This section of criminal law looks at when is one can be deemed to be criminaly liable for a certain criminal act.While one cannot use some defences such as being ignorant of the law to defend themselves under Kenya law, there are various other defences one can use to defend themselves against a certain crime they have been charged with.Below are some topics that illustrate what can and what cannot be used as a means of defence.
Can ignorance of the law be used as an excuse?
Sec 7 of the Kenya Penal code Cap 63 states that Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge
of the law by the offender is expressly declared to be an element of the offence.
Bona fide claim of right.A person is not criminally responsible in respect of an offence
relating to property under Kenya law, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.
Intention and motive.A person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.The 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.
Mistake of fact.A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
Presumption of sanity.Every person is presumed to be of sound mind under Kenya law, and to have been of sound mind at any time which comes in question, until the contrary is proved.
Insanity.A person is not criminally responsible under Kenya law for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference
to that act or omission.
Intoxication.Intoxication does not constitute a defence to any criminal charge under Kenya law.It can however be a defence to any criminal charge if the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and -
(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.
Intoxication is always taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.
Immature age.Can a minor be charged with a criminla offence?The Kenya penal code states:
(1) A person under the age of eight years is not criminally responsible for any act or omission.
(2) A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time.
(3) A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.
Judicial officers.Members of the judiciary are exempted from being criminally liable for acts and omissions done during their course of duty.The Penal code Sec.15 states" ...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 is in excess of his judicial authority or although he is bound to do the act omitted to be done."
Compulsion.Can a person forced to commit an act or ommission defend themselves by saying that he/she was forced into it?The penal code states that"A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do
him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence, nor do any threats excuse the causing of, or the attempt to cause, death.
Compulsion by husband.A married woman is not under Kenya law free from criminal responsibility for
doing or omitting to do an act merely because the act or omission takes place in the presence of her husband; but, on a charge against a wife for any offence other than treason or murder, it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.