CRIMINAL LAW 1 NOTES (PART 1)

 *DISCLAIMER*

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 the laws and statutes might also have changed or been repealed and the students are to be wary and consult the various statutes reffered to herein

KENYATTA UNIVERSITY SCHOOL OF LAW

LECTURER’S GUIDANCE MANUAL ON

CRIMINAL LAW I

LPR 100: CRIMINAL LAW I

Keyword Syllabus

The following 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

8. sentencing

9. the death penalty

10. aims of imprisonment

11. non-custodial measures

12. law enforcement agencies – the Police Force (origins, functions); the prisons;

comparative penal systems

CHAPTER 63

THE PENAL CODE

ARRANGEMENT OF SECTIONS

PART I—GENERAL PROVISIONS

Section CHAPTER I-PRELIMINARY

1-Short title.

2-Saving.

CHAPTER II-INTERPRETATION

3-General rule of construction of Code.

4-Interpretation.

CHAPTER III-TERRITORIAL APPLICATION OF CODE

5-Jurisdiction of local courts.

6-Offences committed partly within and partly beyond jurisdiction.

CHAPTER IV-GENERAL RULES AS TO CRIMINAL RESPONSIBILITY

7-Ignorance of law.

8-Bona fide claim of right.

9-Intention and motive.

10-Mistake of fact.

11-Presumption of sanity.

12-Insanity.

13-Intoxication.

14-Immature age.

15-Judicial officers.

16-Compulsion.

17-Defence of person or property.

18—Use of force in effecting arrest.

19-Compulsion by husband.

CHAPTER V—PARTIES TO OFFENCES

20-Principal offenders.

21-Joint offenders in prosecution of common purpose.

22-Counselling another to commit offence.

23-Offences by corporations, societies, etc.

Section chapter VI—punishments

10

24-Different kinds of punishments.

25-Sentence of death.

26-Imprisonment.

26A-Recommendation for removal from Kenya.

27-Corporal punishment.

28-Fines.

29-Forfeiture.

30-Suspension or forfeiture of right to carry on business.

31-Compensation.

32-Costs.

33-Security for keeping the peace.

34-Recognizances.

35-Absolute and conditional discharge.

36-General punishment for misdemeanours.

37-Sentences when cumulative.

38-Sentence on escaped convict.

39-Cancellation or suspension of certificate of competency.

CRIMINAL LAW- Brief Overview

Under African customary law, there is no clear division between criminal law and civil

law. The question of punishing the offender and compensating his victim were matters

which were provided for under customary law. However the civil claims under customary

law which 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 affecting customary

law has 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).

There is a clear division between criminal law and civil law in the statute and common

law of Kenya.

The influence of the English law on criminal law of Kenya is illustrated by the

terms of section 3 of Penal Code, which provides that,

“This code shall be interpreted in accordance with the principles of legal

interpretation obtaining in England, and expressions used in it shall be presumed

so far as is consistent with their context and except as may be otherwise expressly

provided, to be used with the meaning attached to them in English criminal law

and shall 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

and other commonwealth judicial decisions for guidance where there is no binding or

relevant east African case.

THE NATURE OF A CRIME

A crime is an unlawful act or omission which is an offence against the State, although it

may also be an offence against an individual and thus give rise to civil liability as well.

A crime is punished usually by a fine or a term of imprisonment, although there

are other ways of dealing with an offender, which will be explained later in this chapter.

The prosecution is usually commenced in the name of the Republic so that a

prosecution will be described thus-Republic v. Kamau or R. v. Kamau. A private

individual can, with permission, also institute a prosecution, but the power of the

Attorney-General to discontinue any criminal proceedings has been observed (Criminal

Procedure Code, section 82).

That the same facts can give rise to criminal and civil proceedings has also been

observed. When this occurs the crime will usually be prosecuted first.

CLASSIFICATION OF CRIMES

Kenya has inherited from English law the distinction between felonies and

misdemeanours. A felony is defined in the Penal Code as "an offence which is declared

by law to be a felony or, if not declared to be a misdemeanour, is punishable, without

proof of previous conviction, with death, or with imprisonment for three years or more" .

A misdemeanour is defined in the Penal Code as "any offence which is not a felony".

Whenever the term "offence" is used in this chapter it will include both felonies and

misdemeanours.

Examples of felonies in the Penal Code are abduction (section 142), bigamy

(section 171), manslaughter (section 202), murder (section 203) and handling stolen

goods (section 322). The punishment in all these cases is stipulated by the appropriate

section of the Penal Code, e.g. any person convicted of manslaughter is liable to

imprisonment for life.

Where terms of imprisonment are prescribed, the maximum only is usually stated,

which leaves the court with a discretion. However, in some cases a minimum sentence of

imprisonment may be stipulated, e.g. when a person is found guilty of handling stolen

goods he is liable to imprisonment with hard labour for a term of not less than seven or

more than fourteen years (Penal Code section 322(2)).

The punishment for misdemeanours is not always stipulated in the section

defining the misdemeanour. Section 36 of the Penal Code provides, " ... when in this

Code no punishment is specially provided for any misdemeanour, it shall be punishable

with imprisonment for a term not exceeding two years or with a fine, or with both".

Examples of misdemeanours in the Penal Code are perjury (section 108), criminal

libel (section 194) and false pretences (section 312).

It is not accurate to describe felonies as the most serious offences and

misdemeanours as the less serious offences. Many years ago in England, all felonies

generally carried the death penalty, but a reaction against this grew up and the tendency

was to classify new crimes as misdemeanours, no matter how serious they were. Thus,

while perjury has always been a misdemeanour, to steal a loaf of bread from a shop is a

felony.

General Principles of Criminal Liability

The cardinal 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 guilty mind". The

two essential elements of any crime are actus reus (the prohibited act) and mens rea (the

intention).

The term actus reus presents no problem. The definition of every crime in the

Penal Code recites the prohibited act and the prosecution must prove that the accused has

committed the prohibited act; the facts which hay been proved must fit the offence with

which the accused is charged.

The element of mens rea presents greater problems. How does the prosecution

prove that a man has a guilty mind? To prove mens rea the prosecution must show that

the act or omission must have been done voluntarily and secondly, that there must have

been some foresight of the consequences. There may have been intention to do the act, or

recklessness on the part of the accused, so that he could foresee the consequences of his

act or did not care whether those consequences were brought about or not. No act is

punishable if it is done involuntarily. An involuntary act would be one committed by a

person while he was sleep-walking or was suffering from concussion, or insanity. This is

confirmed by section 9(1) of the Penal Code which provides that,

" ... a person is not criminally responsible for an act or omission which occurs

independently of the exercise of his will, or for an event which occurs by

accident."

The requirement of mens rea may be stipulated in the offence in the Penal Code. For

example, murder is defined in section 203 as,

"any person who of malice aforethought causes the death of another person by an

unlawful act or omission is guilty of murder."

The mens rea is "malice aforethought". But, even with offences where mens rea is not

stipulated, it will be implied in the offences under the Penal Code. But, there are offences

where liability is strict. In other words, mens rea does not have to be proved. The

following extract 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:

"There is a presumption that mens rea, an evil intention, or a knowledge of the

wrongfulness of the act, is an essential ingredient in every offence; but that

presumption is liable to be displaced either by the words of the statute creating the

offence or by the subject matter with which it deals, and both must be considered

... "

As can be seen, everything depends upon the wording of the statute. Examples of

absolute (strict) liability are offences under the Food, Drug: and Chemical Substances Act

(Cap. 254), the Weights and Measures Act (Cap. 513) and licensing offences under the

Traffic Act (Cap. 403).

Qualifications to Criminal Responsibility

There are certain exceptions and qualifications to criminal responsibility.

Infancy

A person under the age of eight years is not criminally responsible for any act or

omission (Penal Code, section 14(1)). This is an irrebuttable presumption of law.

A person under the age of twelve years is not criminally responsible for an act or

omission, unless it is proved that at the time of the act or making the omission he had

capacity to know that he ought not to do the act or make the omission (section 14(2)).

This is a rebuttable presumption of law. The reader of Charles Dickens Oliver Twist can

judge for himself whether the presumption was rebuttable in the case of the" Artful

Dodger".

A male person under the age of twelve years is presumed to be incapable of having carnal knowledge (section 14(3)).

There are special statutory provisions as to the punishment of infants and young persons.

If a person under the age of eighteen years is in need of protection or discipline

(this can be for a variety of reasons), a Juvenile Court has power, inter alia, to commit

the child for a period not exceeding three years to the custody of a Children's Officer. The

latter is employed by a local authority. This is an alternative to placing a child in the

custody of a guardian.

The Children Act  makes provision for the protection and discipline of children, juveniles and young persons. For example, it regulates the proceedings in Juvenile Courts, approved schools for children, remand homes and the duties of certain local authorities which perform certain functions under the Act.

Insanity

Every person is presumed to be of sound mind, and to have been of sound mind at any

time which comes in question until the contrary is proved (Penal Code, section 11); this is

a rebuttable presumption of law.

A person is not criminally responsible for an act or omission if at the time of

doing the act or making the omission he is through any disease affecting his mind

incapable of understanding what he is doing, or of knowing that he ought not to do the act

or make the omission; but a person may be criminally responsible for an act or omission,

although his mind is affected by disease, if such disease does not in fact produce upon his

mind one or other of the effects above mentioned in reference to that act or omission

(section 12). If the accused is incapable of understanding what he was doing, or incapable

of knowing that what he was doing was wrong, he will not be held responsible for his

criminal acts. In Tadeo Oyee s/o Duru v. R., (1959) E.A. 407, the Court of Appeal for

Eastern Africa held that a high-grade mental deficiency may be a "disease affecting the

mind". Although the decision was based on section 12 of the Uganda Penal Code, it is

identical with the terms of section 12 of the Kenya Penal Code.

If the accused kills his wife and is not aware of the nature of his act by reason of

insanity, then he is not criminally responsible. Secondly, if he killed his wife in the belief

that he was the public hangman, although he knew what he was doing, he would not

know it was wrong, and, therefore, would not be criminally responsible.

If the accused is found guilty, but insanity is proved, the verdict is "guilty, but insane".

The convicted person is then detained until the President’s pleasure be known.

Drunkenness

Intoxication does 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 such act or

omission was wrong or did not know what he was doing ..... " If the intoxication is such

as to amount to temporary insanity, or if it would negate mens rea, the accused is not

guilty of any crime.

Intoxication can be caused by alcohol or drugs.

Mistake

A mistake as to the law is usually no defence.

Where there is a mistake of fact, it depends on whether or not he would have been

liable if the facts had been as he thought them to be. For example, if X shoots Y believing

that Y is Z, X, although he has made a mistake of fact will still be guilty of the murder of

Y. Conversely, if a man dreaming that he was struggling with a wild beast killed his

baby, he would not be guilty of murder. Assuming that the facts were true, they would

not have amounted to a crime. They might otherwise suggest insanity.

Compulsion

A person is not criminally responsible for an offence if it is committed by two or more

offenders, and if the act is done or omitted only because during the whole of the time in

which it is being done or omitted the person is compelled to do or omit to do the act by

threats on the part of the other offender or offenders instantly to kill him or do him

grievous bodily harm if he refuses; but threats of future injury do not excuse any offence,

nor do any threats excuse the causing of, or the attempt to cause, death (Penal Code,

section 16). For example, if X is compelled to commit a crime at the point of a gun

directed at him by Y, X has a good defence. In contrast, in Regina v. Howe (The Times 15

of 20th February, 1987), the House of Lords decided that the defence of duress was not

available to a person charged with murder, whether as a principal in the first degree (the

actual killer) or as a principal in the second degree (an aider and abettor). Their Lordships

departed from 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.

A married 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 under the

coercion of the husband (Penal Code, section 19). The defence does not apply to the

crimes of treason or murder.

Necessity

There is little authority on this defence. The leading English case is R. v. Dudley and

Stephens (1884), 14 Q.B.D. 273, where two shipwrecked seamen on a raft were so weak

from hunger that they killed and ate a cabin boy who was with them. They were found

guilty of 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

his own life and sends other climbers to their death, he is guilty of murder. Similarly, if

one man pushes another off a plank adrift on the ocean, so as to save his own life, he is guilty of murder.

The defence of necessity has more relevance to the law of tort than to criminal law.

Self-Defence

Section 17 of the Penal Code provides that,

" ... criminal responsibility for the use of force in the defence of person or

property shall be determined according to the principles of English Common Law."

Section 241 further provides that,

"Any person authorised by law or by the consent of the person injured by him to use force is criminally responsible for any excess according to the nature and quality of the act which constitutes the excess. "

A person 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

force being used against him. Excessive force can be dangerous. If a person is disturbed

at night by intruders, pursues one of them and kills him with a bill-hook, he has

committed murder (Yusufu s/o Lesso v. R. 19 E.A.C.A. 249).

Excessive force in effecting an arrest is not justifiable (Criminal Procedure Code,

section 21(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 a substantial risk

of hitting him, as in fact happened. and that it was neither necessary for the purpose of effecting the plaintiff's arrest. .. nor was it reasonable in the circumstances to use a degree of force which could or might probably result in the infliction on the plaintiff of gunshot wounds."

Corporations

A corporation cannot be convicted of any crimes involving physical violence, but it can

be convicted of crimes committed by any of its agents acting in the course of their

employment. Certainly, in cases of strict liability the lack of knowledge of the

corporation is irrelevant. The acts and state of mind of the corporation's agents and servants are attributed to the corporation itself.

An unincorporated association cannot be prosecuted for any crime as there is no

procedure for bringing it before the court (Obiro Stephen v. R., (1962) E.A. 61).

Autrefois Acquit

A person who has been once tried by a court of competent jurisdiction for an offence and

convicted or acquitted of such offence shall, while such conviction or acquittal has not

been reversed or set aside, not be liable to be tried again on the same facts for the same

offence (Criminal Procedure Code, section 138). In EI Mann v. Republic, (1970) E.A. 24,

this particular defence failed.

THE PARTIES TO OFFENCES

There are degrees of participation in the commission of offences.

A principal offender is deemed to have taken part in committing the offence and

to be guilty of the offence and may be charged with actually committing it. The following

are principal offenders:

(a) every person who actually does the act or makes the omission which constitutes

the offence;

(b) every person who does or omits to do any act for the purpose of enabling or

aiding another 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.

Examples of 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 his car);

(c) the same example as in (b) would suffice. If in (b) X had driven the car used in the

bank raid, he would be aiding and abetting.

(d) if Z had to persuade Y to rob a bank.

In example (d) Z may be charged either with committing the offence or with

counseling or procuring its commission, but even if charged with the latter offence, he is

liable to the same punishment as if he himself had committed the act or made the omission.

When two or more persons form a common intention to prosecute an unlawful

purpose in conjunction with one another, and in the prosecution of such purpose an

offence is committed of such a nature that its commission was a probable consequence of

the prosecution of such purpose, each of them is deemed to have committed the offence

(Penal Code, section 21). A simple example of this would be a premeditated crime,

although the 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 commits the act of murder, all four persons are equally guilty of murder.

Accessories After the Fact

A person who receives or assists another who is, to his knowledge, guilty of an offence,

in order to enable him to escape punishment is said to become an accessory after the fact

to the offence (Penal Code, section 396(1)).

Any person who becomes an accessory after the fact to a felony is guilty of a

felony and is liable, if no other punishment is provided, to imprisonment for three years

(section 397).

Any person who becomes an accessory after the fact to a misdemeanour is guilty

of a misdemeanour (section 398). A common example of an accessory after the fact is a

person who shelters or harbours a person who he knows has committed an offence.

A wife (whether or not of a monogamous marriage or under Customary law) is

not an accessory after the fact to an offence of which her husband is guilty by receiving

or assisting him in order to enable him to escape punishment; or by receiving or assisting

in her husband's presence and by his authority another person who is guilty of an offence

in the commission of which her husband has taken part, in order to enable that other

person to escape punishment; nor does a husband become an accessory after the fact to an

offence of which his wife is guilty by receiving or assisting her in order to enable her to

escape punishment (section 396(2)).

Compounding Felonies

Under section I 18 of the Penal Code, any person, having knowledge that a felony has

been committed, who for reward agrees to conceal a felony, or abstain from, discontinue

or delay a prosecution for a felony, or withhold any evidence thereof, is guilty of a

misdemeanour. The misdemeanour is that of compounding a felony. It is not a criminal

offence to compound a misdemeanour.

Attempts to Commit Crimes

An attempt is defined in section 388(1) of the Penal Code as,

"When a person, intending to commit an offence, begins to put his intention into

execution by means adapted to its fulfillment and manifests his intention by some

overt act, but does not fulfill his intention to such an extent as to commit the

offence he is deemed to attempt to commit the offence."

It is immaterial, except as regards punishment, whether the offender has done what he has

to do towards the commission of the offence, or whether he is prevented from fulfillment

of his intention, or voluntarily refrains, or even if he attempts to commit a crime which 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

(attempted housebreaking).

An attempt to commit a felony or misdemeanour is, unless otherwise stated, a misdemeanour.

The essential elements of an "attempt" are the intention to commit the offence and

secondly, to have done the act which constitutes the actus reus of a criminal attempt.

There must be some step towards the commission of a specific crime; intention in itself is

not sufficient. In R. v. Robinson, (1915) 2 K.B. 342, a jeweller, who had insured his stock

18 against theft and burglary, pretended that his shop had been burgled, tied himself up and

caused the police to be summoned. His intention was to make a claim against his

insurance company. He was charged with an attempt to obtain money by false pretences.

His conviction was quashed on appeal to the Court of Criminal Appeal (U.K.). As Lord

Reading, C.J. said,

"The truth is that this was preparation of evidence for the commission of the crime, and

not a step taken with a view to the commission of the crime."

It would have been different if the accused had in fact made a claim on the insurance

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

entering for two handicap races. He was given long starts and as a result won both races.

He was charged with attempting to obtain goods by false pretences. The questions to be

decided were, 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

Court for Crown Cases Reserved. Again, it would have been different if Button had not

run in the races, or if he had, had not claimed the prize.

In Mwandikwa s/o Mutisya v. R., (1959) B.A. 18, the accused was arrested while

attempting to 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. The appellant

appealed against his conviction to the Supreme Court and in dismissing the appeal, Sir

Ronald Sinclair, C.J. said,

"We are satisfied that the appellant intended to steal and that he began to put his

intention into execution by means adapted to its fulfillment and that he manifested

his intention by an overt act, namely, the attempt to force open the door of the car.

This act was immediately and not merely remotely connected with the offence

which he intended to commit."

Inciting and Soliciting

It is an offence for any person to solicit or incite or attempt to procure another to commit

an offence (Penal Code, section 391).

Neglect to Prevent a Felony

Every person who, knowing that a person designs to commit or is committing a felony,

fails to use all reasonable means to prevent the commission or completion thereof is

guilty of a misdemeanour (Penal Code, section 392).

It is now proposed to deal with the main types of crimes under the following

classifications:

(a) Offences against Public Order

(b) Offences against the Person

(c) Offences against Property