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Original TitleKenyan Criminal Law
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Original AbstractDieser Forschungsdatensatz entstand im Rahmen des vom DAAD geförderten Drittmittelprojekts „African-German Research Network for Transnational Criminal Justice".Kenyan Criminal Law is a pioneering textbook that presents the general principles and specific offences of Kenyan criminal law based on a systematic approach and consistent methodology. Chapters on the sources and history as well as the international dimension of criminal law in Kenya are included. Current case law is extensively incorporated and explained. Definitions, examples, and discussion questions make the book an essential reading for both students and scholars of criminal law, as well as practitioners and judges working in the field.

The volume forms part of the African Criminal Law Series (eds. G. Werle & F. Jeßberger). The Series publishes peer-reviewed monographs open access and aims to create a hub for criminal law in Africa. It emerged in the context of the African German Research Network for Transnational Criminal Justice which is based at Humboldt-Universität zu Berlin (Germany).Peer Reviewe
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Original Full Text AFRICAN CRIMINAL LAW SERIES KENYAN CRIMINAL LAW JULIET O. AMENGE EVELYNE O. ASAALA AFRICAN CRIMINAL LAW SERIES KENYAN CRIMI AL LAW JULIET O. AMENGE EVELYNE O. ASAALA VOLUME 3 CRIMINAL LAW SERIES JULIET O. AMENGE EVELYNE O. ASAALA KENYAN CRIMINAL LAW African Criminal Law Series Volume 3 Series Editors Professor Dr. Gerhard Werle Humboldt-Universität zu Berlin, Germany Professor Dr. Florian Jeßberger Humboldt-Universität zu Berlin, Germany The German National Library lists this publication in the German National Bibliography; detailed bibliographic data is available on the Internet at http://dnb.d-nb.de. First Edition published in 2024 © the authors. Published on the edoc-Server (Open Access Publication Server) of the Humboldt-Universität zu Berlin Unter den Linden 6, 10117 Berlin, Germany https://edoc.hu-berlin.de Editorial office: African German Research Network c/o Lehrstuhl Prof. Jeßberger Unter den Linden 6 10099 Berlin, Germany www.transcrim.org transcrim.rewi@hu-berlin.de URN: urn:nbn:de:kobv:11-110-18452/29949-8 DOI: https://doi.org/10.18452/29316 ISSN: 2943-9558 This work is licensed under Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International. Dr. Juliet O. Amenge Independent legal researcher at the African-German Research Network Humboldt-Universität zu Berlin, Faculty of Law Berlin, Germany E-mail: julietokoth@gmail.com Dr. Evelyne O. Asaala Senior Lecturer in the Public Law Department University of Nairobi, School of Law Nairobi, Kenya E-mail: asaalaevelyne@gmail.com Dr. Juliet Roselyne Okoth Amenge is a Kenyan legal researcher with expertise in international, transnational and Kenyan criminal law. Currently, she is an independent legal researcher for the African-German Research Network for Transnational Criminal Justice. She has previously held positions as a Prosecutor in the Directorate of Public Prosecution in Kenya, legal researcher for the Court of Appeal in Kenya, visiting professional at the University of Basel and a lecturer at the University of Nairobi. Dr. Evelyne Owiye Asaala is a Senior Lecturer of law at the University of Nairobi. She holds a PhD from the University of Witwatersrand (South Africa), a Master of Laws degree in Human Rights and Democratization in Africa from the University of Pretoria (South Africa) and a Bachelor of Laws degree from the University of Nairobi (Kenya). She has published and consulted widely in the area of criminal law, international criminal law and transitional justice. V PREFACE OF THE SERIES EDITORS Founded in 2023, the African Criminal Law Series aims to create a hub for criminal law in Africa. It publishes peer-reviewed monographs open access. The idea for this series emerged in the context of the African German Research Network for Transnational Criminal Justice which is based at Humboldt-Universität zu Berlin (Germany). The Network was established in 2019 as a forum to continue exchange and cooperation of the more than 120 Alumnae and Alumni from more than 20 African countries of the South African-German Centre for Transnational Criminal Justice (2008-2018) which was one of seven Centres of African Excellence funded by the German Academic Exchange Service (DAAD). The present volume forms part of an initial set of three textbooks on criminal law in Tanzania, Ethiopia and Kenya respectively. The comprehensive, systematic presentation of these legal considerations is a pioneering work in the respective states, as the authors confirm. A draft of the present monograph was presented by the authors at a workshop in Berlin in 2023 and reviewed by a panel of distinguished scholars, including Prof. Dr. Gerhard Kemp (University of the West of England, United Kingdom) and Dr. Nicksoni Filbert (University of Dar es Salaam, Tanzania). Authors and series editors are grateful to Leon Trampe, Dr. Nella Sayatz and Timur Aksu who thoroughly copy-edited the final manuscripts. While style and format were adjusted to increase readability, local traditions, e.g. regarding referencing literature and case law, were maintained. Berlin, June 2024 Prof. Dr. Gerhard Werle Prof. Dr. Florian Jeßberger Humboldt-Universität zu Berlin Humboldt-Universität zu Berlin Director Emeritus of the Network Director of the Network VI ACKNOWLEDGEMENTS The aim of this text is to facilitate the teaching of criminal law in Kenyan universities. It is intended to equip the Kenyan law student with a sound understanding of the principles and rules of criminal law. Kenyan criminal law is anchored in the common law tradition which can be traced back to the colonial era by the British. This history is evident and prominent in the decisions by our courts that rely greatly on decisions by their English counterparts to interpret various criminal law principles. Thus, unlike other books that only strictly focus on the principles of criminal law as reflected in the Kenyan statutes and interpreted by Kenyan courts, this text intends to discuss criminal law within the Kenyan context and merges its analysis by including references to texts by English scholars and case law from English courts. The rationale behind this methodology is twofold. First, many of the criminal principles have their foundation in common law principles that were first pronounced by English courts. It is important that the students are aware of the rationale involved in the development of particular criminal law principles. This helps in the analysis of whether the law in Kenya has evolved within the limits of common law tradition and if not, establishes what influenced such departure. It also provides a sound basis upon which to consider what reforms are necessary to make the law more suitable for the purpose of our context. Second, there are aspects of various criminal law concepts that the Kenyan courts do not highlight or discuss which form an integral part of substantive criminal law principles under the common law tradition. The student is nonetheless required to learn them to give them a sound knowledge of the underlying principles. This later aspect has informed the practice in most Kenyan universities where the teaching of criminal law heavily relies on English criminal law texts. The English texts have often provided a more detailed and critical perspective of the various concepts and contributed to a better understanding of the substantive criminal law principles. It has come to our attention that in some instances courts rely on English case law without giving due attention to their contextual development within the English jurisdiction. This has led to some inconsistent and illogical decisions. This text therefore where necessary highlights the evolution of certain criminal law principles within the English context to enable a critical evaluation of its development and the extent to which it applies within the Kenyan context. This method of analysis will hopefully influence a more meaningful, coherent, and systematic application of various criminal law principles in the practice of Kenyan criminal law. The text is designed to cover topics relating to the substantive principles of criminal law in the first part and specific crimes in the second part. In the last chapter it discusses international criminal law which is not covered in any of the books that have so far discussed criminal law in Kenya. We hope in overall that our work will not only facilitate the teaching and learning of criminal law in the university but will also prove useful to the criminal law practitioner in the Kenyan context. We are very grateful to Professor Gerhard Werle, emeritus professor of the Humboldt Universität zu Berlin for initiating this project through the African German Research Network for Transnational Criminal Justice. We also thank the DAAD for the financial support given for VII this project. We would also like to thank Leon Trampe and Dr. Nella Sayatz for their critical reviews and administrative support for the project. In this text any general reference to the gender “he” also includes the gender “she” and vice versa. The law stated is as far as it possibly stood in January 2024. VIII SUMMARY CONTENTS SUMMARY CONTENTS .............................................................................................. VIII TABLE OF CONTENTS ................................................................................................. IX PART ONE: GENERAL INTRODUCTION ................................................................... 1 SECTION 1: INTRODUCTION ........................................................................................................... 1 SECTION 2: CRIMINAL LAW IN KENYA ....................................................................................... 7 SECTION 3: CRIMINAL JUSTICE PROCESS ................................................................................ 18 SECTION 4: CONTENT AND STRUCTURE OF THE PENAL CODE ................................. 25 SECTION 5: PRIVILEGES AND IMMUNITIES ........................................................................... 28 SECTION 6: CONCLUSION ............................................................................................................... 29 PART TWO: GENERAL PRINCIPLES OF KENYAN CRIMINAL LAW ................... 30 SECTION 1: ACTUS REUS .................................................................................................................. 30 SECTION 2: CAUSATION ................................................................................................................... 38 SECTION 3: FAULT ............................................................................................................................... 49 SECTION 4: DEFENCES ..................................................................................................................... 77 SECTION 5: INDIVIDUAL CRIMINAL RESPONSIBILITY ................................................... 103 SECTION 6: INCHOATE OFFENCES ........................................................................................... 133 PART THREE: SPECIFIC CRIMES OF KENYAN CRIMINAL LAW ....................... 145 SECTION 1: CRIMES AGAINST HUMAN LIFE AND PERSON .......................................... 145 SECTION 2: OFFENCES AGAINST PROPERTY ...................................................................... 162 SECTION 3: CRIMES AGAINST THE COMMUNITY .............................................................. 183 SECTION 4: CRIMES AGAINST THE STATE AND ADMINISTRATION OF JUSTICE .................................................................................................................................................................... 198 SECTION 5: MONEY LAUNDERING AND ORGANISED CRIMES .................................. 205 PART FOUR: INTERNATIONAL CRIMINAL LAW .................................................. 215 SECTION 1: INTRODUCTION ....................................................................................................... 215 SECTION 2: KENYAN INTERNATIONAL CRIMINAL LAW ............................................... 216 SECTION 3: INTERNATIONAL CRIMINAL COURT .............................................................. 228 SECTION 4: CONCLUSION ............................................................................................................. 230 IX TABLE OF CONTENTS SUMMARY CONTENTS .............................................................................................. VIII TABLE OF CONTENTS ................................................................................................. IX PART ONE: GENERAL INTRODUCTION ................................................................... 1 SECTION 1: INTRODUCTION ....................................................................................... 1 1.1 Defining a crime ............................................................................................................. 1 1.1.1 Distinction between criminal and civil wrong .......................................................................... 2 1.1.2 Moral considerations that relate to crime .................................................................................. 2 1.2 What criteria inform criminalisation? ............................................................................ 3 1.3 Principles of criminal law ............................................................................................... 4 SECTION 2: CRIMINAL LAW IN KENYA ..................................................................... 7 2.1 The origin of criminal law in Kenya ............................................................................... 7 2.2 Sources of criminal law in Kenya ................................................................................... 9 2.2.1 The Constitution of Kenya ........................................................................................................ 10 Impact of the rights on particular offences ...................................................................................... 12 2.2.2 Statutes and subsidiary legislation ............................................................................................. 16 2.2.3 The Substance of the common law, doctrines of equity and statutes of general application in force in England on 12 August 1897 ........................................................................ 16 2.2.4 International law .......................................................................................................................... 17 2.2.5 African Customary Law .............................................................................................................. 17 SECTION 3: CRIMINAL JUSTICE PROCESS .............................................................. 18 3.1 The Director of Public Prosecution ............................................................................. 18 3.2 The trial process ........................................................................................................... 19 3.2.1 Victim participation ..................................................................................................................... 20 3.2.2 Burdens and standards of proof ................................................................................................ 20 a) Burden of proof on the state ...................................................................................................... 21 b) Burden of proof on the accused ................................................................................................ 21 3.2.3 Sentencing ..................................................................................................................................... 21 3.3 Alternative Dispute Resolution in the Criminal Process ............................................. 23 SECTION 4: CONTENT AND STRUCTURE OF THE PENAL CODE .................... 25 4.1 Classification of crimes ................................................................................................ 25 4.2 Criminal courts jurisdiction ......................................................................................... 26 4.2.1 The Supreme Court ..................................................................................................................... 26 X 4.2.2 The Court of Appeal ................................................................................................................... 26 4.2.3 The High Court ........................................................................................................................... 27 4.2.4 The Magistrates Courts ............................................................................................................... 27 4.2.5 Other specialised courts and tribunals ..................................................................................... 27 SECTION 5: PRIVILEGES AND IMMUNITIES .......................................................... 28 5.1 Presidential immunity .................................................................................................. 28 5.2 Judicial immunity ......................................................................................................... 28 SECTION 6: CONCLUSION .......................................................................................... 29 PART TWO: GENERAL PRINCIPLES OF KENYAN CRIMINAL LAW ................... 30 SECTION 1: ACTUS REUS ............................................................................................. 30 1.1 Introduction .................................................................................................................. 30 1.2 Actus reus and mens rea .............................................................................................. 30 1.3 Actus reus ..................................................................................................................... 31 1.3.1 Actus reus through commission ............................................................................................... 32 1.3.2 Actus reus through omission ..................................................................................................... 33 a) Duty arising out of public office ................................................................................................ 34 b) Duty arising from contractual obligations ............................................................................... 34 c) Duty arising under a special relationship between the defendant and victim .................... 35 d) Duty arising from assuming responsibility to care for another ............................................ 35 e) Duty arising from defendant’s prior conduct creating a dangerous situation .................... 36 SECTION 2: CAUSATION .............................................................................................. 38 2.1 Causation in fact or ‘but for’ test .................................................................................. 38 2.2 Causation in law ........................................................................................................... 39 2.2.1 Connection between fault and result ........................................................................................ 39 2.2.2 Negligible causes .......................................................................................................................... 40 2.2.3 Contributory causes .................................................................................................................... 40 2.2.4 Intervening acts (novus actus interveniens) ............................................................................ 40 a) Acts of nature ............................................................................................................................... 41 b) Acts by third party ....................................................................................................................... 41 c) Medical interventions .................................................................................................................. 42 d) Victim’s own conduct ................................................................................................................. 45 2.3 Conclusion ................................................................................................................... 47 2.4 Summary ...................................................................................................................... 47 SECTION 3: FAULT ........................................................................................................ 49 XI 3.1 Defining mens rea ........................................................................................................ 49 3.2 Distinguishing mens rea from motive ......................................................................... 50 3.3 Proving mens rea .......................................................................................................... 51 3.4 Forms of mens rea ........................................................................................................ 51 3.4.1 Intention ....................................................................................................................................... 51 a) Direct intention ............................................................................................................................ 52 b) Oblique intention ......................................................................................................................... 52 3.4.2 Recklessness ................................................................................................................................. 58 a) Subjective recklessness ................................................................................................................ 59 b) Objective recklessness ................................................................................................................ 60 c) Kenyan case law on recklessness ............................................................................................... 61 3.4.3 Negligence .................................................................................................................................... 65 3.4.4 Knowledge .................................................................................................................................... 68 3.5 Criminal liability that does not need mens rea ............................................................ 69 3.5.1 Strict liability ................................................................................................................................. 70 3.5.2 Crimes of vicarious liability ........................................................................................................ 72 3.6 Transferred malice ....................................................................................................... 74 3.7 Coincidence in time of actus reus and mens rea ......................................................... 75 3.8 Conclusion ................................................................................................................... 76 3.9 Summary ...................................................................................................................... 76 SECTION 4: DEFENCES ................................................................................................ 77 4.1 Ignorance of the law ..................................................................................................... 78 4.2 Insanity ......................................................................................................................... 78 4.2.1 Unfitness to stand trial ................................................................................................................ 79 4.2.2 Insanity as a defence ................................................................................................................... 79 4.2.3 The M’Naghten rule .................................................................................................................... 80 a) Disease of the mind that causes defect of reason ................................................................... 81 b) Inability to understand the ‘nature and quality of acts or omissions’ .................................. 82 c) Inability to know that he ought not to do the act or make the omission ........................... 83 4.2.4 Who bears the burden to raise and prove the defence of insanity? ..................................... 83 4.2.5 The special finding of “Guilty but Insane” ............................................................................. 84 4.3 Intoxication .................................................................................................................. 86 4.3.1 Involuntary intoxication ............................................................................................................. 86 4.3.2 Voluntary intoxication ................................................................................................................ 87 XII 4.4 Age capacity ................................................................................................................. 89 4.5 Mistake of fact .............................................................................................................. 91 4.6 Duress/Compulsion .................................................................................................... 91 4.7 Necessity ...................................................................................................................... 93 4.8 Marital coercion ........................................................................................................... 95 4.9 Superior orders ............................................................................................................. 95 4.10 Self-defence – defence of self/another/property ....................................................... 96 4.11 Alibi ............................................................................................................................. 98 4.12 Bona fide claim of right .............................................................................................. 99 4.13 Accident ..................................................................................................................... 100 4.14 Conclusion ................................................................................................................. 100 4.15 Summary .................................................................................................................... 101 SECTION 5: INDIVIDUAL CRIMINAL RESPONSIBILITY ..................................... 103 5.1 Perpetrator ................................................................................................................... 103 5.2 Accessory/Secondary liability ..................................................................................... 104 5.2.1 Why is the distinction necessary? ............................................................................................ 105 5.2.2 Defining the terms .................................................................................................................... 106 a) Aiding ........................................................................................................................................... 106 b) Abetting ....................................................................................................................................... 106 c) Counselling .................................................................................................................................. 107 d) Procuring ..................................................................................................................................... 107 5.3 Proving the principal offence ...................................................................................... 108 5.4 Liability of a secondary party without conviction of perpetrator ............................... 110 5.5 Secondary liability ....................................................................................................... 111 5.5.1 Actus reus of secondary liability .............................................................................................. 111 a) Presence ....................................................................................................................................... 111 b) Failure to act ............................................................................................................................... 112 5.5.2 Mens rea of secondary liability ................................................................................................ 112 a) Intention to assist or encourage the perpetrator ................................................................... 112 b) Knowledge of essential matters constituting the offence ................................................... 113 5.5.3 Accessories and transferred malice ......................................................................................... 115 5.6 Common intention liability ......................................................................................... 116 5.6.1 Is common intention liability a separate form of liability? .................................................. 118 5.6.2 Liability for crimes in furtherance of the common purpose/intention ............................ 119 XIII 5.6.3 The ‘fundamentally different rule’ principle .......................................................................... 122 5.6.4 What is the rationale for imposing liability in such circumstances? .................................. 124 5.7 Withdrawal of participation by an accessory .............................................................. 126 5.8 Accessory after the fact ............................................................................................... 127 5.9 Corporate liability ........................................................................................................ 128 5.9.1 The principle of identification ................................................................................................. 129 5.9.2 Problems arising from the principle of identification .......................................................... 130 5.9.3 Nature of offences .................................................................................................................... 131 5.10 Conclusion ................................................................................................................. 131 5.11 Summary .................................................................................................................... 131 SECTION 6: INCHOATE OFFENCES ........................................................................ 133 6.1 Attempt ........................................................................................................................ 133 6.1.1 Actus reus ................................................................................................................................... 134 6.1.2 The common law standard vs “the more than merely preparatory test”, English law on the “overt act” ..................................................................................................................................... 136 6.1.3 Mens rea ...................................................................................................................................... 137 6.1.4 Attempts and impossibility ...................................................................................................... 138 6.2 Conspiracy ................................................................................................................... 138 6.2.1 Actus reus ................................................................................................................................... 139 a) Agreement ................................................................................................................................... 139 b) Parties .......................................................................................................................................... 140 6.2.2 Mens rea ...................................................................................................................................... 140 6.2.3 Charging conspiracy and the substantive offence ................................................................ 141 6.2.4 Conspiracy and common intention liability .......................................................................... 142 6.3 Incitement ................................................................................................................... 143 6.3.1 Actus reus ................................................................................................................................... 143 6.3.2 Mens rea ...................................................................................................................................... 144 6.4 Conclusion .................................................................................................................. 144 6.5 Summary ..................................................................................................................... 144 PART THREE: SPECIFIC CRIMES OF KENYAN CRIMINAL LAW ....................... 145 SECTION 1: CRIMES AGAINST HUMAN LIFE AND PERSON .............................. 145 1.1 Murder ......................................................................................................................... 145 1.1.1 Actus reus ................................................................................................................................... 145 1.1.2 Mens rea ...................................................................................................................................... 146 XIV 1.1.3 Sentence for murder .................................................................................................................. 148 1.2 Manslaughter ............................................................................................................... 149 1.2.1 Unlawful act ............................................................................................................................... 149 1.2.2 Unlawful omission ..................................................................................................................... 150 1.2.3 Manslaughter from mitigating circumstances ....................................................................... 151 1.2.4 Suicide pacts ............................................................................................................................... 153 1.3 Infanticide ................................................................................................................... 153 1.4 Sexual offences ............................................................................................................ 154 1.4.1 Rape ............................................................................................................................................. 154 a) Actus reus .................................................................................................................................... 154 b) Mens rea ...................................................................................................................................... 155 c) Absence of consent .................................................................................................................... 155 1.4.2 Sexual assault .............................................................................................................................. 156 a) Actus reus .................................................................................................................................... 156 b) Mens rea ...................................................................................................................................... 156 1.4.3 Defilement .................................................................................................................................. 157 a) Actus reus .................................................................................................................................... 157 b) Mens rea ...................................................................................................................................... 159 1.5 Assault ......................................................................................................................... 159 1.5.1 Actus reus ................................................................................................................................... 159 1.5.2 Mens rea ...................................................................................................................................... 160 1.6 Conclusion ................................................................................................................... 161 SECTION 2: OFFENCES AGAINST PROPERTY ....................................................... 162 2.1 Theft ............................................................................................................................ 162 2.1.1 The actus reus of theft .............................................................................................................. 163 2.1.2 Taking .......................................................................................................................................... 163 2.1.3 Things that are capable of being stolen ................................................................................. 165 2.1.4 Conversion ................................................................................................................................. 166 2.1.5 General and special owner ....................................................................................................... 167 2.1.6 Mens rea of theft ....................................................................................................................... 167 a) Fraudulent intent ........................................................................................................................ 168 b) Without claim of right ............................................................................................................... 169 2.2 Offences related to theft .............................................................................................. 171 2.2.1 Obtaining by false pretences .................................................................................................... 171 XV 2.2.2 Handling stolen property ......................................................................................................... 171 a) The actus reus of handling stolen goods ................................................................................ 172 b) Mens rea of handling stolen goods ......................................................................................... 173 2.2.3 Assault with intent to steal ....................................................................................................... 173 2.2.4 Robbery ....................................................................................................................................... 173 a) Actus reus of robbery ................................................................................................................ 174 b) Mens rea of robbery .................................................................................................................. 175 2.2.5 Attempted robbery .................................................................................................................... 176 2.2.6 Robbery with violence .............................................................................................................. 176 a) The actus reus of robbery with violence ................................................................................ 176 b) The mens rea of robbery with violence ................................................................................. 177 2.2.7 Attempted robbery with violence ........................................................................................... 177 2.2.8 Housebreaking and burglary .................................................................................................... 178 2.3 Arson ........................................................................................................................... 180 2.4 Malicious damage to property .................................................................................... 180 2.5 Extortion ..................................................................................................................... 181 2.6 Conclusion .................................................................................................................. 182 SECTION 3: CRIMES AGAINST THE COMMUNITY ............................................... 183 3.1 Corruption ................................................................................................................... 183 3.1.1 Bribery ......................................................................................................................................... 184 3.1.2 Bid rigging ................................................................................................................................... 185 3.1.3 Abuse of office .......................................................................................................................... 186 3.1.4 Dealing with suspect property ................................................................................................. 186 3.1.5 Conflict of interest .................................................................................................................... 187 3.1.6 Fraud and breaches of trust by persons employed in public service ................................. 188 3.1.7 Investigating and punishing corruption offences ................................................................. 189 3.2 Drug trafficking ........................................................................................................... 190 3.3 Human trafficking ...................................................................................................... 191 3.4 Traffic offences ........................................................................................................... 192 3.4.1 Driving under influence of drink ............................................................................................ 193 3.4.2 Driving recklessly or negligently ............................................................................................. 193 3.4.3 Causing death by dangerous driving ....................................................................................... 194 3.4.4 Speeding ...................................................................................................................................... 195 3.5 Offences against morality ........................................................................................... 195 XVI 3.5.1 Defilement of idiots or imbeciles ............................................................................................ 195 3.5.2 Detention of females for immoral purposes ......................................................................... 196 3.5.3 Persons living on earnings of prostitution or soliciting ....................................................... 196 3.5.4 Attempts to procure abortion ................................................................................................. 196 3.5.5 Unnatural offences .................................................................................................................... 197 3.6 Conclusion .................................................................................................................. 197 SECTION 4: CRIMES AGAINST THE STATE AND ADMINISTRATION OF JUSTICE ........................................................................................................................... 198 4.1 Treason ........................................................................................................................ 198 4.1.1 Actus reus ................................................................................................................................... 198 4.1.2 Mens rea ...................................................................................................................................... 198 4.2 Prohibited publications ............................................................................................... 199 4.3 Contempt of court ....................................................................................................... 199 4.3.1 Actus reus ................................................................................................................................... 201 4.3.2 Mens rea ...................................................................................................................................... 202 4.4 Perjury and related crimes ......................................................................................... 202 4.4.1 Actus reus ................................................................................................................................... 203 4.4.2 Mens rea ...................................................................................................................................... 203 4.5 Conclusion ................................................................................................................. 204 SECTION 5: MONEY LAUNDERING AND ORGANISED CRIMES ...................... 205 5.1 Money laundering ...................................................................................................... 205 5.1.1 Actus reus ................................................................................................................................... 206 5.1.2 Mens rea ...................................................................................................................................... 207 5.1.3 Confiscating proceeds of crime ............................................................................................... 208 a) Criminal confiscation ................................................................................................................. 208 b) Civil confiscation ....................................................................................................................... 208 5.2 Participating in organised crimes .............................................................................. 208 5.3 Terrorism ..................................................................................................................... 210 5.3.1 Actus reus ................................................................................................................................... 214 5.3.2 Mens rea ...................................................................................................................................... 214 5.4 Conclusion .................................................................................................................. 214 PART FOUR: INTERNATIONAL CRIMINAL LAW .................................................. 215 SECTION 1: INTRODUCTION .................................................................................... 215 SECTION 2: KENYAN INTERNATIONAL CRIMINAL LAW .................................. 216 XVII 2.1 The International Crimes Act ..................................................................................... 216 2.1.1 Genocide ..................................................................................................................................... 216 a) The protected groups ................................................................................................................ 217 b) Prohibited conduct .................................................................................................................... 217 c) Mental element ........................................................................................................................... 218 2.1.2 Crimes against humanity .......................................................................................................... 218 a) Contextual Elements ................................................................................................................. 218 b) Prohibited acts ............................................................................................................................ 219 c) Mental element ........................................................................................................................... 219 2.1.3 War crimes .................................................................................................................................. 219 a) Contextual elements .................................................................................................................. 220 b) Mental element ........................................................................................................................... 221 c) Categories of war crimes ........................................................................................................... 221 aa) Provisions that protect non-combatants from violence and mistreatment ................ 221 bb) War crimes relating to attacks on prohibited targets ..................................................... 222 cc) War Crimes protecting property ....................................................................................... 223 dd) Prohibited means of warfare (weapons) .......................................................................... 223 ee) Crimes that prohibit certain methods of warfare ........................................................... 223 2.1.4 The Crime of aggression .......................................................................................................... 223 a) Material elements ....................................................................................................................... 225 b) Mental element ........................................................................................................................... 225 2.2 Prevention of Torture Act .......................................................................................... 225 2.2.1 Actus reus ................................................................................................................................... 226 2.2.2 Mens Rea .................................................................................................................................... 226 2.3 Universal Jurisdiction................................................................................................. 226 SECTION 3: INTERNATIONAL CRIMINAL COURT ............................................. 228 3.1 Triggering Jurisdiction of the International Criminal Court ..................................... 228 3.2 Kenya and the International Criminal Court ............................................................. 228 SECTION 4: CONCLUSION ........................................................................................ 230 1 PART ONE: GENERAL INTRODUCTION SECTION 1: INTRODUCTION Criminal law is concerned with conduct which, if committed, makes one liable for punishment by the state. For example, such behaviour may include: killing another person, stealing from another, rape, corruption etc. The study of criminal law examines behaviour that will make a person liable to punishment by the state. It involves an examination of the ingredients or elements of a crime, and the principles of establishing guilt or lack thereof. The first six chapters of this book discuss the general principles of criminal liability. The next five chapters discuss the specific crimes and a final chapter is included which introduces International Criminal Law. This chapter introduces the student to the nature and function of criminal law. It highlights what constitutes criminal law and its general principles. It exposes the student to the criminal law of Kenya while highlighting its history and the major reforms influencing its development. The chapter helps the student to understand the basics of criminal law to appreciate the next chapters better. 1.1 Defining a crime The question of what is a crime has generated considerable debate with no single universal definition. It is much easier to identify different types of crimes than to define a crime. What conduct is criminal may differ concerning location and time. While certain conduct maybe considered criminal in one state, it may not be a crime in another. What may be criminal at one point in time may not be criminal at a later period. The political and social factors prevailing at a particular time determine what is considered criminal. In the instance of Kenya, taking into account the two primary sources of criminal law, the Penal Code, which defines several crimes and the Constitution, which highlights several rights of the accused person, a crime can be defined as an act or an omission prohibited and punished by written law. Yet, this does not enable us to identify and say with certainty that a given set of acts amounts to a crime. Is there some key ingredient that helps to determine what constitutes a crime? Often, when one asks the question, what is the nature and characteristic of a crime, the answer turns to distinguishing crimes from civil wrongs and morality questions. The definition may look into the moral descriptions referring to some intrinsic quality in all criminal acts or have a procedural perspective determining conduct as criminal if it is prosecuted and punished under criminal procedure.1 1 J. Herring, Criminal Law: Text, Cases and Materials, 10th edn (Oxford: OUP 2022), p. 3. 2 1.1.1 Distinction between criminal and civil wrong The distinction between a crime and civil wrong lies in the differences inherent in the public nature of a crime and the private nature of a civil wrong. It is significant to note that while civil law is regulated under civil law and procedure, criminal law is regulated under criminal law and procedure. Both subjects exist under the legal system of Kenya. The following distinctions are recognised: i. Civil law is concerned with redressing legal wrongs on an interpersonal level, while criminal law is concerned with duties owed by individuals to society. ii. Complainant: In criminal law, any member of the public can be a complainant, while in civil law, only the victim of the civil wrong can complain or rather be “the claimant” in the proceedings. iii. Control of proceedings: In criminal law, the state, through the Director of Public Prosecution (ODPP), undertakes public control of criminal proceedings, while in civil law, this is done personally by the plaintiff. iv. Nature of remedy/penalty: In criminal law, remedies are mainly punitive/sanctions, while in civil law, the remedies are compensatory. v. The standard and burden of proof: In criminal law, the burden is always on the state to prove the case, and the required standard is beyond a reasonable doubt, while in civil law, the burden is on the complainant, and the required standard is on a balance of probability. vi. The statute of limitation applies to civil wrongs, not crimes. A crime may remain a crime long after it has ceased to threaten the security of the public, while a civil wrong remains a wrong only as long as a statute of limitations deems it to be within time. 1.1.2 Moral considerations that relate to crime The second aspect that arises in defining a crime is how it is related to what we can call immoral behaviour. A society can use criminal law to preserve public morality. This rationale is reflected by Lord Devlin2, who argues that public morality is an essential part of the bond that keeps society together. He observes that: “There are acts so gross and outrageous that they must be prevented at any cost...the suppression of vice is as much the law's business as the suppression of subversive activities.”3 This view by Lord Devlin arose in the context of his opposition to the recommendation by the Wolfenden Committee, which proposed decriminalising homosexual acts between consenting male adults in England. 4The Sexual Offences Act decriminalised the said homosexual conduct in 1967. 2 Patrick Devlin, The Enforcement of Morals (1965), p. 1. 3 Patrick Devlin, The Enforcement of Morals (1965), p. 1. 4 The Wolfenden Report on Homosexual Offences and Prostitution (1957) Cmnd 247 https://www.parliament.uk/about/living-heritage/transformingsociety/private- 3 The challenge with the idea that there is a need to protect the moral welfare of the state through criminalisation is whether there is a shared public morality. Whose morals apply? In the Kenyan context, the law-making political elite have always influenced the criminalisation of what may be perceived to be immoral conduct. Although the political elite, under the principle of representative democracy, represent the citizens' wishes, not all their decisions reflect the masses' desires. There is also the question of whether there is a consensus on what constitutes immoral behaviour for the overall population in Kenya. While crimes such as murder, rape and robbery are deservingly categorised as crimes by their immoral nature, not all crimes can rightfully be classified as immoral. This is especially the case with regulatory offences. A moral argument not only means that crime involves morally wrong conduct but also implies that such conduct is harmful.5 Not all crimes harm a victim, and not all conduct involving some harm to a victim constitutes a crime. An example in the latter case would be suffering emotionally and mentally following the decision by a partner to end an intimate relationship. Point of reflection The lack of consensus on what constitutes immoral behaviour can be recognised by several Western states' call to decriminalise homosexual activity.6Some African states, like Uganda, have adopted a contrary position by making tougher laws regarding criminalising such conduct. 7 The debate is ongoing in Kenya, with some legislative members seeking to follow the example of Uganda.8 The same contention arises when considering whether abortion should be decriminalised. Over to you, what is your take on the issue of whether conduct should be criminal merely on the ground of its immoral nature? 1.2 What criteria inform criminalisation? What informs the decision to make a certain activity or conduct criminal? Several theories have been identified in determining or justifying the conduct that should be criminalised. The conduct needs to be immoral: As mentioned above, many actions prohibited by the law cover conduct that is undoubtedly morally wrong, such as theft, crimes of violence and destruction. Immoral conduct is behaviour that offends the overall well-being of a community. Lord Devlin describes immoral behaviour as conduct which, when viewed calmly and dispassionately by a right-minded person, elicits deep disgust and is regarded lives/relationships/collections1/sexual-offences-act-1967/wolfenden-report-/ (last accessed in April 2024). 5 D. Ormerod and K. Laird, Smith, Hogan and Ormerod’s Criminal Law, 16th edn (Oxford: OUP, 2021), p. 11. 6 ‘Widespread discrimination against people with non-conforming sexual orientations and gender identities’, Briefing European Parliament (European Union, 2019). 7 ‘Uganda’s new anti-homosexuality law bans identification as LGBTQ’, Aljazeera.com/news 2023. 8 ‘Why are Kenya and Uganda cracking down on LGBTQ rights?’, Aljazeera.com/news 2023. 4 “as a vice so abominable that its mere presence is an offence.”9 This elicits the question of ‘who the reasonable man is’ and the source of such disgust. Is the disgust merely informed by “ignorance, superstition or misunderstanding?”10 There is also the debate on whether one can ascertain a common morality in any given society and that moral opinion changes overtime. These later perspectives doubt the view that immorality is a sufficient condition to invoke criminal sanction. An accommodative solution would be to limit the use of criminal law to conduct viewed as immoral without significant social dissent.11 The conduct needs to be harmful: The arguments concerning harm advocate that conduct should only be criminal where it causes substantial harm to others. Harm involves a wrongful setback to the interest of others or another. 12 Criminal law is essential as it not only protects the exercise of free will, which underlies personal dignity but also guards against the irresponsible exercise of free will that causes harm to others. The conduct must threaten social welfare or community interests: Here, criminal law is useful in protecting certain social facilities and structures for the benefit of the community. Issues concerning public safety and security would fall under this argument. The creation of several offences can mostly be attributed to influence by pressure groups or perceived public opinion. Whenever there is a societal problem, there is often the tendency to seek a solution in criminal law without reflecting if it is necessary or the most suitable way of dealing with it. Although determining what conduct constitutes a crime does not always follow a rationale pattern often influenced by social and political factors, several commentators argue for the need for the process to be influenced by certain fundamental principles or some theoretical framework.13 1.3 Principles of criminal law Infringing criminal law leads to punishment, making it the strongest form of public condemnation. The oppressive nature of criminal law procedures infringes on personal autonomy, the liberty or free will to have a lifestyle of one’s choice, making it the most intrusive form of state intervention. Thus, the argument that criminal law as a mechanism to preserve social order needs to operate within certain coherent and logical principles. Scholars and practitioners have identified certain principles which should guide not only the legislature on the creation of crimes but also the actions of law enforcement agents who determine when to invoke or refrain from invoking the use of criminal law mechanisms within their authority. 9 Patrick Devlin, Morals and the Criminal Law (1965), cited in Clarkson and Keating Criminal Law, 8th edn (Sweet & Maxwell, 2014), p. 6. 10 Clarkson and Keating Criminal Law (2014:9). 11 H L. Parker, The Limits of the Criminal Sanction (1969), cited in Clarkson and Keating (2014:6). 12 J. Feinberg, The Moral Limits of the Criminal Law: Offense to Others (1985), p. 2. 13 J. Horder, Ashworth’s Principles of Criminal Law, 10th edn (OUP, 2022); Herring, Criminal Law: Text, Cases and Materials (2022); N. Padfield, Criminal Law, 9th edn (OUP, 2014). 5 The following principles have been identified by Andrew Ashworth in his book Principles of Criminal Law and endorsed by several scholars as a representation of the fundamental principles criminal law needs to aspire to. We also endorse these principles and identify them as a critical framework from which to review criminal law in Kenya. • The principle of individual autonomy recognises the freedom to live one’s life as one chooses. It allows a person to make lifestyle choices without coercion or undue influence. This personal lifestyle autonomy ought to be respected by the law. To meaningfully exercise lifestyle autonomy requires that one (i) is developmentally mature enough to understand the nature and significance of his choices and (ii) has sufficient rational and emotional capacity to exercise self-control and self-restraint.14 As a result, the law does not treat minors as having criminal responsibility. The law is also reluctant to treat persons considered insane as fully criminally responsible due to a lack of adequate capacity to act otherwise.15 • The principle of minimum intervention: The law should only criminalise behaviour that is harmful to others and only if there is no alternative means that is equally effective, which can be used to deter and is not too costly.16 This principle advocates using criminal law as a last resort, given its punitive nature that brings several negative consequences. The principle argues, firstly, that criminal law should only be used to censure substantially wrong conduct. Secondly, it argues strongly against use of criminal law where criminalisation is likely to give rise to greater negative social consequences or unwanted situations that are hardly better than the harm the law seeks to reduce.17 The negative social consequences would include creating corrupt avenues for law enforcement agents, allowing law enforcement agents to be selective in their enforcement, thus enhancing discrimination and allowing law enforcers to use overly intrusive enforcement measures. The principle of minimal intervention also requires that criminal law respect fundamental human rights and freedom.18 • The proportionality principle requires that criminal law’s response be reasonably proportional to harm committed or threatened. 19 The proportionality test considers whether the objective sought could be pursued less drastically. It is particularly sensitive to the adverse consequences that would follow with the adoption of coercive criminal laws. The proportionality arguments are also 14 Horder, Ashworth’s Principles of Criminal Law, (2022:75). 15 Ibid. 16 Ibid., 77. 17 Ibid., 78. 18 Ibid., 79. 19 Padfield, Criminal Law (2014:2). 6 especially considered during the sentencing stage, where the punishment should be proportional to the seriousness of the wrong done. • The principle of legality: This principle requires that criminal offences be clearly defined and capable of being obeyed. Constituting this principle are three other principles: o Principle of maximum certainty: It requires that citizens have fair warning of the criminal law’s provisions with no undue difficulty in ascertaining them.20 This means the law needs to be adequately accessible and defined with sufficient precision to enable people to adjust their behaviour accordingly. o Principle of non-retroactivity: A person should only be convicted of an offence declared criminal before carrying out the offence. It is only fair to convict a citizen once he has been informed of the law. o Principle of strict construction: Under this principle, any ambiguities arising from the meaning of a statutory provision should be resolved in favour of the defendant. • The principle of fair labelling: The description or label given to offences should reflect the seriousness of the wrong done. • The authoritarian principle justifies a more flexible and wide-reaching criminal law. Underlying this principle is the thin ice principle, which promotes the understanding that people who know their actions are on the borderline of illegality should hardly be surprised if their behaviour is held to be criminal.21 The principle leaves room for law enforcement agencies to use discretionary power in the public interest, ensuring conduct worthy of criminalisation does not go unpunished. The principle counters the maximum certainty principle. As we now proceed to discuss the criminal law system in Kenya, the student is invited to reflect on whether these principles are embedded within it and to what extent they have contributed to its development. 20 Horder, Ashworth’s Principles of Criminal Law, (2022:90). 21 Ibid., 93. 7 SECTION 2: Criminal law in Kenya The legal system of Kenya is recognised under the Constitution of Kenya and the Judicature Act (Chapter 8 Laws of Kenya). Criminal law also forms part of the Kenyan legal system. Criminal law is practised within the criminal justice system. A criminal justice system comprises the substantive part and the procedure. The substance of criminal law concerns the principles of criminal liability and the substantive constituent elements of every crime.22 The procedural component concerns what happens when a suspect is arrested, subjected to trial, convicted, and sentenced. As covered in this book, criminal law concerns itself with the substantive part of criminal law and not the procedural elements. Procedural aspects may only be considered to reinforce a particular substantive principle. 2.1 The origin of criminal law in Kenya Like other African communities, Kenyan communities in the pre-colonial period exercised their methods of social control.23 The control of social behaviour included control of acts that would today be known as criminal behaviour. Like other communal mechanisms put in place for social control, control of criminal behaviour in the traditional sense was based on kinship and the extended family system. The family was a very central institution within the social order. The family head would settle disputes in most Kenyan communities, for example, the Kikuyu, Meru, and Kamba. When they could not resolve, the matter would be referred to the Council of Elders for hearing and determination.24 The modern-day understanding of criminal law was absent, as there was no distinction between civil and criminal wrongs. Proscribed conduct and punishment only existed under unwritten community codes, which traditions were passed on from one generation to another. Justice in this context was more reconciliatory and compensatory than its retributive nature in the modern day. The communal and collective nature was also manifested through punishment when members of a community or family came to the aid of their members in paying penalties for their wrongdoing.25 The family or clan would consider this a matter of pride, not to allow the legal obligations of their member to remain unattended concerning the wronged family.26 In addition, punishment in many Kenyan communities was acted out within the spiritual realm.27 As such, the punishment was partly carried out by spirits who 22 G. Kemp eds, Criminal Law in South Africa, 3rd edn (OUP, 2018), p. 4. 23 See generally, Evelyne Asaala “African Philosophical Contributions to International Criminal Law” International Criminal Law Review (2024). 24 Sarah Kinyanjui, ‘Restorative Justice in “traditional pre-colonial criminal justice systems” in Kenya’, 10(1) Tribal Law (2009-2010). 25 Elias Taslim Olawale ‘Traditional Forms of Public Participation in Social Defence’ 27 International Review of Criminal Policy (1969), pp. 18-24. 26 Ibid. 27 Evelyne Asaala “African Philosophical Contributions to International Criminal Law” International Criminal Law Review (2024). 8 sent misfortunes to the offending clan, thus prompting the individual(s) that conducted the offence to undergo the accountability process to appease these spirits.28 The advent of colonialism did away with most of these traditional approaches to regulating criminal conduct and introduced a formal dispute-resolution system. In 1897 the British colonial administration introduced the Indian Penal Code and Criminal Procedure to be applied in the Protectorate of East Africa mainland, which territory included Kenya. The Indian Penal Code, which governed the Indian colony, codified laws from the English legal tradition, specially written and judge-made laws.29 In 1930, the colonial administration adopted a new Penal Code, modified to consider local circumstances.30 This Penal Code would apply in Independent Kenya upon attaining its independence in 1963. It has been amended several times, creating new offences while repealing others. Thus, the newly independent Kenyan state “inherited the laws, culture and practices of the colonial state”31 in all spheres of life, including criminal law. Section 3 of the Judicature Act enabled the application of common law and doctrines of equity in the Kenyan legal system. To date, common law principles and doctrines of equity continue to have far-reaching consequences, particularly at the judicial interpretational level of the substance of criminal law in Kenya. The Kenyan criminal justice system has been modelled on the English legal tradition. This legal system endured in Kenya’s post-independence period until 27 August 2010, when Kenya adopted a new Constitution. The former Chief Justice of Kenya has referred to this development as “a second independence”. 32 Indeed, the 2010 Constitution seeks to re-introduce Kenyan customary law cultures in dispute resolution, including criminal law. 28 Eshiwani Arthur Ashubwe, Truth false (Kenya Literature Bureau, 2013), pp. 25-28. Eshiwani describes how the ancestors and the spirit world would punish those who violated the customary norms of the Abaluyia community of Kenya. 29 Paul Swanepol “Codifying Criminal Law in East Africa during the Interwar Period”, Vienna Journal of African Studies, N. 37/2019, p. 98 30 Ibid., 111. 31 Mateo Taussig-Rubbo, “Pirate Trials, the International Criminal Court and Mob Justice: Reflections on Postcolonial Sovereignty in Kenya” (2011) 2(1) Humanity, pp. 51, 54. 32 Willy Mutunga, "The 2010 Constitution of Kenya and its interpretation: Reflections from the Supreme Court’s decisions" (Vol 1) [2015] SPECJU 6. 9 Summary 2.2 Sources of criminal law in Kenya The following are the sources of Criminal law in Kenya: • The Constitution of Kenya • Statutes and subsidiary legislation • The substance of the common law • General rules of international law • Any treaty or Convention ratified by Kenya • Customary law (to the extent that it is consistent with the Constitution) These sources are recognised in the Constitution and the Judicature Act, which establish the Kenyan legal system. Sections 3(1) and (2) of the Judicature Act [as amended by The Statute Law (Miscellaneous Amendments) Act, 2018] further reiterates that the legal norms applicable in Kenya also include: • Doctrines of Equity • Statutes of general application in force in England on the 12th of August 1897 A legal practitioner or a judge can resort to any of these sources when submitting to a court or writing their judgments in a criminal law trial. However, some of these sources cannot be used as a basis for criminalising certain conduct in society. For example, customary law does not provide a basis for criminalising conduct since it mainly exists in an unwritten form, and the constitution requires that an offence and its punishment be spelt out under written law. Similarly, international law cannot be used to raise a criminal charge against a person unless the relevant treaty has been domesticated under Kenyan law. However, nothing bars all these legal norms from being used by the courts as interpretational tools. Pre-Colonial (African customary law) Colonial (Introduction of the Penal Code) Post-Colonial (Key developments: the 2010 Constitution) 10 2.2.1 The Constitution of Kenya As the land's supreme law, the Constitution generally governs all laws. Its “validity or legality […] is not subject to challenge by or before any court or other State organ.”33 This implies that every law must comply with all the constitutional principles, failure of which it can be invalidated. The Chapter on the Bill of Rights is an outstanding aspect of the Constitution. The rights contained therein are important in determining the scope and application of offences. This chapter will only give an overview of the rights considered to have a significant and direct impact on the criminal justice system in Kenya. Some key provisions that have had an impact on the interpretation of the rights are: Art 19 (2) recognises human rights and fundamental freedoms as essential to preserving individual and community dignity and promoting social justice. Art 24 highlights the extent to which the rights may be limited. It provides that a right can only be limited as provided by the law and only to the extent that such limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The courts need to take certain factors into account when considering limiting a right. They include: 1. “the nature of the right or fundamental freedom; 2. the importance of the purpose of the limitation; 3. the nature and extent of the limitation; 4. the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and 5. the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.” There is a category of rights the Constitution deems to be absolute, and no derogation is allowed. These are listed under Article 25 of the Constitution of Kenya, including: • freedom from torture, cruel/inhuman, and degrading treatment or punishment; • freedom from slavery or servitude; • the right to a fair trial; and • the right to an order of habeas corpus. Habeas corpus means “produce the body”. In criminal law, it becomes relevant when an accused person who has been arrested disappears while in police custody. In this case, the relatives or anyone concerned can petition the High Court to produce the accused person's body. 33 Article 2(3). 11 As noted, the Constitution recognises very wide and comprehensive rights and freedoms that cannot all be discussed. The other rights which will be highlighted are those considered most important for criminal lawyers. The rights are only superficially highlighted without describing their nature. What constitutes the nature of particular rights might be discussed when necessary to explain a principle or when looking into criminal cases where such rights have played a key role in the decision. Some of the fundamental rights and freedoms include: Art 26, the right to life, which is considered to begin at conception. Art 27, equality and freedom from discrimination; emphasises the right of every person to equal protection and equal benefit of the law. Art 28, human dignity, recognises the inherent dignity of every person and the right to have dignity respected and protected. Art 29, the right to freedom and security of the person, protecting the person from arbitrary deprivation of freedom. Art 30, the right not to be held in slavery or servitude or required to perform forced labour. Art 31, the right to privacy. Art 32, the right to freedom of conscience, religion, thought, belief and opinion. Art 33, the right to freedom of expression, it does not extend to propagating war, inciting violence, or hate speech. Art 36, the right to freedom of association. Art 37, the right to assemble, demonstrate, picket, and present petitions to public authorities peaceably and unarmed. Art 38, the right to make free political choices. Art 39, the right to freedom of movement and residence in Kenya. Art 40, the right to acquire and own property. Art 49, rights of arrested person, which include; being informed of the reason for the arrest, right to remain silent, right to communicate with an advocate and other persons of necessary assistance, right not to be compelled to confess or admit to any evidence that could be used against the person, to be held separately from those serving sentence, to be brought to court as soon as reasonably possible, on appearance in court to be charged or informed of the reason for detention, to be released on bond or bail. Art 50, rights to a fair hearing. This entails the presumption of innocence, sufficient information on the charge, adequate time to prepare for defence, a public trial under a court established under the Constitution, trial without unreasonable delay, to be present at trial unless it is impossible, the right to legal representation of their own choice, the right to remain silent, the right to be informed of the consequences of not remaining silent, the right to be informed in advance of the evidence, not to be tried of an offence based on a previous acquittal or conviction, to the benefit of the least severe punishment if this has changed between the time the offence was committed and the time of sentencing, the right to appeal and the principle of legality. 12 Impact of the rights on particular offences The courts have pronounced themselves on a number of the rights and their impact on particular offences, which will be discussed as and when they arise in the course of this text. A couple of examples are highlighted herein. Courts have evoked the right to a fair trial in several instances. An example is when condemning certain penal provisions deemed to have taken away the right of the presiding officer to use his discretion to determine an appropriate sentence. Thus, in Wakesho v Republic 34 court declared the sentence of holding an insane person considered guilty of committing a crime at the president’s pleasure violated the right to fair trial and freedom from cruel, inhuman and degrading treatment. The Court of Appeal affirmed a similar rationale that had been adopted in several High Court cases where the provision was declared unconstitutional, noting the court should have the discretion to impose appropriate measures to suit the circumstances of each case. In Francis Karioko Murateru and Anor v R [2017]35, the Supreme Court, although recognising the death sentence as a valid and legal sentence, held that it was unconstitutional to the extent that it was the mandatory sentence for the offence of murder. The court held that as a mandatory sentence, it violated the principle of fair trial to the extent that it denied the possibility to consider mitigating circumstances for a murder convict. The principle of legality also constitutes the right to a fair trial and has been used to challenge the validity of several offences. The principle of legality finds expression in the Latin maxim ‘nulla poena sine lege’, loosely translated as no one shall be made to suffer except for a distinct breach of criminal law. The prohibition shall be laid down beforehand in precise and definite terms. In Kenya, it is applied through Articles 50(2)(n) and 50(2)(p) of the Constitution. The mischief that the principle seeks to address is: 1.Extension by analogy of criminal offences to cover cases not obviously within the offences. 2.The retrospective imposition of criminality. 3. Prohibits the formulation of criminal statutes in excessively wide and vague terms. In Aids Law Project v Attorney General & 3 Others36,the Court, while declaring a provision in the HIV and AIDS Prevention and Control Act to be vague and overbroad, violating the principle of maximum certainty, underscored the fact that “[l]egality is a fundamental rule of criminal law that nothing is a crime unless it is clearly forbidden in law.” 34 KECA 223 (KLR) (Criminal Appeal 8 of 2016) [2021]. 35 KESC 2 (KLR) Petition no. 15 of 2015. 36 [2015] eKLR Petition 97 of 2010. 13 This rationale has been applied in several subsequent decisions. In Robert Alai v The Attorney General & Anor 37 , the court declared Section 132 of the Penal Code unconstitutional. The Section created an offence called ‘undermining the authority of a public officer’. The court believed the words were too vague and wide to the extent that it is unclear when a person is said to have undermined a public officer’s authority. It reiterated that ‘[a] law especially one that creates a criminal offence should be clear and unambiguous. It should not be so widely and vaguely worded as to net anyone who may not have intended to commit what is criminalised by the Section’- para. 56. The court also believed that the provision limited the freedom of expression under the Constitution. Such limitation could only be acceptable if it was reasonable and justifiable in an open and democratic state and aimed to serve society. The court held that the said provision did not meet the standard above and amounted to criminalising criticism of the government. In Geoffrey Andare v Attorney General & 2 Ors38,the court declared that a provision which criminalised the publication of certain information deemed grossly offensive in the Kenya Information and Communication Act was unconstitutional. It held that the provision was vague, broad and uncertain, that individuals do not know the parameters within which their communication falls, offending the principle requiring certainty in legislation creating criminal offences. The court believed the limitation imposed on the freedom of expression by the provision was not reasonable and justifiable in a democratic society. It stated there were other less restrictive means of dealing with the mischief the provision intended to achieve, such as using libel laws regarding civil defamation. In Jaqueline Okuta & Anor v Attorney General & 2 Ors39, the court declared the offence of criminal defamation unconstitutional, asserting that it was an unreasonable and unjustifiable limitation on the freedom of expression. The following extracts from the judgment point to its rationale: “Para. 22. A Key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought. Even if objective is of sufficient importance and the measures in question are rationally connected to the objective, the limitation may still not be justified because of the severity of its impact on individuals or groups. Para.36. The practical consequences that would ordinarily flow from a complaint of criminal defamation are as follows; the accused person would be investigated and face the danger of arrest. This would arise even where the alleged defamation is not serious and where the accused has an available defence to the charge. Thereafter, if the charge is prosecuted, he will be subjected to the rigors and ordeal of a criminal trial. Even if the accused is eventually acquitted, he may well have undergone the traumatizing gamut of arrest, detention, remand and trial. 37 [2017] eKLR Petition no. 174 of 2016. 38 [2016] eKLR Petition no. 149 of 2015. 39 [2017] eKLR Petition no. 397 of 2016. 14 Moreover, assuming the accused has employed the services of a lawyer, he will also have incurred a sizeable bill of costs which will normally not be recoverable. Para. 37. I would accept that the foregoing tribulations are not peculiar to the offence of criminal defamation and would potentially be encountered by an accused person charged with any serious criminal offence. However, what is distinctive about criminal defamation, though not confined to that offence, is the stifling or chilling effect of its very existence on the right to speak and the right to know. This in my view, is the more deleterious consequence of its retention in the Criminal Law Code. Para. 39. The chilling effect of criminalizing defamation is further exacerbated by the maximum punishment of two years imprisonment. […] This penalty, in my view, is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements. Para. 40. Another very compelling reason for eschewing resort to criminal defamation is the availability of an alternative civil remedy under the actio injuriandum in the form of damages for defamation. To my mind, this affords ample compensatory redress for injury to one’s reputation. Thus, the invocation of criminal defamation to protect one’s reputation is in my view unnecessary, disproportionate and therefore excessive and not reasonably justifiable in an open democratic society based on human dignity, equality and freedom.” The principle of maximum certainty does not imply absolute certainty. Open-ended terms are occasionally allowed to avoid over complicating the law with lengthy definitions that might subject it to unintelligible rigidity.40 Thus vague terms are allowed, which should be reinforced by other definitional elements, guidelines or illustrative examples. 41 When looking into maximum certainty, the question that needs to be determined is whether the law performs its function of guiding behaviour. 42 This rationale was used by the court in EG and 7 Ors v Attorney General; DKM and 9 Ors (Interested Parties); Katiba Institute and Anor (Amicus Curiae)43 when it declined to declare S. 162 (a) (c) and 165 of the Penal Code as unconstitutional for being vague, confirming the certainty and clarity of the definition of the contested words: unnatural offences, against the order of nature and grossly indecent; by referring to other reference materials such as law dictionaries and other judicial pronouncements. The following extracts from the judgment are notable: “Para. 274.A statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand. There are several reasons a statute may be considered vague. In general, a statute might be called void for vagueness when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. A statute is also 40 Horder, Ashworth’s Principles of Criminal Law, (2022:90). 41 Ibid., 91. 42 Ibid., 90. 43 Petition no. 150 of 2016. 15 void for vagueness if a legislature’s delegation of authority to administrators is so extensive that it would lead to arbitrary prosecutions. Para. 276.Prior to determining whether the challenged language is overbroad, we must properly construe its meaning. In so doing, we must read the text as a whole, assigning a meaning to every word and phrase and not permitting any portion of the text to be rendered redundant. Para. 278.Having established that the impugned phrases have been clearly defined in law dictionaries and in a catena of judicial pronouncements, it is our considered view that lack of definitions in the statute per se does not render the impugned provisions vague, ambiguous or uncertain.” In giving life to what it has termed a progressive Constitution, the courts have adopted an interpretative approach that is generous and purposive, giving meaning to provisions that protect human rights.44 The Bill of Rights in the constitution has introduced some basic principles that criminal law must respect. Respecting human rights minimizes criminalisation requiring that proportionality is observed in its response. The Constitution is thus gradually shaping Kenyan criminal law from a principled viewpoint, dictating that all public authorities in the criminal justice system exercise their powers in a manner that conforms to its values. Point of reflection The principles underlying the Chapter on Bill of Rights in the Kenyan Constitution 2010 challenge the approach to creating crimes, demanding a more principled-based criminalisation. The student is asked to reflect on what conduct should constitute a crime in light of the Bill of Rights. To what extent should morality be used to justify criminalisation? To what extent does harm have a role in criminalisation? To what extent should the principles of individual autonomy, minimum intervention, proportionality, legality, fair labelling and the authoritarian principle guide the process? To contribute to the debate, the students must read the following cases, paying attention to the arguments by the parties and the rationale by the courts in arriving at their decisions: NGO’s Co-ordination Board v E.G. & 4 Others; Katiba Institute (Amicus Curiae)45, the Supreme Court by a majority declared that the refusal to register an organisation of persons in the community of lesbians, gays, bisexuals, transgender and the queers amounted to a violation of their rights to freedom of association and freedom from discrimination. EG and 7 Others v Attorney General; DKM and 9 Others (Interested Parties); Katiba Institute and another (Amicus Curiae)46 where the court declined to declare S. 162 (a) (c) and 165 of the Penal Code as unconstitutional. The Sections criminalise having sex with another against the order of nature, effectively criminalising consensual sex between adult persons of the same sex. 44 Francis Karioko Murateru & anor v R [2017] eKLR, para. 65. 45 Petition 16 of 2019[2023] KESC 17 (KLR). 46 Petition no. 150 of 2016. 16 Kamau v Attorney General & 2 Others; Equality Now and 9 Others (Interested Parties); Katiba Institute and Another (Amicus Curiae) (Amicus Curiae)47 the court declined to declare the Act prohibiting female genital mutilation as unconstitutional, holding that it is a harmful practice on women and girls infringing upon their worth and dignity. 2.2.2 Statutes and subsidiary legislation The primary legislation that governs criminal law includes the Penal Code and several other specific offences statutes, like the Sexual offences Act, the Traffic Act, the Criminal Procedure Code, the Counter Trafficking in Persons Act, The Narcotic Drugs and Psychotropic Substances Act, Terrorism Prevention Act, The Cyber Misuse and Cyber Crimes Act, Anti- Corruption and Economic Crimes Act no.3 Of 2003, Proceeds of Crime and Anti-Money Laundering Act no. 59B of 2009, revised in 2012 and subsidiary legislation. All these statutes seek to regulate criminal law's substance and procedural issues. While all the other statutes make substantive provisions on crimes, the Criminal Procedure Code is mainly a procedural guide to the court, the lawyers, and parties to a crime on what to do at any given time in criminal proceedings. Other statutes create specific offences within the thematic areas they seek to regulate. These include the Income Tax Act, the Banking Act, and the Environmental Management and Coordination Act. The major purpose of these statutes is to regulate an aspect of governance but impose criminal sanctions on those who breach the Acts. In some instances, criminal offences are created by subsidiary legislation. A statute may give a minister or county power to make regulations and prescribe for their breach. Such laws are known as subsidiary legislation, and some create criminal offences. Thus, a minister may impose criminal sanctions over certain conduct through subsidiary rules and regulations. Similarly, county assemblies may seek to regulate certain specific aspects unique to their counties through prescribing offences and imposing criminal sanctions. 2.2.3 The Substance of the common law, doctrines of equity and statutes of general application in force in England on 12 August 1897 Common law and doctrines of equity were brought into Kenya during colonial times under the Kenya Colony Order in Council 1921. The order established His Majesty’s Supreme Court of Kenya (“The Supreme Court”) and granted it full jurisdiction, civil and criminal in the colony. It also provided that the Supreme Court could exercise its jurisdiction in conformity with the substance of common law and doctrines of equity and Statutes of general application. A similar provision subsists under the current Judicature Act [as amended by The Statute Law (Miscellaneous Amendments) Act, 2018 of Kenya. Under Sections 3(1) and (2) of the Judicature Act, the jurisdiction of the Supreme Court, Court of Appeal and High Court, the Environmental and Land Court, the Employment 47 Constitutional Petition no. 244 of 2019[2021] KEHC 450 (KLR). 17 and Labour Relations Court of Kenya should be exercised in conformity with, inter alia, the substance of common law, the doctrines of equity and statutes of general application in force in England on 12 August 1897. However, these sources are only applicable in Kenya to the extent that the circumstances and the people of Kenya permit. Although there is a continuous use of common law in the United Kingdom in that serious offences like murder, manslaughter and conspiracy to defraud are still derived from judicial pronouncements, in Kenya, all offences have been captured in Statute. Even in the United Kingdom, there is a general agreement among the courts not to create new offences or abolish those in existence. The House of Lords in Knuller Ltd v Director of Public Prosecutions [1973] AC 435 unanimously rejected the existence of a residual power vested in the courts to create new offences or, as was the case in Jones (2006) UKHL 16; Goldstein and Rimmington (2005) UKHL 63, to widen existing offences as to make punishable conduct of a type not hitherto subject to punishment. While common law is not a source of law in the sense of criminalising certain actions in society, it remains an important source of criminal law as an interpretational tool. In most instances where statutes do not offer sufficient guidance in elaborating on some crimes, the courts have resorted to common law and doctrines of equity to fill the gap. As noted in the subsequent chapters, Kenyan courts make extensive reference to common law principles either as a guiding horizon or for comparative purposes and as examples not to be followed. There is hardly any principle that Kenyan courts discuss without citing related common law positions as embodied in case laws. Even for those clear principles, the courts will always emphasize their reasoning by referring to common law, at least for comparative purposes. 2.2.4 International law Article 2 (6) and 50 (2) (n) (ii) of the Constitution of Kenya recognises international law as a source of law in Kenya. International law has proved to be an especially important source when elaborating on the nature of specific constitutional rights. Several cases reveal that courts often refer to several treaties to which Kenya is a signatory. The courts use treaties when defining the extent to which a right or principle of law is applicable in a particular case. 2.2.5 African Customary Law In the criminal law context so far, African customary law has mainly featured during the plea bargaining process. It is discussed in Section 1.5.2.4 below when looking at alternative dispute resolution in the criminal trial process. 18 SECTION 3: CRIMINAL JUSTICE PROCESS In practice, once a crime is reported, the police will investigate and gather evidence to determine whether or not to prosecute the alleged crime. The Police Act, Cap 84 Laws of Kenya, provides for the investigative powers of the police. The police may also discover crimes in the course of carrying out their surveillance duties or directly encounter crimes in the course of their daily policing work. Apart from the police, there are other agencies with investigators in specialized sectors, such as the Ethics and Anti-Corruption Commission. 48The Criminal Procedure Code regulates the powers of investigating, searching and gathering evidence, with the Constitution reiterating that “evidence obtained in a manner that violates the fundamental rights of an accused is inadmissible to the extent that it renders the trial unfair.”49 The police have powers to arrest and detain, governed by the Criminal Procedure Code and the Constitution, which duly provides for the rights of arrested persons. Once the investigating officer has gathered sufficient evidence and considers the matter worthy of prosecution, it presents the case file to the prosecutor. If satisfied with the evidence gathered and the framing of charges, the prosecutor will endorse the case to proceed to trial. 3.1 The Director of Public Prosecution The office of the Director of Public Prosecution (ODPP) is established under Article 157 of the Constitution. The Director of Public Prosecutions (DPP) can undertake criminal proceedings. This power is exercised through public prosecutors, who are advocates of the High Court appointed by the DPP, or through prosecution assistants, who are police prosecutors. The police prosecutors prosecute in the subordinate courts, while the public prosecutors mainly prosecute in the Superior Courts (High Court, Court of Appeal and Supreme Court). While exercising these powers, the ODPP is expected to act independently and not “under the direction or control of any person or authority”.50 The decision on whether or not to prosecute in a certain case lies with the DPP. This decision is exercised by applying the evidential test, a requirement of sufficient evidence, and the public interest test. 51 In its National Prosecution Policy, the ODPP sets out the general principles applied when executing the prosecution mandate. Other than the DPP, a private person may also institute criminal proceedings. This is implied under Article 157(6) (b) of the Kenyan Constitution, which allows the DPP to take over criminal proceedings instituted by another person. An individual may institute criminal proceedings where the State is unwilling to prosecute or when apprehensive of official lethargy, bias or corruption.52 To initiate private prosecution, one must seek the court's permission to prosecute privately under Section 88(1) of the Criminal Procedure 48 S. 23 Anti-Corruption and Economic Crimes Act (2003). 49 Article 50 (4). 50 Article 157(10), 2010 Constitution. 51 National Prosecution Policy, Office of the Director of Public Prosecution, pp. 6-9. 52 K. Oyier, Criminal Prosecutions and Essence of Criminal Offences in Kenya (2018, Law Africa), p. 92. 19 Code. The essence of seeking such permission is to enable the criminal justice system to rid itself of busy bodies and malicious elements from private, public interest defenders. The prosecution may also consider alternatives to prosecution, such as plea negotiation and agreements, diversion and alternative and traditional dispute resolution.53 Under the plea negotiation agreement, the accused person may agree to plead guilty to fewer or lesser charges. Ss. 137A to 137O of the Criminal Procedure Code governs plea negotiation agreements. Diversion involves diverting cases from the formal justice system and may include waving prosecution or discontinuing proceedings. It is mainly used in circumstances involving children in conflict with the law.54 Under alternative and traditional dispute resolution, the prosecution may encourage reconciliation and compensation in misdemeanours while ensuring the traditional dispute resolution mechanism does not violate the Bill of Rights nor is repugnant to justice and morality.55 3.2 The trial process Once an accused has been arrested and presented to the court with charges preferred against him or her, he will be required to plead to the charge. If he pleads guilty, the court will convict him on his plea of guilt and pass a sentence. If he pleads not guilty, the matter will proceed to trial. Where an accused pleads not guilty, he is entitled to bail, which allows him to be released from custody pending trial.56 Bail is an agreement by the accused person that should he fail to attend court as required; he will pay a certain amount of money to the court. The accused or his sureties might be required to deposit the said amount with the court or evidence of property of its equivalent. The right to bail is recognised under Article 49 of the Constitution. Such bail should be granted on reasonable conditions and will only be denied if compelling reasons exist. What is reasonable is determined by considering the nature of the charge and weight of the evidence.57 Compelling reasons to deny bail include; whether the accused is a flight risk considering the nature of the charge and seriousness of the punishment, whether the accused might interfere with witnesses or conduct of the investigation, failure of the accused to adhere to bail and bond terms, the safety and protection of the accused, the need to protect victims, employment status of the accused, public order and security policy.58 A pre-trial conference may be held; if not, the court at the beginning of the trial will address issues concerning trial preparation.59 These issues include disclosure of evidence, 53 National Prosecution Policy, Office of the Director of Public Prosecution, p. 13. 54 Ibid., 14. 55 National Prosecution Policy, Office of the Director of Public Prosecution, p. 15. 56 See S. 123-133 CPC. 57 Moses Kasaine Lenolkulal v Republic [2019] eKLR, criminal appeal no. 109 of 2019. 58 Bail and Bond Policy Guidelines; The Judiciary Republic of Kenya. National Council on the Administration of Justice, 2015. 59 Judiciary Criminal Procedure Bench Book, ‘Case Management’, p. 69. 20 protection of vulnerable witnesses, number of witnesses to be called, whether there is a need for an expert witness and use of an interpreter.60 The criminal trial commences with the prosecution presenting its case. The prosecution calls its witnesses and produces evidence to prove the accused person committed the alleged crime. The prosecution closes its case once all witnesses have testified and cross-examined by the defence. If the court finds the prosecution has established a reasonable case against the defendant, known as a prima facie case, it will call upon the accused to make his defence. The defendant then presents its case. Once the defence closes its case, the court then makes a verdict. If the court finds the defendant guilty, it proceeds to conduct a sentencing hearing where all parties can address the court on the appropriate sentence. The victim is also allowed to address the court during the sentencing hearing. The court then passes its sentence taking into account the sentencing guidelines policy. A person convicted of an offence may appeal against the sentence or conviction or both. The right to appeal is governed by the Criminal Procedure Code.61 3.2.1 Victim participation An interesting development in criminal litigation is expanding the victim's participation.62 The constitution guarantees victims of crime the right to access justice.63 The enactment of the Victim Protection Act of 2014 gives the victim a more prominent role in criminal litigation. Victims can present their views at various stages during the criminal trial process. The rights include a presence in the course of trial personally or through a representative, presenting views concerning plea bargaining, accessing evidence of the prosecution and defence, information on the preferred charges and giving views during sentencing through victim impact assessment statements.64At stages it deems appropriate, the court shall allow the victims to express their concerns in a manner consistent with a fair and impartial trial that does not prejudice the accused person. 3.2.2 Burdens and standards of proof Proving a criminal case is a matter of criminal procedure and evidence. The general rule is that the onus of proof in criminal cases rests on the state. This is founded on the maxim: “He who alleges must prove”. In R v Subordinate Court of the First Class Magistrate at City Hall, Nairobi and another, ex parteYoungidar Pall Sennik and Another Retread Ltd (2006) 1 EA 330: it was stated that when a person is bound to prove the existence of any facts, it is the law that the burden of proof lies on that person. 60 Ibid. 61 S. 347, 379, Criminal Procedure Code (CPC). 62 J. Okoth, ‘Drawing a Balance: Establishing the Parameters of Victim Participation in Criminal Proceedings in Kenya and Lessons from the International Criminal Court’, in H.J van der Merwe, Gerhard Kemp(eds) International Criminal Justice in Africa, 2018. 63 Article 48, 2010 Constitution of Kenya. 64 S. 9 and 17 Victim Protection Act, 2014. 21 a) Burden of proof on the state The onus to prove a criminal case is always on the state. The standard of proof is beyond a reasonable doubt. Any doubt is interpreted in favour of an accused person. The case of Joseph Mbithi Mwaula and another v R 65held that mere silence by an accused does not invite the finding that the prosecution has established its case beyond reasonable doubt. b) Burden of proof on the accused The accused never has a burden to disapprove of the charge. However, the onus of proof shifts to the accused in exceptional circumstances as follows: a. When the accused pleads insanity/raises the defence of insanity; b. A statute may expressly burden the accused to prove a particular fact. Section 323 of the Penal Code creates the offence of having or conveying suspected stolen property – it shifts the burden to the accused to satisfy the court of how they came into possession of the property. Even then, the state still has to prove the crime beyond a reasonable doubt, after which the burden shifts to the accused. Section 29 of the Weights and Measures Act places the burden on an accused person found in possession of a measuring instrument to explain that the instrument was used for trade purposes. After the state has proven the positive elements of a crime and an accused makes an averment to the contrary, the accused has to prove the negative element by producing affirmative counter-evidence. For example, when the offence is driving without a licence, the state has to prove this fact beyond a reasonable doubt. The accused will then have to prove that they had a licence. 3.2.3 Sentencing Punishment is what gives criminal law its bite. It is expressed through the sentence passed upon conviction. The punishment meted out during sentencing reflects the degree of impropriety and dangerousness of the wrongdoer's conduct and the extent of the public's resentment towards the particular offence. When passing sentences, the Kenyan Judiciary looks to the Sentencing Policy Guidelines. The guidelines seek “to provide a framework within which courts can exercise their discretion during sentencing in a manner which is objective, impartial, accountable, transparent and which would promote consistency and uniformity in the sentences imposed.” 66Adhering to these principles during sentencing is hoped to enhance justice delivery and promote public confidence in the Judiciary. Principles underpinning the sentencing process include proportionality, equality, accountability, inclusiveness, respect for human rights and fundamental freedoms, and 65 (1980) KLR 127. 66 Sentencing Guidelines, Point 2.1. 22 adherence to domestic and international law with due regard to recognised regional and international standards on sentencing. The principle of proportionality implies that a court should impose a sentence to match an accused person's offence.67 To this extent, no excessive sentences should be imposed in instances where they are unwarranted. The principle of impartiality requires that offenders be treated equally during sentencing. Offenders who have committed the same offences should suffer the same fate during sentencing. Through the principle of accountability, every presiding judge or magistrate exercising criminal jurisdiction is to explain the rationale for their decision. Respect, for human rights and fundamental freedoms during sentencing is premised on upholding the dignity of the offender and the victim.68 Moreover, it aids in contributing to the broader enjoyment of human rights. Inclusiveness requires both offender and victim to participate in the sentencing process. In addition to these principles, the policy requires that the sentences meet the objectives of retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. These objectives reflect the justifications often used for punishment. Retribution requires that the offender is punished because he deserves punishment for the wrong done, with an appropriate punishment commensurate to the seriousness of the offence being meted out. Deterrence aims at discouraging the commission of crime. It is hoped that the unpleasant experience of punishment will discourage the offender from repeating the offence, and the example of punishment will discourage others from committing such crimes. Rehabilitation is aimed at reforming the offender’s behaviour. Restorative justice aims to restore the harm caused by the crime by adequately responding to the needs of the victims, offenders and their community supporters. The community is protected through the locking up of those who pose a threat to it. Denunciation involves the public expression of its disapproval of the crime committed. Interestingly, all these objectives are to be considered when sentencing, with none taking precedence over the other. 69 It is doubtful whether consistency and appropriate sentences can be achieved when the courts have all these objectives in mind without having one of the theories as the dominant approach to sentencing.70 67 Sentencing Policy Guidelines, Paragraph 3.1. 68 Sentencing Policy Guidelines, Paragraph 3.1. 69 Sentencing policy Guidelines, para. 4.2, p. 15. 70 J. Okoth ‘The pursuit of Consistency in Sentencing: Exploring Kenya’s Sentencing Guidelines’, South African Journal of Criminal Justice 2020 Vol 33, no. 1. 23 3.3 Alternative Dispute Resolution in the Criminal Process The Constitution contemplates alternative dispute resolution mechanisms, which often involve traditional customary law mechanisms.71In August 2020, the Judiciary launched an Alternative Justice System Baseline Policy. 72 The policy confirms that other mechanisms have been used in criminal cases in various courts. However, there is no clarity on the scope and manner of application. There is a recommendation by the Alternative Justice System Task Force that rules of reference be developed to guide the process of implementation of Art 159(2) (c) of the Constitution. The practice before the 2010 Constitution only promoted out-of-court misdemeanour settlements, not felonies. The principle was enunciated in Juma Faraji Serenge alias Juma Hamisi v R,73 where the High Court while considering the appropriate approach in promoting, encouraging, and facilitating reconciliation as provided for under Section 176 CPC, reiterated that the “real” complainant in all criminal cases is the state and the victim is merely a “nominal” complainant. It held that S. 176 was only applicable to minor offences and could not, for whatever reason, withdraw a case relating to a felony. The position has been reiterated in other decisions which assert that s. 176 of the Criminal Procedure Code allows courts to promote and encourage settlement of criminal proceedings amicably in cases of common assault or any other offence of a personal or private nature not amounting to a felony.74 Since the advent of the 2010 constitutional order, several murder cases have been resolved through traditional dispute resolution mechanisms.75 In R v Mohamed Abdow Mohamed76, for example, the premier classical case on this subject, the Court departed from the position that out-of-court negotiations would only be held in cases of misdemeanours that are not aggravated. The Court went out of its way to allow the termination of the proceedings. It discharged the accused on the strength of a negotiated settlement based on customary and traditional practice. The victim’s family and the accused of the Islamic faith submitted to a traditional forum and participated in negotiations, reaching an agreement in the form of compensation considered adequate to restore the deceased's family. The aggrieved family received camels, goats, and traditional ornaments. A ritual was performed to pay for the blood of the deceased. Nonetheless, there is still a persistent practice by the courts showing a reluctance to allow alternative justice resolution for criminal cases involving felonies. There is the demand by courts that allowing restorative justice mechanisms requires the participation and 71 Art 159 CoK. 72 https://www.unodc.org/documents/easternafrica//Criminal%20Justice/AJS_Baseline_Policy_2020_Kenya.pdf (last accessed in April 2024). 73 [2007] eKLR. 74 Kelly Kases Bunjika v Director of Public Prosecutions (DPP) and anor [2018] eKLR, Criminal Miscellaneous Application no. 79 of 2017. 75 Republic v Mohamed Abdow Mohamed [2013] eKLR; Republic v Ishad Abdi Abdullahi [2016] eKLR; Republic v Denu Lallafa Omar [2016] eKLR; Republic v Musili Ivia & another [2017] eKLR; Republic v Juliana Mwikali Kiteme & 3 others [2017] eKLR; Nelson Kandie Sumukwo v Republic [2018] eKLR. 76 [2013] eKLR. 24 approval of the Director of Public Prosecution (DPP), the custodian of the prosecutorial power.77 Where the DPP is not supportive of such out-of-court settlement, the courts will not interfere with the prosecution's decision. In Kelly Kases Bunjika v Director of Public Prosecutions (DPP) and anor78, the court held that to approve a request to withdraw a case for purposes of alternative justice mechanisms, it must be consistent with the parameters of public interest, interests of the administration of justice and need to prevent abuse of legal process. It asserted that the nature of the offence had to be considered in considering whether an alternative justice mechanism was an appropriate way to dispose of the case. It reiterated that it was in the public interest that serious offenders be prosecuted and suitably punished if found guilty. 77 Mary Kinya Rukwaru v Office of the Director of Public Prosecutions and Anor [2016] Petition no. 285 of 2016; R v Abdulahi Noor Mohamed (alias Arab) [2016] eKLR, Criminal Case no. 90 of 2013; Kelly Kases Bunjika v Director of Public Prosecutions (DPP) and anor [2018] eKLR, Criminal Miscellaneous Application no. 79 of 2017. 78 [2018] eKLR, Criminal Miscellaneous Application no. 79 of 2017. 25 SECTION 4: CONTENT AND STRUCTURE OF THE PENAL CODE The Penal Code lays down the general rules and principles of criminal liability and proscribes a broad spectrum of offences. It classifies these offences into several categories: offences against public order; offences against the administration of lawful authority; and offences relating to the administration of justice, which include: rescues and escapes and obstructing officers of the court. An additional category is offences harmful to the public in general, which include: offences relating to religion, offences against morality; offences relating to marriage and domestic obligations; nuisances, offences against health and convenience and defamation. A further category comprises offences against the person. These are murder and manslaughter, and connected offences. Finally, offences relating to property include theft, robbery, robbery with violence and connected offences. Illustrated overview of the structure of the Penal Code 4.1 Classification of crimes Kenya has adopted the common law practice of distinguishing crimes as either felonies or misdemeanours. Section 4 of the Penal Code distinguishes these two categories in terms of the seriousness of the offences and the punishment. It defines a felony as “an offence which is declared by law to be a felony or, if not declared to be a misdemeanour, is punishable, without proof of previous conviction, with death, or with imprisonment for three years or more.” In simple terms, these two categories can be distinguished as follows: i. Felonies – serious crimes punishable by death or imprisonment for more than three years ii. Misdemeanours – less serious crimes punishable by fine, probation, or imprisonment for less than three years The Penal Code of Kenya Categories of Offences PART I: GENERALPROVISIONS • Interpretations • General rules of criminal responsibility • Parties to offences PART II: CRIMES • Offences against public order • Offences against the administration of lawful authority • Offences injurious to the public in general • Offences against the person • Offences relating to property • Malicious injury to property • Forgery, coining counterfeiting and similar offences • Attempts and conspiracies 26 This practice of distinguishing crimes was abolished by statute in England,79but it still applies in Kenya. 4.2 Criminal courts jurisdiction Jurisdiction over crimes is subject to the general court structure of the judiciary of Kenya. This appears as follows: (source: www.judiciay.go.ke) 4.2.1 The Supreme Court This is the highest court in the judicial structure of Kenya. Its mandate concerning the adjudication of criminal cases arises from its appellate jurisdiction. As an appellate court, the Supreme Court is mandated to entertain appeals from the Court of Appeal in two instances. First, for matters that arise involving the interpretation of the constitution.80 Second, in any other case, the Supreme Court or the Court of Appeal certifies the matter to be of general public importance.81 These appeals may originate from the Court of Appeal or any other court or tribunal prescribed under the legislation.82 4.2.2 The Court of Appeal This is the second court in the hierarchy of the Kenyan judicial system. The Court of Appeal has jurisdiction to hear appeals from the High Court and other courts or tribunals prescribed under statute.83 79 Administration of Justice (Felonies and Misdemeanours) Ordinance, Cap. 328 of 1991. 80 Article 163 (4) a. 81 Article 163(4) b. 82 Article 163(3) b. 83 Article 164 (3). 27 4.2.3 The High Court The High Court has four jurisdictional mandates that directly affect criminal law. First, it enjoys unlimited original jurisdiction in criminal matters.84 Second, the High Court also has jurisdiction to determine questions concerning the denial, violation, infringement or threat to any rights or fundamental freedoms under the Bill of Rights.85 Third, it has jurisdiction to hear appeals from the magistrate courts. Finally, to determine questions concerning the interpretation of the Constitution.86 4.2.4 The Magistrates Courts The jurisdiction and competence of Magistrates Courts are prescribed under the Magistrates’ Courts Act (Cap 10 of 2012). The Magistrates Courts are the backbone of Kenya’s criminal jurisdiction since they have original jurisdiction over all criminal cases except the cases of murder and treason. Even for cases of murder, the High Court in Charles Henry Nyaoke v The Cabinet Secretary, Ministry of Interior and Co-ordination of National Government and 4 Others87appraised the jurisdiction of the Magistrate court. It determined that they, too, should exercise jurisdiction over the offence of murder. While referring to it as a historical accident that has no legal justification, the court termed the High Court’s original jurisdiction in murder cases to be a colonial expediency that spilt over into the post-independence era.88 Magistrates Courts are broken down into four categories which rank in a hierarchical order as follows: Chief Magistrate ¯ Senior Principal Magistrate ¯ Principal Magistrate ¯ Senior Resident Magistrate ¯ Resident Magistrate 4.2.5 Other specialised courts and tribunals Criminal jurisdiction includes the Anti-Corruption Courts,89 whose jurisdiction is limited to corruption cases, and the Children’s Court, which specialises in juvenile justice cases.90 The Children’s Court will not assume jurisdiction where a child has been charged with murder or where a child has been charged together with an adult. The case is taken through the normal structure discussed above in these two instances. 84 Article 165(3) a. 85 Article 165 (3) b, 2010 Constitution of Kenya. 86 Article 165 (3) c & d, 2010 Constitution of Kenya. 87 Kisumu High Court Constitutional Petition no. 7 of 2018 88 Para. 107. 89 Part II of the Anti-Corruption and Economic Crimes Act, chapter 65. 90 Section 73, Children Act chapter 141 Laws of Kenya. 28 SECTION 5: PRIVILEGES AND IMMUNITIES 5.1 Presidential immunity The constitution guarantees the president immunity from criminal charges before national courts. Article 143 (1) states, “Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.” The constitution adopts a contrary position concerning international crimes. Article 143 (4) reads, “The immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.” It adopts the Rome Statute position under Article 27, which excludes all forms of immunities concerning international crimes. 5.2 Judicial immunity Section 15 of the Penal Code provides that “[e]xcept as expressly provided by this code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions, although the act done in excess of his judicial authority or although he is bound to do the act omitted to be done.” In Attorney General v Oluoch91, judicial immunity was said to be a necessary matter of policy if such judicial officers were to discharge their duties without fear or harassment by those who may feel aggrieved by judicial officers’ actions. 91 (1972) EA 392. 29 SECTION 6: CONCLUSION The common law tradition has played a fundamental role in influencing criminal law in Kenya. The adoption of the 2010 constitution presents a new opportunity in shaping the law. The discussion above identified certain core principles of criminal law which are now firmly in the constitution. The principles are especially identifiable within the chapter on rights in the constitution. The constitution requires that a right-based approach be adhered to in criminal law. This involves reflecting on the principles that have long formed the foundation of our criminal law, evaluating how we define crimes and enforce criminal law in general and determining the extent to which they conform to the constitution. It is evident from the case law emanating from the Courts that our criminal law is gradually evolving. 30 PART TWO: GENERAL PRINCIPLES OF KENYAN CRIMINAL LAW SECTION 1: ACTUS REUS 1.1 Introduction This chapter discusses the actus reus elements of an offence, which involves the physical aspect of an offence. It looks into the wrong a defendant has done or the harm done to a victim. A distinction is first made of the constitutive elements of an offence. The chapter looks at what constitutes actus reus highlighting the aspects of acts and omissions. It is then followed by a discussion on causation, considering whether the defendant is responsible for a prohibited result. While the chapter aims to highlight relevant statutory provisions and case law in Kenya, it should be noted that the underlying principles of actus reus evolved under common law which remains a source of Kenyan law. It is considered important that the student has knowledge of the landmark cases that first pronounced these principles thus the reliance on English case law. English cases and texts are also considered relevant to the extent that they have a more analytical discussion on the relevant principle thus providing a theoretical basis and critical overview from which to evaluate the development of the law in Kenya in this aspect. 1.2 Actus reus and mens rea For an accused person to be considered criminally liable the prosecution must prove: a) The accused person is responsible for a certain act or omission (in a conduct crime) or the existence of a certain state of affairs in the circumstances forbidden by criminal law (actus reus).92 b) The accused had a defined state of mind concerning the forbidden act or omission (mens rea). These are the two elements of a crime, and they are often expressed in the Latin maxim actus non facitreum nisi menscit rea – a person is not criminally liable for his conduct unless the prohibited state of mind is present at the time of the prohibited act.93 Ordinarily, when proving a crime, the prosecution need not break down the crime into constituent parts to prove each element. The task is to prove the crime as a whole. Sometimes, it may not be easy to separate the two.94 In some instances, an actus reus may incorporate the mens rea. For example, what makes possessing an offensive weapon in public an offence? A defendant will only be liable if it can be proved that when he was found with the offensive weapon, he intended to cause injury. There is no offensive weapon unless such intent is proved, thus no actus reus. Another example would be an offence that makes it criminal to possess narcotic drugs. It must be shown that the defendant knew about the narcotic drugs. If the defendant did 92 D. Ormerod and K. Laird, Smith, Hogan, and Ormerod’s Criminal Law, 16th edn (Oxford: OUP 2021), p. 27; M. Allen I. Edwards, Criminal Law, 16th edn (Oxford: OUP, 2021), p. 34. 93 Ormerod and Laird (2021:27). 94 Ormerod and Laird (2021:28); Allen and Edwards (2021:34). 31 not know of their existence, there is no mens rea and, as a result, no actus reus. In some cases, like conspiracy, the actus reus is minimal, only requiring proof of an agreement. This reinforces the need to prove a crime as a whole instead of breaking it up into actus reus and mens rea when establishing it. This helps not to distort the understanding of the offence.95 Nonetheless, the prosecutor must establish beyond reasonable doubt that the two elements occurred within the same event or transaction to successfully establish criminal liability. 1.3 Actus reus In simple terms, actus reus refers to all the elements defining a crime except the mental element. In some offences actus reus is equivalent to acts or omission (conduct), in others it comprises both of conduct and certain relevant circumstances, and in others it requires that consequences ensue from the conduct. In other rare instances, actus reus may consist in a certain specified state of affairs, not requiring any conduct by an accused person.96 Every crime has a unique actus reus. It is up to the prosecutor to identify the elements of actus reus for every crime in the definition provided for under the law. The elements of actus reus must be manifested either in acts, omission or the existence of certain circumstances prohibited by law or particular consequences. This implies that there can be no thought crimes. 97 For example, where one imagines committing a crime as opposed to the actual commission of the crime. In addition, for actus reus to be established, the act or omission must be voluntary.98 This position is reflected in S. 9(1) of the Kenyan Penal Code which states that a person is not criminally responsible for an act or omission which occurs independently of exercise of his will. A person who does not have control over their body movements cannot be said to be acting voluntarily if their actions result in a crime. This requirement of voluntarism is fundamental in establishing criminal liability as “it reflects the underlying respect for the individual’s autonomy and the principle that ‘unless a man has the capacity and fair opportunity to adjust his behaviour to the law its penalties ought not to apply to him’.”99Involuntariness applies to instances where the accused, although conscious, is caused by some external factor to move their limbs without his/her will, causing the prohibited results, or the bodily movements occur while the accused person is in a state of unconsciousness. Where an accused claims his conduct was involuntary, he would need to prove that he suffered a total loss of control caused by an external factor.100 When an accused pleads 95 Ormerod and Laird (2021:33). 96 Ormerod and Laird (2021:29); Allen and Edwards (2021:37). 97 Allen and Edwards (2021:38); Ormerod and Laird (2021:26). 98 Ormerod and Laird (2021:36); Allen and Edwards (2021:39). 99 Ormerod and Laird (2021:37). 100 C. McAlhone and N. Wortley, Criminal Law: The Fundamentals, 4th edn (Sweet & Maxwell, 2016), p. 14. 32 lack of voluntariness, they are essentially pleading automatism. Automatism refers to instances where a person acts physically in an unconscious state.101 The court in Bratty v Attorney General of Northern Ireland [1961] 3 All E.R. 523 HL limited automatism to apply in instances where an accused acts while unconscious, or acts due to a spasm, a reflex action or a convulsion. Automatism relates to physical and not moral involuntariness; thus, claims of “irresistible impulse” will not suffice.102 While no identifiable approach is evident from the practice in Kenyan courts, the defence of automatism is treated with great scepticism by the English courts, especially in cases relating to road traffic offences. The English courts adopt a strict approach and are only willing to recognise the defence where “there is a total destruction of voluntary control.”103 This approach would cover for instance a situation where a driver suffers a heart attack while driving and causes a prohibited, dangerous situation. In such a case, such a driver will not be considered criminally responsible because there was no actus reus. His acts at the relevant moment were not voluntary. However, where the lack of consciousness results from the defendant’s prior fault, it is unlikely the defendant will escape criminal responsibility. For example, if the driver in the cause of driving felt a warning pain of a possible heart attack and continued driving, he is likely to be held criminally responsible in the event of such a heart attack.104 In Hill v Baxter [1958] 1 QB 277, the defendant was driving after a night shift, and although realising he was tired, he continued to drive. He was overcome by sleep and drove into a party of soldiers. The court convicted him and reasoned that he should have stopped driving after realising he was drowsy.105 In Bell [1984]3 All ER 842, the court highlighted examples of involuntary conduct for which no criminal liability may arise. It highlights the situations of a motorist, while driving, is attacked by a swarm of bees or a malevolent passenger, or is affected by a sudden blinding pain, or suddenly suffers a blackout, or his vehicle suffers some failure due to a blowout or the breaks failing. 1.3.1 Actus reus through commission The commission, as a form of actus reus, refers to the physical act of the offence. This is the common way in which actus reus manifests itself. In addition to the actual execution of acts prohibited by law, actus reus can also take the nature of permitting the commission of a prohibited act. In the case of Ali s/o Mzee v R106 (Murphy J) the court convicted the driver and conductor for permitting persons to ride on the roof of a bus. Similarly, in Nickson N Waweru v Republic107, the motorcycle 101 Allen and Edwards (2021:40). 102 Ormerod and Laird (2021:41). 103 Ibid., 40. 104 Allen and Edwards (2021:39). 105 Also see Ormerod and Laird (2021:38). 106 (1960) EA 404. 107 (2009) eKLR, Criminal Revison 9 of 2009. 33 owner was charged with permitting unlicensed drivers to ride a motorcycle contrary to Section 30(2) of the Traffic Act Cap 402 Laws of Kenya. 1.3.2 Actus reus through omission No general rule under the common law tradition imposes criminal responsibility for failing to act in situations that give rise to harmful consequences. In other words, there is no general duty to be a good Samaritan. Such a law is considered to infringe on the autonomy/liberty of the individual.108 It would also be difficult to define with certainty the scope of liability and standard of duty required in such circumstances, likely infringing on the principle of legality.109 Nonetheless, some statutory provisions make it an offence to fail to do something. Examples include the Traffic Act which makes it an offence to omit to license one’s motor vehicle or to drive; this is reflected in the following provisions: The Traffic Act (Cap 403, Laws of Kenya) provides as follows: 15. “(1) No person shall own or possess a motor vehicle or trailer or use it on a road unless such vehicle or trailer is licensed” 30. “(1) No person shall drive a motor vehicle of any class on a road unless he is the holder of a valid driving licence” Similarly, Section 45 of the Anti-Corruption and Economic Crimes Act makes the failure to remit taxes an offence. The crime of murder can also be committed through omission.110 Two conditions must be satisfied to establish criminal responsibility for the omission. First, it must be shown the offence was capable of being committed by omission. Secondly, it must be proved that the accused person had a legal duty to act.111 There is often no difficulty in establishing this for offences that expressly penalise omission, as the legislature places a specific duty upon a person to act in a particular fashion and penalises those who fail to. The problem would arise when the statute does not expressly provide that an offence may be committed by omission. The courts could in such a situation be prepared to read that the words include omission through constructive interpretation.112 This is illustrated by the English case of Shama [1990] 2 All ER 602, where the defendant’s failure to fill a document which was his duty to fill, was considered falsifying a document for accounting purposes. Also, in Speck [1977] 2 All ER 859, the defendant was held to have committed an act of gross indecency with a child under the age of fourteen years by allowing the child to place a hand under his trousers which caused him an erection. 108 Ormerod and Laird (2021:45); McAlhone and Wortley (2016:15). 109 Ormerod and Laird (2021:46); McAlhone and Wortley (2016:16). 110 S. 203 Penal Code. 111 McAlhone and Wortley (2016:17); Ormerod and Laird (2021:47). 112 McAlhone and Wortley (2016:17); Ormerod and Laird (2021:48). 34 Once it is established that an offence can be committed by omission, the court then determines if the defendant had a duty under statutory law or common law to act. Liability for omission arises only if the defendant had a duty to act or intervene that is recognised by the law. 113 The courts have identified a number of situations under common law and statutory law where a duty to act will arise. a) Duty arising out of public office A duty to act may arise by being a public officer. S. 128 of the Penal Code provides that any public servant who wilfully neglects to perform a duty arising under common law or statutory law is guilty of an offence. In Dytham [1979] QB 722, a policeman failed to intervene upon witnessing a man being thrown out of a nightclub, kicked and beaten to death. He was considered to have wilfully and unreasonably acted contrary to the public interest. He was convicted for the common law offence of misconduct whilst acting as an officer of justice. This principle is illustrated in the Kenyan criminal cases in relation to the Solai Dam tragedy.114 In 2018 the walls of a dam, of a coffee estate located in Solai within the county of Nakuru, collapsed sending raging waters that washed away several homes and villages leading to the death of 48 people. Apart from charging the owners of the dam with manslaughter, the prosecution also charged several public officers with manslaughter and neglect of official duty.115 The prosecution’s case against the public officials was that they wilfully neglected their duties of conducting inspections and ensuring the dam had the necessary permits and was compliant with the law. b) Duty arising from contractual obligations While contracts are private agreements whose terms mainly apply to the contracting parties, there are instances when criminal law may rely on such a contract to impose liability. Failure to perform some contractual obligations can result in crimes, where such failure is likely to endanger lives or the public.116 Criminal law imposes a duty to act in such circumstances. In Pittwood (1902) 19 T.L.R. 37, a level-crossing operator failed to shut the gate when a train was due to pass. As a result, a road user was hit by a train causing his death. The defendant was convicted of gross negligence manslaughter, with the court rejecting his argument that his contractual obligations did not give rise to a duty to the public. In Republic v Getrude Adhiambo Oneya117,the defendant, a teacher at a school for the visually impaired, failed to look out for the victim, a blind student. The defendant had simply let the victim and other visually impaired children walk alone from class to the dormitory. She failed to give much regard to the fact that the victim needed to be 113 Allen and Edwards (2021:45). 114 ‘Solai Dam tragedy: Owner Perry Mansukhlal, 8 others have case to answer’ Daily Nation Newspaper/Kenya April 27, 2023. 115 R v Perry Mansukh Kasangar &Ors, Chief Magistrate’s, Criminal Case no. 977 of 2018. Also related to this are a number of petitions by the public officers challenging the prosecution’s decision to charge them, see for example Willice Omondi Were & Anor v DPP & 3 Ors. [2018] eKLR, Petition no. 5 of 2018. 116 Allen and Edwards (2021:45); McAlhone and Wortley (2016:18); Ormerod and Laird (2021:53). 117 [2020] eKLR, Criminal Case no. 15 of 2018. 35 personally guided and handed over to the school caretaker who was waiting for the children at the dormitory. As a result, the victim lost his way and fell into a well, drowning to death. The defendant was convicted of gross negligence manslaughter. Although her obligations as a teacher arose from a contractual agreement, her failure to look out for the victim gave rise to criminal liability. The Solai Dam cases mentioned in the preceding Section could also be considered under this Section. The public officials failed to carry out their contractual duties as employees of the County Government of Nakuru. c) Duty arising under a special relationship between the defendant and victim Under common and statutory laws, parents have a moral and legal obligation to protect their children from harm. In Gibbons v Proctor (1918) 13 Cr App R 134, CCA: a man and woman were convicted of the murder of the man’s child. The child starved to death because they withheld food from her. The man was guilty for having breached his duty of care as a parent while the woman, the man’s girlfriend, was guilty on the basis of having assumed a duty of care for the child. Section 23 of the Children Act (Chapter 141, Laws of Kenya) provides a range of parental duties towards their children to protect them from harm. The failure to adhere to these legal obligations will likely lead to the offence of criminal negligence. In the case of Tabitha Nyaguthie v R118, the appellant was convicted of the offence of neglecting a child contrary to Section 127(1)(a) of the Children’s Act. She was sentenced to 3 years imprisonment. It was alleged that the appellant, who was the child's mother, had confined the special needs child in a manner that amounted to ill-treatment. The conviction and sentence were confirmed, and the appeal was dismissed. Spouses are also considered to have a duty to help each other, especially when one is incapacitated and is dependent solely on the spouse for care giving.119 d) Duty arising from assuming responsibility to care for another Where a person voluntarily undertakes to care for another person who is helpless or unable to care for him or herself, a duty will be owed to the person.120 The person does not need to be a family member. What is important is the defendant voluntarily undertakes a position of responsibility towards the victim.121 In R v Instan [1893] 1 Q.B. 450, the defendant lived with her 73-year-old aunt. The aunt became unwell and was unable to fend for herself. The defendant, who lived with her, knew of her state and failed to give the aunt food or seek medical assistance. She was convicted of manslaughter. Also, in R v Stone and Dobinson [1977] Q.B. 354, the defendants were considered to have assumed the responsibility of taking care of the victim who had 118 [2016] eKLR, Criminal Appeal no. 50 of 2016. 119 Allen and Edwards (2021:46); McAlhone and Wortley (2016:18); Ormerod and Laird (2021:51). 120 Allen and Edwards (2021:46); McAlhone and Wortley (2016:21). 121 Ormerod and Laird (2021:52). 36 moved in to live in their home. She was an anorexic sister of one of the defendants (her brother), cohabiting with his female partner. The defendants were held criminally responsible for the victim's death for failing to care for her or seek help. This duty can be inferred from S. 216 of the Penal Code where criminal responsibility may arise where a person who has charge of another (who is unable by reason of age, sickness, unsoundness of mind, detention or any other cause) fails to perform such duty leading to consequences that adversely affect the life or health of the person under his care. e) Duty arising from defendant’s prior conduct creating a dangerous situation A person who creates a situation that endangers the life of others, their liberty, their property or any other interests protected by criminal law, has a duty to take steps to prevent the harm, when the person becomes aware of the danger he has created.122 In R v Miller [1983] 2 A.C 161, the defendant, while squatting in someone’s house, lit a cigarette which fell on a mattress when he fell asleep. He woke up and noticed the smouldering mattress and did nothing about it, simply choosing to move into another room. The house caught fire, and he was convicted of arson. The accused person is required only to take reasonable steps to counter the danger he or she inadvertently created. 123 This principle also extends to circumstances where the defendant creates a danger exposing another to a reasonably foreseeable risk of injury, which eventually occurs.124 In DPP v Santa-Bermudez [2004] Crim. L.R 471, the defendant failed to inform a police officer carrying out a lawful body search of hypodermic needles in his pocket. The police officer asked him before the search if he had removed all contents from his pockets. The defendant lied, exposing the police officer to injury by the hypodermic needles. The defendant was convicted of assault occasioning bodily injury. A statutory provision that can be considered to reflect the rationale of this principle is S. 46 of the Traffic Act, which makes it a criminal offence to leave “any vehicle on a road in such a position or manner or in such a condition as to be dangerous to the public”. The principle can also be inferred in S. 218 and 219 of the Penal Code. Under S. 218 the failure by a person, who undertakes to do any lawful act which may be dangerous to human life or health, to have reasonable skill or use reasonable care to do it leading to consequences which adversely affect the life or health or life of any person gives rise to criminal responsibility. Under S. 219 a person who has charge or control of anything which is living or inanimate, which is of such a nature that in the absence of care or precaution in its 122 Ormerod and Laird (2021:54); Allen and Edwards (2021:50). 123 Allen and Edwards (2021:50). 124 McAlhone and Wortley (2016:23); Allen and Edwards (2021:50). 37 management may endanger life, safety and health of another, and fails to use reasonable care to avoid the danger will be held criminally responsibility. 38 SECTION 2: CAUSATION Causation is the factor connecting actus reus elements of conduct and consequence. Causation is a crucial element in result crimes. Often it is not disputed, but when it is, the prosecution must prove that the defendant, by his act or unlawful omission, caused the relevant result. Some difficulties arise when several concurrent or consecutive events may all be considered to have contributed to the prohibited result. The defendant’s conduct need not be the only cause or the main cause of the result, it is enough to show that the defendant’s conduct contributed significantly to the prohibited result.125 According to William Musyoka, causation becomes particularly important “in cases where there is no physical involvement or participation of the accused person, where the accused’s participation is indirect, where another has intervened, where the victim’s own conduct has affected the result and where there is contributory negligence of the victims.”126 Essentially, the central question to be answered is – did action X cause result Y? It needs to be established that there was a causal link between the defendant’s conduct and the prohibited consequence. In law, the defendant’s conduct must be both a factual and a legal cause of the consequence. When there is a dispute on causation, a two-stage test is adopted to determine if the defendant’s conduct is the factual and legal cause of the prohibited consequence. 2.1 Causation in fact or ‘but for’ test The test here seeks to establish whether “but for” the defendant’s (D) act or omission, the event would not have occurred. D cannot be regarded as the cause of an event if the event would have occurred in precisely the same way had D’s acts never been done. In White [1910]2 K.B. 124, the defendant poisoned his mum with cyanide with the intent to kill her. The mother only took a small portion of the poison. It was established that she died of a heart attack and not poisoning. The defendant was acquitted of murder because there was no actus reus but was convicted of attempted murder. A simple approach is to remove the defendant’s conduct from the narrative and ask if the result would have occurred anyway.127 If the answer is yes, then the defendant is not liable. The defendant’s acts must be a sine qua non of the result. In other words, it needs to be shown that the prohibited consequence would not have happened as and when it did ‘but for’ the defendant’s actions.128 Causation “in fact” can be termed to be an issue of common sense. What the defendant did and what happened are certainly questions of fact.129 Whether the defendant’s acts caused what happened is a bit more complicated. It needs the application of legal principles (causation in law). After establishing factual causation, it must be determined if 125 Allen and Edwards (2021:51); McAlhone and Wortley (2016:27). 126 William Musyoka, Criminal Law, (Law Africa: 2016), pp. 45-46. 127 Ormerod and Laird (2021:65). 128 Allen and Edwards (2021:52); McAlhone and Wortley (2016:27). 129 Ormerod and Laird (2021:64). 39 there was legal causation. It does not follow that all “but for” causes are the legal causes of an event. For instance, X invites Y for dinner and Y, while on his way, is run over by a motorbike causing his death. Y would not have died ‘but for’ the invitation of X. However, common sense in this circumstance dictates that X is not responsible for the death of Y. The factual ‘but for’ causation is insufficient to establish liability. Thus, the need to further apply the test of legal causation. 2.2 Causation in law Causation in law refers to legal principles that assist in establishing the connection between the conduct of an accused person and the actual offence. It can also be referred to as legal causation, meaning the imputable or legal cause of the consequence. The issue to be determined here is whether the prohibited result can be legally attributed to the defendant. The defendant’s conduct must be sufficiently closely connected to the consequence. The defendant will be legally responsible for the result if it is established that his actions or omissions were the “operating and substantial” cause of the result.130 A defendant’s act needs not be the sole or main cause of the prohibited result to be found criminally liable for it. He or she must, however, have performed a culpable act which makes a more than minimal contribution to the result. Causation analysis must focus on the relevant act – which act is it that caused the prohibited result? The focus should be whether the defendant’s conduct significantly contributed to the prohibited results. The courts have identified several principles to determine whether the defendant’s conduct legally caused the prohibited consequences. i. The connection between fault and result ii. Negligible causes iii. Contributory causes iv. Intervening acts (novus actus interveniens) 2.2.1 Connection between fault and result An accused person could not be liable if the culpable element in his conduct made no relevant contribution to the consequence.131Therefore, even though the defendant was grossly negligent in carrying out a particular act, he or she will not be held responsible for the prohibited consequence which would have occurred whether or not the defendant had been negligent.132 In R. v Dolloway (1847)2 Cox 273, the defendant had been driving a cart on the highway with the reins not on his hands but loosely on the horse’s back. A three-year-old ran into the road a few meters from the cart and was run over by it and killed. The jury was directed to consider if the defendant had been holding onto the reins and used them, he could have saved the child, then he was guilty of manslaughter, but if they thought that he could not have saved the child even if he had used the reins, then he should be acquitted. The defendant was acquitted. It was not 130 Smith [1959] 2 All E.R. 193 CMAC. 131 Ormerod and Laird (2021:66). 132 Allen and Edwards (2021:53). 40 enough that the incident would not have occurred if the defendant had not been driving the cart, but it needed to be shown ‘that the death was due to the culpable element in his conduct – his negligence in not using the reins.’133 2.2.2 Negligible causes The defendant’s acts must be a ‘substantial cause’ – more than negligible or ‘more than minimal’ (de minimis principle). A factor can be considered substantial when if removed from the crime equation, it makes it impossible for the crime to be committed. An example of the substantial factors test would be in the case where a person X talking to a dying man increases his exhaustion, accelerating his death. In this context, if we were to remove the action of person X, the result would still be the same. Talking to a dying patient cannot be said to be the cause of the death. Death is still bound to occur if the talking is excluded from the equation. 2.2.3 Contributory causes Closely related to the concepts of negligible causes are contributory causes. The acts of an accused person may not always be the sole or the main cause of the result. There could be other contributory causes, such as acts or omissions of others, including the victim’s conduct. The focus must remain whether the defendant’s conduct contributed significantly to the consequence. Thus, the prosecution’s only onus is to prove beyond reasonable doubt that the defendant’s conduct is responsible for the prohibited consequence, and not to prove that the supervening act had no significant cause on the consequence.134 The defendant is liable if his or her contribution to the outcome was significant, even if other contributing causes exist. 2.2.4 Intervening acts (novus actus interveniens) An intervening event or a novus actus interveniens may occur after the defendant’s actions, which could break the chain of causation. Suppose the intervening event is considered so significant as to become the new sole or ‘operative’ cause of the result, the defendant in such a case may be relieved of responsibility for the prohibited result. Nonetheless, the defendant could still be responsible for the attempt. The events which have been considered to break the chain of causation include: a. Acts of nature b. Acts by third party c. Medical interventions d. Victims own conduct 133 Ormerod and Laird (2021:66). 134 Allen and Edwards (2021:56). 41 a) Acts of nature The general rule is if the act of nature was reasonably foreseeable, it does not break the chain of causation. However, if it were not reasonably foreseeable referring to what is sometimes called an ‘Act of God’, the chain of causation would be broken. An example of an unforeseeable natural event is when X hits Y, who falls, leaving him in excruciating pain. A few minutes later, a tree that was nearby crashes on the ground and kills Y. While X is responsible for Y’s injuries, he is not responsible for his death. The event was so extraordinary and unforeseeable, breaking the chain of causation. The same would apply to the event where D assaults V leaving him unconscious in a building. Suddenly, an earthquake occurs that brings down the building, killing V.D cannot be prosecuted for causing the death of V. The earthquake was an unforeseeable act of nature that resulted in the building collapsing, which killed V. D could, however, be prosecuted for the assault. However, consider the example where the defendant hits V leaving him unconscious on a beach below the high water mark. V drowns later as a result of the incoming tide. The defendant will be considered to have legally caused V’s death, as the event of the tide coming was natural and foreseeable.135 The rationale here is the victim should not be left in a position of obvious danger. Thus, where it is objectively foreseeable that the event would normally occur, the chain of causation will not be broken.136 b) Acts by third party Where the intervening event between the defendant’s conduct and the prohibited result is the conduct of a third party, the chain of causation is only broken if the third party’s act was ‘free, deliberate and informed’.137 Where the accused person engages a minor or an insane person to commit an offence, the accused person remains liable, although the immediate cause of the prohibited consequence was the innocent agent.138 Such an innocent agent cannot be said to have acted in an informed manner. A truly involuntary act will not break the chain of causation.139 Thus, the example where D startles E and E involuntary drops weight, causing damage to V’s property. There is no true intervening act in these circumstances.140 D caused the damage and will be held criminally liable for the resulting offence. The conduct by D, in this case, cannot be considered to have been free and deliberate. 135 McAlhone and Wortley (2016:30). 136 Allen and Edwards (2021:67). 137 McAlhone and Wortley (2016:31); Allen and Edwards (2021:63). 138 Ormerod and Laird (2021:71). 139 Ibid. 140 Ibid. 42 Where the third party’s act was instinctively or reasonably done in self-defence or in the execution of a legal duty to prevent crime, it will not break the chain of causation141 In the case of R v. Pagett (1983) 76 Cr App R 279, the defendant used his girlfriend as a shield while resisting lawful arrest. The police instinctively fired back and killed the girl. The defendant was held to have caused the death and was guilty of manslaughter. The court held ‘that neither a reasonable act of self-defence nor an act done in execution of a duty to prevent crime or arrest an offender, using such force as is reasonable in the circumstances, will break the chain of causation.’ In Peter Shirau Amakobe v R142, the defendant appealed against a conviction of assault causing grievous bodily harm. The defendant (D) had attacked a fellow inmate (X) in prison upon suspecting X had stolen his money. D grabbed X and was strangling him when X, in self-defence, pushed D away, after which D fell on V, whose right leg was fractured. D contended that his conduct did not cause V’s injuries, arguing that X’s act had been a new intervening act that broke the causation chain. The court, while looking into the question of causation, confirmed that D’s conduct was not only the but-for cause of V’s injuries but also determined that X’s act of self-defence was a foreseeable consequence of D’s act. Thus, the chain of causation had not been broken. Citing with approval the decision of Pagett, the court was of the view that the act of a third party that is foreseeable does not break the chain of causation. The court stated that when D attacked X in a prison cell with other inmates, it was foreseeable that D’s actions would harm X and any other inmate. Comment: In this case, the court used the reasonable foresight principle to attribute the prohibited consequences to D’s conduct. Under this principle, there is no need for direct force, a person will be criminally responsible when his acts indirectly cause harm, and it was foreseeable that his remote acts would cause the harm.143 A more direct argument would be the recognition that X’s act was involuntary or an instinctive or reasonable act of self-defence which resulted in the injuries. Thus, the chain of causation was not broken. c) Medical interventions Generally, proper medical treatment does not break the chain of causation. The common law position shows that even in the case of improper or negligent medical treatment the chain of causation will not be broken if the original injury plays a significant role at the time of death (or other consequence). 144 These are interventions by third parties intervening in a fully informed manner, although since they are under a duty of care, the action cannot be said to be fully voluntary.145 141 Allen and Edwards (2021:67); Ormerod and Laird (2021:71). 142 [2017] eKLR Criminal Appeal no. 1 of 2016. 143 Dennis J. Baker, Glanville Williams Textbook of Criminal Law, 3rd edn (London: Sweet and Maxwell, 2012), p. 207. 144 McAlhone and Wortley (2016:32). 145 Ormerod and Laird (2021:77). 43 The interpretation of this principle by English courts shows a reluctance to find medical treatment has broken the chain of causation.146 The courts often still seek to establish whether the defendant’s actions are the operating and substantial cause of the prohibited consequence and whether they contributed significantly to the consequence.147 To break the chain of causation, the medical treatment would have to be extraordinary and unusual, with the treatment in itself, independent of the defendant’s actions, considered so potent in causing the death (or prohibited consequence), making the defendant’s contribution insignificant.148 Kenyan courts largely cite English cases for purposes of guidance on issues of breaking the chain of causation. Thus, the strict approach will likely be reflected in Kenyan case law. In the case of Smith v R (1959) 2 QB 35, a group of soldiers were involved in a fight where D stabbed V with a bayonet. While carrying V to the medical reception station, one of V’s comrades tripped twice, dropping him on both occasions. At the reception station, the medical officer, under pressure attending to other cases, did not realise that one of the wounds had pierced a lung leading to a haemorrhage. In light of this information, V’s treatment was regarded at the time of the trial to have been “thoroughly bad and might well have affected his chances of recovery”. D’s conviction of murder was upheld on appeal, and his argument that the treatment was abnormal was rejected. The court held that D’s stabbing was an operating and substantial cause of V’s death. It observed that the chain of causation would only be broken if the original wound is merely the setting in which another cause operates, meaning the second cause would have to be so overwhelming as to make the original wound merely part of history. In Cheshire (1991) 3 All ER 670, D had shot V in the abdomen and leg. While at the hospital, V contracted a respiratory infection necessitating a tracheotomy. V would later die due to a cardio respiratory arrest caused by constriction of the windpipe where the tracheotomy had been performed. The doctors had negligently failed to diagnose and treat this complication. The Court of Appeal upheld D’s conviction for murder, asserting that the rare complication was still a direct consequence of D’s acts, which remained a significant cause of V’s death, despite medical negligence. The court proposed the following test, “Even though negligence in treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts and in itself so potent in causing death, that they regard the contribution made by his acts as significant.” The Court of Appeal in Chesire was further of the view that only the most unusual and extraordinary treatment could break the chain of causation, noting that; 146 Allen and Edwards (2021:64); Ormerod and Laird (2021:77). 147 Allen and Edwards (2021:64). 148 Chesire [1991] 3 All ER 670. 44 “Treatment which falls short of the standard expected of the competent medical practitioner is unfortunately only too frequent in human experience for it to be considered abnormal in the sense of extraordinary (p. 675).” In Malcherek [1981]1 WLR 690, the victim had been put on life support, having suffered brain damage from injuries inflicted by D. After several days and acting according to medical opinion, the life-support machine was switched off. D’s appeal on conviction of murder was dismissed. The court held that the injury inflicted by D was the operating and substantial cause of death, and whether or not the doctors’ actions were also a contributory cause was immaterial. The principle on medical interventions is reflected in S. 213 Kenyan Penal Code, which recognises a person will be deemed to have caused the death of another person although his act is not the immediate or sole cause of death; “(a) if he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatment which causes death. In this case, it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting injury is not deemed to have caused the death if the treatment which was immediate cause was not employed in good faith or was so employed without common knowledge or skill;” In light of the afore-stated cases, the presumption is that treatment that is not employed in good faith or is employed without common knowledge and skill would amount to treatment that is so extraordinary and unusual and is, in itself, considered to be so potent in causing the death, making the defendant’s contribution insignificant. Consider the following Kenyan cases: In Republic v Alex Musembi Mutuku &anor149, the victim had been attacked, causing him to sustain injuries that involved cut wounds and fractures. He received medical treatment, which involved surgery, where he got implants. He was released to go home, but his condition worsened after two and a half weeks. The victim had a pre-existing chronic kidney failure condition, which weakened his immunity and worsened his management of the implants from the fractures. As a result, he developed an infection from which he died. When his condition worsened, he was taken to hospital, but due to striking doctors, he did not immediately receive the necessary care, eventually leading to his death. It is interesting that upon considering these facts, the court thought that the strike by the doctors intervened in the treatment of the deceased, making it difficult to determine the extent of the contribution of improper management to the victim’s death. The court in reaching the above conclusion cited and relied on a Court of Appeal Decision, John Muia Muli vs R. Mombasa.150 The Court of Appeal overturned a murder 149 [2020] eKLR, Criminal Case no. 20 of 2015. 150 [2000] eKLR, Criminal Appeal no. 96 of 1999. 45 conviction, substituting it with causing grievous bodily harm. It opined that a ‘person inflicting injury on a deceased [sic] person is not deemed to have caused that person’s death if the surgical or medical treatment which is the immediate cause of death was negligent’. D had shot V with an arrow which resulted in injuries causing him to be hospitalised. 11 days later, V died. The court was strangely of the opinion that the prosecution had failed to produce evidence to prove that V had received proper medical treatment while in the hospital. It held that medical treatment notes were not produced during the trial to ascertain whether the treatment had been carried out in good faith or with common knowledge and skill. As a result, the court claimed it was not possible to establish if V’s immediate cause of death was medical negligence or sheer medical incompetence. The Court of Appeal’s decision contradicts the principle that even improper or negligent medical treatment will not break the chain of causation if the original injury still plays a significant role at the time of death. Firstly, it is quite strange that the court believed that medical notes should have been produced at trial to ascertain the proper medical treatment. Would the courts have any expertise to ascertain this, or would there be a need for further expert evidence? This would unnecessarily make the trial process cumbersome and very expensive. The medical doctors were not on trial but the defendant. Secondly, the Court of Appeal was putting a heavy and unnecessary burden on the prosecution. The prosecution’s only burden is to prove beyond reasonable doubt that the defendant’s conduct is responsible for the prohibited consequence. There is no onus for the prosecution to prove that the supervening act had no significant cause on the consequence.151 The focus must remain on whether the defendant’s conduct contributed significantly to the consequence, which the Court of Appeal seems to have lost track of. In the circumstances, the trial court had indeed correctly determined that D’s actions were the cause of V’s death, the injuries resulting from the piercing of the arrow were still an operating and substantial cause of V’s death. The issue to be determined was one of legal causation, which looks into the consequence’s remoteness. The consequences will not be legally attributed to the defendant if his acts are too remote from the consequence. Legal recognition is a moral reaction that examines whether the result can fairly be attributed to the defendant’s conduct.152 Answering this question involves a value judgment and not a scientific exercise.153 It means determining which of the ‘but-for’ outcomes is more blameworthy than another. d) Victim’s own conduct Like in the law of torts, criminal law also recognises that an accused must take his victim as he finds them. It means the defendant will remain liable if the victim already suffers from some hidden physiological defect resulting in more serious harm than would 151 Allen and Edwards (2021:56). 152 Baker, Glanville Williams (2012), p. 199; Allen and Edwards (2021:56). 153 Baker, Glanville Williams (2012), p. 199. 46 otherwise have been caused by the defendant’s conduct.154 It is also called the “thin skull rule” or “eggshell skull rule”. This principle applies to consequences from pre-existing medical or physiological conditions and includes the victim’s mental condition and religious beliefs.155 The principles on the victim’s conduct are reflected in the Kenyan Penal Code S. 213. A person will be deemed to have caused the death of another person, although his act is not the immediate or sole cause of death. “(b) if he inflicts bodily injury on another in consequence of which would not have caused death if the injured person had submitted to proper surgical or medical treatment or had observed proper precautions as to his mode of living; (c) if by actual or threatened violence he causes such other person to perform an act which causes the death of such person, such act being a means of avoiding such violence which in the circumstances would appear natural to the person whose death is caused; (e) if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons.” Where the victim contributes to his death by his own negligence or refusing medical treatment, the accused person will be criminally responsible if his/her conduct caused harm to the victim. In Holland (1841) 2 Mood & R 351, D waylaid and assaulted V, cutting him severely across one of his fingers with an iron instrument. V refused to follow the surgeon’s advice to have the finger amputated, although he was told that his life would be in great danger if he did not. The wound caused lockjaw, and the finger was amputated, but it was too late, and V died of lockjaw. The surgeon’s evidence was that if the finger had been amputated first, V’s life would probably have been saved. Maule J told the jury that it made no difference whether the wound was in its own nature instantly mortal, or it became the cause of death because the deceased did not adopt the best mode of treatment. The question was whether, in the end, the wound inflicted by the prisoner was the real cause of death. In Blaue (1975) 3 All ER 446, D stabbed V, a young girl, and pierced her lungs. She was told that she would die if she did not have a blood transfusion. Being a Jehovah’s Witness, she refused on religious grounds. She died from the bleeding from the wound. D was convicted of manslaughter and argued that being unreasonable, V’s refusal to have a blood transfusion had broken the chain of causation. The wound was held to have been the cause of the death. Where the victim, to escape harm or in apprehension of violence from the defendant, reacts in a manner that endangers himself, the defendant will be found to have caused the victim’s injuries. The victim’s reaction should be within the range of responses expected from a victim in such a situation.156 In Roberts (1972) 56 Cr. App. R.95 CA, V, 154 McAlhone and Wortley (2016:39); Allen and Edwards (2021:58). 155 Allen and Edwards (2021:58). 156 Allen and Edwards (2021:58); Ormerod and Laird (2021:82). 47 a young girl, jumped from a moving vehicle because of D, who had threatened her with violence if she refused his sexual advances. D was held responsible for her injuries. The defendant will be criminally liable if it could have reasonably foreseen that the victim would react as he or she did (an objective test).157 The reaction ought to be proportionate to the threat posed and not so unusual or extraordinary, considered so daft, making it the victim’s voluntary conduct which breaks the chain of causation.158 2.3 Conclusion The discussion above shows that most actus reus principles recognised within the Kenyan law have their underpinning in common law. The discussion has revealed a need for Kenyan courts to adopt a clear consistent approach when interpreting the various principles. The inconsistency in interpretation is especially visible when looking at the principles concerning causation. Any policy considerations that influence the courts should not distort the meaning and rationale of the underlying principles. For example, when looking at the case law concerning causation in relation to medical interventions the courts need to explain their decisions within the context of existing principles. This would mean the need to determine whether the defendant’s actions are still ‘the operating and substantial cause’ of the prohibited consequences and having in mind the principle that even improper or negligent medical treatment will not break the chain of causation if the original injury still plays a significant role at the time of death. 2.4 Summary • Actus reus constitutes the physical elements of an offence. It may be manifested in a prohibited act or omission, prohibited consequences and existence of certain circumstances under which one can be criminally liable. • As a general rule a person will not be guilty if they fail to do an act. The exception is if the person had a duty under statutory or common law to act. Omission to act in such a case could give rise to criminal responsibility. • In offences which require proof of a consequence, a defendant will only be criminally responsible if it is proved that he caused a result. The prosecution must prove that the defendant was the factual cause (but for test) and the legal cause of the result (imputable causation). • Factual causation: The defendant is criminally liable if but for their actions the consequence would not have happened as it did. • Legal causation: It needs to be established that the defendant’s conduct had a sufficient link to the prohibited consequences to justify attaching blame to the defendant for the result. The defendant’s conduct must be the ‘operating and substantial’ cause of the end result. • Novus actus interveniens: In the event of multiple causes each contributing to the prohibited result the judge needs to determine which of those causes contributed 157 McAlhone and Wortley (2016:35). 158 Allen and Edwards (2021:58); McAlhone and Wortley (2016:35). 48 in law to the result. It needs to be established whether any of the contributing factors broke the chain of causation, releasing the defendant from liability. 49 SECTION 3: FAULT As already mentioned in chapter two most crimes require the defendant to carry out the actus reus with the requisite mens rea. Mens rea is the mental element of an offence. It is also referred to as the fault element. In this chapter we shall have a detailed discussion of mens rea, explaining its various forms of intention, recklessness, negligence and knowledge which are recognised throughout criminal law. We will also discuss crimes of strict liability and vicarious liability which do not require proof of mens rea. Finally, we shall consider the doctrine of transferred malice and the coincidence of actus reus and mens rea. While the chapter aims to highlight various provisions of Kenyan law and case law that address the concept of mens rea, it should be noted the general principles in relation to mens rea have evolved under common law, making reference to English case law a relevant source in this context. English case law not only provides a more analytical discussion on the development of the principles that underpin the concept of mens rea but also explore their meaning. This explains the central role that English case law plays as authoritative references in our Kenyan courts. It is our submission that at times reference has been made to English cases without giving due regard to their contextual development. This has in some cases led to a distortion of the understanding of the relevant mens rea principles within the Kenyan context. Our goal is to highlight where necessary the contextual development of the necessary principles and create an understanding of any relevant tests or standards adopted in relation to a particular mens rea concept. The contextual analysis of the development of the particular mens rea principles is relevant to the extent it provides a theoretical framework from which to evaluate whether the current law in Kenya is satisfactory. 3.1 Defining mens rea Mens rea is the legal term used to describe the defendant’s state of mind which may lead to criminal responsibility. It is the blameworthy element of an offence which justifies the punishment of persons for their crimes.159 Thus the reference to it as the fault element of a crime. Mens rea is the mental element required by the definition of a particular crime. It varies from crime to crime and may include an intention to cause the actus reus, taking an unjustified risk that leads to the actus reus, also known as being reckless. It can also take the form of one failing to take reasonable care or being negligent and thus resulting in actus reus of an offence. Mens rea may expressly or impliedly be included in the definition of the crime. Where it is not expressly provided it may mean it is implied and left for the courts to define.160 The different forms of mens rea that we shall discuss here include: i. Intention ii. Recklessness iii. Negligence 159 J. Herring, Criminal Law: Text, Cases, and Materials, 10th edn (Oxford: OUP 2022), p.128. 160 C. McAlhone and N. Wortley, Criminal Law: The Fundamentals, 4th edn (Sweet & Maxwell, 2016), p. 52. 50 iv. Knowledge Each form of mens rea implies different degrees of fault in criminal law. There are subjective and objective approaches to mens rea.161 The subjective approach requires that the defendant was aware of the relevant acts, circumstances or consequences of the offence and personally saw the consequences of their actions. The subjective mens rea is considered to secure respect for the autonomy of the individual, who is punished for having chosen to act as he did.162 The objective approach compares the defendant’s actions to that of a reasonable man. The objective mens rea justifies punishment of an accused person where his actions related to a substantial and obvious risk of the prohibited harm, of which the defendant had the capacity to be aware even if at the relevant moment he did not actually appreciate it.163 3.2 Distinguishing mens rea from motive A clear distinction must be made between motive and intention. For an accused person to be criminally liable, the motive is irrelevant. One must establish the intention and not the motive. Section 9(3) of the Penal Code provides that “unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.” However, it should be noted that the Penal Code does not define the meaning inherent in distinguishing these terms. Motive means the reason why an accused person engaged in the prohibited acts. For example, an accused person who commits a crime because of compassionate reasons will be as guilty as one who commits the same crime out of hatred. This means that where for example, person A steals chicken because their child was starving to death, and person B steals chicken to enrich themselves, both accused persons will be held criminally liable regardless of the reasons (motive) underlying their actions. Sometimes, motive refers to emotions, i.e., jealousy, greed, compassion, and sympathy. In the above scenario, person A steals out of sympathy for a starving child, and person B steals out of greed. These are considered to be mere motives and not the intention. Although the motives underlying the two acts are completely different, the two persons are criminally liable for theft. The intention in both cases was to steal, while the reasons for stealing differ. While proof of motive is irrelevant in establishing criminal liability, it becomes a relevant mitigating factor during sentencing when an accused person is convicted. The motive may also be relevant when it forms part of an element of an offence. In such an instance the offence is defined to take into account the defendant’s motive at the time of his 161 D. Ormerod and K. Laird, Smith, Hogan, and Ormerod’s Criminal Law, 16th edn (Oxford: OUP 2021), p. 90; N. Monaghan, Criminal Law Directions (Oxford: OUP 2022), p. 60. 162 Ormerod and Laird (2021:90). 163 Ibid. 51 actions. This would apply in case of racially or religiously aggravated offences.164 Proving motive is also strong evidence that a person intended a particular consequence. In this case motive helps to establish the defendant’s purpose. Motive is also relevant in defences such as necessity or self-defence, where it is important to know whether the defendant’s reason to act as he did was justified.165 3.3 Proving mens rea To prove what was in the defendant’s mind at the time he committed the offence is not easy. Consideration is given to all the admissible surrounding evidence and circumstances of the case including drawing an inference to what was the natural and probable consequence of the defendant’s actions. In Johnson Silvano Mkirani v R166 the court observed, “The natural and probable consequences of a man’s act is only one of the factors from which his intention as to the result may be gathered. It is no doubt a very important factor and might sometimes be the only available factor from which the inference of intention is to be drawn. Still, there is no “must” about it, only “may” and the Court is not bound in law to infer that a man intended the result of his actions by reason only of its being a natural and probable consequence of those actions. The intention is to be gathered from all the circumstances appearing in the evidence” (para. 32). 3.4 Forms of mens rea 3.4.1 Intention Section 9(2) of the Penal Code underscores the relevance of intention as a form of mens rea necessary in establishing criminal liability only when it is expressly provided for under the law to be one of the elements constituting the offence. Intention is the most serious or blameworthy form of mens rea.167 It is classified as a subjective concept168, where the defendant’s state of mind is the factor in consideration. It requires that the defendant recognised the relevant circumstances of the offence and realised the consequences of his actions. Although intention is a common form of mens rea under the Penal Code of Kenya, it does not define the term “intention”. Two approaches have been favoured in criminal law to explain the term. First is the narrow view, which looks at intention from a purposive or direct meaning. Second, is the wider view which describes intention as either indirect or oblique. This refers to the situation where the defendant foresees the prohibited result as certain to occur from his actions, although it is not his purpose to achieve it. 164 Ormerod and Laird (2021:103); McAlhone and Wortley (2016:53). 165 McAlhone and Wortley (2016:53); Herring (2022:193). 166 [2021] KEHC 377 (KLR). 167 Herring (2022:128). 168 Monaghan (2022:60). 52 Thus, two categories of intention emerge: i. Direct intention ii. Oblique intention a) Direct intention According to one school of thought, intention should be limited to the narrow definition of purposive or direct intention. Direct intention is also referred to as the primary or ordinary meaning of intention, where an accused person is considered to have intended a consequence if it was his aim or purpose to achieve it.169 Thus, the result should never be regarded as intention unless it was the actor’s purpose, i.e. unless he acted to bring about the result. Kenyan courts mostly give a narrow interpretation to intention restricting it to instances only where the consequences were the direct purpose of the accused and limited within the definitions provided for under statutes.170 b) Oblique intention It is also referred to as the secondary meaning of intention or indirect intention. Oblique intention applies in the situation where although it was not the defendant’s purpose to produce the result, the result was recognised by the accused as a potential consequence of his actions. In other words, it was certain from the defendant’s actions that he would cause the result. An example of this would be in the case where D with the intent to kill X, a long-term political rival, plants a bomb in an airplane in which X is a passenger together with others. It is not D’s intent to kill the other passengers, but it is inevitable they will die from his actions. A second example is where D intending to cause grievous harm to X decides to throw a stone at X through the window. X is in his house with windows shut. D knows that to hit X the window would have to break in the cause of his actions, although it is not his aim or purpose to damage the window. In both examples the concept of oblique intent allows an inference that if the results were so likely to occur following the defendant’s actions, the result must have been the defendant’s purpose, and the defendant therefore intended it. Kenyan courts have not directly addressed the issue of oblique intention, although they have acknowledged the application of foresight in determining the intention for murder. Regarding the murder case, Republic v David Makali Mutiso and another171, the deceased, a suspected thief, was accosted by the accused persons and beaten to death. The accused persons repeatedly beat him up with a piece of wood despite their victim’s pleas of innocence and asking them to contact his father. The High Court acknowledged that “[t]his case introduces the element of foresight on the part of an offender and his continuation to inflict harm to the victim and the nature of the weapon used to bring his 169 McAlhone and Wortley (2016:56). 170 See the mens rea discussion on the offence of Murder in Part 3, 1.1.2. 171 (2017) eKLR, Criminal Case no. 32 of 2015. 53 conduct within malice aforethought.” Several cases also reveal that Kenyan courts cite with approval English cases that expressly recognise oblique intention.172 If at all oblique intention is recognised, the Kenyan courts have failed to nuance the concept to acknowledge the contextual developments of the English cases they use as authorities to determine how they fit in the Kenyan context. Under English jurisdiction, the foresight of probability of whatever degree no longer amounts to intention. 173 The question of oblique intention has evolved to exclude foresight of consequences that were merely probable, likely or even highly probable. The foresight of the consequences must be virtually certain to amount to oblique intention. The current English test to determine oblique intention requires that “the specified consequence was a virtual certain consequence of D’s actions and D foresaw it as a virtual certain consequence.”174 Apart from the conflict on the exact degree of foresight applicable, English courts have also grappled with whether foresight of consequences of one’s actions is equivalent to the intent of the consequences or merely evidence from which an inference of intent may be drawn. Although the argument that a result foreseen as virtually certain is an intended result is considered to be advantageous in optimising certainty and consistency, some commentators see such a test to be “over-inclusive”, and it fails to “reflect the degree of ‘moral malevolence’ in D’s act.”175 The alternative position is to equate foresight of consequences as evidence from which intention may be inferred. The degree of likelihood of the occurrence of a result is evidence from which an inference may be drawn that the defendant intended the result. 176 In this later position, even if the defendant had realised the results would be a certain consequence of his action, there is still room to decide whether his mental state was wicked enough to be classified as intention. 177 This position allows room to reach an intuitively correct decision. 178 Ormerod, Smith and Hogan argue that although this latter position “might enhance the prospects of achieving justice in the individual case,” 179 it creates “potential for inconsistent decisions on identical facts” 180 and “renders it more difficult to predict accurately the outcome of cases.”181 Although the Kenyan courts do not expressly discuss the issue of oblique intention, several cases reveal that its underlying principles are used to determine the question of 172 Peter Shirau Amakobe v R [2017] eKLR, Criminal Appeal no. 1 of 2016; Republic v Ismail Hussein Ibrahim [2018] eKLR, Criminal Case no. 4 of 2016. 173 M. Allen, Criminal Law, 12th edn (Oxford: OUP, 2013), p. 74; Ormerod and Laird (2021:93). 174 McAlhone and Wortley (2016:56). 175 Ormerod and Laird (2021:95). 176 Herring (2022:131). 177 Ormerod and Laird (2021:95); Herring (2022:171). 178 Herring (2022:172). 179 Ormerod and Laird (2021:95). 180 Ibid. 181 Ibid. 54 mens rea.182 It can also be argued that the notion of oblique intention is recognised in the definition of mens rea for the offence of murder, referred to as malice aforethought. S. 206 of the Penal Code provides that malice aforethought can also be proved through evidence that shows the defendant knew the act or omission will probably cause death or grievous bodily harm to the victim even where such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused. An indifference on whether death or grievous bodily harm may be caused or a wish that it is not caused implies that these consequences were not the defendant’s purpose or aim although he knew they would be a result of his actions. Consider the following Kenyan cases Can an inference be drawn on whether the concept of oblique intention played a role in the following decisions? Jenniffer Wanjiru Ng’ang’a v Republic183, the defendant was involved in the trade of brewing illicit alcoholic drinks. Eight people died as a result of drinking alcohol from her pub. She was charged and convicted with the murder of six people. It was established that the victims died as a result of toxic levels of methanol or industrial alcohol found in their blood. The court made a finding that the defendant sold at her premises liquor that was unlicensed and laced with toxic levels of methanol. The trial court confirmed that the deceased persons had taken the illicit alcohol at the premises of the accused person which later caused their death. The trial court held that the accused person had sufficient mens rea (malice aforethought) for murder, having been reckless or indifferent by lacing the illicit brew that she was selling with lethal methanol. The Court of Appeal disagreed with the trial court asserting that intention to kill or cause grievous bodily harm, the mens rea for murder, had not been established. It also held that it had not been proved that the accused person knew that her actions of lacing the illicit alcohol with methanol would lead to the death or grievous bodily harm of those who drank it. The court then concluded that the accused’s conduct amounted to gross negligence or subjective recklessness, which can only satisfy a conviction for manslaughter. Comment: By holding the accused person did not know that her actions would lead to death, the court seems to be alluding to another level of culpability involving intention, could this satisfy the concept of oblique intention? It can be inferred that the court concludes the defendant had not foreseen death as a virtually certain consequence of her actions. Knowledge in this instance required certainty. The court in this case seems to recognise although not expressly stating that the virtually certain test of oblique intention is not satisfied. 182 Republic v Ismail Hussein Ibrahim [2018] eKLR, Criminal Case no. 4 of2016; Republic v TWG [2021] eKLR, Criminal Case no. 42 of 2017; Jenniffer Wanjiru Ng’ang’a v Republic [2018] eKLR, Criminal Appeal no. 196 of 2016. 183 [2018] eKLR, Criminal Appeal no. 196 of 2016. 55 Republic v Ismail Hussein Ibrahim184, the accused was charged with murder. The accused person was a police officer who, together with other customers, was at a bar (a pub) where they had been drinking. While at the bar, there was suspicion raised by one of the waiters, who noticed unidentifiable armed persons outside the bar. It was assumed they were likely armed robbers. D had tried to call for backup from his police colleague to no avail. The unidentified armed persons tried to access the bar leading to D firing a single gunshot that killed V and injured another. V died as a result of a single gunshot injury to the head. It would later turn out that the unidentified armed persons plus the victim were also police officers. The court acquitted the accused, finding that the prosecution had failed to prove malice aforethought for murder and, at best, the case disclosed liability for manslaughter. The court found the accused had justifiably used his weapon under the circumstances as a law-enforcing police officer preventing a felony. While analysing whether malice aforethought had been established (mens rea for murder), the court believed that courts in Kenya had not established coherent principles on the same, and it was also of the opinion that the definition of malice aforethought as set out in the Penal Code was incoherent. The court then proceeded to state: “This to me seems to be the right approach when it comes to manifestation of malice aforethought as defined under S. 206 (a) and (b) of the Penal Code. Where the circumstances of the case demonstrate that in carrying out the unlawful act the accused acted with full knowledge that the act was highly capable of causing death or grievous harm malice aforethought should be inferred. In reference to R v Moloney case two questions arise to be answered in the concept of intention and malice aforethought. (a) Was death or very serious injury a natural consequences of the defendant voluntary act? (b) Did the defendant foresee that the consequence of (being sic)[death or very serious injury was] a natural consequence of his act?” The court noted with approval that it will apply the principles set out in R v Moloney [1986] 3 ALLER in the case at hand. Comment: By using terms such as the accused had to know that his act was highly capable of causing death or grievous bodily harm or approving the statement that the accused had to appreciate that the relevant acts were likely to cause death is the judge adopting a standard that requires an intention to be inferred where the accused foresees a consequence as likely, probable or virtually certain? Does the natural consequence referred to in the Moloney case mean that the consequence is certain? By concluding that the prosecution failed to prove malice aforethought (intention) for murder, it can be inferred that the court found that the accused had not foreseen the specified prohibited consequences (death) as a virtually certain result of his actions. The statement that, at best, manslaughter had been proved implies the court found the 184 [2018] eKLR, Criminal Case no. 4 of 2016. 56 defendant might have only foreseen the consequences of his actions as merely probable or possible, which does not satisfy the test for intention, in this case, oblique intention. As explained above, courts in England have struggled with setting out the appropriate test for oblique intention. The Case of Moloney was to be later followed by the cases of Hancock and Shankland [1986] A.C. 455 HL, Nedrick (1986) 83 Cr. App. R. 267, Woollin (1999) 1 A.C. 82 HL. The upshot of these cases is that under the English jurisdiction, the oblique intention has evolved to exclude foresight of consequences that were merely probable, likely, or highly probable. The present test for oblique intention is whether the specified consequence was a virtually certain consequence of the accused’s actions, and the accused foresaw it as a virtually certain consequence.185 It is considered that a degree of foresight that amounts to probability (where the accused foresees the consequences as likely, probable, or just possible) constitutes recklessness. Recklessness is not sufficient for murder but is enough for manslaughter. In Moloney, the appellant and his stepfather, who had been heavily drinking, had a shooting contest to see who could load and fire a shotgun faster. The appellant loaded his gun first and shot his stepfather, who had challenged him to fire it. He claimed he did not realise the gun was pointing at his father. The appellant was convicted of murder, and the Court of Appeal dismissed his appeal. The House of Lords, however, quashed his murder conviction and substituted it for manslaughter. The conviction was quashed because the judge misdirected the jury that the appellant intended serious bodily harm if he foresaw that it would probably happen. According to Lord Bridge, there needed to be a moral certainty that an act will lead to certain results ‘unless something unexpected supervenes to prevent it.’ 186 This statement requires that the test of foresight for intention is that of virtual certainty. While this conclusion reflects the correct position of the law, the use of the term natural consequence by the court in Moloney ‘to mean a consequence that is virtually certain to ensue’ is considered unfortunate187, as it obscures the true standard required to infer oblique intention. Mc Alhone and Wortley set out an apt summary of the appropriate test when they observe that under oblique intention, a defendant will be liable for murder where he or she foresees death or grievous bodily harm as a virtually certain consequence of his/her actions, however, where he foresees death or grievous bodily harm as being highly probable, he should be liable only for (reckless) manslaughter.188 In Republic v TWG189, a 14-year-old started a fire in her boarding high school. The fire resulted in the death of 10 students. She was charged with murder. The court found that the prosecution had failed to establish mens rea for murder and instead held the accused liable for manslaughter. While assessing her mens rea, the court also noticed that the accused attempted to wake other students up so they could escape the fire. The court had this to say, 185 McAlhone and Wortley (2016:54). 186 Moloney 95 AC 905 at 925. 187 Ormerod and Laird (2021:100). 188 McAlhone and Wortley (2016:57). 189 [2021] eKLR, Criminal Case no. 42 of 2017. 57 “it is my considered view that the subject was not starting the fire with the intention of killing her schoolmates. To me it seems like an action born of a desperate attempt to make her be transferred from this school by any means. Her aim may have been just to cause a fire and burn the building without hurting anyone but it was ill-intentioned given that the building had two floors, ground and first. There were going to be casualties as a result of this fire. The subject, in her naivety, may have overlooked the consequences of her actions.” The court further concluded: “[W]here malice aforethought is not proved, but there is proof that the person under trial is the one of [sic] [who] killed the victims, then the offence committed is not murder but manslaughter.” Comment: The judge concludes that the accused’s aim was merely to burn the building. The judge also argues that the accused overlooked the consequences of her actions. Since the accused had not foreseen the consequences of death as virtually certain, she lacked the intention for the offence of murder. Compare this with Stringer [2008] EWCA Crim 1222, where a 14-year-old set fire to his family house and walked away knowing there were five other occupants. The Court of Appeal, while confirming his conviction for murder and arson with intent to endanger life, had the following to say: “if the jury were satisfied (as they must have been) that M started the fire after putting accelerant at the foot of the stairs, that he watched it take hold and then walked away, there could be only one answer to the question whether in fact it was a virtual certainty that somebody in the house would suffer really serious harm or death from M’s actions. It would be wholly unrealistic to imagine all the occupants escaping from the house by jumping from the upstairs windows without any of them suffering any serious harm. This must have been obvious to any ordinary person at the time. Even taking into account of M’s age and the fact that his IQ was low/average, the inference that he must have appreciated it on that morning was also overwhelming. On the facts as the jury must have found them, the conclusion that M had the necessary intent was bound to follow.” While the Kenyan courts in Republic v Ismail Hussein Ibrahim and Republic v TWG above seem to reach the right conclusion in their convictions, one has the impression that they did not sufficiently explore the question of intention with clarity. The reasoning reflected in the concept of oblique intention could have, perhaps with more clarity, justified the convictions of manslaughter if it had been directly addressed. Where the prohibited consequences are not the defendant’s aim or purpose, it needs to be determined if the defendant foresaw the consequences as virtually certain or merely probable. If the defendant foresees the prohibited consequences as virtually certain, it would be correct to conclude that he intended the consequences in the oblique sense. As 58 discussed in the next topic, the virtual certainty test ensures a clear distinction between intention and recklessness. The judgments reveal that Kenyan courts do not attempt to define intention as such. Instead, their analysis is subsumed in discussing the mens rea of the particular offence before them. Thus, it cannot be determined with precision what constitutes intention. Determining the meaning of intention would enrich and clarify the analysis of mens rea of the particular offences. Summary 3.4.2 Recklessness In many offences, intention to cause a wrongful result or recklessness as to whether that result is caused is sufficient to impose liability. A person who does not intend to cause a harmful result may take an unjustifiable risk of causing it.190 To unjustifiably take a risk in conduct which might cause harm to others is culpable behaviour. 191 Recklessness involves an accused consciously taking an unjustified or unreasonable risk to the possibility that certain undesirable circumstances exist or certain results/consequences will occur.192 To decide if the risk was unjustified an objective standard is used, that of an ordinary reasonable man.193 Sometimes, the risk might be recognised as capable of causing great harm, but the social utility of doing the action justifies it. For example, an aircraft 190 Ormerod and Laird (2021:104). 191 Ormerod and Laird (2021:104). 192 Dennis J. Baker, Glanville Williams Textbook of Criminal Law, 3rd edn (London: Sweet and Maxwell, 2012), p. 119. 193 Monaghan (2022:73); Herring (2022:142). • The prohibited conduct is D's objectiveor purpose.Direct intent• The prohibited conduct though not D'sobjective, D perceives/foresees it as aninevitable consequence to achieve hisobjective/purpose.Obliqueintent 59 operator or surgeon must know that their conduct might cause death, but none would be considered reckless unless the risk is unreasonable. The social value of the activity can justify the risk taken relative to the probability and gravity of the harm that might be caused. The greater the harm the activity is likely to cause the higher the social utility in taking the risk must be, to justify taking such risk. Where the activity undertaken involves a high social utility, only a very high risk could make the conduct unreasonable, and where the activity involves low social utility but a high risk of harm, such conduct would be considered unreasonable.194 There are two standards of fault that have been used under common law to establish recklessness, the subjective or advertent standard of recklessness and the objective or inadvertent recklessness. The subjective approach considers a defendant to be reckless if he appreciated the relevant risk. In contrast, the objective approach requires that the defendant would be reckless even if he did not appreciate the risk, as long as the risk would have been obvious to a prudent man. Both standards apply in the Kenyan context. In this Section a snapshot highlight is given on the development of the approaches within the English context. The referencing made to the English legal position stems from the Kenyan legal history and the evidence that Kenyan courts largely refer to English decisions, which have heavily influenced our interpretation of the law. As already noted with the discussion on intention, due regard needs to be given to the evolution and historical context of legal concepts to understand their rationale and determine to what extent they are applicable in our legal environment. Such a contextual outlook also clarifies what improvements can be made to our legal concepts, if any. a) Subjective recklessness The standard test for recklessness is found under the common law principles set out in what has traditionally been called “Cunningham recklessness” after the case of that name. The principle here requires proof of an accused person taking an unjustified risk and proof that the accused person was aware of the existence of the unreasonable risk. This is a subjective mens rea focused on the accused person’s own realisation of the existence of a risk. In Cunningham (1957) 2 QB 396, D tore a gas meter from the wall of the cellar of an unoccupied house to steal the money in it. He left the gas gushing out. It seeped into a neighbouring house and was inhaled by V, whose life was endangered. D was convicted of maliciously administering a noxious thing so as to endanger life. Because the judge directed the jury that ‘malicious’ meant simply ‘wicked’, D’s conviction was quashed. The Court of Appeal held: “[I]n any statutory definition of a crime ‘malice’ must be taken not in the old vague sense of ‘wicked’ in general, but as requiring either: i. An actual intention to do the particular kind of harm that in fact was done, or 194 McAlhone and Wortley (2016:69). 60 ii. recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to, nor does it indeed require, any ill-will towards the person injured.” Thus, Cunningham was not guilty because he had not foreseen the risk of gas escaping and that someone might inhale it. Under the current English jurisdiction from which the Kenyan courts draw much reference the courts have settled for the subjective approach in cases relating to recklessness. The House of Lords confirmed that the subjective approach is the appropriate test for the concept of recklessness in its R v G [2004] A.C. 1034 (House of Lords) decision. In this case, two boys aged 11 and 12 set fire to some newspapers and threw them into a wheelie bin in the yard behind a shop. They then left. The fire spread to the shop and other buildings damaging property of approximately 1 million pounds. The House of Lords overturned their conviction for recklessly damaging property belonging to another, which had been based on the objective approach. It stated: “A person acts recklessly […] with respect to (i) a circumstance when he is aware of a risk that it exists or will exist; and (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.” Thus, under the current English law, two questions need to be determined when looking to establish recklessness; first, it needs to be determined if the risk taken by the accused person was justified. The test here is an objective assessment. In this instance the social utility of the defendant’s conduct is weighed against the likelihood and severity of any harm or damage resulting from such activity, assessing whether a reasonable person would have taken such a risk.195 Once such risk has been judged unreasonable, the next question is whether, from the defendant’s viewpoint, he foresaw the risk, hence the subjective test of recklessness.196 b) Objective recklessness This entails not giving thought to or seeing a risk which would have been obvious to a reasonable or prudent person. In this situation, the accused person does an act which creates an obvious risk but when doing the act either does not give thought to the possibility of there being risk or has recognised that there was some risk but still goes on to do the act. In R v Caldwell [1982] A.C. 341(House of Lords), the defendant got drunk and deliberately set a hotel on fire. He did this for revenge following a disagreement with the hotel’s owner. There were guests in the hotel, but the fire was extinguished before any serious damage. The defendant pleaded guilty to the first count of intentionally or recklessly damaging the property of another but contested the second count of damaging property with intent to endanger life or being reckless as to whether the life of another 195 McAlhone and Wortley (2016:68). 196 McAlhone and Wortley (2016:69). 61 would be endangered. He claimed he was too drunk at the time of the incident, and the thought of endangering another’s life did not cross his mind. The House of Lords confirmed his conviction and asserted that recklessness included when a person does an act which creates an obvious risk and fails to give any thought to the possibility of there being any such risk, or he recognises the risk but decides to ignore it choosing to still proceed with his act. The test established in Caldwell meant an accused person could be reckless for failing to consider an obvious risk. The risk here is what a reasonable prudent man would consider obvious or the accused if he stopped to think about it.197 The English courts have since abandoned the Caldwell objective test because of its harsh implications of punishing one who takes the risk of harm that they did not perceive.198 Under the objective test, one who fails to give thought to the possibility of any such risk is considered equally blameworthy as one with foresight of the risk.199 The defendant who recognises the risk is seen to be more culpable than one who does not recognise it and deserving of punishment. Whereas it is considered that the defendant who does not genuinely perceive a risk ‘should not be subjected to conviction for serious crime or risk of punishment.’200 c) Kenyan case law on recklessness Most Kenyan cases, where elements of recklessness are directly addressed, mainly concern traffic offences. In the case of Bernard Wambua Kuu v Republic 201 ,the appellant faced eight (8) counts of causing death by reckless driving, contrary to Section 46 of the Traffic Act (Cap 403 of the Laws of Kenya). Section 46 of the Traffic Act includes recklessness as the mens rea element to the offence of causing death by dangerous driving. The Section partly reads: “Any person who causes death of another by driving a motor vehicle on a road recklessly or at a speed or in a manner which is dangerous to the public, [...] shall be guilty of an offence.” The court found the appellant liable and dismissed the appeal. The court relied on the reasoning in previous cases concerning the different elements of the offence. It referenced to Timothy Orwenyo Missiani v R202 which is the locus classicus on causing death by dangerous driving. Many case laws were cited in the Missiani case, which the court in Bernard Wambua Kuu also adopted in its reasoning. It cited the case of Republic vs Gosney [1971] All ER 220, where the Court of Appeal, Criminal Division, 197 Allen and Edwards (2021:105). 198 McAlhone and Wortley (2016:72); Ormerod and Laird (2021:111); Allen and Edwards (2021:105); Baker, Glanville Williams (2012), p. 122; Monaghan (2022:75); Herring (2022:143). 199 Allen and Edwards (2021:105). 200 Allen and Edwards (2021:107). 201 [2021] eKLR, Criminal Appeal no. 27 of 2020. 202 [1979] eKLR 285. 62 had held that to justify a conviction in such cases it needed to be shown that there was a situation “which viewed objectively was dangerous and also some fault on the part of the driver.” The court in Gosney went ahead to state as follows: ““Fault” certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame... fault involves on a failure; a falling below the care or skill of a competent and experienced driver, in relation to the manner of driving and to the relevant circumstances of the case. A fault in that sense, even though it might be slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient” (p. 224). The court also made reference to Republic vs Evans (1963) 46,which stated: “[I]f a man in fact adopts a manner of driving which the jury think was dangerous to other road users in all the circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily in attentive or even doing his incompetent best.” The cases recognised above clearly adopted an objective test to establish fault. This was also the test used by the court in Bernard Wambua Kuu. In Timothy Orwenyo Missiani v R203, although the court cited the above cases, it took an interesting view regarding sentencing on cases involving road accidents. It referred to R v Guilfoyle [1973] 2 All ER 844, which stated: “Cases of this kind fall into two broad categories; first those in which the accident has arisen through momentary inattention or misjudgement, and secondly those in which the accused has driven in a manner which has shown a selfish disregard for the safety of the other road users or his passengers or with a degree of recklessness. A subdivision of this category is provided by the cases in which an accident has been caused or contributed to be [by] the accused’s consumption of alcohol or drugs.” The court went on to recognise that in the first category of offenders, the sentence needed to be more lenient than in the second category of offenders who were considered reckless and deserving of more severe punishment. Thus, while the court used an objective test to establish fault, it provided at the point of sentencing a dichotomy of offenders considering those who inadvertently caused an accident as less culpable than those who advertently caused the accident. This introduces a subjective test for purposes of sentencing, creating an incoherency with the principles used to establish guilt. The court adopted a similar rationale in R v Dilesh Sonchand Bid204. In this case, D was convicted of causing death by dangerous driving and carelessly driving, causing serious 203 [1979] eKLR 285. 204 [2014] eKLR Criminal Revision no. 521 of 2013. 63 injuries. The trial court established that D had run over three victims at a zebra crossing causing the death of one and seriously injuring two others. D pleaded guilty and was fined KSh 100,000 for the count involving death and KSh 5,000 for the counts of serious injury. The prosecution found the sentence too lenient and sought a review at the High Court, asserting D should have had a custodial sentence. The High Court, during the review, took notice of D’s defence, where he had claimed the zebra crossing was not clearly marked and that he was a driver with 40 years of experience. D said he had done his best to swerve and avoid hitting the victims. The court also noted that D had taken victims to the hospital and paid for funeral expenses. The High Court declined to interfere with the sentence stating: “In this court’s assessment, this was not the action of a reckless driver that calls for the custodial sentence”. The court held that D did not cause an accident out of recklessness but due to inattention and lack of judgment. The court here seems to imply that recklessness is a more culpable state of mind deserving harsher punishment. It should be noted that the court by looking into the accused’s conduct after the accident to adjudge his state of mind at the time of the accident took into account irrelevant issues. The accused’s conduct after the accident was only relevant as a mitigating factor for his sentence. The objective test of recklessness has even been confirmed more recently in the cases of Paul Thiga Ngamenya v R205 and in Peter Nguu v Republic206. Interestingly, in both cases, the court interpreted Section 46 of the Traffic Act of Kenya as bestowing criminal liability in absolute terms. According to the court, “it does not matter that the driver thought that he was driving as best as he could in the circumstances. If the court is of the opinion that he was driving dangerously, then he shall be found guilty of the offence of dangerous driving.” Strangely, despite the aforesaid declaration the court in both cases still required the prosecution to prove an element of fault on the part of the defendants. In Paul Thiga Ngamenya v R’s case, the defendant was charged with two counts of causing death by dangerous driving. The facts revealed D had been driving a Nissan minivan (Matatu/Commuter bus) used for public transportation and, without due care and attention while overlapping, hit another motor vehicle leading to the death of two passengers in the said motor vehicle. The defendant was convicted, which he appealed. The High Court confirmed the conviction and adopted an objective test for recklessness regarding Section 46 of the Traffic Act. The court cited with approval the following passage from the Court of Appeal decision of Ngure v Republic [2003] E.A: “The mere occurrence of an accident alone is not enough to prove a charge of causing death by dangerous driving under Section 46 of the Traffic Act. Evidence must disclose a dangerous situation and the driver must be shown to be guilty of a departure from the normal standard of driving which would be expected of a reasonably prudent driver.” The court further noted: 205 [2018] eKLRCriminal Appeal no. 23 of 2017. 206 [2021] eKLR Criminal Appeal no. 56 of 2019. 64 “That to justify a conviction of the offence of causing death by dangerous driving there must not only be a situation which, viewed objectively, was dangerous but there must also be some fault on the part of the driver causing that situation. The question therefore is not just whether or not there was a dangerous situation, but whether the appellant also played a part in causing the situation to be dangerous.” Comment: The court’s analysis oscillated from absolute liability to the test of objective recklessness to establishing the accused’s advertent fault, which amounts to subjective recklessness. At first, the court refers to cases requiring fault on the accused’s part to be established. Still, in contradiction or mistakenly, the court declares that the offence is one of absolute liability. An offence of absolute liability requires no fault. The provision the court refers to expressly provides for the kind of fault element required for the offence (see above S. 46 Traffic Act). The court then adopts a standard of objective recklessness to determine fault and establishes that the accused was advertently reckless, confirming his conviction. Perhaps the court is alluding to the nature of the objective standard of fault when stating that the offence is absolute. This does not require the accused person to appreciate the risk involved. His liability arises as along as a reasonable person would have appreciated the risk in a similar circumstance. The accused is thus liable whether or not he gave thought to the possibility of the risk involved in his conduct (an inadvertent state of mind). In this sense, the accused lacks what has traditionally been understood to be mens rea which requires an advertent state of mind. Objective recklessness establishes fault for an inadvertent state of mind. While the courts adopt an objective test to establish recklessness, they seem to suggest at the moment of sentencing that there is a more culpable state of recklessness that deserves harsher punishment. This form of recklessness involves the accused consciously or deliberately acting in a manner that disregards the danger his conduct creates. This, in effect, recognises the aspect of subjective recklessness. For coherency and consistency, the Kenyan courts should adopt a subjective test to determine recklessness. Thus, if the court assesses that the defendant must have appreciated or foreseen the risk of his conduct resulting in the prohibited activity, the defendant is guilty of committing the crime recklessly. If something in the case indicates the defendant did not appreciate the risk and was momentarily careless, perhaps he/she will be considered negligent, where the offence recognises liability for both recklessness and negligence. Otherwise, the defendant should be acquitted. This would be a clear guide to help courts determine an appropriate sentence. The objective test could be justifiable for offences such as reckless driving which are of great public interest. The objective test, in this circumstance, is most suitable to avoid the situation where one would escape liability if a purely subjective test was applied giving rise to an injustice on public policy grounds. At first glance, where the offence is one that can be committed either recklessly or negligently the objective test does not seem to produce any injustice. However, when it is considered that recklessness also suffices for mens rea of more serious offences like assault and murder, then an objective test allows for a very low threshold in determining guilt. A possible solution would be to restrict the 65 objective test for determining recklessness to certain offences such as those relating to road traffic violations or for offences which are defined as capable of being committed recklessly and negligently in the Penal Code, and to otherwise adopt the subjective approach for defining recklessness for other forms of offences. Summary 3.4.3 Negligence While recklessness is the conscious taking of unjustifiable risk, negligence is the inadvertent taking of unjustifiable risk. If D is aware of the risk and decides to take it, he is reckless; if he is unaware of the risk but ought to have been aware of it, he is negligent.207 Negligence is a type of legal fault that arises for failing to comply with the standards of the reasonable (prudent) man. 208 It is the objective standard to which a person’s behaviour must conform. A defendant is negligent if he fails to recognise a risk that a reasonable person would have recognised, or he does consider the possibility of such a risk but wrongly concludes that there is no risk or that the risk is so small that it is worth taking.209 An accused person will be liable for negligence even if he has not thought about the possibility of certain consequences occurring simply because a reasonable person would not have acted similarly. Where the defendant did not realise there was a risk when he 207 Ormerod and Laird (2021:116). 208 Allen and Edwards (2021:126). 209 McAlhone and Wortley (2016:73); Ormerod and Laird (2021:116). Recklessnesstaking an unjustified risk• First step, objective test used to determine if risk wasjustified, i.e whether it is a risk a reasonable man wouldhave taken.Subjective recklessness • D liable only if he perceived the risk.Objective recklessness• D liable whether he perceived the risk or not as long as areasonable man would have perceived it. 66 ought to have, he is said to be inadvertently negligent.210 An advertent state of mind means the defendant “subjectively appreciates that consequences might result or circumstances exist.”211 Negligence is a fundamental concept in tort law, and strong arguments exist against criminal liability for negligence. It is considered especially harsh to label merely careless people as criminals.212 Although a careless or thoughtless person might be deserving of blame, he/she is not often considered the most blameworthy person “deserving the most serious intervention, punishment.”213 Under common law, manslaughter was the only crime for which liability for negligence was imposed, and the courts developed a further restriction that the defendant needed to be grossly negligent.214 The eradication of the Caldwell reckless objective test means there is a clear distinction between recklessness and negligence under English law.215 The English system tends to avoid using negligence as a fault element for serious crimes because of its harsh nature of finding the standards of what a prudent man would have done and not what passed in the defendant’s mind.216 The Penal Code of Kenya does not define recklessness and negligence. However, it uses the two terminologies together, demonstrating the close co-relation of the meaning and usage of these terms. Under Section 243, the Act provides a list of acts it collectively calls negligent and reckless acts that endanger human life or can cause harm. Section 243 provides that any person who in a manner so rash or negligent does certain acts that endanger human life or are likely to cause harm to others will be guilty of a misdemeanour. The acts include: driving any vehicle in any public way, navigating any vessel, doing any act with fire or combustible matter and failing to take any precaution against any danger it may cause, omitting to take any precaution against any probable danger from any animal that one possess, giving medical or surgical treatment, supplying, selling, administering or giving away any medicine or poisonous matter or failing to take any precaution against any probable danger from any explosive in one’s possession. Section 244 further provides that a person will be guilty of a misdemeanour where such person fails to do an act which is his duty to do, not being an act or omission specified in Section 243, as a result of which harm is caused to another. The courts have used an objective test to establish guilt for liability for offences falling within these provisions. In the case of Joseph Waruinge Njenga v Republic217, the appellant was charged with reckless and negligent acts contrary to Section 243(c) of the Penal Code. It was alleged that on 29 July 1979, on the 6th floor of the International House, Nairobi, within the Nairobi area, in a manner so rash or negligent as to endanger human life, omitted to take 210 Baker, Glanville Williams (2012), p. 123. 211 Allen and Edwards (2021:126). 212 Allen and Edwards (2021:127). 213 Allen and Edwards (2021:127). 214 Baker, Glanville Williams (2012), p. 125. 215 Ormerod and Laird (2021:115). 216 McAlhone and Wortley (2016:73). 217 [1980] eKLR. 67 precautions against a probable danger from combustible matter in his possession, namely, standard lacquer thinner and kerosene in that he, Joseph Waruinge Njenga, lit a cigarette with a match stick that caused an outbreak of fire. The accused claimed not to have known that the substance under his care was highly flammable. The court followed the criterion of establishing negligence as follows: “The question whether the accused’s conduct amounted to culpable rashes or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient considering all the circumstances of the case.” The court found that “no prudent and reasonable man with the knowledge possessed by the appellant would have sought to light a cigarette as and when he did. He exercised no caution at all.” The court not only used an objective test to establish guilt but also modified it to require a reasonable person with the professional knowledge that the defendant had. In R v Collins Otieno Obako218, the accused was charged with violating S. 243(d) of the Penal Code by omitting to take precaution against any probable danger from a dog in his possession, which attacked and caused injury to a 12-year-old boy who was on his way to school. The High Court confirmed his conviction holding he had negligently failed to take precaution to ensure the animal does not cause probable danger. His nine months prison sentence was confirmed. Having offences where criminal responsibility can arise from recklessness or negligence has contributed to the blurring of the division between the two forms of fault. The objective test adopted for purposes of establishing recklessness obscures the distinction between recklessness and negligence. The Kenyan courts have in effect extended the concept of recklessness to include negligence. The impact of this is to enhance the probability that courts will apply severe punishments even in cases involving negligence. The practice however shows that Kenyan courts at the point of sentencing already recognise that an accused person who was merely negligent deserves less severe punishment than in the instant where advertent fault is proved. There is no guarantee that courts always recognise this principle. The overall picture shows the need for Kenyan courts to adopt a more coherent and consistent practice on what constitutes negligence. An argument is strongly established to clearly define the parameters of recklessness so as to distinguish it from negligence. Consider the following case: R v Veronica Gitahi and Anor219 The defendants were charged with the murder of V, a 14-year-old girl. At the time of the incident, the defendants, who were police, had invaded the home of the 14-year-old girl 218 [2017] eKLR, Criminal Case no. 17 of 2016. 219 [2016] eKLR, Criminal Case no. 41 of 2014. 68 in pursuit of her father, who was an alleged wanted criminal. They attacked in the darkness and fired gunshots into the home that, fatally wounded the girl. At the time of the attack, the girl was at home with her father and two younger siblings. The court found gross omission on the part of the accused persons for failure to ascertain occupants of the house who happened to be children. It also held that the failure to avoid using firearms against children violated police rules amounting to unlawful omission. The court found the accused persons to be recklessly negligent and thus liable for manslaughter. Comment: Was the mens rea considered by the court recklessness or negligence? If it was recklessness, did the court adopt the objective or subjective test? This being a case of murder, the subjective test to define recklessness would be most appropriate. Perhaps the court considered negligence to be sufficient. Then, it would have to rely on the principles of gross negligence recognised by other courts for purposes of murder. The court’s conclusion that this was manslaughter is, in the circumstances, correct. However, its analysis of how it arrives at this result discloses gaps in the principles of mens rea used to establish criminal responsibility. By using the terms recklessly negligent the court conflates the two forms of mens rea creating an impression that one standard test is sufficient to establish both forms of mens rea. 3.4.4 Knowledge Knowledge, as an element of mens rea is often expressly provided for under statute. Many times, the Penal Code uses the words “with knowledge”, or “knowing” or “believing that” within the context of defining crimes to bring out the knowledge aspect. For example, S. 100 of the Penal Code criminalises making false claims by persons employed in public service with knowledge of the false particulars. Another example is S. 322 of the Penal Code which criminalises handling stolen property, it requires the defendant to know or believe the goods were stolen. The central feature of knowledge is that a fact or circumstance ‘is’. Knowledge brings out the certainty of the fact or the circumstance. This also distinguishes knowledge from a belief or suspicion where, in the latter, the same fact or circumstance is not certain but is merely likely or a possibility. Knowledge is often considered alongside intention. Whereas intention is usually descriptive of the state of mind as to consequences (for example, I intend to kill), knowledge is usually used concerning circumstances. An example would be where an accused person imports a substance knowing that it is prohibited by law. In Hemedi Ameri and 9 Others v R220, the appellants had been convicted of the offence of trafficking in narcotic drugs having been established that the marine vessel they were in charge of had conveyed and delivered narcotic drugs-bhang. The magistrate found the crew members knew that the pellets wrapped as Ketch-up were narcotic drugs. The High 220 [2000] eKLR, Criminal Appeal no. 48-57 of 1997. 69 Court, on appeal, found the crew members had no actual knowledge and overturned their conviction. It, however, confirmed the conviction of the two captains, having found that they deliberately shut their eyes to the facts of the situation. It confirmed that the two captains in the circumstances had actual knowledge. The court cited with approval Lord Devlin, in Roper v Taylor’s Central Garages [1951]2 TLR 284, who recognised three degrees of knowledge. The first degree of knowledge refers to actual knowledge, where the defendant is certain that a circumstance exists. The second degree of knowledge also called wilful blindness, involves the defendant deliberately failing to ascertain the truth. In this situation the defendant fears that circumstances may exist and deliberately decides not to make any further inquiry in case their suspicion turns out to be true.221 The defendant in this case deliberately shuts his eyes to the obvious or refrains from making inquiries because he suspects the truth.222 The third degree of knowledge requires that the defendant ought to have known that certain circumstances exist. It concerns itself with what a reasonable person would have known. It is referred to as constructive knowledge and is equated to negligence.223 Belief is something a bit less certain than knowledge with the English Court of Appeal in Hall (1985) 81 Cr. App R 260 describing it as “something short of knowledge. It may be said to be the state of mind of a person who says to himself: ‘I cannot say I know for certain that those goods are stolen, but there can be no other reasonable conclusion in the light of all circumstances, in the light of all that I have heard and seen.’” Terms such as suspicion may also be used to describe a relevant state of mind as to circumstances. It creates a very low threshold for establishing criminal responsibility.224 It is considered that the appropriate test for suspicion is a subjective one, with the defendant required to ‘think that there is a possibility which is more than fanciful, that the relevant facts exist’.225 Knowledge and belief are considered to be subjective concepts, which concern themselves with what the defendant knew. 226 However, where the provision of law requires the court to consider what the defendant ought to have known, an objective approach is used.227 3.5 Criminal liability that does not need mens rea Criminal liability that does not need mens rea can be classified into strict liability crimes and vicarious liability crimes. Strict liability crimes are those where proof of actus reus 221 Herring (2022:157); Monaghan (2022:79). 222 Herring (2022:157). 223 Allen and Edwards (2021:100). 224 Ormerod and Laird (2021:120). 225 Da Silva [2006] EWCA Crim 1654. 226 Herring (2022:157); Monaghan (2022:79). 227 Herring (2022:158). 70 suffices to establish the criminal liability of an accused person. In vicarious liability, acts of one person will be attributed to another. 3.5.1 Strict liability These crimes usually do not require mens rea as part of their element, so that a mere commission of the act will constitute the offence. A strict liability offence only requires the prosecution to prove the prohibited act. There is no need to prove fault (intention, recklessness, negligence or knowledge).228 The issue of fault would only be relevant if the defendant wants to show that he was not at fault to mitigate punishment.229 Strict and absolute liabilities are often interchangeably used but have different meanings. A strict liability offence does not require proof of mens rea in at least one element of its actus reus.230 It may have some aspect of the actus reus requiring strict liability and another requiring a fault element. For example, S. 8 of the Sexual Offences Act, concerning defilement, prohibits an act that causes child penetration. While the act of penetration requires intention, liability as to the age of the child is strict. An offence of absolute liability is a form of strict liability which requires no mens rea for any element of the actus reus. 231Absolute liability offences mostly concern the state of affairs offences. 232 No defences are available for absolute crimes, as exemplified by the cases of Larsonneur (1933) 24 Cr. App. R. 74 and Winzar v Chief Constable of Kenta (1983), The Times, March 28. On the other hand, all usual defences are available for strict liability offences except for the defence relating to lack of intention, recklessness and negligence.233 In Stephen Ouma Odede v Republic,234 the court acknowledged that although the offence charged was one of strict liability, the defence of mental incapacity was available to the defendant. The Court in Hamed Abdallah vs R235 held that the Transport Licensing Ordinance, S. 26(1), created an absolute liability, and it was no defence that the accused person was not party to or even aware of the alleged breach of the conditions stated in the provision. Almost always, strict liability offences are found in statutes. By enforcing them, the courts merely profess to be implementing the intention of parliament, express or implied.236 Strict liability offences are parliament’s answer to protecting the public in certain areas of great social concern. Thus, several regulatory offences concerning public health and safety, the environment, and regulations concerning licencing are strict liability offences. Strict liability offences are also considered relevant when the courts fear it would be difficult for the prosecution to prove mens rea and in offences involving minor 228 Baker, Glanville Williams (2012), p. 1275. 229 Baker, Glanville Williams (2012), p. 1269. 230 Monaghan (2022:88). 231 Monaghan (2022:89). 232 McAlhone and Wortley (2016:77); Ormerod and Laird (2021:150). 233 Baker, Glanville Williams (2012), p. 1267. 234 [2019] eKLR Criminal Appeal no. 10 of 2017. 235 (1964) EA 270. 236 McAlhone and Wortley (2016:83). 71 violations such as illegal parking and speeding.237 Regarding minor violations, the number of offenders may be too high that it would impose a heavy burden upon the resources of law enforcers to prove fault, making it more economically practical to impose strict liability.238 Where parliament creates an offence without expressly inserting a requirement of mens rea, courts need to determine if the absence of mens rea means the offence is one of strict liability. The general rule under common law is that there is a strong presumption that an offence should be interpreted as one requiring mens rea unless it is clear or implicit from the statute’s wording that the offence is one of strict liability.239 Certain factors influence courts to interpret an offence as one of strict liability. The court may look at the offence in its statutory context to determine if the presumption of mens rea is displaced, making the offence one of strict liability. The courts may look at the statute’s purpose and conclude an offence is one of strict liability if it will effectively promote the object of the statute encouraging greater vigilance.240 Where the offence is truly criminal (malum in se), the presumption of mens rea is particularly strong, as opposed to instances where the crimes are malum prohibitum or quasi-criminal.241 In such instances, the courts are more likely to consider crimes that are malum prohibitum as offences of strict liability. Courts are more likely to decide that offences involving a particular trade or profession, often regulatory offences, are offences of strict liability.242 Where the offence is one to prevent a grave social danger, the courts may readily interpret the offence as one of strict liability.243 An offence with severe punishment is less likely to be considered as one of strict liability than one with a less severe punishment.244 A defence of due diligence or no-negligence is considered a good indicator that the offence is one of strict liability.245 In Stephen Odede v R [2017] eKLR, the court determined that the provision of law concerning the offence of desertion in which the accused had been charged was one of strict liability. It concluded the provision created a quasi-crime making the offence a strict liability. The court cited the following passage with approval from Sweet v Parsley [1970] AC 132: “Sometimes the words of the Section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a Section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.” 237 Baker, Glanville Williams (2012), p. 1268; Ormerod and Laird (2021:173). 238 Baker, Glanville Williams (2012), p. 1269. 239 Ormerod and Laird (2021:154); Herring (2022:203); Monaghan (2022:90). 240 McAlhone and Wortley (2016:84); Monaghan (2022:90). 241 Baker, Glanville Williams (2012), p. 1280; McAlhone and Wortley (2016:80). 242 Ormerod and Laird (2021:164); Herring (2022:206). 243 Ormerod and Laird (2021:165); Herring (2022:206). 244 Ormerod and Laird (2021:170); McAlhone and Wortley (2016:82); Herring (2022:206). 245 McAlhone and Wortley (2016:83). 72 It further quoted Sweet v Parsley, noting: “It is also firmly established that the fact that other Sections of the Act expressly require mens rea, […] is not in itself sufficient to justify that a decision that a Section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in that ACT that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament.” In the House of Lords’ case of Sweet v Parsley [1970] AC 132, the appellant was convicted of being involved in the management of premises used in the smoking of cannabis. The trial court agreed with the prosecution that this statutory act did not require mens rea and that the defendant would be guilty under the Act. Therefore, it was not necessary to prove that she knew that cannabis was being smoked on the premise. She was convicted. She appealed, and the appeal was allowed as mens rea was essential unless the statute expressly excluded mens rea as part of the offence. 3.5.2 Crimes of vicarious liability The true rule of vicarious liability is to be found in the law of torts, where an employer is held liable for all acts performed by an employee during employment. Unlike tort law, criminal law focuses on personal culpability. Generally, under criminal law, a person is liable for his own wrongdoing. An employer is, therefore, not usually criminally liable for the acts of the employee unless under the principles of accessory liability. There are, however, some exceptional instances where criminal responsibility has been recognised under the principle of vicarious liability. At common law, an employer could be held liable for the acts of his employee for the offences of public nuisance and criminal libel.246 English courts have also, through constructive interpretation, recognised vicarious liability for statutory offences, particularly of a regulatory nature. 247 Their rationale is that a particular statute might otherwise be rendered useless unless they impose vicarious liability. 248 The English Courts apply vicarious liability for criminal offences through the attributed act and delegation principles. Under the attributed act principle, the act of the employee is deemed to be that of the employer. It applies to strict liability cases where the law makes the employer liable for the acts carried out by the employee. Statutory provisions may expressly attribute the actus reus of the employee to the employer, or the courts may, by implication, conclude that such was parliament’s intention.249 Thus, in statutory offences involving acts of selling, possessing, and using, the courts have extensively construed the words attributing 246 Allen and Edwards (2021:293); McAlhone and Wortley (2016:404). 247 Allen and Edwards (2021:293); Ormerod and Laird, Smith (2021:282). 248 Allen and Edwards (2021:293); Ormerod and Laird (2021:284). 249 McAlhone and Wortley (2016:404). 73 them to the employer on whose behalf the act is done.250 An example would be where the employee is the salesman and the courts make an interpretation that the employer is the seller.251 The act could also be done on behalf of a principal who is made liable for the act of his agent or on behalf of an independent contractor.252 On the other hand, the delegation principle only applies to offences requiring mens rea.253 Here the statutory provisions may be phrased in such a way that certain activities may only be carried out by a person of a certain status, often a licensee holder, who decides to delegate these activities to another. It is considered the law in such circumstances can only be effective by imposing vicarious liability; otherwise, a person with certain statutory obligations could escape liability by delegating such obligations to another. 254 The principle of delegation imputes the conduct and mental element of the delegate to the person who was under a statutory duty to carry out a certain activity or the recognised holder of a particular licence.255 The Kenyan courts have stated that vicarious liability does not apply to criminal law. In R v Joseph Muhia Mwaura & another256 and Janet Chepkorir v R257, the court condemned a situation it considered was tantamount to applying vicarious liability in criminal matters. In Taj Din vs Rex [1924-1926] 10 KLR/EALR 42258, the court held that apart from statute, no rule of law makes a person criminally liable for the acts of his servants. Unlike their English counterparts, Kenyan courts are not willing to extend the use of vicarious liability in criminal matters through constructive interpretation. Alternatively, it can be argued that cases have not yet arisen that allow for an extensive interpretation which recognises criminal responsibility from vicarious liability. The fact that the courts would not be opposed to such a possibility is presented by the following observation made in Zablon Rajab Okello v Republic259: “Although criminal law keeps away from the doctrine of vicarious liability on the basis that a person is personally liable for own criminal acts, it is not worthless to entertain a thought in perspective of criminal culpability of co-conspirators in a conspiracy or of accomplices or abettors or persons with common intention to commit crime, or of participators of a crime which leads to another crime which was foreseeable, or of directors or corporate managers’ liability for corporation’s liability. But this is a debate for another day” (para. 25). The statement by the court here seems to suggest that the underlying listed principles of criminal law apply rules similar to the concept of vicarious liability. It opens the 250 Ormerod and Laird (2021:287); Allen and Edwards (2021:294). 251 McAlhone and Wortley (2016:405). 252 Allen and Edwards (2021:294). 253 Ormerod and Laird (2021:285). 254 McAlhone and Wortley (2016:406); Ormerod and Laird (2021:285); Allen and Edwards (2021:295). 255 McAlhone and Wortley (2016:406). 256 [2017] eKLR, Criminal Case no. 53 of 2013. 257 [2021] eKLR, Criminal Revision Case E120 of 2021. 258 [1924-1926] 10 KLR/EALR 42. 259 [2022] eKLR, Misc. Criminal Application E 015 of 2021. 74 possibility of considering the application of vicarious liability in other appropriate criminal law contexts. 3.6 Transferred malice This is where the guilty mind of the intended crime is transferred to the resulting crime that may not have been intended. For example, if person X intends to shoot person Y. He misses his target, and instead person D is fatally injured because of this shot. The malicious intent to shoot person Y will be transferred to person D, thus fulfilling the requirement of mens rea. It could also take the form of person X wanting to shoot person Y. He shoots at person Y, who sustains fatal injuries. It is later discovered that person Y was actually person D and not Y. Still, in this scenario, the malicious intent to cause the death of person Y will be transferred to person D. What is most important is the fact that the initial intended act was unlawful, and it was accompanied by the guilty mind. The leading case illustrating this principle is Latimer (1886) 17 Q.B.D. 359, the defendant was involved in a quarrel with a man in a pub. He removed his belt and swung at the man, but the belt glanced off the man and instead hit a woman’s face, severely injuring her. The defendant was found guilty of maliciously and unlawfully wounding the woman. Lord Coleridge, in the case, held: “[I]f a person has a malicious intent towards one person, and in carrying into effect that malicious intent he injures another man, he is guilty of what the law considers malice against the person so injured.” Transferred malice only operates where the mens rea and the actus reus, which the defendant has caused relate to the same offence. In Pembliton (1874) L.R. 2 C.C.R.119, the defendant threw a stone at V with intention to harm but instead missed, and the stone broke a window. The defendant was not guilty of malicious damage as he lacked the mens rea for the offence. Transferred malice was addressed by the Court of Appeal in Kenya in Peter Kiambi Kariuki v Republic260.The deceased (V) intervened in a fight involving the accused (D) and another (P). In his intervention, P escaped from D, who was beating him up. D was angry at V’s intervention and turned his wrath upon V hitting him on the forehead with a stick. This resulted in a fracture on V’s skull, causing his death. D was convicted of murder which he appealed. One of the issues analysed by the trial court was that V was a victim of transferred malice. The court of appeal, while recognising that the doctrine of transferred malice was wrongly applied, made the following statement concerning the law of transferred malice: 260 [2013] eKLR, Criminal Appeal no. 321 of 2011. 75 “Under the doctrine of transferred malice, where a defendant fires a gun intending to kill X but misses and instead kills Y, he will not be able to escape liability for the murder of Y simply because it was his intention to kill X. The defendant has still committed the actus reus that he intended, namely to cause the death of a human being. It is then said malice against X can be transferred to Y.” The court concerning the facts of the case, stated: “The issue in this case is not whether the appellant intended to kill or cause grievous bodily harm to Mutegi [P] and then transfer this mens rea to the deceased. The issue is whether the appellant intended to kill or cause grievous bodily harm to the deceased; there is no question of transferred malice in this case and the learned Judge erred in invoking to the doctrine of transferred malice. The doctrine of transferred malice would have been applicable if the facts were that the appellant intended to kill or cause grievous bodily harm to Mutegi [P] and by mistake killed the deceased.” The Court approved the principles set out in the cases of R-v –Latimer (1886) 17 QBD and R-v-Pembliton (1874) LR 2 CCR 119. In Peter Shirau Amakobe v R261, D was involved in a fight with X within a prison facility when X, in self-defence following an attack from D, pushed D who fell on V. V as a result fractured his leg. D was held liable for the offence of assault, with the court applying the doctrine of transferred malice to establish mens rea. 3.7 Coincidence in time of actus reus and mens rea There must be a coincidence between the time when the actus reus of an offence occurs and the time when the accused person forms the necessary mens rea. The two elements must coincide in the same chain of events leading up to a crime. For example, person X is attacked in his house by person D. In self-defence, person X stabs person D with the knife he was using to cut onions. Person D is hospitalised with deep wounds. A few hours later, person X learns that person D had previously attacked her children and defiled them in his absence. Furious, person X picks up his gun and decides to kill person D. He rushes to the hospital and pushes the hospital door forcefully, gaining access to person D’s ward. As he quickly removed his gun and pointed it at person D, the doctor informs him that person D was already dead. Person X celebrates and shouts, “You were lucky you died before my arrival. I was going to do it anyway.” Person X is arrested with his gun. In this case, Person X cannot be prosecuted for murder since the relevant mens rea does not coincide with the actus reus. He is likely to be prosecuted for manslaughter but even then, the self-defence is likely to absolve him from responsibility. 261 [2017] eKLR, Criminal Appeal no. 1 of 2016. 76 3.8 Conclusion Similar to the principles relating to actus reus, the principles of mens rea that apply within the Kenyan context have their origin in common law. The discussion revealed a need to have more clarity on the distinction of the various forms of mens rea and to think through the appropriate standards to adopt for each concept. A clear gap that can be identified is failure by Kenyan courts to expressly recognise the role of indirect or oblique intention in establishing criminal responsibility. An express acknowledgement of the relevance of oblique intention restricting it to circumstances where the defendant knew the result was a virtually certain consequence of his actions would facilitate the process of establishing fault. Another identifiable gap is in considering the contours of the mental element of recklessness. Settling for the objective test to define recklessness conflates it with mental element of negligence. There should be a consideration to adopt a subjective approach for the concept of recklessness, where the defendant should be liable if he subjectively foresaw the possibility of a particular prohibited consequence from his actions and still proceeded to take an unjustified risk thereto. Such a step may require a redrafting of various offences. 3.9 Summary • Mens rea or fault element refers to the state of mind of the defendant at the time of carrying out the prohibited conduct. • It is mostly manifested in the form of intention, recklessness, negligence and knowledge. • Intention is when the defendant acts with purpose or it is the defendant’s aim to carry out the prohibited conduct (direct intent). It is also manifested in the situation where although the prohibited end is not the defendant’s purpose, the defendant realises the results are certain to occur from his actions (indirect intent). • Recklessness refers to the defendant taking an unjustified risk in conduct that might cause harm to others. • Negligence is legal fault that arises for failing to comply with the standards of a reasonable man. • The mens rea must generally coincide with conduct which forms part of the actus reus. • Criminal liability that does not need mens rea arises in strict liability offences and vicarious liability. 77 SECTION 4: DEFENCES Defences in this chapter should be seen as a common term used to consider certain restrictions upon liability. Restriction to liability here means a legal reason as to why the defendant should not be held liable for the offence charged. Essentially, although the prosecution has proved the necessary actus reus and mens rea of an offence, the defendant may still escape conviction if certain conditions exist which justify or excuse the commission or omission of the offence in question. These justifications or excuses are defences. The defendant could also avoid liability by raising a defence that relates to the defendant’s capacity to commit the offence or one that may negate an element of the offence charged. Criminal capacity is a precondition to criminal liability, it requires the defendant to be a person with sufficient capacity to be held responsible. A person should only be held criminally liable if he has the capacity to understand his actions and recognise the consequences that flow from it. The chapter explains the general principles relating to defences, providing relevant case law and an analysis of the bases of these court decisions. It will first discuss the defences that relate to the defendant pleading lack of sufficient capacity to be considered criminally liable and defences that negate mens rea these include insanity, intoxication, childhood and the defence of mistake. Thereafter the discussion will focus on defences that justify or excuse a circumstance or condition thus entitling the defendant to an acquittal. The defendant’s conduct is excused if it is considered the defendant was not sufficiently at fault. Although the behaviour in this case is not necessarily approved, it is considered not worthy of punishment.262 The defendant’s conduct is justified if it is considered it was the most appropriate action to take in the circumstances.263 Conduct that is justified is generally approved by the society.264 Defences have several antagonisms. They can be either absolute or partial. They can also be general or specific. A defence is absolute when, if successfully proven, it leads to an acquittal. A defence is partial if, upon successful proof, it lowers the charge from the most serious crime to a lesser serious one. In the Kenyan context, this is often the case with a charge of murder, which, if the specific defences are successfully established, is reduced to the offence of manslaughter. Partial defences, in this context, do not lead to acquittals. In the case of Republic v Andrew Mueche Omwenga [2009] eKLR, upon the accused person proving the defence of provocation, the court proceeded to acquit the accused of the charge of murder but convicted him of the offence of manslaughter. A defence is specific when its application is limited to a particular offence. A defence is general when it is available for most crimes. There could be instances where a defence although classified as general does not apply to some crimes, an example would be the defence of duress which is not available for the offence of murder. Once an accused raises a defence, the onus is on the prosecution to prove beyond reasonable doubt that the defence does not apply to a particular case. In the 262 N. Padfield, Criminal Law, 9th edn (Oxford: OUP, 2012), p. 112; C. McAlhone and N. Wortley, Criminal Law The Fundamentals, 4th edn (Sweet & Maxwell, 2016), p. 504. 263 Padfield (2012:112). 264 McAlhone and Wortley (2016:504). 78 circumstances where the defendant needs to prove the elements of a defence, the defendant bears an evidential burden with the standard of proof being on a balance of probability. The legal burden of proving that the elements of the defence are not present is on the prosecution, and the standard is beyond a reasonable doubt. 4.1 Ignorance of the law Under general rules of criminal liability, everyone is deemed to know the law and ignorance of the law is no excuse.265 This rule is recognised in Section 7 of the Penal Code. Under this provision lack of knowledge of the law can only be a defence where the law expressly provides that knowledge of the law is an element of the offence. The reasoning behind this rule is twofold, first that it is difficult to prove the defendant knew the law and second, that allowing such a defence would make it advantageous for people to deliberately refrain from informing themselves of their legal duties.266 Although ignorance of the law is no defence, ignorance of fact can be an excuse to the extent that it negates any mens rea or fault.267 4.2 Insanity It should first be noted that, under S. 11 of the Penal Code, as a general rule, every person is presumed to be of sound mind and to have been of sound mind at any time which comes into question unless the contrary is proven. The defence of insanity relates to the defendant’s mental capacity at the time of commission of the offence. When a defendant raises the defence of insanity, he is essentially saying his rationale judgment was impaired at the time of commission of the offence and therefore, he was not a responsible actor. As a defence it is available for all crimes. An accused person in a criminal trial can raise the aspect of insanity in two ways. First, an accused may raise insanity as a defence, claiming that at the time of committing the offence, he lacked the mental capacity to commit the alleged acts that constitute the offence. In this instance the defendant is basically asserting that he was incapable of understanding the wrongness of his criminality at the time of the offending conduct.268 This is an issue of substantive criminal law. Second, an accused person may also raise insanity during plea-taking. Here he may claim a lack of mental ability to follow the proceedings. This latter situation is a procedural question.269 It is important to keep this in mind to avoid many instances where students confuse these two situations. 265 D. J. Baker, Glanville Williams Textbook of Criminal Law, 3rd edn (Sweet & Maxwell, 2012), p. 641; Padfield (2012:139); McAlhone and Wortley (2016:454). 266 Baker, Glanville Williams (2012), p. 642. 267 Baker, Glanville Williams (2012), p. 641; McAlhone and Wortley (2016:454). Also see the discussion below on the defence of mistake of fact, Part 2 Section 3.5. 268 Baker, Glanville Williams (2012), p. 925. 269 S. 162-167 Criminal Procedure Code. 79 4.2.1 Unfitness to stand trial If in the course of trial, a defendant’s mental ability to make his defence comes into question the court must determine if the defendant is able to enter a plea and follow the proceedings. The Criminal Procedure Code (CPC) refers to the court making an inquiry into the unsoundness of the defendant’s mind.270 The issue of a defendant’s fitness to plead may be raised at any time by the defence, prosecution or the court itself.271 Once the court determines the accused person is of unsound mind it will postpone the proceedings.272 The court may then determine to release the accused person to the care of some guardian upon provision of sufficient security that the accused person will be properly taken care of and prevented from doing injury to himself or some other person, and with instructions that he be presented later to the court or before some other person appointed by the court.273 The court may also make an order that the accused person be detained in some suitable institution, and upon the president’s consideration the person may be committed to a mental hospital until it is determined that such person has recovered and can be tried for the offence.274 The above merely highlights an overview of what happens when the question of the defendant’s unfitness to be tried becomes an issue and is not intended to give an in-depth analysis of the procedure. The rationale of the procedure for determining unfitness to plead or the defendant’s soundness of mind is to establish whether the defendant can effectively participate in the trial process. It is concerned with the accused person’s mental state at the time of trial. A defendant is considered unfit to plead when it is found that he is unable to understand the charge, challenge the evidence, instruct his lawyer and follow the proceedings.275 4.2.2 Insanity as a defence The defence of insanity is concerned with accused person’s state of mind at the time it is alleged the offence was committed.276 The claim is that the accused was not a responsible actor at the time of the acts alleged to constitute the criminal offence since he lacked rationale capacity.277 This defence is covered under Section 12 of the Penal Code of Kenya, which spells out the constituent elements of insanity as follows: “A person is not criminally responsible for an act or omission if, at the time of doing the act or making the omission, he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally 270 S. 162 CPC. 271 K. Oyier, Criminal Prosecutions and Essence of Criminal Offences in Kenya (Law Africa, 2018), p. 93. 272 S. 162 (2) CPC. 273 S. 162 (3) CPC. 274 S. 162-164 CPC. 275 Robertson [1968] 3 All ER 557. 276 M. Allen and I. Edwards, Criminal Law, 16th edn (Oxford: OUP, 2021), p. 154; D. Ormerod and K. Laird, Smith, Hogan and Ormerod’s Criminal Law, 16th edn (Oxford: OUP, 2021), p. 305. 277 Ormerod and Laird (2021:305); Allen and Edwards (2021:157). 80 responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.” Thus, under Kenyan law, to successfully rely on this defence, the accused person would have to establish that at the time of committing the offence: • He suffered from a disease of the mind, • and because of this disease of the mind, he was unable to understand what they were doing, or • because of the disease of the mind, he was not capable of knowing that he should not do the act or the omission. Kenyan courts have upheld insanity as a defence. In the case of Leonard Mwangemi Munyasia v Rep278, the court observed thus: “It is a rule of universal application and of criminal responsibility that a man cannot be condemned if it is proved that, at the time of the offence, he was not a master of his mind.” The Kenyan position is a derivative of the common law principle on the test of insanity set out as the M’Naghten Rule. Even after referring to Kenyan law, Kenyan courts ordinarily relate to the common law origin of the test for insanity. In the case of Republic v CMW279, the court observed with approval that for the defence of insanity to stand, the accused must satisfy the grounds set out in McNaughten Case (1843) 10 C1 & Fin 200. It noted that for the defence of insanity to be successful it must be proved that at the time of committing the offence the accused was labouring under such a defect of reason, from disease of mind, as to not know the nature and quality of the act he was doing; or if he did know it, that he did not know what he was doing was wrong. The Kenyan courts while citing with approval the McNaughten insanity test hardly interrogate the meaning of its various limbs, they simply quote and proceed to apply it to the relevant cases. 4.2.3 The M’Naghten rule Daniel M’Naghten, intending to murder Sir Robert Peel, killed Peel’s secretary by mistake. His acquittal of murder on the grounds of insanity provoked controversy. It was debated in the legislative chamber of the House of Lords, which sought the judges’ advice and submitted to them several questions. The answers to these questions became the famous “M’Naghten Rules”: “[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring 278 [2015] eKLR Criminal Appeal no. 112 of 2014. 279 [2018] eKLR Criminal Case no. 43 of 2015. 81 under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know that he was doing what was wrong.” Thus, to successfully fall within the scope of the defence of insanity it must be proved that an accused: 1. Was suffering from a disease of mind; 2. The disease of mind gave rise to a defect of reason; 3. As a result, the accused either did know the nature and quality of his acts or if he did know, he did not know that what he was doing is wrong. Having identified the elements that constitute the defence of insanity, the following Sections analyse each of these aspects. a) Disease of the mind that causes defect of reason The Kenyan law does not provide clear guidance on what conditions constitute mental illness and thus qualify as diseases of mind under the above legal provision. The Kenyan law does not also define what constitutes mental fitness. The Mental Health (Amendment) Act 2022 fails to clearly address these issues. Kenyan courts have been guided by common law principles on what constitutes disease of mind. The issue for the court here is to establish whether the accused person was suffering from a condition that caused a malfunctioning of the mind.280 The mind refers to the mental faculties of reason, understanding and memory.281 It must be shown that the disease of mind caused a defect of reason. This means the accused person’s power of reasoning was impaired at the time of commission of the alleged offence.282 In other words, the disease of mind affected the reasoning capacity of the person. The person needs to have been deprived of their power of reasoning and not merely absent minded or confused.283 Under the M’naghten rules the question of whether a particular condition is a disease of mind is one of law and not a medical one. 284 As a legal concept it means the determination rests on the judge or magistrate and does not represent a medical diagnosis.285 Medical evidence, while relevant, remains simply evidence from which the court can draw its evaluation and make its decision. 280 Allen and Edwards (2021:163); Ormerod and Laird (2021:308); J. Herring, Criminal Law, Text, Cases and Materials, 10th edn (Oxford: OUP, 2022), p. 679. 281 R v Kemp [1957] 1 Q.B. 399; R v Sullivan [1984] A.C 156. 282 Ormerod and Laird (2021:314); Allen and Edwards (2021:165). 283 Clarke [1972] 1 All ER 219; also see Herring (2022:681); Allen and Edwards (2021:165). 284 Padfield (2012:85); Allen and Edwards (2021:160). 285 Baker, Glanville Williams (2012), p. 930; Allen and Edwards (2021:161). 82 In the case of Republic v IKI286, the High Court upheld the defence of insanity for an accused person diagnosed with schizophrenia and drug-induced psychosis. According to expert witnesses, the condition of schizophrenia could only be controlled but not cured by medication. At the same time, drug-induced psychosis could be treated, and a full recovery can be achieved after a long period of abstaining from further substance abuse. In the case of Republic v CMW287, Post-Partum Psychosis was upheld to be a disease of the mind arising from hormonal imbalance (mainly oestrogen). In this case, the doctor testified that the patient may not know what is happening to them when it occurs. They lack insightfulness to know they are sick and should seek help. The doctor’s further testimony showed that such a person would suffer from severe depression, hallucinations, hearing voices, and such disturbances.288 Epilepsy has also been upheld to be a disease of the mind. In the case of Richard Kaitany Chemagong v Republic289,the court cited with approval the fact that epilepsy was a disease capable of impairing an accused person’s mind as not to understand the nature and quality of their actions at the time of committing the offence. Temporary insanity was also upheld in the case of Wakesho v Republic290 to constitute a disease of the mind. Although medical evidence generally plays a big role in influencing the evaluation of the court, some Kenyan courts, with the consideration that the disease of mind is a question of law to be determined by the court, have made their decisions without or in ignorance of any medical guidance.291 This makes it difficult to justify or comprehend the rationale of some of the decisions when not backed by medical opinion and more particularly when they contradict the findings of the medical experts. It raises the question whether sufficient weight is accorded to medical evidence on this issue. Under common law, the rule on “disease of mind” has been criticised for being over-inclusive.292 Courts have adopted a wide range conditions as disease of the mind, with the considerations not only limited to mental causes but also include physical illnesses that affect functioning of the mind.293 In England, for example, this has been interpreted to include everyday illnesses like diabetes, amnesia, bipolar disorder, dementia, and Post Traumatic Stress Disorder (PTSD). b) Inability to understand the ‘nature and quality of acts or omissions’ An accused person’s inability to understand what they were doing corresponds to the nature and quality of an accused person’s acts or omissions. The nature and quality of an 286 [2019] eKLR, Criminal Case no. 7 of 2018. 287 [2018] eKLR, Criminal Case no. 43 of 2015. 288 Para. 26. 289 Criminal Appeal no. 150 of 1983. 290 (Criminal Appeal 8 of 2016) [2021] KECA 223 (KLR). 291 Pius Kioko Musyoka v Republic [2019] eKLR, Criminal Appeal no. 55 of 2018; Mbugua v Republic [1982] eKLR,Criminal Appeal no. 98 of 1981; Richard Kaitany Chemangong v Republic [1984] eKLR. 292 Ormerod and Laird (2021:308); Allen and Edwards (2021:157). 293 Padfield (2012:86); Ormerod and Laird (2021:308). 83 accused person’s act, or omissions, refers to the physical character of the act, not its moral or legal quality.294 This could mean the accused person did not know what he was physically doing, in that he was unaware of what was happening because of suffering from some kind of seizure.295 It could also mean the accused person did not understand what the physical consequences of his act would be or did not appreciate the circumstances under which he was acting.296 For example, A killing B under an insane delusion that he is breaking a jar or A cutting B’s head thinking he is cutting a loaf of bread.297 c) Inability to know that he ought not to do the act or make the omission Regarding this limb the question the courts will be asking is: Was the accused able to appreciate the wrongness of his acts? In R v Windle (Francis Wilfred) [1952]2Q.B, the court held that this means knowledge that that the acts are legally and not merely morally wrong. The defendant could prove either that he did not know what he was doing was contrary to the law or prove that he did not know that the act was wrong according to standards adopted by ordinary people.298 Therefore, the insanity defence will fail if it appears that the defendant knew his act was legally wrong or knew his action was considered as wrong by reasonable people.299 In Philip Muswi s/o Musele v Reginam300, the accused was convicted of the murder of his wife. He argued that he did not know what he was doing. Psychiatric evidence was tendered to prove that he was depressed and thought he was justified in killing his wife. His belief as to whether what he was doing was right or wrong was coloured by his belief that his wife was practising witchcraft. He appealed, asking the court to find him guilty but insane. The appeal was dismissed as the court found that he could give a fairly coherent account of what happened, suggesting that he knew what he was doing. 4.2.4 Who bears the burden to raise and prove the defence of insanity? Ordinarily, an accused person will raise the defence of insanity.301 Where the defendant raises the defence of insanity, he bears the evidential burden of proving it on a balance of probability.302 Kenyan courts have interestingly noted that the defence may also be raised by the court itself or the prosecution.303 In the case of Leornard Mwangemi Munyasia v Republic304 it 294 R v Codere [1916] 12 Cr.App.R.21. Also see Ormerod and Laird (2021:314). 295 Herring (2022:681); Allen and Edwards (2021:166); Ormerod and Laird (2021:314); McAlhone and Wortley (2016:490). 296 Allen and Edwards (2021:166); Ormerod and Laird (2021:314); McAlhone and Wortley (2016:490); Herring (2022:681). 297 McAlhone and Wortley (2016:490); Clarkson and Keating, Criminal Law, 8th edn (Sweet & Maxwell, 2014), p. 414. 298 Allen and Edwards (2021:167); Ormerod and Laird (2021:315). 299 Allen and Edwards (2021:167). 300 (1956) 22 EACA 622. 301 PIM v Republic (1982) eKLR, Criminal Appeal no. 91 of 1991. 302 CNM v Republic [1985] eKLR, Criminal Appeal no. 116 of 1985; Peter Wafula Juma & 2 ors v Republic [2014] eKLR; Republic v Mbaluki Makile [2005] eKLR, Criminal Case no. 264 of 2003. 84 noted “it is the duty of trial courts, to inquire specifically into the question of insanity, not only in situations where such defence is raised but also where, as here, it becomes apparent to the court from the accused person’s history or antecedent that insanity may be an issue.” In PIM v Republic305 , the court noted that where the defendant was unrepresented the prosecution could in the interest of justice present evidence as to the state of mind of the accused. It could be questioned whether the courts in these instances introduced procedures that more appropriately apply to the issue of fitness to stand trial. 4.2.5 The special finding of “Guilty but Insane” Once the accused person successfully proves the defence of insanity, with the prosecution having proved the actus reus, a finding of “guilty but insane” is entered under Section 166 of the Penal Code. There has been criticism against the finding of guilty for a person considered insane at the time of commission of the offence.306 The principle of rationale capacity in criminal law requires that criminal responsibility can only be attributed to a person who had the capacity of rationale judgment at the time of the relevant act.307 Following such a finding, the accused is detained at the president’s pleasure in a mental hospital, prison or other suitable institution. Thereafter a report shall be made by an officer in charge of the relevant institution holding the prisoner, for the president’s attention.308 Upon consideration of the report, the president may order that the detained person be discharged309 or be further detained under supervision in a mental hospital or prison.310 These powers are very fluid and can easily be subject to abuse. For example, a person found “guilty but insane” could be placed in custody or a mental facility for an indefinite period. Besides, nobody is bestowed with a mandate to monitor the progress of such detention and subsequent decisions either by the officer of the mental hospital or the president. Once the court makes the special determination, it ceases to have powers over the matter as it becomes functus officio. Kenyan courts have not only struggled to make sense of the finding of “guilty but insane” but also with its consequences. In the case of Wakesho v Republic311, as regards the special verdict the court stated: 303 Leornard Mwangemi Munyasia v Republic [2015] eKLR; Wakesho v Republic [2021] eKLR, Criminal Appeal no. 8 of 2016. 304 [2015] eKLR. 305 (1982) eKLR, Criminal Appeal no. 91 of 1991. 306 Wakesho v Republic (Criminal Appeal no. 8 of 2016) [2021] KECA 223 (KLR) (3 December 2021); PLO Lumumba, An Outline of Criminal Procedure in Kenya, 2nd edn (Law Africa, 2016), p. 221. 307 Allen and Edwards (2021:157). 308 Section 166 CPC. 309 Section 166(5) CPC. 310 Section 166(7) CPC. 311 (Criminal Appeal 8 of 2016) [2021] KECA 223 (KLR). 85 “[I]t is a legal paradox to find a person guilty but insane, in light of the requirements of criminal responsibility and culpability, which require that for a person to be criminally liable, it must be established beyond reasonable doubt that he or she committed the offence or omitted to act voluntarily and with a blameworthy mind. A finding of not guilty for reason of insanity would be more legally sound in circumstances where an accused person is suffering from a defect of reason caused by disease of the mind at the time of commission of an offence.”312 In respect to the consequences of the special verdict the court determined that S. 166 violated the right to a fair trial noting that the court should have discretion to impose appropriate measures to suit circumstances of each case. It directed that reforms were needed to the provisions of Section 166 of the CPC. In Hassan Hussein Yusuf v Republic313, the High Court questioned the constitutionality of Sections 167(1) and 166(2) of the CPC respectively. It found Section 167 of the CPC was discriminative to people with mental illness for prescribing their detention in prison instead of a health facility and detention for an indeterminate period. It ordered that the appellant, who had been found guilty but insane, be accorded treatment in a mental facility and be set at liberty if the psychiatrist was of the opinion that he would be of no danger to the public and himself, and if considered otherwise the appellant should be admitted for treatment until such a time as it is safe to release him. In Republic v SOM314, the High Court also held that Section 166 CPC was unconstitutional to the extent that it took away judicial function to determine the nature of the sentence or consequences of the special verdict. Yet some decisions although expressing strong reservations continue to uphold the current status of detaining persons found “guilty but insane” at the president’s pleasure.315 In Republic v ENW316, the High Court held that once the court passes its conviction and sentence they had no further role in the matter, asserting that the executive should be left to carry out its responsibilities as set out in Section 166 of the CPC. Interestingly, perhaps to counter the probability of indefinite detention that might follow once the convict is left at the mercy of the executive the court determined that a definite sentence ought to be given by the court. It is clear that Kenyan courts do not have a uniform approach concerning a finding of “guilty but insane”. This necessitates reforms to align the Criminal Procedure Code to the relevant constitutional principles. The reform should consider adopting a finding of “not guilty by reason of insanity” and having more flexible sentencing options. A person who suffered from a disease of mind as to not know the nature and quality of his acts 312 Para. 57. 313 [2016] Criminal Appeal no. 59 of 2014. 314 [2017] eKLR. 315 Republic v E N W [2019] eKLR, Criminal Case no. 78 of 2015; Republic v CMW [2018] eKLR, Criminal Case no. 43 of 2015. 316 [2019] eKLR, Criminal Case no. 78 of 2015. 86 appears to be a dangerous person and a simple verdict of acquittal would seem inappropriate. There is need to consider committing such a person to some mental health facility until a time that they are no longer a danger to themselves or the public. Whatever flexibility is considered in disposal of such cases caution needs to be observed not to allow unscrupulous pleas of insanity that can easily lead to misuse of the defence. 4.3 Intoxication One can be intoxicated as a result of taking alcohol or drugs. Intoxication affects one’s powers of judgment and perception and as a result of it one may fail to be aware of facts or foresee the results of his conduct.317 Intoxication is likely to deprive a person of the capacity to control of his conduct or from forming the necessary mens rea of the offence.318 As a general rule, intoxication is no defence save for in limited circumstances recognised under S. 13 of the Penal Code (PC). The Penal Code recognises intoxication as a defence where: i) The intoxication was caused without the defendant’s consent.319 ii) The intoxication caused the defendant to suffer from insanity, and as a result he did not know that such act or omission was wrong, or he did not know what he was doing.320 iii) Intoxication is relevant as a defence if on account of it the accused person did not form the relevant intention for the offence.321 The Court of Appeal in, Bakhari Magangha Juma v Republic322, confirmed that it was only in these three situations where a defendant who committed an offence while intoxicated would be excused from criminal liability. The most relevant question to consider in defences of intoxication is whether the defendant did in fact form the necessary mens rea, taking into account his intoxicated state. Where the prosecution is able to prove that notwithstanding the alleged intoxication the defendant formed the necessary mens rea, the court will convict. An intoxicated intent is still an intent in law.323 4.3.1 Involuntary intoxication Where the accused person lacks mens rea as a result of involuntary intoxication he must be acquitted. 324 Involuntary intoxication is where an accused person consumes alcohol 317 Ormerod and Laird (2021:328); Allen and Edwards (2021:176). 318 Allen and Edwards (2021:176). 319 S. 13(2)(a) Penal Code. 320 S. 13(2)(b) Penal Code. 321 S. 13(4) Penal Code. 322 [2016] eKLR, Criminal Appeal no. 107 of 2014. 323 Ormerod and Laird (2021:328). 324 Ormerod and Laird (2021:332); Republic v Bernard Wangila Wanyonyi [2020] eKLR, Criminal Case no. 4 of 2018. 87 against their will or without their knowledge. As a result, their reasoning abilities are impaired, making them unable to understand the nature and quality of their actions leading to the commission of a crime. This scenario has been explained by the Court of Appeal in the case of Bakari Magangha Juma v Republic325 as follows: “[A]t the time of commission of the act complained of, the accused person does not know that it is wrong or does not know what he is doing, because of intoxication caused without his consent by the malicious or negligent act of another person. In such a case, the court is required to discharge the accused person.” In R v Kingston326, the court emphasized that involuntary intoxication is not a defence unless the defendant lacks mens rea. 4.3.2 Voluntary intoxication Where due to voluntary intoxication the defendant does not form the necessary intent at the time of committing the offence, he may only escape liability in some limited circumstances. In this respect the Court of Appeal in Roba Galma Wario v Republic327, noted it would need to be established whether as a result of intoxication the defendant was driven to insanity, or he was so drunk as to not know what he was doing. Presumably, what the court meant in the second limb of being ‘so drunk as to not know what he was doing’ refers to the aspect of failing to form the requisite mens rea for the offence. In the first instance, voluntary intoxication is relevant as a defence where, as a result of it, the defendant suffers insanity. In, Bakhari Magangha Juma v Republic [2016]eKLR, the Court of Appeal citing with approval Rex v Retief328, a decision of the former Court of Appeal for Eastern Africa, noted that where by reason of intoxication an accused person is insane so that at the time of the offending act he did not know that it was wrong or he did not know what he was doing, it will bring the accused within the M’Naugten rules. This means a special verdict of guilty but insane will be made with the attendant consequences as prescribed in the Criminal Procedure Code. The second instance, where voluntary intoxication would excuse the defendant from criminal responsibility, is if by reason of the intoxication the defendant was incapable of forming the specific intention required for the offence.329 This situation has also been referred to by the Court of Appeal as “intoxication or drunkenness negativing mens rea.”330 It is not always clear how this principle is applied. At first glance one gets the 325 [2016] eKLR Criminal Appeal no. 107 of 2014. 326 (1994) 99 Cr App R 286. 327 [2015] eKLR, Criminal Appeal no. 159 of 2014. 328 [1940-1943] EA 71. 329Said Karisa Kimunzu v. Republic, CR App no. 266 of 2006 (Msa); Roba Galma Wario v Republic [2015] eKLR, Criminal Appeal no. 159 of 2014; Bakhari Magangha Juma v Republic [2016] eKLR, Criminal Appeal no. 107 of 2014. 330 Bakhari Magangha Juma v Republic [2016] eKLR, Criminal Appeal no. 107 of 2014. 88 impression that the rule applies to all forms of mens rea, but this is not the case. In the Kenyan context application of this principle is best illustrated in Bakhari Magangha Juma v Republic [2016] eKLR, where the Court of Appeal held that if it is proved that as a result of intoxication the defendant did not form the specific intention for murder, which is malice aforethought, then the court should convict for manslaughter. Thus, while the failure to form mens rea as a result of intoxication is an excuse for the offence of murder, it is not relevant for the offence of manslaughter. The substantive rule of common law set in DPP v Majewski331, is that if evidence shows the defendant was voluntarily intoxicated and at the time he committed the offence he was too intoxicated to be aware of his actions and their consequences, thus he did not have the requisite mens rea, it can only be a defence in crimes of specific intent and not in crimes of basic intent. Therefore, drunkenness will only provide an excuse for charges involving crimes of specific intent and not to crimes of basic intent.332 There is no clear clarification of how Kenyan courts distinguish between crimes of specific intent and those of basic intent. Therefore, to clarify the point, illustration will be drawn from the tests that have emerged under the English law. The emerging practice from English courts shows the distinction between specific and basic intent crimes is not always clear.333 A number of tests have been suggested to distinguish between specific intent crimes and basic intent crimes. There is the purposive intent approach where specific intent is equated with direct intent (aim or purpose).334 There is also the “ulterior intent test” where specific intent is equated with ulterior intent. 335 The ulterior intent approach means that crimes of specific intent are crimes where the mens rea of the offence extends beyond the actus reus, while crimes of basic intent are those which the mens rea only applies to the elements of the actus reus itself.336 An example of a crime of ulterior intent is genocide, apart from the requirement of mens rea for the prohibited conduct there is also need to prove that such conduct was carried out with intent to destroy in part or in whole a protected group. Terrorism crimes also fit in as crimes of ulterior intent. The challenge with the above classifications is that there is the crime such as murder, which is considered a crime of specific intent although it is not a crime of ulterior intent and does not always require direct intent to prove it. An alternative test which was also suggested in the Majewski case is the recklessness approach test.337 Under this view, if the crime can be committed recklessly it is considered as one of basic intent and self-induced intoxication will not be a defence.338 There is no universal logical test for the distinction with categorisation conducted on a case by case basis, and the decisions are mostly 331 [1977] A.C. 443HL. 332 Clarkson and Keating (2014:433). 333 Allen and Edwards (2021:178); McAlhone and Wortley (2016:461). 334 Clarkson and Keating (2014:434); Allen and Edwards (2021:180); McAlhone and Wortley (2016:464). 335 Clarkson and Keating (2014:434); Allen and Edwards (2021:180); McAlhone and Wortley (2016:464). 336 Clarkson and Keating (2014:434). 337 DPP v Majewski [1977] A.C. 443 at 479. 338 Allen and Edwards (2021:180); McAlhone and Wortley (2016:464). 89 driven by policy.339 In several cases the courts seem to consider if a defendant’s liability can be reduced without escaping all punishment.340 The rationale for the policy driven decisions is courts consider it would be undesirable for those who reduce themselves into an aggressive, dangerous or unpredictable condition to escape criminal responsibility, because if they did, they would be undeterred from reducing themselves to the same state in the future.341 This reasoning is reflected in the words of Lord Elwyn-Jones in DPP v Majewski, when he says: “[I]f a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs and drink to that condition in my view supplies evidence of mens rea, of guilt certainly sufficient of basic intent.” Dutch courage: A defendant who has decided to commit an offence and takes alcohol to give them courage to do it, also known as ‘Dutch Courage’ cannot rely on his intoxication to plead no mens rea.342 In Kupele Ole Katiaga v R343, the court noted, “A clear message must also go out to those of the appellants ilk who deliberately induce drunkenness as a cover up for criminal acts. Unless a plea of intoxication accords with the provisions of Section 13 of the Penal Code it will not avail an accused and does not avail the appellant in this particular case.” 4.4 Age capacity S. 14.1 of the Penal Code provides for the presumption that a child under eight years is incapable of committing a criminal offence and is therefore not subject to criminal proceedings. It is an irrebuttable presumption. This gives the child full immunity from criminal proceedings. The recognition that a child is incapable of committing a crime is referred to as doli incapax. The rationale of the principle is that a child is incapable of fully understanding the nature of criminal wrongs.344 The status of a child prevents one from being guilty, because a child is considered not to have developed the normal moral standards of an adult.345 The child is therefore treated with more leniency, as it is considered too harsh to label a child a criminal.346 339 Allen and Edwards (2021:181); Ormerod and Laird (2021:334). 340 Clarkson and Keating (2014:434). 341 Allen and Edwards (2021:178). 342 Attorney General for Nothern Ireland v Gallagher [1963] A.C. 349 HL. 343 [2009] eKLR, Cr. no. 26 of 2007. 344 Baker, Glanville Williams (2012), p. 922. 345 Padfield (2012:79). 346 Padfield (2012:79). 90 Section 14(2) provides that a child under twelve years is not criminally responsible unless it is shown that at the time of doing the relevant prohibited act the child had the capacity to know it was wrong to do the act. It creates a rebuttable presumption. This means to refute the presumption the prosecution has to prove beyond doubt that the child defendant had formed the necessary mental element for the offence and knew that his action was seriously wrong and not merely naughty or mischievous.347 The court in Republic v J.O and anor348, recognised that while S. 14(1) provided an irrebuttable presumption that a child below eight years was incapable of committing a criminal offence, S. 14(2) reflects the common law rebuttable presumption of doli incapax, where a child between eight and 12 could only be held liable for an offence if the prosecution produced evidence to rebut the presumption by showing the child at the relevant time had the requisite mental capacity to understand that what he was doing was wrong.349 This provision is most likely overridden by S.221 of the Children’s Act which now provides that a child under 12 years is not criminally responsible for any act or omission350, and S. 221(2) states that a child under 14 years is presumed not to be capable of differentiating between right and wrong unless proved otherwise to the court. This Section effectively raises the age of irrebuttable presumption of doli incapax from eight to 12 years and that of rebuttable presumption to between 12 and 14 years. S. 4 of the Children’s Act provides that the Children’s Act shall prevail in case of any inconsistency in the Act and other legislation. Thus, a child in conflict with law which the Act defines as any child above 12 years or below 18 years may either be subject to diversion or judicial process.351 The object of diversion is among others to make use of alternative methods of holding the child accountable.352 S. 14(3) of the Penal Code creates an irrebuttable presumption that a boy under twelve cannot have carnal knowledge. Thus, this age group enjoys total immunity from rape or defilement. In Republic v E M353, the court upheld the irrebuttable nature of this Section. It emphasized that this “provision does not place any obligation on the court to assess the capacity or knowledge of the respondent concerning criminal responsibility.” In Rex v Opiri s/o Meope and another354,whereby a boy of twelve to 13 assisted another boy of over 14 years to rape a woman, it was held that the boy of 14 could physically commit rape on a woman as he had reached the age of puberty. The other boy, though incapable of committing rape, was himself guilty as an abettor for assisting his colleague. 347 McAlhone and Wortley (2016:461); Padfield (2012:79). 348 [2015] eKLR, Criminal Appeal no. 135 of 2014. 349 Also see Republic v EM [2015] eKLR, Embu HCCC Crim with approval. Rev. no. 14. 350 S. 221(1) Children’s Act. 351 S. 224 Children’s Act. 352 S. 226 Children’s Act. 353 [2015] eKLR. 354 EALR 90. 91 4.5 Mistake of fact A mistake can give rise to a distinct defence where the mistake negates the necessary guilty mind required for an offence. This defence is recognised in Section 10 of the Penal Code. A person who commits a prohibited conduct while acting under a mistaken but honest belief as to the facts, will be excused from criminal responsibility if the mistaken facts under which he acted would provide a defence if true. The mistake ought to be a reasonable one to make in the circumstances. The defence will not apply where it is expressly or by implication excluded by provisions of the law. A person who acts under a genuine mistake as to an element of the actus reus of a crime which means they lacked mens rea for the offence, will not be criminally liable.355 An example would be the situation where the defendant while thinking a wild animal is attacking his herd of cattle shoots at the supposed wild animal hiding in a bush only to realise that he has killed another person. The defendant did not intend to kill or cause grievous bodily harm to a person, thus lacked the mens rea required for murder. A person could also make a mistaken belief which forms the basis of a defence if true, for example where the defendant under the mistaken impression that V is attacking him, hits V in self-defence. In normal circumstances such a situation would allow the defendant to escape responsibility. The defendant’s mistake ought to be a reasonable one to make in the circumstances. To assess this, an objective test is used. It needs to be determined whether the mistake is one a reasonable person in the defendant’s shoes would make. In Republic v Michael Wachira Kinyua356, a hippo invaded the maize farm of person X. Person X alerted Kenya Wildlife Service (KWS), and two KWS officers arrived at the farm. The accused person was one of the officers. At the end of the invasion, a dead hippo and a wounded man were allegedly shot by the accused person. The wounded man later succumbed to the injuries two days later. The accused person was charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. In response to a crowd approaching the scene, the accused fired at the deceased. The accused claimed that he acted on the mistaken belief that he had removed all the live rounds of ammunition from the rifle. The court was not convinced by this as evidence confirmed that the cause of the explosion was the live bullet. 4.6 Duress/Compulsion The defence of duress, also known as a compulsion, may be relied upon where a person is compelled by threats to commit an offence. S.16 of the Penal Code provides that where a person commits an offence under the compulsion of another who threatens to kill or cause him grievous bodily harm, such person shall be relieved of criminal responsibility. Such threat must be immediate, and the defence is not available for the offences of murder and attempted murder. 355 DPP v Morgan [1976] A.C.182. 356 [2019] eKLR. 92 Section 16 limits the application of the offence to the following circumstances: 1. Two or more offenders committing the offence. 2. The compulsion consists of threats to kill or cause grievous bodily harm to the person under duress. 3. The threat is applied throughout the commission of the offence – future threats are not applicable. 4. The defence is not applicable to excuse the offences of murder or attempted murder. The stringent qualifying conditions are due to public policy grounds. Firstly, to avoid the situation where any excuse can be used to plead the defence and secondly, it is difficult for the prosecution to disprove the defendant’s claim that he acted under compulsion.357 Duress by threat arises where there is a coercer who threatens to kill or cause serious injury to the accused person. There is a human agent directing the crime to be committed. The defendant would need to show that another person made threats that persuaded him to commit a crime which he otherwise would not have committed. The defence is an excuse and is allowed because the defendant acted without truly exercising his free will.358 The defence is available only when there is an imminent peril of death or serious injury to the defendant. It would seem the provision only recognises the situation where the threat is directed to the defendant. It is not clear if the defence would be available where the threat is directed to the defendant’s immediate family or someone close to him. The defendant must not only believe that the threat would be carried out (subjective test), but he must also have reasonable grounds for believing the threat would be carried out (objective standard).359 The objective standard requires that the threat must be such that the accused person could not have reasonably been expected to resist it.360 In other words the test is whether a reasonable person with similar characteristics as the defendant would have responded to the threats in the same way.361 In M’Kanyoro v R362 the court held that the threats need not be articulated, they could also be inferred from conduct and surrounding circumstances. Where the threatened harm will only ensue in the future the defence will fail for lack of immediacy. The rationale for its exclusion as a defence for murder and attempted murder is because the preservation of life is considered sacrosanct.363 In the English jurisdiction the defence of duress has been extended to recognise the duress of extraneous circumstances. This involves the defendant acting unlawfully due to 357 Forster (2008:218); McAlhone and Wortley (2016:523). 358 Baker, Glanville Williams (2012), p. 867. 359 Baker, Glanville Williams (2012), p. 875. 360 Baker, Glanville Williams (2012), p. 877. 361 Clarkson and Keating (2014:387). 362 (1962) EA 110 363 Forster (2008:227); McAlhone and Wortley (2016:531). 93 the circumstances in which he finds himself in. An example would be where a defendant whose wife is about to give birth prematurely, drives her to hospital at high speed and carelessly.364 The defence of duress by circumstances has similar legal requirements as duress by threats.365 Under the defence of duress of circumstances, the circumstances are such that defendant believes that unless he commits the offence the defendant or others will suffer death or serious bodily injury.366 In R v Willer367 the defendant, to escape from a gang of aggressive youths, drove over a pavement and slowly out of a narrow alleyway. He was charged and convicted with reckless driving. The conviction was quashed on appeal, the court held that the defendant was wholly driven by force of circumstances into doing what he did. Thus, the defence of duress of circumstances was available to him. In Kenya, such circumstances could only act as mitigating factors to the sentence. 4.7 Necessity The defence of necessity would apply in the instance where a defendant claims he had to commit the offence because something or certain circumstances left him with no other alternative.368 It involves a pure balancing of evils and settling for that which is the lesser.369 Under the defence of necessity the criminal act is justified where it is considered to have been a necessary choice to avoid a greater inevitable and irreparable evil.370 In other words, for the doctrine of necessity to apply the value preserved would need to be greater than the value destroyed in breaking the letter of the law.371 Generally, there is reluctance to recognise necessity as a general defence in criminal law.372 Courts view the defence with suspicion and consider that to allow it as a defence would result in its abuse by unscrupulous persons. 373 These sentiments are seen in Edmund Davies LJ’s statement in Southwark LBC v Williams [1971]Ch 734, when he says “[T]he law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear necessity can very easily become simply a mask for anarchy.” More particularly, there is reluctance to recognise the defence as a reason for killing. This is reflected in the case of R v Dudley and Stephens (1884) 14 QBD 273, where the court declined to apply the defence to a case of murder. Three men and a boy from the crew of a yacht were shipwrecked. After 18 days in an open boat, having been without food and 364 Forster (2008:219). 365 Clarkson and Keating (2014: 382); Herring (658); McAlhone and Wortley (2016:522). 366 Herring (2022:658). 367 (1986) 83 Cr. App. R. 225. 368 Clarkson and Keating (2014: 355). 369 Clarkson and Keating (2014: 357). 370 Baker, Glanville Williams (2012), p. 840; Clarkson and Keating (2014: 355). 371 Baker, Glanville Williams (2012), p. 846. 372 Forster (2008:216); Herring (2022:648); McAlhone and Wortley (2016:543). 373 R v Howe [1987] A.C.417. 94 water for several days, and fearing they would die, the defendants killed the boy, who was likely to die first. The three men fed on the boy’s body and drank his blood, and four days later, they were rescued. The men were indicted for murder. The jury, by a special verdict, found that the men would probably have died within the four days had they not fed on the boy’s body, and the boy having been in a weaker state would probably have died before them. The defendants were convicted of murder, but the sentence was later commuted to six months imprisonment. The defence of necessity is not expressly provided for under the Kenyan law. However, its elements can be inferred in Section 240 of the Penal Code, which justifies surgical operations: “A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.” There could be instances where medical necessity may justify the taking of a life, like in the instance where an unborn child dies due to an operation considered necessary to save a mother’s life. In R v Bourne (1938) 3 All ER 615, a 14-year-old became pregnant after being raped by five soldiers. A highly skilled surgeon operated on her to procure an abortion. The surgeon was charged with unlawfully procuring the abortion. He was acquitted on the grounds of necessity. According to the court, “it was for the prosecution to prove beyond reasonable doubt that the operation was not performed in good faith for the purpose only of preserving the life of the girl.” In Re A (Children) (Cojoined Twins: Surgical Separation) [2001] Fam.147, medical evidence revealed that conjoined twin girls if left together would result in the death of both within six months. The medical evidence demonstrated that the stronger twin sustained the weaker twin. To give the normal twin a prospect of a normal life they had to be separated, which would mean death for the weaker twin and the doctors would be liable for murder. Their parents objected to the operation and an application was made to the court to make a declaration that the operation would be lawful despite the fact that it would result in the death of the weaker twin. The High Court granted the declaration and the parents appealed. The Court of Appeal confirmed the declaration. Brooke LJ citing the works of Sir James Stephen considered three requirements as necessary for the application of the defence of necessity in criminal cases: i) The act must be done to avoid an inevitable and irreparable evil. ii) No more should be done than is necessary to achieve that purpose. iii) The evil inflicted must not be disproportionate to the evil intended to be avoided. 95 4.8 Marital coercion This defence applies to wives who commit crimes in the presence of their husbands. Section 19 of the Penal Code recognises the defence. Under the provision a married woman is not free from criminal responsibility for merely committing an offence in the presence of her husband, however, it shall be a good defence if shown that the crime was committed in the presence of her husband while under coercion. The defence is not applicable in the cases of murder and treason. The defence is only available if the woman is able to prove she committed the crime in the presence of her husband and was not acting of her own free will, but under compulsion from her husband. The Kenyan law codifies the common law rules on compulsion by a husband with more clarity. Under common law, a wife charged with a felony committed in her husband’s presence was presumed, unless proven otherwise, to have acted under his coercion and was entitled to acquittal.374 Once a woman proves her marital status and the offence was committed in the husband’s presence, the burden is on the state to prove that there was no coercion. 375 In the case of Commonwealth v Daley 376 , it was held that this presumption is inconclusive and may be disputed. According to the court, the question of fact to be determined is whether the married woman “acted under such coercion or whether she acted of her own free will and independently of any coercion and control by [the husband].” The defence has since been abolished under English law377 and now wives forced to commit crimes by their husbands will rely on the defence of duress.378 4.9 Superior orders Under this offence a subordinate may assert that they were forced by a sense of duty and loyalty to obey an order from a superior which resulted in breaking of the law.379 The superior order operates as an excuse from blame for the subordinate.380 There is no provision in the Penal Code on superior orders nor is there such general offence recognised under common law. Nonetheless, the defence is more likely relevant in the Court Martial by virtue of the several offences relating to disobedience of superior orders (Sections 77-81) or insubordination (Sections 82 and 83) provided for in the Kenya Defence Forces Act. There is no evidence that ordinary criminal courts in Kenya have allowed this defence, although it has been suggested by implication that it could comprise one of the defences available to an accused person. In George Itiotia Karuku v Republic381, the Court of Appeal affirmed the holding by the High Court which agreed with the Magistrate Court’s 374 Paul Benjamin “The Doctrine of Marital Coercion” Temple Law Quarterly, Vol.29, (Winter, 1956) 190. 375 Ibid. 376 (1988) 148 Mass, 11, 12, 18, N.E 579. 377 Abolished by the Anti-Social Behaviour, Crime and Policing Act 2014, Section 177. 378 Herring (2022:671). 379 Clarkson and Keating (2014: 395). 380 Ibid. 381 [1994] eKLR, Criminal Appeal no. 63 of 1994. 96 decision that the defence of superior orders was not available to the appellant who had knowingly disposed of, by selling and thereby committing the offence of stealing, parts of an aircraft, which he well knew did not belong to him or to his superior whom he alleged, had asked him to cut up the aircraft. The court did not elaborate on what constitutes superior orders nor what should be exempt. Notably, the defence of superior orders has crystallized under international criminal law, and this can provide some guidance to the Kenyan practice. Under Article 33 of the Rome Statute, an accused person cannot avail upon themselves the defence superior orders save in 3 cumulative circumstances: a) The person is under a legal obligation to obey orders of the government or the superior, b) The person does not know that the order is unlawful, and c) The order is not manifestly unlawful. In the first instance, an accused person has to establish that his actions arose from a legal obligation to obey his superior. Such a legal obligation may exist domestically under legislation or a contract. In other words, the accused person is asserting that he lacked no effective or real choice in the circumstances having been forced by duty to obey his superior. In the second instance, an accused person must establish that they did not know the orders were unlawful. Under the principle of “ignorance of the law is no defence”, the fact that a subordinate did not know that the orders given by their superior are prohibited under the law will not offer them the necessary defence. In the Kenyan context, this second limb would only apply where the law expressly provides that knowledge of the law is an element of the offence. In the third instance, the defence would not be available where the given orders are manifestly unlawful. The Rome Statute further clarifies that orders to commit war crimes and crimes against humanity are manifestly unlawful.382 In the South African case of Banda (1990) (3) S.A. 466, the court in this context noted that orders are manifestly unlawful where they are palpably illegal and any reasonable man in the soldier’s circumstances would recognise them to be so. 4.10 Self-defence – defence of self/another/property An accused person can invoke the defence of self-defence where he uses force to protect himself or another or to protect his property. Typically, in most cases involving self-defence the accused person is reacting to an attack from the eventual victim or complainant. Since the use of force in these circumstances is considered to be lawful, the unlawfulness of the actus reus is therefore negated. 382 Article 33 (2) Rome Statute. 97 The law on self-defence is governed by Section 17 of the Penal Code, which states that criminal responsibility for the use of force in the defence of a person or property shall be determined according to the principles of English Common Law, but making it subject to any express provisions that otherwise govern the matter. Self-defence is a common law defence that allows a person to use reasonable force to defend oneself or to defend another person or to defend one’s own property. In Privy Council Palmer v. Republic 1971 1 ALL ER, the court observed that a man who is attacked may defend himself in a manner that is reasonably necessary. What is considered reasonable and necessary defensive action depends on circumstances of each case. Kenyan courts have justified the need for self-defence and emphasise the requirement of an accused person to do that which is reasonable in self-defence given the presence of imminent danger or an attack. In Republic v Ismail Hussein Ibrahim383 the court determined that the following circumstances must exist when considering if the accused person was justified in acting in self-defence: (a) The accused person must have had reasonable ground to believe that there was apparent imminent or immediate danger of death or serious bodily harm from his attacker. (b) The accused person reasonably believed his life or that of a third person or his property or another person’s property was in danger. (c) The accused person must not have triggered the conflict or the assault. (d) The accused person used reasonable and not excessive force. In most cases, courts focus on the aspect of reasonable force as the test for self-defence.384 This requires that the person relying on self-defence only use such force as is necessary to avert the attack.385 The degree of force used is judged objectively in light of the circumstances as the accused person believed them to be.386 The force used by the defendant in response to the attack must be proportionate to the attack.387 Where a defendant genuinely but mistakenly believes he is being attacked and acts in self-defence, he will be judged according to his view of the facts.388 If self-defence is successfully pleaded it justifies the defendant’s conduct and he should be entitled to an acquittal.389 In the Kenyan context courts do recognise this position and have set a defendant free following a successful plea of self-defence even in a charge of 383 [2018] eKLR, Criminal Case no. 4 of 2016 384 Ahmed Muhammud Omar & 5 Others v. Republic, Cr. Appeal no. 414 of 2014; Republic V Guzambizi s/o Wesonga 1948 15EACA 65. 385 Clarkson and Keating (2014: 332). 386 McAlhone and Wortley (2016:543). 387 Clarkson and Keating (2014: 337). 388 DPP v Morgan [1975] 2 ALL ER 347; Republic v Ismail Hussein Ibrahim [2018] eKLR, Criminal Case no. 4 of 2016. 389 Clarkson and Keating (2014: 349); McAlhone and Wortley (2016:515). 98 murder.390 Generally while disproportionate use force means the plea of self-defence will be unsuccessful391, there are courts that consider the excessive use of force in self-defence as an excuse and mitigating factor which for example for the charge of murder reduces it to one of manslaughter.392 It is not clear if this latter position is firmly practiced because in most cases where self-defence is considered in this manner the partial defence of provocation is also present, which reduces a charge of murder to manslaughter.393 In the English context the disproportionate use of force in self-defence is only relevant in householder cases, cases involving battered partners within homes, where it acts as a partial excuse and is taken into account as a mitigating factor.394 Otherwise, excessive defensive force used for self-defence in the public domain means the defence will fail.395 4.11 Alibi This defence applies to crimes that require the physical presence of an accused person at the crime scene. This is when an accused person claims that he was not at the scene of the crime at the time when the crime is said to have been committed. A successful alibi defence is an absolute defence as it completely rules out the accused person as the perpetrator of the offence.396 When an accused person raises this defence, he does not assume the burden of proving the alibi. 397 The burden of proving an alibi’s truthfulness or falsity lies on the prosecution.398 The standards required are those of beyond reasonable doubt. Though not a mandatory legal requirement, it is advisable that the defence must be raised at the earliest opportunity to give the prosecution time to investigate its truthfulness.399 If the prosecution is satisfied with its genuineness, the charge will be dropped.400 Failure to raise the defence at the earliest opportunity may be a factor in determining the weight to give such a defence. 401 Raising the defence early helps remove doubt about whether an accused person seeks to rely on it as an afterthought.402 Yet, even when raised late, the prosecution can seek adjournment of the hearing to investigate the alibi.403 390 Republic v Ismail Hussein Ibrahim [2018] eKLR, Criminal Case no. 4 of 2016; Mokwa v Republic [1976-80] 1 KLR 1337. 391 Mokwa v Republic [1976-80] 1 KLR 1337. 392 Mungai v Republic [1984] KLR 85. 393 Republic v Kevin Aboki Onsom [2021] eKLR, Criminal Case no. 17 of 2019; also see Part 3 Section 1.2.3. (manslaughter from mitigrating cirumstances) 394 Clarkson and Keating (2014: 349); McAlhone and Wortley (2016:515). 395 Ibid. 396 Erick Otieno Meda v Republic [2019] eKLR, para. 18. 397 Ssentale v. Uganda [1968] EA 36; Republic v G N K [2017] eKLR. 398 Victor Mwendwa Mulinge –v- R, [2014] eKLR; Wang’ombe v. Republic [1976-80) 1 KLR 1683; Republic v G N K [2017] eKLR. 399 R. v. Sukha Singh s/o Wazir Singh & Others (1939) 6 EACA 145; Republic v G N K [2017] eKLR. 400 Ibid. 401 Waka Evans Amira v Republic [2021] eKLR, Criminal Appeal no. 1 of 2021 (SO). 402 Ibid. 403 Festo Androa A Senua v. Uganda, Cr. App. no. 1 of 1998. 99 Before its repeal, Section 235 of the Criminal Procedure Code required that an accused who wished to rely upon the defence of an alibi had to give the particulars of the place where he was and the particulars of the persons with whom he was. This informs the reasoning of the court in Karanja v R404, where the court observed that this defence should not just be mentioned in passing, but at least some evidence must be given. This position has since changed. Today, “it is up to the prosecution to displace any defence of an alibi and show that the accused was present at the place, and at the time the offence was committed by the accused or his accomplices.”405 4.12 Bona fide claim of right This is a claim that an accused was entitled in law to act in the manner that he did with respect to a particular property. The accused must prove he honestly believed that he was entitled to act as he did. Under Section 8 of the Penal Code, a person is not criminally responsible for an offence relating to property if the act done or omitted by him was done in the exercise of an honest claim of right and without intention to defraud. This defence is mainly common in crimes relating to property such as theft cases, malicious damage to property, forcible detainer etc. In most cases where this defence has been cited, either there is a pending or concluded court case concerning a disputed property. The courts have been reluctant to uphold this defence where the case has been concluded against an accused person who then proceeds to deal with the property in a manner to suggest that he has a claim of right. However, whether the dispute is concluded or still pending, the courts seem keen to uphold the defence when there is any reason to suspect that the claim of right by the accused is honest and not false. In the case of Samwel Abuya Mbija v Republic406 the appellant was convicted for the offence of forcible detainer contrary to Section 91 of the Penal Code. He was found to have been in possession of land in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of peace by building a house on the said parcel of land that person X was entitled to by law. The accused and person X had a dispute over this piece of land which led to a court action that confirmed person X’s proprietary rights. On appeal the court confirmed the conviction asserting that in light of the title issued in favour of person X and the final decree issued in the civil case confirming person X’s rights, the appellant could not be exercising a bona fide claim of right. The court found the appellant lacked an honest claim in the property. In Josphat Mwinji Kamwara & Another v Republic 407 , the appellants had been convicted with threatening to kill the complainant and forcible detainer of a parcel of land belonging to the complainant. On appeal the court confirmed the conviction for threatening to kill but overturned the conviction on forcible detainer, noting that the parcel of land was disputed property, with a case pending in court. The court held that 404 (1983) KLR 501 (1976-1985) EA. 405 Republic v. John Kimita Mwaniki [2011] eKLR. 406 [2014] eKLR, Criminal Appeal no. 87 of 2014. 407 [2020] eKLR. 100 the defence of a bona fide claim of right was available to the appellants since their belief in claim over the land was “neither based on a falsehood or intent to create a false impression”. In Kennedy Babu Gesora v Republic408, the appellant had been convicted for cutting down trees contrary to Section 334(1) of the Penal Code. The appellant and the complainant were brothers involved in a dispute over a parcel of land inherited from their deceased father. An assistant chief helped with the subdivision of the land between the brothers and notified them to remove their properties from each other’s parcel of land. As a result, the appellant felled down two trees from the complainant’s compound under the claim that they belonged to him. The complainant had claimed the trees belonged to him having planted them and the fact that they were in his compound. The High Court overturned the conviction holding that both had not proved to the required standard their ownership of the trees and the defence of bona fide claim of right was available to the appellant. 4.13 Accident The defence of accident is covered under Section 9(1) of the Penal Code. The provision recognises that a person is not criminally responsible for an act or omission which occurs independently of his will or events which occur due to an accident. The provision is subject to the express provisions relating to negligent acts and omissions in the Penal Code. In such incidents, the accused engages in an innocent act without any element of mens rea: there is no foreseeability that his acts may lead to the crime committed, and neither is he reckless nor criminally negligent. Here, the offending acts or omissions are committed independent of an accused person’s will. Once an accused person raises the defence of an accident, they need not prove that the acts or omission amounting to an offence resulted from an accident. However, the prosecution must prove, beyond a reasonable doubt, that the offending acts or omissions were committed voluntarily and intentionally. An accident is an absolute defence. This implies that an accused person who successfully relies on this defence must be acquitted. Where an accused person unsuccessfully relies on the defence of an accident in a murder charge, the court has opined that the lesser offence of manslaughter ought to be considered if there is some evidence to support it.409 4.14 Conclusion Most defences have their foundation in common law principles and their application does not always conform to the evolving criminal law principles or modern understanding of certain concepts. There is need for example for more clarity in the considerations necessary when determining what constitutes a disease of mind for the defence of insanity. Perhaps more weight should be accorded to the medical evaluation 408 [2010] eKLR, Criminal Appeal no. 218 of 2009. 409 Rex v Jehoshaphat Rugambi Mwaniki 919420 9 EACA 40. 101 of the experts. Another example would be the lack of clarity on what form of mens rea is referred to with reference to failure to form specific intent in relation to the defence of voluntary intoxication. There has been a challenge in the implementation of some defences with the adoption of the 2010 constitution, creating the need for reform. An instance of this is the determination of the special verdict for the defence of insanity, where courts have developed inconsistent approaches in disposing of such cases. There is overall a need to reflect on the general principles of criminal law relating to defences and ensure consistency in their implementation. 4.15 Summary • Insanity: The defendant will be considered guilty but insane if he suffers from a disease of mind which causes a defect of reason, and as result the defendant did not know the nature and quality of the act he was doing or if he did know, he did not know that what he was doing is wrong. • Intoxication: The defendant will escape liability as a result of intoxication only where the intoxication was involuntary and as a result of it, he failed to form the necessary mens rea for the offence. Where the intoxication is voluntary the defendant would only escape criminal liability if as a result of the intoxication, he suffers from a disease of mind sufficient to bring the defendant within the insanity rules or fails to form the mens rea for a specific intent crime. • Childhood: A child under the age of 12 will not be held criminally responsible. A child between 12 and 14 will only be considered criminally responsible if he knew what he was doing was seriously wrong. • Mistake: An honest but reasonable belief of facts that turn out to be mistaken, and as a result of which the defendant lacked the necessary mens rea for an offence, may excuse a defendant from criminal responsibility. • Duress: A defendant who commits an offence as result of being threatened with death or serious bodily harm may be excused from criminal responsibility. • Necessity: There are limited circumstances where a defendant will not be criminally responsible if he commits an offence to avoid a greater evil. • Superior orders: A defendant may be excused from criminal responsibility where he proves that he was a subordinate who committed an offence while acting under orders from a superior, whom he was under a duty to obey. • Marital coercion: A married woman may be excused from criminal responsibility if shown she committed the crime in the presence of her husband while under coercion. • Self Defence: An accused person can invoke self-defence where he uses force to protect himself or another or to protect his property. • Alibi: A defendant will not be criminally responsible where it is established that he was not at the scene of the crime at the time when the crime is said to have been committed. 102 • Bona fide Claim of Right: A defendant may escape criminal liability where he claims that he honestly believed he was entitled in law to act in the manner that he did with respect to a particular property. • Accident: A defendant is not criminally responsible for an act or omission which occurs independently of his will or events which occur due to an accident. 103 SECTION 5: INDIVIDUAL CRIMINAL RESPONSIBILITY A criminal offence may be committed by a sole offender or several persons, each carrying out a different role. All persons who participate in the commission of a crime are known as accomplices.410 Where several persons take part in the commission of an offence the issue of secondary liability arises. Secondary participation considers the liability of those who assist or encourage the commission of a crime. Such participants may be charged for aiding, abetting, counselling or procuring the commission of an offence or be jointly charged for taking part in an unlawful common purpose. The principles of law relating to parties to a crime are founded in common law. This makes English cases that analytically discuss the principles central to our discussion alongside Kenyan statutory and case law. This chapter will discuss the law of complicity or secondary liability also referred to as accessorial liability which covers principals and accessories. It will look into the various ways one may be an accessory to a crime, discussing the general principles of accessory liability and the doctrine of common unlawful purpose. It will also highlight principles relating to withdrawal from a common unlawful purpose by a secondary party. In addition, the principles relating to corporate criminal liability are also discussed. 5.1 Perpetrator The one whose act is the most immediate cause of the actus reus is usually called the principal offender or the perpetrator. This is the person directly responsible for the substantive crime/principal offence, the one who carries out the prohibited criminal act. Thus, in the case of murder, the principal offender would be the one who shoots or fatally stabs the victim. In the case of rape, the principal offender is the one who penetrates the victim. In this text for the Kenyan context, the principal offender will be referred to as the perpetrator or the primary offender. This is because, under Kenyan law, all participants in the commission of an offence are classified as principal offenders, whether they directly carry out the offence or have a more supportive role of assisting or encouraging the commission of the offence. There could also be more than one person committing the actus reus of an offence. In this case, we have more than one perpetrator, for example, when two people break into a house and steal valuable items. They are referred to as joint principals or joint perpetrators. There are also circumstances where a person will be liable as a perpetrator, although they did not personally carry out the actus reus of the criminal offence, while the person who is the immediate cause of the actus reus is not guilty of the offence. In such cases, the perpetrator is considered to have used another person (who, due to lack of capacity [infancy], lack of mens rea or insanity, is held to be innocent/not guilty) in the commission 410 Watete v Uganda (2000) EA 559. 104 of the criminal offence. Here the perpetrator is considered to have acted through an innocent agent.411 5.2 Accessory/Secondary liability There are also those who may participate in committing the offence but are not directly responsible for the actus reus. Such persons adopt more of a supporting role in committing the offence and are likely to be held liable for aiding, abetting, counselling or procuring the commission of the criminal offence. They are referred to as accessories, accomplices or secondary parties. Chapter V of the Penal Code contains provisions concerning parties to the crime. S. 20 of the Penal Code refers to principal offenders who include any person who does or omits to do the act constituting the criminal offence, anyone who does or omits to do an act for the purpose of enabling or aiding another to commit a criminal offence, anyone who aids and abets another in committing an offence and anyone who procures or counsels another to commit an offence. Under Kenyan law, all who participate in the commission of a crime, either as perpetrators (those who directly carry out the crime) or accessories (those who otherwise facilitate or aid commission of the crime by some form of assistance or encouragement), are called principals.412 This reference to all participants in a crime as principal offenders is a heritage of former English criminal law.413 The rationale for this is that, historically, those who carried out acts of assistance or encouragement that caused another to commit an offence were all considered to have brought about the commission of the offence, thus, principal offenders.414 This implies that both perpetrators and accessories are considered equally responsible and will be liable for the same consequences upon conviction. Nonetheless, a further reading of the provision reveals that a conviction for counselling and procuring carries the same consequences as a conviction for committing the offence (S. 20[2]). This implies a hierarchy is established in participation, at least for the purpose of punishment. Therefore, participating in the commission of a crime as a direct perpetrator, counsellor, or procurer will likely lead to a harsher penalty than one who aids and abets the commission of a criminal offence. In Lydia Wamaitha Wambui v Republic415 the appellant’s sentence to death as a result of a conviction for robbery with violence was reduced to five years due to what the court considered to be her minor role of aiding and abetting. 411 M. Allen and I. Edwards, Criminal Law, 16th edn (Oxford: OUP, 2021), p. 258; D. Ormerod and K. Laird, Smith, Hogan and Ormerod’s Criminal Law, 16th edn (Oxford: OUP, 2021), p. 188. 412 Also see R v Jeremy Kiogora Mbae [2019] eKLR HCK at Meru, Criminal Case no. 34 of 2014. 413 See brief discussion on the development of concept of principal offenders in D. J. Baker, Glanville Williams Textbook of Criminal Law, 3rd edn (Sweet & Maxwell, Thomas Reuters, 2012), p. 451. 414 See Toulson LJ in Mendez and Thompson [2010] EWCA Crim 516. 415 [2019] eKLR, Criminal Appeal no. 96 of 2018. 105 In Victor Wekesa Wanyama & 2 Others v R416, the appellants were convicted of murder. The 2nd appellant was the father of the 1st and 3rd appellants. The 2nd appellant had a parcel of land adjacent to the victim’s, and there was an unsettled boundary dispute between them. The trial court found that the appellants had attacked the victim and her son, and as a result, the victim suffered injuries which led to her death. The appellants were convicted of murder, having been found to have formed a common intention to cause grievous bodily harm to the victim. The Court of Appeal confirmed this conviction and sentenced the 1st and 3rd appellants to 20 years imprisonment (being a reduction from 50 years), while it confirmed the 10-year sentence for the 2nd accused, taking into account his age and the fact that he merely instigated or encouraged the sons to attack the victim and did not himself carry out the act. His role was more of abetting the murder. Thus, under S. 20 of the Penal Code a defendant who is a secondary party to a crime is tried and punished as a principal offender for the offence. A person charged with, for example, robbery with violence may be convicted for the offence whether the evidence shows he committed the robbery with violence or aided, abetted, counselled, or procured the offence. The prosecution can still secure a conviction without specifying what role the accused person played. It is preferable, however, that the charge should, wherever possible, indicate whether the accused person was the perpetrator or accessory.417 5.2.1 Why is the distinction necessary? The academic literature and the practice of criminal law emphasize that the distinction between a perpetrator and accessory is fundamental and should not be confused since accessorial liability assumes that the accessory does not cause the actus reus of the offence.418 Even though the consequence of conviction as a perpetrator or an accessory is in most cases the same, it is nonetheless essential to distinguish them for the following reasons: i) Secondary liability is derivative. This means an accessory can only be liable if the principal offence has been carried out.419 ii) The mens rea and actus reus requirements for an accessory may differ from a perpetrator. iii) Some offences are defined in a way that they can only be carried out by a perpetrator from a specified class of persons or with particular qualifications.420 iv) The mens rea of the accessory must always be proved, even if the perpetrator’s offence is one of strict liability.421 416 [2018] eKLR, Criminal Appeal no. 94 of 2015. 417 Ormerod and Laird (2021:183); Baker, Glanville Williams (2012), p. 457. 418 Ormerod and Laird (2021:185-186). 419 C. McAlhone and N. Wortley, Criminal Law The Fundamentals,4th edn (Sweet & Maxwell, 2016), p. 385; Ormerod and Laird (2021:184). 420 Ormerod and Laird (2021:184); Allen and Edwards (2021:259). 421 Allen and Edwards (2021:259); Baker, Glanville Williams (2012), p. 456; Ormerod and Laird (2021:184). 106 v) In some instances, it may lead to a difference in punishment: This would, for example, be where the accessory played a minor supporting role, he/she might get a lesser punishment. 5.2.2 Defining the terms An accessory is thus liable for conviction if it is proved he aided, abetted, counselled, or procured a particular offence with the requisite mens rea of an accessory. Liability of an accessory only arises if the principal offence has been committed. While it has been argued that each of the terms has a clear, distinct meaning422, there is also a contrary view that there is a degree of overlap in the meaning of the terms. The court in Bryce [2004] EWCA Crim 1231 confirmed that the prosecution could use the catch all phrase ‘aid, abet, counsel or procure’ to charge accessories, because the shades of difference between the terms are far from clear.423 Case law has nonetheless assigned various meanings to the terms: a) Aiding It involves providing assistance, helping or supporting the perpetrator to commit the offence before or at the time of its commission,424 for example, providing information and weapons to be used for the crime, acting as a lookout or driving the perpetrator to the crime scene. The aider does not need to agree with the perpetrator, nor does the perpetrator need to be aware of his/her assistance, i.e., there is no need for a meeting of minds. To illustrate this D1 and V get involved in a brawl in a pub. V realising D1 was definitely the stronger one decides to get away from the fight. While attempting to get away D2 a neighbour of V, with whom V has had a long outstanding dispute over the boundaries of their neighbouring parcels of land, sees the opportunity to express his rage and shuts the door of the pub preventing V’s escape. This gives the opportunity to D1 to continue assaulting V, as a result causing him serious harm. In this instance D1 and D2 could both be prosecuted for assaulting V and causing him grievous harm. While the assault may mainly be attributed to D1, it can be argued that D2 assisted him by shutting the door and ensuring V did not escape. Although there was no agreement between D1 and D2, D2 could still be responsible for aiding in the assault of V. b) Abetting It suggests encouraging or instigating or inciting.425 One example can be found in Wilcox v Jeffrey [1951] 1 All E.R. 464, whereby the accused was held liable for cheering and clapping at an unlawful concert. 422 See Lord Widgery C.J in Attorney General’s Reference (no. 1 of 1975) [1975]2 All E.R. 684. 423 Potter L.J. in Bryce [2004] EWCA Crim 1231; see also HM Keating et al, Clarkson and Keating: Criminal Law, 8th edn (Sweet & Maxwell, 2014), p. 545; Baker, Glanville Williams (2012), p. 454. 424 Ormerod and Laird (2021:193); Allen and Edwards (2021:261); McAlhone and Wortley (2016:383). 425 Ormerod and Laird (2021:194); Allen and Edwards (2021:261); McAlhone and Wortley (2016:383). 107 c) Counselling Also involves advising, soliciting, encouraging, instigating or inciting the commission of an offence.426 In N.C.B v Gamble [1959] 1 Q.B. 11, it was held that abetting required presence at the crime scene, whereas counselling involved encouragement given before the crime. The parties do not need to meet and agree to be liable for aiding, abetting and counselling. There must be some connection between the counselling, abetting and commission of the principal offence. This means that it has to be shown that there was a meeting of minds or consensus that the offence committed was the one encouraged, and the perpetrator was aware of that encouragement even if he would have committed the offence without encouragement.427 The amount of encouragement does not need to be great. In the English case of Giannetto [1997] 1 Cr App R 1, the court suggested the defendant could be held responsible for murder after a simple response of “[o]h goody” to the statement by the perpetrator that he was going to kill the defendant’s wife. This was considered counselling for murder. There is no need to prove a causal link between the assistance or encouragement and the commission of the offence.428 Although aiding, abetting and counselling do not require causation, the accused person’s conduct must still in some way have relevance or some connecting link to the commission of the principal offence.429 d) Procuring Procuring means “to produce by endeavour”. 430 An accused is the procurer if they produce an offence by putting the perpetrator up to committing the offence by persuasion or threats or by taking some other action which will result in the commission of the offence by the perpetrator.431 In A.G’s Reference no. 1 of 1975, the accused was held liable for secretly spiking the drink of a friend (the perpetrator), who was guilty of the strict liability offence of driving with blood alcohol over the legal limit. The offence had been procured because the accused caused the friend to commit the offence of drink driving which he never would have committed otherwise. A causal link must be established between what the procurer did and what was done by the perpetrator.432 Causation here means that the perpetrator would not have committed 426 Ormerod and Laird (2021:195); Allen and Edwards (2021:261); McAlhone and Wortley (2016:383). 427 Allen and Edwards (2021:262); McAlhone and Wortley (2016:384); Ormerod and Laird (2021:195). 428 Attorney General’s Reference no. 1 of 1975. 429 McAlhone and Wortley (2016:384). See also Stringer [2011] EWCA Crim 1396. 430 Ibid. 431 McAlhone and Wortley (2016:384). 432 Allen and Edwards (2021:262); Ormerod and Laird (2021:195). 108 the principal offence but for the accused’s/defendant’s conduct.433 In other words, the prosecution must show that the principal offence would not have occurred without the procuring conduct. A look at Kenyan case law reveals that the courts do not have a detailed definition or discussions regarding accessory liability. The cases merely point to a cursory look at the definitions in the Black Laws Dictionary, where aiding and abetting are simply defined as assisting or facilitating the commission of a crime.434 Courts in Kenya seem to use the terms interchangeably without giving much thought to distinguish them. For example, in Shadrack Kinyanjui Mugo & Anor v R435 the appellants were found guilty for aiding and abetting where circumstances of the case reveal obvious instigation or abetting if terms were to be stringently used. The appellants were found to have instigated a lynching of the victim at a bus station for suspicion that he had been involved in the then prevailing tribal clashes and was supplying weapons or transporting the weapons for his use in the clashes. The appellants pulled the victim out of a public transport vehicle they were in charge of and loudly indicated to the crowd at the bus station that he was transporting weapons. The crowd at this bus stop was mainly composed of members of a tribe that had suffered from persecution during the tribal clashes. The position in Kenyan courts of having no critical distinction of the terms perhaps embraces the position that there is no real conceptual distinction between the terms.436 The terms simply “embrace conduct which encourages or influences the principal offender [the perpetrator] or helps her in the commission of the crime.”437 This position is also reflected in the prosecution practice, where all four terms could be used in the indictment that charges the defendant with committing a crime, and the defendant will be convicted if proven that he participated in any of the four ways.438 Although the elements of accessorial liability are hardly discussed or simply glossed over in Kenyan jurisprudence, it is essential to understand the law as it has been established in other common law jurisdictions. The principles especially developed by the courts in England have a persuasive standing before Kenyan courts and provide a more detailed discussion of the law of accessorial liability founded under common law. 5.3 Proving the principal offence To establish accessorial liability the principal offence must have been committed, i.e., the actus reus of the principal offence must be carried out. 433 McAlhone and Wortley (2016:384). 434 See Lydia Wamaitha v Republic eKLR [2019]; Shadrack Kinyanjui Mugo& Anor v R [1995] eKLR and Philip Kimechwa & anor v R [2018] eKLR. 435 [1995] eKLR. 436 Clarkson and Keating (2014:545); Also see Baker, Glanville Williams (2012), p. 454. 437 Clarkson and Keating (2014:545). 438 Ormerod and Laird (2021:193); Clarkson and Keating (2014:545); Allen and Edwards (2021:261). 109 This means that accessorial liability is not contingent on the perpetrator’s conviction. All that needs to be proved beyond a reasonable doubt is that the principal offence has been committed. 439 Therefore, an accessory could still be held liable even though the perpetrator escapes liability for lack of mens rea, exemption from prosecution, or availability of a defence not available to the accessory.440 While the principle that accessorial liability is derivative is recognised in Kenyan courts, it has sometimes been misunderstood to mean that the perpetrator should have been convicted to prove the principal offence. In Sophie Atieno Ojenge v Republic441, the appellant was a centre manager of a school during the 2018 KCPE examination. She also happened to be the proprietor of the school. She was convicted for examination malpractices which involved two school children from grade 7 sitting exams on behalf of other grades 8 pupils. The charges involved four counts of aiding and abetting the commission of examination offences through impersonation. One of the children confessed to her crime and was sentenced to 18 months probation. The other child was not charged with the offence, although evidence was led to the effect that the child indeed did impersonate another child during the examinations. While analysing the appeal, the High Court overturned the conviction regarding the child who was not prosecuted, stating that since there was no evidence of the prosecution and conviction of the child, the charge against the appellant on this count was not sustainable. It, however, confirmed the conviction based on the child who was charged and convicted. When stating the law, the High Court admitted that accessorial liability is derivative, meaning “one cannot be guilty of an offence of aiding and abetting if the main offence is not inter-alia committed and/or proved”-para. 58. It also cited with approval at para. 56 the following observation by the trial court “[t]he secondary party is guilty of the offence committed by the principal and liable to the same penalties […] the liability of a secondary party is derivative; derives and is dependent upon the liability of the principle[sic]”. Comment: While the position that accessorial liability is derivative is correct, it does not mean that the secondary party’s liability depends on the primary offender's liability. The primary offender could escape liability (due to exemption from prosecution or not be liable for conviction).442 However, the secondary party could still be liable if it is proved that the actus reus of the principal offence was committed. This was the basis of the conviction by the trial court. The perpetrator and accessory may also be held criminally responsible for different offences, although based on the same facts. The perpetrator could be convicted of murder and the accessory of manslaughter, where the latter lacked the mens rea for 439 Allen and Edwards (2021:264); Ormerod and Laird (2021:190). 440 Allen and Edwards (2021:265); McAlhone and Wortley (2016:386). 441 [2020] eKLR, Criminal Appeal no. 67 of 2019. 442 See Section 5.3.1 below. 110 murder.443 This would be for example where a person is involved in an attack against a specific victim without the intent to assist in causing death or serious harm, but the violence escalates and results in death. Such a person would more likely be guilty of manslaughter while the perpetrator would be guilty of murder. 5.4 Liability of a secondary party without conviction of perpetrator The accessory liability principle allows for the possibility to convict a secondary offender even though the primary offender is acquitted of committing the actual offence.444 This point is illustrated in R. v Cogan and Leak [1975] 3 W.L.R. 316 where the perpetrator was acquitted for lack of mens rea. Mr Leak invited his friend, Cogan, to have sexual intercourse with his wife. Cogan had no knowledge the sex was not consensual as Leak’s wife did not show any resistant to the sex. Mr Leak had terrorised his wife to have sex with Cogan. Both were convicted of rape but on appeal Cogan was acquitted because he lacked mens rea. The Court of Appeal upheld Leak’s conviction as he had procured the actus reus of rape. The accessory may also be convicted where the perpetrator has been acquitted because of a special defence. An example of such a situation is the case of Bourne (1952) 36 Cr App R 125 (CA) where the husband coerced his wife to have sexual relations with a dog. The husband was convicted of abetting the wife to commit buggery. Although the wife was never charged, she would have most likely been acquitted by relying on the defence of coercion. A person cannot be convicted of aiding and abetting a perpetrator who does not commit the actus reus of the offence. In Thornton v Mitchell [1940] 1 All E.R 339, the High Court quashed the appellant’s conviction for aiding and abetting careless driving. The appellant, a bus conductor, had negligently signalled to the bus driver who could not see to reverse. The bus killed a pedestrian and injured another. The driver was found not guilty of careless driving as he had relied on the appellant’s signals. The magistrate however found the appellant guilty of aiding and abetting careless driving. The acquittal by the High Court was based on the fact that since no careless driving had occurred, the actus reus of the offence had not been performed, it therefore followed the appellant could not be convicted of aiding and abetting it. In other words, where the prosecution can prove the perpetrator committed the actus reus of the offence, then provided it can prove the actus reus and mens rea of the secondary party, it does not matter that the perpetrator is acquitted or prosecuted. 443 Allen and Edwards (2021:266); Ormerod and Laird (2021:209). 444 J. Herring, Criminal Law, Text, Cases and Materials, 10th edn (OUP, 2022), p. 842. 111 5.5 Secondary liability 5.5.1 Actus reus of secondary liability To be liable as an accessory, the accessory would need to do something, with the appropriate mens rea, that amounts to abetting, aiding, procuring and counselling. It must be established that the accessory, through their conduct, provided advice, assistance, or encouragement or influenced the perpetrator who committed the principal offence. Whether the accessory’s conduct sufficiently assists or encourages the commission of the offence is a question of fact to be established in each case. a) Presence An example here would be the situation where a mob of persons decide to beat up a person they caught in the act of stealing. A baiting crowd is attracted to the scene with some giving encouragement while others just watch remaining impassive and silent. At what point does the law consider the passive spectator as a person who aids and abets, thereby attracting potential criminal liability? Mere presence at the crime scene and failure to do something to prevent it does not necessarily suffice to establish accessory liability. It may, however, provide prima facie and not necessarily conclusive evidence of an intention to encourage the perpetrator.445 To establish liability, it needs to be shown that the person charged as an accessory by some means or other encouraged the participants in committing a crime and there was an intention to encourage.446 The accessory may encourage by some expression, gesture, or some action intended to signify approval.447 Several questions will be considered when looking into this issue. They include whether the accessory attended the location knowing the perpetrator was about to commit the crime, what effect the accessory’s presence had on the perpetrator, and the accessory’s state of mind while present.448 Without more, presence alone at the scene of a crime could amount to actual encouragement.449 In Wilcox v Jeffery [1951] All ER 464, the defendant was held liable as an accessory for presence at a jazz concert by the principal offender. The primary offender, a famous American saxophonist, had been granted entry into the UK without a work permit. The defendant’s presence at his concert was considered sufficient encouragement of the primary offender in contravention of his visa entry conditions. The defendant’s mere presence alone at the crime scene will not always be evidence of encouragement. In Clarkson [1971] 3 All E.R. 344, the defendant and another had walked into a room where a woman was being raped and did nothing. The Court of Appeal overturned the defendant’s conviction for aiding and abetting the rape of a woman. It held that it was not enough that the presence of the accused had given 445 Allen and Edwards (2021:263); Ormerod and Laird (2021:199). 446 Allen and Edwards (2021:263); Ormerod and Laird (2021:199). 447 R v Coney [1882]8 Q.B.D. 534. 448 Ormerod and Laird (2021:199). 449 Allen and Edwards (2021:263). 112 encouragement, it must also be shown that he intended to encourage the perpetrator.450 The accessory’s presence must amount to encouragement to give rise to secondary liability. The prosecution would need to prove that the defendant/accessory’s presence at the commission of the crime by a primary offender was not accidental and the defendant intended by their presence to give encouragement. b) Failure to act An accessory’s liability may also arise from omission. It may occur where the accessory has the right to control another’s actions and deliberately chooses not to do so or where the law imposes a duty on the accessory to act, and the accessory fails to act.451 Such inactivity could be considered to be actual encouragement.452 In Tuck v Robson [1970] 1 All E.R. 1171, the defendant was found liable for aiding and abetting after drinking hours. He stood and watched his customers drinking, taking no steps to make them leave his pub after licensing hours. The accessory need not be present at the commission of the offence. It is sufficient to prove that the accessory had knowledge of the perpetrator’s illegal activity and deliberately turned a blind eye to it.453 As a result, the perpetrator was encouraged to continue the illegal activity, and the accessory knew his inaction was encouraging the perpetrator.454 5.5.2 Mens rea of secondary liability It mainly entails: i) The defendant/accessory must intend to do the act which aids, abets, counsels, or procures, ii) The accessory must know the essential matters or circumstances constituting the principal offence.455 This means that at the time of doing the act, the accessory needs to contemplate or know that there is a real or substantial possibility the perpetrator will use his assistance to carry out a crime or that his actions will encourage the perpetrator to commit a certain offence.456 a) Intention to assist or encourage the perpetrator The defendant must intend to do the act which encourages, assists, or otherwise facilitates and also intend that the act will assist, encourage or facilitate the perpetrator in committing the principal offence.457 The defendant can have direct intent, where his aim 450 McAlhone and Wortley (2016:387); Clarkson and Keating (2014:548). 451 Ormerod and Laird (2021:197-199). 452 Allen and Edwards (2021:264); McAlhone and Wortley (2016:388). 453 Allen and Edwards (2021:264); Ormerod and Laird (2021:199). 454 J.F. Alford Transport Ltd [1997] 2 Cr. App. R. 326; Allen and Edwards (2021:264). 455 McAlhone and Wortley (2016:389); Allen and Edwards (2021:267). 456 Baker, Glanville Williams (2012), p. 480. 457 McAlhone and Wortley (2016:389); Ormerod and Laird (2021:203). 113 or purpose is that his act will assist or encourage, or oblique intent, where he is virtually certain that his acts will assist or encourage the perpetrator.458 It is sufficient to show that the defendant knew his act would assist. Consequently, the defendant’s liability as an accessory could arise even if he does not care whether the offence is committed, or even if he actually hopes the perpetrator will not commit the offence.459 In N.C.B v Gamble [1959] 1 QB 11, the defendant was held liable as an accessory for P’s act of driving an overloaded vehicle. The defendant informed P, the driver of a truck, that it was overloaded but still proceeded to give P the weighbridge ticket once P informed him, he was willing to take the risk. The defendant’s indifference to the principal offence of driving an overloaded vehicle did not make him escape liability. In Lynch v DPP for Nothern Ireland [1975] AC 653, the defendant drove P to a place he knew P was going to commit a murder. The defendant’s intentional driving of the car made him liable for aiding and abetting the subsequent murder even though “he regretted the plan or indeed was horrified by it” (per Lord Morris).460 The intention that needs to be established is the deliberate performance of an act or omission by the accessory, knowing that this assists or encourages the perpetrator/primary offender in his/her wrongful course of conduct.461 b) Knowledge of essential matters constituting the offence The defendant who is liable as an accessory must have knowledge of the essential matters which constitute the substantive offence. This means the defendant must foresee or choose to turn a blind eye to the possibility of commission of the type of offence that the perpetrator committed. 462 In other words, when doing the act that assisted the perpetrator, the defendant must realise or foresee a real possibility that the perpetrator will commit the substantive offence. In Kenya, this position has been expressed although fleetingly and without much detail in John Ouma Awino & another v Republic463, the Court of Appeal at paragraph 35 noted: “Aiding and abetting generally means somehow to assist in the commission of a crime or to be an accomplice. The elements of the offence have been variously expressed in different jurisdictions of the world, but they encompass proof that the person knew that his acts would assist commission of the crime by the perpetrator or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. It is not necessary that the aider and abettor had knowledge of the precise crime that was intended and 458 McAlhone and Wortley (2013:354); Ormerod and Laird (2021:204). 459 McAlhone and Wortley (2016:389); Allen and Edwards (2021:268). 460 McAlhone and Wortley (2016:390). 461 Allen and Edwards (2021:268). 462 McAlhone and Wortley (2013:355). 463 [2014] Criminal Appeal 124 of 2012. 114 which was actually committed, as long as he was aware that one of a number of crimes would probably be committed, including the one actually committed.” The above position was the English legal position on accessorial liability until 2016, when the Supreme Court, in the Jogee judgment, did away with the common law doctrine of joint enterprise liability and set to clarify other principles on accessorial liability that had long been considered to be unsatisfactory. Thus, concerning the mental element of the accessory, the court held that the accessory must intend at the time of carrying out the act that assists or encourages the perpetrator that the perpetrator will commit the conduct element of the offence with the mens rea that the offence requires Jogee [2016] UKSC 8, para. 90. It rejected the position that it was sufficient that the accessory foresaw the possibility that the perpetrator might intentionally commit the offence. The Supreme Court affirmed that the accessory must intend that the perpetrator carries out the offence with requisite mens rea. It instead noted that foresight of what might happen was good evidence of intention but not equivalent to intention. The Kenyan courts will likely or might have a strong preference and continue to recognise the position that the accessory acts with knowledge or foresight that the perpetrator commits the offence with whatever mens rea that is necessary for the offence. The requirement by the Court of Appeal that the accessory be aware of the substantial likelihood that his acts would assist in committing the offence equates to the requirement of foresight. A guideline on what constitutes knowing essential matters of the principal offence was expressed in the case of Powell and English [1997] 3 W.L.R 959. Although the case addressed an incident involving joint enterprise liability, it also generally applies to accessory liability.464 It must be shown that the accessory knew or foresaw the following: i) the perpetrator would commit the act which constitutes the actus reus, ii) any prescribed circumstances concerning the actus reus, and iii) that the perpetrator would act with the requisite mens rea for that offence.465 In the case of strict liability offences, although the perpetrator may be convicted without proof of mens rea, an accessory will only be convicted if mens rea is proven.466 Where the defendant aids, abets, counsels, or procures the perpetrator to commit a certain offence, the defendant in this case clearly knows the actual offence to be committed. The difficulty arises when the accessory assists the perpetrator with the knowledge that the perpetrator is likely to commit an offence but is unsure of the specific offence. For example, where the accessory provides information and supplies equipment to be used in crime but the perpetrator “does not specify the exact offence to be committed, the intended victim or place of commission of the offence”, will the 464 McAlhone and Wortley (2013:355). 465 McAlhone and Wortley (2013:355); Allen and Edwards (2021:269). 466 Allen and Edwards (2021:270); Ormerod and Laird (2021:214). 115 defendant be liable as an accessory for any offence carried out by the perpetrator?467 Can it be said that the defendant in this situation knows the essential elements of the offence? In Bainbridge [1960] 1 QB 129, the defendant had supplied P with oxyacetylene cutting equipment, suspecting it would be used for an illegal purpose, although he was unsure about the specific purpose. The equipment was used to break into a bank and steal. The court held that to be liable as an accessory it would need to be shown the defendant knew more than that the perpetrator might commit any kind of illegality. It must be proved that the defendant had foreseen the perpetrator would commit the type of offence that was committed, although he need not know all the details. In DPP for Nothern Ireland v Maxwell [1978] 3 All E.R 1140,the House of Lords, while approving the principle in the Bainbridge case, extended it to include the situation where the accessory contemplates that one or more of a limited number of offences might be committed and the perpetrator proceeds to carry out one of those offences.468 In Maxwell, the defendant was a member of a terrorist organization and drove his car leading another car to a pub and then left. The defendant knew that the members in the second car were also members of the terrorist organization and knew they would carry out a terrorist attack but was not sure whether they would shoot people at the pub or plant a bomb. They threw a bomb into the pub, and the defendant was held liable as an accomplice to doing an act with intent to cause an unlawful explosion. The court considered that the offence was within the range of offences the defendant had contemplated would be committed. It only needs to be shown that the offence carried out was one of those which the accessory had in contemplation. Thus, where the accessory intentionally lends assistance to the perpetrator contemplating that the perpetrator may commit offences X, Y or Z, although unsure of which, the accessory will be liable if the perpetrator carries out any of the offences X, Y or Z.469 5.5.3 Accessories and transferred malice The doctrine of transferred malice is also relevant to secondary liability. It applies to the situation where the defendant assists or otherwise facilitates the perpetrator to commit an offence against V and, the perpetrator mistakenly commits the offence against X. The perpetrator will be liable under the doctrine of transferred malice. The defendant will also be guilty as a secondary party for the unintended results of the acts he has assisted.470 This principle does not apply when the perpetrator deliberately changes his victim or the target of the offence.471 467 McAlhone and Wortley (2016:390). 468 McAlhone and Wortley (2016:390). 469 McAlhone and Wortley (2013:357); Ormerod and Laird (2021:215). 470 Ormerod and Laird (2021:218); McAlhone and Wortley (2013:357). 471 McAlhone and Wortley (2013:358); Ormerod and Laird (2021:217). 116 5.6 Common intention liability Common intention liability is where two or more persons set out with a common purpose to carry out a criminal offence. This sort of conduct where several persons come together to pursue an unlawful common purpose is also invariably referred to as common purpose liability, joint enterprise liability, joint criminal enterprise or joint criminal venture. Aid• assist, help, support• No causation, but needs to have some relevance or some connecting link to commission of principal offence.Abet• encourage, instigate, incite• No causation, but needs to have some relevance or some connecting link to commission of principal offenceCounsel• advice, encourage, instigate, incite• No causation, but needs to have some relevance or some connecting link to commission of principal offenceProcure• "produce by endeavour"• Causation needed; perpetrator would not have committed offence but for defendant's conductActus Reus-Accessory• Deliberate act or omission which aids, abets, counsels, procures=Assist, Encourage or influence Perpetrator's (P) conduct.Mens rea-Accessory•Intend to carry out act which assists or encourages P's conduct.•Must have knowledge of any existing facts or circumstances that make P's conduct criminal=Contemplation (know or forsee) that there is a substantial possibility P will use his assistance (or his actions will encourage P) to carry out the type of crime that P commits. 117 This form of liability is recognised in S. 21 of the Penal Code. It provides that when two or more persons form a common intention to carry out an unlawful purpose and in the process of executing such purpose, an offence is committed of such a nature that its commission was the probable consequence of executing such purpose, each of them will be deemed as having committed such offence. Under the doctrine of common intention liability, the parties to such an enterprise are liable for their own acts in furtherance of the unlawful common purpose/joint enterprise and also for the acts of the other participants. All the offenders involved in the unlawful common purpose are treated as being both primary and secondary offenders in relation to each other, regardless of their degree of participation. The following situations illustrate the nature of which a common intention liability could constitute. Situation One: A, B and C agree to rob V1, a fairly wealthy lady in their neighbourhood. While trying to access her house, the security guard spots them, and A fatally shoots him. Once they gain access to V1’s house, in the course of the robbery, B and C assault V1 and her daughter V2 who is home for holidays from the University, for resisting the robbery and attempting to scream for help. C goes even further and rapes V2. While each will be individually liable for the respective offences that they committed of murder, assault, and rape, and jointly for robbery/burglary based on their intent to steal, they may further be liable as an accessory to each other’s offences depending on the extent of their contemplation of the other’s actions. Situation Two: X and Y decide to commit a domestic burglary. They agree to carry knives with them but only to frighten any occupant they may encounter. They agree that X steals from upstairs while Y steals from downstairs. During the commission Y hears a commotion from upstairs and X comes rushing down with blood on his knife and himself. X and Y panic and leave the house. It is reported that a woman (V) died from the incident. Both X and Y are liable under the concept of common intention liability from the unlawful common purpose to commit the burglary. However, X went beyond the scope of the unlawful common purpose/enterprise and committed a more serious offence of murder. Although X alone is the perpetrator of this offence, Y is now potentially liable as a secondary offender to the offence of murder even though he never formed an intent to kill. Common intention liability requires an agreement between the parties. Such an agreement need not be formal. It can also arise spontaneously, with nothing being said. Therefore, there is no need for a pre-arranged plan, although this will often be the case. Where the evidence does not show a common purpose, there is no joint enterprise but merely separate joint principals, and neither will be liable for the acts of the other.472 472 McAlhone and Wortley (2013:358); Allen (2013:230). 118 In Dickson Mwangi Munene & Anor v Republic473 the court held that a common intention can be inferred from the circumstances of the evidence and need not be an express agreement. It can be deduced where two or more persons intend to carry out an unlawful object or a lawful object by unlawful means. Although it implies a premeditated plan, it can also develop in the course of commission of an offence. Ingredients for common intention liability/joint enterprise liability have been stated in Eunice Musenya Ndui v Republic474 to include: 1) Two or more persons, 2) who must form a common intention. 3) The common intention must be towards carrying out an unlawful purpose in conjunction with one another. 4) An offence must be committed in the process. 5) The offence must be of such a nature that its commission was a probable consequence of the commission of such unlawful purpose. In Gnango [2011] UKSC 59, joint enterprise liability was summarized as: “(i) [A] and [P] have a common intention to commit crime [X] (ii) P, as an incident of committing crime [X], commits crime [Y], and (iii) [A] had foreseen the possibility that he might do so.” Joint enterprise liability does not only apply to the situation where each participant is a perpetrator, it could also cover the situation where an accessory encourages or assists in committing an offence carried out by the primary offender.475 5.6.1 Is common intention liability a separate form of liability? There is debate on whether common intention liability is a separate form of liability or simply a part of the general law on secondary liability so that those participating in a common unlawful purpose/joint enterprise are accessories to it.476 Most supporters favour the argument that it is a form of secondary liability and subject to the same principles as an accessorial liability.477 The practice in Kenya would also support the view that it is a form of accessorial liability. In many cases where there are several defendants accused of participating in the commission of an offence, the prosecution seems to prefer to charge the participants under S. 20 Penal Code, which deals with the usual forms of accessorial liability and S. 21 Penal Code, which provides 473 [2014] eKLR (Criminal Appeal 314 of 2011). 474 [2011] eKLR (Criminal Appeal 534 of 210) Court of Appeal at Nairobi. 475 Allen (2013:230); Ormerod, Smith and Hogan (2011:214). 476 McAlhone and Wortley (2013:359). 477 Allen (2013:229); McAlhone and Wortley (2013:359); Ormerod, Smith and Hogan (2011:217). 119 for common intention liability, leaving it to the court to decide which of the forms of accessorial liability is applicable in a particular case.478 It would seem that in certain instances, the courts even conflate the two forms of accessorial liability and establish liability of the accused, drawing references from both S. 20 and S. 21.479 This practice of conflation is a misunderstanding and misconstruction of the law as has been confirmed by the Court of Appeal in its decision of John Ouma Awino & Another v Republic480, where it held that both Sections refer to distinct forms of accessorial liability and the court must determine which one applies to the case before it. 5.6.2 Liability for crimes in furtherance of the common purpose/intention In the Kenyan context, this part relates to offences that are a natural and probable consequence of executing the common intention. The Kenyan courts hardly discuss the particulars of what they would consider an offence whose nature was the probable consequence of executing the common intention, perhaps because the cases brought before them never quite raise complex situations that require an analysis of this issue. Most cases reveal straightforward incidents where once the common intention has been established the crime that was committed often represents the underlying offence that was expressly or tacitly agreed upon. Most of the decisions in Kenyan courts mainly analyse the law as to what constitutes a common intention, whether it was proved to exist, whether the underlying offence formed part of a common intention and whether the accused person participated in the common intention. It is submitted that there are other relevant aspects of common purpose liability that have not been explored within the Kenyan context which the student must be acquainted to and which this text will discuss. The following discussion on particular elements that constitute the concept of common purpose liability under common law is mainly drawn from an analysis of English case law on joint enterprise liability.481 The English authorities have a persuasive position before Kenyan courts. Kenyan cases disclose that our courts greatly rely on or refer to cases from England and other commonwealth countries for guidance on the definition and clarification of various common law principles in criminal law including the concept of common intention liability. Where defendants agree to participate in a joint enterprise whose underlying purpose is unlawful, they are all liable for any crimes committed by their accomplices in carrying 478 See John Ouma Awino & another v Republic [2014] Criminal Appeal no. 124 of 2012; Criminal Case (Murder) no. 30 of 2015; Republic v Margaret Wanjiku Ochieng & anor [2018] eKLR; Criminal Appeal no. 72 of 2014 Henry Njoroge Muthoni v Republic [2017] eKLR; Republic v Dismas Auma Omusugu & 4 Others [2019] eKLR, Criminal Case no. 55 of 2015. 479 See Criminal Appeal no. 72 of 2014 Henry Njoroge Muthoni v Republic [2017] eKLR; Republic v Samuel Kilele Musembi and Anorther [2017] eKLR Criminal Case no. 26 of 2015. 480 [2014] Criminal Appeal no. 124 of 2012. 481 Joint enterprise liability is no longer recognised under English law following the Supreme Court decision in Jogee [2016] UKSC 8. 120 out/realising the unlawful common purpose.482 Thus the question whether liability only arises for crimes expressly agreed upon, or does it suffice that the secondary party contemplated the defendant might commit the offence in issue?483 In Hyde [1990] 3 All ER 892, the Court of Appeal held that contemplation was crucial to establish liability rather than the express agreement.484 It needs to be determined that the defendant who did not directly carry out the offence (here referred to as the secondary party/accessory) did contemplate the relevant offence as a possible incident of the joint enterprise. In Hui Chi-ming v R [1992] 1 AC 34, the court observed: “[T]he accessory in order to be guilty, must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise and must, with such foresight, still have participated in the enterprise.” The basis of the accessory/defendant’s liability in a common unlawful enterprise is his contemplation or foresight.485 He will be liable for offences that occurred as a natural and probable consequence of the common unlawful enterprise if he (the accessory) foresaw them as a possible incident of such unlawful enterprise. The question is not whether a reasonable person did foresee the relevant offence as a possible incident of the common unlawful purpose but whether the accessory/defendant did foresee the offence as the natural and probable consequence of engaging in the joint enterprise.486 In Dickson Munene Mwangi &Anor v Republic [2014]eKLR, the court observed that the Prosecution must prove “(a) a criminal intention to commit the offence charged jointly with others, (b) the act committed by one or more of the perpetrators in respect of which it is sought to hold an accused guilty, even though it is outside the common design, was a natural and foreseeable consequence of effecting that common purpose, and that (c) the accused was aware of this when he or she agreed to participate in that joint criminal act.” Therefore, in the Kenyan context, the accessory/secondary party in a joint enterprise/common unlawful purpose will be liable for: Ø Crimes committed by the perpetrator which was expressly agreed upon.487 Ø Crimes carried out by the perpetrator which, although not expressly agreed upon, the accessory foresaw a real possibility that the perpetrator might commit such crimes. 488 This position was confirmed in the decision of R v Powell and Another; R v English [1997] 3 WLR 959, where it was stated: “[W]here two parties embark on a joint enterprise to commit a crime, and one party foresees that in the course of the enterprise, the other party may carry out, with the 482 McAlhone and Wortley (2013:360). 483 Allen (2013:243). 484 Also see Allen (2013:244). 485 Ormerod, Smith and Hogan (2011:216); Baker, Glanville Williams (2012), p. 490. 486 Baker, Glanville Williams (2012), p. 491. 487 Anderson and Morris [1966] 2 Q. B. 110. 488 McAlhone and Wortley (2013:361). 121 requisite mens rea, an act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise.” The facts in Powell are that three defendants went to the victim’s house to buy drugs. One of the defendants was armed with a gun that the other two were aware of. When they got to the victim's house, the defendant with the gun shot the victim when he answered the door. The court held that the other two defendants were also guilty of murder because they knew the perpetrator had a gun and had foreseen that he might kill or had an intention to kill or do grievous bodily harm. Let us consider the principles in light of the two situations highlighted above in respect to common intention liability. Going back to the example set out in situation one where A, B, and C go to rob a wealthy lady, all participants are liable for the offence of robbery since it was agreed upon. The killing of the security guard by A, although not agreed upon, was likely foreseen by B and C if they knew that A had a gun with him, or they all had guns intended for such purposes. The assault of V1 and her daughter V2 by B and C is also foreseeable as it helps achieve the ends of the robbery, making A liable for the assault. This leaves the offence of rape by C. Was this also a natural and probable consequence of the common unlawful purpose of carrying out a robbery? Should A and B also be liable for it? In respect to situation two, X and Y are both liable for burglary as it was the underlying purpose of their common intention. While X is liable for murder, can it be said that Y is also liable for murder? Although they had agreed to carry knives for purposes of frightening any possible opponent can it also be said that Y did foresee the possibility of X causing death and is therefore also liable for murder? In Joseph Mulati Wamocha v Republic489, the appellant and others were convicted of manslaughter by the trial court. This was after evidence confirmed that he and others had violently beaten up their victim, leading to his death, following a disagreement on purchasing a parcel of land. The Court of Appeal noted, “[t]he crux of the matter is that they had all formed a common intention of getting rid of the deceased and in putting that plan into action they chased the deceased until he fell and some of them set upon him with a clear intention of injuring him. They were armed with weapons of sorts”. The trial court had convicted the appellant and others for manslaughter instead of murder, stating that it was not clear from the evidence which of the accused was responsible for the fatal blow. The trial court had found that the appellant and others were present and participated and approved of what he and others did to assault the victim fatally. The Court of Appeal confirmed the conviction and stated that the appellants were lucky not to have been convicted of murder in the first instance. 489 [2000] eKLR, Court of Appeal at Nakuru, Criminal Appeal no. 19 of 1999. 122 In its analysis, the Court of Appeal cited an English case that had been cited previously with approval by Kenyan courts on common intention liability, R V. Betts and Ridley, 22 Cr. App. R. 148, which stated: “If several persons combine for an unlawful purpose or for a lawful purpose to be effected by unlawful means and one of them in the prosecution of it kills a man, it is murder in all who are present whether they actually aided or abetted or not, provided that the death was caused by the act of someone in the party in the course of his endeavours to effect the common object of the assembly.” Courts determine the scope of the unlawful common purpose from the knowledge and actions of participants. By participating in such an unlawful common purpose, the participants are considered to assist or encourage each other in their various actions in realising the joint criminal venture. In some instances, Kenyan courts have been reluctant to presume that mere participation in the common unlawful purpose is sufficient evidence of encouragement or assistance.490 The courts in such cases require that it must be shown that an accused actively in some way encouraged or assisted his co-accused in committing the particular offence in issue. This requirement in a way does undermine the common intention liability principle. It is, however, evidence of the critical aspects of common intention liability. The issue with common intention liability is establishing the mens rea of the defendant who did not directly carry out an offence committed in pursuit of the unlawful common purpose. It is not intended that liability arises simply by the mere fact of association as this would violate the principle of personal criminal responsibility. Rather, the liability of the defendant (who can be considered as a secondary party or accessory) is grounded on foresight or the subjective realisation that the incidental offence might be committed in pursuit of the common unlawful purpose. It does not have to be proved that the secondary party shared the same mens rea as the primary offender/perpetrator, but that the secondary party subjectively foresaw/realised that the perpetrator might commit the offence in issue. Therefore, the mens rea of the secondary party can be of a lesser form to that of the perpetrator but they can still be guilty as principal offenders of the same offence. The principle that underlies common intention liability in S. 21 of the Penal code is that where the incidental offence was a natural probable consequence of the common unlawful purpose, it is more likely that the secondary party did foresee its commission. 5.6.3 The ‘fundamentally different rule’ principle This applies to the case where one of the parties to the common unlawful purpose does something unplanned by committing a crime of a different type from that contemplated by the secondary party/co-accused or in a different manner from that foreseen by the secondary party.491 In this instance, where the perpetrator carries out a collateral offence 490 See Republic v Charles Mwaura & Another [2016] eKLR, Criminal Case (Murder) no. 25 of 2015. 491 Allen (2013:248). 123 fundamentally different from what the accessory foresaw or expected, the accessory will not be held criminally responsible. However, suppose it can be shown that the accessory had some additional information or knowledge that made him subjectively aware that the perpetrator was likely to carry out the relevant collateral offence. In that case, the accessory will likely be criminally responsible for the offence.492 It has been difficult for courts to determine what constitutes “fundamentally different” and it is always a question of fact. In Rafferty [2007] EWCA Crim 1846, P1 and P2 were involved with A in a joint enterprise to attack V by punching, hitting, and stamping him. A left and P1 and P2 in his absence caused V’s death by drowning. The Court of Appeal found that A was not criminally responsible for V’s death by drowning, which was fundamentally different from the joint enterprise to assault V.493 In the English case, the perpetrator P and secondary party A were involved in a joint enterprise to attack a police officer with wooden posts. During the attack, P produced a knife that A was unaware of and used to kill the policeman. A’s conviction was overturned by the House of Lords, who held that P’s unforeseen use of the knife was fundamentally different from the use of wooden posts, taking it outside the scope of the joint enterprise. Where the secondary party knew his co-accused perpetrator was carrying a weapon, this is strong evidence that he foresaw that such a weapon might be used in the way it was used. 494 To determine what is fundamentally different it is important to identify the common purpose between the accused parties and to answer the question, what the secondary party contemplated and how the perpetrator acted beyond what the secondary party had contemplated/foreseen. 495 The case law reveals that the question of the “fundamentally different” act could focus on the perpetrator’s intention, the weapon used, actions, or consequences.496 It is not in all cases where the defendant/accessory pleads that the perpetrator’s acts were fundamentally different from what he had foreseen that will lead him to escape liability. In Rahman [2008] UKHL 45, the appellants had been convicted of murder where they were involved in a joint enterprise to attack V using baseball bats and metal bars. During the attack, V was stabbed and killed. It could not be proved who had inflicted the knife injuries. The appellants denied knowledge of the knife or its use and pleaded the person who used the knife was acting outside the scope of the joint enterprise to attack. Their appeal failed. Where the perpetrator acts with a greater mens rea than that foreseen by the accessory, but the act carried out is not fundamentally different from that which the accessory foresaw, the accessory is likely to be held liable for the offence to the extent of his mens rea, i.e., to 492 Baker, Glanville Williams (2012), p. 490. 493 McAlhone and Wortley (2013:363). 494 McAlhone and Wortley (2013:364). 495 Allen (2013:251). 496 Ormerod, Smith and Hogan (2011:221). 124 the extent of his contemplation. In Gilmour [2000] 2 Cr. App. R. 407, A was held liable for the death of three boys killed following a petrol bomb being thrown by P in their house, which caused a fire. A had only foreseen arson. A, in this case, was held responsible for manslaughter.497 Consider the facts of situation one above under common intention liability where A, B, and C go to rob a wealthy lady. A and B could escape liability for the rape by C arguing that it was a fundamentally different act from that which was contemplated for their common unlawful purpose. Read facts of Dickson Mwangi Munene & Anor v Republic [2014] eKLR(Criminal Appeal no. 314 of 2011). P1 and V get involved in a bar brawl. V drives off, and P1 and P2 decide to give chase to V, to avenge the insult and fight with P1. P2, a police officer and friend to P1, shoots and kills V. P1 and P2 are found guilty of murder by the High Court under the doctrine of common intention. The Court of Appeal overturned the conviction of P1, finding no common intention. The finding of a lack of common intention is inconsistent with the facts of the case. The facts reveal that P1 and P2 gave chase to V obviously to avenge P1’s humiliation. Perhaps P1 had not contemplated the use of the gun by P2 which led to V’s death. A more consistent argument that the Court of Appeal might have considered to adopt is to discharge P1 from liability by declaring the killing by P2 a fundamentally different act from that which P1 had envisaged of the common unlawful purpose. 5.6.4 What is the rationale for imposing liability in such circumstances? This principle of common intention liability, which bases liability on the secondary party’s foresight that the perpetrator might commit a different offence, evolved in the context of murder cases, although it may be applied to all criminal offences.498 The liability arises where a person together with another/others is involved in committing an underlying offence with foresight that such joint enterprise could result in collateral offences carried out by other members of the common unlawful purpose.499 Thus, in a common unlawful purpose involving robbery where one of the participants kills someone, a person who took part in the joint enterprise but did not kill or intend such results would still be liable for murder if he foresaw that one of his accomplices might intentionally kill or intentionally inflict grievous bodily harm.500 This rule seems unfair as the secondary party/accessory will likely be treated more harshly than the perpetrator. While the perpetrator will be convicted only if he intended to kill or cause grievous bodily harm, the accessory’s liability is based on foreseeing the possibility of such an incident in furtherance of the joint enterprise.501 Accordingly, the mens rea of the accessory can be of a lesser form than that of the primary offender but they will still be guilty of the same offence. The accessory’s liability is not related to the actus reus of the 497 McAlhone and Wortley (2013:370). 498 Allen (2013:244); McAlhone and Wortley (2013:362). 499 Baker, Glanville Williams (2012), p. 487. 500 McAlhone and Wortley (2013:362). 501 Allen (2013:244). 125 offence but to his own intentional participation in the enterprise. By participating in such a common unlawful purpose, the accessory is considered to assist or encourage another to carry out a joint criminal venture realising that it may result in the other person committing the contemplated offence.502 This potentially unfair and broad rule is justified on two fronts, practical and policy considerations. First, there is a practical difficulty in establishing the secondary party’s intention, even oblique intention, concerning the committed crimes. It is argued, to require the prosecution to prove the secondary party’s mens rea for the incidental offence would gravely undermine the utility of the accessory principle grounded in the common intention liability concept.503 Secondly, the harsh accessory liability principle is considered necessary to protect the public from gang-related crimes.504 Most people are emboldened to commit crimes when supported by others and often some things when done by a group are more effective than when carried out by an individual. Thus, the need to discourage crimes committed by gangs. One gets the impression that in the Kenyan context the courts, to avoid the harsh consequences of the common intention mode of liability, are prepared to adopt a reasoning that reduces the offence arising from such activity to a lesser offence505 or a reasoning that all together dismisses the existence of such common unlawful purpose506, although facts of the case suggest otherwise. The Supreme Court in England in Jogee [2016] UKSC 8 did away with the doctrine of Joint Criminal Enterprise. Instead, it declared that normal rules of accessorial liability should be sufficient to establish liability even in joint criminal ventures. It recognised that in such cases of joint criminal ventures where an accused person (A) realises that in the course of its undertaking, a co-participant (P) might commit a further offence with whatever mental element required of it, this would amount to conditional intent on the part of the accused person (A) (para. 92). Thus, where A, while carrying out an armed robbery with P, realises that P might kill anyone who attempts to resist but continues to participate in the venture, this would justify a conclusion that A had the necessary conditional intent regarding the killing. It would be strong evidence that A intended to assist or encourage P to carry out such a killing. The Supreme Court asserted that foresight of the incidental crimes was merely evidence from which to infer requisite intent and not equivalent to intention. The Supreme Court also recognised that P’s crime could have unforeseen consequences. In such circumstances, it noted A would only escape liability if there was some overwhelming supervening act by P which nobody in A’s shoes could have contemplated would happen, with the supervening act being of such a nature as to relegate A’s acts to history (paras 97, 98). 502 Allen (2013:244). 503 Per Lord Steyn in R v Powell and English [1997] 3 W.L.R. 959. 504 McAlhone and Wortley (2013:362); Allen (2013:244). 505 See Joseph Mulati Wamocha v Republic [2000] eKLR, Court of Appeal at Nakuru, Criminal Appeal no. 19 of 1999. 506 See Dickson Mwangi Munene & Anor v Republic [2014] eKLR (Criminal Appeal 314 of 2011. 126 The overwhelming ‘supervening act’ test is designed to excuse A from liability where there is insufficient evidence of a connection between A’s assistance and P’s act.507 It is also considered to be narrower and not equivalent to the fundamental difference doctrine.508 5.7 Withdrawal of participation by an accessory An accessory who aids, abets, counsels or participates in a common unlawful purpose can, in limited circumstances, withdraw from the commission of the principal offence and, as a result, escape liability. What constitutes an effective withdrawal is a question of fact and degree, depending on the circumstances of each case. The courts will consider the nature of assistance or encouragement already given, the extent to which the principal offence was about to be committed and how the withdrawal was attempted.509 The rationale for recognising the possibility of withdrawal is to give potential offenders an avenue or incentive to withdraw from criminal arrangements. Such persons are also considered less morally culpable than those who commit the crime. 510An effective withdrawal does not negate criminal responsibility for any crimes that may have been carried out until withdrawal, such as conspiracy and attempt.511 A withdrawal by an accessory must be communicated, and such communication must be unequivocal and timely. The court determines whether the withdrawal was effective, depending on the circumstances of each case. An unsuccessful attempt to dissuade the accomplice from committing the principal offence may amount to an effective withdrawal. 512 When communication alone is considered sufficient evidence of withdrawal, the accessory will not need to do more.513 Withdrawal by communication alone would be considered effective when the offence is at a preparatory stage, and the defendant merely encouraged or incited the offence.514 However, in the case where the defendant has acted more positively to assist in the crime, and the offence is being carried out, the defendant would have to do more to prevent the commission of the offence. He would need to take steps whose effect would neutralise or negate his assistance.515 In R v Becerra (1976) 62 Cr. App. R. 212, the defendant gave a knife to his companion to use on anyone interfering with a burglary they were carrying out. A house tenant then appeared, and the defendant shouted, “[c]ome on, let’s go”, and got out through the window. His companion, however, proceeded to stab the tenant. The Court of Appeal considered the defendant’s actions did not amount to sufficient withdrawal. 507 Ormerod and Laird (2021:221). 508 Ormerod and Laird (2021:222). 509 McAlhone and Wortley (2016:396). 510 Ormerod and Laird (2021:237); McAlhone and Wortley (2016:396). 511 Ormerod and Laird (2021:236); McAlhone and Wortley (2016:373); Baker, Glanville Williams (2012), p. 506. 512 Grundy [1977] Crim. L. R. 543; McAlhone and Wortley (2016:397). 513 McAlhone and Wortley (2016:398). 514 Baker, Glanville Williams (2012), p. 506; McAlhone and Wortley (2016:398). 515 Baker, Glanville Williams (2012), p. 507; Ormerod and Laird (2021:238); McAlhone and Wortley (2016:398). 127 The implication is that a withdrawal at this stage would more likely need some physical intervention.516 The above principles have also been applied within the Kenyan jurisdiction in Michael Mukundi Thiong’o & Anor v Republic.517 The appellant was one of three police officers who, along with his colleagues, was charged with wrongful confinement and demanding property with menaces. They arrested the complainant on the allegation that he had received stolen property and demanded money to free him from the charge. The complainant gave the accused persons a lesser amount than requested, and the appellant, in disgust, walked away. Still, his colleagues negotiated with the complainant for a more acceptable amount. The appellant’s contention that he had walked away and withdrew from the common unlawful purpose was rejected. The court observed that his walking away in disgust was more directed to the meagreness of the amount of money offered by the complainant and not an indication that he had abandoned the common venture. It was held that the appellant should have done more to indicate to his companion that he had abandoned the common venture. While dismissing the appeal, the Court of Appeal for East Africa set out the principles concerning an effective withdrawal from the commission of an offence. It noted that more than a mere change of mind/intention and physical change of places needs to be done. It noted that where practicable and reasonable, there needs to be a timely communication of the intention to abandon the unlawful common purpose. What is considered timely depends on the circumstances of each case. The court further reiterated that such communication verbal or otherwise must serve an unequivocal notice to the other parties of the common unlawful purpose that if they choose to proceed with their common intention, it will be without further assistance or participation from the accessory giving such notice. 5.8 Accessory after the fact A person who assists another knowing that they have committed an offence with the aim of assisting them to escape punishment or avoid arrest is criminally responsible as an accessory after the fact.518 The person can be an accessory after the fact by concealing or disposing off exhibits or in any other manner aiding a person he knows is guilty of an offence to escape punishment.519 The prosecution needs to prove such person520; Ø Received or assisted another person, Ø With the knowledge that the person is guilty of an offence, Ø With the aim of enabling such person escape punishment or avoid arrest. 516 Baker, Glanville Williams (2012), p. 507; Ormerod and Laird (2021:239). 517 [1977] eKLR, Criminal Appeal no. 529 & 721. 518 S. 396(1) Penal Code. 519 Republic v Teresiah Mueni Kilonzo and another [2017] eKLR, Criminal Case no. 32 of 2015. 520 Benard Sanya Okello v Republic [2018] eKLR, Criminal Appeal no. 7 of 2015. 128 Spouses cannot be held criminally responsible as accessories after the fact to each other.521 They are deemed bound to each other by affection. 5.9 Corporate liability Under S. 3(1) of the Interpretation and General Provisions Act, Cap. 2 Laws of Kenya (LoK), a person includes a company, association, or body of persons. Thus, like the natural person, a company/corporation can be criminally liable. Corporate criminal responsibility is recognised under S. 23 of the Penal Code. The provision stipulates that where an offence is committed by a company or other body corporate or society or other similar association, persons charged with the control or management of such associations shall be liable for the offences. The responsible person can only escape criminal liability if he can show that he was not aware of the commission of the offence, or that it was intended or was about to be committed, and that he took all reasonable steps to prevent its commission. A corporation is a group of persons who come together to achieve a common goal, usually for business purposes. In Kenya, a corporation is formed by statute or under the Companies Act no. 17 of 2015. A corporation includes public limited companies, private limited companies, limited liability partnerships, and other organisations such as local authorities. Corporate liability means a company is responsible for its acts. How is this possible, given that it is not a human being and can only act through its human officers? The company would have to act through living persons considered to embody the company to be liable. This principle was elucidated in Clay City Developers Ltd vs Chief Magistrate’s Court at Nairobi and 2 Others522 as follows: “A company may in many ways be linked to the human body. It has a brain and a nerve centre, which controls what it does. It also has hands, which hold the tools and act in accordance with the direction of the centre. Some of the people in the company are mere servants or agents who are nothing more than hands to do work. Others are directors and managers who represent the mind of the company and is [n(are) treated by the law as such.” This position was also reflected in Michael Muasa Kilonzo vs Republic,523 with the court stating: “Limited liability companies, although legal personalities are inanimate; they can only act through directors who incorporated them. Criminal liability attaches to the directors acting through the veil of incorporation of the company.” 521 S. 396(2) Penal Code; Felista Wanjiru Kongi v Republic [2007] eKLR, Criminal Revision Case no. 459 of 2007. 522 [2014] eKLR. 523 [2017] eKLR. 129 The company is bound by the acts of its directors acting within their mandate/scope as directors.524 The wording in S. 23 of the Penal Code, while recognising that a corporation or other similar body of association can be liable for an offence, also implies that persons in charge of the company are implicated in the offence attributed to the company. They can only escape liability if they show that they did not know of the offence or took reasonable steps to prevent it. This position has been reiterated in several court cases.525 It is clear from the above case law and statutory provisions that a corporation is a legal person that can be criminally liable. Its criminal responsibility extends to cover acts of natural persons that are identified with it. Such a person is considered to be “acting as the company, and his mind which directs his acts is the mind of the company.”526 It should nevertheless be noted that in instances where the corporation is in breach of a statutory obligation, the applicable statute may provide for a punishment where the company itself is fined. An official of the company does not need to be implicated. In such cases, the practice shows that the corporation is charged by itself without including any of its directors or management officials. An example is S. 16 of the Proceeds of Crime and Anti-Money Laundering Act, which provides specific fines against a corporate body that violates certain obligations. The position of attributing individual mens rea and actus reus to the corporation was developed under English criminal law. The principles developed concerning corporate criminal responsibility are persuasive within the Kenyan jurisdiction to the extent that they are not incompatible with any express legal regime. 5.9.1 The principle of identification Under English law, the court must determine whether a person is to be regarded as the company or is merely acting as the company’s employee or agent.527 The preferred test for who represents the company is to identify persons who “represent the directing mind and will of the company and control what it does”.528 This means a company will be criminally responsible if the person who carried out the prohibited act with the requisite mens rea was senior enough to be identified as the “controlling mind and will” of the company.529 In other words the law deems them to be the company itself.530 Such a person must be acting within the scope of his duties.531 This is called the “identification doctrine”.532 524 Republic v Grace Sarapay Wakhungu & 2 ors [2020] eKLR Chief Magistrate’s Court at Milimani Case no. 31 of 2018. 525 Moses Namayi Anyangu v OCS Butere Police Station and 3 Others; Moly Credit Limited and Anor (Interested Parties) [2020] eKLR; Rebecca Mwikali Nabutola& 2 Ors v Republic [2016] eKLR, Criminal Appeal no. 232 of 2012; Republic v Grace Sarapay Wakhungu & 2 Ors [2020] eKLR Chief Magistrate’s Court at Milimani case no. 31 of 2018. 526 Tesco Supermarkets Ltd v Nattrass [1972] AC 153. 527 Allen and Edwards (2021:299). 528 Tesco Supermarkets Ltd v Nattrass [1972] AC 153. 529 McAlhone and Wortley (2016:409). 530 N. Padfield, Criminal Law, 9th edn (OUP, 2014), p. 2. 531 Allen and Edwards (2021:299). 532 McAlhone and Wortley (2016:410). 130 The Kenyan case law so far seems to limit the company’s directors as the persons considered to control its mind and will. However, statute law in Kenya does allow a wider range of officers who may be held liable for the corporation’s offences, and by implication, their conduct can be imputed to the corporation. An example is S. 165 of the Public Health Act, which provides that the secretary or manager of any company shall be held liable for offences committed under the act by the company. Thus, those who control or manage the company’s affairs or have sufficient administrative powers will likely be identified with the company. It could include directors, company secretaries, or company managers. 5.9.2 Problems arising from the principle of identification A large and diverse company may be able to avoid liability as it is not always easy to establish who the controlling officer in such a company is. In an attempt to circumvent the rigidity of this doctrine in Meridian Global Funds Management Asia Limited v Securities Commission [1995] 2 A.C, the court attributed the mens rea of a chief investment officer, who was not part of the managers considered to be the controlling mind of the corporation, to the company. The company was held criminally responsible for the act of the chief investment officer for failing to give a formal notice upon acquiring a shareholding in another company. The chief investment officer had done this without the knowledge of the company’s directors or managers, who were the company’s “directing mind and will” of the company. The court held that unless the employee’s knowledge was attributed to the company, the purpose of the violated statute would be defeated. This decision means that a company’s liability for an offence is a matter of statutory construction. Where a statute requires, the act and knowledge of an individual may be attributed to the company even if such an individual is not the controlling mind of the company.533 This interpretation would also apply to Kenya considering the language of certain provisions of the law, such as S. 145(1) of the Environmental Management and Co-ordination, which provides: “When an offence against this Act, is committed by a body corporate, the body corporate and every director or officer of the body corporate who had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with this Act, shall be guilty of an offence.” 533 McAlhone and Wortley (2016:412). 131 5.9.3 Nature of offences Corporations cannot carry out certain offences like rape, bigamy, or perjury.534 While in England, a corporation will not be convicted for an offence whose only form of punishment is imprisonment535, it is not clear if a similar position applies in Kenya. The pronunciations that the person in charge of management of the affairs or activities of the company is guilty of the offence and liable for punishment 536 , may also imply that directors of companies could be imprisoned for crimes attributed to the company, making it possible for a corporation to be liable for offences where the only punishment is imprisonment. The corporation can be liable vicariously for crimes of strict liability or can also have criminal responsibility arising from the breach of any statutory duty imposed by statute. In the instance of offences that require mens rea, the intentions of persons who are the directing mind and will of the company will be attributed to the corporation. As for strict liability offences, the company will be liable irrespective of the employee’s position that carried out the forbidden conduct. 5.10 Conclusion The concepts discussed here also have their underpinning in common law. The analysis shows that Kenyan courts should clearly distinguish the various forms of participating in crime and have a more in-depth discussion of the same. There is need for guidelines on the threshold of aiding and abetting forms of participation and their implications in sentencing. Kenyan courts should unanimously reaffirm the principle that although accessorial liability is derivative, it does not mean that the secondary party’s liability depends on the primary offender’s liability. As long as the actus reus of the principal offence is committed, the secondary parties can be held criminally liable. Kenyan courts should also reconsider the aspect of foresight as an element of mens rea for secondary liability. Thus, the position that an accessory must intend, at the time of carrying out the act that assists or encourages the perpetrator, that the perpetrator will commit the conduct element of the offence with the mens rea that the offence requires should be restated. 5.11 Summary • The perpetrator to an offence is the one who performs the actus reus of the substantive offence with the necessary mens rea. • The accessory or secondary party is the one who assists or encourages (aids, abets, counsels or procures) the perpetrator to commit the substantive offence. 534 Republic v Grace Sarapay Wakhungu & 2 ors [2020] eKLR Chief Magistrate’s Court at Milimani case no. 31 of 2018; also see Clarkson and Keating (2014:252). 535 Clarkson and Keating (2014:252). 536 Rebecca Mwikali Nabutola & 2 Ors v Republic [2016] eKLR, Criminal Appeal no. 232 of 2012; Republic v Grace Sarapay Wakhungu & 2 Ors [2020] eKLR Chief Magistrate’s Court at Milimani Case no. 31 of 2018. 132 • It must be proved that the accessory intended to do the act which assisted or encouraged the principal offence and that he knew the essential matters which constitute the principal offence. • Where two or more people agree to commit an offence as part of a common purpose, they are all equally liable for the offence under common intention liability, unless the act of one of the participants is of a type that is completely different from that which the other participants foresaw as part of the common purpose (the fundamentally different rule). • Where one of the participants acts outside the agreed common purpose and commits an offence that is different or more serious in pursuit of the common unlawful purpose, then the prosecution must prove the necessary mens rea and actus reus of the offence in respect to the primary offender. In respect to the other participants the prosecution would need to prove that they subjectively foresaw or realised that the other participant might commit another offence during the course of the agreed common unlawful purpose. For example, where a participant kills in the course of a robbery then all participants are equally liable for the killing. • Where the defendant wishes to withdraw his participation from a common criminal purpose to escape liability, the defendant would need to communicate his withdrawal in a timely and unequivocal manner. 133 SECTION 6: INCHOATE OFFENCES This chapter discusses types of inchoate offences in Kenya. Inchoate means “just begun” or “undeveloped”.537 Inchoate offences are, therefore, incomplete offences. They occur when a defendant has taken steps towards committing a crime but has not completed the offence. Inchoate offences make the defendant criminally responsible, although he did not accomplish his criminal objective. The three inchoate offences found in Kenyan criminal law are attempt, conspiracy, and incitement. The chapter will explain the conditions of liability for these offences. It will highlight the relevant Sections of law and discuss the underlying general principles of the offences which have their foundation in common law. The common law foundation makes English case law relevant to the discussion to the extent that they explain the rationale of the relevant principles. The rationale for creating criminal responsibility for inchoate offences is to punish the defendant who takes steps to carry out a crime and to enable early police intervention, thus, to prevent crimes. Inchoate offences criminalise potential harm.538 In other words, this area of criminal law targets the risk of harm.539 Inchoate offences are also made punishable because the defendant has demonstrated a willingness to commit the substantive offence by his actions. Therefore, the defendant is just as morally culpable as the one who successfully carries out the offence.540 Inchoate crimes cover a range of conduct; for example, agreeing to steal a motor vehicle will make the participants liable for conspiracy to steal. A defendant may also be liable for attempted murder where he is arrested just before he pulls the trigger of the gun while aiming to shoot at his victim or where he pulls the trigger, and his victim survives. 6.1 Attempt Attempt refers to the instance where a defendant has taken sufficient steps towards completing the crime. It covers the situation where the accused has carried out an act that is more than mere preparation for the commission of an offence. Criminal responsibility is imposed for the steps already taken.541 In Kenya, attempts are covered under S.388 of the Penal Code. It provides in part: “(1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.” 537 D. Ormerod and K. Laird, Smith, Hogan and Ormerod’s Criminal Law, 16th edn (Oxford: OUP, 2021), p. 431. 538 C. McAlhone and N. Wortley, Criminal Law The Fundamentals, 4th edn (Sweet & Maxwell, 2016), p. 420. 539 D. J. Baker, Glanville Williams Textbook of Criminal Law, 3rd edn (Sweet & Maxwell, 2012), p. 533. 540 Ormerod and Laird (2021:432); Baker, Glanville Williams (2012), p. 534. 541 McAlhone and Wortley (2016:420). 134 It has been observed that S. 388(1) above highlights two main ingredients: mens rea (intention) and actus reus(an overt act).542 6.1.1 Actus reus What exactly constitutes the “overt act” has been discussed at length by the courts. In other words, it needs to be established what actions by the accused properly constitute an attempt. How much must the defendant do towards the commission of the substantive offence to be considered guilty of an attempt? Case laws reveal the defendant needed to have reached a point of no return or had embarked on the crime proper. In the leading case of Abdi Ali Bare v R543, (Abdi Ali case) the Court of Appeal, while analysing a conviction on attempted murder, held that although the above Section seems to suggest that an attempt is committed immediately an accused carries out any overt act towards the commission of an offence, this was not the case. It noted that a distinction must be drawn between mere preparation to commit the offence and attempting to commit it. It further stated that it must be established: “[W]hether the acts by the accused person were immediately or merely remotely connected with the commission of the specific offence attempted on the basis of common sense.” In the Abdi Ali case of attempted murder, the court observed that it must be proved that the accused had taken a step towards the commission of murder, which step is immediately and not remotely connected with the commission of the murder. Reiterating that “[t]he act alleged to constitute attempted murder […] must be sufficiently proximate to murder to be properly described as attempt to commit murder”. The court was of the view that there was sufficient proximity when the accused had done the last act, which is necessary to commit the specific offence attempted. In this case, the appellant, armed with a gun, confronted the victim in his house with his wife and two children and uttered the words “prepare to die”. The appellant had a sling on one arm, which seemed to be injured, and the victim and his wife struggled to snatch the gun off his hand before calling for help leading to the appellant’s arrest. Interestingly, the Court of Appeal overturned the conviction stating that no evidence was led to the effect that the appellant had pointed the gun at his victim or whether he was even capable of using the gun in his possession given that his left arm was injured at the time of the incidence and was on a sling. The court also cited other factors leading to the defendant’s acquittal, including the trial court’s failure to consider his defence. Point of reflection: In Abdi Ali case the defendant had taken more than merely preparatory steps in committing the offence; even such steps were considered insufficient unless he was pointing the gun at his victim and was physically capable of using it. Would one consider the defendant’s conduct too remote from the commission 542 Douglas Nyambene v R [2018] eKLR Cr Appeal no. 30 of 2016. 543 [2015] eKLR, Criminal Appeal no. 588 of 2010. 135 of the offence? Had he not sufficiently carried out acts that manifest his intention concerning carrying out the substantive offence of murder? It is interesting that the court also came to its conclusion basing it on the defendant’s injury at the time of the incident, despite the provision which recognises that impossibility does not make one escape liability for attempts. Citing with approval the Abdi Ali Bare case, the High Court in Douglas Nyambane v R544, while confirming an appeal on attempted defilement, held that an attempt is proved when more than mere acts of preparation are proved. Observing further that: “[E]vidence must be led which goes beyond the preparatory stages and right to the doorstep of possible commission of the offence. It ought to be demonstrated that the accused had committed the last act to the actual commission of the specific offence attempted.” In Charles Nega v Republic545,the High Court confirmed the appellant’s conviction in the trial court for attempted defilement. The court established that the appellant attacked the victim, a 17-year-old girl when she was on her way to fetch some water from the river. The appellant embarked on undressing her, and the victim raised an alarm. The appellant was found on top of the victim by the victim’s brother, who had come to her aid. The appellant at the time had a bare chest, having removed his shirt and put it in the victim’s mouth to gag her. He had already torn the victim’s skirt and pulled off her shirt. The victim was rescued by her brother before the appellant could proceed further. The court held that for an attempt to be established, the evidence must go beyond the preparatory stages and right to the stage of a possible commission. It asserted, “[i]t ought to be demonstrated that the accused had committed the last act to the actual commission of the specific offence attempted”. An intention to commit the crime must also be proved. The court confirmed both conviction and a sentence of ten years. In Stephen Mungai Maina v R546, the court noted attempt requires “a demonstration of an intention to commit the offence and overt act towards the commission of the offence which is sufficiently proximate or immediately connected to the attempted offence” (para. 19). It further stated, “[i]t ought to be demonstrated that the accused had committed the last act to the actual commission of the specific offence attempted” (para. 42). The appellant appealed against a conviction for the offence of attempted defilement of a 7-year-old girl and the sentence of ten years imprisonment. The court observed that in a case of attempted defilement, what needed to be proved were “the ingredients of defilement (age, positive identification) except penetration and the steps taken by the Appellant to execute the defilement, which did not succeed.” It is unfortunate in this case that although the court found all elements of the crime had been proved, it allowed the appeal on a technicality since there was a lack of corroborative evidence of the minor. The overt act is thus proved when the accused carries out an act that is immediately connected to the attempted substantive offence. Such an act has been described by the 544 [2018] eKLR, Criminal Appeal 30 of 2016. 545 HCK, Migori Criminal Appeal 38 of 2015 [2016] eKLR. 546 [2020] eKLR, Criminal Appeal no. 68 of 2019. 136 courts to be “more than merely preparatory”, “sufficiently proximate to the attempted offence” and “the last act” to the actual commission of the specific attempted offence. It is questionable if all these terms indeed refer to the same conduct and would lead to similar and consistent results when analysing cases on attempts. All the above terms are a merger of the statutory and common law tests that evolved to determine conduct that would suffice for an attempt under English law. The consistency the decisions so far disclose is the tendency to require proof that the defendant had carried out the last act to the actual commission of the specific offence claimed to have been attempted. To establish the overt act, the judges in Kenya seem to have adopted a very narrow construction. They are inclined only to find a defendant guilty of an attempt if he did the last act needed to carry out the substantive crime. The Kenyan position gives the impression that these tests all lead to the same result, while this is actually not the case in the English jurisdiction from where the tests have emerged. 6.1.2 The common law standard vs “the more than merely preparatory test”, English law on the “overt act” The two main tests that were applied under common law to establish an attempt547 were ‘the last act’ and ‘proximity’ tests. The “last act” test required the defendant to have done the last act needed for him to commit the substantive offence.548 In DPP v Stonehouse [1978] A.C. 55, it was explained that this test required that the defendant had passed the point of no return. The “proximity test” test required the defendant’s actions to be proximate to the completed offence, in the sense that his actions needed to be immediately connected with the commission of the offence and not the acts remotely leading towards its commission.549 In 1981 England adopted The Criminal Attempts Act which states that actus reus of attempt is “an act which is more than merely preparatory to the commission of the substantive offence”.550 In Gullefer [1990] 3 All E.R. 882, the court held that the 1981 act departed from the common law tests and instead provided a middle ground stating that an attempt “begins when the merely preparatory acts have come to an end, and the defendant embarks upon the crime proper”. The defendant in Gullefer had bet on a greyhound at a racetrack. Upon seeing his dog losing, he rushed to the track and waved his arms to distract the other dogs. His strategy was not successful. Had he succeeded, the race would have been declared void, and his money returned to him. His conviction was overturned on appeal, with the court holding that his acts were not yet at the stage one could say he was in the process of committing theft; they were merely preparatory. Even if the race had been declared void, he still needed to have gone to the bookmakers and demanded back for his money. 547 McAlhone and Wortley (2016:421). 548 McAlhone and Wortley (2016:421); Baker, Glanville Williams (2012), p. 549. 549 Eagleton (1855) Dears 515. 550 McAlhone and Wortley (2016:420). 137 Point of Reflection: Consider also, R v Jones (1990) 1 W.L.R. 1057, the defendant, a married man, had an affair with a woman who left him for a foreman. The defendant then bought a gun and shortened its barrel. He timed the foreman who had just dropped his daughter off at school, entered the back of his car, pointed the gun at him, and said: “You are not going to like this”. The safety catch of the gun was still on. After some struggle, the foreman managed to grab the gun, throw it out of the window, and escape. The defendant appealed his conviction stating that the facts did not support the charge as he still needed to remove the safety catch, put his finger on the trigger and press it before one could say he had satisfied the elements of attempted murder. The Court of Appeal rejected his submissions and confirmed the conviction citing with approval the test set out in Gullefer. Compare this decision with the above cited Kenyan case of Abdi Ali Bare case. In R v Geddes [1996] Crim. L. R. 894, the court adopting a restrictive approach paraphrased the statutory test noting that it needed to be established from the evidence whether the defendant had done an act showing “he had actually tried to commit the offence in question, or whether he had only got ready or put himself in a position or equipped himself to do so.” Geddes had been charged with attempted false imprisonment. He had been spotted in a boys’ washroom at a school. He managed to escape but left behind a rucksack whose contents included a kitchen knife, some rope and masking tape. The prosecution argued that he was merely waiting for a boy to walk into the lavatory, and he would grab him. The Court of Appeal found that although he was well equipped to catch and restrain any boy, he had not yet confronted any boy. It held that he had not attempted to imprison any boy falsely. The English courts seem to prefer a restrictive approach in the statutory test for an attempt, requiring the prosecution to show that the defendant actually tried to commit the offence as opposed to only getting ready to carry it out.551 6.1.3 Mens rea The intention required for attempts is the intention to commit the substantive offence which the defendant is accused of having attempted.552 In Jane Koitee Jackson v R553, the court noted that the intention to prove was the specific intention to commit the offence that is alleged to have been attempted. In this case, the appellant had been charged with attempted murder; it was held that the intent to prove should be an intention to kill or cause death. This position has also been confirmed in Kennedy Kigen Leting v R554, with the court holding the prosecution, in an attempt, would need to prove the intention to commit the underlying offence. 551 Baker, Glanville Williams (2012), p. 552. 552 Moses Kabue Karuoya v R [2016] eKLR. 553 [2014] eKLR, Criminal Appeal no. 146 of 2009. 554 [2020] eKLR,Criminal Appeal no. 49 of 2019. 138 Where the substantive offence requires a certain consequence, it must be shown that the accused intended both the conduct and the required consequence of the offence. Criminal responsibility for an attempt only arises if it is shown that the accused intended the required consequences, recklessness would not suffice even though the same would be acceptable for liability of the substantive offence.555 Regarding intent as to circumstances, recklessness for an attempt would also suffice if it is recognised for the substantive offence.556 6.1.4 Attempts and impossibility An accused would be liable for an attempt even though it is impossible to commit the intended offence. S. 388(3) Kenya Penal Code reads: “(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.” What is key for liability in the law of attempts is the defendant’s intention and the more than mere preparatory steps taken towards its realisation. It is irrelevant if it in fact turns out that the crime cannot be committed.557 As a result, a defendant would still be liable for an offence where the failure to commit the offence is due to use of ineffective means. For example, the defendant intending to kill his victim (V) adds poison into V’s food which turns out to be too little. The defendant would still be guilty of attempted murder. 6.2 Conspiracy Under Kenyan law, conspiracy is a statutory offence. It is recognised under SS. 393 to 395 of the Penal Code. A conspiracy can either be a felony or a misdemeanour. S. 393 makes it a felony for a person to conspire with another to commit an act in any part of the world which if done in Kenya would be a felony. If the conspiracy is for the commission of a misdemeanour, then the offence of conspiracy will in this case be considered a misdemeanour.558 Several other punishable conspiracies are listed in S. 395, including conspiracy to carry out an unlawful purpose or lawful purpose by unlawful means. There are also stand-alone conspiracy offences which include conspiracy to defraud under S. 327 of the Penal Code; conspiracy to commit an offence of corruption or economic crimes under S. 47A(3) of the Anti-Corruption and Economics Crimes Act; conspiracy to murder under S.224 of the Penal Code; S. 4B conspiracy to commit offences under the Narcotics Drugs and Psychotropic substances (Control) Act. 555 See R v. Mohan [1976] Q.B1; McAlhone and Wortley (2016:427); Ormerod and Laird (2021:435); Baker, Glanville Williams (2012), p. 538. 556 See R v Khan [1990] 1.W.L.R, 815. 557 J. Herring, Criminal Law: Text, Cases and Materials, 10th edn (Oxford: OUP, 2022), p. 767; also see R. Shivpuri [1987] A.C. 1. 558 S. 394 Penal Code of Kenya. 139 While there is no statutory definition for conspiracy, guidance is given by case law. Most Kenyan courts reference definitions set out by case law from other common law jurisdictions, particularly English law and other authoritative analyses by English law scholars. A conspiracy is an agreement between two or more persons to carry out an unlawful act.559 In the Kenyan context, a more precise description would be that a conspiracy is an agreement to carry out a criminal offence. In Njenga and 2 others v R560, the court noted that the essential element of a conspiracy is an agreement to carry out a criminal offence, it does not matter that it is impossible to carry out the offence proposed to be done. The rationale for punishing conspiracy is to repress group crimes and to allow early police intervention.561 The conspiracy offence is also considered necessary in giving an impression of the full story of how many crimes or how a particular crime unfolded.562 6.2.1 Actus reus a) Agreement The agreement is the essence of the offence of conspiracy.563 It may be express, thus proved by direct evidence, or implied, therefore only deductible from the circumstances of the case, usually inferred from the parties’ conduct. The parties must agree to carry out the same offence. The offence of conspiracy is complete once the agreement is made.564 The parties to a conspiracy do not all have to meet to establish liability. It is enough that each conspirator has at least communicated with another conspirator.565 The conspirators must share a criminal goal which they intend to carry out. The mere knowledge of the conspiracy or associating with the wrong company does not make one a part of the conspiracy. A party must intend to be part of the agreement.566 In Anne Wangechi Mugo & 6 others v R567, the court noted that the prosecution need not only show pursuit of the same unlawful object, but it must also establish that there was a meeting of minds and a consensus to carry out an unlawful purpose. 559 Mulcahy vs the Queen (1868) LR 3 HL 306. Also see Anne Wangechi Mugo& 6 others v R [2022] eKLR Criminal appeal no. 7 of 2021; Rebecca Mwikali Nabutola & 2 others v R [2016] eKLR Criminal Appeal no. 232 of 2012; Moses Kathiani v R [2018] eKLR Criminal Appeal no. 68 of 2017. 560 [2005] eKLR, Criminal Appeal no. 163 of 2003. 561 Baker, Glanville Williams (2012), p. 567. 562 H. M Keating et al., Clarkson and Keating Criminal Law: Text and Materials, 8th edn (Sweet & Maxwell, 2014), p. 504. 563 R v Siracusa (1990) 90 Cr. App. R. 340. 564 McAlhone and Wortley (2016:432); M. Allen and I. Edwards, Criminal Law, 16th edn (Oxford: OUP, 2021), p. 319. 565 McAlhone and Wortley (2016:432); Allen and Edwards (2021:320). 566 Baker, Glanville Williams (2012), p. 570. 567 [2022] eKLR, Criminal Appeal no. 7 of 2021. 140 The conspiracy continues until the substantive offence is carried out. It is thus possible for one to join an existing conspiracy.568 b) Parties The agreement must have at least two persons. The prosecution only needs to prove the accused agreed with another, and the other need not be identified. 569 In Richard Kipyegon Cheboi v R570, while noting that proof of the identity of the co-conspirator was not important, the court observed: “All that is required is proof by way of evidence the existence of the co-conspirator with whom the appellant was in league in executing the conspiracy. It is also not important to prove that the conspirators met at a particular place.” Where an alleged co-conspirator has been acquitted, it should not mean that the accused will automatically be acquitted.571 The accused can still be held criminally responsible for conspiracy if it can be proved that the conspiracy in question also involved other participants not before the court and that the accused agreed with at least one other person in the conspiracy.572 There could also be instances where evidence is admissible against one conspirator and not the other co-conspirator, thus justifying the conviction of one.573 In Kimotho v R574, the appellant’s conviction for conspiracy was confirmed, although the persons it was alleged he conspired with were not charged because they could not be traced. Agreements between certain persons would not suffice for conspiracy. For example, the director of a company who is solely responsible for carrying out business for the company will not be held criminally responsible for conspiring with the company.575 They are considered to be one mind. 6.2.2 Mens rea The mental element for conspiracy is the accused must intend that the substantive offence will be committed.576 This means the defendant must (i) intend to enter into the agreement, and (ii) intend that the agreement’s objective will be carried out.577 In Yip Chiu Cheng v R [1994] 3WLR 514, the court held: 568 McAlhone and Wortley (2016:432); Allen and Edwards (2021:319). 569 Allen and Edwards (2021:320). 570 [2021] eKLR Criminal Appeal no. 13 of 2019. 571 DPP v Shannon [1975]AC 717. 572 Anthony [1965] 2 QB 189; Allen and Edwards (2021:322). 573 Ormerod and Laird (2021:479). 574 [2004] eKLR, Criminal Appeal no. 293 of 2004. 575 Rebecca Mwikali Nabutola & 2 others v R [2016] eKLR Criminal Appeal no. 232 of 2012. 576 Rebecca Mwikali Nabutola & 2 others v R [2016] eKLR Criminal Appeal no. 232 of 2012. 577 Also see Chiu-Cheng v. The Queen [1995] 1 A.C. 111; R v. Siracusa (1990) 90 Cr. App. R. 340; R v Saik [2007] 1 A.C. 18. 141 “The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence.” Intention to play a part in the conspiracy In Nicholas Shivachi Mboya &Anor v R578, the High Court overturned a conviction for conspiracy to commit murder, citing that evidence in the trial court did not support the conviction. While analysing the offence of conspiracy, the court noted it needs to be shown that when entering the agreement, the accused intended to play some part in furthering the criminal course of conduct that was agreed upon. It held that the appellants’ actions did not meet this threshold. This position was also reflected in Anderson [1986]AC 27 when Lord Bridge noted that an accused who enters a conspiracy must intend to play some part in the agreed course of conduct. However, the Court of Appeal in Siracusa [1990] 90 Cr. App. R. 340 adopted a different position when it noted that participation in a conspiracy could be active or passive, with the accused’s liability complete when he joins the agreement intending for it to be carried out. D. Ormerod and K. Laird, support this position stating that there is no element under statutory or common law conspiracy that requires “every conspirator to have an intention to participate personally in the carrying out of the full offence.”579 All that needs to be shown is that the defendant had the intention that the offence would be committed by one or more of the parties to the agreement.580 6.2.3 Charging conspiracy and the substantive offence In practice, the crime of conspiracy is rarely prosecuted when merely at the inchoate level.581 In most cases, some substantive crime has been committed in pursuance of the conspiracy. At common law, the conspiracy charge stands alone and will not be submerged into the substantive crime. The prosecution has the discretion to charge both conspiracy and substantive crime. The practice promoted by the Kenyan courts, however, is to require the prosecution to select charges to avoid possible prejudice to the defence, thus they discourage the use of both conspiracy and the substantive offence charges.582 In John Mburu Kinyanjui v R583, the court noted the undesirability of adding a conspiracy charge to a substantive offence if it adds nothing. It stated that in such instances, the prosecution needs to elect whether to charge conspiracy or the substantive crime or justify the inclusion of both counts. It nonetheless added that there are exceptions when the prosecution is allowed to proceed with both charges. The exceptions include where in the interest of justice, the conspiracy is considered necessary to give an overall picture of the crimes carried out and where there is no evidence that all 578 [2020] eKLR, Criminal Appeal no. 243 of 2019. 579 Ormerod and Laird (2021:475). 580 Ibid. 581 Baker, Glanville Williams (2012), p. 576. 582 Rebecca Mwikali Nabutola & 2 others v R [2016] eKLR Criminal Appeal no. 232 of 2012. Also see Baker, Glanville Williams (2012), p. 577. 583 [1988] eKLR, Criminal Appeal no. 141 of 1986. 142 co-conspirators committed some overt act related to the conspiracy. Otherwise, the conspiracy offence may merge with the substantive offence. 6.2.4 Conspiracy and common intention liability Some cases disclose the confusion that sometimes arises when courts have to establish liability for the conspiracy offence. There are instances where courts equate conspiracy to common intention liability. In Anne Wangechi Mugo & 6 Others v R584, the appellants had appealed a conviction for the offence of conspiracy and several other substantive corruption offences concerning abuse of office. While analysing the crime of conspiracy, the court noted it needed to be shown that there was a meeting of minds, a consensus to carry out an unlawful purpose. To reiterate this position, it cited S. 21 of the Penal Code, which provides for common intention liability. In confirming the convictions, the High Court observed that the prosecution had led evidence “indicating the specific involvement and overt acts carried out by each of the appellants herein acting in concert with each other towards the overall perpetuation of a common purpose being that of misappropriation of funds.” In Robert Onchwari Orina & Anor v R585, the accused persons were convicted of conspiracy and the substantive offence of stealing. They had posed as clients and hired a car from the complainant for two days but failed to return it. During the transaction, the first accused introduced the second accused as his wife. The car was eventually traced to another country bordering Kenya. The High Court confirmed the convictions and, while analysing conspiracy, had this to say: “[t]he doctrine of common intention under s. 21 of the Penal Code makes parties to a criminal plan liable for not only the crime which is the object of that plan but for any crime committed in furtherance of the plan or in the course of its execution by one or more of the parties.” The court also cited the cases of Patris Ozia v R586; R v Ramji Hirji587, which recognised the application of S.10 of the Evidence Act concerning conspiracy cases. The Section provides: “Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence, anything said, done or written by anyone of such intention after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing such person was a party to it.” The above provision of the Evidence Act points to the kind of evidence that would be admissible in establishing the existence of the offence of a conspiracy and proving that the accused persons were part of such conspiracy. Although the courts in the cases of Anne Wangechi Mugo & 6 ors and Robert Onchwari Orina & Anor could have reached the right conclusion in establishing liability for the offence of conspiracy, there 584 [2022] eKLR, Criminal Appeal no. 7 of 2021. 585 [2021] eKLR, Criminal Appeal no. 65 of 2019. 586 (1957) EA. 587 (1946) 13 EACA. 143 was a distortion of the substantive principles of criminal law by equating the crime of conspiracy to the mode of participation in crimes referred to as common intention liability. Conspiracy is an inchoate offence, and the liability for the parties in it arises from agreeing to commit an offence. Common intention liability is a mode of establishing accessorial/secondary liability where several persons form a common purpose to commit a crime. Participating in such a common criminal purpose makes one liable for the crimes committed in furtherance of such joint criminal venture. While agreement underlies both concepts, they are not the same. 6.3 Incitement Incitement involves persuading, encouraging or inducing another through threats or pressure to commit an offence. 588 In Wilson Kazungu v R 589 , the court defined incitement in dictionary terms as to stir, encourage or persuade. The defendant was charged with incitement to violence for uttering words which threatened the workers of the complainant, to the effect that they risked their lives if they continued to work for the complainant. This would later lead to the damage of the motor vehicle of the complainant. The incitement charge failed because the court found that the words uttered did not have the effect of inciting persons to commit violent acts. At common law, an inciter has been defined as one who: “[S]eeks to influence the mind of another to the commission of a crime[and] may take various forms, such as suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity.”590 Thus, one would be criminally responsible for incitement at common law where such a person “counselled, procured or commanded” another to commit a crime. It covered “acts of persuasion or encouragement”.591 6.3.1 Actus reus The actus reus of incitement is to encourage or persuade another to commit an offence.592 Criminal responsibility for incitement arises whether the person incited did what he was urged to or not. 593 Once the defendant has communicated the encouragement or persuasion, the crime of incitement is complete, even if it has no effect. One can, therefore, not argue as a defence that the person incited did not carry out the crime. In Hassan Bidu Guyo v Republic594, the defendant was convicted of incitement for uttering words calculated to forcibly remove a certain group of children from a particular school. 588 McAlhone and Wortley (2016:437). 589 [2009] eKLR, Criminal Appeal no. 52 of 2008. 590 R v. Goldman [2001] Crim LR 894. 591 Baker, Glanville Williams (2012), p. 605. 592 DPP v. Armstrong [2000] Crim LR 379; R v. Goldman [2001] Crim LR 594. 593 McAlhone and Wortley (2016:438); Baker, Glanville Williams (2012), p. 605. 594 [2019] eKLR, Criminal Appeal no. 14 of 2018. 144 6.3.2 Mens rea The prosecution must prove the accused intended the offence to which he incited to be committed and intended any consequences inherent in the actus reus of the crime.595 At common law, the defendant had to intend or believe the incited person would carry out the incited crime with the intended fault requirement.596 The offence of incitement was recognised under S. 96 of the Kenyan Penal Code, which provided for the offence of incitement to violence and disobedience of law. Although still present in the Penal Code, this offence has, however, since been declared unconstitutional for shifting the burden of proof upon the defendant, thus violating the right to a fair hearing concerning the presumption of innocence.597 It is doubtful this particular offence will be relevant in future prosecutions unless amended by parliament. There are, however, other statutes that recognise offences concerning incitement; for example, S. 27 Prevention of Terrorism Act provides: “A person who publishes, distributes or otherwise avails information intending to directly or indirectly incite another person or a group of persons to carry out a terrorist act commits an offence and is liable, on conviction, to imprisonment for a term not exceeding thirty years.” 6.4 Conclusion Inchoate offences are well established within the Kenyan criminal law having their foundation under common law. The discussion in this chapter shows a need to have more clarity in the interpretation of the various principles that apply to inchoate crimes. For example, the need to clarify the test of the overt act in attempts and avoiding instances where there is inconsistency or confusion in the application of certain principles relating to the offence of conspiracy. 6.5 Summary • Attempt: Prohibits acts which are more than merely preparatory in commission of the offence. The defendant here has gone beyond mere preparation and has taken steps towards commission of the offence. • Conspiracy: Prohibits the mere act of agreeing to commit a crime. • Incitement: Prohibits the conduct of persuading others to commit an offence. 595 R v. Curr [1968] 2 QB 944. 596 Invicta Plastics Ltd v Clare [1976] R.T.R 251 DC. 597 See Petition no. 430 of 2015, Senator Johnstone Muthama v Director of Public Prosecutions & 2 Others, Japhet Muriira Muroko (Interested Party) paras. 103, 110, 111, 116. 145 PART THREE: SPECIFIC CRIMES OF KENYAN CRIMINAL LAW SECTION 1: CRIMES AGAINST HUMAN LIFE AND PERSON The offences considered here involve both fatal and non-fatal violence against the person. While several crimes fall under this category, the crimes specifically highlighted here are murder, manslaughter, rape, defilement and assault. Case law reveals these are among the most commonly prosecuted crimes before the Kenyan courts. 1.1 Murder Section 203 of the Penal Code provides that any person who with malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. The ingredients of murder have been discussed in several cases.598 They include proof that: i) The victim died. ii) The accused person committed the unlawful act/omission which caused the victim’s death. iii) The accused person had malice aforethought. 1.1.1 Actus reus The actus reus of murder is killing someone through an unlawful act or omission. According to S. 214 of the Penal Code, a person is capable of being killed from the moment of birth. The law presumes every homicide to be unlawful unless it occurs due to an accident or was authorised by law.599 Point of reflection: Considering the constitution recognises that life begins at conception could one argue that unborn children are also capable of being killed, therefore falling under the offence of murder? The defendant’s conduct must have caused the death within a year and a day to be held responsible.600 The validity of this rule is questionable given the possibilities in modern medicine where attempts to save the victim’s life can keep them alive longer than the proscribed time. Thus, the Law Reform Act of 1996 abolished the rule in England. Under S. 213 of the Penal Code, a person is deemed to have caused another’s death “although his act is not the immediate or the sole cause of death”, where: i) The victim dies due to surgery or medical treatment for injuries caused by the defendant, as long as such medical treatment or surgery was employed in good faith with common knowledge and skill. 598 R v Henry Obisa Auko [2018] eKLR, R v Morrison Mutika Leizar [2020] eKLR, and R v Ann Karimi [2020] eKLR. 599 R v Morrison Mutika Leizar [2020] eKLR; Gusambizi Wesonga v R [1948] 15 EACA 65. 600 S. 215 Penal Code. 146 ii) After the injuries inflicted by the defendant, the victim fails to have medical treatment or surgery that would have otherwise saved his life or otherwise fails to observe proper caution as to his way of living. iii) To avoid threatened or actual violence from the defendant, the victim does an act that would appear natural in the circumstances that leads to his death. An example would be when the victim fleeing the defendant, who is shooting at him, gets run over by a car for failing to carefully observe traffic while crossing a road. iv) The defendant hastens or accelerates the death of a victim already suffering a disease or injury which would have otherwise killed the victim. In other words, mercy killing would not relieve the defendant from liability. v) The defendant’s act or omission would not have caused death unless an act or omission of the victim or other persons otherwise accompanied it. This part of the Penal Code simply reiterates that the defendant’s act or omission must be a substantial and operating cause of the underlying death. In other words, the above supervening events do not break the chain of causation.601 1.1.2 Mens rea The mens rea for murder is malice aforethought. It is defined as the “intention to cause death, intention to cause bodily harm, where an accused knows that there is a risk that death or grievous bodily harm will ensue from his acts and commits them without lawful excuse.”602 In Andrew Mueche Omwenga603, the court stated that malice aforethought implies a notion of culpability or moral blameworthiness. Under S. 206 of the Penal Code, malice aforethought is established when the prosecution, through evidence, proves: a) an intention to cause the death or to do grievous harm to any person, whether that person is the person killed or not; b) the knowledge that the act or omission causing death will probably cause the death of or grievous bodily harm to some person, whether that person is the one killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; c) an intent to commit a felony; d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony. 601 See Part 2, Section1.3.2. 602 R v Henry Obisa Auko [2018] eKLR. 603 [2009] eKLR, Criminal Case no. 11 of 2008. 147 Malice aforethought encompasses both intent to kill (referred to as express malice) and intent to cause grievous bodily harm (implied malice). It also includes intent to commit a felony resulting in death, and intent to facilitate another to prevent lawful arrest or escape from lawful custody, which results in death. The two latter instances cover the situation where the defendant kills in the course of furtherance of some other offence (a felony), also referred to as constructive malice.604 The intent here should also include oblique intent where the defendant, although not having as his purpose to cause death or grievous bodily harm, foresees it as inevitable in achieving his ultimate objective.605 In practice, several Kenyan courts give a very narrow definition of intent in murder cases, raising the question whether this is a true reflection of the law or the correct legal interpretation for the mens rea of murder. As will be seen when discussing manslaughter, several courts have been reluctant to find intent for murder unless it is proved that the accused person intended to kill (express malice), thus excluding incidences that would fall under implied and constructive malice.606 There is also a tendency by courts to confuse malice aforethought to mean ill motive. This is a misunderstanding of the concept.607 Malice aforethought refers to intention, which means the accused person had his purpose or objective to carry out the prohibited conduct. The use of the archaic term ‘malice’ in the definition of murder has also contributed to the confusion of equating malice to ill motive. Another factor that likely contributed to this mistaken construction of malice to include ill motive was courts trying to avoid the harsh punishment that followed a conviction for murder. A requirement of ill motive has almost always resulted into a construction that restricts intent in murder cases to instances where there was pre mediation and direct intent to kill.608 Courts in these circumstances probably deemed it unfair to convict for murder where there is doubt that the accused person foresaw he might do something criminally wrong to the victim, such as punch him, but by bad luck, the victim died due to the wrongdoing. The courts considered construing murder in such circumstances was disproportionate and unfair when noting it carried with it the harsh penalty of death. There is reluctance in causing an unjustified outcome where a person is punished more severely for bringing about consequences they never directly intended or foresaw. When considering malice, the courts take into account the type of weapon used, how it is used, the parts of the body where the harm was inflicted, and the conduct of the accused person before and after the killing.609 This rationale was reiterated in Stephen Ngila 604 D. Ormerod and K. Laird, Smith, Hogan, and Ormerod’s Criminal Law, 16th edn (Oxford: OUP, 2021), p. 534. Also see Andrew Mueche Omwenga [2009] eKLR Criminal Case no. 11 of 2008; R v Adan Godana Galgalo [2017] eKLR Criminal Case no. 17 of 2015. 605 S. 206(b) Penal Code. 606 See discussion in Part 3, Section 1.2.1. 607 See the discussion in Part 2, Section 2.2. 608 See the discussion in Part 3, Section 1.2.1. 609 Republic v Tubere s/o Ochen [1945] 12 EACA 63. 148 Nthenge v State610, where the court noted that intention to cause death ‘can be inferred from the overt act where for example the amount of force applied, the type of weapon used and whether the offender repeatedly assaulted or attacked the victim that the attacks clearly evinced an intention to cause the victim death.’ The court here further cited the case of Ahmed Mohamed Saeed vs Reginam611, where it was noted that an intent to kill can also be inferred where the defendant does something so eminently dangerous that he knew ‘must in all probability cause death or such bodily injury as was likely to cause death.’ The failure to prove malice aforethought often means the courts will find the accused guilty of manslaughter if his conduct is responsible for the death of the victim.612 The principle of transferred malice is also provided for through criminal responsibility that arises whether the person targeted is not the one actually killed. In Republic v Ngoria Taman Njoru613, the defendant was convicted of murder under the doctrine of transferred malice. The defendant had aimed his gun, intending to shoot the victim’s brother, but ended up killing the victim. 1.1.3 Sentence for murder Under S. 204 of the Penal Code, anyone convicted of murder shall be liable for the death sentence. The constitutionality of the mandatory death sentence was challenged before the Supreme Court in the precedent-setting case of Francis Karioko Muruatetu and Another v Republic614. The petitioners contended that the death penalty took away the discretion of sentencing from the judge, arguing that murders differ greatly, and it was wrong to prescribe the same sentence for all murders. They cited several cases whose underlying arguments were that “a mandatory death sentence that excludes the involvement of the judicial mind fails to take into account the facts and circumstances of each particular case and must therefore be stigmatized as arbitrary and oppressive.”615 The petitioners argued that sentencing was a legal issue that formed part of the principle of fair trial requiring a judicial determination, and a mandatory sentence violated this right. The position of the law before this petition oscillated between a decision that had previously declared S. 204 of the Penal Code unconstitutional to the extent that it made the death penalty mandatory for all murder cases616 and another decision which asserted that the death penalty was mandatory, leaving the court no discretion other than to impose the death penalty.617 610 [2021] eKLR, Criminal Appeal no. 13 of 2021. 611 (1956) EACA 396. 612 Roba Galma Wario v R [2015] eKLR; Godfrey Ngotho Mutiso v R [2010] eKLR. 613 [2021] eKLR. 614 SCK Pet. no. 15 of 2015 [2017] eKLR. 615 Francis Karioko Muruatetu and Ano v R [2017] eKLR, para. 9, also see para. 10. 616 Godfrey Ngotho Mutiso v R [2010] eKLR, Criminal Appeal no. 17 of 2008. 617 Joseph Njunguna Mwaura and 2 others v R [2013] eKLR, Criminal Appeal no. 5 of 2008. 149 Upon reviewing the bill of rights in the constitution and obligations arising from other human rights Conventions to which Kenya is a party, the Supreme Court concluded that the mandatory provisions of S. 204 of the Penal Code deprived the courts of the discretion not to impose the death sentence in appropriate cases. It held that the provision violates the accused’s right to a fair trial, as enunciated in Art.25 of the Constitution, and the right to dignity under Art.28.618 The Supreme Court asserted that while the death penalty was lawful even under the Constitution, it cannot be the only sentence available for cases involving murder. It asserted that the trial court must be allowed to consider each case’s mitigating factors and assess the appropriateness of the death penalty concerning the circumstances of the offender and the offence. 619 Mandatory penalties are arbitrary and blind to the circumstances under which a crime may be committed, thus influencing the sentence. 1.2 Manslaughter The offence of manslaughter covers all unlawful killings which do not amount to murder. It can result where the defendant kills while doing an unlawful act, or death results from the defendant’s omission to act. Under S. 202 of the Penal Code, a defendant is liable for manslaughter, if he causes the death of another human being by an unlawful act or omission. This provision covers what is classified as involuntary manslaughter under English law.620 The mental element here mostly captures conduct carried out recklessly or with gross negligence. Manslaughter can also result where the defendant does kill with intention or malice aforethought but there are mitigating circumstances which reduce his culpability and are considered to negate malice aforethought. This later form is recognised as voluntary manslaughter under English law.621 1.2.1 Unlawful act The unlawful act needs to be dangerous and likely to harm the victim.622 The Kenyan case law so far reveals that where the prosecution fails to show a motive for killing or a deliberate plan to kill but proves the defendant carried out an unlawful act with intent to harm the person, which resulted in death, the courts would rather convict for manslaughter than murder.623 This gives a narrower definition of intention concerning murder, unlike the position under English law, where the definition of intention is wider than pre-meditation and includes spontaneous acts. 624 The requirement that the prosecution must prove motive to establish intention for murder distorts the concept of 618 Francis KariokoMuruatetu and Ano v R [2017] eKLR, paras. 48, 49, 50, 51, 52, 53. 619 Francis Karioko Muruatetu and Ano v R [2017] eKLR, paras. 58, 59. 620 M. Allen and I. Edwards, Criminal Law, 16th edn (Oxford: OUP, 2021), p. 367. 621 Allen and Edwards (2021:366). 622 R v Adan Godana Galgalo [2017] eKLR Criminal Case no. 17 of 2015. 623 R v Adan Godana Galgalo [2017] eKLR Criminal Case no. 17 of 2015; R v Edward Mainge Mutiso & Another [2021] eKLR Criminal Case no. 41 of 2013. 624 Ormerod and Laird (2021:92). 150 intention, which is distinguished from motive. Motive is irrelevant to the determination of guilt unless it is an element of the offence.625 It is relevant as evidence as proof of it makes it more likely that the defendant did commit the relevant offence, but it should not be confused with mens rea. In R v Paul Omondi Ondongo626, the defendant used a panga to attack his victim, leading to his death. There was nothing to show that there was bad blood between the defendant and the victim. In his defence, the defendant indicated that he had an argument with the victim, who first attacked him, whereupon he grabbed the panga and cut the deceased, resulting in death. The court found that although the prosecution had established the unlawful killing by the defendant, they had failed to establish malice aforethought. The court found that the prosecution had failed to show premeditation on the part of the accused. As a result, the court substituted murder with manslaughter and convicted the defendant. The court used a similar rationale in R v Adan Godana Galgalo627 and R v Edward Mainge Mutiso & Another628. The rationale in the above cases is founded by the reasoning in Nzuki vs Republic629, where the court observed that the mere fact that an accused person's conduct is carried out with the knowledge that grievous harm is likely does not automatically lead to murder. Where does this then place implied malice? The court most likely applied this reasoning to avoid the mandatory death penalty for murder cases. Is this rationale necessary in present cases where courts have discretion in sentencing? For purposes of class discussion, it is recommended to read R v Adan Godana Galgalo [2017] eKLR; R v Edward Mainge Mutiso& Another [2021] eKLR; R v Paul Omondi Ondongo [2019] eKLR; Nzuki vs Republic (1993) KLR 171. In practice, when the intent is to cause grievous bodily harm, which qualifies as implied intent in murder, some courts treat death based on this form of mens rea as manslaughter. The judges perhaps consider it too harsh to convict for murder. Yet, their legal reasoning for avoiding the said charge conflicts with the statutory provision on what constitutes intention for murder. It distorts the legal principles that underlie the concept of intention. In light of the new discretion exercised in sentencing for murder, a more coherent and consistent approach would be to convict for murder but give an appropriate sentence that reflects the gravity of the defendant’s fault. 1.2.2 Unlawful omission Unlawful omission is “an omission amounting to culpable negligence to discharge a duty tending to the preservation of life and health whether such omission is or is not accompanied by an intention to cause death or bodily harm.”630 625 Ormerod and Laird (2021:102); also see S. 9(3) Penal Code. 626 [2019] eKLR Criminal Case no. 22 of 2016. 627 [2017] eKLR Criminal Case no. 17 of 2015. 628 [2021] eKLR Crimnal Case no. 41 of 2013. 629 (1993) KLR 171. 630 S. 202(2) Penal Code. 151 In Musee Joseph Musyoka v Republic 631 , the appellant had been convicted of manslaughter. The appellant, the deceased’s father, was sleeping on a mattress with the deceased infant, only to be found later lying on top of the infant. The evidence revealed he was not in a state to move himself away from the infant, who had to be pulled from under his weight. The court concluded the appellant was either too drunk or deeply asleep. The infant died as a result. The court determined that sleeping next to the infant was not unlawful, leaving the question of whether the death resulted from an omission. It noted criminal responsibility for omission arises where there is culpable negligence to discharge a duty tending to the preservation of life or health, citing with approval the elements set out in the English case R vs Bateman 19 Cr. App. R. 8. The court overturned the conviction stating that the prosecution had failed to establish that the appellant had breached a duty of care which caused the infant’s death, and that the appellant’s negligence was gross, showing a disregard for the life and safety of the infant as to amount to a crime deserving punishment. It noted that it was normal in African culture for parents to sleep with infants and did not amount to gross negligence. The cited elements for manslaughter arising from gross negligence include: i.“The defendant owed a duty to the deceased to take care; ii.The defendant breached this duty; iii.The breach caused the death of the deceased; and iv.The defendant’s negligence was gross, that is, it showed such a disregard for the life and safety of others as to amount to a crime and deserve punishment”. In Republic v Getrude Adhiambo Oneya [2020] eKLR, the defendant was a teacher at a school for the visually impaired, which the victim had joined as a newly admitted pupil. The victim was a blind child who always needed someone to guide him. The deceased vanished under the defendant’s care and drowned in an underground well near the school dormitory. It was established that the defendant had simply sent the children, who had a visual disability, to the dormitory. She failed to give much regard to the fact that the victim needed to be personally guided and handed over to the school caretaker waiting for the children at the dormitory. The court found the defendant had breached her duty of care to the victim and was, as a result, liable for manslaughter, having carried it out by unlawful omission. 1.2.3 Manslaughter from mitigating circumstances Several cases reveal that the courts often reduce a murder charge to manslaughter where the facts reveal that although the defendant did indeed cause the victim’s death with intent, there are circumstances that excuse the defendant’s act. The manslaughter in these instances may be termed voluntary manslaughter.632 Under S. 207 of the Penal Code, the defence of provocation will reduce murder to manslaughter. Provocation involves a wrongful act or insult which leads the defendant to lose the power of self-control and 631 [2014] eKLR, Criminal Appeal no. 156 of 2013. 632 Allen and Edwards (2021:366). 152 induces the defendant to carry out the act that causes death in the heat of passion, S. 208 Penal Code. In Republic v Morrison Mutika Leizar633, the accused was charged with murder. The facts of the case revealed that he owed a group of people some money who decided to attack him, with the victim being one of them. During the scuffle with the various individuals, the accused hit or pushed the victim, causing severe blunt-force head trauma that led to the victim’s death. While looking into the defences raised by the accused, the court highlighted the need to use reasonable force to protect oneself from imminent danger of bodily harm as an ingredient of the defence of self-defence provided under S.17 Penal Code. The court also noted that provocation negates malice aforethought, citing S.207 and 208 Penal Code. The court found the accused had validly raised the defences of self-defence and provocation and instead found him guilty of manslaughter. The court set out the ingredients for a valid defence of provocation: a. The death must have been caused in the heat of passion before there was time to cool. b. The provocation must be sudden. c. A wrongful act or insult must cause the provocation. d. The wrongful act must be of such a nature as would likely deprive an ordinary person of the class to which the accused belongs of the power of self-control. e. The provocation must induce the person provoked to assault the person by whom the act or insult was done. In R v Ann Karimi634, while highlighting the ingredients for the offence of murder, the court held that when self-defence is established, it has the effect of not only justifying an act causing death but also disproving malice aforethought. The defendant and victim seemed to have been cohabiting together, and on the fateful day, the victim came home, picked up a quarrel with the defendant, and started to insult the defendant. The victim then picked up a knife and threatened to kill the defendant. In the struggle between the victim and the defendant, the latter stabbed the knife into the victim’s neck, leading to his death. The court found that the defendant had acted upon a reasonable belief that her life was in danger and, thus, in self-defence. The defendant was convicted for the lesser offence of manslaughter, having established the defence of self-defence. Also see Andrew Mueche Omwenga [2009] eKLR, where the court noted that a person was justified to use a reasonable amount of force in self-defence where he believed the danger of bodily harm was imminent. The use of force was necessary to protect oneself. It highlighted that self-defence had two requirements: i) The force must be necessary. ii) The force must be reasonable. 633 [2020] eKLR HCK at Machakos, Criminal Murder Case no. 59 of 2014. 634 [2020] eKLR, Criminal Case no. 18 of 2017. 153 It noted that proof of the defences of provocation or that one acted in self-defence negated malice aforethought. In this case, the defendant had fatally shot two victims. The defendant and one of the victims were lovers and planned to marry. Both the defendant and his lover, the victim, were police officers. The victims accused the defendant of spreading rumours about his lover’s health, alleging she was HIV positive. The disagreement escalated when the victims attempted to shoot at the defendant, whereupon he shot back, fatally wounding them. The court found the defendant had successfully raised the defences of self-defence and provocation and convicted him of manslaughter instead of murder. Case law also reveals a tendency of the prosecution to enter into plea bargain agreements with defendants whose acts, although disclosing the offence of murder, are instead prosecuted for manslaughter.635 The strategy of this policy likely lies in the difference in punishment. While a conviction of murder leads to the possibility of the death penalty, a conviction for manslaughter leads to the possibility of life imprisonment. The courts do, however, have discretion in both instances636 to give varying sentences depending on the mitigating circumstances of each case. Point of reflection: Does the plea bargaining make sense in light of the decision by the Supreme Court in Francis Karioko Muruatetu and another v Republic? Mitigating circumstances allow the courts to take them into account in sentencing. It can be argued that this practice compromises the principle of fair labelling in criminal law. The principle of fair labelling requires that the law provides labels that accurately reflect the defendant’s conduct and extent of culpability. Murder constitutes a more damning label than manslaughter carrying with it a higher social stigma. 1.2.4 Suicide pacts Where the defendant is proven to have caused the death of another person following an agreement involving the defendant and the other person or several other persons to take their own lives, such a defendant is liable for manslaughter, S. 209 Penal Code. 1.3 Infanticide A woman who, by some wilful act or omission, causes the death of her child who is under the age of twelve months by reason of suffering from a mental disease, because she has not yet fully recovered from the effects of childbirth or lactation, is guilty of infanticide and is liable to punishment as if she had committed manslaughter, S. 210 Penal Code. Actus reus: Causing the death of an infant under twelve months by an act or omission. 635 Stephen Ouma Owino v Republic [2020] eKLR; R v Kevin Omondi Amoo [2022] eKLR; R v Juliana Wanza Mulei [2020] eKLR Criminal Case no. 21 of 2017. 636 R v Isaac Wanjala Murumba [2021] eKLR, Criminal Case (Murder) no. 52 of 2020. 154 Mens rea: Wilful implies intention. This is likely to cover direct and oblique intention, including recklessness. Essential to prove the defendant woman suffered a mental disease due to the birth which she had not recovered from.637 In Republic v SC638, the defendant was convicted of infanticide, having strangled her three weeks old baby to death following a quarrel and separation from the child’s father. It was alleged in her defence that she suffered postpartum depression and had not recovered from the effects of childbirth. She was sentenced to three years probation. The infanticide charge resulted from a plea-bargaining agreement where she had initially been charged with murder. Point of reflection: Should the prosecution simply reduce a murder charge to infanticide following plea bargaining? It would be prudent and make more legal sense that a medical report establishes the mother’s mental state before such a plea-bargaining agreement is entered into. 1.4 Sexual offences There are several offences classified as sexual under the Sexual Offences Act. They include rape, sexual assault, defilement, child sex tourism, child pornography, prostitution of persons with mental disabilities, exploitation of prostitution, and incest, among others. This discussion will mainly focus on the offences of rape, sexual assault, and defilement, given that they are often dealt with in our courts. 1.4.1 Rape S. 3 of the Sexual Offences Act (SOA) provides that a person will be liable for rape if a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs; b) the other person does not consent to the penetration; or c) the consent is obtained by force or using threats or intimidation. a) Actus reus The prohibited conduct is committing an act which causes penetration with one’s genital organs. While the Act’s language makes it possible that both males and females can be liable for rape, it is curious how a female can cause the act of penetration when the only genital organ capable of this conduct is the penis. The statute itself fails to define “an act which causes penetration”, merely stating that it is an act which is contemplated under the statute. It is questionable whether a female can thus actually be prosecuted under this provision. 637 PAO v Republic [2016] eKLR, Criminal Appeal no. 3 of 2015. 638 [2021] eKLR, Criminal Case no. 7 of 2019. 155 The law does not envisage absolute penetration into genitals or release of semen by male organs. 639 Although the statute does not expressly provide for it, one needs to ask whether penetration here only covers the penetration of the vagina or would also include the anus or the mouth. Penetration does not have to be proved through medical evidence; even the victim’s oral or circumstantial evidence will suffice.640 Under S. 43 of the SOA, an act is considered unlawful and intentional when committed under any coercive circumstances, under false pretences or fraudulent means, or concerning a person incapable of appreciating the nature of the conduct that offends. Fraudulent means include circumstances where the defendant fails to disclose that she/he is infected by HIV or another life-threatening sexually transmissible disease. This Section expressly excludes situations involving married couples. b) Mens rea The fault element of rape is intentionally and unlawfully causing penetration without consent or with consent obtained through intimidation. The prosecution must show that the defendant’s penetration was intentional, and the defendant was negligent as to whether or not the victim consented.641 c) Absence of consent Lack of consent is an essential element of rape.642 Under S. 42 SOA, a person is deemed to consent where she/he agrees by choice and has the freedom and capacity to make such choice. As reiterated in Charles Ndirangu Kibue v R643, consent means “an unequivocal voluntary agreement when the person, by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific sexual act.” In this case, the High Court confirmed the appellant’s conviction and sentence for rape, confirming the findings that he had intentionally and unlawfully penetrated the victim with his penis without her consent. The victim had some degree of mental retardation. Under S. 44, the statute provides for an evidential presumption of consent. It states that if the trial proves that certain circumstances existed and the defendant knew that those circumstances existed, it will be presumed that the victim did not consent unless sufficient evidence is adduced to raise an issue that the victim did consent. It is also presumed in such circumstances that the defendant did not reasonably believe that the victim consented unless sufficient evidence is produced to raise an issue that the defendant reasonably believed that the victim consented. 639 Daniel Wambugu Maina vs R [2018] eKLR; Also see Dennis J. Baker, Glanville Williams Textbook of Criminal Law, 3rd edn (London: Sweet and Maxwell, 2012), p. 334. 640 Peter Wanjala Wanyonyi v R [2021] eKLR; Peter Mwiti Gichuru v R [2020] eKLR. 641 Baker, Glanville Williams (2012), p. 335. 642 R v Oyier [1985] eKLR; Charles Ndirangu Kibue v R [2016] eKLR; Peter Wanjala Wanyonyi v R [2021] eKLR. 643 [2016] eKLR, Criminal Appeal no. 14 of 2014. 156 The circumstances include644 where there is at the time of the offence or immediately before it the use of violence or threat of violence against the victim, causing the victim to fear the use or violence, the victim was unlawfully detained, the victim was asleep or otherwise unconscious at the time of the commission of the wrongful conduct, due to a disability the victim would not have been able to express consent, a person had administered to the victim without their consent a substance causing them to be stupefied or overpowered at time of the commission of the prohibited act. In Peter Wanjala Wanyonyi v R645, the court convicted the defendant for penetrating the complainant without her consent. The court found that the victim, having been mentally impaired, could not consent. 1.4.2 Sexual assault Under S. 5 of the SOA, a person will be liable for sexual assault if he or she unlawfully a) “penetrates the genital organs of another person with; i) any part of the body of another or that person; or ii) an object manipulated by another or that person except where such penetration is carried out for proper and hygienic or medical purposes; b) manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body.” a) Actus reus It is the causing penetration to a genital organ or any part of the body through the use of a body part or manipulation of an object. In John Irungu v R,646the court observed concerning the essential ingredients of sexual assault: “[F]or purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person or even objects manipulated for that purpose.” This offence would more likely capture female sexual offenders, unlike the offence of rape, which supposedly recognises gender equality, but whose definition of the elements tends to make only men perpetrators. b) Mens rea The act of penetrating or causing penetration would require the defendant to act intentionally. 644 S. 44(2) SOA. 645 [2021] eKLR, Criminal Appeal no. 86 of 2019. 646 [2016] eKLR, Criminal Appeal no. 20 of 2016. 157 1.4.3 Defilement S. 8 SOA provides that a person who commits an act which causes penetration with a child will be liable for the offence of defilement. Where the child is less than eleven years the defendant, upon conviction, is liable to a sentence of life imprisonment, in the case of a child between twelve and 15 years to imprisonment of not less than 20 years and the instance of a child between 16 and 18 years to imprisonment of a term of not less than 18 years. a) Actus reus The wrongful conduct here is causing penetration with a child. A child is anyone below 18 years. In defilement cases, the prosecution must prove the victim’s age, this determines the sentence the court will give.647 This is also important because it can be inferred from the statute’s language that a child cannot consent. 648 There is a strict liability as to the circumstance element, the victim’s age. The rationale is that children cannot understand the harmful implications of engaging in sexual activity, therefore, cannot truly give consent, and those below twelve years are not physically developed for such activity.649 In Lawrence Kariuki Njeru v Republic650, a case involving the defilement of a two-year-old. The court set out the ingredients for defilement as i) age of the victim, ii) proof of penetration, and iii) identification of the assailant. Since the Supreme Court decision of Francis Karioko Murateru and Another v R.651, , which declared mandatory minimum sentences unconstitutional, courts no longer observe the prescribed sentences but instead issue sentences depending on the circumstances of each case, including mitigating factors. This is likely to distort consistency in sentencing concerning defilement cases. It also takes away the element of gravity of the offences associated with the victim’s age. The provisions contemplated the younger the victim, the more punitive the sentence. A good example is the case of Kagori Kaboi v Republic652, a 73-year-old man was found guilty by the trial court for having defiled a 13-year-old and sentenced to ten years imprisonment. This was already below the 20 years provided by statute. On appeal, the court further reduced it to seven years. In BOO v Republic653, a 16-year-old boy was found guilty of defiling an eight-year-old girl. This defendant, a child below 18 years, was sentenced under S. 191 of the Children Act and sentenced to pay a fine. On appeal, the 647 Eliud Waweru Wambui v R [2019] eKLR; Hudson Ali Mwachongo v R [2016] eKLR. 648 S. 43(4) SOA. 649 Baker, Glanville Williams (2012), p. 350. 650 [2017] eKLR, Criminal Appeal no. 71 of 2015. 651 SCK Pet.no. 15 of 2015 [2017] eKLR. 652 [2020] eKLR, Criminal Appeal no. 22 of 2020. 653 [2018] eKLR, Criminal Appeal no. 5 of 2017. 158 High Court set aside the fine and simply sentenced the defendant to serve a non-custodial community sentence. The provisions of the law seem to shield offenders below 18 years from statutory punishment provided in various legislations. It is questionable whether a 16-year-old should not be severely punished when his victim is an underage girl of eight years. The sentencing practice currently being adopted by some courts undermines the inherent harm involving underage sexual intercourse. The most common mitigating factor applies where the defendant and the victim are relatively in the same age group. Although the victim happens to be a minor, if it is established that the victim was in a relationship with the defendant, who is not much older than the victim, the courts will tend to give a more lenient sentence. In Royton Muruingi Kirimi v R 654 , the court set aside the mandatory 15-year sentence and substituted it with five years. It is a defence for this offence if it can be shown that the child deceived the defendant that she/he was above 18 years of age and the defendant reasonably believed that the child was over 18.655In Royton Muruingi Kirimi vs R, the High Court stated concerning this that the defendant had the evidential burden to: “Demonstrate that, it is the child who deceived him to believe that she was eighteen or over, that he believed that the child was eighteen years and that when all circumstances are considered it will lead to the conclusion that the belief on the part of the accused was reasonable.” It could be argued that the reasonable belief test should be objective. However, in Eliud Waweru Wambui v R656, the Court of Appeal, while reiterating that the burden of proving such deception or belief is upon the defendant on a balance of probabilities, it is to be assessed based on the defendant’s subjective view. In Eliud Waweru Wambui v R, the Court of Appeal discussed the harshness of mandatory defilement sentences, calling for the need to review them. The defendant was convicted of defiling a child of 17 years and five months and sentenced to 15 years imprisonment. His appeal to the High Court was dismissed, leading to a further appeal at the Court of Appeal. It emerged that before the defendant had been charged, there had been some negotiation with the girl’s father for compensation that the defendant could not pay. The defendant claimed he was in a relationship with the victim and believed her to be of marriageable age. The Court of Appeal concluded that the defendant’s reasonable belief that the victim was 18 had merit. The court believed that the law should be reviewed to exclude children above 16 from the provisions of statutory rape and also considered the mandatory minimum sentences too harsh in the circumstances. 654 [2020] eKLR. 655 S. 8(5) SOA. 656 [2019] eKLR. 159 b) Mens rea To cause penetration requires acting intentionally. The perpetrator must also know that the victim is a child/minor. 1.5 Assault Under the Kenyan context, assault is a generic term referring to an act that causes another person to apprehend immediate unlawful personal violence and includes the use of unlawful force on another person.657 The latter conduct involving physical assault where force is applied against the victim’s body is also referred to as battery under common law.658 At common law, there were distinct crimes of assault and battery. Assault covers conducts where the defendant caused the victim to apprehend immediate and unlawful violence, whereas battery involves inflicting unlawful personal violence on the victim.659 Assault and battery are also torts. In Kenya, the Penal Code only provides for the offence of assault. Case law reveals that assault for criminal purposes is always considered in its form of battery, which involves the unlawful application of force on another person. The rationale for the offence of assault is that it protects the individual’s autonomy by giving the victim opportunity to vindicate his dignity and security.660The Penal Code provides for different types of offences of assault, recognising the various degrees of violence. Under S.250 of the Penal Code, anyone who unlawfully assaults another is guilty of a misdemeanour and will be imprisoned for a year if the assault is not committed under circumstances that would otherwise deserve greater punishment under the Penal Code. This Section criminalises common assault. This type of assault is considered to lead to no injury or harm or minimal injury or harm.661 Common assault should also cover conduct involving some form of physical movement that makes the victim apprehend that he is about to be struck, i.e. putting another in fear of immediate violence.662Under S.251 of the Penal Code, any person who carries out an assault that causes actual bodily harm is guilty of a misdemeanour and will be liable to imprisonment of five years. 1.5.1 Actus reus Conduct involving assault could be both physical and verbal, although the practice in Kenya reveals more of the tendencies that most cases prosecuted for the offence of assault involve the use of physical violence by the defendant. 657 Vicky Chelangat v Republic Criminal Appeal no. 13 of 2021. 658 Ormerod and Laird (2021:691). 659 Ibid. 660 Ormerod and Laird (2021:691); Baker, Glanville Williams (2012), p. 245. 661 Patrick Amutsa Ikoha v Republic [2018] eKLR, Criminal Appeal no. 39 of 2016. 662 Ormerod and Laird (2021:694). 160 In William Kiprotich Cheruiyot v R663, the court observed that the elements for assault causing actual bodily harm664 were i) assaulting the victim, and ii) occasioning actual bodily harm. It stated that actual bodily harm means the victim suffers an injury that does not have to be permanent but should not be trivial. The injury should be such that it interferes with the health or comfort of the victim. Such bodily harm could also include injury that affects mental health, as described in Alex Kinyua Murakaru v R HCK Nyeri665: “Thus, actual bodily injury is any physical injury to a person (which is not permanent), or psychiatric injury that is not merely emotions, fear or panic. [T]o make out the offence, the prosecution must show that there has been assault, and that the assault has resulted in actual bodily harm. There must be an intention to assault (mens rea) and the assault must have taken place (actus reus).” Similar elements were noted by the High Court in Mkirani v Republic666, which noted that psychological harm needs to be a recognisable psychiatric illness proved by medical evidence.667 1.5.2 Mens rea Conduct involving assault must be carried out intentionally or recklessly.668 It means, in the case of assault causing grievous bodily harm, the defendant must intend the harm (direct intention) or realise that, for all practical purposes, it is inevitable his/her actions will cause grievous bodily harm (oblique intention) or foresee that it is inevitable that his conduct will result in grievous bodily harm (recklessness).669 1.5.3 Other forms of Assault Assault also forms the basis of several other offences, such as under S. 251 of the Penal Code, one is criminally liable if one intentionally insults another person’s modesty by forcibly stripping them. S.252 of the Penal Code also makes it an offence to assault a person lawfully charged with the authority to preserve any vessel in distress, vessel or goods or effects wrecked. Other forms of assault under S. 253 of the Penal Code include assault with intent to commit a felony or to resist or prevent lawful; assaulting, resisting or obstructing an officer from carrying out his duties; assaulting, resisting or obstructing a person engaged in the lawful execution of process or in making lawful distress; assaulting a person executing a duty imposed on him by law. 663 [2021] eKLR HCK, Narok Criminal Appeal no. 5 of 2020. 664 See also Ndaa v Republic [1984] KLR; Joseph Muthaura Kaura v R [2019] eKLR. 665 Cr. Appeal no. 211 of 2011 [2015] eKLR. 666 [2021] KEHC 300 (KLR). 667 Para. 30. 668 Vicky Chelangat v Republic Criminal Appeal no. 13 of 2021; Mkirani v Republic [2021] KEHC 300 (KLR). 669 Baker, Glanville Williams (2012), p. 257. 161 Another form of assault is causing grievous harm contrary to S.234 of the Penal Code. In Patrick Amutsa Ikoha v Republic670, the court observed that the harm caused here amounts to maiming or dangerous harm that seriously or permanently injures health. It also amounts to permanent disfigurement or serious external or internal organ injury. 1.6 Conclusion The discussion of crimes in this chapter shows the need for courts to adopt a consistent approach in the interpretation of the elements of the crimes. The approach should ensure a clear distinction of the various categories of crimes and avoid a distortion of the principles concerning their constituting elements, which eventually leads to an interpretation that does not reflect the true nature of the offences. There is for example a very narrow interpretation of what constitutes the mens rea of murder restricting it to only the purposive or direct intent which fails to reflect the statutory definition of murder. This particularly affects the principle of fair labelling. Alternatively, it could be argued that there is need to review the statutory definition of murder restricting to instances where there was direct and perhaps indirect intent to kill. The distortion of principles is especially reflected in the abolishment of mandatory sentences. This has contributed to sentences that fail to reflect the varying distinctions of the various crimes. This is reflected in the fact that both murder and manslaughter may now lead to similar sentences failing to reflect the more heinous nature of the offence of murder. The sentences in defilement cases also fail to reflect the need to have more punitive sentences particularly where the victim of the offence is very young. 670 [2018] eKLR. 162 SECTION 2: OFFENCES AGAINST PROPERTY Offences against property are covered under Chapter XXVI (S. 267-285) of the Penal Code of Kenya (Chapter 63, Laws of Kenya). This Section does not address all property-related offences enumerated under the Penal Code of Kenya. A common identifiable element of these offences is that they involve an interference of the victim’s property rights.671 The chapter focuses on major offences against property that are commonly prosecuted in Kenya. Analysing these key crimes should enable understanding the general principles that guide students in evaluating other offences against property not covered in the chapter. The following offences against property are covered in this chapter: i. Theft ii. Robbery iii. Robbery with violence iv. Housebreaking v. Burglary vi. Arson vii. Malicious damage to property 2.1 Theft Theft, also known as stealing, is defined under S. 268(1) of the Penal Code: “A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.” The general punishment for theft is three years imprisonment unless, owing to the circumstances of the theft or the nature of the thing stolen, some other punishment is provided.672 The offence of stealing exists in different shades. There is the general stealing or stealing by servant or agent or persons in public service, stealing wills, stealing stock, or stealing motor vehicle.673 The principal definition of stealing under Section 268 above applies in all these instances. The only difference comes in during punishment. For example, while the punishment for general stealing is three years,674 stealing by an agent675 or servant676 or a person in public service677 attracts a punishment of imprisonment for seven years, while theft of fishing gear678 attracts a sentence of imprisonment of five years. Thus, the relevance of specifying the shade of the theft in question lies in the punishment prescribed for every shade of stealing. 671 Clarkson and Keating (2014:907). 672 S. 275 Penal Code. 673 See S. 276-284, Penal Code. 674 Section 275, Penal Code. 675 Section 283, Penal Code. 676 Section 281, Penal Code. 677 Section 280, Penal Code. 678 Section 278(B), Penal Code. 163 2.1.1 The actus reus of theft The actus reus of theft will thus involve the following aspects: • taking, • anything capable of being stolen, • converting, to the use of any person, • other than the general or special owner thereof, any property. The following Sections analyse the actus reus elements of stealing as captured under the Penal Code of Kenya and interpreted by the Kenyan courts. 2.1.2 Taking The Penal Code defines taking from the perspective of what it entails rather than what it is. Under S. 268(5) of the Penal Code, “A person shall not be deemed to take a thing unless he moves the thing or causes it to move." In the case of Victor Mwai Wangeci & another v Republic679, it was underscored that “a thing cannot be taken unless the accused person has moved the thing or caused it to move, in other words, there has to be asportation.” This gives the term “taking” more flexibility as it implies that any action or omission qualifies to be “taking” so long as the thing in question is moved from one point to another. The only limitation to an act or omission of taking is the movement of the property. Kenyan courts have differed on the extent of removal. While some cases have adopted a strict approach upholding a removal in its slightest forms, others have adopted a more broad or flexible approach to exempt instances where actual movement can be perceived. In Harry Amwayi Etemesi v Republic680 removing money from a safe and placing it in a carton on top of the safe, in which the appellant was supposed to keep all the money he received in the course of his employment, was held to be sufficient to fulfil the aspect of taking. Notably, until the time the carton with the money was discovered, the accused had not disclosed this fact to the employer who had demanded the money. However, in the case of Victor Mwai Wangeci & another v Republic where the accused person used pliers to cut off the chains used to hold a motorbike in its parking and pushed it 20 metres away from where it was parked, before he was apprehended, was held not to be sufficient to amount to taking. According to the court, the taking of the motorcycle was not complete as the accused person was stopped and he did not deprive the complainant of his ownership and possession of the motorcycle. Comment: In Harry Amwayi Etemesi v Republic, the fact that the money alleged to have been stolen was recovered within the owner’s premises, and the accused person’s office was insufficient to negate the aspect of taking. According to the court, the accused 679 [2017] eKLR. 680 [1997] eKLR. 164 had already converted the money to his use, and it was immaterial that it was still in the owner’s premises and inside the appellant’s office. The existence of asportation, however limited, according to the court, clearly showed the appellant had the necessary animus furandi. The court seems to say that any amount of movement suffices to fulfil the aspect of taking. The court relied on the English case of R v. Poynton (1862) 7 L.T 434, where the accused, a letter carrier, failed to deliver a letter containing money which had been given to him for purposes of delivery. Neither did he return it to the post office on completion of his round, but on being asked for it soon afterwards, he produced it from his pocket and gave a false excuse for not having delivered it. It was held that there was sufficient taking to constitute the crime of stealing. In these two cases, the courts adopt a strict interpretation of taking which differs from the general approach in Victor Mwai Wangeci & another v Republic681. In finding that the acts in question did not amount to taking, the court in Victor Mwai’s case concluded that the offence disclosed by the evidence was attempted stealing as the act of taking was not completed. In this case, the court does not consider the acts of cutting the chains holding the motorbike to its parking and moving the motorbike 20 metres away. The court also seems to overlap the actus reus element of “taking” with that of the mens rea element of “intention to permanently deprive” in its reasoning. According to the court, the fact that the accused had not deprived the owner his motorbike proves there was no taking. The court relied on the Court of Appeal decision in Joseph Kariuki vs Republic682, where the appellants forced the owner out of her vehicle and attempted to drive it away, but it stalled. The court held that no theft had been committed as the car had not been moved or taken. Unlike in the case of Victor Mwai, where there is evidence of moving the motor bicycle for 20 meters away, in the case of Joseph Kariuki, the car did not move at all. When the accused persons got in and tried to start it, it stalled at the very place. The car did not move, and the robbers fled without taking the money, which two things were alleged to have been stolen. The court concluded that there was no taking. Notably, the court in Victor Mwai’s case did not distinguish these facts. Had it done so, then it would most likely have arrived at a different conclusion. The interpretation of what amounts to taking in Victor Mwai contravenes the clear wording of Section 268(5) above. Under this provision, taking can generally be considered unlawful removal without the consent of the possessor or owner. There is a taking where a detached thing is removed from its place and moved away. The carrying away, or the driving away or pushing away, are acts that suffice to amount to “taking”. A reading of Section 268(5) of the Penal Code should have prompted the court in Victor Mwai’s case to uphold the element of “taking,” considering that the property was attached to something else, and this was completely severed. This severance should speak to taking alone and not the intention to deprive, which is dealt with in more detail below. The court should have analysed each element of the crime of theft independently from each other to establish which one existed and which did not exist. 681 [2017] eKLR. 682 (1985) KLR 507. 165 If the approach in Victor Mwai’s case were to be applied in the Etemesi case, then Etemesi would also be found guilty of attempted theft and not stealing. This would have amounted to a misconception of the elements of theft. There is a sense in which the two-contradictory jurisprudence from Kenyan courts can be reconciled as to when a “taking” amounts to an attempt or the actual offence. The moment there is any movement of the thing capable of being stolen from its rightful place to a different place, this amounts to taking. This is easier determined when the movement is complete. The problem arises when the movement is intercepted. Where the movement involves a thing detached, person D should be liable for attempt when caught detaching the thing from its position. Otherwise, where the thing is completely detached, and person D is intercepted moving it away, this amount to a complete act of taking in a theft case. Thus, in Victor Mwai’s case, it would have qualified to be an attempted theft if the accused was to be apprehended while detaching the motor vehicle from its parking. However, having detached the thing from its parking and moving it away suffices to establish the element of taking. In instances where the movement of a thing is intercepted, and the thing does not require detaching, this should always amount to attempted stealing. However, Kenyan courts have believed that where they entertain doubt about whether an offence is completed, it is desirable to charge an accused person with the attempted form.683 2.1.3 Things that are capable of being stolen Section 267 of the Penal Code of Kenya lists the things capable of being stolen. They include: a) “Inanimate things which are movable and which are the property of a person. This excludes immovable or real property, e.g. land and buildings and things attached to them as fixtures. b) But something severed from real property can be the subject of a theft charge, for example removing doors or windows from a house. c) Includes animals: tame animals and wild animals in confinement which are the property of a person. This implies that wild animals in a state or natural liberty are excluded from this category. d) While wild animals in the enjoyment of their natural liberty are not capable of being stolen, their dead bodies are. e) Everything produced by or forming part of the body of an animal capable of being stolen is capable of being stolen. f) Information is capable of being stolen.” 683 Kigen Arap Chemoiwa V R (1962) E.A 684 (SCK). 166 Although this legal provision makes it clear what things are capable of being stolen, controversial arguments have been made concerning whether intangible goods, or electricity or a corpse or even body parts can be stolen. Intangible goods include intellectual property contained in patent, trademarks, and copyrights (intellectual property). In the case of Elizabeth Wambui Wanjiru & Another v Republic 684 , the appellant was convicted of handling stolen property. In the prosecution’s case, the items recovered from the appellants’ business premises contained the trademark “KT”, “ABRA”, and Code no. 100233, 120152 and 100313. The prosecution produced a letter from the Kenya Intellectual Property Institute (KIPI) which indicated that the complainant had reserved the trademark “KT” under Classes 2, 6 and 9 in the name of Kags Trading Company Limited. Notably, this letter by KIPI, produced into evidence, relates to a reservation of the trademark and not an actual registration. The reservation was made four years after the theft from the complainant’s hardware at Industrial Area. The assertion by the prosecution that the complainant had registered the name “KT” as a trademark as of the year 2012 could not, therefore, be upheld. Thus, while intellectual property like trademarks are things capable of being stolen, the evidence in this case did not pass the threshold required to fulfil the offence of theft. Electricity, though intangible, is a thing capable of being stolen. S. 293 of the Penal Code of Kenya provides that ‘any person who fraudulently abstracts or diverts to his use or the use of any other person any mechanical, illuminating or electrical power derived from any machine, apparatus or substance, the property of another person, is guilty of a felony and is liable to imprisonment for five years.’ Fraudulent diversion of electricity would, in this context, fulfil the elements of electricity theft. Concerns about whether a corpse or body parts can be stolen have also been settled. At common law “there is no property in a corpse”685. As such it is not capable of being stolen. 2.1.4 Conversion Conversion can be defined as finding of the complainant’s goods and converting them to the defendant’s use. It is the dealing with goods in a manner inconsistent with the right of the true owner. Of significance is the intention of an accused person to deny owner’s right or to assert a right that is inconsistent with the owner’s right. Conversion is both a civil wrong (a tort) and a crime. Thus, in the case of R v. Burns [1958] EA 142 the court observed that the word “convert” should be given the same meaning in criminal law as in tort. 684 [2020] eKLR. 685 Williams v. Williams 20 Ch. D. 659 (1882). 167 Conversion differs from taking in that there does not have to be any removal of the thing in conversion. An offence can be committed either by merely fraudulent taking or fraudulent conversion. When an accused person unlawfully takes something capable of being stolen and without claim of right (presumably without the owner’s consent) intending to permanently deprive the owner of the thing, this alone is sufficient to find a theft. It becomes conversion when the taker uses the thing or when a person lawfully possesses a thing belonging to someone else wrongfully appropriates it to his use or another person’s use. The case of Sammy Macharia Ruhi & Others v Republic686brings out these distinctions while drawing the difference between “takes” and “converts to”. Under S. 268(3), when a thing stolen is converted, it is immaterial whether it is taken for conversion or whether it is at the time of the conversion in the possession of the person who converts it. It is also immaterial that the person who converts the thing in question is the holder of a power of attorney for the disposition of it or is otherwise authorized to dispose of it. 2.1.5 General and special owner The owner of a thing capable of being stolen may be either the general or special owner. General owner is not defined in the Penal Code. A general owner may be described as someone with the ultimate right or title to the thing. Under English common law, this is the person that has constructive possession of the property, where the person does not have the actual possession of the property but has a legal right to claim its possession.687 A special owner has been defined in S. 269(2) to include any person with a charge or lien over the thing in question or any right arising from or dependent upon holding the possession of the thing in question, e.g. a bailee. A special owner may be described as a possessor, physical possession of the thing. When drafting a charge, the thing stolen is termed as the property of some person (e.g. the property of A), who is generally the owner or possessor. 2.1.6 Mens rea of theft The mens rea aspect of theft is manifested through “fraudulent intent” and “without claim of right.” Both the taking and converting must be fraudulent and without claim of right. S. 268(2) elaborates on what amounts to fraudulent taking and converting without claim of right. Thus, the fraudulent aspect and being without claim of rights are manifestations of an accused person’s intent, which is the mens rea element of the crime. This is covered below. 686 [1985] eKLR. 687 Ellis v Lawson (1987) 33 A Crim R 69. 168 a) Fraudulent intent Fraudulent intent is covered under S. 268(2) of the Penal Code. “A person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say (a) an intent permanently to deprive the general or special owner of the thing of it; (b) an intent to use the thing as a pledge or security; (c) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; (d) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; (e) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner;” In the case of Republic v John William Jones [1966] eKLR, the Kenyan court acknowledged the detailed explanation of what is meant by fraudulently taking or converting property under Kenyan law. In Kenya, an accused person is deemed to have taken or converted property fraudulently if he does so with any of five intents listed above. The intent permanently to deprive the owner of the property is only one of the intentions set forth. In the above case, the accused person had taken money “not only without a claim of right and without the consent of the owner, but contrary to the orders of the owner, and very ample evidence that the respondent intended to use the money ‘at his will’,” even though there was evidence of an intent to repay, the court upheld the acts as amounting to fraudulent taking within the context of the provisions of S. 268(2)(e) and thus a finding of guilty on the accused. This position contradicts the old common law practice, which emphasised that larceny (theft) could not be committed unless, at the time of taking, an accused intended to permanently deprive the owner the thing being stolen.688 This created difficulties where an accused person takes property intending to return it later. The courts in Kenya have sought to distinguish the definition of theft under Kenyan law from this old English law. In the case of Republic v John William Jones689, while dismissing the decision of the trial court, the High Court of Kenya faulted the magistrate for failing to base his decision on the law of Kenya and instead using the definition of stealing in the Larceny Act 1916 (England). By doing so, the High Court argued that the Magistrate Court failed to notice the many differences between that definition and the definition of stealing contained in S. 268 of the Penal Code of Kenya. The court went further to point out that the primary factor of the English definition of stealing is the intent permanently to deprive the owner of his property. According to the court, this led 688 R v Foster (1967). 689 [1966] eKLR. 169 to much argument when the defence of an intention to return money taken was raised in England. Such arguments cannot stand under Kenyan law. The courts observation is in line with S. 268(2)(e) above, where a person “who takes money without a claim of right (and thus presumably without the consent of the owner) is deemed to do so fraudulently if he takes it with an intent to use it at his will, although he may intend afterwards to repay the amount to the owner.”690 Thus, a person who takes money without the owner’s consent cannot plead as a defence the intention of afterwards repaying the money (“borrowing without permission” amounts to theft). Money in this context includes bank drafts, cheques and other similar orders, warrants or requests for money. Similar to taking, conversion must also be fraudulent. In S. 268 above, the law uses the terms “fraudulent taking” and “fraudulent converts” in the alternative. While elaborating on the intents required to establish fraudulent taking and fraudulent conversion, S. 268(2) of the Penal Code provides that “a person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents.” This implies that the criteria for establishing fraudulent taking under S. 268(2), discussed above, will be similar to that used when establishing fraudulent conversion. Indeed, in the case of Republic v John William Jones 691 , the court acknowledged the alternate nature of establishing fraudulent intent in the two circumstances when it applauded the detailed explanation of what is meant by fraudulently taking or converting property. Notably, an act cannot amount to fraudulent taking or converting where the owner consented. The property must be taken or converted without the owner’s consent.692 However, an apparent consent may be vitiated by trick, intimidation or mistake.693 This can also be termed constructive taking. According to S. 268(4), when a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if, at the time of the conversion, the person taking or converting the thing does not know who the owner is and believes on reasonable grounds that the owner cannot be discovered. b) Without claim of right The person stealing (taking or converting property) must do so without a claim of right. This is where an accused person believes that he is lawfully entitled to possess property that is in the possession of another person. "An accused person acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is 690 Republic v John William Jones [1966] eKLR. 691 [1966] eKLR. 692 R v Turvey [1946] 2 All ER 60; R v Davies [1970] VR 27. 693 R v Ilich (1987) 162 CLR 110. 170 doing.”694 However, “a belief that he may acquire a right in the future is not in itself enough.”695 An honest claim of right is a defence to any charge relating to property. Under S. 8 of the Penal Code, an act or omission done in respect to property in exercise of an honest claim of right without intention to defraud relieves a person from criminally responsibility. A person has a claim of right when he honestly asserts what he believes to be a lawful claim, even though it is erroneous in law or fact. R. v Wade (1869)11 Cox CC 549 the accused person was an umbrella mender. He asked X if she had any umbrellas in need of repair. X offered the accused person an umbrella to repair. After the repair, the accused demanded to be paid a higher sum and refused the small amount that X offered. The accused seized the umbrella and took it away. In his defence, the accused denied that he intended to steal the umbrella. He insisted that he merely took it to ensure he was paid. The court found the accused not guilty of theft. According to the court, it did not matter whether anything was due to him if, at the time he took it, he honestly intended to hold it as a security for his alleged lien. The element of a claim of right is further exemplified in the Australian case of Herbert Walden v Peter Baxter Hensler, Australian High Court.696The appellant belonged to the Aboriginal people, who were nomads. The appellant’s father worked for Mr Walden, who owned a station in the area and gave him rations of tea, sugar and flour for his family. When the rations were cut out, the family would eat what was on the land. According to the appellant, they used to take emus, plain turkeys, kangaroos, goannas or snakes and bush tuckers. The appellant used to go hunting with his father. The appellant grew up and continued to go hunting in the bush. According to Aboriginal law, he was not allowed to kill more than was needed for food for his family. On the fateful day, the appellant and his son hunted down a plain adult and chick turkey and took them home to eat. The following day an officer of the Queensland National Parks and Wildlife Service, called on the appellant and seized the carcass of the adult turkey and the live turkey chick. The plain turkeys, it transpired, were protected fauna under the law. The appellant did not know this. Nor did he know that it was illegal for him to take or keep plain turkeys. He believed he was entitled to do what he did, and he had done nothing wrong. The appellant was convicted and fined for possessing fauna without a license. The conviction was confirmed on appeal, prompting a further appeal to the High Court. According to the High Court, the Penal Code did not alter the common law position. It held that wild animals in the wild enjoying their natural liberty were not capable of being stolen. Thus, by law, the appellant was entitled to keep the birds he had taken. The court noted that the Act, that had vested the property of all fauna in the Crown, took away the right of the Aborigines or others from taking or keeping fauna without a licence, an entitlement which the Aborigines might have enjoyed under common law. The court held that the appellant’s keeping of the carcass and chick was consistent with his honest 694 Reg. v. Pollard (1962) QWN 13 Gibbs J. 695 Ibid. 696 https://jade.io/article/67390 (last accessed in April 2024). 171 belief that he was entitled to do so according to Aboriginal law and tradition. It noted that it was sufficient to raise an honest claim of right in the absence of any knowledge that the entitlement claimed had been overridden by the law. To justify its decision the court noted: 26. “To deprive an Aboriginal without his knowledge of his traditional right to hunt for bush tucker for his family on his own country and then to convict and punish him for doing what Aborigines had previously been encouraged to do would be an intolerable injustice. It adds the insult of criminal conviction and punishment to the injustice of expropriation of traditional rights. It can and should be avoided by discharging the appellant absolutely.” The claim of right over fauna by the Aborigines was upheld, notwithstanding what the law provided. 2.2 Offences related to theft 2.2.1 Obtaining by false pretences False pretence is defined under S. 312 of the Penal Code as “any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretence.” The offence of obtaining by false pretence is provided for under S. 313 of the Penal Code as, “any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.” The prohibited conduct entails making a false representation and obtaining anything capable of being stolen. The object capable of being stolen in this instance is obtained with consent of its owner. The mens rea here is acting with intent to defraud. This would include instances where a customer obtains goods on credit with no intention of paying for them. Then he does not commit theft as it is an implied term of the credit that ownership passes to the purchaser on delivery; the customer may, however, be guilty of obtaining by false pretences. 2.2.2 Handling stolen property Under S. 322 of the Penal Code, “a person handles stolen goods if (otherwise than in the course of the stealing) knowing or having reason to believe them to be stolen goods he dishonestly receives or retains the goods, or dishonestly undertakes, or assists in, their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.” 172 There are two aspects to the offence; i) a person may dishonestly receive or retain stolen goods, or ii) the person may dishonestly undertake or assist in the retention, removal, disposal or realisation of stolen goods for the benefit of another. a) The actus reus of handling stolen goods This requires, i) handling, and ii) the goods must already be stolen at the time of handling. Handling of goods otherwise than in the course of stealing means the offence cannot be committed during the act of stealing.697 The exemption prevents the situation where a thief will be considered simultaneously liable for theft and handling stolen property.698 Handling can be committed in several different ways. This could involve receiving, undertaking, retaining, removing, disposing and the realisation of stolen goods or arranging to do any of these things. Receiving requires the person to take possession or control of the property in issue. 699 Undertaking refers to the situation where the defendant on his own initiative sets out to retain, remove, dispose of or realise the stolen goods. 700 Retention means the defendant stores or continues to keep possession of property he knows or discovers to be stolen.701 Removing involves transportation, i.e. moving from one place to another. Disposal covers the instances where there is destroying, dumping, giving away or transforming the stolen goods.702 To realise means to exchange stolen goods for money or other property.703 In Kenya the legal provision on handling stolen property has mainly been anchored on the doctrine of recent possession of stolen property. The court, in Kelvin Nyongesa & 2 Others v Republic704, observed that “the doctrine of recent possession entitles the court to draw an inference of guilt where the accused is found in possession of the recently stolen property in unexplained circumstances.” The Court of Appeal in Eric Otieno Arum v Republic, KSM CA,705 further clarified prove of this doctrine as follows: “In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect; secondly, that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as 697 Forster (2008:156). 698 Clarkson and Keating (2014: 904). 699 McAlhone and Wortley (2016:320). 700 McAlhone and Wortley (2016:321); Forster (2008:156). 701 McAlhone and Wortley (2016:323); Forster (2008:156). 702 McAlhone and Wortley (2016:324). 703 Ibid. 704 Criminal Appeal no. 76 of 2016 eKLR. 705 Criminal Appeal no. 85 of 2005 [2006] eKLR. 173 to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.” b) Mens rea of handling stolen goods The defendant must i) know or believe that the goods are stolen and ii) act dishonestly. Knowing the goods were stolen requires actual knowledge.706 A belief is where no other conclusion can be drawn other than that the goods were stolen.707 Mere suspicion would not suffice.708 The applicable test for acting dishonestly under common law can be considered in R v Ghosh709, it requires that i) the defendant acted dishonestly according to the ordinary standards or reasonable and honest people and ii) that the defendant was aware that what he was doing was dishonest according to those standards. In the circumstances where the defendant receives stolen goods with knowledge that they are stolen but intends to return them to their owner, such a person will not be criminally responsible.710 2.2.3 Assault with intent to steal Assault with intent to steal is covered under S. 298 of the Penal Code. Any person who assaults anyone with intent to steal anything is guilty of a felony and is liable to imprisonment for five years. The requirement of assault implies the use of force or violence or the threat of use of violence. The prohibited conduct is using violence against a person before stealing. Such violence must be carried out with intention to steal a particular object from the victim. This offence overlaps with that of robbery as will be seen here below, making it difficult to distinguish between the two. This offence can be compared to its English equivalent the offence of assault with intent to rob. Assault with intent to rob requires that the defendant commits an assault or battery on his victim, with intention to steal but is unsuccessful in taking the property intended to be stolen.711 2.2.4 Robbery Robbery is essentially an aggravated form of theft. It is provided for under S. 295 of the Penal Code: “Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.” 706 Atwal v Massey [1971] 3 ALL E.R.881 DC. 707 Clarkson and Keating (2014: 906). 708 R v Hall [1985]81 Cr. App. R. 260; also see Clarkson and Keating (2014: 906); McAlhone and Wortley (2016:328); Forster (2008:158). 709 [1982] 2 All E.R. 689 CA. 710 Clarkson and Keating (2014: 906); McAlhone and Wortley (2016:330). 711 McAlhone and Wortley (2016:305). 174 The punishment of robbery is a maximum of 14 years imprisonment.712 a) Actus reus of robbery From the definition above, the acts which comprise the actus reus of robbery can be summarised as follows: • The actus reus of theft or stealing, and • Use of or threat to use violence (at or immediately before or immediately after the time of stealing) This is the position taken by Kenyan courts. For example, in the case of Tyson Mudola & 2 others v Republic713,the court observed that S. 295 of the Penal Code sets out the elements of the offence of robbery to be: (i) “The act of stealing, and (ii) Use of or threat to use actual violence to any person or property immediately before or immediately after stealing intended to obtain or retain the stolen item or prevent or overcome resistance to the stealing.” The act of stealing requires that all elements of theft be present. For the offence of stealing to aggravate to robbery, the only additional element to the actus reus of stealing is the threat or use of violence. For the offence of robbery, the taking must be achieved by violence, fear or intimidation. The prosecution must prove that either the accused used violence before, during or immediately after stealing or the accused put his victim in fear of the use of violence. Point of reflection: Considering the actus reus of robbery, how does one distinguish it from the offence of assault with intent to steal? In both offences there is the requirement of use of force or threatening to use force in order to steal. The only additional and identifiable qualification is that the offence of robbery is punishable even when the defendant uses force immediately after the act of stealing, while for the offence of assault with intent to steal the use of force or threat of it must be before the time of stealing. This distinction is quite minimal and does not justify the wide difference in the statutory punishment provided for the offences. Assault with intent requires a maximum penalty of five years imprisonment, while robbery requires 14 years. Perhaps the distinction lies in the amount of force used. It could be argued that by use of the term violence for the offence of robbery, may require more than minimal force. Thus, where there is a simple push or nudge or tactic to distract the victim, this sought of conduct would rather be considered as sufficient to establish guilt for assault with intent to rob and not for robbery. The other possible and perhaps justifiable distinction would be the consideration that assault with intent to rob applies to cases where the defendant although having battered his victim with intent to steal is unsuccessful in stealing the 712 S. 296 (1) Penal Code. 713 [2019] eKLR. 175 targeted property. The question that this now leaves us with is what conduct would then punishable under attempted robbery? The Kenyan courts have not discussed what kind of force amounts to violence for the offence of robbery, nor do the decisions show whether such violence should be direct or indirect. To consider this issue the English case R. v Dawson714 may present a possible interpretation. In the case the English Court of Appeal held that wrenching a shopping basket from the victim amounted to indirect use of force. The violence can be directed at anyone.715 For example where the defendant decides to rob a shop and demands money from the cashier, while threatening to kill a customer. Activity questions: Question. 1: If D picks V’s pocket by bumping V, is this robbery? Question2: If D causesV to lose his balance and fall during the pick pocket, is this robbery? One would presume that in the definition of robbery is implicit that it includes use of dangerous weapons. However, Kenyan courts have been emphatic that where the prosecution establishes that at the time of the robbery, the offender was armed with an offensive or dangerous weapon, then the offence ceases to be that of simple robbery but one of robbery with violence under S. 296(2) of the Penal Code.716 The Court of Appeal in David Odhiambo & anor v R717noted: “The act of being armed with a dangerous or offensive weapon is one of the elements or ingredients which distinguishes a robbery under Section 296(2) and the one defined under Section 295 of the Penal Code. There are other ingredients or elements under Section 296(2) […] the prosecution must choose and state which of those elements distinguishes the charge from one defined in Section 295.” This implies that the “threat or use of force” in a simple robbery must not be accompanied by an offensive weapon. The moment an offensive weapon is used to threaten or in the use of force, the offence then ceases to be that of robbery, and it aggravates to robbery with violence. b) Mens rea of robbery The mens rea requires the prosecution to prove that i) the defendant intended to steal and ii) the defendant intended to use violence or cause the fear of it. 714 [1976] 64 Cr. App. R. 170. 715 McAlhone and Wortley (2016:303). 716 George Morara Achoki v Republic [2014] eKLR, Criminal Appeal no. 94 of 2011; Reimond Munene Kamau & another v Republic [2018] eKLR, Criminal Appeal no. 101 of 2016; James Maina Wanjira v Republic [2015] eKLR Criminal Appeal no. 30 of 2014; Johana Ndungu v Republic [1996] eKLR, Criminal Appeal no. 116 of 1995. 717 [2005] eKLR, Criminal Appeal no. 5 of 2005. 176 2.2.5 Attempted robbery Section 296(1) of the Penal Code creates the incomplete crime for robbery and its punishment. It provides that anyone who assaults another with intent to steal anything or threatens to use actual violence on anyone or on any property in order to obtain the thing intended to be stolen or to prevent resistance to the thing being stolen is criminally responsible. The maximum punishment is seven years. From the definition of the offence, it would seem that liability for attempt arises when the defendant is already in the course of carrying out the offence of robbery and is interrupted while trying to take the thing intended to be stolen, or before taking off with the thing intended to be stolen. The defendant should have at least already carried out the assault by the time the offence is intercepted. One is forced to question whether this does not equate attempted robbery with offence of assault with intent to steal. 2.2.6 Robbery with violence Robbery with violence is the aggravated form of robbery. The offence is defined under S. 296(2) of the Penal Code as follows: “If the offender is armed with any dangerous or offensive weapon or instrument,or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.” a) The actus reus of robbery with violence From this definition, the actus reus of robbery with violence consists of, Using violence for the purpose of stealing: i) while armed with a dangerous weapon, or ii) in the company of one or more persons, or iii) causing harm or injury In the case of Johana Ndungu vs. Republic718, the court argued: “In order to appreciate properly as to what acts constitute an offence under Section 296(2) of [the PC] one must consider the sub Section in conjunction with Section 295 of the PC. The essential ingredient of robbery under Section 295 is use of or threat to use actual violence against any person or property at or immediately after to further in any manner the act of stealing. Thereafter, the existence of the afore described ingredients constituting robbery are presupposed in the three sets of circumstances prescribed in Section 296(2)”. This position was further underscored in the case of Dima Denge Dima & Others vs. Republic719, where the court observed that the elements of the offence under S. 296(2) of 718 CRA 116/1995. 177 the Penal Code are to be read not conjunctively, but disjunctively. 720 In the case of Mohamed Ali vs. Republic [2013], the court observed that it is the use of the word “or” in the definition under S. 296(2) Penal Code that brings about the sufficiency of proving any one of the above ingredients to establish an offence of robbery with violence.721 b) The mens rea of robbery with violence Like the offence of robbery, the mens rea element of robbery with violence is similar to that of stealing and robbery. Courts usually do not determine the mens rea element of robbery or robbery with violence. Instead, once the offence of stealing is evident, the courts mainly focus on the additional actus reus elements to distinguish whether the offence in question is robbery or robbery with violence. 2.2.7 Attempted robbery with violence Under S. 297(2) of the Penal Code the offence of attempted robbery with violence is defined in exactly the same words as the offence of robbery with violence. This calls to question where the distinction if any lies. It would have been sufficient for the legislature to simply express that an attempt to commit robbery with violence is also punishable. Like the offence of robbery with violence, the attempt of it also has the most serious punishment of the death penalty. Comment: The courts in Kenya have had to grapple with the challenge of distinguishing charges under S. 295 and 296(2) of the Penal Code. In some instances, the prosecution has drafted charges of robbery and robbery with violence using both legal provisions. The overlap in these offences has been noted by the courts. In James Maina Wanjira v Republic [2015] eKLR, the Court of Appeal noted that “there is some grey area between simple robbery and robbery with violence with certain situations that could fall under either.” This prompted the court in Joseph Kaberia Kahinga & 11 others vs. Attorney General722 to declare S. 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code as not meeting “the constitutional threshold of setting out in sufficient precision, distinctively clarifying and differentiating the degrees of aggravation of the offence of robbery and attempted robbery with such particularity as to enable those accused to adequately answer to the charges and prepare their defences.” Thus, necessitating legal reforms. One questions if the offence of robbery with violence was a necessary addition, given that the use of violence is implicit in the offence of robbery. The aggravating circumstances that involve committing the offence in a group or use of dangerous weapons or causing serious injury to another should be considered during sentencing. The creation of the offence of robbery with violence was an instance where parliament 719 Criminal Appeal no. 300 of 2007. 720 Also see Lawrence Chamwanda & Another vs. Republic [2016] eKLR. 721 Also see David Odhiambo & anor v R [2005] eKLR. 722 [2016] eKLR. 178 sought to introduce another sub categorisation of the offence of robbery with the most punitive sentence. One wonders if the creation of the offence of robbery with violence was a necessary solution to distinguish very serious degree of robbery from less serious degree of robbery. This seems to have only created confusion. A way forward could be to consider repealing the offence of robbery with violence and instead introduce sentencing guidelines that recognise the gravity involved in committing robbery in different circumstances. 2.2.8 Housebreaking and burglary The offences of housebreaking and burglary are provided for under S. 304 of the Penal Code: “(1) Any person who (a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or (b) having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years. (2) If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.” The maximum penalty for housebreaking is five years and if the offence is committed at night, i.e. burglary, it is seven years.723 In Anthony Kilonzo Mutuku v Republic724 the court noted that this provision deals with three scenarios. The first scenario in S. 304(1)(a) requires proof that: • the defendant broke into a building, tent or vessel, • such building, tent or vessel must be in use as a human dwelling place, • the entry was with intent to commit a felony. The offence is complete as long as intent is proved even without committing any offence. The second scenario in Section 304(1)(b) requires proof that: • the defendant was already inside the building, tent or vessel used as a human dwelling, • the defendant had an intention to commit a felony and breaks out of the building. The offence is complete without necessarily committing an offence. The last scenario still under Section 304(1)(b) requires proof that • the defendant was already inside the building, tent or vessel used as a human dwelling, 723 S. 305 Penal Code. 724 [2019] eKLR. 179 • the defendant committed a felony therein and then broke out of the dwelling place. For it to be a breaking under S. 303(1), an accused person has to open, unlock, pull, push, lift or use any other means to break into any part of a building, a door, or a window or shutter or cellar flap or other thing intended to close or cover an opening in a building or an opening giving passage from one part of a building to another. What about instances where there is neither breaking nor opening for example, where an accused person gains access through an open door or window? In Kamau Ngatia and Another v. R725, it was held not to be house breaking where the accused found the door open, entered and stole items. It is noteworthy that the accused person was an employee of the applicant and therefore had permission to enter the premises. Although not clarified, by pointing out the relationship between the accused and the complainant, the court seems to be saying that it would have been house breaking had the accused not been an employee and therefore had no prior permission to enter the premises. In Joseph Mburu Kariuki726, the court observed that housebreaking is not restricted to physically breaking into a house for example breaking the door open, it generally applies to instances where a person gets into a house without knowledge and consent of the owner during the day by whatever means. In Albert Juma Mukhwana v Republic727 the court held that the doctrine of recent possession could be used to establish criminal responsibility for this offence. The smallest entry suffices to fulfil an entry. Thus, under S. 303(2) of the Penal Code a person is deemed to enter the building as soon as any part of his body or any part of any instrument used by him is within the building. Under S. 303(3) a person is deemed to have broken into a building where he obtains entrance using any threat or artifice (trick) or by collusion with any person in the building (constructive breaking) or enters any aperture of the building left open for any purpose, but not ordinarily used as a means of entrance. Housebreaking and burglary can only be committed regarding a building, tent or vessel used as a human dwelling. A building used as a human dwelling is not necessarily a dwelling house or a home. Hence, a government rest house might be used as a human dwelling, although it is not a dwelling house. A “dwelling-house” has a limited definition under Section 4 of the Penal Code. This has been defined to include “any building or structure or part of a building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or his servants or any of them, and it is immaterial that it is from time to time uninhabited; […]”. 725 (1987) eKLR. 726 [2008] eKLR Criminal Appeal no. 227 of 2007. 727 [2021] eKLR Criminal Appeal no. 92 of 2019. 180 A building is some structure intended to protect the person dwelling inside it or for the property placed there. Any structure which does not afford any such protection but merely serves as fencing cannot make the place a human dwelling (or house) within the meaning of the Section. The mens rea of housebreaking (or burglary) requires proof that: i) the defendant intended or was reckless as to breaking into the dwelling house and, ii) the defendant had an intent to commit the ulterior offence or felony which was the purpose of his breaking into the house. 2.3 Arson Arson is covered under S. 332 of the Penal Code. A person who wilfully and unlawfully sets fire to the following will be guilty of arson; “(a) any building or structure whatever, whether completed or not; or (b) any vessel, whether completed or not; or (c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel; or (d) a mine, or the workings, fittings or appliances of a mine,” The maximum penalty for arson is imprisonment for life. To act wilfully has been interpreted to mean to act intentionally or recklessly.728 Acting unlawfully means having no lawful excuse. The court in Arthur Muya Muriuki v Republic729 clarified that the essential ingredients of the offence are the setting of fire wilfully and unlawfully. Once the court is satisfied that an accused person wilfully and unlawfully set fire to any prescribed places or objects, then a finding of guilty must follow. Thus, in the present case, where the accused person threatened to kill the complainant and went to her house, broke her windows and poured petrol into the house and lit a matchstick and as flames erupted, the accused was found guilty of arson both by the trial court and the High Court. Under S. 333 of the Penal Code an attempt to commit arson is punishable with up to 14 years imprisonment. 2.4 Malicious damage to property The offence of malicious damage to property is covered under S. 339(1) of the Penal Code 728 Baker, Glanville Williams (2012), p. 650. 729 [2015] eKLR. 181 “Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and is liable, if no other punishment is provided, to imprisonment for five years.” The ingredients of this offence were discussed in the case of Simon Kiama Ndiagui vs. Republic730: “In order to convict the court must be satisfied that, first, some property was destroyed; second, that a person destroyed the property; third that the destruction was wilful and therefore there must be proof of intent; and fourth, the court must also be satisfied that the destruction was unlawful.” While the court merely highlights that the accused person must act with intent acting wilfully would include acting recklessly. The law does not insist on strict proof of property ownership through documents or deeds. The rationale for not tying down the offence of malicious damage to property to proof of ownership of the property was explained in Republic vs. Jacob Mutuma & Another (2018) eKLR: “In my view, it is not difficult to see why the offence is not necessarily tied down to ownership of particular property. It is to prevent wanton destruction of property that may lead to lawlessness and people taking the law into their own hands.” The court in Simon Kiama Ndiagui vs. Republic (2017) eKLR, underscored this position: “I cannot find any suggestion in this provision that ownership of the destroyed property must be established for liability to attach. My take on this issue is that ownership of the property is a relevant but not the defining factor; it may be taken into account amongst other evidence that tends to establish that the offence was committed. It follows that failure to prove ownership is not fatal to the prosecution case and to this extent I agree with the learned counsel for the state.” 2.5 Extortion Section 300 of the Penal Code provides for the offence of extortion as follows: “(1) Any person who, with intent to extort or gain anything from any person (a) accuses or threatens to accuse any person of committing any felony or misdemeanour, or of offering or making any solicitation or threat to any person as an inducement to commit or permit the commission of any felony or misdemeanour; or 730 (2017) eKLR. 182 (b) threatens that any person shall be accused by any other person of any felony or misdemeanour, or of any such act; or (c) knowing the contents of the writing, causes any person to receive any writing containing any such accusation or threat as aforesaid, is guilty of a felony, and if the accusation or threat of accusation is of (i) an offence for which the punishment of death or imprisonment for life may be inflicted; or (ii) any of the offences defined in Chapter XV, or an attempt to commit any of such offences; or (iii) an assault with intent to have carnal knowledge of any person against the order of nature, or an unlawful and indecent assault upon a male person; or (iv) a solicitation or threat offered or made to any person as an inducement to commit or permit the commission of any of the offences aforesaid, the offender is liable to imprisonment for fourteen years; and in any other case the offender is liable to imprisonment for three years.” It is immaterial whether the person accused or threatened to be accusedhas or has not committed the offence or act of which he is accused or threatenedto be accused.731 In the case of Mohammed Mohamud Akida v Republic732, the court simplified the particulars of the offence of extortion of money to require proof of two elements: 1) fraudulent intention to extort or make a gain; and 2) receipt of money from the complainant. The court proceeded to allow the appeal in favour of the accused person as the evidence of all the witnesses only explained the possible underlying unlawful intention to extort money. It did not disclose that the appellant received the alleged sum of money. 2.6 Conclusion The discussion above shows that Kenyan courts do not always specifically discuss each element of the offences which would contribute to a better clarification on the particulars of the offences. There are some offences whose definitions are so similar and overlap, for example the offences of assault with intent to rob, robbery and robbery with violence. This has led to instances where defendants are either faced with wrong charges or too many charges which causes confusion in preparing their defences. This raises the question whether such offences need to be conflated into one offence. This would be an appropriate solution as long as the principles of legality and fair labelling are not violated, with the prohibited conduct being described as accurately as possible. The challenge with this approach is having an over broad offence that fails to reflect the nuances of the situation, the blameworthiness and harm involved in the various conduct covered by the offence. It can be argued that this shortcoming can be countered by having detailed sentencing guidelines reflect the different types of conduct and the seriousness involved in a particular criminal act. 731 Section 300 Penal Code. 732 [2013] eKLR. 183 SECTION 3: CRIMES AGAINST THE COMMUNITY The Penal Code does not expressly provide for a class of crimes termed as crimes against the community, however, this term can be used to consider those crimes which affect the general well-being of the public. The crimes considered here not only affect the individual victims but also have negative consequences for the communities in which they live in. Often the harm caused by these crimes not only affects the individual but also the social fabric of the society. Corruption for example increases the cost of public services, making it difficult for the poor to access such services and reduces funding for public services among other negative effects like undermining trade. Drug trafficking promotes drug abuse which causes a number of health problems and leads to the increase of other crimes carried out to fund drug use. The offence of human trafficking which involves exploiting certain capacity of victims for profit733 is also considered here. Other crimes considered under this category include traffic offences which generally endanger public safety and offences relating to public morality. The offences of corruption, drug trafficking and human trafficking not only affect national interests but can also be classified as transnational crimes because they also could involve organised crime and money laundering which transcends national boundaries. As transnational crimes they prompt the application of principles of accountability for transnational crimes under international law. This chapter does not delve into a detailed analysis of international law or transnational law regulatory rules. Rather, its main focus is on the definitional elements (the actus reus and the mens rea) under the national legal framework, an analysis of how each of these acts amounts to criminal liability, the relevant judicial interpretations attached to it and the challenges associated with the interpretations in Kenyan courts. 3.1 Corruption A key feature of corruption is it involves the misuse of authority for personal gain of some kind.734 In Kenya the Anti-Corruption and Economic Crimes Act (ACECA) (Cap 65, laws of Kenya) governs most corruption-related offences. In addition to the Anti-Corruption and Economic Crimes Act, other statutes that provide for corruption-related offences include the (1) Bribery Act, (2) Proceeds of Crime and Anti-Money Laundering Act, (3) Leadership and Integrity Act and (4) the Public Procurement and Asset Disposal Act. Section 2 of the Anti-Corruption and Economic Crimes Act gives the general definition of corruption to mean any of the following acts: (a) “an offence under any of the provisions of Sections 39, 44, 46 and 47; (b) bribery; (c) fraud; (d) embezzlement or misappropriation of public funds; 733 Boister N., An Introduction Transnational Criminal Law, OUP 2012, p. 39. 734 Boister (2012:88). 184 (e) abuse of office; (f) breach of trust; or (g) an offence involving dishonesty (i) in connection with any tax, rate or impost levied under any Act; or (ii) under any written law relating to the elections of persons to public office;” A number of these acts will be analysed herein bringing out the judicial interpretations attached thereto, and the challenges associated with the interpretations. The offences referred to under (3.1) include bribery, bid rigging, abuse of office and dealing with suspect property. It will be noticed that there are overlaps among the acts defined under (3.1) and those defined respectively under (3.2-3.5). Notably, while some of these acts have received lengthy judicial consideration, some have not, which leads to varying levels of analysis, particularly in relation to judicial practice. More so, in most cases, case law reveals that courts do not ordinarily nuance the mens rea element of these offences. It appears as though the courts will mostly impute the existence of the guilt intention from the actus reus. The fact that an accused person had knowledge of or intended to engage in the prohibited acts suffices to establish the mens rea element. The inchoate crimes of attempt, conspiracy and incitement involving corruption and economic crime are also punishable.735 3.1.1 Bribery The offence of bribery is laid out in Sections 5, 6, 7 and 8 of the Bribery Act, no.47 of 2016. The Bribery Act creates an offence concerning giving and receiving a bribe within the context of a relevant function or activity to which the bribe relates. Under S. 5 it is an offence to give a bribe. This involves a person offering, promising, or giving a financial or other advantage to another person who knows or believes the acceptance of such benefit would constitute the improper performance of a relevant function or activity. The person to whom such advantage is given does not need to be the person directly performing the function or activity concerned.736 It is also irrelevant that the advantage is offered, promised or given by a person directly or through a third party.737 Under S. 6 receiving a bribe is an offence. It involves a person requesting, agreeing to receive or receiving a financial or other advantage intending that as a consequence of it a relevant function or activity shall be performed improperly in favour of the giver of such benefit. In Paul Mwangi Gathongo v R [2015] eKLR738, the court while analysing the offence of soliciting which had similar elements to this provision observed that the essence of this offence was asking ‘for any benefit not legally due in order to do one’s appointed duty.’ 735 S. 47 A, ACECA Cap 65 LoK. 736 Section 5(2), Bribery Act. 737 Ibid. 738 Criminal Appeal no. 206 A of 2010. 185 Under S. 7 a function or an activity is deemed to be relevant if: “(a) it includes (i) any function of a public nature; (ii) any function carried out by a State officer or public officer, pursuant to his or her duties; (iii) any function carried out by a foreign public official, pursuant to his or her duties; (iv) any activity connected with a business; (v) any activity performed in the course of a person’s employment, and (vi) any activity performed by or on behalf of a body of persons whether corporate or otherwise; (b) it meets one or more of the following conditions (i) that the person performing the function or activity is expected to perform it in good faith; (ii) that the person performing the function or activity is expected to perform it impartially; and (iii) that the person performing the function or activity is in a position of trust by virtue of performing it.” Notably, a function or activity is a relevant function or activity even if it is performed in a county or territory outside Kenya.739 Under S. 8 it is an offence to bribe a foreign public official with the intention of influencing that official in the performance of their function. 3.1.2 Bid rigging Section 44 ACECA creates an offence for bid rigging. This offence arises concerning a benefit that is an inducement or reward for: (a) “refraining from submitting a tender, proposal, quotation or bid; (b) withdrawing or changing a tender, proposal, quotation or bid; or (c) submitting a tender, proposal, quotation or bid with a specified price or with any specified inclusions or exclusions.” An offence under this Section arises where a person: (a) “receives or solicits or agrees to receive or solicit a benefit to which this Section applies; or (b) gives or offers or agrees to give or offer a benefit to which this Section applies.” 739 Section 7(2), Bribery Act. 186 3.1.3 Abuse of office Section 46 ACECA creates an offence of abuse of office. A person commits this offence when he “uses his office to improperly confer a benefit on himself or anyone else.”740 In Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR the High Court substantiated the ingredients of this offence as follows: “There are two ingredients of the charge of abuse of office. One, the person must have used a public office to improperly confer something to herself or himself. Second is that the thing conferred must be in the nature of a benefit. […] For instance, a judge or judicial officer may, in the course of proceedings before the court, seek to obtain an improper advantage from one of the parties in order to determine a matter in a particular way. At other times the improper benefit would not be directly related to the performance of her or his judicial duty. However, by its very nature, the offence of abuse of office presupposes that the person is improperly using or misusing his or her public office or status to obtain a benefit. The commission of the offence is intertwined with use, abuse if you like, of the public office. Even when committed outside the ordinary scope of duty, the offence has to be deemed to be official misconduct because it relates to an advantage obtained by virtue of the person’s official, as opposed to personal, capacity.” 3.1.4 Dealing with suspect property Under Section 47 ACECA, a person commits an offence when they deal with property that they believe or have reason to believe “was acquired in the course of or as a result of corrupt conduct.” Dealing with property has been defined to include any of the following circumstances where a person: “(a) holds, receives, conceals or uses the property or causes the property to be used; or (b) enters into a transaction in relation to the property or causes such transaction to be entered into. (3) In this Section, “corrupt conduct” means (a) conduct constituting corruption or economic crime; or (b) conduct that took place before this Act came into operation and which (i) at the time, constituted an offence; and (ii) if it had taken place after this Act came into operation, would have constituted corruption or economic crime.” 740 Section 46 ACECA Cap 65 LoK. 187 To prove the offence under S. 47, the court inRepublic v Alfred Mureithi & Another [2018] eKLR741observed that the prosecution must establish, i)“the dealing” as provided in S. 47(2) thereof and, ii)the belief by the accused that the property was acquired in the course of or as a result of corrupt conduct. While drawing analogies from the offence of handling, the court further observed that before proving the aspect of belief the prosecution must first prove the underlying corrupt conduct from which the property was acquired. To believe or ‘have reason to believe’ would mean actual knowledge. It requires that no other conclusion can be drawn other than that the property in issue was acquired in the course of a corrupt conduct. 3.1.5 Conflict of interest Section 42 ACECA creates an offence of conflict of interest. Under this Section, a person is criminally liable if while acting as an agent and having ‘a direct or indirect private interest in a decision that his principal is to make’, he fails to disclose such interest knowing or having reason to believe his principal is unaware of such interest, and votes or participates in the proceedings of his principal in relation to the decision. An agent under the Act is any person who “in any capacity whether in the public or private sector, is employed or acts for or on behalf of another person.” While a principal “means a person, whether in the public or private sector, who employs an agent or for whom or on whose behalf an agent acts.”742 However, it does not amount to a conflict of interest where a private body authorises its agent to vote or participate in the proceedings of the private body.743 It is also an offence of conflict of interest where “an agent of a public body who knowingly acquires or holds, directly or indirectly, a private interest in any contract, agreement or investment emanating from or connected with the public body.” 744 However, this will not apply “to an employment contract of the agent, or a related or similar contract or agreement or to any prescribed contract, agreement or investment.”745 In Kenya Anti-Corruption Commission v Stanley Mombo Amuti [2017] eKLR, the defendant, Stanley Mombo, received money from two merchants dealing with a public entity where he was the Finance Manager. The High Court held these acts to amount to conflict of interest: “First, the Appellant did not deny that these two were merchants who had supplied goods and services to the corporation for which the Defendant worked as the Finance Manager. The Defendant told the court that he was unaware of these facts, but that even if it were true it would not preclude him from doing his 741 Criminal Appeal no. 31 of 2017. 742 S. 38 ACECA Cap 65 LoK. 743 Section 42(2) ACECA Cap 65 LoK. 744 Section 42(3) ACECA Cap 65 LoK. 745 Section 42(4) ACECA Cap 65 LoK. 188 own private business with them. Such a relationship is obviously one that would give rise to conflict of interest where persons with whom the Defendant was carrying on private business, were also the ones being awarded the corporation tenders and he had not disclosed such interest.” 3.1.6 Fraud and breaches of trust by persons employed in public service S. 45 ACECA makes it an offence to fraudulently or unlawfully carry out certain acts in respect to public property. These include: • Acquiring public property or public service or benefit • Mortgaging, charging or disposing of public property • Damaging public property including causing a computer or other electronic machinery to perform a function that causes loss or otherwise adverse effects on any public revenue or service • Failing to pay taxes, charges or levies payable to any public body or obtaining any exemption, reduction or abatement from payment of any such taxes, levies or charges An officer or person concerned with the administration, custody, management, receipt or use of any part of public revenue or property shall be guilty of an offence if they fraudulently make payment or excessive payment for sub-standard or defective goods, goods not supplied or not supplied in full or services not rendered or poorly rendered.746 This offence also applies when one wilfully or carelessly fails to comply with any law or guidelines relating to the procurement, allocation, sale or disposal of property, tendering of contracts management of funds or incurring of expenditure or engaging in a project without prior planning. 747 To act wilfully requires that one acts with intention or recklessly. Acting carelessly recognises that negligence is also a sufficient form of guilty mind for this latter aspect of the offence. Under Section 127 of the Penal Code, persons employed in public service can be held criminally liable for fraud or breaches of trust when, in the course of discharging their duties of office, they commit any fraud or breach of trust affecting the public. It is immaterial that such acts of fraud or breach of trust would have been criminal or not if committed against a private person. It is significant to note that criminal liability for these offences can also arise concerning their incomplete nature. 746 S. 45(2) ACECA Cap 65 LoK. 747 S. 45(2)(b) ACECA Cap 65 LoK. 189 3.1.7 Investigating and punishing corruption offences The Act gives the Ethics and Anti-Corruption Commission the mandate to investigate corruption. 748 The investigation and trial procedures of corruption-related offences provided for under the Anti-Corruption and Economic Crimes Act supersede those provided for in the Criminal Procedure Code and any other written law.749 Upon finalising an investigation, the Ethics and Anti-Corruption Commission is supposed to submit an investigation report to the Director of Public Prosecutions recommending whether a person should be charged with an economic crime. 750 In Nicholas Muriuki Kangangi v AttorneyGeneral751 the Court of Appeal held that the defunct Kenya Anti-Corruption Authority was required to investigate corruption and then submit a report to the Attorney General with a recommendation on whether to charge. The Attorney General then had prosecutorial powers that have since been allocated to the Director of Public Prosecutions.752 Corruption-related offences are tried by a special magistrate appointed by the Chief Justice in a notice in the Gazette.753 The special magistrate is required to hear the matter, as far as possible, daily until its conclusion.754 A special magistrate may give a full pardon to an accused on condition that he will fully disclose the circumstances that are related to his offence.755 A suspect who accepts the full pardon and testifies before the court cannot be tried regarding the offence for which he has been pardoned.756 A person who is found guilty of corruption and economic crimes is liable to pay compensation757 to the victim and also repay any improperly acquired benefits.758 A court that convicts an offender of corruption and economic crimes must order him to pay compensation, return the property improperly acquired or pay an equivalent of the value of the property that had been improperly acquired.759 In R v John Koyi Waluke & Another [2021] eKLR, after finding that the accused persons had falsified receipts and, through their company Erad Supplies and General Contracts Limited, fraudulently obtained public property from the National Cereal and Produce Board, the court ordered the accused persons to pay back the improperly acquired benefits. The High Court has 748 Section 23(3), Anti-Corruption and Economic Crimes Act. 749 The Judiciary Criminal Procedure Bench Book 2018, Chapter Six: Special Procedures no. 51. 750 Section 35, Anti-Corruption and Economic Crimes Act. 751 [2011] eKLR Civil Appeal no. 331 of 2010. 752 Article 157, the Constitution of Kenya 2010. 753 Section 3, Anti-Corruption and Economic Crimes Act. 754 Section 4(4), Anti-Corruption and Economic Crimes Act. 755 Section 5(1), Anti-Corruption and Economic Crimes Act. 756 Ibid. 757 Section 51, Anti-Corruption and Economic Crimes Act. 758 Section 52, Anti-Corruption and Economic Crimes Act. 759 Section 54, Anti-Corruption and Economic Crimes Act. 190 special jurisdiction to entertain civil law applications for the forfeiture of unexplained assets760 and preservation of property suspected to be proceeds of corruption.761 In addition to these statutory obligations, it is significant to note that Kenya is also under an international treaty obligation to proscribe and punish corruption-related offences. Kenya is a state party to the United Nations Convention Against Corruption.762 The United Nations Convention Against Corruption calls on its state parties to criminalize and enforce certain acts related to corruption.763 The transboundary nature of corruption means courts may be called upon during trials to apply the Mutual Legal Assistance Act 2011, extradition Acts, international instruments and principles of international law.764 3.2 Drug trafficking The rationale of drug trafficking is to curb or control the illicit use of or the abuse of drugs. A number of treaty regimes have been adopted obligating member states to control illicit drug supply and abuse or use within their territories and to coordinate the efforts globally.765 Key among these treaties include 1961 Single Convention of Narcotic Drugs and its 1972 Protocol, 1971 Convention on Psychotropic Substances and the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Kenya has acceded to all these conventions. Section 2 of the Narcotic Drugs and Psychotropic Substances (Control) Act of Kenya 1994 defines trafficking to mean the ‘importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery or distribution by any person of a narcotic drug or psychotropic substance or any substance represented or held out by such person to be a narcotic drug or psychotropic substance’ or making of any offer in respect thereof.766In Gabriel Ojiambo Nambesi v Republic767, the Court of Appeal, when addressing what constitutes the offence of trafficking in narcotics, observed that the term trafficking embraces various dealings with narcotic substances and held that the charge sheet needed to specify clearly the conduct of an accused person which constitutes trafficking and the same needs to be proved by evidence during trial. In Thomas Mutune v Republic768 the court held that from the evidence adduced, it was apparent that the appellant was trafficking the psychotropic substance. The appellant had contended in his submissions that the act of conveying the said drugs was not established by the prosecution. The court found that the appellant was apprehended while carrying a psychotropic substance hidden in his socks. He had concealed the same inside his socks on his legs. He was about to board a plane to Kuala Lumpur, Malaysia. The circumstance 760 Section 55, Anti-Corruption and Economic Crimes Act. 761 Section 56, Anti-Corruption and Economic Crimes Act. 762 Kenya ratified the treaty on 9 December 2003, https://www.unodc.org/unodc/en/corruption/ratification-status.html (last accessed in April 2024). 763 Art 15, 16, 17, 18, 19, 20. 764 The Judiciary Criminal Procedure Bench Book 2018, Chapter Six: Special procedures no. 60. 765 Boister (2012:50). 766 Section 2, Narcotic Drugs and Psychotropic Substances (Control) Act 1994. 767 [2007] eKLR Criminal Appeal no. 193 of 2005. 768 [2020] eKLR Criminal Appeal no. 126 of 2019. 191 under which the appellant was found in possession of the narcotic drugs pointed to the fact that he was trafficking the said narcotic drugs from Kenya to Malaysia. He was doing so to benefit financially from the delivery of the said psychotropic substance. The court held that the prosecution had established that the appellant trafficked in the said psychotropic substance. During the trial, a sample of the substance and an analyst’s certificate are supposed to be produced as evidence. The production of exhibits in court should comply with the Act.769 The Act prescribes a penalty of up to 5 years where the person was in possession of the drugs for personal use or a fine of not more than Kshs. 100,000.770 The penalty in trafficking varies depending on the amount of narcotic drugs that the accused person had in his possession.771 The monetary punishment ranges from between Kshs. 30 million to 50 million or three times the market value of the psychotropic substance. The imprisonment sentence can be up to 30 or 50 years. This kind of punishment makes drug valuation to be an important factor in sentencing. The value of these drugs will affect the sentence to be meted out to the accused and not the guilt of the accused person as to the charges of trafficking in narcotic drugs. The Court of Appeal in Kabibi Kalume Katsui v Republic772 emphasised the significance of the valuation report. The Court of Appeal in Caroline Auma Majabu v Republic 773 underscored the discretionary nature of sentencing under the Narcotic Drugs and Psychotropic Substances Control Act noting that the punishment in the Act merely set out the likely maximum sentence and was not mandatory, allowing the trial court to pronounce a sentence it deemed appropriate in the circumstances. 3.3 Human trafficking The nature of human trafficking is it that involves persons (traffickers) who exploit certain capacities of the victim, usually sexual or labour services, for profit.774 Coercion or deception is used to move the victim from their home to the place of demand.775 Trafficking of persons in Kenya is governed by the Counter Trafficking in Persons Act of 2010. A person commits the offence of trafficking in persons when the person recruits, transports, transfers, harbours or receives another person for exploitation using threat or use of force, abduction, deception, fraud, gives payments or benefits to obtain the consent of the victim of trafficking or gives or receives payments or benefits to obtain the consent of a person having control over another person.776 The consent of a 769 Section 74A, Narcotic Drugs and Psychotropic Substances (Control) Act 1994. 770 Section 3 Narcotic Drugs and Psychotropic Substances (Control) Act 1994. 771 Section 4 Narcotic Drugs and Psychotropic Substances (Control) Act 1994. 772 [2015] eKLR Criminal Appeal no. 90 of 2014. 773 [2014] eKLR Criminal Appeal no. 65 of 2014. 774 Boister (2012:39). 775 Ibid. 776 Section 3, Counter Trafficking in Persons Act 2010. 192 victim of trafficking in persons is irrelevant when the above-stated means have been used.777 Thus, for an offence of human trafficking to be established, you must prove: Ø an action – recruiting, transporting, transferring, harbouring or receiving another person, Ø carried out by a particular means-threatening or using force, abduction, deception, fraud, abuse of power or position of vulnerability, giving payments or benefits to obtain the consent of the victim of trafficking or giving or receiving payments or benefits to obtain the consent of a person having control over another person, Ø and for the purpose of exploitation – exploitation includes keeping a person in a state of slavery, involuntary servitude, forcible or fraudulent use of any human being to take part in armed conflict, forced labour, child labour, sexual exploitation, child marriage, forced marriage and forcible or fraudulent use of any human being for removal of organs or body parts.778 The nature of these acts would require the accused person to act with intention or to have knowledge of the relevant factors. Trafficking may also be committed internally, within Kenyan borders, or internationally, beyond Kenyan borders. 779 A person found guilty of trafficking in persons for exploitation is liable to a jail term of up to 30 years or a fine of up to 30 million shillings or both. A person who aids, finances, controls or abets the crime of trafficking in persons is liable to the same punishment and, upon subsequent conviction, to imprisonment for life.780 In the case of Geoffrey Mutemi Manzi v Republic781, the court observed that it was sufficient to prove that the appellant committed at least one of the constituent acts of human trafficking. More so, the offence of trafficking does not require actual exploitation to take place. What was required was a manifestation of an intention to exploit the victims. 3.4 Traffic offences The Traffic Act covers traffic offences (chapter 403 of 2013, revised 2015). In this Section, we will focus on the most prosecuted traffic offences. 777 Ibid. 778 Section 2, Counter Trafficking in Persons Act 2010. 779 Section 3(4), Counter-Trafficking in Persons Act 2010. 780 Ibid. 781 [2021] eKLR Criminal Appeal no. 39 of 2020. 193 3.4.1 Driving under influence of drink Any person commits the offence of driving under the influence of drink when they either attempt or drive on a road or other public place while under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle.782 If convicted the accused person can be fined, sent to prison or disqualified from holding or obtaining a license.783 The prosecution would need to prove: • the defendant • was driving or attempted to drive a motor vehicle, • on a road or other public place • while under the influence of a drug or alcohol and • was incapable of properly controlling the vehicle. Following its own earlier decision in Yusuf v R, (1970) the court, in George Wambugu Thumbi v Republic [2019] eKLR, emphasised that “[m]erely having alcohol in your system is not an offence. The offence crystallizes when you cannot control the vehicle you are driving. Those are the words of S. 44(1).” The essence of this offence is therefore to penalise the effect of alcohol consumption or use of illegal drugs on a person’s driving. The question that may be asked is at what point and how can it be determined that the defendant was not in control of the vehicle? The current structure of this offence leaves room for much uncertainty and arbitrary enforcement. A more certain position would be to penalise any instance of driving under the influence of alcohol without any additional qualifications. Alcohol is generally known to impair a person’s capacity of reasoning, judgment and foreseeing consequences of their action. This later position is reflected in the offence that prohibits drinking intoxicating liquor when driving or in charge of or during any period of duty in connection with a public service vehicle.784 In this case the mere fact of having consumed alcohol and being in charge of a public service vehicle without more is sufficient to establish criminal responsibility. A further step would be to introduce legislation that prohibits driving while having a certain amount of concentration of alcohol in the blood. This way it would be sufficient to prove that the defendant had a certain amount of alcohol concentration in the blood which exceeded the prescribed limit. 3.4.2 Driving recklessly or negligently Under Section 47(1) of the Traffic Act a person “who drives a vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having due regard to all circumstances of the case, including the nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be 782 Section 44, Traffic Act. 783 Ibid. 784 Section 45(1), Traffic Act. 194 expected to be on the road”, is liable for an offence. Upon conviction such a person may be fined, sentenced to imprisonment or have their driving licence cancelled. The essence of the offence is to be driving recklessly or at a speed or in a manner that is dangerous to the public. Acting recklessly implies to take an unjustified risk. The courts have held that recklessly concerns an objective test.785The defendant is thus liable even if he did not appreciate or foresee the relevant risk of his conduct as long as the risk would have been obvious to the reasonable man. Although this is the test recognised by the courts, at the point of sentencing a harsher penalty is given to those who are considered to have appreciated the relevant risk.786 This means a subjective test is considered for purposes of determining the gravity of punishment. In S. 49 of the Traffic Act to drive a “motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road” is an offence. Driving without due care and attention implies that one is driving negligently. This requires that one is driving below the standards expected of a reasonable or prudent man. The test to establish fault in this case would also be an objective test. The maximum punishment of imprisonment for this offence is one year, unlike the two years for driving recklessly. This implies a lesser degree of fault is required to establish criminal responsibility in this case. It is also an offence to drive on a pavement or a pedestrian walkway in order to avoid traffic.787 3.4.3 Causing death by dangerous driving S. 46 of the Traffic Act creates the offence of causing death by driving or obstruction. A person ‘who causes the death of another by driving a motor vehicle on a road recklessly or at a speed or in a manner which is dangerous to the public, or by leaving any vehicle on a road in such a position or manner or in such a condition as to be dangerous to the public, having regard to all circumstances of the case, including nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road’, is guilty of an offence. The courts have held that evidence must disclose a dangerous situation and the driver must be shown to be guilty of a departure from the normal standard of driving which would be expected of a reasonable prudent driver.788 In Kitsao vs. Republic789 the Court of Appeal held that there must be a situation which, viewed objectively, was dangerous, and some fault on the part of the driver causing that situation to justify a conviction of the offence of causing death by dangerous driving. Therefore, the question is not just whether or not there was a dangerous situation, but whether the appellant also played a 785 Bernard Wambua Kuu v R [2021] eKLR; Timothy Orwenyo Missiani v R [1979] KLR 285. 786 See discussion in Part 2 Section 2.4.2. 787 Traffic Act, S. 45A. 788 Ngure v Republic [2003] E.A. 789 [1975]. 195 part in causing the situation to be dangerous. In Kitsao’s case, the appeal was allowed because, the prosecution could not prove the appellant drove the vehicle in a dangerous manner or that it was the fault of the appellant that caused the accident. As for criminal responsibility arising from leaving a motor vehicle that dangerously obstructs in the road, an inference can be drawn to a similar circumstance in which a defendant may be liable for commission by omission. This occurs in the instance where a defendant who creates a dangerous situation endangering others has an obligation to take steps to prevent it and failing to do so results in criminal responsibility should anyone suffer harm.790 3.4.4 Speeding To drive or being an owner or being in charge of a vehicle cause or permit any person to drive a vehicle on a road at a speed greater than that prescribed as the maximum speed for that class of vehicle is an offence.791 Driving at a speed exceeding fifty kilometres per hour on any road within the boundaries of any trading centre, township, municipality or township is also punishable.792 The prosecution would need to prove: • the defendant, • drove a motor vehicle, • on a road, • exceeding the limit imposed by the relevant Section. 3.5 Offences against morality The Penal Code provides for several offences against morality. 3.5.1 Defilement of idiots or imbeciles Under S. 146 of the Penal Code, it is an offence to have or attempt to have an unlawful carnal connection with a person knowing at the time that the person was an idiot or imbecile. In the case of Nzioka Kilonzo v Republic793, the court substantiated the constituent elements of this offence: “The ingredients of the offence therefore are firstly that the victim is an idiot or imbecile, secondly, that the accused had knowledge of this fact at the time of commission of the offence, and thirdly, that the accused had or attempted to have carnal knowledge with the victim while so knowing.” 790 See the discussion in Part 2 Section 1.3.2 e). 791 Section 42(1) Traffic Act. 792 Section 42(3) Traffic Act. 793 [2017] eKLR Criminal Appeal 8 of 2016. 196 The Court of Appeal in the above case allowed the appeal and quashed the conviction because there was no evidence demonstrating that the accused person knew his victim was an imbecile. It is also important that the prosecution establishes the imbecile or idiot status of the victim. The Black’s Law Dictionary defines the word imbecile to be “a person afflicted with severe mental retardation.” This is “a medical condition and not a situation that can be presumed. It must be shown by clear medical evidence that such a condition is present and afflicts the complainant.”794 3.5.2 Detention of females for immoral purposes It is an offence to detain a person against their will in any premises intending to have an unlawful sexual connection with such a person.795 According to Section 151 of the Penal Code: “(1) Any person who detains any other person against his or her will (a) in or upon any premises with intent that he or she may have unlawful sexual connection with any person, whether any particular person or generally; or (b) in any brothel, is guilty of a felony.” Thus, the elements of detention and the accused person’s intent of unlawful sexual connection with the complainant must be established. The latter can be established through factual evidence and medical evidence.796 3.5.3 Persons living on earnings of prostitution or soliciting It is an offence to live on the earnings of prostitution knowingly or to go to a public place to persistently solicit for immoral purposes.797 This offence applies to both males and females. It is also an offence to, gain, exercise control, direction or influence over the movements of a prostitute in a manner to show that you are aiding, abetting or compelling her prostitution.798 3.5.4 Attempts to procure abortion A person who, with intent to procure a miscarriage, unlawfully administers or causes a woman to take any poison or noxious thing or uses any force or whatever means is guilty of a felony.799Any woman who, being with child, with intent to procure her miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses any force of 794 Patrick Barasa Wawire v Republic [2016] eKLR; Justus Mwangangi Nzioka vs Republic [2008] eKLR. 795 Section 151, Penal Code. 796 FOO v Republic [2020] eKLR. 797 Section 153 & 154, Penal Code. 798 Section 154, Penal Code. 799 Section 158, Penal Code. 197 any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her is guilty of a felony.800 However, the Constitution permits abortion where in the opinion of a trained health professional, there is a need for emergency treatment, or the life and health of the mother is in danger.801 It is also an offence to supply drugs or instruments of abortion.802 In PAK & Another v Attorney General & 3 Others,803the petitioners contended that Sections 158, 159 and 160 of the Penal Code were unconstitutional because they outlaw abortion without due regard to the exceptions under Article 26(4). The court held that abortion performed by a licensed medical practitioner in emergency to protect the mother’s life is not punishable. The provisions in the Penal Code aim at complete limitation. For abortion to be unlawful it must breach the constitutional threshold in Article 26(4). It affirmed that Sections 158, 159 and 160 of the Penal Code are not inconsistent with the Constitution. 3.5.5 Unnatural offences It is an offence to: have carnal knowledge of any person against the order of nature, have carnal knowledge of an animal or to permit a male person to have carnal knowledge of him/her against the order of nature.804 A man who commits an act of gross indecency with another male person or procures another male person to procure any act of gross indecency with him or attempts to procure the commission of any such act by any male person with himself or with another male person whether in public or in private commits an offence.805 3.6 Conclusion While the nature of these offences obviously evokes public concern such as those of corruption, drug trafficking and traffic offences, the relevance of certain other offences, like offences against morality, remains questionable. The changing attitude of the public towards certain private behaviour calls for a reflection on whether certain offences such as those classified as unnatural offences should be considered as punishable crimes. A general overview of the offences shows a need for the courts to nuance the mens rea element of these offences and not to always impute the existence of mens rea from the actus reus. 800 Section 159, Penal Code. 801 Article 26(4) of the Constitution of Kenya 2010. 802 Section 160, Penal Code. 803 [2022] 804 Section 162, Penal Code. 805 Section 165, Penal Code. 198 SECTION 4: CRIMES AGAINST THE STATE AND ADMINISTRATION OF JUSTICE The offences against the state discussed in this chapter are treason and prohibited publications. These offences prohibit conduct that aims to destabilise the peaceful order of the state. The offences against the administration of justice are those which are aimed at defeating justice by bringing the authority of courts into disrepute or obstructing courts and other relevant institutions from discharging their duties. 4.1 Treason S.40 of the Penal Code provides for the offence of treason. Under S. 40(1) of the Penal Code, a person owing allegiance to Kenya who ‘compasses, imagines, invents, devises or intends’ the death, maiming or wounding or imprisonment or restraining of the president, or deposing by unlawful means of the president, or overthrowing by unlawful means of the government and expresses such ‘compassing, imaginations, inventions, devices, or intentions by publishing, printing or writing or by any overt act or deed’ is liable for treason. S. 40(2) makes one liable for treason if he owes allegiance to Kenya and wages war against the republic of Kenya or supports and gives aid to an enemy of Kenya or instigates any person to invade Kenya. Concealment of treason is also punishable under S. 42 of the Penal Code. Under this provision, a person who becomes an accessory after the fact of treason or who knows that another intends to commit treason fails to give such information to the Attorney General, an administrative officer, police officer or use other reasonable means to prevent the offence is guilty of misprision of treason. 4.1.1 Actus reus A person needs to owe allegiance to Kenya. This refers to persons enjoying the protection of the Republic of Kenya.806 This could include citizens of Kenya, persons who have sworn oath of allegiance to Kenya, also persons who are domiciled and resident in Kenya.807 It does not include foreign diplomats residing within the country.808 Acts constituting treason include imagining, devising or intending the death, wounding, imprisonment or overthrowing by unlawful means of the president. Such imaginations, intentions or devices must be expressed by some overt act such as in printing, writing, or any act. Waging war against the Republic or aiding an enemy of Kenya is also treason. 4.1.2 Mens rea Given the nature of the prohibited conduct it is likely that only intention suffices. 806 K. Oyier, Criminal Prosecutions and Essence of Criminal Offences in Kenya, (Law Africa 2018), p. 243. 807 Kemp G (ed), Criminal Law in South Africa, 3rd edn (OUP 2015, South Africa), p. 518; K. Oyier, Criminal Prosecutions and Essence of Criminal Offences in Kenya, (Law Africa 2018), p. 243. 808 Kemp G (ed), Criminal Law in South Africa, 3rd edn (OUP 2015, South Africa), p. 519. 199 4.2 Prohibited publications S. 52 of the Penal Code gives the Minister power upon reasonable grounds and in the interest of ‘public order, health or morals, the security of Kenya’ and on grounds reasonably justifiable in a democratic society to prohibit the importation of any publication or declare any publication to be a prohibited publication. The provision also establishes a board that constitutes, among others, the Attorney General and the Director of Public Prosecutions, whose role is to review publications prohibited under this Section and advise the Minister whether the prohibition should be lifted and generally advise the Minister on the exercise of his powers under this provision. A person who “prints, makes, imports, publishes, sells supplies, offers for sale or supply, distributes, reproduces or has in his possession or under his control any prohibited publication is guilty of an offence” and liable to imprisonment for up to three years.809 It is presumed that such a person was aware of the nature and contents of such publication unless he can prove to the court that he was unaware of the nature and contents and had no reasonable cause to believe the publication was prohibited.810 Alarming publications are also prohibited under S. 66 of the Penal Code. Such statements involve false statements, rumours or reports likely to cause fear or alarm or disturb public peace. S. 66 of the Penal Code further provides for prohibited publications and broadcasts. The provision makes one criminally liable for publishing or broadcasting or causing “to be published or distributed through print, digital or electronic means insulting, threatening, or inciting material, or images of dead or injured persons which are likely to cause fear and alarm to the general public or disturb public peace”. It also makes it criminal to publish or broadcast any information that undermines “investigations or security operations by the National Police Service or the Kenya Defence Forces”. The provision further recognises that the freedom of the media provided under the Constitution is limited under this Section when it involves “the publication or distribution of material likely to cause public alarm, incitement to violence or disturb public peace”. 4.3 Contempt of court S. 5 of the Judicature Act provides that the High Court and Court of Appeal in Kenya have powers as the High Court of England to punish contempt of court. This power extends to also upholding the dignity and authority of subordinate courts. Although the Contempt of Court Act no. 4 of 2016 initially repealed this provision, the Act has since been declared invalid811, and the provision is still relevant when dealing with matters of 809 Section 53(1) Penal Code. 810 Section 53(2). 811Constitutional Petition no. 87 of 2017 Kenya Human Rights Commission v Attorney General and Another [2018] eKLR, the Act was declared unconstitutional and invalid for lack of public participation. 200 contempt of court before the courts in Kenya. The court confirmed this position in Samuel M. N. Njeru and Others v National Land Commission & 2 Others [2020] eKLR, Miscellaneous Civil Application no. 443 of 2017. In this case, the applicants had filed contempt of court proceedings against the respondent, who had failed to comply with court orders compelling the respondent to pay a certain amount of money to the applicant. The court confirmed that the applicable provision for contempt of court proceedings was anchored in S. 5 of the Judicature Act. The court acknowledged that the effect of this provision is that Kenyan courts look to English law when it comes to dealing with contempt of court proceedings.812 The Supreme Court of Kenya is also bestowed with the mandate over contempt of court under Section 28 of the Supreme Court Act. Another relevant provision regarding contempt of court is S. 121 of the Penal Code. It refers to offences relating to judicial proceedings. The offences include: a. Engaging in disrespectful speech or behaviour within the premises where any judicial proceedings occur. b. Failing to attend judicial proceedings upon being called to do so or having attended refusing to be sworn or affirmed or refusing to give evidence. c. Causing an obstruction or disturbance in the course of judicial proceedings. d. While a judicial proceeding is pending, making any speech or writing a misrepresentation intended to prejudice a party to the proceeding or calculated to lower the authority of any person presiding over the proceedings. e. Publishing a report on the evidence concerning the proceedings that have been directed to be held private. f. Wrongfully attempting to influence witnesses in a judicial proceeding. g. Dismissing a servant for giving evidence in judicial proceedings on a party's behalf. h. Wrongfully taking possession of land from a person who recently got the title of the land from a court order. i. Committing any other act that intentionally disrespects any judicial proceedings or persons taking part in the judicial proceedings. The underlying conduct punished in contempt of court proceedings undermines the courts’ authority or brings them into disrepute and disrespect by scandalizing the courts and obstructing them from discharging their duties. 813 It takes many forms and constitutes any conduct that violates the court’s dignity, reputation or authority, with its main form being the intentional disobedience of court orders. The courts have noted that intentionally disobeying court orders is a criminal offence, describing the proceedings by a private person seeking punishment for contempt of court as civil 812 Samuel M. N. Njeru and Others v National Land Commission & 2 Others [2020] eKLR, para. 23. 813 Samuel M. N. Njeru and Others v National Land Commission & 2 Others [2020] eKLR, para. 32. 201 proceedings that evoke criminal sanctions.814 While the litigant has a private interest in securing compliance with the court order, the court endeavours to enforce compliance because of the broader public interest of ensuring court orders are obeyed.815 The courts have observed that the court’s power to punish contempt of court was essential for courts to ensure compliance with their judgments. Such power ensures the courts can uphold the rule of law, authority and dignity of the courts.816This was set out in Sheila Cassatt Issenburg and Anor v Anthony Macharia Kinyanjui 817: “The reason why courts punish contempt is to uphold the dignity and authority of the court, ensure compliance with directions of the court, observance and respect of due process of law, preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice.” 4.3.1 Actus reus Contempt of court exists both in civil and criminal forms.818 Its civil form involves breaching or failing to comply with a judgment, court order, or undertaking. 819 To succeed in civil contempt proceedings, it must be shown:820 i) The respondent/accused person disobeyed the terms of the court order; ii) The respondent knew of the court order in issue; iii) The respondent failed to comply with the terms of the order. Its criminal form involves assaulting, intimidating, or wilfully insulting a judicial officer during proceedings, wilfully interrupting or obstructing proceedings, or disobeying an order or directions of the court during the proceedings. 821 It could also include disparaging remarks calculated to lower the court’s dignity in pleadings or during submissions before the court.822 The contempt may be in the face of the court, which includes assaulting persons during proceedings in court, for example, the witnesses, counsels or the presiding officer; using language or engaging in behaviour that is insulting to the presiding officer or other participants like counsel; interrupting court proceedings; a witness refusing to answer 814 Samuel M. N. Njeru and Others v National Land Commission & 2 Others [2020] eKLR, para. 37; Sheila Cassatt Issenburg and Anor v Anthony Macharia Kinyanjui [2021] eKLR, para. 51. 815 Samuel M. N. Njeru and Others v National Land Commission & 2 Others [2020] eKLR, para. 37. 816 Constitutional Petition no. 87 of 2017 Kenya Human Rights Commission v Attorney General and Another [2018] eKLR, para. 60; Petition no. 39 of 2018 R v Ahmad Abolfathi Mohammed & Anor [2019] eKLR, para. 28; Samuel M. N. Njeru and Others v National Land Commission & 2 Others [2020] eKLR, para. 33. 817 [2021] eKLR, Civil Suit no. 19 of 2020. 818 Samuel M. N. Njeru and Others v National Land Commission & 2 Others [2020] eKLR, para. 31; PLO Lumumba, An Outline of Criminal Procedure in Kenya, 2ndedn (Law Africa 2019), p. 264. 819 Miguna Miguna v Director of Public Prosecutions & 2 Others [2018] eKLR Miscellaneous Criminal Application no. 57 of 2018. 820 Samuel M. N. Njeru and Others v National Land Commission & 2 Others [2020] eKLR, para. 40. 821 Supreme Court Act, 2011 (Act no. 7 of 2011) Section 28; also previously reflected in S. 27 of the void Contempt of Court Act. 822 Petition no. 39 of 2018 R v Ahmad Abolfathi Mohammed & Anor [2019] eKLR. 202 questions or remaining in court after being asked to leave.823 Notably, when the actus reus of contempt of court is committed in the face of the court, it will attract a summary judgment. The contempt could also involve conduct carried out outside of the court, which includes acts in abuse of the court process, making or publishing comments that prejudge the merits of the case, comments on the character of the accused person intended to influence the presiding officer or which may prejudice a fair trial, acts in breach of duty by persons who must enforce the law or officially connected with the court process.824 To determine whether the actus reus of contempt of court committed outside the face of the court exists, the court has to initiate a trial process before it makes a pronouncement as to the existence of the relevant conduct. The offences set out above concerning S. 121 of the Penal Code give a good overview of the conduct punishable as contempt of court. 4.3.2 Mens rea To establish criminal responsibility, it must be shown that the failure of the accused or respondent to obey a court order was deliberate and malafide. 825 Accidental or unintentional disobedience will not suffice.826 The offences set out in the Supreme Court Act827 or the description in the court cases indicate that they must be carried out wilfully or intentionally. Meaning it is an offence for which only intent will suffice. 4.4 Perjury and related crimes The offence of perjury involves knowingly making a false statement under oath concerning judicial proceedings. Section 108 of the Penal Code provides for the offence of perjury. Any person who, concerning a judicial proceeding, gives false testimony concerning a material question raised in the proceeding is guilty of perjury. Such a statement may be made orally or written, under oath or other sanction recognized by law. It is immaterial whether the person giving it is a competent witness or not, or whether the statement is admissible in the proceedings. The court in James Mulinge v Freight Wings Ltd and 3 Others828 cited the elements of the offence to be: a) Being a lawfully sworn witness, b) There must be judicial proceedings involved, 823 PLO Lumumba, An Outline of Criminal Procedure in Kenya, 2ndedn (Law Africa 2019), p. 265; K. Oyier, Criminal Prosecutions and Essence of Criminal Offences in Kenya, (Law Africa 2018), p. 264. 824 PLO Lumumba, An Outline of Criminal Procedure in Kenya, 2ndedn (Law Africa 2019), p. 265; K. Oyier, Criminal Prosecutions and Essence of Criminal Offences in Kenya, (Law Africa 2018), p. 264. 825 Samuel M. N. Njeru and Others v National Land Commission & 2 Others [2020] eKLR, para. 38; Sheila Cassatt Issenburg and Anor v Anthony Macharia Kinyanjui [2021] eKLR, para. 58. 826 Samuel M. N. Njeru and Others v National Land Commission & 2 Others [2020] eKLR, para. 44. 827 Supreme Court Act, 2011 (Act no. 7 of 2011) Section 28. 828 [2016] eKLR Case no. 1359 of 2014. 203 c) Deliberately making a false statement, and d) Knowing the statement is false or believing it to be false. 4.4.1 Actus reus The actus reusof the offence is thus making a false oral or written statement under oath or in any other manner sanctioned by law concerning judicial proceedings. Such a statement must be significant or material to the proceedings in question. 4.4.2 Mens rea The mens rea is that such a statement must be made deliberately or intentionally with the knowledge that the statement is false.829 The High Court has held that where the court finds that a party to judicial proceedings has made false statements under oath, the court has inherent powers to punish such person and the same amounts not only to perjury but also abuse of court process.830 In David Omwenga Maobe v Republic831, the petitioner had moved to the High Court to quash perjury criminal proceedings that had been instituted against him. It was alleged that the petitioner had lied under oath to get a judgment in his favour concerning the proprietary interest in a parcel of land that had been the subject matter of the suit. The petitioner questioned whether one could be charged with perjury when the High Court and Court of Appeal had issued a judgment in his favour. The High Court held that the petitioner could still be liable for perjury, if he used fabricated evidence to get a favourable judgment. The High Court held that the petitioner had failed to show which of his constitutional rights were violated by criminal proceedings on perjury. It confirmed that a person could and will be charged with perjury even after obtaining judgment in his favour because of such perjury. A person who aids, abets, counsels, procures or suborns another to commit perjury is liable for subornation of perjury.832 Under S. 109, when a lawfully sworn interpreter in the course of judicial proceedings wilfully makes a false statement knowing it to be false or not believing it to be true, the interpreter shall be criminally liable. A witness who, in the course of judicial proceedings under oath or affirmation, makes a statement which contradicts in a material way a previous statement made by the same witness under oath or affirmation before the same court or any other court, and the court is convinced such statement was made with intent to deceive the court is guilty of an offence and he is liable for imprisonment of up to two years. This offence does not apply to accused persons in criminal proceedings, S. 112 Penal Code. A person who, with intent to cause harm or inconvenience to another person, gives information or makes a complaint concerning such person to a magistrate, police officer 829 James Mulinge v Freight Wings Ltd and 3 others [2016] eKLR, para. 28. 830 James Mulinge v Freight Wings Ltd and 3 others [2016] eKLR, para. 32. 831 [2015] eKLR, Criminal Petition no. 77 of 2014. 832 S. 108(2) Penal Code. 204 or any officer with power to apprehend knowing such statement to be false is also liable for the offence of malicious information, S. 112A Penal Code. Knowingly fabricating evidence other than using perjury or subornation of perjury makes one also criminally responsible under S. 113 of the Penal Code. A person who swears falsely or makes a false affirmation or declaration before any person authorized by law to administer a law or take such declaration on a matter of public concern is also criminally liable under S. 114. Persons who deceive or destroy evidence also commit punishable offences.833 S. 117 of the Penal Code provides for the offence of conspiring to defeat justice and interfere with witnesses. The offence includes one who conspires with another to accuse any person falsely or do anything to pervert or defeat the course of justice; or to obstruct the due course of justice by hindering a person lawfully bound to appear and give evidence from appearing and giving evidence; or obstructs or knowingly prevents the execution of any legal process. 4.5 Conclusion It is important when considering the various offences to observe the extent of consistency of application of their underlying principles by the courts. The offence of contempt of court for example requires an established statutory instrument for more certainty in its implementation. 833 S. 115 and 116 Penal Code. 205 SECTION 5: MONEY LAUNDERING AND ORGANISED CRIMES This Section covers the offences of money laundering, participating in organised crimes and terrorism. These crimes also fall within the category of transnational crimes, which often involve organised criminal groups coming together to carry out certain crimes that transcend national boundaries. Here the crimes are considered in their context as crimes punishable within the Kenyan jurisdiction. 5.1 Money laundering Money laundering involves attempting to convert, conceal, and disguise the proceeds of criminal activity and make them reusable as legitimate funds.834 It usually involves three stages; first, placement: where the proceeds of crime are placed into the financial system; second, layering: the funds are put through several complex transactions to disguise their origin; and third, integration: which involves the layered funds being reintroduced into the economy as legitimate funds.835 The Proceeds of Crime and Anti-Money Laundering Act no. 9 of 2009 (POCAMLA) sets out to achieve three purposes. First, it aims to punish conduct that involves taking part in, assisting or encouraging money laundering. Second, it aims to establish a regulatory system to detect and deter money laundering activities. Third, it aims to recover proceeds of crime. This chapter only examines the elements of the punishable offences and does not look into the processes set up to recover proceeds of money laundering nor the regulatory systems for detecting money laundering activities. Money Laundering under the Act means the offences in the provisions of S. 3, 4, and 7 of the POCAMLA. S. 3 of the POCAMLA provides that a money laundering offence is committed when: “A person who knows or ought to reasonably have known that property is or forms part of the proceeds of crime and (a) enters into any agreement or engages in any arrangement or transaction with anyone concerning such property; or (b) performs any other action concerning such property whose effect is to (i) conceal or disguise the nature, source, location, disposition or movement of such property or any interest that anyone may have in such property; or (ii) enable a person who has committed an offence in Kenya or elsewhere to avoid prosecution; or (iii) remove or diminish property acquired directly or indirectly from the commission of an offence.” S. 4 of the POCAMLA further provides that to acquire, use, or possess property resulting from criminal activity with knowledge or when one ought to have reasonably known that such property ‘forms part of the proceeds of crime’ committed by such 834 Boister N., An Introduction Transnational Criminal Law, OUP 2012, p. 100. 835 Ibid. 206 person or a third party is also punishable as a crime of money laundering. The provision captures the perpetrator who carries out the predicate offence that generates the proceeds of crime and third parties who may be used to hide the proceeds of crime. S. 7 of the POCAMLA prohibits the financial promotion of an offence. It makes it an offence for a person to knowingly transport, transmit, transfer, or receive a monetary instrument or anything of value to a third party intending to commit a crime. An attempt to do any of the activities above is also criminal. The provision targets the economic basis of criminal activity by capturing those who finance or facilitate financial activities concerning such illegal activity. 5.1.1 Actus reus To prove this offence, the prosecution would need to establish that: • The accused knew or ought reasonably to have known that the property was part of the proceeds of a crime. • The accused needs to enter an agreement or arrangement or transaction in respect to the property or perform any other act regarding the property likely to have the effect of: Ø concealing the nature, source, movement or other similar interests concerning such property or Ø assisting a person who has committed an offence to avoid prosecution or Ø removing or diminishing a property acquired as a result of a crime. The money laundering offence aims to ensure those who participate in criminal activity do not profit from such activity. It targets the proceeds of crime, which the Act defines as property or economic advantage derived from or in connection with a criminal offence and includes on a proportional basis property into which such property is converted, transformed or intermingled as well as income or other similar economic gains, S. 2 of the POCAMLA. To prove that the property is connected to a criminal offence (predicate offence), the prosecution must establish circumstances which lead one to draw an irresistible inference that such property is derived from criminal conduct, whether or not there has been a conviction.836 In Republic v Director of Public Prosecutions and anor Ex ParteOgola Onyango and 8 Others837, the applicants had challenged the rationale for charging them with money laundering offences before the prosecution and conviction for the predicate offences that allegedly generated the proceeds of crime. The court noted that the money laundering offence was a standalone crime, and there was no need to prove conviction for the predicate offence before prosecuting the offence of money laundering. The court held that circumstantial evidence could suffice to establish the proceeds of the crime. The court stated to establish the offence under S. 3 of the POCAMLA, the prosecution needed to prove the following: 836 Horder J, Ashworth’s Principles of Criminal Law, 9th edn 2019 OUP, p. 448. 837 [2016] eKLR J.R. Civil Application no. 102 of 2016. 207 (i) ‘The accused entered into or became concerned in an engagement or arrangement; (ii) Which he knew or ought to have known facilitated the acquisition, retention, use or control; (iii) Of criminal property (proceed of crime); (iv) By or on behalf of another person the effect of which would conceal or disguise the source of the proceeds.’ In Keyth Mutua Mwanza v Republic838, the High Court confirmed the conviction and sentence of the appellant, who was sentenced to ten years imprisonment for the offences of demanding property through menaces and concealment of property the proceeds of crime. The appellant had threatened his victim with witchcraft unless she sent him a certain amount of money. He had used false identification to register a SIM card through which the money was transferred to him, thus the offence of money laundering through concealment. A look at the facts, one questions, if the appellant indeed had the intention to commit an offence of money laundering or was only hiding his true identity. The conduct made punishable under S. 3, 4 and 7 of the POCAMLA targets the layering and integration stages of money laundering. Financial institutions must also monitor and report suspicious and unusual transactions to the Financial Reporting Centre under S. 44 of the POCAMLA. Wilfully failing to report such activity, which relates to a suspicion that the transaction relates to proceeds of crime, is a punishable offence under S. 5 of the POCAMLA and S. 11 of the POCAMLA. Under S. 8 of the POCAMLA, it is an offence to tip off someone suspected of money laundering activities that a report is being prepared or is about to be made to the competent authorities. Knowingly making a false or fraudulent statement or providing false documents to any institutions with an obligation to report and monitor suspicious or unusual transactions is also an offence, S. 9 of the POCAMLA. One who wilfully gives false information to the Financial Reporting Centre with the knowledge that such information is false commits an offence under S. 10 of the POCAMLA. 5.1.2 Mens rea The prohibited acts are carried out with the accused knowing, or if the accused should reasonably have known that the property involved is the proceeds of the crime. The prosecution would need to prove that the accused person had knowledge or reasonable belief that the property they were dealing with was the proceeds of a crime. Knowledge here would likely mean the accused had actual knowledge of the fact or the court is 838 [2021] eKLR, Criminal Appeal no. 36 of 2019. 208 satisfied the accused believed that there is a reasonable possibility of the fact and failed to get information to confirm or refute his belief.839 An accused ought to have reasonably known when a person with the same knowledge and set skill as the accused would have known the proceeds were obtained from criminal activities. The prohibited conduct is undertaken with intent or wilfully. Thus, the subjective element for money laundering-related offences ranges from intent to negligence. 5.1.3 Confiscating proceeds of crime Other procedural regimes have been introduced that focus on recovering the proceeds and instruments of crime. The proceedings are not a subject of focus in this study but are briefly mentioned herein as they form an essential part of dealing with money laundering crimes. a) Criminal confiscation Under S. 61 of the POCAMLA, the court, upon convicting a defendant, inquires as to any benefit the defendant may have derived from the money laundering offence for which he or she has been convicted, or any criminal activity considered to be sufficiently related to the offences, and in addition to the punishment makes an order for the defendant to pay to the government any amount it considers appropriate in the circumstances. This proceeding is only relevant if the defendant has been convicted.840 b) Civil confiscation Under S. 90, the High Court shall make an order to forfeit property to the government if it makes a finding on a balance of probability that the property in question has been used or is intended to be used for purposes of crime or is proceeds of crime. To recover funds or assets under civil forfeiture conviction is not a pre-condition. It is sufficient to show a lack of reasonable explanation showing the legitimate source of the wealth. 841 This procedure aims to determine the criminal origins of the property in issue. It is directed at the seizure of property and not at the criminal prosecution of the individual to whom such property belongs. Where it is determined on a balance of probability that the known sources of an individual’s wealth are insufficient to enable him or her to obtain certain property, it will be justified to forfeit the unexplained wealth to the State.842 5.2 Participating in organised crimes The Prevention of Organised Crimes Act (POCA) no. 6 of 2010 criminalises engaging in organised criminal activities. POCA defines an organised criminal group as a structured group of three or more people that has existed for a period of time and acts in concert 839 See Hemedi Ameri and 9 Others v R [2000] eKLR, Criminal Appeal no. 48-57 of 1997. 840 Assets Recovery Agency v Rose Monyani Musand & 2 Others [2020] eKLR, Civil Application no. 2 of 2020. 841 Kenya Anti-Corruption Commission v Stanley Mombo Amuti [2017] eKLR; Assets Recovery Agency v Pamela Aboo [2018] eKLR. 842 Assets Recovery Agency v Rose Monyani Musand & 2 Others [2020] eKLR, Civil Application no. 2 of 2020. 209 with aim of committing one or more serious crimes or committing such crimes to obtain financial or material benefit or other advantage for the group, S. 2 of the POCA. It also includes a group declared as such by the minister (cabinet secretary) on the advice of the commissioner of police. S. 3 of the POCA provides that a person engages in organised criminal activity where the person: • professes to be a member of an organised criminal group • encourages or recruits another person to become a member of an organised criminal group; • acts in concert with other persons in the commission of a serious offence for obtaining material or financial benefit or any other purpose; • being a member of an organised criminal group knowingly instructs any person to commit a serious crime; • threatens to commit or facilitate the commission of any act of violence with the help of an organised criminal group; • threatens any person with retaliation in response to any act of violence in connection with organised criminal activity; • being a member of an organised criminal group with intent to extort, kidnap or attempt to kidnap any person, or threatens any person with injury or harm of any kind; • provides or invites another to receive training, for the purposes of or in connection with organised criminal activity; • possesses an article connected with the commission, preparation or instigation of serious crime involving an organised criminal group; • possesses or transmits a document likely to be useful to a person committing or preparing to commit a serious crime involving an organised criminal group; • provides property and intends that the property should be used for the purposes of an organised criminal group; • uses, or causes any other person to use property belonging to an organised criminal group for the purposes of its activities; • knowingly enters into an arrangement to facilitate the management of the criminal group’s funds; • endangers the life of any person or causes serious damage to the property of any person as a member of an organised criminal group; • organises a meeting for the purpose of encouraging support for the activities of an organised criminal group. A person engaging in the above criminal activities may be fined or imprisoned for up to 15 years. Where a person dies due to the criminal activity that endangers life, the member of such organised criminal group engaged in such conduct is likely liable for up to life imprisonment, S. 4 of the POCA. 210 The breadth of conduct covered includes the criminalisation of mere membership in a criminal group. Under S. 7 of the POCA, to determine whether a person is a member of an organised criminal group, the court will have regard to the following factors: Such person: (a) “admits to being a member of an organised criminal group; (b) is, upon reasonable ground, identified as a member of an organised criminal group; (c) resides in or frequently visits a particular organized criminal group’s area and adopts the name, colours, symbol, style of dress and grooming, use of hand signs, language, tattoos or other representation associated with the organised criminal group or otherwise knowingly associates with members of such group; (d) has been arrested more than once in the company of identified members of an organised criminal group for offences which are consistent with organised criminal group activity; (e) ascribes to the ideologies, values, practices, oathing, mannerisms and general conduct of the organised criminal group members; or (f) knowingly receives any financial or material benefit from an organised criminal group.” This list does not create presumptions but makes it easier by providing factors that likely lead to a strong inference that the accused is indeed a member of an organised criminal group. This list implies that membership requires the accused to ascribe to membership of such a group consciously. The nature of conduct criminalised in S. 3 of the POCA is that the conduct is already otherwise recognised as criminal. The aggravating factor is that the illegal act is carried out as part of an organised criminal group. To administer or take an oath to belong to a criminal organised group is also punishable, S. 5 of the POCA. Attempting, aiding, abetting, counselling, procuring, or conspiring with another to commit an offence under this Act is punishable with a fine or imprisonment of up to 14 years, S. 6 of the POCA. 5.3 Terrorism The crime of terrorism is criminalised under the Prevention of Terrorism Act (PTA) no. 30 of 2012. In Muslims for Human Rights (Muhuri) and Anor v Inspector-General of Police and 4 others [2015] eKLR, the court acknowledged the several terrorist attacks that Kenya had suffered, noting it was a serious issue which courts had to take recognition of when looking at cases concerning terrorism. It defined terrorism as the ‘calculated use of violence or threat of violence to inculcate fear; intended to coerce or intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological’. 211 Under S. 4 of the PTA, a person who commits a terrorist act is liable to imprisonment for up to 30 years, and where a person dies as a result of the terrorist act, they are liable to imprisonment for life. The provision on the offence of terrorism lists specific acts undertaken to intimidate the government or international organisation or causing fear among the public or to destabilise religious, political, or social institutions within a country or international organisation. S. 2 of the PTA lists a terrorist act to include use of violence against a person or endangering the life of a person, creating a serious risk to health or safety of the public, serious damage to property, use of firearms and explosives, releasing hazardous or toxic biological or radioactive substance into the environment, interfering with the electronic system which disrupts provision of communication, financial, transport or other essential services, and prejudicing national or public security. Several other acts concerning terrorism are criminalised. This work highlights key ones, particularly those mostly prosecuted before the Kenyan courts. The offences are provided for in Sections 4 to 30F of the PTA. S. 5 of the PTA provides that collecting, providing or making available funds or property or any services ‘intending, knowing or having reasonable grounds to believe that such property, funds or service shall be used’ for the commission of, or facilitating the commission of a terrorist act; by a terrorist group for any purpose; or by a natural person who commits or facilitates the commission of a terrorist act is also punishable with up to 20 years imprisonment. This provision makes conduct punishable that finances terrorist activities with the subjective element being wide enough to include negligence. S. 6 of the PTA criminalises possessing property for the commission of terrorist acts. S. 7 of the PTA criminalises knowingly controlling terrorist property for purposes of concealment. S. 8 of the PTA criminalises knowingly dealing in any way with property controlled by terrorist groups. Knowingly soliciting or giving support to a terrorist group or committing terrorist acts is an offence under S. 9 of the PTA. Advocating, promoting or facilitating with intent commission of terrorist acts is also punishable under S. 9A of the PTA. In the case of Abdirizak Muktar Edow v Republic843, the court acquitted the accused person of a charge that he had used his motor vehicle to support terrorist activities, although evidence showed that his motor vehicle had been used by known terrorists who were intercepted before they could carry out an attack. Explosives were found in the car. The court found that the accused had sufficiently established that the car was hired as a Taxi, and he had no knowledge that it would be used for terrorist activities. Interestingly, the same court would still proceed and convict the accused for membership in the proscribed Al Shabaab group. 843 [2019] Criminal Appeal no. 149 of 2016. 212 Harbouring, concealing, preventing or hindering the arrest of a person knowing or having reason to believe that the person has committed or intends to commit a terrorist act is a criminal offence under S. 10 of the PTA. Knowingly providing weapons to a terrorist group or member of a terrorist group is punishable under S. 11 of the PTA. S.12 of the PTA makes a person who, as a member of a terrorist group, directs or instructs another to commit a terrorist act liable to life imprisonment upon conviction. Radicalisation is also prohibited under S.12D of the PTA. This involves promoting an extreme belief system to facilitate ideologically based violence to advance political, religious or social change. Knowingly recruiting or facilitating membership to a terrorist group is proscribed in S. 13 of the PTA. S. 14 of the PTA criminalises training a terrorist group or person in making use of a weapon, carrying out a terrorist act or military practices knowing that such training is intended to commit a terrorist act. Conspiring to commit any of the offences in the PTA is also punishable under S. 23of the PTA. To be a member of a terrorist group is punishable with up to 30 years imprisonment under S. 24 of the PTA. A terrorist group is ‘an entity that has as one of its activities and purposes, the committing of, or the facilitation of the commission of a terrorist act’ or a specified entity under S. 2 of the PTA. A special entity is declared as such by the cabinet secretary upon recommendation by the Inspector General of Police, S. 3 of the PTA. Several entities have been declared as terrorist organisations, including Al Shabaab.844 It would seem also that individuals or organisations that are considered to be associated with such terrorist entities may be enlisted as specified entities.845 Membership here is likely wide enough to include active, passive and nominal members of such groups. Courts have at times drawn broad inferences to establish proof of membership. In Abdirizak Muktar Edow v Republic846, the court confirmed the conviction of the accused for membership in the terrorist group of Al Shabaab. It held that this could be inferred from his communication of the need to attend a meeting, and the Al Shabaab Flag was retrieved from the area where the meeting had occurred. There was no evidence that the accused himself had attended the meeting. The video content on his phone encouraged youth to move to Somalia and join Al Shabaab and fight the Kenyan government. This was considered evidence that he ascribed to the beliefs of the criminal group and hence confirmed membership. In Mohammed Haro Kare v R847, the court observed that circumstantial evidence could be used to infer membership to a criminal terrorist group stating that certain actions may provide a useful guide such as ‘a person being trained by the group on the use of weapons, possession of weapons and articles associated with the group, travelling to the known operations of the group, and being associated with members of the group, or being together with members of the group or taking part in activities of the group’. In the case, however, the court found the prosecution had failed to establish that the accused was a criminal group member. It held that the photos retrieved from a phone, 844 See Muslims for Human Rights (Muhuri) and Anor v Inspector Genral of Police and 4 Others [2015] eKLR. 845 See Egal Mohammed Osman v Inspector General of Police and 3 Others [2015] eKLR. 846 [2019] Criminal Appeal no. 149 of 2016. 847 [2016] eKLR, Criminal Appeal no. 49 of 2016. 213 allegedly recovered from the accused, showing the accused dressed in military attire were insufficient to implicate the accused as a member of the Al Shabaab group. It held that the prosecution should have shown a clear linkage between the actions of the accused and those of the outlawed group. A person who, by publishing, distributing or otherwise availing information intending to directly or indirectly incite another person or a group of persons to carry out a terrorist act, commits an offence under S. 27 of the PTA. A member of a terrorist group who holds, collects, generates, or transmits information for use in the commission of a terrorist act commits an offence under S. 29 of the PTA. Knowingly possessing an article or information on behalf of another person for use in instigating or preparing to commit a terrorist act is an offence making one liable for up to 20 years imprisonment under S. 30 of the PTA. In Ibrahim Adan Abdirahman v R848, the appellant was convicted and sentenced to ten years following a charge under this Section. It had been established that he had a notebook with a drawing and information on assembling an improvised explosive device. The High Court squashed the conviction and sentence because the prosecution had not shown on whose behalf he held the notebook/article as required by the provision. Curiously, the provision requires that such an article be held on behalf of another. Nonetheless, in Osman Mohamed Balagha v R849, the appellant’s conviction based on the same provision was confirmed, although it had not been shown that he held the relevant articles on behalf of another. The appellant had been convicted when it was established that his tablet had videos and articles used in instigating the commission of a terrorist act and sentenced to ten years imprisonment. The content of the first video called or encouraged others to join Al Shabaab, and the second video demonstrated how terrorist acts can be carried out. The court observed that it was necessary to establish through evidence the link between the actions of the accused and the outlawed group. Publishing or uttering a statement likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit a terrorist act is an offence under S. 30A of the PTA. It is punishable, whether such a person is encouraged or not, with up to 14 years imprisonment. Knowingly attending or receiving instructions at any place or receiving training on the use and handling of weapons that is wholly or partly intended for purposes connected to the commission or preparation to commit a terrorist act is an offence with a punishment of up to ten years imprisonment in S. 30B of the PTA. In Saleh Omar Nyamache v R850, the accused was convicted and sentenced to ten years following a charge under this provision. The evidence revealed that he had admitted to training in Somalia to commit terrorist activities. 848 [2018] eKLR, Criminal Appeal no. 34 of 2017. 849 [2018] eKLR, Criminal Appeal no. 30 of 2017. 850 [2020] eKLR, Criminal Appeal no. 3 of 2020. 214 S. 30C of the PTA creates the offence of presumption of travelling to a country for purposes of being trained as a terrorist, where one travels to a country designated by the cabinet secretary as a terrorist destination without passing through designated immigration entry or exit points. The provision exempts persons who ordinarily reside in Kenya within an area bordering such designated country. In Joseph Juma Odhiambo, Idris Opwora Wesonga v R851, the appellant’s conviction and sentence of ten years imprisonment for travelling to a terrorist destination were confirmed. Evidence revealed that the two were going to an Al Shabaab training camp. The court observed that it did not matter that they did not receive the training, stating that if one travels to a terrorist-designated country without passing through a designated immigration area, it is presumed they travelled for purposes of receiving training in terrorism. 5.3.1 Actus reus The breadth of conduct discussed above is wide enough to cover preparatory activity. It goes further and also captures conduct that would not otherwise be captured by attempt. 5.3.2 Mens rea Most of the proscribed conduct must be done knowingly and with the underlying general intent to commit or support the commission of terrorist activities. This primarily covers acts carried out with intent or recklessly to commit or support the commission of terrorist activities. The underlying requirement that the conduct is for supporting terrorist acts is a general intention for the commission of terrorism rather than a specific relevant terrorist act. 5.4 Conclusion The essence of these offences is that their enforcement often threatens individual rights and has led to several challenges before the constitutional court. When looking at the offences, due regard needs to be given to which rights are potentially under threat. In certain aspects of the offence of terrorism a more consistent approach needs to be observed in the interpretation of its constitutive elements. 851 [2022] eKLR, Criminal Appeal no. 27 of 2020. 215 PART FOUR: INTERNATIONAL CRIMINAL LAW SECTION 1: INTRODUCTION While it may be argued that various meanings can be ascribed to the term international criminal law852, the context of this study is limited to the meaning that restricts it to the law concerning crimes punishable under the Rome Statute of the International Criminal Court (ICC Statute). It looks at the core crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. These crimes violate or threaten the values protected by general international law.853 They are crimes created by international law itself, imposing direct individual criminal responsibility without the need for intervention of domestic law.854 These core international crimes are considered to “involve a direct customary international law-based obligation on individuals regardless of the position of national law.”855 The ICC Statute was adopted in 1998 at an International Conference in Rome and came into force in 2002.856 Kenya ratified the ICC Statute (also Rome Statute) in 2005 and incorporated international crimes into national legislation through the 2008 International Crimes Act. 852 Cryer R, Robinson D and Vasiliev S, An Introduction to International Criminal Law and Procedure, 4th edn (CUP 2019), pp. 4-8; Gerhard Kemp (ed), Criminal Law in South Africa, Criminal Justice, 3rd edn (2018), p. 579. 853 Preamble of the ICC Statute. 854 Cryer R et al, (2019:7); G. Werle and F. Jessberger, Principles of International Criminal Law, 4th edn (Oxford: OUP, 2020), p. 35. 855 Boister N, An Introduction to Transnational Criminal Law (OUP 2012), p. 18. 856 Werle and Jessberger (2020), pp. 14-21. 216 SECTION 2: KENYAN INTERNATIONAL CRIMINAL LAW 2.1 The International Crimes Act The international crimes recognised under the International Crimes Act of Kenya are genocide, crimes against humanity, and war crimes. 857 This Act adopts the meaning ascribed to the crimes under the Rome Statute.858 It also makes one liable for conspiring, attempting to commit, being an accessory after the fact, or counselling anyone to commit the stated crimes.859 One outstanding difference between these modes of participation in crime and the ICC Statute is the provision for conspiracy to carry out the underlying crimes. Conspiracy is not provided for in the ICC Statute. A person convicted of these offences may be liable for the death penalty or life imprisonment.860 Under S.7 of the International Crimes Act, several principles of criminal law in the Rome Statute are considered applicable when dealing with any relevant crimes under the Act. They include: • ne bis in idem (Art 20 Rome Statute – relating to persons previously acquitted or convicted); applicable laws (Art 21 Rome Statute); • principle of legality concerning interpretation (Art 22[2] Rome Statute); • principle relating to individual criminal responsibility (Art 25); • excluding persons under 18 from criminal jurisdiction (Art 26 Rome Statute); responsibility of commanders and other superiors (Art 28 Rome Statute); • exclusion of statute of limitation (Art 29); • the mental element of crimes (Art 30); • grounds for excluding criminal responsibility (Art 31); • principles relating to mistakes of law and fact (Art 32); • principles relating to superior orders and prescription of law (Art 33). The following discussion on the crimes generally looks to the definition ascribed to the crimes in the Rome Statute, as the International Crimes Act specifically provides for this. Any interpretation of the crimes under the International Crimes Act will likely follow the Rome Statute definition. A brief overview of the crime of aggression is also discussed; although it is not recognised in the International Crimes Act, it forms part of the core international crimes. 2.1.1 Genocide Genocide was first expressly prohibited under Art II of the Genocide Convention, although crimes of a similar nature had previously been punished as crimes against humanity or war crimes under the Nuremberg Charter.861 The crime would later also be 857 S. 6 International Crimes Act, 2008. 858 S. 6(4) International Crimes Act, 2008. 859 S. 6(2) International Crimes Act, 2008. 860 S. 6(3) International Crimes Act, 2008. 861 See Werle and Jessberger (2020), pp. 337-338 on brief history of the crime. 217 made punishable under Art 4(2) of the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) and Art 2(2) of the Statute of the International Criminal Tribunal for Rwanda (ICTR). Art 6. of the Rome Statute defines genocide as carrying out certain acts “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The acts include killing members of the group, causing serious bodily or mental harm, deliberately inflicting on the group conditions of life calculated to cause its physical destruction, imposing measures to prevent births within the group, and forcibly transferring children of the group to another. The crime of genocide protects the right of existence of certain groups, protecting both their physical and social existence.862 a) The protected groups The four protected groups are those constituted through national, ethnic, racial or religious characteristics. The nature of these groups is that membership is often determined by birth, and the groups are of a permanent and stable nature.863 The group is identifiable through objective or subjective perspectives.864 The objective aspect looks at the visible physical characteristics of the group such as language, customs, or religion. In contrast, the subjective view describes how the group perceives itself and how others perceive it. b) Prohibited conduct Killing: It means causing death. The perpetrator needs to kill at least one or more persons belonging to the protected groups.865 Causing serious bodily or mental harm: This covers non-fatal physical injuries that cause disfigurement, serious injuries to the external or internal organs, sexual violence, and mental injury.866 Inflicting destructive conditions of life: This covers conduct that involves measures adopted to bring about the death of a group in the long term.867 They include measures that involve deliberate denial of resources necessary for survival, such as food, medicine, or systematic expulsion from homes.868 Imposing measures of birth: This involves measures to prevent births within the targeted group.869 This could include sterilization, imposed birth control, prohibition of 862 Werle and Jessberger (2020:339); Ambos, Treatise on International Criminal Law Vol II: The Crimes and Sentencing, (OUP,2014), p. 3. 863 Werle and Jessberger (2020:341). 864 Ibid., pp. 342-344; Kemp ed (2018:599). 865 Elements of Crime ICC Statute. 866 Akayesu, ICTR (TC), judgment of 2 September 1998, paras. 504, 711, 720 et seq; Seromba, ICTR (AC), judgment of 12 March 2008, para. 46; Werle and Jessberger (2020), pp. 349-351. 867 Werle and Jessberger (2020:351). 868 Elements of Crime ICC Statute. 869 Werle and Jessberger (2020:352). 218 marriage, separation of the sexes, and conduct such as rape which traumatizes the victim from engaging in sexual activity.870 Forcibly transferring children: This involves forcefully transferring and alienating children from their group. The idea is to destroy the group’s existence by estranging the children from their cultural identities, such as language and cultural traditions.871 c) Mental element The prohibited conduct needs to be carried out with knowledge and intent, including the specific intent to destroy the protected group in whole or in part. Intent to destroy could include the destruction of the physical or social existence of the group.872 2.1.2 Crimes against humanity These are mass crimes committed against a civilian population.873 It was first expressly made punishable under the Nuremberg and Tokyo Charters.874 It was later also provided for in the ICTY Statute, Art 5 and ICTR Statute, Art 3. Art 7 of the Rome Statute defines crimes against humanity as certain acts undertaken as part of a widespread or systematic attack against a civilian population with knowledge of such attack. a) Contextual Elements The crime is established when the various acts which violate human rights are undertaken in the context of a widespread or systematic attack against a civilian population.875 Its purpose is to protect the fundamental rights of every human being from any form of systematic violation.876 The term civilian population refers to any group of persons with certain characteristics, making them a target of the attack.877 Anyone not part of the organised force carrying out the systematic attack and needing protection is covered under the term civilian population.878 An attack against the civilian population refers to carrying out the listed prohibited acts against a civilian population in pursuance of a State or organisational policy.879 Such organisational policy requires some planning or form of organisation.880 The attack’s widespread nature can refer to the broad geographic area under the attack or the number 870 Akayesu, ICTR (TC), judgment of 2 September 1998, paras. 507, 508. 871 Werle and Jessberger (2020:353). 872 Werle and Jessberger (2020), pp. 358-359. 873 Ibid., p. 374. 874 IMT Charter, Art 6(c); IMTFE Charter, Art 5(c). 875 Werle and Jessberger (2020:378). 876 Ibid., p. 379. 877 Ibid., p. 380. 878 Martic, ICTY (AC), judgment of 8 October 2008, paras. 303 et seq; Werle and Jessberger (2020:381). 879 Art 7(2)(a) ICC Statute. 880 Werle and Jessberger (2020:388); Cryer R et al (2019:238). 219 of victims resulting from the attack.881 The systematic nature of the attack refers to the degree of organisation and planning concerning the attacks ruling out spontaneous and isolated acts.882 b) Prohibited acts The acts which violate human rights include murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty contrary to fundamental rules of international law, torture, rape and other sexual violence offences, persecution against an identifiable group, enforced disappearance of persons, a crime of apartheid and other inhumane acts of a similar nature that cause great suffering or serious physical or mental injury. c) Mental element The perpetrator needs to carry out the prohibited act with its requisite subjective elements together with the knowledge that such an act is part of the widespread or systematic attack on a civilian population that is taking place. 2.1.3 War crimes A war crime violates specific rules of international humanitarian law that create direct criminal responsibility under international law.883 International humanitarian law refers to rules that aim to moderate the harmful effects of war by regulating means and methods of warfare and protecting persons not taking part in hostilities. The most significant of these laws are the Geneva Conventions of 1949 and the two Additional Protocols of 1977. Geneva Convention I protects the sick and wounded in armed forces in wartime884, Geneva Convention II protects the sick and wounded in warfare at sea 885 , Geneva Convention III regulates the treatment and protection of prisoners of war886, and Geneva Convention IV regulates the protection of civilians at wartime.887 The evolution of these rules has seen a dichotomy between rules that apply in international armed conflict and those that apply in non-international armed conflict. While the four Geneva Conventions rules mainly apply to international armed conflicts, Art 3, common to the four Conventions, introduced a minimum standard to extend them to non-international armed conflicts, particularly civil wars, with more detailed provisions provided for in Additional Protocol II. The rules concerning war crimes have developed in a manner that gives more protection in the context of international armed conflicts compared to non-international armed conflicts. 881 Werle and Jessberger (2020:385). 882 Ibid., p. 386. 883 Werle and Jessberger (2020:442). 884 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949. 885 Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949. 886 Convention Relative to the Treatment of Prisoners of War of 12 August 1949. 887 Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949. 220 As an overview, combatants, especially members of armed forces, can take part in an armed conflict and will not be held accountable as long as they comply with the rules of international humanitarian law.888 The rules require that only combatants and military objects may be attacked. Persons no longer participating in the armed conflict because of wounding, illness, shipwrecking, or prisoner of war status are protected. An attack on a legitimate war target likely to lead to collateral damage against protected persons or civilian objects should be limited.889 The belligerent parties need to avoid using means and methods of warfare that cause unnecessary suffering. Art 8 of the Rome Statute provides for war crimes recognising the dichotomy of war crimes in international armed conflicts and non-international armed conflicts. Art 8(2)(a) refers to grave breaches of the Geneva Conventions of 12 August 1949, setting out prohibited acts committed against persons or property protected by the Conventions. Art 8(2)(b) refers to other serious violations of the laws and customs of war applicable in an international armed conflict. Art 8(2)(c) provides for severe violations of Art 3 common to the four Conventions concerning non-international armed conflicts, and Art 8(2)(e) recognises other established severe violations of the laws and customs applicable in non-international armed conflicts. a) Contextual elements War crimes can only arise in the context of armed conflicts. Armed conflict can occur between states, between the armed forces of a state and other organised armed groups or between such armed groups within a state.890 It is important to establish whether the armed conflict is of an international or non-international character, as it determines which legal regime will apply to the conflict. The whole of international humanitarian law only applies to international armed conflicts.891 In the case of international armed conflicts, the law of war crimes will be applicable with the first shot, even in the case of minor conflicts.892 In the instance of conflicts of non-international nature, the law of war crimes only comes into play where the parties to the conflict have a degree of organisation, and the armed conflict is protracted.893 Protracted means the conflict has reached a certain degree of intensity threatening or affecting the international community’s interests.894 An international armed conflict mainly involves conflict between two or more states.895 A conflict could also be of an international character where an international organisation 888 Werle and Jessberger (2020:448). 889 Cryer R et al. 890 Tadic, ICTY (AC), decision of 2 October 1995, para. 70; Lubanga Dyilo, ICC (TC), judgment of 14 March 2012, paras. 531 et seq. 891 Werle and Jessberger (2020:458). 892 Werle and Jessberger (2020:463). 893 Tadic, ICTY (AC), decision of 2 October 1995, para. 70. 894 Werle and Jessberger (2020:467). 895 Lubanga Dyilo, ICC (TC), judgment of 14 March 2012, para. 541; Bemba, ICC (PTC), decision of 15 June 2009. 221 like the United Nations is involved,896conflicts involving people fighting a colonial power or racist regime, 897 conflicts involving a state and non-state group or two non-state groups with other states supporting the belligerent parties. 898 A conflict of a non-international character usually involves state armed forces and other armed groups or occurs between armed groups within a state.899 b) Mental element The prohibited individual conduct must occur in the context of and be related to the armed conflict for one to be liable.900 The perpetrator needs to be aware of the existence of the armed conflict.901 Liability of the perpetrator will be established if it is proved that the perpetrator carried out unlawful conduct or any of the prohibited war crimes with intention or recklessness.902 c) Categories of war crimes In a simpler perspective war crimes can be classified into crimes protecting persons and property on the one hand, and crimes which prohibit certain means and methods of warfare on the other. 903 The categories hereafter set out war crimes in terms of provisions for the protection of non-combatants, provisions governing attacks by combatants, provisions relating to property, and those relating to means and methods of warfare. Not all provisions are highlighted, the aim here is to give the student a general overview of categories of crimes. Reference is made to texts that issue a more critical analysis of the crimes. aa) Provisions that protect non-combatants from violence and mistreatment Non-combatants here include civilians, prisoners of war, and wounded or sick former combatants. • It is a war crime to kill protected persons wilfully, Art 8(2)(a)(i) and 8(2)(c)(i) of the ICC Statute. • Torture, inhuman treatment, mutilation, and biological, medical or scientific experiments are prohibited, Art 8(2)(a)(ii), Art 8(2)(b)(x), Art 8 (2)(c)(i) and Art 8(2)(e)(xi) of the ICC Statute. Torture in the case of war crimes has a purpose to obtain information or confession, to punish or to intimidate, Art 8 (2)(a)(ii) of the ICC Statute. • It is prohibited to wilfully cause great suffering or serious injury to the body or health, Art 8(2)(a)(iii), ICC Statute. 896 Werle and Jessberger (2020:464). 897 Ibid., p. 464. 898 Ibid., p. 465. 899 Ibid., p. 467. 900 Elements of Crimes, ICC Statute. Also see Katanga and Ngudjolo Chui, ICC (PTC), decision of 30 September 2008, para. 380. 901 Werle and Jessberger (2020:476). 902 Ibid., p. 477. 903 Ibid., p. 460. 222 • It is a war crime to commit outrages upon personal dignity, in particular humiliating and degrading treatment, Art 8(2)(b)(xxi) and 8(2)(c)(ii) of the ICC Statute. • Various forms of sexual violence amount to war crimes, Art 8(2)(b)(xxii) and Art 8(2)(e)(vi) of the ICC Statute. • Unlawful deportation, transfer or confinement of civilians is a grave breach, Art 8(2)(a)(vii) and Art 8(2)(e)(viii) of the ICC Statute. • It is prohibited to take hostages in international and internal conflicts, Art 8(2)(a)(viii) and Art 8(2)(c)(iii) of the ICC Statute. • It is a war crime to punish protected persons without a regular trial, Art 8(2)(a)(vi) and 8(2)(c)(iv) of the ICC Statute. • It is a war crime in international conflicts to declare the rights and actions of a hostile party abolished, suspended or inadmissible in a court of law, Art 8(2)(b)(xiv) of the ICC Statute. • It is prohibited to compel a prisoner of war or civilian to fight against their side, i.e., to join the armed forces of the enemy, Art 8(2)(a)(v) of the ICC Statute. • It is a war crime to compel persons to participate in operations of war against their own country, Art 8(2)(b)(xv) of the ICC Statute. bb) War crimes relating to attacks on prohibited targets Belligerents must direct attacks only towards military objectives (principle of distinction).904 Such attacks are governed by the principle of proportionality, prohibiting attacks that inflict excessive civilian damage. 905 The attacks directed toward military objectives should not cause incidental civilian damage that is disproportionate to their military advantage, Art 8(2)(b)(iv) of the ICC Statute. • It is prohibited to direct attacks against civilians or civilian population, Art 8(2)(b)(i) and Art 8(2)(e)(i) of the ICC Statute. • It is a war crime to attack civilian objects, Art 8(2)(b)(ii) of the ICC Statute. • It is prohibited to attack or bombard undefended towns, villages, or dwellings that do not have a military objective, Art 8(2)(b)(v) of the ICC Statute. • It is a war crime to intentionally attack buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals, and similar places without military objectives, Art 8(2)(b)(ix) and Art 8(2)(e)(iv) of the ICC Statute. • It is prohibited to attack buildings, means of transport, and personnel using distinctive emblems of the Geneva Conventions, Art 8(2)(b)(xxiv) and Art 8(2)(e)(ii) of the ICC Statute. • It is a war crime to attack personnel, installations and vehicles involved in a humanitarian assistance or peacekeeping mission, Art 8(2)(b)(iii) and Art 8(2)(e)(iii) of the ICC Statute. 904 Cryer R et al (2019:283). 905 Ibid., p. 285. 223 cc) War Crimes protecting property The crimes here prohibit excessive destruction and appropriation of property not justified by military necessity. • Destruction, seizure and pillage of property are war crimes, Art 8(2)(a)(iv),8(2) (b)(xiii),8(2)e(xii),8(2)(b)(xvi) and 8(2)(e)(v) of the ICC Statute. The pillage of property refers to taking for personal use, as opposed to taking for military purposes, where appropriation applies.906 dd) Prohibited means of warfare (weapons) Some weapons are inherently indiscriminate, meaning they cannot be used in a manner that distinguishes civilians and military objectives, while others are of a nature that causes superfluous injury or unnecessary suffering, prohibiting their use during warfare, Art 8(2)(b)(xx) of the ICC Statute. • It is prohibited to use poison and poisoned weapons, Art 8(2)(b)(xvii), ICC Statute. • Use of asphyxiating or poisonous gases is a war crime, Art 8(2)(b)(xvi), ICC Statute. • It is prohibited to use bullets that expand or flatten easily in the human body, Art 8(2)(b)(xix) also see, Art 8(2)(e)(xiii)-(xv) of the ICC Statute. ee) Crimes that prohibit certain methods of warfare • Killing or wounding a combatant who has surrendered is prohibited- Art 8(2)(b)(vi) of the ICC Statute. • It is a war crime to declare no quarter will be taken, i.e., that no prisoners will be taken or that there will be no survivors- Art 8(2)(b)(xii) and Art 8(2)(e)(x), ICC Statute. • It is prohibited to starve civilians- Art 8(2)(b)(xxv), ICC Statute. • Improper use of certain symbols and emblems such as the flag of truce, the uniform of the enemy or the United Nations, resulting in death or serious injury is prohibited, Art 8(2)(b)(vii) of the ICC Statute. • It is prohibited to conscript or enlist children under the age of 15 years into the army or use them to participate in the hostilities, Art 8(2)(b)(xxvi) and Art 8(2)(e)(vii) of the ICC Statute. 2.1.4 The Crime of aggression While there is no provision for the crime of aggression in the International Crimes Act, it is the other core international crime provided for in the Rome statute. It is yet to come into force, thus, not enforceable by the ICC. Kenya also expressed its non-acceptance of exercise of the ICC’s jurisdiction concerning the crime of aggression, citing that the 906 Ibid., p. 289. 224 crime as currently constituted was ambiguous and apparently in contravention of the Kenyan constitution.907 The crime of aggression in the Rome Statute is a leadership crime. It makes individual leaders or policymakers of a state accountable for participating in acts of aggression against another state. It is an unlawful act by a state against another state. It was first made punishable in Art 6(a) of the Nuremberg Charter, described as “crimes against peace”. Despite it being punished in the Nuremberg and Tokyo tribunals, states have since had a long period of disagreements, differences in interpretations, political difficulties, misunderstandings and negotiations that have inhibited the possibility of prosecution of the crime of aggression before another international tribunal.908 This has caused a delay in the implementation of the provision on the crime of aggression in the Rome Statute. Art 8 bis defines the crime of aggression as: ‘The planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.’ An act of aggression is defined as: “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall in accordance with the United Nations General Assembly Resolution 3314(XXIX) of 14 December 1974, qualify as an act of aggression.” The list of acts of aggression includes, but is not limited to, invasion or attack by the armed forces of a state of the territory of another state or any military operation or any annexation by the use of force of the territory of another state; bombardment by armed forces of a state or use of any weapons against the territorial integrity of another state; blockade of the ports or coasts of a state by the armed forces of another state; an attack by the armed forces of a state; a state giving access to its territory to another state for perpetrating an act of aggression against a third state; sending armed groups or mercenaries to another state for purposes of carrying out acts of aggression as mentioned above. There are questions about whether the list is exhaustive and whether it complies with the principle of legal certainty.909 There is a threshold requirement –the act of aggression needs to be of a gravity and scale that constitutes a manifest violation of the Charter of the United Nations. The crime of 907 Declaration given on 30th November 2015. 908 Weisbord Noah, ‘Prosecution Aggression’, Havard International Law Journal, 49 (1), Winter, pp. 166-220 in Willam A. Schabas Ed, International Criminal Law, Vol. I (2012). 909 Werle and Jessberger (2020:604). 225 aggression can only be committed on behalf of a state or as part of a state policy or plan.910 a) Material elements It is carried out by a perpetrator in a leadership position who participates in an act of aggression. Criminal responsibility for the crime of aggression is restricted to those involved at a policy level, i.e., leaders and high-ranking political decision-makers. It must be proven that the defendant planned, prepared, initiated or executed an act of aggression that was actually committed. The act of aggression is committed by a state against another state. The ICC definition incorporates the list in General Assembly Resolution 3314 (XXIX) of 1974. Public international law regulates the use of lawful force between states, a violation that could constitute an act of aggression. Art 2(4) of the UN charter urges all member states to “…refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.” It promotes the settling of disputes through peaceful means. Exceptions to this fundamental legal principle are the case of self-defence (under Art 51 of the UN Charter), the use of force authorised by the Security Council (under Chapter VII), and the case where humanitarian intervention is required.911 “A manifest violation of the Charter of the United Nations”: The manifest violation refers to both seriousness and manifest illegality.912 The violation must be serious in scale and effect and “manifestly unlawful”, thus excluding grey and controversial areas of public international law on using force.913 b) Mental element The perpetrator must intend to lead his country into conflict, knowing the factual circumstances establishing the inconsistency of the state’s use of force with the Charter of the United Nations.914 2.2 Prevention of Torture Act While torture is punishable as a crime against humanity, it is also recognised as a crime under the Prevention of Torture Act no. 12 of 2017. As a crime against humanity, it must 910 Cryer R et al (2019:304). 911 Cryer R et al (2019), pp. 306-309. 912 Cryer R et al (2019:311). 913 Cryer R et al (2019:311). 914 Cryer R et al (2019:311). 226 occur within its contextual elements to be punished. Under this Act torture is punishable even when it occurs outside the context of crimes against humanity. 2.2.1 Actus reus It involves inflicting pain or suffering on a person, whether physical or mental, for purposes of obtaining information or confession, or for purposes of punishing such person for committing an act or for purposes of intimidating or coercing such person or any other discriminatory reason, Section 4. It is further required that such infliction of pain or suffering be at the instigation or acquiescence, or consent of a public officer or by a person acting on behalf of a public officer. 2.2.2 Mens Rea The above conduct ought to be carried out intentionally. A person convicted of torture shall be liable to a term of imprisonment not exceeding 25 years, where the victim dies to life imprisonment. No exceptional circumstances can be evoked to justify torture. Thus, neither war nor the threat of it, nor internal political instability nor public emergency can justify the use of torture. Under Section 7 it is also prohibited to commit or induce or cooperate in the commission of the offence of cruel, inhuman, degrading treatment or punishment. A conviction for the same makes one liable for a fine of up to one million Kshs or imprisonment of up to 15 years. To attempt, aid, abet, counsel, procure or conspire to commit any of the above offences is also punishable with a fine or imprisonment, Section 8. It is also prohibited and punishable to use information obtained using torture or cruel, inhuman or degrading treatment, Section 9. 2.3 Universal Jurisdiction Since international crimes (genocide, crimes against humanity, war crimes) affect the international community, all states have the authority to prosecute them, even those with no special link to the crimes.915 Thus, the notion of universal jurisdiction. Kenyan courts have expressly recognised the possibility of Kenya exercising universal jurisdiction, see Attorney General v Mohamud Mohamed Hashi and 8 Others [2012] eKLR. S. 8 of the International Crimes Act provides that courts will only exercise jurisdiction if the relevant offences were committed within Kenyan territory by a Kenyan national or if the person suspected of committing the crimes is present in the country. In this last instance, requiring the person who committed the relevant offence to be present in the country, 915 G. Werle and F. Jessberger, Principles of International Criminal Law, 4th edn (Oxford: OUP, 2020), pp. 73-79. 227 one could argue that the provision allows for prosecutions under the principle of universal jurisdiction as long as the suspect is in Kenyan territory. 228 SECTION 3: INTERNATIONAL CRIMINAL COURT 3.1 Triggering Jurisdiction of the International Criminal Court Cases may be brought before the ICC in three ways. First, a state party to the Rome Statute may refer a situation to the prosecutor.916 Second, the Security Council may also refer a situation to the prosecutor.917 In these two instances the prosecutor first carries out an analysis to determine whether to open investigations.918 Thirdly, the prosecutor may also begin investigations concerning a situation through his initiative and with the authorisation of the Pre-Trial Chamber.919 Once the prosecutor has carried out investigations and has a reasonable belief that a suspect has carried out a crime within the ICC’s jurisdiction, he requests the Pre-Trial Chamber to issue a summons to appear or an arrest warrant.920 Once the suspect appears before the ICC, a hearing on confirmation of the charges is carried out. 921 At this moment, the suspect may also challenge the court’s jurisdiction and the case’s admissibility.922 Once the charges have been confirmed, the case proceeds to trial. There is also the possibility of appeal before the Appeals Chamber. The ICC will only have jurisdiction for the international crimes carried out either within the territory of member state parties or by nationals of member state parties or by a state though not a member accepts the jurisdiction of the ICC.923 The exception to this is when the situation is referred to the prosecutor by the Security Council. Regarding admissibility, the cases that proceed before the ICC must meet a gravity threshold. The court will only deal with them where responsible states are unwilling or unable to investigate or prosecute genuinely.924 3.2 Kenya and the International Criminal Court In 2007-08 Kenya experienced post-election violence following a closely contested election between the then-incumbent president Mwai Kibaki of the Party of National Unity and Raila Odinga of the Orange Democratic Movement. It resulted in over 1000 deaths, 600,000 internally displaced persons, and property destruction.925 Several attempts to establish a tribunal to hold those responsible for the post-election violence failed, 916 Art 13(a) ICC Statute. 917 Art 13(b) ICC Statute. 918 Art 53(1) ICC Statute. 919 Art 15(3) ICC Statute. 920 Art 58 ICC Statute. 921 Art 61 ICC Statute. 922 Art 17 and 19 ICC Statute. 923 Art 12 ICC Statute. 924 Art 17 ICC Statute. 925 Republic of Kenya, Report of the Commission of Inquiry into Post-Election Violence (CIPEV), 2008, pp. 345-352. 229 which led to the intervention by the International Criminal Court.926 This eventually led to four Kenyans being indicted before the International Criminal Court after the court declined to confirm charges against two others. 927 These cases were eventually terminated, or charges were withdrawn as the court found that witnesses had been influenced. This has resulted in three cases on offences against the administration of justice currently pending.928 One of the three suspects in the latter cases surrendered to the court and was tried; unfortunately, he died before judgment was issued.929 Several cases have emerged due to Kenya being a state party to the ICC, the most important among them challenged Kenya’s lack of cooperation with the ICC. In Attorney General and 2 Others v Kenya Section of International Commission of Jurists [2018] eKLR, the Court of Appeal held that Kenya, as a state party to the ICC, had an obligation to cooperate with the court and thus arrest the former president of Sudan Al Bashir, should he be present in the country. This decision followed an incident where the Kenya government had invited the former president to formally attend a state function, despite the warrants of arrest issued against him by the ICC. Another decision of interest is the Republic of Kenya vs Paul Gicheru, Philip Koech Bett, Misc. Criminal Application no. 193 of 2015, in this case, the minister of interior had received a request from the ICC for the arrest and surrender of the two respondents and forwarded the requests to the court to issue arrest warrants. The court declined to issue the arrest warrants and dismissed the application, stating that the offences the respondents were accused of could be tried and were punishable in Kenya. It held that the Kenyan respondents had a right to be tried within Kenya. 926 Decision on the Prosecutor’s application for summonses to appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, 8 March 2011; Decision on the Prosecutor’s application for summons to appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang. 927 The Prosecutor v William Samoei Ruto and Joshua Arap Sang ICC-01/09-01/11; The Prosecutor v Uhuru Muigai Kenyatta ICC-01/09-02/11. 928 The Prosecutor v Walter Osapiri Barasa, ICC-01/09-01/13; The Prosecutor v Philip Koech Bett, ICC-01/09-01/15; The Prosecutor v Paul Gicheru, ICC-01/09-01/20. 929 The Prosecutor v Paul Gicheru, ICC-01/09-01/20. 230 SECTION 4: CONCLUSION International criminal law is now firmly established within the Kenyan legal system. Its implementation, however, has largely been influenced by political convenience. Nonetheless, the recognition of international law as a source of law under the constitution creates a firm basis for the argument that in as far as the international crimes form part of customary international law their violation will always make them punishable in the Kenyan jurisdiction.
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