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 the laws and statutes might also have changed or been repealed and the students are to be wary and consult the various statutes reffered to herein






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

11.non-custodial measures enforcement agencies – the Police Force (origins, functions); the prisons;

comparativepenal systems









3-Generalrule of construction of Code.



5-Jurisdictionof local courts.

6-Offencescommitted partly within and partly beyond jurisdiction.


7-Ignoranceof law.

8-Bonafide claim of right.

9-Intentionand motive.

10-Mistakeof fact.

11-Presumptionof sanity.






17-Defenceof person or property.

18—Useof force in effecting arrest.

19-Compulsionby husband.



21-Jointoffenders in prosecution of common purpose.

22-Counsellinganother to commit offence.

23-Offencesby corporations, societies, etc.

Sectionchapter VI—punishments


24-Differentkinds of punishments.

25-Sentenceof death.


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.

37-Sentenceswhen cumulative.

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

lawof Kenya.

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.


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

imprisonmentfor life.

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).

Autrefois Acquit

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.


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

areprincipal offenders:

(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)).

Compounding Felonies

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

Reading,C.J. said,

"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

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