CRIMINAL LAW

INTRODUCTION-PART 1
 Criminal law is an area of law in the realm of public law, concerned with prohibited
conduct for being against the societal interest.

 Criminal law is body of rules and statutes that defines conducts prohibited by the
state. The prohibited conduct threatens and harms the public safety and that
establishes punishment to be imposed for the commission of such acts. The term
criminal law generally refers to substantive criminal laws.

‘The general purposes of the provisions governing the definition of offenses’ in

the American Law Institute‘s Model Penal Code might be taken as a statement of the
proper objectives of the substantive law of crime in a modern legal system.

 Law is classified into Public and Private Law

Public law defines law which has public element in them i.e those laws where the
state intervenes to secure public interest. It covers matters that concerns the general
public as opposed to matters that are of private in nature. These areas are such as
criminal law, constitutional law, administrative law, property law, labour law, etc
while private law deals with matters contracts, torts, domestic or personal matters
like family matters, inheritance, succession etc.

 Criminal law is a branch of law that deals with crimes.

 It’s a body of rules made by the state with the object of harmonizing relations
between individuals.

 It reflects the norms and values of the majority of the people and formulated by their
political leaders

 A crime is defined as an offence committed by an individual in the society.

 Criminal law deals with crimes in definitional and descriptive terms.

 Criminal law covers principles of law of crimes, specifically, criminal liability and
responsibility.

 It also covers specific crimes and the possible defences available thereto.

 Other aspects of criminal law.

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 Criminology: falls under the area of criminal science which is the study of crimes
and the aims of discovering the causes of criminality, devising ways of reducing
crimes and perfecting the machineries of dealing with those who have committed a
crime. It is concerned majorly with the causes of crimes

Penology: It’s a branch of criminal science that studies the means by which harmful
conduct can be limited in the society. It relies on the information provided by
criminology. It investigates measures to be taken to prevent harmful activities and
the treatment that should be accorded to those who cause harm. The treatment takes
the form of sanctions such as death penalty, imprisonment, detention, fines,
probation, community service, etc.

Criminal procedure/Adjective law: It covers the process by which criminal law is

enforced. It deals with the procedural aspects or procedures or processes of criminal
law. It covers detection of crimes, apprehension of offenders, arraignment in court,
admission to bail, trials, cr.law tribunals, sentencing and appeals.

Definition of a crime:

Any act or omission that is prohibited by law that is enacted for the protection of the
public and its violation is prosecuted by the state in judicial proceeding in its own
state.

The objectives of criminal law are:

1. To forbid and prevent conduct that unjustifiably and inexcusably inflicts or

threatens substantial harm to individual or public interests.

2. To subject to public control persons whose conduct indicates that they are
disposed to commit crimes.

3. To safeguard conduct that is without fault from condemnation as criminal.

4. To give fair warning of the nature of the conduct declared to be an offense.

5. To differentiate on reasonable grounds between serious and minor offences.

Legal scholars identify five features that all “good “criminal laws ideally ought to
possess. The five ideal features of good criminal laws are:

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 1. Politicality: This refers to the legitimate source of criminal law. Only violations of
rules made by the state (that is, the political jurisdiction that enacted laws) are
crimes. Violations of rules made by other institutions, such as families, churches
and employers, may be” bad “ or “socially un acceptable “ but they are not crimes
because they are not prohibited by the state.

2. Specificity: This refers to the scope of criminal law. It provides strict definitions
of specific acts. Case in fact….Papachristou v. City of Jacksonville( 1972)The
supreme Court ruled out that a statute or ordinance is void for vagueness if it fails
to give a person of ordinary intelligence fair notice that his contemplated conduct
is forbidden.

3. Regularity: This is the applicability of the criminal law to all persons. Ideally,
anyone who commits a crime is answerable for it, regardless of the person’s social
status case in fact….Michael M v. Superior Court of Sonoma County(1981),the
U.S Supreme Court upheld California’s statutory rape law that mad men alone
criminally responsible for the act of illicit sexual intercourse with a minor female.

4. Uniformity: This refers to the way in which the criminal law should be enforced.
The law should be administered without regard for the social status of the persons
who have committed crimes or are accused of crimes. The principle of uniformity
is often violated because some people consider the strict enforcement of the law
unjust in some cases.

5. Penal Sanction: This means that violators of the law will be

punished .Conventional wisdom suggests that there would be no point in enacting
criminal laws if their violation were not responded to with punishment. The five
general types of penal sanctions; punishment, restitution, compensation, regulation
and rehabilitation.

INTRODUCTION-PART 2

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Crime is an act or omission prohibited by the law for the protection of the public and
whose violation is prosecuted by the state in its own name through judicial proceedings.

Legality can be defined as an act, agreement, or contract that is consistent with the law or
state of being lawful or unlawful in a given jurisdiction.

The principle of legality is the legal idea that requires all law to be clear, ascertainable
and non-retrospective. In criminal law it can be seen in the general prohibition on the
imposition of criminal sanctions for acts or omissions that were not criminal at the time
of their commission.

The principle can be varyingly expressed in Latin phrases such as Nullum crimen, nulla
poena sine praevia lege poenali (No crime can be committed, nor punishment imposed
without a pre-existing penal law), nulla poena sine lege (no penalty without law) and
nullum crimen sine lege (no crime without law).

A law that violates the principle by retroactively making actions illegal that were
committed before the enactment of the law is called an ex post facto law.

The principle is now enshrined in our criminal law through the Human Rights Act
1998.This principle has a number of specific aspects, including the following:

1. The law must be clear.

2. The law must be capable of being obeyed. A law which is prohibited in public
would clearly infringe the principle.
3. The law must be readily available to the public. If all the laws were kept secret,
then even if they were written in the clearest language you would not be able to
keep them.

Classification of crimes
For procedural purposes crimes are classified as either indictable or summary
offences. Summary offences are offences which may be tried by courts having ‘summary
jurisdiction ‘.The trial is conducted by magistrates without a jury. If the crime is one tried
on indictment that means that the proceedings will take place with a jury.

The classification of offences as indictable and summary broadly reflects a

distinction between serious and minor crimes. The grouping is based on the seriousness
of the offence. The seriousness of the offence is based on its nature. Some offences are so
obviously serious that they are triable only on indictment (for example robbery), and

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some offences are so obviously minor that they can be tried only summarily (for
example, many road traffic offences).

A) Crimes as public wrong

Crimes are creations of government policy. It is the state which criminalizes
conduct for the protection of the society, as the state represents public interests .It is
recognized that the governing authority in society at any given time makes or recognizes
the law which forbids a person from bringing about certain specified results by their
conduct. All criminal proceedings are theoretically instituted by and conducted on behalf
of the state.

The rationale is that the redress of certain wrongs should not be left to individuals. A
variety of reasons are advanced for this.

 One reason relates to the seriousness of some wrongs.

 Two, the remedy for private wrongs, called either compensation or damages, is not
always an adequate deterrent. It is therefore desirable to have a remedy or redress
which would be in public interest.

 Three, some wrongful acts do not do particular harm to particular individuals and
therefore there would be no one sufficiently interested to bring proceedings with a
view to getting compensation. This applies to offences against public order, public
morals, among others.

B) Criminal wrongs and other wrongs

A wrong is a breach of a rule, whether that rule is moral or legal. A wrong also may be
referred to as an offence.

Legal wrongs may be civil or criminal.

Civil law defines the rights and duties of individuals amongst themselves, while criminal
law defines the duties owed to society. Most civil wrongs are called torts.

1. Harm suffered by society

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A key distinction between a criminal wrong and a civil wrong lies with the consideration
of who is harmed by the wrong. A crime is a wrong which harms society, while civil
wrong harms an individuals. In traditional society there was no distinction between the
criminal wrongs and civil wrongs. In traditional African Societies, for example, the
punishment of the offender and the compensation of the victim were intimately
connected, with emphasis being given to compensation as it had the effect of promoting
reconciliation.

The second reason is that a criminal wrong and a civil wrong overlap in certain cases, so
that a particular crime could also be a civil wrong, meaning that the wrong doer would be
liable to both criminal prosecution and civil proceedings. Examples include criminal
assault and battery, various traffic offences and the tort of negligence.

The third way is by looking at it in terms of the wrongs that the state has isolated and
defined as crimes; that is to say wrongs against the society, which ought to be prosecuted
at public expense in the name of the public, with the objective of punishing the offender.

2. The degree of the wrong

Crimes are considered as a lot more serious than civil wrongs. The term felony indicates
something cruel, fierce wicked or base. English law always treated separately gross kinds
of anti-social behavior such as murder, rape and theft; which were considered to be more
than a matter between the offender and the victim, but a threat to society itself.

3. Punishment
The third way is to look in terms of the objective of criminal law, either to punish the
offender for his wrongs and in the process make him pay for his wrongs, or to deter him
and the rest of the society, from committing crime or to help the offender see his
waywardness and help him reform

In this respect, crime differs from a civil wrong in the sense that in civil law the primary
objective is to obtain compensation from the wrong doer for the injury he has caused to
the victim or for his loss or infringement of his right.

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A criminal prosecution usually offers no compensation to the victim of the legal wrong,
and a victim desiring to recover compensation has to commence separate civil
proceedings.

Sec. 175 of the Cr. Procedure offers limited powers to a criminal court to award
compensation for a limited number of offences.

C) Penal code classification

In Kenya crimes are classified into felonies and misdemeanors, that is serious and minor
offences. The distinction between felonies and misdemeanors was abolished in England
in 1967, through the Criminal Law Act 1967. The classification is however still in use in
Kenya, and these terms are defined in section 4 of the penal code: felony to mean any
felony so declared by the law or any offence which is not defined as a misdemeanor and
is punishable with death or imprisonment for three years and a misdemeanor to mean any
offence which is not a felony.

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TOPIC 2: Sources Criminal of law

A) The constitution
The constitution is the supreme law in Kenya, and all other laws draw their legitimacy
from it. The constitution is a source of criminal law in Kenya as it has provisions on
aspects of criminal law. The relevant provisions are in articles 49, 50 and 51.

1. Rights of an arrested person

Article 49 deals with the rights of an arrested person. Most of these rights are not the
substance of criminal law, but of criminal procedure. They cover such issues as the right
to information, the right to communication, the right not to be compelled to confess or
admit a crime, the right to be held separately from convicted persons, the right to be
brought in court as soon as possible (at any rate within 24 hours of arrest, unless a
weekend or public holiday intervenes), the right at first appearance to be charged or
informed of the reason for being detained further, the right to bail or bond (unless there
are good reasons for not being so released) and the right not to be remanded in custody if
the offence is a minor one attracting a fine only or imprisonment under 6 years.

2. Fair trial principles

Article 50 sets out fair trial principles. These include the right to a fair public hearing
before a component tribunal and the right to a fair encompasses, the right to the
presumption of innocence, the right to sufficiently detailed information on the charge, the
right to be present at the trial (unless the conduct of the accused precludes it),the right to
legal representation of one’s choice and the right to be informed of the right promptly, the
right to an advocate assigned by the state and at the state expense (where substantial
injustice is likely to arise) and the right to informed of that right, the right to remain
silent and not to testify at the trial, the right to advance disclosure of the prosecution’s
evidence and access to that evidence, the right to adduce evidence and challenge
evidence, the right to an interpretation, the right not to be tried of an act or omission for
which the accused had been previously acquitted or convicted, and the right of appeal.

Example in case:

In Republic v Subordinate Court of the first Class Magistrate at City Hall, Nairobi
and another, ex parte Yougindar Pall Sennik and another Retread Limited (2006) 1 EA

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330 (Nyamu J)……it was held, in an application founded on the old Kenya constitution,
that a fair trial from trial to final judgment includes the right to equality before the law,
the law, the right to presumption of innocence, the right to be tried by a component,
independent and impartial tribunal established by law; the right to a fair hearing; the right
to equality of arms and adversarial proceedings

The principle is that the accused person must at all times be accorded a genuine
possibility of answering charges; challenging evidence; cross examining witnesses and
doing so in a dignified situation. Any infringements of the above rights does seriously
jeopardise the trial to a fair trial and also the rights to truly adversarial proceedings in
civil and criminal matters forms an intrinsic part of the right to a fair hearing. Equity in
this context means identical treatment of the prosecution and the defense throughout the
trial. The derogation of the principles of equality is only allowed where differentiations
are legitimate and hence lawful provided they pursue a legitimate aim and to deal with
factual inequalities and are reasonable in the light of their legitimate aim and must also
comply with the principles of legal proportionality and democratic practice. It was stated
that the right to a fair trial is so important that the right to be tried by an independent and
impartial tribunal is an absolute right that may suffer no exception.

3. Rights of persons in custody

Article 51 deals with the rights of persons who are held in custody, whether before,
during or after trial. These include the rights to all the rights and fundamental
freedoms set out in the Bill of Rights (subjects to any derogations and limitations),
and the right to petition for an order of habeas corpus. The essence of the writ of
habeas corpus was stated in Mohammed v Republic [2003] KLR 344 (Etyang J),
where it was said that the writ requires that a person who claims that he is unlawfully
detained should be produced before a court so as to test the validity of his detention;
and should the court find that he is being unlawfully detained, it will ensure the
release of that person.

B) The common law

1. Origins in English common law
Common law originated from the customs of the people and was justified and
developed by the decisions and rulings of the judge. It was imposed and applied in Kenya
as part of the Kenyan law at the advent of colonialism though the East Africa Order-in-
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Council of 1897. In criminal law it is currently regulated by both statute and the common
law.

The more serious offences were once defined as felonies. Misdemeanors, referring to
less serious offences evolved in the fourteenth century. The Court of the Star Chamber is
credited with the creation of misdemeanors. In modern times, however, all criminal
offences in England are created by legislation.

In England there are still a number of offences which exist at common law only. The
definition of these offences is not to be found in legislation, but in the decisions of the
courts. However, the punishments for these offences are not to be found in legislation,
but in the decisions of the court.

However, the punishments for these offences are routinely governed by legislation,
mainly because it is easier to change legislation and often it is the penalties which keep
changing, rather than the definition of the offence itself. Murder is a good example of a
common law offence in England; it is not defined anywhere in English legislation, but
rather in a series of judicial rulings. Manslaughter is also a common law offence.

2. Kenyan criminal law and the common law

In Kenya, by virtue of the principle of legality or nullum crimen sine lege, nulla
poena sine lege, as embodied in article 50 (2) of the constitution all criminal offences are
defined in legislation, which therefore excludes common law offences.

However, most of the definition in the Kenyan statutes, especially the penal code, of
the offences that were formerly common law offences is drawn from the common law,
the best examples being murder and manslaughter. The penal code until recently, at
section 3, provided that the code was to be interpreted in accordance with the principles
of interpretation obtaining in England and the terms used in the code were presumed to
be used with the meaning attaching to them in English criminal law and were presumed
to be used with the meaning attaching to them in English criminal law and were to be
construed in accordance with the English law.

Section 17 of the penal code, provides that criminal responsibility for use of force in
the defence of person or property is to be determined according to the principles of
English common law. It was however stated in Rex v Yonasani Egalu and others (1942) 9
EACA 65 (Sir Henry Webb CJ, Wilson J and McRoberts J), that where a local ordinance
designed to suit the circumstances of the people of Eat Africa deals completely with a
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matter and differs from the English law it must be construed in its applicable free from
any glosses derived from any exposition from English law.

c) Legislation
By virtue of section 50 (2) of the constitution, all criminal offences in Kenya are
defined and governed by legislation. Such offences are called statutory offences as
distinguished from common law offences. This is to say that all offences in Kenya are
statutory, that is they are defined in Acts of Parliament which have been duly passed
through Parliament and received Presidential Assent. Statutory offences may be created
under the principal legislation or under the subsidiary legislation or under the subsidiary
legislation made under such principal legislation.

1. Principal legislation

The principal legislative source of criminal law in Kenya is the Penal Code. The
Penal Code is a codification of the general criminal law. It contains some general
principles of criminal law, and defines a large number of criminal offences and prescribes
their punishment. It was introduced in Kenya in 1930. It was based on a colonial office
model for various English colonies, and it replaced the Indian Penal Code, which was in
operation in 1897.

The penal code essentially draws from both the English common law and English
criminal statutes. The other main source of criminal law in Kenya is the criminal
procedure code. This statute deals principally with principles governing the procedural
aspects of criminal law. Most statutes create offences that are enforced by criminal
sanctions and penalties. Such statutes include Ordinances passed during the colonial
period, and acts of parliament passed after independence.

2. Subsidiary legislation
Statutory offences are often created not by a principal statute but by subsidiary or
delegated legislation; usually in the form of rules and regulations, mainly made by the
responsible minister or somebody in exercise of delegated powers donated to the minister
or the body under the principle legislation.

Such subsidiary legislation is published in the Kenya gazette as legal notices. Most of
these other statutes creating offences are not entirely concerned with criminal law, but
they either control certain activities or set up public services. The Pharmacy and poisons

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(Registration of Drug Rules), for example, made under the Pharmacy and Poison Act
makes the contravention of any of the provisions of the rules an offence under rule 11.
The police regulation, made under the Police Act, at regulation 3 creates some forty-one
offences against discipline.

D) Customary law
Customary criminal law was recognized and applied through the then African or
native courts. This position, however, changed with the advent of independence, when
law reform began to move towards a unified criminal process where all criminal cases
were to be handled by the ordinary or mainstream criminal courts based on a common
criminal code. This led to the abolition of the African criminal law.

The coming into force of the independence constitution completely excluded the
African criminal law, on account of section 77(8) of the then constitution, which
introduced the legality principle, meaning that a crime had to be defined in written law
for it to enforced by the criminal courts. These laws are unwritten; consequently the
crimes created and defined under this law could not apply by virtue of the section 77(8)
of the then constitution.

There were several customary law offences prosecuted under that dispensation.
Adultery with a married woman was one of them, usually punishable by a fine and
compensation. Adultery was later made a statutory offence under section 13(a) of the
Native Tribunal Ordinance 1930. Generally, fornication was not an offence, unless the
girl got pregnant in which case compensation had to be paid to her family.

Where the girl was below the age of puberty, the fornication amounted to a crime.
This offence was later removed from the sphere of customary law by sections 137 and
138 of the penal code. Rape was also a customary law offence; currently it is a statutory
offence defined in the Sexual Offences Act. Unnatural sexual behavior, causing death of
another, incest, assault, theft, arson, trespass, damage to property and practicing witch
craft were all customary law offences, most of which are now statutory offences under
the Penal Code, the Sexual Offences Act and other statutes.

E) International law
The emergence of the United Nations system after the world wars saw the
emergence of the internationalization of criminal law. Under the law of the nations,
crimes can only be prosecuted in the countries where they are committed, under

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municipal law. However, the UN system seeks to standardize criminal law principles in
order to achieve uniformity and equal treatment.

There are a number of treaties, conventions and protocols dealing with various
crimes and prescribing principles, standards and protocols becomes sources of the
Kenyan criminal law if Kenya subscribes to them; by virtue of article 2(6) the
constitution 2010. The same provisions at article 2(5) makes general rules of the
international law a part of the Kenyan law.

The treaties include: the Universal Declaration of Human Rights, the Convention
on Civil and Political Rights, the Convention against Torture, the Convention on the
Protection and Punishment of the Crime of Genocide, the Convention on the Rights of
the Child, the Convention on Elimination of Discrimination against Women, the Charter
of the United Nations, the Convention against Transnational Organised Crime and the
protocols thereto, the Convention on Narcotic Drugs among others. The Kenyan laws
drawing from these international instruments include: the Constitution, the Children Act,
the Anti-corruption and Economics Crimes Act, the Geneva Conventions Act, the
International Crimes Act, the Counterfeit Act, among others.

One challenge is that where the crimes are committed by those in power there is a
like hood that they might never get prosecuted and those in control of the state might get
away with impunity. The UN system recognizes that some crimes are so gross that they
ought to be treated as crimes against humanity in general, such as genocide, etc., and in
response to that the UN system has come up with laws and institutions designed to deal
with crimes of that nature. One such law is the Rome Statute, which establishes the
International Criminal Court to deal with crimes against humanity, such as genocide.

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SOURCES OF CRIMINAL LAW IN KENYA

1. INTRODUCTION:
 Generally, the Government of Kenya relies on various sources in enacting
laws that it uses to govern the people resident in Kenya. The phrase source
of law has been used in a variety of ways. It is used to describe:
a) where rules of law are found; or
b) the origins of rules and principles which constitute the law applicable in a
country at a given time; or
c) the source of force or validity of the various rules or principles applicable
as law in a country; or
d) the materials from which rules of law developed; or
e) the factors which influence the development of the rules of law.
Hence the phrase sources of law have been used to describe the legal,
formal, historical and material sources of law. The source of Kenyan law
thus refers to the origin of legal rules that constitute the Kenyan law.
2. SOURCES OF LAW IN KENYA:
 The different sources of law in Kenya are generally identified by way of
hierarchy of laws under Section 3 of the Judicature Act, Cap.8 by: a)
Constitution, b) Legislation, c) Delegated Legislation, 1 d) Statutes of
General Application in force in England on 12 th August 1897, e) Substance
of Common Law2 and Doctrines of Equity, f) African Customary Law, g)
Islamic Law, h) Hindu Law, i) Judicial Precedent 3 (Case Law).4 It is this

1
This are laws made by Parliament indirectly.
2
This is a branch of the law of England which was developed from customs, usages and practices of the English people.
3
Precedent: This is an earlier decision of a Court.
4
Stare decisis: Latin term which means “the decision stands.”

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 particular hierarchy that is generally used when there is conflict of laws in
Courts in Kenya.
 The sources of law in Kenya may be classified as:
a) written and unwritten sources: Unwritten sources of law apply subject to
the written sources. In other words, written sources prevail over
unwritten sources in the event of any conflict. This is primarily because
written law is generally made by a supreme law-making body.
b) principal and subsidiary sources: ‘Principal sources’ are source of law
applicable throughout Kenya. They regulate all persons in Kenya while
‘subsidiary sources’ are sources of law which regulate certain categories
of people in Kenya in relation to certain matters e.g., Islamic Law, Hindu
Law and African Customary Law.

 The significance of the hierarchy was addressed by the Court Appeal in the
famous case of Virginia Edith Wambui Otieno v. Joash Ochieng Ougo and

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 Omolo Siranga, Civil Appeal No. 31 of 1987 commonly known as the S. M.
Otieno Case.

3. SOURCES OF LAW IN KENYA: AN IN-DEPTH ANALYSIS

The following are the various sources of law in Kenya explained in a
detailed manner:
i. The Constitution of Kenya, 2010: This is presumably one of the most
important sources of law in Kenya. The Constitution is the first document
that is generally quoted whenever a law has to be referenced. In fact, it is the
sole document used whenever there is a legal emergency.
Ordinary Meaning of the term ‘Constitution’:
 A ‘Constitution’ is the supreme, basic, fundamental law of a State which
sets out how the State is organized and the powers and authorities of
Government between different political units and citizens. 5 In other
words, a Constitution consists of the laws, rules (i.e., Conventions) and
other practices which identify and explain the:
a) institutions of the Government;
b) nature, extent and distribution of powers within those institutions;
c) forms and procedures through which such powers should be
exercised;
d) relationship between the institutions of Government and the individual
citizens, often expressed in terms of a ‘Bill of Rights.’
 A ‘Constitution’ is also a set of fundamental principles or established
precedents according to which a State or other organization is governed.

5
Njoya and Others v. Attorney General and Others, (2004) LLR 4788 (HCK).

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  Sir John Laws (1996) described a Constitution as ‘that set of legal rules
which governs the relationship in a State between the ruler and the
ruled’.6
 According to King as quoted by Alder John, ‘a Constitution is the set of
the most important rules that regulate the relations among the different
parts of the Government of a given country and also the relations
between the different parts of the Government and the people of the
country.’7
 According to Gilchrist, a Constitution of a State is that body of rules or
laws, written or unwritten which determine the organisation of
Government, the distribution of powers to the various organs of
Government and the general principles on which these powers are to be
exercised.
 When these principles are written down into a single document or set of
legal documents, those documents may be said to embody a written
constitution; if they are written down in a single comprehensive
document, it is said to embody a codified constitution. In other words, a
‘Constitution’ is a fundamental law, written or unwritten:
a) that establishes the character of a Government by defining the basic
principles to which a society must conform;
b) by describing the organization of the Government and regulation,
distribution, and limitations on the functions of different Government
Departments; and
c) by prescribing the extent and manner of the exercise of its sovereign
powers.

6
Alder John, General Principles of Constitutional and Administrative Law 3, 4th edn., (New York: Palgrave Macmillan, 2002).
7
Alder John, General Principles of Constitutional and Administrative Law 4, 4th edn., (New York: Palgrave Macmillan, 2002).

17
  The Constitution is the primary contract or law by which the Government
of a nation or State is set out and organized.
 A Constitution is a set of fundamental legal-political rules that:
a) are binding on everyone in the State, including ordinary lawmaking
institutions;
b) concern the structure and operation of the institutions of Government,
political principles and the rights of citizens;
c) are based on widespread public legitimacy;
d) are harder to change than ordinary laws (e.g., a two-thirds majority
vote or a referendum is needed);
e) as a minimum, meet the internationally recognized criteria for a
democratic system in terms of representation and human rights.
 Aristotle postulated three basic forms of a Constitution:
a) Monarchy which provides authority;
b) Aristocracy (literally Government by the ‘best’ people) which
provides wisdom; and
c) Democracy which provides power.8
 Statutory Meaning: The term ‘Constitution’ is not defined under Article
260 of the Constitution of Kenya, 2010.
 Constitutions may be classified in various ways i.e., a) Written and
Unwritten, b) Republican and Monarchical, c) Presidential and
Parliamentary, d) Rigid and Flexible Constitutions.

 The supremacy of the Constitution as source of law is manifested in

various ways:
a) All other laws derive their validity from the Constitution
8
Alder John, General Principles of Constitutional and Administrative Law 6, 4th edn., (New York: Palgrave Macmillan, 2002).

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 b) It proclaims its supremacy. Article 2 of the Constitution of Kenya,
2010 clearly states that it is the supreme law of the Republic and binds
all persons and all State organs at both levels of Government.
Moreover, the validity or legality of the Constitution is not subject to
challenge by or before any Court or other State organ. Besides, any
law, including customary law, that is inconsistent with the
Constitution is void to the extent of the inconsistency, and any act or
omission in contravention of the Constitution is invalid.
The phrase “any other law” used in Article 2 of the Constitution was
interpreted in Republic v. Okunda and Another, (1970) to mean any
other law be it international or national. In this case, the High Court
was called upon to determine which law was superior between the
Constitution of Kenya and the Official Secrets Act of the East African
Community. The Court was of the view that Section 3 places beyond
doubt the pre-eminent character of the Constitution.
ii. Legislations: This is law enacted by Parliament directly in exercise of the
legislative power conferred upon it by the Constitution of Kenya, 2010. The
product of Parliament’s legislative process is an Act of Parliament e.g., the
Criminal Procedure Code, Cap.75 which must be consistent with the
Constitution.
Section 3 (1) (b) of the Judicature Act, Cap.8 recognizes Legislation or
Statues Law as a source of law in Kenya by use of the words “all other
written laws”. These words encompass:
a) Acts of the Parliament of Kenya;
b) certain Acts of the United Kingdom Parliament applicable in Kenya;
c) certain Acts of the Indian Parliament applicable in Kenya, and
d) Acts of the Legislative Council.
19
 iii. Delegated legislation: Even though the Constitution of Kenya, 2010 rests
the legislative power of the Republic in Parliament, Parliament delegates its
legislative power to other persons and bodies. Delegated legislation also
referred to as Subsidiary/Subordinate Legislation is law made by Parliament
indirectly.9 Parliament delegates law making powers to other persons and
bodies for various reasons:
a) Parliament is not always in session.
b) Parliament is not composed of experts in all fields.
c) Inadequate parliamentary time.
d) Parliamentary law-making process is slow and unresponsive to urgent
needs.
e) Parliament lacks the requisite flexibility.
f) Increase in social legislation.
Delegated legislation consists of rules, orders, regulations, notices,
proclamations, etc., made by subordinate but competent bodies e.g.:
a) Local Authorities that make by-laws applicable within their
administrative area.
b) Professional Bodies such as Law Society of Kenya that make rules,
orders, regulations, notices, etc.
c) Statutory Boards.
d) Government Cabinet Secretaries that make rules, orders, regulations,
notices, etc.
Such bodies make laws in exercise of delegated legislative power conferred
upon them by Parliament through an Enabling or Parent Act.
Characteristics of delegated legislation:

9
Delegated legislation is described as a “necessary evil or a Constitutional impropriety.” This is because it interferes with the doctrine of
separation of powers which provides that the Law-making is a function of the legislature.

20
a) All delegated legislation are made under the express authority of an Act
Parliament.
b) Unless otherwise provided, delegated legislation must be published in the
Kenya Gazette before coming into force.
c) Unless otherwise provided, delegated legislation must be laid before
Parliament for approval, and
d) Parliament is empowered to declare delegated legislation null and void
by a resolution to that effect whereupon it becomes inoperative to that
effect.
Advantages of delegated legislation:
a) Compensation of last parliamentary time: Since Members of Parliament
are not always in the National Assembly/Senate, the law-making time
lost is made good by the delegates to whom legislative power has been
given hence no time is lost.
b) Speed: Law-making process by Government Cabinet Secretaries,
Professional Bodies etc., is faster and responds to urgent needs.
c) Flexibility: The procedure of law-making by delegates e.g., Government
Cabinet Secretaries is not tied to rigid provisions of the Constitution or
other law. The Cabinet Secretaries enjoys the requisite flexibility in the
law-making process. They are free to consult other persons.
d) Technicality of subject matter: Generally, Parliament is not composed of
experts in all fields, it is thus desirable if not inevitable to delegate law-
making powers to experts in the respective fields e.g., Government
Ministries and Local Authorities.
Disadvantages of delegated legislation:

21
 a) Less democratic: Compared to Statute Law, delegated legislation is less
democratic in that it is not always made by representatives of the people
affected by the law.
b) Difficult to control: The enormous growth of delegated legislations has
made it impossible for Parliament to watch over them. Neither
Parliament nor Courts of law can effectively control delegated legislation
by reason of their inherent and operational weakness.10
c) Inadequate publicity: Compared to Statute Law, delegated legislation
attracts minimal publicity if any. These laws are to a large extent
unknown.
d) Sub-delegation and abuse of power: Delegates upon whom law making
has been delegated by Parliament often sub-delegate to other persons
who make the law. Sub-delegation compounds the problem of control
and many lead to abuse of power.
e) Detailed and technical: It is contended that in certain circumstances,
delegated legislation made by experts is too technical and detailed for the
ordinary person.
iv. Statutes of general application: The term ‘Statutes of General Application’
is a phrase used to describe certain Statutes enacted by the United Kingdom
Parliament to regulate the inhabitants of United Kingdom generally i.e., the
Infants Relief Act, 1874, the Married Women Property Act, 1882 and the
Factors Act, 1889. The Statutes are recognized as a source of Law in Kenya
by Section 3 (1) (c) of the Judicature Act, Cap.8. However, there application
is restricted in that they can only be relied upon:
a) in the absence of an Act of Parliament of Kenya;
b) if consistent with the provisions of the Constitution of Kenya, 2010;
10
See, Professor William Wade, Administrative Law.

22
 c) if the Statute was applicable in England on or before the 12 th August
1897, and
d) if the circumstances of Kenya and its inhabitants so permit.
It may be noted that Statutes of General Application that have been repealed
in the United Kingdom are still applicable in Kenya unless repealed by the
Kenyan Parliament.
v. Common law: It is a branch of the Law of England which was developed by
the Ancient Common Law Courts from customs, usages and practice of the
English people. The Courts (particularly the Court of Kings Bench, Court of
Exchequer and the Court of Common Pleas are credited for developing
Common Law) relied on customs to decide cases before them thereby giving
such customs the force of law. The Courts standardized and universalized
customs which they applied in dispute resolution. Initially, Common Law
was a complete system of rules both in criminal and civil.
Characteristics of Common Law:
a) Writ system: In application of Common Law, actions or cases were
commenced by a writ obtained from the Royal Office. There were
separate writs for separate complaints. A Writ stated the nature of the
complaint and commanded the Police Officer of the country in which the
defendant resided to ensure that s/he appeared in Court on the mentioned
date.11
b) Doctrine of stare decisis: This is a system of administration of justice
whereby previous decisions are applied in subsequent similar cases. 12 In
other words, Common Law consists of decisions handed down by Courts
of law on the basis of customs and usages and may be described as the

11
Often, Police Officers demanded bribes to compel the defendant appear in court and would not compel an influential defendant.
12
Stare decisis literally means “decision stands” or “stand by the decision.”

23
 English Customary Law. At Common Law, a Judge having once decided
a case in a particular manner had to decide all subsequent similar cases
similarly. This made the Common Law system rigid.
Disadvantages of Common Law:
a) Writ System: The writ system did not recognize all possible complaints
and many-would-be plaintiffs could not access the Courts. Besides, it
lengthened the judicial process and encouraged corruption.
b) Rigidity/inflexibility: The Common Law Courts applied the doctrine of
stare decisis. This practice rendered the legal system rigid and hence
unresponsive to changes.
c) Procedural technicalities: The Common Law procedure of
administration justice was highly technical. Common Law Courts paid
undue attention to minor points of procedure and many cases were often
lost on procedural matters.
d) Delays: The administration of justice at common Law was characterized
by delays. Defendants often relied on standard defenses to delay the
course of justice. These defenses were referred to as essoins and
included: being out by floods, being unwell or being away on a crusade.
If sickness was pleaded, the case could be adjourned for 1 year and 1 day.
e) Non-recognition of trusts: Common Law did not recognize the trust
relationship. This is an equitable relationship whereby a party referred to
as a trustee, expressly, impliedly or constructively holds property on
behalf of another known as beneficiary. At Common Law beneficiaries
had no remedies against errant trustees and trustees had no enforceable
rights against beneficiaries.

24
 f) Inadequate remedies: Common Law Courts had only one remedy to offer
namely monetary compensation or damages. They could not compel
performance or restrain the same.
g) Inadequate protection of borrowers: At Common Law, a borrower who
failed to honour his contractual obligations within the contractual period
of repayment would lose not only his security but the total amount paid.
vi. Equity: The Law of Equity is one area of law that was founded upon the
principles of fairness and conscience. Its piecemeal development, which can
perhaps be traced to England,13 took place as a direct result of the injustices
often caused by a strict application of the Common Law. 14 The Law of
Equity which was developed as a modification to the Common Law often
steps in and grants relief to a party whose trust has been breached or whose
disadvantage has been used to the advantage of another.15
The term ‘equity’ has a technical and non-technical meaning:
 Non-technical (ordinary) meaning: Equity implies fairness, justice,
morality, equality, etc.
 Technical meaning: Equity is a body of rules, principles, procedures and
Courts distinct from the Common Law which were administered
exclusively by the English Court of Chancery16 to correct/mitigate and

13
“Equity Law”, https://en.wikipedia.org/wiki/Equity_%28law%29, [accessed on 22nd May 2019].
14
Meagher, Gummow and Lehane, Equity: Doctrines and Remedies 259, 3rd edn., (Butt, 1992); “The Nature and History of Equity”,
http://www.findlaw.com.au/articles/138/the-nature-and-history-of-equity.aspx, [accessed on 22nd May 2019]. ‘Common law’ here means the part
of English law that is derived from custom and judicial precedent rather than Statutes. It evolved chiefly from three English Crown Courts of the
12th and 13th centuries i.e., the Exchequer, the King's Bench, and the Common Pleas. Common-law Courts base their decisions on prior judicial
pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how
the law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide
them in applying the law. Under the doctrine of stare decisis, common-law judges are obliged to adhere to previously decided cases, or
precedents, where the facts are substantially the same. A Court's decision is binding authority for similar cases decided by the same Court or by
lower Courts within the same jurisdiction. The decision is not binding on Courts of higher rank within that jurisdiction or in other jurisdictions,
but it may be considered as persuasive authority. The unique feature of the common law model is the dualism which is inherent in the legal
system, see, Farlex, Common Law, The Free Dictionary, available at http://legal-dictionary.thefreedictionary.com/common+law.
15
Meagher, Gummow and Lehane, Equity: Doctrines and Remedies 259, 3rd edn., (Butt, 1992); “The Nature and History of Equity”,
http://www.findlaw.com.au/articles/138/the-nature-and-history-of-equity.aspx, [accessed on 22nd May 2019].
16
Chancery of Court was a Court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible
harshness or inequity of the Common Law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration
of the estates of lunatics and the guardianship of infants, see, “Chancery of Court”, https://en.wikipedia.org/wiki/Court_of_Chancery, [accessed
on 22nd May 2016].

25
 supplement the Common Law prior to the enactment of the Supreme
Court of Judicature Acts of 1873 and 1875.17
Equity may also be referred to as a name given to a set of rules that
traditionally supplement the Common Law where the application of such
law operates too harshly.18 This is mainly meant to achieve what is referred
to as natural justice or fairness19 and to provide for more adequate remedies.
In Anglo-American legal system, ‘equity’ refers first to a specific set of rules
governing a limited set of remedies and causes of action, second, to a
principled approach to resolving legal disputes in order to avoid unjust
results as a matter of law.20
Equity therefore is based on a judicial assessment of fairness as opposed to
the strict and rigid rule of Common Law. However, the Supreme Court of
the United States has in the International Salt case21 observed that District
Courts, in the framing of equitable decrees, are clothed with large discretion
to model their judgments to fit the exigencies of a particular case before the
Court. Equity is thus informed by: a) conscience, b) discretionally and
remedial, and c) the result of a long historical process.
The development of equity is traceable to the early petitions to the King by
persons dissatisfied with the Common Law. At first, the King heard the
petitions and decided the dispute between the parties on the basis of what he
thought was fair. He was overwhelmed by the petitions whereupon he
established the office of the Lord Chancellor who would hear the petitions.
More offices of the Lord Chancellor were established due to the number of
17
The Supreme Court of Judicature Acts merged the Common Law Courts and the Chancery Courts giving both power to make decisions based
on both equity and Common Law even though substantive norms/principles remained distinct.
18
It can therefore be noted that the Law of Equity developed when litigants would go to the King and complain of harsh or inflexible rules of
Common Law that prevented justice from prevailing.
19
Common Law v. Equity, TransLegal, 2015, available at https://www.translegal.com/legal-english-lessons/common-law-vs-equity.
20
Sheppard Steve, Equity and the Law, UNESCO-EOLSS Sample Chapters, available at http://www.eolss.net/sample-chapters/c04/e6-31-03-
02.pdf.
21
International Salt v. United States, 332 US 392, 1947.

26
 petitions. The Lord Chancellor decided all petitions on the basis of the
principle of fairness. Administration of justice was fast and the writ system
was not applicable. However, the decisions handed down by the Lord
Chancellor were not legally binding as the Lord Chancellor was not legally
trained. It was not until the beginning of the 16 th century that the Lord
Chancellors offices were held by legally trained persons and the decisions
they made had the force of Law. The decisions are what are referred to as
the Doctrines of Equity. The administration of justice by Equity Courts was
flexible and not tied to the doctrine of stare desicis. The Courts had move
remedies to offer and had no technicalities of procedure. There were no
guiding principles and as a consequence many inconsistent decisions were
made hence “equity varied with the length of the foot of the chancellor.” To
enhance consistency in decision making, the Lord Chancellors Courts:
a) developed a set of guiding principles referred to as Maxims of Equity22
which are generally guidelines/statements which embody rules of equity,
and
b) adopted the doctrine of stare decisis.
vii. Judicial Precedents/ Stare Decisis/Case Law/Judge-Made Law:
Judges make law when they formulate (enunciate) principles or propositions
where none existed or in doubtful situations which are relied upon as law in
subsequent similar cases. It is to the effect that each Court in the judicial
hierarchy is bound by principles established by decisions of Courts above it
in the hierarchy and Courts of co-ordinate jurisdiction are bound by their
22
The Maxims of Equity include: a) He who seeks equity must do equity - This maxim means that a person who is seeking the aid of a Court of
Equity must be prepared to follow the Court's directions, to abide by whatever conditions it gives for the relief, b) He who comes to equity must
come with clean hands - This scenario was summed up in the case of Jones v. Lenthal (1669) as “He who has committed inequity shall not have
equity,” c) Equity is equality (Equality is equity), d) Equity looks to the intent or substance rather than the form, e) Equity looks upon as done
that which ought to be done, f) Equity imputes an intent to fulfill an obligation - If a person is under an obligation to perform a particular act and
he does some other act which is capable of being regarded as a fulfillment of this obligation, that other act will prima facie? be regarded as
fulfillment of the obligation, g) Equity acts in personam, h) Equity will not assist a volunteer (Equity favour’s a purchaser for value without
notice), i) Equity will not suffer a wrong to be without a remedy (Where there is a wrong there is a remedy for it) Ibi jus ibi remedium, j) Equity
does not act in vain, k) Delay defeats equity, l) Equity aids the vigilant and not the indolent (Vigilantibus non dorminentibus jura subveniunt).

27
own previous decisions if the two cases have similar material facts. Case
law, recognized as a source of law of Kenya by Section 3 (1) (c) of the
Judicature Act, Cap.8 is only a source of law where the cases have similar
legal points.
An earlier decision of a Court is referred to as a precedent if it contains a
principle of law. The principle or proposition formulated by a Judge is
referred to as ratio decidendi which literally means reason for decision.
Such principle or proposition of law must be based on the material facts of
the case and it disposes off the case before the Court and has a binding force.
Obiter dicta: These are by the way statements of law or facts made by a
Judge in the course of judgment. They do not dispose off the case before the
Court nor do they have a binding force. However they may be relied upon by
advocates as persuasive authority in subsequent cases.

Precedents may be classified in various ways:

a) Original precedents: This is a principle or proposition of law as
formulated by the Court. It is the law-creating precedent.
b) Declaratory precedent: This is the application of an existing principle of
law in a subsequent similar case.
c) Binding precedent: This is an earlier decision which binds the Court
before which it is relied upon i.e., a precedent of the Court of Appeal
used in the High Court.
d) Persuasive precedent: This is an earlier decision relied upon in a
subsequent case to persuade a Court to decide the case in the same
manner e.g., a High Court decision used in a Court of Appeal, or a
decision handed down by a Court in another country.

28
e) Distinguishing precedent: This is a subsequent decision of a Court which
effectively distinguishes the earlier precedents. It is a precedent in its
own right.
In Dodhia v. National and Grindlays Bank Co. Ltd., (1970), the Court of
Appeal for Eastern Africa lay down the following principles on the
applicability of Case Law or Judicial Precedent in East Africa:
a) Subordinate Courts are bound by decisions of superior Courts.
b) Subordinate Courts of appeal are bound by their own previous decision.
c) As a matter of judicial policy, the Court of Appeal as the final Court (by
then) should while regarding its own previous decisions as binding be
free in both criminal and civil cases to depart from them whenever it
appeared right to do so.
The Court may however, refrain from a binding precedent i.e., by ignoring
an earlier Court decision in the following circumstances:
a) Distinguishing the case: This is the art of showing that the earlier
decision and the subsequent case relate to different material facts. This
enables a Judge to ignore the precedent.
b) Establishing change in circumstances: A Judge may refrain from an
earlier decision of another Judge if circumstances have changed so much
so that its application would be ineffectual i.e., the decision no longer
reflects the prevailing circumstances.
c) Per incurium: It literally means ignorance/forgetfulness. An earlier
decision may be departed from if the Judge demonstrates that it was
arrived at in ignorance or forgetfulness of law i.e., the Court did not
consider all the law as it existed at the time.

29
d) Over-rule by statutes: If a precedent has been over-ruled by an Act of
Parliament, it ceases to have any legal effect as Statute Law prevails over
Case Law.
e) Where an improper conviction is established: In R. v. Kagwe, (1950) it
was held that a Court may refrain from a binding precedent if its
application is likely to perpetuate an incorrect, erroneous or improper
conviction in a criminal case.
f) Others: Where the earlier decision is inconsistent with a fundamental
principle of law, or if the ratio decidendi of the previous decision is too
wide or obscure, or if the ratio decidendi relied upon is one of the many
conflicting decisions of a Court of co-ordinate jurisdiction.

Advantages of Case Law:

a) Certainty and predictability: Stare decisis promotes certainty in law and
renders a legal system predictable. In Dodhia’s case, the Court of Appeal
was emphatic that a system of law requires a considerable degree of
certainty.
b) Uniformity and consistency: Case law enhances uniformity in the
administration of justice since cases are decided alike.
c) Rich in detail: Stare decisis is rich in detail in that many decisions which
are precedents have been made by Courts of law.
d) Practical: Principles or propositions of law are formulated by superior
Courts on the basis of prevailing circumstances hence the law manifests
such circumstances.

30
 e) Convenience: Case law is convenient in application in that Judges in
subsequent cases are not obliged to formulate the law but to apply the
established principles.
f) Flexibility: It is contended that when Judges in subsequent cases attempt
to distinguish earlier decisions as to justify departing from them, this in
itself renders the legal system flexible.
Disadvantages of Case Law:
a) Rigidity: Strict application of stare decisis renders a legal system rigid
and this generally interferes with the development of law.
b) Bulk and complexity: Since stare decisis is based on judicial decisions
and many decisions have been made, it tends to be bulky and there is no
index as to which of these decisions are precedent. Extraction of the ratio
decidendi is a complex task.
c) Piece - meal: Law-making by Courts of law is neither systematic nor
comprehensive in nature. It is incidental. Principles or propositions of
law are made in bits and pieces.
d) Artificiality in law (over-subtlety): When Judges in subsequent cases
attempt to distinguish indistinguishable cases, they develop technical
distractions or distinctions without a difference. This makes law artificial
and renders the legal system uncertain.
e) Backward-looking: Judges or Courts are persuaded/urged to decide all
cases before them in a manner similar to past decisions. It is contended
that this practice interferes with the ability of a Judge to determine cases
uninfluenced by previous decisions.
viii. Muslim Law: It is a subsidiary source of law of Kenya based on:
a) the Muslim book Quran and the teaching of Prophet Mohammed
contained in his sayings known as Hadith;
31
 b) Article 170 of the Constitution of Kenya, 2010 and Section 5 of the
Kadhi’s Court Act, Cap 11.
The jurisdiction of a Kadhis’ Court is limited to the determination of civil
questions of Muslim Law relating to personal status, marriage, divorce or
inheritance in proceedings in which all the parties profess the Muslim
religion and submit to the jurisdiction of the Kadhi’s Courts.23
In Kristina d/o Hamisi v. Omari Ntalala and Another, the parties were
married under Christian law. Subsequently, the husband changed his faith
and married another woman under Islamic law. In a divorce petition, the first
respondent argued that the second respondent was his wife under Islamic
law. The issue was whether Islamic Law was applicable in the divorce? It
was held that since the parties were married under Christian Law, Islamic
Law was not applicable and the divorce petition was granted.
ix. Hindu Law: It is a subsidiary source of law of Kenya based on the:
a) Hindu faith and philosophy;
b) Hindu Marriage and Divorce Act and the Hindu Succession Act.
It only applies in the determination of civil cases relating to marriage,
divorce, succession or personal status in proceedings in which all parties
profess Hindu faith.
x. African Customary Law: Section 3(2) of the Judicature Act, Cap. 8
recognizes African customary law as a source of law which embodies a
principle of utility or justice based on the customs usages and practices of
the various ethnic groups in Kenya. African Customary Law:
a) is applicable in civil cases in which one or more of the parties to the
proceedings is bound by it or affected by it so far it is applicable and is
not repugnant to justice and morality or inconsistent with any written
23
Art.170(5), the Constitution of Kenya, 2010. See, Bakshuwen v. Bakshuwen (1949).

32
 law. Such case may relate to: i) land held under customary tenure, ii)
marriage, divorce, maintenance or dowry, iii) seduction or pregnancy of
an unmarried woman or girl, iv) enticement of or adultery with a married
woman, v) matters affecting personal status and in particular the status of
women, widows and children including custody, adoption, legitimacy,
etc., vi) intestate succession and the administration of intestate estates not
governed by written law.24 In Maria Gisese d/o Angoi v. Marcella
Nyomenda, (1981), the High Court sitting in Kisii held that the Gusii
custom which permitted a woman to marry another in certain
circumstances was repugnant to justice and morality.
b) can only be relied upon as a guide. Courts are not bound to rely on any
rule of custom. And as such, they have discretionary power to decide
whether or not to rely on a particular rule of custom.
Customs are by their nature local and not every rule of local customs is
relied upon by a Court of law in the settlement of a dispute. For a custom to
be relied upon as law, it must have the following characteristics:
a) Reasonableness: A good local custom must be reasonable i.e., it must be
consistent with the principle of justice. Whether or not a custom is
reasonable is a question of fact is to be determined by the Courts.
b) Conformity with the Constitution and Statute Law: A local custom must
be consistent with the Constitution and Parliament-made law. This is
because Parliament is the principle law-making body and has
Constitutional power to disqualify the application of any rule of custom.
c) Observation as of right: A good local custom is that which a society has
observed openly and as of right i.e., not by force or by stealth nor at will.

24
See, S.2, the Magistrates’ Court Act, Cap.10. In Kamanza Chimaya v. Tsuma, (1981), the High Court held that the list of disputes outlined by
Section 2 of the Magistrates’ Court Act was exhaustive.

33
 d) Immemorial antiquity: A custom must have been observed since time
immemorial.
In Kamani v. Gikanga, the Court held that the party relying on a particular
rule of custom must prove it in Court by adducing evidence unless the
custom is a matter of public notoriety in which case the Court takes judicial
notice of the custom without any evidence.
xi. Books of authority: Up until the 20th century, English Judges felt able to
examine certain "books of authority" for guidance and both Coke and
Blackstone were frequently cited in their judgments. Notable legal authors
are cited, even if they are dead or still alive.

34
ELEMENTS OF CRIME
Contents of a crime:
A) Actus Reus
This refers to all external elements of a crime and includes all parts of an offence except
those related to the accused person’s state of mind. They include conduct, voluntariness,
causation, etc.

Some crimes do not require proof of any consequence e.g. [dangerous driving] and are
sometimes termed as conduct crimes.

Those which require proof of consequence are sometimes called result crimes e.g.
[causing death by dangerous driving, obtaining property by deception].

1. Conduct
A criminal conduct takes the form of act or omission to act. For a person to be
held criminally liable for an omission there must be a duty imposed on him affirmatively.

Automatism occurs where the defendant performs physical act but is unaware of
what he is doing or he is not in control of his action because of some external factors.
Reflex action. Sometimes people can respond to something with spontaneous reflex
action over which they have no control.

Physical force Conduct may be involuntary in that it is physically forced by someone

else in which case there will be Actus Reus.

2. Omission

The rule is that there can be no liability for failing to act unless at the time of failure the
defendant was under legal duty to take positive action
35
Duty arising from statues. Liability imposed where the defendant can be shown to have
been under a statutory duty to take a positive action. It is an offence to neglect a child by
failing to provide food or taking care of the child.

Duty arising from contract: Criminal liability can be formed against a person who is
under duty in a contract and has failed to do so.

Voluntary assumption of responsibility .If someone assumes voluntary responsibility

for another they would be liable for omissions which prove fatal.

3. Events or state of affairs.

In some offences, no act or omission is required. Instead the offences require

the occurrence of an event in which the accused is involved. Eg

_Events with respect to being in possession of s/thing

_Being in certain state and being in a prohibited place or event etc.

4. Surrounding circumstances

5. Consequences or events

6. Causation

B) MENS REA
A person is not criminally liable for his act or omission unless it is proved that he had a
blameworthy state of mind at the time of the act. Offences that do not require proof of
men’s rea also known as strict liability e.g. possession of drugs or ivory.

Elements of Men’s Rea

1. Intention

Criminal intents mean mental resolution or determination to commit a crime. Intent has
nothing to do with the defendant’s conscience, desire, motive, or emotion but dealing
with thoughts that result to guilty mind.

2. Recklessness

It is the conduct whose actor doesn’t desire harmful consequence but nevertheless
foresees the possibility of harm and knowingly takes the risk. It means taking

36
unjustifiable risk and also defines that state of mind in which someone does not care
about the consequences of their actions.

Objective recklessness means not having known or thought of the risk but as reasonable
person ought to have known.

Subjective recklessness means the conscious taking of an justifiable risk the accused will
have given thought to the risk, recognized it but gone on to take it.

3. Negligence

This is the failure to achieve a standard of conduct expected of a reasonable person. The
accused person would be held negligent whether or not he is aware of the risk of his
failure to achieve the standard. Negligence may also be basis of liability in the offences
of involuntary manslaughter.

In the case of R V Lamb. The accused pointed a loaded gun at a friend in jest. Both of
them did not understand the mechanism of the gun and so they thought that there was no
risk. The accused proceeded to point the trigger and shot the friend dead, at his trial the
accused defense was that he reasonably and honestly thought that there was no danger
and therefore did not have men’s Reus for murder. The court held that the accused person
view that there was no danger was formed in a criminal negligent way.

4. Blameless inadvertence /moral innocence

Where the accused person does not intend a consequence or is not aware of the risk of
its occurrence and even a reasonable man would have not been aware of the risk
occurrence, then we say the accused had a blameless inadvertent to the occurrence of the
consequence.

STRICT LIABILITY (students’ assignment)

An offence is of strict liability if it is not necessary for the prosecution to prove intention,
recklessness or negligence in relation to one or more elements.

37
GENERAL RULES RELATING TO CRIMINAL RESPONSIBILITY

1. Presumptions

Presumptions are facts assumed to be true under the law i.e. a criminal defendant is
presumed to be innocent until the prosecution proves beyond reasonable doubt that he/she
is guilty. Presumptions are used to relieve a party from having to actually prove the truth
of the fact being presumed.

A.Rebuttabble presumption of law

It is an assumption made by a court and one that is taken to be true unless someone
comes forward to contest it and prove otherwise.i.e the defendant in criminal case is
presumed innocent until proven guilty.

B. Irrebuttable presumption of law

It is also known as conclusive presumption. Conclusive presumption is a presumption

of the law that cannot be rebutted by evidence and must be taken to be the case
whatever the evidence to the contrary .i.e a child cannot below the age of criminal
responsibility cannot be held legally responsible for his/her actions and so cannot be
convicted of committing a criminal offence.

C.Rebuttable presumption of fact

In law of evidence, a presumption of a particular fact can be made without the aid of
proof in some situations.

The invocation of presumptions shifts the burden of proof from one party to the opposing
party in a court of appeal.

2. Ignorance of the law

It is a legal principle holding that a person who is unaware of a law may not escape
liability for violation of that merely because he/ she were unaware of its content.

38
The law imputes knowledge of all laws to all persons within the jurisdiction no matter
how transiently. In criminal law although ignorance may not clear a defendant of guilt, it
can be a consideration in sentencing, particularly where the law is unclear or the
defendant sought advice from law enforcement or regulatory officials.

3. Bona fide or claim of right

An accused person must call evidence to raise the defense of claim of right .However,
once the accused person discharges the evidentiary onus, the prosecution must then
negate the defense of claim of right beyond reasonable doubt.

The principles are as follows

The claim must be one that involves a belief as to the right to the property or money in
hands of another.

The claim must be genuinely, that is, honestly held ~whether it was well founded in fact
or law or not.

While the belief does not have to be reasonable, a colorable presence is insufficient. The
belief must be one of legal entitlement to the property and not simply a moral entitlement

4. Acts independence of the will

The doctrine of the acts independence significance common law permits a testator to
effectively change the disposition of his property without changing a will, if acts
changing the disposition have some significance beyond avoiding the requirement.

5. Accidents

A person is no criminally responsible for an event which occurs by accident, the

elements of this defense are the event that is, the consequence of the act committed or
omission made by the defendant must not be intended by the defendant. The event must
have not have been easily able to have been foreseen by the defendant and any ordinary
person shouldn’t have easily foreseen the event.

39
6. Oblique results

A person has oblique intent when event is natural consequence of a voluntary act and
they foresee it as much.

7. Motive

Motive is when a crime is committed not as an end itself but for some underlying
reasons.

I.e. D kills V in order to inherit, money his motive is to acquire the inheritance.
Motive forms no part of the elements of the offence.

8. Mistake of fact

A defendant’s plea of mistake is either a denial of men’s Reus or an assertion that

had the facts been as he believed them to be; he would have had a defense to the crime
with which he is charged.

9. Insanity

A person is not criminally prosecuted as at the time of committing the crime he was of
unsound mind incapable of knowing what he ought not to do. The general rule is that
everybody is presumed sane until contrary is proven.

10. Intoxication

Where the accused pleads he was so intoxicated that he could not have malice afore
thought for murder he is convicted for manslaughter instead of murder.

11. Compulsion

Legally a person cannot be accused of committing a crime if he or she was

compelled to commit the crime instead the compeller is prosecuted as he who committed
the crime while the compeller is prosecuted as an accessory to the crime.

40
12. Immature age

A person cannot be criminally prosecuted if he or she has not attained the legal age

He/she is prosecuted as a minor in the children’s court

The Kenya penal code

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

A person under the age of twelve years is not criminally responsible for an or omission,
unless it is proved that at the time.

A male person under the age of twelve years is presumed to be incapable of having carnal
knowledge.

13. Defence of person or property

Section 4 of the constitution states.

No person shall be deprived of his life internationally save in execution of the sentence of
a court in respect of a criminal offence under the law in force in Solomon islands of
which he was convicted.

A person shall not be regarded as having been deprived of his life in contravention of
this section if he dies as a the result of the use, to such extent and in such circumstances
as are permitted by the law of such force as is reasonably justifiable.

BURDEN AND STANDARD OF PROOF

A) General Principle

The issue of burden of proof is a matter of evidence, it is stated in Republic v

Subordinate court of the first class magistrate of city hall that when a person

Is bound to prove existence of any fact .It is the law that the burden of proof lies on that
person. This matters are dealt with in section 107,108, 109; and 110 of the Evidence Act.

According to section 107(1):the burden is on a party who desires any court to give
judgment as to any legal right or liability dependent on the existence of facts which he
41
asserts to prove the existence of those acts. Section 107 (2): that when a person is bound
to prove the existence of certain fact the burden of proving that fact is on that person.

Section 109: places the burden of proving the existence of any particular fact on the
person who wishes the court to believe in it existence unless it is provided by any law
that the proof of that fact lies on any particular. Section 110: places the burden of proof of
admissibility of evidence on the person who asserts that such evidence is necessary.

The general rule in criminal cases is that the burden of proof rests throughout with the
prosecution usually the state founded on the maxim that he who alleges must prove.

The principal burden is on the accuser and in criminal cases the accuser is the
prosecution.i.e the state. Since the burden of lies throughout on the state , the accused
has no b burden or onus of proof except in a few cases.

In republic v subordinate court of the first class magistrate at city hall, it was held that the
burden can be shifted where the law, pursuant to section 109 of the Evidence Act
provides for it. This can be done by parliament by a law shifting the burden of proving
certain facts and the same is not a constitutional issue where any such other law provides
for it.

b) Exceptions of the general burden

Though the general rule is that the burden of proving the accused guilty is always on
the prosecution there are some situations where this burden shifts to the accused.

1. Defense of insanity

Where the accused person pleads the defense of insanity the burden of proving such
insanity is on him .However the standard of proof is lower than on the prosecution.
Section 11 of the penal code is that every person is presumed sane until contrary is
proved.

The accused would incur a similar burden where he pleads the defense of intoxication
causing temporary insanity.

Godiyano Barongo v Rugwire 1952

It was stated that the burden resting on the accused when attempting to rebut a natural
presumption which must prevail unless the contrary is proved will never be so heavy as
that which rest upon the prosecution to prove the facts which they have to establish and it

42
will not be higher than the burden which rests on the plaintiff or defendant in civil
proceedings.

2. Burden on the state

The burden on the state is to prove the charge against the accused beyond reasonable
doubt.

The state has to prove that the accused has committed the Actus Reus .the standard of
proof is beyond reasonable doubt. The state has to discharge the burden of proof on any
given issue and losses on that issue if upon the evidence a doubt is created in the mind of
the court. It is resolved on the favor of the accused person since the state has failed to
prove beyond reasonable doubt as the accused person is innocent until proved guilty.

The law also allows the accused person to remain silent thought his trial and the
prosecution should not prove him innocence.

In the case of Mbugua Kariuki v the republic, it was held that the burden of proof remains
on the state throughout to establish the case against the accused beyond reasonable doubt.

3. Burden on the accused

The burden of proof rest always with the prosecution .in Kioko v the republic (1983)
it was held that the law does not require the accused to prove his innocence. It is only in a
few exceptional cases that the accused is burdened with proof.

The standard of proof where the burden of proof is on the accused is on the balance of
probability.

Section 111 of the Evidence Act places the burden of proof on the accused person in
certain cases where the accused alleges existence of certain circumstances bringing the
case within any exception to the operation of the law creating the offence with which he
is charged the burden of proving any fact especially within his knowledge.

c) Statutory burden on the accused

A statute may expressly place a burden upon the accused to prove a certain fact.

43
Section 111 of the Evidence Act, does not apply to cases where the burden of proof is
placed on the accused by the statute.

Section 323 of the penal code, which creates the offence of having or conveying
suspected stolen property, casts the burden of proof on the accused of satisfying the court
how he came by the property.

Section 29 of the Weight and Measure Act, places the burden of proof on the accused
person found in possession of a measuring instrument to explain that the instrument he is
found in possession of was for use for trade purpose.

Section 3 (2) of the Trespass Act ,places the burden of proof on the accused person once
it is established that he had entered or was on private land to prove that he had reasonable
excuse or the consent of the occupier to enter or to be on the land.

Section 68 of the Narcotic Drugs and Psychotropic Substance Act, places the burden of
proof on the accused with respect to establishing that there existed any license, authority
or other matter of exception or defense. Under this provision there is no burden on the
prosecution to negative any such matter by evidence.

In the case of vithaldas dayabhai lodhia v Regina (1953-19570)

It was held that where the accused is charged with the unlawful possession of
something and the prosecution produces ample evidence to prove that the accused was
found in such possessions the burden shifts to the accused of proving that his possession
was lawful. In this case the appellant was charged with being in unlawful possession of
raw gold contrary to section 8 of the Gold Trading ordinance which states that if any law
gold is found in possession power or control of any person , that person shall unless
proves himself that he obtained it lawfully be guilty of an offence against his ordinance.

d) Negative averment

When there is negative averment which is within the knowledge of the accused
person e.g. trading or driving without license or having guns. The doctrine of recent
possession is applied the burden of proof is cast on the accused to give a reasonable
explanation which may be reasonably true as to how he came into possession of the
goods.

In mbatha v republic 2010 .it was held that an accused person is not required to prove
himself innocent but if he is in a situation where he is found with items which were

44
recently stolen he would be the only person in a position to explain his possession of the
items

In kariuki kamau v reginum it was held that where possession of fire arm is proved
against an accused person the burden of proof is upon him to prove lawful authority or
excuse for such possession.

In the case of Remtullah panju v rex 1943 .it was held that for the offence of being
unlawfully in possession of something the burden of proof is on the accused to show that
he came into possession of the thing lawfully and not upon the prosecution to show that
the accused was knowingly in unlawful possession.

e) Corruption cases

In these cases the accused bears the burden of proving that advantage was not accepted
corruptly.

In the case of Haining v republic 1970.

It was held that the accused must prove on a balance of probability that he did not accept
the advantage corruptly as a reward.

g) Murder cases

In the murder where it established that the accused person was the last person seen
with the deceased. The accused incurs the burden of explaining the circumstances under
which he parted with the deceased, a presumption arises that the deceased knew the
circumstances under which the deceased died.

In the case of Ndunguri v Republic 2001.

Where evidence showed that the appellant was the last person to be seen with the
deceased and that the deceased body was later retrieved from the appellants latrine. This
was a matter of circumstantial evidence where the evidence of the circumstances pointed
to the guilt of the appellant and the court held that the appellant had the burden of
explaining the circumstances under which he and the deceased parted .he was unable to
discharge the burden and his conviction.

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PARTIES TO OFFENCES: Chapter 5 of the Penal Code

INTRODUCTION

A crime may be committed by one person acting in complete isolation or by more than one
person where several persons are involved but they may play different roles.

There are many degrees of participation in commission of offences meaning that the participants
are classified in a number of classes. i.e principal or minor offenders, abettors, inciters,
counselors, procurers, accessories before the fact, accessories after the fact,among others.

Accomplices refer to all the participants in the commission of an individual crime.

PRINCIPAL OFFENDERS

Laws on principal offenders is provided for under sec. 20 of the Penal Code.

 They are the primary participants in the commission of an offence.

They include:

 Person who actually does the prohibited acts or makes the omission which constitutes
the offence.

 The people who do anything or omit to do an act for purpose of enabling or assisting
another person commit an offence.

 The person who aids or abets another in committing the offence

 The person who counsels or procures any other person to commit crime.

Whoever plays any of these roles is a principal offender who will be charged jointly with the
persons who actually carried out the offence.

The penal code treats all the principal offender who will be charged jointly with the persons who
actually carried out the offence equally. I.E all the principal offenders are treated equally and
liable to the same punishment.

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In Wanja Kanyoro Kamau V Republic (1965) EA 501 (Grabbe, Duffus and Spry JJA) It was
stated that a passive attitude while a crime is being committed will not ordinarily make a person
a principal offender.

In George Walter and five other v Republic 1997 LRT 27 (Biron J) held that under the
Tanzanian equivalent to section 20 of the penal code an offence is committed not only by the act
or omission of an offender but also by a person who aids, abets, counsels or procures the
commission of the offence.

In liningushu and others v republic 2005 the second appellant was a widow of the deceased,
she did not actually kill the deceased, but she was the master mind of the crime and she is the
one who procured the actual killers. The third appellant was her daughter who facilitated the
killings, both were held liable to have been principal offenders and convicted as such of murder.

The Secondary offenders refer to those persons who play a lesser role compared to that of the
principal offenders. In this categories of offenders fall such as accessories before and after the
act, aiders, abettors, accomplices, consortees, counselors, procures, and inciters.

However, In Republic v Nyambura and four others (2001) KLR 355 (Etyang J), held that
principal offenders in the first degree are the actual offenders, persons who did the wrongful
deed. Principal offenders in the second degree are abettors and aiders. However the Kenyan
penal code does not make a distinction between the first and second degree it instead groups
them together as principal offenders.

The Penal Code under Sec. 20 does not distinguish between the first degree and second degree
offenders. They are all considered as principal offenders.

JOINT OFFENDERS AND COMMON INTENTION

1. The principle

Section 21 of the penal code deals with the joint offenders and common intention.

This provision envisages two or more people forming a common intention to commit a crime
together and the offence is actually committed whether by one or more of them.

The law treats all involved as joint offenders and each of them is deemed to have committed an
offence.

In maina s/o kimani v reginam (1995) the accused was convicted of being in unlawful
possession of a fire arm .he did not have it on his person but it was carried by a man who
accompanied him and who fired it. The accused admitted that he was in the company of the
armed man and that he knew him to be carrying a pistol.

47
It was held that he was in joint possession of the pistol in terms of the law governing common
intention.

In karani and three others v republic (1991). The first and second appellants had not taken part
in the actual killing of the deceased .the first appellant was present at the scene but did not take
part in the actual killing while the second appellant was not even present. Both were found liable.

The first appellant instigated the hiring of the killers with the second appellant both of them
jointly planned murder, collected and transported to the scene the weapons that were to be used
in the killing.

They were both found to have common intention with the appellants, the actual killer to kill the
deceased.

Refer further to Shiundu S/O Mbakaya and another (1938-1939) 18 KLR and Lekishon Ole
Sang’are alias Lakamondo Ole Sang’are and others V R both on common intention.

2. Premeditated or spontaneous

The common intention may be formed at the very outset or beginning, i.e there may be
premeditated joint plan.

In Rex V Otieno s/o okech and others 1947, three people stole a quantity of articles including a
pistol from a house. They were intercepted by two policemen who had laid an ambush. The
officers challenged them and asked them to submit the articles for inspection but they refused.
The three men consulted amongst themselves and shortly thereafter one of them shot at the
officers killing one of them.

At the trial the men who didn’t have the gun raised an issue of common intention ,arguing that
they were not party to killing of the police officer as they had no intention to kill anyone.

The court held that the two didn’t dissociate themselves with the actions of the man who fired
the pistol; in fact it was them who were speaking forcibly while the gun holder remained silent.

3. Proof of common intention: (mob justice)

Common intention may be proved by direct evidence or inferred from the circumstances.

Section 10 of the Evidence Act, anything said or done or written by any of the persons deemed
to have a common intention in reference to their common intention is relevant evidence of such
common intention. i.e mob justice

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In Rex V Tabulayenka s/o kirya and three others 1943 the court held that where a mob sets
upon a suspected thief and beat him to death every person forming the mob would be liable for
murder. It was stated that it is not necessary that there should have been any concerted agreement
between the arrested persons prior to the attack on the so called thief.

In Rex V Otieno s/o Okech and others 1947 the common intent of the appellant to kill the
policeman was inferred from the association of the appellants their discussion and the act of one
of them immediately after the discussion in firing a shot at each policeman. The shooting of the
policeman was said to be necessary for the common purpose of the appellants which was to get
away with their loot.

4. Passive presence is not sufficient

In Rex V Kingori was Gakuha and another (1946)13 EACA It was pointed out by the court that
mere presence at the time of the commission of the offence does not make a person party to a
crime without his/her participation.

Being a member of a gang involved in unlawful activity may make a person liable for the
consequence unless he dissociates himself from the common purpose.

Acquiescence in the commission of a crime is not sufficient to constitute one principal offender.

In Abubakar Musa Yakubu V R Mombasa CACRA No. 85 of 2000, the accused was convicted
on the strength of sec 20 (as a principle offender) for the mere fact that he was present at the
scene when the thief was being beaten by a mob. On appeal, the court held that mere presence at
the scene of the killing of the deceased does not make sec 20 of the PC applicable.

In zuberi s/o Rashid v R 1997. It was held that the husband had acquiesced in the wife’s murder,
by surrendering his panga to them without any resistance. he had aided and abetted them their
crime. His previous conduct was found to have been of such character as to induce a reasonable
belief in the minds of the two men that the husband desired the wife’s death and he was willing
to encourage them in the murder.

5. Withdrawal from common purpose

In Wachira and others v the Republic 1979.three people raided a store at day time with
intent to steal money .One was armed with a pistol or ammunition told those inside to lie down
and as the deceased resisted ,and as a result several people within the shop were shot.

The gang then decided to leave without stealing anything. They were charged with attempted
robbery and convicted .one of the accused stated in a statement to the police that his accomplice

49
drew the pistol and fired, he did not wait to see the result but that he ran back to the gateaway car
.on appeal the court was not convinced that the accused who ran to the gate away car had
abandoned the common purpose.

The court held that, he could not be said to have dissociated himself from the crime as he
did not attempt to stop his colleague from using the pistol and the mere escape to the car
did not amount to an abandonment of the joint enterprise.

6. Acquittal of one of the offenders

This where two persons are jointly charged with an offence in the course of common design and
one of them is acquitted.

In Njani v Republic (1970) EA 260 .it was held that where two persons are jointly charged with
one offence, judgement cannot stand against both of them on a finding that an offence had been
committed by each independently. The appellant had been jointly charged with and convicted of
housebreaking and stealing.

There was evidence that the house had been broken into and mattress stolen. One of the appellant
admitted stealing the mattress while the other denied breaking into the house and stealing
mattress from the house but admitted stealing the mattresses when he found them elsewhere.

It was held that one appellant was guilty of housebreaking and stealing while the other appellant
was guilty of theft by finding, and that the evidence disclosed different offences which meant
that no joint offence was proved and the appellants could not be convicted jointly.

AIDERS AND ABETTERS

Definition

Aiders and abettors give assistance to the perpetrators, before or at the commission of the
offence i.e. planning or giving material support for its execution.

Section 20 of the Penal Code to aid means giving help or support or encouragement while abet
is to incite, instigate or encourage. The distinction between the 2 terms is not quite clear.

Any act of assistance in the commission of a crime whether in terms of provision of material did
or by encouragement of a general nature, makes a person an accomplice to the crime.

In msembe and another v Republic 2003 KLR 521 (Mbaluto and Kubo JJ) it was held that when
an offence is committed every person who does or omits to do any act for the purpose of

50
enabling or aiding another to commit the offence and to have taken part in committing the
offence and to be guilty of the offence and may be charged with actually committing it.

Also refer to Rex V Kimonirr and five others

2. Positive assistance

Mere presence at the scene of a crime does not make one an accomplice to the crime, what
matters is whether the person present plays any role at all in the crime. Refer to Jacinta Njoki
Ndirangu V R

In R v Clarkson (1972) soldiers charged with aiding and abetting a rape were convicted but set
free on appeal. It was alleged that they were present at the room where the rape was taking place,
but they took no action to stop the perpetrator .it was held on appeal that the mere presence of the
crime was not enough to make an aider or abettor.

In Queens’s v Coney and others (1882) it was held that to constitute one an aider or abettor
some active step must be taken by word or action with the intent to instigate the principal
offender.

A person is said to abet and aid an offence if he provide positive help in the commission. For the
accused to be liable he must have knowledge of the general nature of the crime which other
parties intend to commit.

3. Duty and omission

Where the law imposes a duty to act and non –action may amount to aiding and abetting the
commission of an offence. E.G In a case where the husband was present when the wife was
drowning their kids and does nothing will definitely be guilty of aiding and abetting the
homicide.

In the case of Bonar v McLeod (1983) a senior police officer who did nothing while one of his
juniors assaulted a detained person was convicted as an accomplice for abetting and aiding the
offender. He was said to have had a duty to intervene.

4. The abetted crime must have been committed.

In Rex v Harry Ezekiel and another (1946) for an aider and abettor to be convicted as a
principal, it is necessary that an offence should have been committed, since they become parties
to a crime by assisting another in the commission of it.

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In Rex V Ali bin Thani (1936-1937) it was held that a person cannot be convicted of aiding,
abetting or being concerned in the commission of an offence by reason of an act which takes
place after the offence has been committed.

It was also stated that an act of abetment and in order to prove a person guilty of the offence as
an abettor he must be proved to have done something at the time or prior to the actual
commission of the offence.

COUNSELLORS, PROCURERS, INSTIGATORS AND INCITERS

Section 22 of the Penal code.

To counsel –to offer advice or encouragement in the commission of an offence. A counselor

gives advice on the best way of committing a crime.

To procure-is to secure the commission of an offence by obtaining a person for the purpose of
committing the offence. Also known as solicitation.

A person who counsels or procures another to commit an offence is a principal offender if

the offence is actually committed.

He would be charged with committing the substantial offence or counseling its commission and
upon conviction he would be liable to the same penalties as if he had committed the substantial
offence.

In R v Bernard (1885). A person who counselled was convicted as a principal to murder when
the person counselled killed a person other than the one he had been counselled to kill. The
counselor is not executed from criminal liability merely because the person counseled uses a
different means from suggested provided that the means used are the probable consequence of
the counsel.

2. Instigators and inciters.

In Ondimu and another v Rex (1952) the second appellant was jointly convicted with
another. The case against the second accused was that he had verbally instigated the first accused
to stab the deceased by saying “Do not whip him, stab him “upon which the first a accused
stabbed the deceased.

52
It was held that the verbal instigation was within section 22 of the Penal Code and the second
accused was probably convicted as a principal offender.

ACCESSORIES BEFORE AND AFTER THE ACT

1. Accesories before the fact

The Penal Code does not provide for accessories before the fact. Such suspects are persons who
offer assistance to the actual perpetrators before the commission of an offence. i.e by providing
information, counsel or equipment. Refer to Wanja Kanyoro’s case.

2. Accessories after the act

a) The principle

Accessories after the fact are a person who assists the principal offender to evade justice, by
sheltering, enabling his escape or by destroying incriminating materials.

Section 396 of the Penal Code defines accessory after the fact to be a person who receives or
assists another who is to his knowledge guilty of an offence to enable him to escape punishment.

In Wanja Kanyoro Kamau v Republic (1965). Held that a passive attitude following the
commission of a crime will not only ordinary make a person an accessory after the fact neither
does the non –reporting of a crime.

b) Motive

The motive behind the accused person’s act or omission aid in resolving whether a person had
been accessory after the fact or not.

In Rex v Saidi Nsubuga s/o Juma and another(1941). it was said that a person who helps hide
a dead body knowing that the deceased had been murdered could be an accessory after the fact to
the murder, because his acts makes it more difficult for the investigators to trace the murderer
may escape punishment.

c) Effect of non-conviction on the principal offence

In Rex V Said Nsubuga s/o Juma and another. (1941) it was held that an accessory after the
fact to murder may be convicted as such even though no one has been convicted of murder
provided that the evidence supports such conviction.

In Rex v yonasani egalu and others (1942). it was held that if it is sufficiently established that a
murder or even found then another can be convicted as an accessory after the fact to that murder
provided that the evidence supports such a conviction.

53
d) Accessories after the fact and accomplices

It was stated that the mere fact of a person being an accessory after the fact of murder or any
other offence cannot itself make him an accomplice.

An accomplice is a person concerned with another in the commission of a crime.

e) Accessories after the fact and handless or receivers of stolen goods.

It’s different from accessory after the fact in the sense that in handling, the offender should have
knowledge or reason to believe that the goods that he receives have been stolen while being an
accessory after the fact concerns aiding any person to escape punishment knowing that ,the
person guilty of the offence.

In the matter where it is clear that the thief is a different person from the person dealing with
thestolen property the prosecution ought to provide an alternative charge of being an accessory
after the fact to the charge of handling stolen property.

The court cannot on a charge of handling stolen property convict the offender while operating
under section 179 of the Criminal Procedure Code of being an accessory after the fact.

ACCOMPLICES AND CONSORTEES

The principle

Criminal association is punishable.

Complicity and consortment refers to those situations where the accused person associates with
the actual perpetrators of an offence in circumstances which give rise to a presumption that there
was common intention or design to commit an offence.

Accomplices

In Watete v Uganda (2000) a person is an accomplice if he participated as a principal or

accessory in the commission of the offence, as a principal or an accessory and that the clearest
case of an accomplice is where a person confess to the participation of the offence or has been
convicted to the participation of the offence either on his own to plead guilty or the court finding
after trial.

54
In Wanja Kanyoro Kamau v Republic (1965).it was said that while a person aids and abets the
commission of a crime or assists the guilty person escapes punishment is always an accomplice.
A person who merely acquiesces in what is happening or who fairs to report a crime is not
normally an accomplice.

b) Agent provocateurs or instigators

In kilili v the republic (1977). it was held that agent provocateurs may technically be an
accomplice in the commission of an offence

In Maina v Republic. It was held that an agent provocateur such as a police informer, whose
motive in instigating an accused person to the commission of the particular offence is detection
of crime and capture of offenders and not perpetration of offences not to the transgression of the
law but securing evidence for the enforcement of public justice and he is therefore not an
accomplice and corroboration of this evidence is not necessary.

c) Collaboration

Evidence of accomplices called the witness requires corroboration although the court may
convict without them.

In Uganda v Clement W Nangoye (1995).it was held that before the court on the uncorroborated
evidence of an accomplice, the court must consider the creditability of the witness and the
relation of the witness to the offence and the role played in the commission of the offence.

It was held that an accomplice must be believed first before his testimony can be acted upon as
an exception to the rule.

CONSORTEES/associating

Section 89 (2) of the Penal Code makes consorting with a person who is in possession of a
firearm and allied weapons an offence. It means that is an offence to associate with certain
categories of offenders.

In Wanjiru Thairu v Reginam (1955) the appellant had been convicted of consorting with armed
persons contrary to the emergency regulation of (1952).it was found that she assisted an armed
Mau Mau gang in its terrorist’s activities by associating with its members and cooking for them.
An appeal against conviction was dismissed.

It was held that anyone actively assisting the Mau Mau gang in its activities was guilty of
consorting.

55
VICARIOUS LIABILITY

The principle

The principle of vicarious liability does not apply in criminal law unless a statute expressly
provides for it.

In Uganda v Ndyanabo (1994).it was held that there was no vicarious liability in criminal law
without express provision. The accused had pleaded guilty to selling salt at more than the
controlled price but stated in mitigation that it was his son who had by mistake overcharged the
salt. The accused was convicted.

2. Vicarious liability

Principle of vicarious liability applies to cases of strict liability.

In Nakuru v Alfred fielding (1940-1941).it was held on the facts of the case that the duty to
ensure compliance with the relevant law was absolute and the owner of the subject premises was
responsible for any contravention of the regulation even though another person, the actual
offender was also responsible in law.

3. Statutory criminal liability.

The pharmacy and poisons act at section 49, provides for criminal vicarious liability .it states
that an act which if done any an individual would be an offence under these act, if done by a
body corporate shall be an offence by the director, secretary and the manger of that body unless
he proves that it was done without his consent and that he exercised all due diligence to prevent
its commission.

Section 113 of Occupational Safety and Health acts. It states that where an act of agent servant
employee it is to be deemed that such agent servant the offence as if he were the owner or
occupier.

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GENERAL DEFENCES

1. Infancy

Infancy is a criminal defense, descended from British common law that attempts to
disprove liability for a crime by reason of the defendant's very young age. Under the
assumption that minors are incapable of forming criminal intent in the same manner as
adults, the common law infancy defense traditionally bars the prosecution of
Children under the age of seven for crimes and presumptively precludes the prosecution
of children aged seven to fourteen years under the adult criminal law system.
Contemporary statutes in United States criminal law, however, hold that children in the
latter age group are eligible for prosecution through the juvenile justice system.

2. Insanity

A criminal defendant who is found to have been legally insane when he or she committed
a crime may be found not guilty by reason of insanity. In some cases, the defendant may
be found guilty but sentenced to a less severe
Punishment due to a mental impairment. In states that allow the insanity defense,
defendants must prove to the court that they did not understand what they were doing;
Failed to know right from wrong; acted on an uncontrollable impulse or some variety of

3. The defence of property

It is a common method of justification used by defendants who argue that they should not
be held liable for any loss and injury that they have caused because they were acting to
protect their property. Courts have generally ruled that the use of force may be
accused .A person may use such force as is reasonable in the circumstances in the
prevention of crime or in arresting offenders or suspects. In so far as an attack on
property is a crime, reasonable force may be used to prevent the crime or to

57
Arrest the offender, whether it be theft of a sum of money or the damage of an object. In
many cases of robbery and burglary, the threat will be to both a person and property, and
this combination can be a powerful defence. In AG's Reference (No 2 of 1983) (1984) 1
AER 988[1] Lane CJ. held that a defendant who manufactured ten petrol bombs to
defend his shop during the Toxteth Riots could set up the defence of showing that he
possessed an explosive substance "for a lawful purpose" if he could show he acted to
protect himself or his family or property by means he believed reasonably necessary to
meet the attack. In theory, the defence of property by itself cannot reasonably provide a
justification for inflicting serious injury, but there are a number of cases approving
considerable violence to arrest criminals threatening property.

4. Intoxication

Drinking may genuinely reduce inhibitions and may cause a defendant to act differently
from the way he would but for his state of intoxication. By pleading intoxication, it can
make an otherwise valid defence of mistake or failure to foresee an obvious risk or
automatism more difficult to argue in practice. It is immaterial that the accused may have
misjudged how drunk or drugged be would become. (The rules we are discussing do not
apply where a defendant takes drink or drugs under medical supervision or direction) A
person who thought he was drinking orange juice but which another had spiked with
quantities of vodka would be involuntarily intoxicated.
He would be able to plead lack of mens rea because he was drunk and so incapable of
forming the necessary intent.

5. Claim of right

(State v. Ippolito)….. In addition to his/her general denial of guilt, the defendant contends
that he/she is not guilty of (insert appropriate offenses such as theft or receiving stolen
property) because he/she was acting pursuant to a claim of right to the property.

Our law provides that it is a defense to prosecution1 for (insert appropriate charge such as
theft or receiving stolen property) that the defendant acted under an honest claim of right
to the property (or service) involved or that he/she had a right to acquire or dispose of the
property as he/she did. An honest claim is one that is genuinely, though not necessarily
correctly, believed by the defendant.
This defense, you should note, is not limited to situations in which a defendant believed
he/she owned the property.2 Rather, it includes those situations in which the defendant
honestly, although not necessarily correctly, believed that he/she had either the right or
the authorization to receive, take, acquire, or dispose of the property. Since this is a
criminal case the burden of proof is on the State. The defendant is, therefore, not required
to prove that he/she acted pursuant to a claim of right; rather the burden is on the State to
prove that the defendant did not act pursuant to a claim of right. Thus, if the State has
proven all the elements of (insert offense) beyond a reasonable doubt and has also proven

58
beyond a reasonable doubt that the defendant did not honestly believe that he/she had a
right to the property or was authorized to receive, take, acquire, or dispose of the
property, then you must find the defendant guilty of (insert offense).
On the other hand, if the State has failed to prove beyond a reasonable doubt one or more
elements of (insert offense) or if the State has failed to prove beyond a reasonable doubt
that the defendant did not honestly believe he/she had a right to the property or was
authorized to receive, take, acquire, or dispose of the property, then you must find the
defendant not guilty.

6. Mistake

Mistake of fact may sometimes mean that, while a person has committed the physical
element of an offence, because they were laboring under a mistake of fact, they never
formed the required men’s rea, and so will escape liability for offences that require men’s
rea. This is unlike a mistake of law, which is not usually a defense; law enforcement may
or may not take for granted that individuals know what the law is. Most criminal law
systems in developed states exclude mistake of law as a defense, because allowing
defendants to invoke their own ignorance of the law would breach the public policy
Represented by the Latin maxim: ignorantia legis neminem excusat. But someone
operating under a mistake of fact will not generally be liable, because, although the
defendant has committed the actus Reus of the offense, the defendant may honestly
believe in a set of facts that would prevent him or she from forming the requisite men’s
rea required to constitute the crime. For example: A defendant goes into a supermarket
and places eight items in a basket which is presented to the cashier for payment in the
usual way. Both honestly believe that all eight items have been scanned, and the
defendant pays the sum shown on the bill. A store detective, however,
Notices that a mistake was made by the cashier so that only seven items were actually
priced. This detective arrests the defendant after leaving the store. Since the defendant
honestly believes that he has become the owner of goods in a sale transaction, he cannot
form the men’s rea for theft (which is usually dishonesty) when he physically removes
them from the store. Accordingly, he has not committed a crime.
There is a complex question as to whether the defense of 'mistake' applies to crimes that
do not specify a mental element - such as strict liability offences and manslaughter by
criminal negligence. Under Australian law, the High Court has specifically ruled against
any defense of 'reasonable mistake of fact' in manslaughter cases: The Queen v Lavender
(2005) 222 CLR 67. However, the defense of mistake is available to offences of strict
liability such as drunk driving: see DPP v Bone [2005] NSWSC 1239. And it is the very
availability of the defense of 'mistake' that distinguishes between offences of strict and
absolute liability. Mistake of fact is unavailable in respect to
Absolute liability offences.

7. Ignorance

59
Ignorantia juris non excusat or ignorantia legis neminem excusat (Latin for "ignorance of
the law excuses not “and "ignorance of law excuses no one “respectively) is a legal
principle holding that a person who is unaware of a law may not escape liability for
violating that law merely because he or she was unaware of its content. European-law
countries with a tradition of Roman law May also use an expression from Aristotle
translated into Latin: nemo censetur ignorare legem (nobody is thought to be ignorant of
the law) or ignorantia iuris nocet (not knowing the law is harmful). The rationale of the
doctrine is that if ignorance were an excuse, a person charged with criminal offenses or a
subject of a civil lawsuit would merely claim that he or she is unaware of the law in
question to avoid liability, even if that person really does know what the law in question
is. Thus, the law imputes knowledge of all laws to all persons within the jurisdiction no
matter how transiently. Even though it would be impossible, even for someone with
substantial legal training, to be aware of every law in operation in every aspect of a state's
activities, this is the price paid to ensure that willful blindness cannot become the basis of
exculpation. Thus, it is well settled that persons engaged in any undertakings outside
what is common for a normal person, such as running a nuclear power plant, will make
themselves aware of the laws necessary to engage in that undertaking. If they do not, they
cannot complain if they incur liability.

8. Impossibility

An Impossibility defense is a criminal defense occasionally used when a defendant is

accused of a criminal attempt that failed only because the crime was factually or legally
impossible to commit. Factual impossibility is rarely an adequate defense at common
law. In the United States, thirty seven states have ruled out factual impossibility as a
defense to the crime of attempt. This is not to be confused with a 'mistake of fact'
defense, which may be a defense to a specific intent crime like larceny.

 Factual impossibility

Impossibility occurs when, at the time of the attempt, the facts make the intended crime
impossible to commit although the defendant is unaware of this when the attempt is
made. In People v. Lee Kong, 95 Cal. 666, 30 P. 800 (1892), the defendant was found
guilty for attempted murder for shooting at a hole in the roof, believing his victim to be
there, and indeed, where his victim had been only moments before but was not at the time
of the shooting. Another case involving the defense of factual impossibility is
Commonwealth v. Johnson, in which a wife intended to put arsenic in her husband's
coffee but by mistake added the customary sugar instead. Later she felt repentant and
confessed her acts to the police. She was arrested, tried, and convicted of attempted

60
murder.[3] In United States v. Thomas the court held that men who believed they were
raping a drunken, unconscious woman were guilty of attempted rape, even though the
woman was actually dead at the time sexual intercourse took place.

 Legal impossibility

An act that is considered legally impossible to commit is traditionally considered a valid

defense for a person who was being prosecuted for a criminal attempt. An attempt is
considered to be a "legal” impossibility when the defendant has completed all of his
intended acts, but his acts fail to fulfill all the required in elements of a crime in common
law. Mistakes of law have proved a successful defense. An example of a failed attempt of
law is a person who shoots at a tree stump, believing that he is committing attempted
murder; that person cannot be prosecuted for attempted murder as there is no manifest
intent to kill by shooting a stump. The underlying rationale is that attempting to do what
is not a crime is not attempting to commit a crime. However, "legal" and "factual"
mistakes are not mutually exclusive. A borderline case is that of a

Person who shot a stuffed deer, thinking it was alive as was the case in State v. Guffey,
(1953) in which a person was originally convicted for attempting to kill a protected
animal out of season. In a debatable reversal, an appellate judge threw out the conviction
on the basis that it is no crime to shoot a stuffed deer out of season.

9. Provocation

A wrongful act or an insult that is of such a nature as to be sufficient to deprive an

ordinary person of the power of self-control is provocation for the purposes of this
section if the accused acted on it on the sudden and before there was time for his passion
to cool.

Questions of fact

For the purposes of this section, the questions

(a) Whether a particular wrongful act or insult amounted to provocation,
And
(b) Whether the accused was deprived of the power of self-control by the
Provocation that he alleges he received, Are questions of fact, but no one shall be deemed
to have given provocation to another by doing anything that he had a legal right to do, or
by doing anything that the accused incited him to do in order to provide the accused with
an excuse for causing death or bodily harm to any human being consider "the totality of
the evidence".
The provocation must be a subjectively held belief that is reasonable. This
requires:
61
1. A wrongful act or insult of such a nature that it is sufficient to deprive an ordinary
person of the power of self-control (objective) and
2. the accused act upon that insult on the sudden and before there was time for his passion
to cool (subjective) On the objective element, the "normal temperament and level of self-
control" refers to a person who is not "exceptionally excitable, pugnacious or in a state of
drunkenness". The ordinary person is one that can be ascribed the "particular
characteristics that are not peculiar or idiosyncratic" such as "sex, age, or race". This
intends to "contextualize the objective standard" but not so far as to "individualize it".
The policy behind the objective standard is the desire to "seek to encourage conduct that
complies with certain societal standards of reasonableness and responsibility." Evidence
of anger can be used to support or demean the availability of the defence. It depends on
whether the anger is the fuel for "cold blooded revenge" or the fuel for sudden rage
resulting in a loss of control.

10. Diminished responsibility

In English law, diminished responsibility is one of the partial defenses that reduce the
offence from murder to manslaughter if successful (termed "voluntary" manslaughter for
these purposes). This allows the judge sentencing discretion, e.g. to impose a hospital
order under section 37 of the Mental Health Act 1983 to ensure treatment rather than
punishment in appropriate cases. Thus, when the actus reus (Latin for "guilty act") of
death is accompanied by an objective or constructive version of men’s rea (Latin for
"guilty mind"), the subjective evidence that the defendant did intend to kill or cause
grievous bodily harm because of a mental incapacity will partially excuse his conduct.
Under s.2 (2) of the Homicide Act 1957 the burden of proof is on the defendant to the
balance of probabilities. The M'Naghten Rules lack a volitional limb of "irresistible
impulse"; diminished responsibility is the volitional mental condition defense in English
criminal law. Section 2 of the Homicide Act 1957 states: (1) Where a person kills or is
party to a killing of another, he shall not be convicted of murder if he was suffering from
an abnormality of mental functioning which -
(a) Arose from a medical condition
(b) Substantially impaired D's ability to do one or more of the things mentioned in
subsection (1A),
And
(c) Provides and explanation for D's acts and omissions in doing or being a party to the
killing.
Those things are -
(a) To understand the nature of D's conduct;
(b) To form a rational judgment;
(c) To exercise self-control.

62
(1B) for the purposes of subsection (1) (c), an abnormality of mental functioning provides
and explanation of D's conduct if it causes, or is a significant contributory factor in
causing, D to carry out that conduct. The defense has recently been amended by s. 52 of
the Coroners and Justice Act 2009, which came into force on 4 October 2010.

11. Duress and coercion

The defense of duress is based on the theory that a defendant was faced with a threat so
great that there was no choice but to commit the crime charged. This defense may be
used when the defendant was coerced to commit the crime upon the threat of unlawful
force against him or another. It is an affirmative defense that a defendant engaged in
criminal conduct because:
 He was coerced to do so by the use of, or threat to use, unlawful force against him
or another, which a reasonable person in a similar situation would have been
unable to resist;
 The defense is unavailable if the defendant recklessly placed himself in the
situation that caused the duress; or
 The defendant negligently placed himself in the duress and the negligence
established guilt for the crime.

 Proving Duress

The defense of duress is recognized in virtually every jurisdiction. When attempting to

prove duress, the defense attorney must show that the defendant was coerced into acting
based upon the actual use of unlawful force or the threat of the use of unlawful force. The
actual use of unlawful force or the threat of use of unlawful force can be against someone
other than the defendant. If this is the case, the defense can be made stronger if it can be
shown that there was a close relationship between the defendant and the other person.
The duress must be strong enough so that a person of reasonable firmness would have
been unable to resist it. The defendant must not have acted recklessly in placing himself
in the situation of duress. If negligence is one of the elements of the crime charged, the
defendant must not have acted negligently in placing himself in the situation of duress. If
the defendant is a woman and the duress was caused by her husband, the defendant must
be prepared to establish the defense of duress without resort to marital status.

12. Superior orders

Superior orders, often known as the Nuremberg defense, lawful orders or by the German
phrase Befehl ist Befehl ("only following orders", literally "an order is an order"), is a
plea in a court of law that a person, whether a member of the armed forces or a civilian,
63
not be held guilty for actions which were ordered by a superior officer or a public
official. The superior orders plea is often regarded as the complement to command
responsibility. One of the most noted uses of this plea, or defense, was by the accused in
the 1945–46 Nuremberg Trials, such that it is also called the "Nuremberg defense". The
Nuremberg Trials were a series of military tribunals, held by the main victorious Allied
forces after World War II, most notable for the prosecution of prominent members of the
political, military, and economic leadership of the defeated Nazi Germany. It was during
these trials, under the London Charter of the International Military Tribunal which set
them up, that the defense of superior orders was no longer considered enough to escape
punishment; but merely enough to lessen punishment.

The superior orders defense is still used with the following rationale in the
following scenario: An "order" may come from one's superior at the level of national law.
But according to Nuremberg Principle IV, such an order is sometimes "unlawful"
according to international law. Such an "unlawful order" presents a legal dilemma from
which there is no legal escape: On one hand, a person who refuses such an unlawful order
faces the possibility of legal punishment at the national level for refusing orders. On the
other hand, a person who accepts such an unlawful order faces the possibility of legal
punishment at the international level (e.g. Nuremberg Trials) for committing unlawful
acts. Nuremberg Principle II responds to that dilemma by stating: "The fact that internal
law does not Arguments for and against impose a penalty for an act which constitutes a
crime under international law does not relieve the person who committed the act from
responsibility under international law." The above scenario might present a legal
dilemma, but Nuremberg Principle IV speaks of "a moral choice" as being just as
important as "legal" decisions:

It states: "The fact that a person acted pursuant to order of his Government or of a
superior does not relieve him from responsibility under international law, provided a
moral choice was in fact possible to him". In "moral choices" or ethical dilemmas an
ethical decision is often made by appealing to a "higher ethic" such as ethics in religion
or secular ethics. One such "higher ethic", which is found in many religions and also in
secular ethics, is the "ethic of reciprocity", or the Golden Rule. It states that one has a
right to just treatment, and therefore has a reciprocal responsibility to ensure justice for
others. "Higher ethics", such as those, could be used by an individual to solve the legal
dilemma presented by the superior orders defense. Another argument against the use of
the superior orders defense is that it does not follow the traditional legal definitions and
categories established under criminal law. Under criminal law, a principal is any actor
who is primarily responsible for a criminal offense.[36] Such an actor is distinguished

64
from others who may also be subject to criminal liability as accomplices, accessories or
conspirators. (See also the various degrees of liability: absolute liability, strict liability,
and men’s rea.) Nuremberg Principle IV, the international law which counters the
superior orders defense, is legally supported by the jurisprudence found in certain articles
in the Universal Declaration of Human Rights which deal indirectly with conscientious
objection. It is also supported by the principles found in paragraph 171 of the Handbook
on Procedures and Criteria for Determining Refugee Status which was issued by the
Office of the United Nations High Commissioner for Refugees (UNHCR). Those
principles deal with the conditions under which conscientious objectors can apply for
refugee status in another country if they face persecution in their own country for
refusing to participate in an illegal war.

13. Accident

Accident is unintentional, we live in a world full of busy, distracted individuals,

and as a result people suffer accident every day. Some accident are trivial while do not
just some are not so trivial. Serious accidents do not just cause injuries to others but can
also subject the individuals who cause injuries to others criminal liability. Accident as a
legal defense applies as long as the defendant has no criminal intent, no evil design and
didn’t engage in any culpable negligence. But it only applies where a defendant is
engaged in a lawful conduct. To assert accident as a legal defense, the burden is on the
defendant to prove that he/she acted with no criminal intent or culpable negligence. The
defense of accident is available in any case that requires intentional criminal conduct as
an element. In cases which punish reckless or negligent conduct, the defense of accident
would not apply.

For example any crime of theft must be intentional. Therefore if the offence was
committed by accident, then a person is not responsible for their actions. Also, if a person
beating up another person who eventually dies as a result of the beating, he would still be
responsible for the death of the person, even though the death was accidental since he
never intended to kill him. If it is proven in the court of law, the sentence will be
manslaughter and not murder………………What is man slaughter? Manslaughter is an
unintentional killing of a human being. Such a killing is not premeditated but accidental.
Section 24 of the criminal code states that” … a person is not criminally responsible for
an act or omission which occurs independently of the exercise of his will or an event
which occurs by accident. They question now is at what point will an event or an act
committed be deemed accidental? In the case of Charles Egbirika V. The state (2003) 7
NWLR (Pt. 819) 408. The appellant was arraigned and convicted at the trial court on a
single count of manslaughter contrary to section 235 of the criminal code law cap 29 laws
65
of Ogun State 1978. Dissatisfied with the judgment of the trial court, the appellant
appealed to the court of appeal and the court affirmed the

Decision of the trial court. The trial judge in the above mentioned case inferred
negligence in the act of the appellant who shot the deceased because he should have
uncorked his rifle, if as he stated, he had no intention to fire it. Applying the objective test
to this case in determining whether or not the shooting of the deceased occurred held as
follows “An event is said to be accidental where the act by which it is caused is not done
with the intention of causing it and when its occurrence as a consequence of such act is
not so probable that a person of ordinary prudence ought in the circumstance in which it
is done, to take reasonable precautions against it.

14. Necessity

The common law provides for a defense of necessity for "emergency situations where
normal human instincts, whether self-preservation or of altruism, overwhelmingly impels
disobedience." The defense provides a legal excuse (as opposed to a justification) for
conduct making out the offence. The defense is to be "strictly controlled and scrupulously
limited" to situations of true involuntariness.

The elements to make out the defense of necessity:

1. The accused must be in imminent peril or danger

2. The accused must have had no reasonable legal alternative to the course of action he or
she undertook

3. The harm inflicted by the accused must be proportional to the harm avoided by the
accused

The peril or danger must be more than just foreseeable or likely. It must be near and
unavoidable. At the least, "the situation must be so emergent and the peril must be so
pressing that normal human instincts cry out for action and make a counsel of patience
unreasonable. “To be proportional, the harm avoided must be at least comparable to the
harm inflicted. The elements of imminent peril and no alternative is determined on a
modified objective standard taking into account the situation and characteristics of the
accused. The element of proportionality is measured on an objective standard.

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 INCHOATE OFFENCES
Inchoate Offense – (underdeveloped or unripen).

Involving activity or steps directed toward the completion of a crime. It comes from the
Latin word “inchoate,” which means “to start work on.” Therefore an inchoate offence is
an offence which has not been completed. Its means ‘Just begun’ or ‘undeveloped’, in
criminal law it is used to describe activities which precede the commission of a full
offence but are criminal offences in themselves. E.g. conspiracy to commit murder, theft
etc. Although preparatory to commission of other offenses, they are separate and distinct
crimes.

There are three types of inchoate offences:

 Attempt
 Conspiracy
 incitement

In order to bring a case against the accused for attempt, the prosecution must prove:

1. An intentional act (Men’s Rea)

2. Which is more than preparatory! (Actus Reus)

Men’s rea for the specific substantive offence must also be present – The People (DPP) –
v- Douglas and Hayes. The defendants were charged of shooting with intent to commit
murder. They appealed on the basis that the trial judge had given the jury the wrong
instructions in regard the men’s rea of the offence. This attempt requires an actual
intention to commit the crime of murder, i.e. killing, not merely serious injury.

 Attempt

An intent to commit a crime coupled with an act that goes beyond mere preparation
toward the commission of that offense. (Attempt: try, effort, plan, endeavor)

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People (AG) –v- Thornton – an attempt is an act done by the accused with a specific
intent to commit a crime, which must go beyond mere preparatory acts. The accused was
charged with unlawfully attempting to procure a poison, knowing it was to be used to
produce the miscarriage of a girl. HELD: Lack of Actus Reus. Accused arrested loitering
three feet from the post office door with an imitation firearm; HELD: no attempt. R v
Jones (1990)

R v Campbell (1991)…………… The defendant was arrested outside a Post Office,

carrying a gun, a threatening note and in disguise. His original conviction of attempted
robbery was quashed by the Court of Appeal. His acts were less then preparatory; he
would only satisfy this once he entered the Post Office.

[The Court of Criminal Appeal defined attempt as “an act done by the accused with a
specific intent to commit a particular crime … it must go beyond mere preparation, and
must be a direct movement towards the commission after the preparations have been
made.” Thus it is necessary for the Prosecution to show an act of sufficient proximity to
the principal act – not merely in the early, preparatory stages. The ratio from People (AG)
-v- Sullivan (1964) is that an act is proximate enough to constitute attempt.]

The offence of attempt is not based on legislation in Ireland unlike its counterpart in the
UK which is the Criminal Attempts Act. Attempt in Irish law is at common law.
However, there are many legislative offences of specific attempt such as attempt to
commit murder, S3 of the Criminal Justice Act 1990 or attempt to drive a vehicle under
the influence of alcohol under the Road Traffic Act 1961.

For instance, if a defendant was intending to murder a person, and in the commission of
this intent they merely injured them, the defendant can be found guilty of the offence of
attempt even though they never committed the murder, they committed an act connected
with the attempt to murder, therefore no charges of murder will be brought but separate
and distinguishable offence of attempt to commit murder is committed.

Accused got into a car and pointed a gun at the driver’s head; safety catch on, no finger
on trigger; HELD: attempt. R v. Campbell (1991).

RECAP

• The defendant must have a specific intent to commit a particular crime

• The defendant must have carried out SOME part of the act, the desire is not enough.

68
• However, the full offence does not have to be committed. I.e. if a defendant puts poison
in a glass of the intended victim just before the victim drinks it but they then change their
mind, the requisite requirements of the offence have been committed.

 Attempt and impossibility

Criminal attempt is subject to the defense of impossibility. Considerable problems are

associated with this defense as it relates to attempt, particularly when dealing with
attempted theft. The court's reasoning appears open to question. Every attempt to
commit an offence is an offence at common law, whether the crime attempted is one
under statute or at common law (see Archbold (40th Edition)(1979) at paragraph 4100).
This view corresponds to the terms of the repeal of the common law in section 6 of the
1981 Act. Section 81(3) was intended to preserve common law concepts, not to
distinguish between statutory and common law offences.

The law of attempt has proved troublesome when applied to an allegation involving an
attempt to steal from an empty pocket, car or house. Associated with the defense of
impossibility is a notion that a “conditional intention” is not sufficient where a thief
examines goods, or the contents of a car, or explores a house, intending to steal anything
he considers to be valuable. The following paragraphs examine the evolution of the
defense of impossibility and the concept of conditional intention and the judicial attempts
to limit their scope. 4.20 In the case of R v Ring, Atkins and Jackson 24 it was held that
a man could be guilty of attempting to steal from an empty pocket. In this case the
indictment alleged an attempt to steal from persons unknown. The prosecution evidence
relied solely on police observation of the three accused going through the pockets of
unknown victims. There was no direct evidence that there was anything in their victims'
pockets. For more than eighty years this judgment was a source of guidance in
allegations of attempting to steal. Attempt and impossibility

 CONSPIRACY:

Conspiracy is an agreement by two or more people to accomplish a criminal act or to use

unlawful means to accomplish a noncriminal objective. The house of Lords in R v
Parnell defines conspiracy as an agreement by “a combination of persons to commit a
wrongful act with a view to injure another… even though the act, if done by one, would
amount to no more than a civil wrong”. The rationale is that a civil act done by many is
more formidable – and harder to recover for – than an act done by one person, therefore
the State steps in and elevates the act to a c rime. HELD: Actus Reus: the mere

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agreement to carry out an unlawful act. R v. Parnell (1881). (Conspiracy: plot, scheme,
plan, agreement.)

A criminal offence under the Criminal Justice Act 2006. This is an addition to the
common law offence and does not replace it. It consists of the following:

• Agreement by two or more people to accomplish a criminal act or to use unlawful

means to accomplish a noncriminal objective.

• An agreement to carry out a wrongful act – agreement being the key element of the
actus Reus - People v Keane (CCA 1975)

A) Men’s rea

The inciter must intend that as a result of his persuasion, the incite will bring about the
crime. Must also be, in men’s rea, the intention to agree to commit the unlawful act and
that the person would take some steps in its furtherance (R –v- Anderson) The
prosecution must prove that a defendant intended to further the unlawful object of the
conspiracy, and such intent must exist in the minds of at least two of the parties to the
alleged conspiracy.

B) Actus Reus

The actus Reus of incitement is the act of persuading, encouraging or threatening another
to commit a crime. NOTE: If the person incited agrees to commit the crime, both are
liable for conspiracy. If the incite actually commits the crime, the inciter will be liable as
an accomplice to the complete offence. The actus Reus of the crime of conspiracy is the
unlawful agreement. Where an overt act is required, such act doesn’t need to be a
substantial movement toward the target offense. A single act such as a telephone
conversation arranging a meeting has been held to be sufficient proof of an overt act.

 AGREEMENT:

An agreement to carry out a wrongful act – agreement being the key element of the actus
Reus - People v Keane (CCA 1975)

The accused was convicted in the Special Criminal Court of conspiracy to cause
explosions with explosive substances. HELD: He was aware of and also helped in
building the explosives therefore even though he had not actually met his co-conspirators
in person he was nonetheless found guilty.

Note:

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• A conspiracy has occurred as soon as an agreement has taken place.

• The criminal offence itself does not have to be committed.

• The participants in a conspiracy need not even know or see one another as long as they
otherwise participate in common deeds.

 Soliciting to commit murder

In soliciting to commit murder, it is necessary only that there is an intended victim, not
that the solicited person knew the details about the person, nor that every person in a
group of solicited people knew what was going on. People (DPP) v. Gillane (1998)

 Conspiracy to Corrupt Public Morals

Hamilton P. in AG (SPUC) v. Open Door Counselling (1988) held that the offence exists
here, finding it to have occurred where the defendant provided non-directive abortion
counselling. He held that it could occur even when the agreement between two or more
persons assists in the commission of a lawful act, where the assistance attacks the very
fabric of society.

 Excluded parties
A victim cannot conspire against themselves, i.e. a girl under 17 cannot aid and
abet unlawful sexual intercourse because the statute was designed to protect her as
a victim, not prosecute her as a co-defendant. She could thus not conspire to
commit the offence

Husband and wife cannot conspire together at common law. The State (DPP) v Walsh 47
Hench J explained the common law defense of marital coercion: “In an effort to
compensate the wife for her inferior status, and in particular to make up for her inability
to plead benefit of clergy, as her husband could, the law concocted the fiction of a prima
facie presumption that the act done by her in the presence of her husband was done under
coercion.”

 Impossibility as a defense to conspiracy

There is no Irish case on impossibility, the following UK case, DPP –v- Nock (1978) D
and E believed they were dealing with cocaine, when in fact it was harmless dentistry
material. Their convictions for conspiracy to produce a controlled drug were quashed
because it was physically impossible to extract cocaine from the powder.

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  Relevant knowledge of the facts and circumstances.

• A person is not guilty of conspiracy if, when he commits a crime, he is not aware of
particular facts or circumstances relevant to that crime.

• All parties must agree to commit the same offence. • A conspiracy continues to exist
until it is performed, abandoned or frustrated. • Each member must agree to participate in
some way.

• The individuals involved in a conspiracy do not have to meet each other.

• The alleged conspirator must have communicated with at least one other member.

• The conspirators do not have to intend to see the conspiracy through until the end.

 Incitement

(Incite: provoke, spur on, motivate, persuade, encourage.)

• Where a person’s incites another to commit a crime, they may be liable for conviction
as the principle.

• The prosecution must prove that the defendant incited the accused to perpetrate the
offence. The offence is complete as soon as the agreement has been reached. Therefore,
even if the offence has never been carried out or the offenders change their minds,
liability starts once the offence has been agreed.

 The Actus Reus of Incitement

The actus Reus of incitement is the act of inciting, a communication to someone else that
seeks to persuade or pressure them to commit a crime

R v Most - The Defendant published an article encouraging people of the world to follow
the example of Russian revolutionaries and murder their Heads of State. It was held to be
an incitement to murder.

 Men’s Rea

Incitement requires two elements

1. Knowledge of the circumstances which would make the act of the person incited an
offence; and

2. An intention that the person incited should commit the act constituting the offence.

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People (DPP) –v- O’Grady. A racist bus driver refused entry to the bus to a Gambian
man, making racial and derogatory remarks to him. HELD: The driver’s conviction was
overturned as there were only two witnesses who overheard the conversation and they did
not felt incited to hate.

 Communication of the incitement

R v Banks - Must be some form of actual communication a person whom it is intended to

incite. Where communication sent with a view to incite but not received the sender can
only be guilty of an attempt to incite. Letter was sent advising niece to kill infant with
poison, but was not received.

 Renouncing the incitement.

It is not possible to renounce incitement as once the incitement is spoken or

communicated the offence has already taken place.

 Intention to incite harm and another crime

The defendant must intend the offence which was incited to be committed and intend any
consequences inherent in the actus Reus of the offence. (Thus, to be liable for inciting
murder, the defendant must intend the incite to kill. If he merely intends the incite to do
serious harm but the incite kills, the defendant will only be liable for inciting serious
harm.

 Defendant must also intend or believe that the person incited will act with the
required men’s read for the offence incited.
 Incitement must be communicated
 It is not possible to renounce incitement
 It is not necessary to establish that the person who was incited had the men’s rea
for the offence incited
 The defendant will only be liable for the crime which they intended to incite.

 Incitement and impossibility

The case of R v Fitzimaurice17 established that the defense of impossibility is available

to a charge of incitement, but that the scope for such a defense may be quite limited. The
facts of the case are unusual. A planned to collect a reward from a security firm by

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informing the police of the existence of a conspiracy aimed at robbing a security van. To
give his story credence, he set up what appeared to be a conspiracy to rob by engaging
other men with a fictitious aim of robbing a woman of wages near a factory in Bow in
London. The appellant was the middleman who thought he was engaging men to rob the
woman. After the appellant had recruited other robbers they were shown their fictitious
target, a woman who had been set up by A. Subsequently, when the intending robbers
returned to Bow to execute the robbery they were arrested by the police. Their
convictions were quashed on appeal because the crime that they conspired to commit (to
rob the woman in Bow of wages) was incapable of fulfilment. The appellant, who
believed the plan was genuine, appealed against his conviction for incitement to rob a
woman in Bow. His appeal was dismissed by the Court of Appeal. The correct approach
to a defense of impossibility was to decide what sort of conduct was incited, attempted or
the subject of a conspiracy. The evidence might establish incitement in general terms,
whereas the subsequent agreement between the conspirators related to a specific crime.
It could be logical for an inciter to be convicted where conspirators would be acquitted,
as in this case, where the appellant had incited in general terms a robbery of a woman in
Bow which was not of itself impossible.

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