example, if X is compelled to commit a crime at the point of a gun
directedat him by Y, X has a good defence. In contrast, in Regina v. Howe (The Times 15
of20th February, 1987), the House of Lords decided that the defence of duress wasnot
availableto a person charged with murder, whether as a principal in the first degree(the
actualkiller) or as a principal in the second degree (an aider and abettor). TheirLordships
departedfrom their previous decision in D.P.P. for Northern Ireland v. Lynch, (1975)
A.C.653, that duress was available to an aider and abettor to a murder.
Amarried woman (whether or not of a monogamous marriage or under customary
law)has a defence of compulsion if she commits a crime in the presence of and underthe
coercionof the husband (Penal Code, section 19). The defence does not apply to the
crimesof treason or murder.
Thereis little authority on this defence. The leading English case is R. v. Dudleyand
Stephens(1884), 14 Q.B.D. 273, where two shipwrecked seamen on a raft were so weak
fromhunger that they killed and ate a cabin boy who was with them. They were found
guiltyof murder, but the death sentence was later commuted to one of six months' imprisonment.
If,for instance, a man on a mountain rope cuts the rope beneath him so as to save
hisown life and sends other climbers to their death, he is guilty of murder.Similarly, if
oneman pushes another off a plank adrift on the ocean, so as to save his own life,he is guilty of murder.
Thedefence of necessity has more relevance to the law of tort than to criminal law.
Section17 of the Penal Code provides that,
"... criminal responsibility for the use of force in the defence of person or
propertyshall be determined according to the principles of English Common Law."
Section241 further provides that,
"Anyperson authorised by law or by the consent of the person injured by him to useforce is criminally responsible for any excess according to the nature and qualityof the act which constitutes the excess. "
Aperson in defending himself or his property can use such force as is reasonably
necessary,but the means of defence must be compatible with the means or degree of
forcebeing used against him. Excessive force can be dangerous. If a person isdisturbed
atnight by intruders, pursues one of them and kills him with a bill-hook, he has
committedmurder (Yusufu s/o Lesso v. R. 19 E.A.C.A. 249).
Excessiveforce in effecting an arrest is not justifiable (Criminal Procedure Code,
section21(3)). In M'Ibui v. Dyer, (1967) E.A. 315, where the defendant had shot the
plaintiff,reasonably believing that he was a stock thief, Farrell J. held, inter alia.That,
"... by firing in the direction of the plaintiff the defendant took asubstantial risk
ofhitting him, as in fact happened. and that it was neither necessary for the purposeof effecting the plaintiff's arrest. .. nor was it reasonable in the circumstancesto use a degree of force which could or might probably result in the inflictionon the plaintiff of gunshot wounds."
Acorporation cannot be convicted of any crimes involving physical violence, butit can
beconvicted of crimes committed by any of its agents acting in the course oftheir
employment.Certainly, in cases of strict liability the lack of knowledge of the
corporationis irrelevant. The acts and state of mind of the corporation's agents and servantsare attributed to the corporation itself.
Anunincorporated association cannot be prosecuted for any crime as there is no
procedurefor bringing it before the court (Obiro Stephen v. R., (1962) E.A. 61).
Aperson who has been once tried by a court of competent jurisdiction for anoffence and
convictedor acquitted of such offence shall, while such conviction or acquittal has not
beenreversed or set aside, not be liable to be tried again on the same facts forthe same
offence(Criminal Procedure Code, section 138). In EI Mann v. Republic, (1970) E.A. 24,
thisparticular defence failed.
THE PARTIES TO OFFENCES
Thereare degrees of participation in the commission of offences.
Aprincipal offender is deemed to have taken part in committing the offence and
tobe guilty of the offence and may be charged with actually committing it. Thefollowing
(a)every person who actually does the act or makes the omission which constitutes
(b)every person who does or omits to do any act for the purpose of enabling or
aidinganother person to commit the offence;
(c)every person who aids or abets another person in committing the offence;
(d)any person who counsels or procures any other person to commit the offence.
Examplesof the above an: as follows:
(a)the person who actually commits the crime;
(b)where X lends his car to Y to enable Y to rob a bank (X knows why Y wants hiscar);
(c)the same example as in (b) would suffice. If in (b) X had driven the car usedin the
bankraid, he would be aiding and abetting.
(d)if Z had to persuade Y to rob a bank.
Inexample (d) Z may be charged either with committing the offence or with
counselingor procuring its commission, but even if charged with the latter offence, he is
liableto the same punishment as if he himself had committed the act or made the omission.
Whentwo or more persons form a common intention to prosecute an unlawful
purposein conjunction with one another, and in the prosecution of such purpose an
offenceis committed of such a nature that its commission was a probable consequence of
theprosecution of such purpose, each of them is deemed to have committed theoffence
(PenalCode, section 21). A simple example of this would be a premeditated crime,
althoughthe common intention could arise in the course of taking steps to commit a crime.If four persons agree to kill a night watchman and one alone actually commitsthe act of murder, all four persons are equally guilty of murder.
Accessories After the Fact
Aperson who receives or assists another who is, to his knowledge, guilty of anoffence,
inorder to enable him to escape punishment is said to become an accessory afterthe fact
tothe offence (Penal Code, section 396(1)).
Anyperson who becomes an accessory after the fact to a felony is guilty of a
felonyand is liable, if no other punishment is provided, to imprisonment for threeyears
Anyperson who becomes an accessory after the fact to a misdemeanour is guilty
ofa misdemeanour (section 398). A common example of an accessory after the factis a
personwho shelters or harbours a person who he knows has committed an offence.
Awife (whether or not of a monogamous marriage or under Customary law) is
notan accessory after the fact to an offence of which her husband is guilty byreceiving
orassisting him in order to enable him to escape punishment; or by receiving orassisting
inher husband's presence and by his authority another person who is guilty of anoffence
inthe commission of which her husband has taken part, in order to enable thatother
personto escape punishment; nor does a husband become an accessory after the fact toan
offenceof which his wife is guilty by receiving or assisting her in order to enableher to
escapepunishment (section 396(2)).
Undersection I 18 of the Penal Code, any person, having knowledge that a felony has
beencommitted, who for reward agrees to conceal a felony, or abstain from,discontinue
ordelay a prosecution for a felony, or withhold any evidence thereof, is guiltyof a
misdemeanour.The misdemeanour is that of compounding a felony. It is not a criminal
offenceto compound a misdemeanour.
Attempts to Commit Crimes
Anattempt is defined in section 388(1) of the Penal Code as,
"Whena person, intending to commit an offence, begins to put his intention into
executionby means adapted to its fulfillment and manifests his intention by some
overtact, but does not fulfill his intention to such an extent as to commit the
offencehe is deemed to attempt to commit the offence."
Itis immaterial, except as regards punishment, whether the offender has done whathe has
todo towards the commission of the offence, or whether he is prevented fromfulfillment
ofhis intention, or voluntarily refrains, or even if he attempts to commit a crimewhich is
impossible,e.g. shooting to kill a person who is out of range of the gun (attempted
murder);trying to force open a window with a jemmy which is not strong enough
Anattempt to commit a felony or misdemeanour is, unless otherwise stated, a misdemeanour.
Theessential elements of an "attempt" are the intention to commit theoffence and
secondly,to have done the act which constitutes the actus reus of a criminal attempt.
Theremust be some step towards the commission of a specific crime; intention initself is
notsufficient. In R. v. Robinson, (1915) 2 K.B. 342, a jeweller, who had insuredhis stock
18against theft and burglary, pretended that his shop had been burgled, tiedhimself up and
causedthe police to be summoned. His intention was to make a claim against his
insurancecompany. He was charged with an attempt to obtain money by false pretences.
Hisconviction was quashed on appeal to the Court of Criminal Appeal (U.K.). AsLord
"Thetruth is that this was preparation of evidence for the commission of the crime,and
nota step taken with a view to the commission of the crime."
Itwould have been different if the accused had in fact made a claim on theinsurance
company.In contrast with Robinson's case is R. v. Button, (1900) 2 Q.B. 597. The
accused,who was a good runner, gave the name of a very moderate runner, Sims, in
enteringfor two handicap races. He was given long starts and as a result won bothraces.
Hewas charged with attempting to obtain goods by false pretences. The questionsto be
decidedwere, namely, whether the intention of the accused, when he entered for the
races,was to obtain the prizes, and whether he made the representations with that
intention.Button's conviction for attempted false pretences was upheld on appeal to the
Courtfor Crown Cases Reserved. Again, it would have been different if Button had not
runin the races, or if he had, had not claimed the prize.
InMwandikwa s/o Mutisya v. R., (1959) B.A. 18, the accused was arrested while
attemptingto force open a locked car. He was convicted in the Resident Magistrate's
Court,Nairobi, of attempted theft of articles which were in a locked car. Theappellant
appealedagainst his conviction to the Supreme Court and in dismissing the appeal, Sir
RonaldSinclair, C.J. said,
"Weare satisfied that the appellant intended to steal and that he began to put his
intentioninto execution by means adapted to its fulfillment and that he manifested
hisintention by an overt act, namely, the attempt to force open the door of thecar.
Thisact was immediately and not merely remotely connected with the offence
whichhe intended to commit."
Inciting and Soliciting
Itis an offence for any person to solicit or incite or attempt to procure anotherto commit
anoffence (Penal Code, section 391).
Neglect to Prevent a Felony
Everyperson who, knowing that a person designs to commit or is committing a felony,
failsto use all reasonable means to prevent the commission or completion thereof is
guiltyof a misdemeanour (Penal Code, section 392).
Itis now proposed to deal with the main types of crimes under the following
(a)Offences against Public Order
(b)Offences against the Person
(c) Offences against Property