Criminal law in Kenya

This section gives you details on Kenya Criminal Law under the Kenya Criminal procedure code and Kenya penal code.Below are some topics and a comprehensive introduction to the Kenya criminal law.

CONTENTS

Criminal law under the Kenya Criminal procedure code-Outlines the process of criminal proceedings

Criminal law under the Kenya Penal code-Outlines various crimes under the laws of Kenya

Arrest Generally Arrest without Warrant Placeof trial Transfer of Cases Control by republic in criminal proceedings-nolleprosequi. Appointment of public prosecutorsand conduct of prosecutions Institutionof proceedings Summons to appear in court Warrant of Arrest Examination of witnesses Bail

Rules of criminal responsibility Principles of criminal law Fundamentals of criminal law Defences to  crime Accomplice to a crime Murder and manslaughter Unlawful assembly and riots Abuse of office Offenses relating to marriage and domestic responsibility Robbery and extortion Kidnaping and abduction Assault Crimes against public order Crimes against businesses:Forgery and fraud Inchoate offenses Burglary and arson Theft Law on homicide Other sentences

General summary of Kenya Criminal law

Kenya criminal law is the body of

national law relating to crime in Kenya. Broadly speaking, it defines as criminal such human conduct as threatens, harms or endangers the safety and welfare of people. It also sets out the punishment to be imposed on persons who engage in such conduct, provided they have criminal capacity and act unlawfully and with a guilty mind.


In the definition of Van der Walt et al, a crime is "conduct which common or statute law prohibits and expressly or impliedly subjects to punishment remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted."Crime involves the infliction of harm against society. The function or object of criminal law is to provide a social mechanism with which to coerce members of society to abstain from conduct that is harmful to the interests of society.
Criminal law (which is to be distinguished from its civil counterpart) forms part of the public law of Kenya, as well as of the substantive law (as opposed to the procedural). In Kenya, as in most adversarial legal systems, the standard of evidence required to validate a criminal conviction is proof beyond a reasonable doubt. The sources of Kenya criminal law are to be found in the common law, in case law and in legislation.

Punishment

The criminal justice system in Kenya is aimed at law enforcement, the prosecution of offenders and punishment of the convicted. Punishment is the authoritative infliction by the state of suffering for a criminal offence. There are numerous theories of punishment, whose two main purposes are

1. to justify the punishment imposed; and
2. to define the type and scope of different punishments.

The three main current theories in Kenya criminal law are

1. retributive or absolute, which justify punishment on the grounds that it is deserved;
2. utilitarian or relative, which justify punishment on the grounds that it is socially beneficial; and
3. combination or unitary, which fuse in various measures the other two.

Retributive theories

Retributive or absolute theories under Kenya criminal law aim to restore the legal balance, upset by the crime. They generally take proportionality into account and consider the perpetrator's record of previous wrongdoing. They do not seek to justify punishment with reference to some future benefit which it may achieve, so it is incorrect to describe retribution as a "purpose of punishment;" it is rather, according to this theory, the essential characteristic of punishment.

Utilitarian theories

There are three types of utilitarian or relative theory of punishment, the first two of which are deterrence and prevention. These are connected, in that the former's goal is to prevent recidivism or repeat offending. The third is reformation.

Preventive

According to the preventive theory of punishment, the purpose of punishment under Kenya criminal law is the prevention of crime. This theory can overlap with its deterrent and reformative counterparts, since both deterrence and reformation may be seen merely as methods of preventing crime. On the other hand, there are other forms of punishment (such as capital punishment and life imprisonment, and the castration of sexual offenders) which are in line with the preventive purpose, but which do not necessarily serve also the aims of reformation and deterrence.

Deterrent

There is an important distinction to be made between

• individual deterrence, which is aimed at the deterrence of a certain individual from the commission of further crimes; and
• general deterrence, which seeks to deter the entire community from committing crimes.

Individual deterrence may be said to be aimed primarily at the prevention of recidivism, or repeat offending.

Reformative

The third of the utilitarian or relative theories of punishment is the reformative theory.A reformatory approach would "benefit our society immensely by excluding the possibility of warped sentences being imposed routinely on people who do not deserve them.

Principle of legality

According to the principle of legality under Kenya criminal law, "punishment may only be inflicted for contraventions of a designated crime created by a law that was in force before the contravention." This is summed up in the dictum nullum crimen sine lege, "no crime without a law." Another important principle is nulla poena sine lege, "no punishment without a law." To apply the principle of legality, it is important that the definitions both of common-law and of statutory crimes be reasonably precise and settled. Penal statutes should be strictly construed, and the law should be accessible. Finally, there is the dictum nullum crimen, nulla poena sine praevia lege poenali, "laws and punishments do not operate retrospectively."

Legality and the Constitution

The Kenyan Constitution is committed to the principle of legality, with, for example, its provision that "every accused person has a right to a fair trial, which includes the right

1. "not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted; [and]
2. "to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing."

In terms of the ius certum principle, the crime must not, as formulated, be vague or unclear, so that the subject may understand exactly what is expected of him. Although the Constitution does not expressly provide that vague or unclear penal provisions may be struck down, it is "quite possible and even probable," that the first provision above will be interpreted in such a way that vaguely defined statutory crimes may be declared null and void. This "void-for-vagueness" rule may be based either on the right to a fair trial in general or on the principle that, if a criminal norm in legislation is vague and uncertain, it cannot be stated that the act or omission in question actually constituted an offence prior to a court's interpretation of the legislation.
To comply with the requirement of sufficient clarity, one should bear in mind

1. that absolute clarity is not required, and reasonable clarity is sufficient; and
2. that a court, in deciding whether a provision is clear or vague, should approach the legislation on the basis that it is dealing with reasonable people, not foolish or capricious ones.

It is not only statutory criminal provisions that may, on the ground of vagueness, be declared null and void in terms of the Constitution, but also provisions of common law that are vague and uncertain.

Criminal liability

Probably the most important principle of criminal liability is captured in the dictum actus non-facit reum nisi mens sit rea, or "an act is not unlawful unless there is a guilty mind." To establish criminal liability, the State must prove, beyond a reasonable doubt, that the accused has committed

• voluntary conduct which is unlawful (actus reus); accompanied by
• criminal capacity; and
• fault (mens rea).

Conduct

Burchell lists the elements of unlawful conduct as

• conduct;
• causation; and
• unlawfulness.

For Snyman, it is the following:

1. conduct;
2. compliance with the definitional elements;
3. unlawfulness; and then
4. capacity and fault, which go together to establish culpability.

The conduct must

• be carried out by a human being;
• be voluntary; and
• take the form either of a commission or an omission.

Human act

According to Kenya criminal law, the act must be a human act; it must be committed or carried out by a human being. This is self-explanatory.

Voluntariness

Automatism

The element of voluntariness is important in the first place because of the defence of automatism. As described in A-G for Northern Ireland v Bratty, automatism is any act which is performed by the muscles without any control of the mind, such as spasm, reflex or convulsion, or an act by a person who is unconscious because he is a sleep. Formerly the courts would draw a distinction between "sane" and "insane" automatism, although there has in recent years been a move away from this, because of the confusion it causes, given that the defence of "insane automatism" is actually nothing more or less than the defence of mental illness.
One example of automatism may be found in cases of epilepsy. In R v Victor, the appellant knew that he was prone to epileptic fits, but nevertheless drove a motor car. He suffered a fit while driving and collided with a pedestrian and another car. The court convicted him of negligence—not because he was epileptic but because he had chosen to drive when a reasonable person would have foreseen the likelihood of a fit.
The driver in R v Schoonwinkel was charged with culpable homicide, having collided with and killed a passenger in another car. The accused had suffered an epileptic fit at the time of the accident, rendering his mind a blank. The nature of his epilepsy was such that he would normally not have realised or foreseen the dangers of driving, having had only two previous minor attacks, the last a long time before the accident. This evidence, distinguishing this case from that of Victor, exonerated him from criminal responsibility.
In R v Mkize, the accused was charged with the murder of his sister, whom he had stabbed to death. The court found, on a balance of probabilities, that he had suffered an attack known as "epileptic equivalent." He was therefore unconscious, without judgment or will or purpose or reasoning; the stabbing was a result of blind reflex activity. There was no intention to kill. The verdict, therefore, was "not guilty."
Another example of automatism may be found in cases of intoxication. The Appellate Division reiterated in S v Johnson that only voluntary conduct is punishable. This includes voluntary drunkenness which does not result in a mental disease: It is no defence in respect of an offence committed during such drunkenness.
If the intoxication, leading to an acquittal of the common-law offence, is only sufficient to impair intention rather than sufficient to impair capacity, then no liability can result as lack of capacity resulting from intoxication has to be proved for a conviction.

Force

Another defence is force, which may take the form either of vis absoluta (or absolute force) or vis compulsiva (or relative force). On a charge of murder, compulsion can constitute a complete defence. When an acquittal may occur on this basis will depend on the particular circumstances of each case. The whole factual complex must be carefully examined and adjudicated upon with the greatest care.

Commission or omission

Omission

An omission under Kenya criminal law is punishable only if there is a legal duty upon someone to perform a certain type of active conduct. Although a delictual case, expresses a general rule: An omission is to be regarded as unlawful conduct when the circumstances of the case are of such a nature not only that the omission incites moral indignation, but also that the legal convictions of the community demand that it be regarded as unlawful and that the damage suffered be made good by the person who neglected to perform a positive act.To make a determination as to whether or not there is unlawfulness, therefore, the question is not whether there was the usual "negligence" of the bonus paterfamilias; the question is whether, regard being had to all the facts, there was a duty in law to act reasonably. It was held by the court, on the facts of this case, that a policeman on duty, if he witnesses an assault, has a duty to come to the assistance of the person being assaulted.
A legal duty to act may exist

• where a statute or the common law places such a duty on a person (for example, to fill in a tax return);
• where prior conduct creates a potentially dangerous situation (so that, for example, where one has lit a fire in a bush, one ought to extinguish it); and
• where one has control of a potentially dangerous thing or animal.

A legal duty to act may exist also

• where a special or protective relationship exists between the parties (as in the case of a lifesaver and a swimmer, or of a parent and a child); and
• where a person occupies a certain office which imposes on him a duty to act (like the office of policeman).

Causation

Crimes of consequence under Kenya criminal law should be distinguished from crimes of circumstance:

• A crime of circumstance is one in which it is the situation which is criminal, like the mere possession of an offensive weapon, rather than any result, like murder, which flows from the situation.
• A crime of consequence is one in which the conduct itself is not criminal, but in which the result of that conduct is. It is not unlawful merely to throw a stone; if it is thrown at and hits a person, however, it is. The precise nature of crime is contingent on the result: If the stone causes serious injury, the crime will be grievous bodily harm; if it kills a person, the crime could be murder or culpable homicide.

Causation is not a general element of liability. (The general elements of liability, are conduct, unlawfulness, capacity and fault.) Causation describes the way in which the definitional elements of some crimes are met. According to Snyman, indeed, it forms part of the definitional elements itself.
There are two forms of causation, factual and legal, which have to be proven.

Factual causation

The conditio sine qua non, or the "but-for" theory, describes a condition without which something—that is to say, the prohibited situation—would not have materialised. In the case of a positive act, the theory holds that, but for that act, the unlawful consequence would not have ensued.
The question to be asked is this: Can the act be notionally or hypothetically eliminated, without the disappearance of the consequence, from the sequence of events which led to that consequence?

• If not, the accused's conduct was a factual cause of the consequence.
• If so, the accused's conduct did not factually cause the consequence.

In the case of an omission, the conditio sine qua non theory provides that, but for the omission, the consequence would not have ensued. In other words, if we notionally or hypothetically insert a positive act into the sequence of events, the consequence does not ensue.

Legal causation

The steps to take or questions to ask, in seeking to establish causation, are as follows:

• Having regard to all the facts and circumstances, was X's conduct the factual cause of Y's death?
• If so, was X's conduct also the legal cause of Y's death?

To determine whether or not it would be reasonable and fair to regard X's act as the cause of Y's death, the court may invoke the aid of one or more specific theories of legal causation:

• the "proximate-cause" criterion, also known as direct-consequences or individualisation theory;
• the theory of adequate causation; and
• the novus actus interveniens criterion.

Proximate cause

In terms of the proximate-cause criterion, the act of the accused may only be seen to be the legal cause of a particular result if it is the direct or proximate cause thereof.

Adequate cause

In terms of the theory of adequate causation, an act is the legal cause of a situation if, according to human experience, in the normal course of events, the act has the tendency to bring about that type of situation. This theory, as noted above, was invoked in Daniels.
There are a number of knowledge-based considerations:

• All of those factual circumstances which are ascertainable by a sensible person should be taken into consideration. The thin skull of the deceased, if he had one, would be an example.
• The extra or particular knowledge of the accused is not omitted. If the accused has knowledge in addition to that which an ordinary sensible person would possess, that knowledge is to be taken into account as well.
• The totality of human knowledge, including that which only a specialist possesses, must also be considered.
• Knowledge may even be considered which comes to light only after the occurrence or event.

Novus actus interveniens

A novus actus interveniens (or nova causa interveniens) is a new intervening act, or a new intervening cause: that is to say, an abnormal interposition or event which breaks the chain of causation.
If an act or event is unlikely, in light of human experience, to follow the accused's act, it is more probable that it will be found to be a novus actus interveniens.
If the act of the accused is of a kind which is unlikely to cause death, the intervening act or event is considerably more likely to be regarded as a novus actus interveniens.
The accused need not be the sole cause of the consequence.
Voluntary conduct—conduct which free and informed—is more likely to be regarded as a novus actus interveniens than involuntary conduct.
An abnormal event, which would otherwise count as a novus actus interveniens, will not be so counted if it was foreseen by the accused (or, in cases of negligence, if it ought reasonably to have been foreseen), or if it was planned by him.
The victim's pre-existing physical susceptibilities are, by logical definition, never an intervening cause.
In determining whether or not medical intervention ranks as a novus actus interveniens, it is important to determine whether or not the intervention was negligent or in some other way improper.

Unlawfulness

Even once conduct and compliance with the definitional aspects of the crime have been established, there are still two more very important requirements for liability under Kenya criminal law: first unlawfulness and then culpability.
A finding of unlawfulness is based on the standard of objective reasonableness, which is in turn based on boni mores or the legal convictions of the community.
The following defences or grounds of justification, among others, will exclude unlawfulness:

• private defence;
• impossibility;
• superior orders;
• disciplinary chastisement;
• public authority; and
• consent.

Private defence

A person acts in private defence if he uses force to repel an unlawful attack by another upon his person or his property, or another recognised legal interest. In these circumstances, any harm or damage inflicted upon the aggressor is not unlawful.

Attack

The following are the requirements relating to the attack. There must be

• an attack, which had either commenced or was imminent; and
• which was unlawful;
• upon a legally protected interest.

Most often one acts in private defence in protection of life or limb, but there is no reason in principle why one cannot act in private defence in protection of other interests, such as one's property, as well.

Defence

The defence under Kenya criminal law must be

• directed against the attacker;
• necessary to avert the attack; and
• a reasonable response to the attack.

Test

The test for private defence is an objective one. If X thinks that he is in danger, but in fact is not, or if he thinks that someone is unlawfully attacking him, but in fact the attack is lawful, his defensive measures do not constitute private defence.

Putative private defence

If the accused believes, erroneously but honestly, that his person or property is in danger, his conduct in defence of it is not private defence. His mistake, however, may remove the element of intention.

Private defence of property

The following are conditions relating to the attack. There must be evidence that

• the property was
• presently
• in danger of damage or destruction
• that was unlawful.

The defence of property must be

• directed against the attacker;
• necessary to avert the danger; and
• a reasonable response to the attack.

Necessity

A person acts out of necessity, and his act is therefore lawful under Kenya criminal law, if he acts in protection of his own or of somebody else's life, bodily integrity, property or some other legally recognised interest, endangered by a threat of harm which has commenced or is imminent, and which cannot be averted in any other way—provided that the person is not legally compelled to endure the danger, and provided that the interest protected is not out of proportion to the interest necessarily infringed by the protective act. It is immaterial whether the threat of harm takes the form of compulsion or emanates from a non-human agency such as force of circumstance.
Private defence and necessity are closely related: Both allow a person to protect interests of value to him, such as life, bodily integrity and property, against threatening danger. There are also differences between them:

• Private defence always stems from and is always directed at an unlawful human attack; necessity, on the other hand, may stem either from an unlawful human attack or from chance circumstances, such as an act of nature.
• Whereas, in cases of private defence, the act of defence is always directed at an unlawful human attack, in cases of necessity it is directed at either the interests of another innocent party or a mere legal provision.

Necessity may arise either from compulsion or from inevitable evil.
An example of compulsion is where Y orders X to commit a punishable act, such as setting ablaze Z's motor car, and threatens to kill X if he fails to comply. X duly complies. The emergency here is the result of unlawful human conduct; the act (of arson) is directed at an innocent third person, namely Z.
In the case of inevitable evil, the emergency situation is the result of non-human intervention, such as an act of nature (a flood, for example) or some other chance circumstance like a shipwreck. If a fire breaks out in Y's house, and X to escape has to break through a window, he may reply to a charge of malicious damage to property with a defence of necessity. If X's baby gets hold of a bottle of pills and swallows all of them, and X in rushing her to hospital exceeds the speed limit, he may also rely on necessity.
A person is guilty of a crime in respect of which intention is a requirement where it is proved that

• he unlawfully and deliberately committed or caused the alleged act or consequence as contained in the definition of the crime;
• he acted under duress, in bona fide fear for his life;
• the duress was not so strong that a reasonable person in the position of the accused would have yielded to it; and
• there were no other possible grounds present for the exclusion of culpability.

Requirements

The mere danger of losing one's job does not give one the right to act out of necessity.If one cannot exercise one's profession without contravening the law, one ought to find another profession.

Onus

The onus of proof in a defence of necessity, as in self-defence, rests on the State, which must rule out the reasonable possibility of an act of necessity. It is not for the accused to satisfy the court that he acted from necessity.Where an accused's defence is one of compulsion, the onus lies on the State to show that a reasonable man would have resisted the compulsion. There is no onus on the accused to satisfy the court that he acted under compulsion.

Impossibility

The maxim lex non-cogit ad impossibilia may be translated to mean that the law does not compel anyone to do the impossible.

Defence

There must be a positive obligation imposed by law, which with it must be physically impossible to comply. The impossibility must not be the fault of the accused.

Superior orders

The question here is whether or not an otherwise unlawful act may be justified by the fact that the accused was merely obeying the orders of a superior. The Romans phrased it thus: "He is free from blame who is bound to obey."

Requirements

To succeed in a defence of superior orders, it must be shown

• that the order came from a person lawfully placed in authority over the subordinate;
• that the subordinate was under a duty to obey the order; and
• that he did no more than was necessary to carry out the order.

Public authority

When officers of the courts, or of the law or the State generally, and in certain circumstances even private persons, as duly authorised instruments of the State, commit crimes in the proper exercise of such authority (including acts of aggression upon life, person and property), they may be immune from punishment.

Diplomatic or consular immunity

This defence is to be found in the Diplomatic Immunities and Privileges Act, which sets out the immunities and privileges of diplomatic missions and consular posts, and of the members of such missions and posts.
Heads of state, special envoys or representatives from another state or government or organisation are immune from the criminal and civil jurisdiction of the courts. They enjoy the privileges accorded them by customary international law, which extends their immunity also to their families, and to members of their staff and their families.
Consuls, be they career or honorary, are not diplomatic agents, but they are, according to international law, entitled to immunity from civil and criminal proceedings in respect of official acts.

Court authority

The person officially authorised to execute either the civil or the criminal judgment of a court commits no crime in so doing. This exemption does not extend to cases in which the court has no jurisdiction.If officials of the court act beyond their jurisdiction, their actions are unlawful, but they may nevertheless escape liability if they genuinely believe that they are acting lawfully.
For a crime for which negligence is sufficient for liability, if an official's belief was not only genuinely held, but also reasonable, he will not be liable. The fact that a person works as a court official may indicate that he ought to know the law relating to his sphere of activity, and is therefore negligent.
The test of intention is subjective, so the reasonableness or otherwise of the accused's belief is in principle irrelevant. If, however, that belief is patently unreasonable, especially because the accused's occupation requires him to know better, this could constitute a factor from which the court may reach the conclusion that an inference of knowledge of unlawfulness can be drawn.
The powers of public officers and private citizens to arrest, either with or without warrant, are set out in the  Kenya Criminal Procedure Act (CPA).Provided that arrestors act within the limits of these powers, they are not liable for any assault or other crime necessarily committed to effect, or attempt to effect, the arrest.
When applying the reasonableness standard, the nature and degree of force used must be proportionate to the threat posed by the accused to the safety and security of police.
The law relating to the arrest of a suspect:

• The purpose of arrest is to bring before court for trial persons suspected of having committed offences.
• Arrest is not the only means of achieving this purpose, nor always the best.
• Arrest may never be used to punish a suspect.
• Where arrest is called for, force may be used only where necessary.
• Where force is necessary, only the least degree of force reasonably necessary may be used.
• In deciding what degree of force is both reasonable and necessary, all circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed—the force being proportional in all these circumstances.
• Shooting a suspect solely to carry out an arrest is permitted in very limited circumstances only. Ordinarily it is not permitted unless the suspect poses a threat of violence to the arrester or to others, or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm, and there are no other reasonable means of carrying out the arrest, whether at that time or later.
• These limitations in no way detract from the rights of an arrester, attempting to carry out an arrest, to kill a suspect in self-defence or in defence of any other person.

If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing.
This is a statutory articulation of the reasonable or proportional test. The arrestor is justified in using deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, only if s/he believes on reasonable grounds

• "that the force is immediately necessary for the purposes of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm;
• "that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or
• "that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm."

These are limits in addition to those discussed above.

Consent

• The complainant's consent in the circumstances must be recognised by law as a possible defence.
• The consent must be real, given voluntarily and without coercion.
• The consent must be given by a person capable in law of consenting.

Recognised by law

Under Kenya criminal law, consent is only a ground of justification in respect of some crimes. It is not a ground of justification in respect of treason, perjury and murder, but it is in respect of rape, theft and malicious injury to property. It is sometimes a ground of justification in respect of assault.

Death

In determining legal liability for terminating a patient's life, there is no justification for drawing a distinction between an omission to institute artificial life-sustaining procedures and the discontinuance of such procedures once they have been instituted. Just as, in the case of an omission to institute life-sustaining procedures, legal liability would depend on whether there was a duty to institute them, so in the case of their discontinuance liability would depend on whether or not there was a duty not to discontinue such procedures once they have been instituted. A duty not to discontinue life-sustaining procedures cannot arise if the procedures instituted have proved to be unsuccessful. The maintenance of life in the form of certain biological functions, such as the heartbeat, respiration, digestion and blood circulation, but unaccompanied by any cortical and cerebral functioning of the brain, cannot be equated with living in the human or animal context. If, then, the resuscitative measures were successful in restoring only these biological functions, they were in reality unsuccessful. Artificial measures, such as naso-gastric feeding, could consequently also be discontinued. It is appropriate and not in conflict with public policy in cases of this nature to make an evaluation of the quality of life remaining to the patient and to decide on that basis whether life-sustaining measures ought to be taken or continued.

Bodily harm

A participant in sport may validly consent only to those injuries which are normally to be expected in that particular sport. Voluntary participation in sport may also imply that the participant consents to injuries sustained as a result of acts which contravene the rules of the game—but only if such incidents are normally to be expected in that particular game.
Injuries inflicted in the course of initiation or religious ceremonies may be justified by consent only if they are of a relatively minor nature and do not conflict with generally accepted concepts of morality.
Sexual assault may be committed with or without the use of force or the infliction of injuries. Consent may operate as a justification for the act if no injuries are inflicted. Where injuries are inflicted, it has been held that consent may not be pleaded as a defence. Snyman has averred, however, that in such cases it would "seem to be more realistic" to enquire into whether the act is contra bonos mores or not. If the injury is slight, it is conceivable that the law may recognise consent to the act as a defence.

Real, voluntarily and without coercion

An error in negotio is an error in respect of the act; an error in persona is an error as to the identification of the other person.

Capable of consent

To consent to an otherwise unlawful act, the person consenting must have the ability to understand the nature of the act and to appreciate its consequences. This ability may be lacking due to

• youth;
• a mental defect; or
• intoxication, unconsciousness, etc.

Culpability

The test for determining criminal capacity is whether the accused had

• the ability to appreciate the wrongfulness of his conduct; and
• the ability to act in accordance with that appreciation.

A defence in this area may relate to

• biological (pathological) factors, like
• immature age; and
• mental illness; or
• non-pathological factors, like
• intoxication;
• provocation; and
• emotional stress.

Biological factors

Youth

Common law

The common-law position is that a minor

• under seven years of age is irrebuttably presumed to lack criminal capacity, being doli incapax;
• of seven to fourteen years of age is rebuttably presumed to lack criminal capacity; and
• over fourteen years enjoys the same criminal capacity as adults, without any presumption of a lack of capacity.

When dealing with the minimum age of criminal capacity,

• a child who commits an offence while under the age of ten years does not have criminal capacity and cannot be prosecuted for that offence, but must be dealt with, so there is an irrebuttable presumption that the child lacks capacity;
• a child who is ten years or older, but under the age of fourteen years, and who commits an offence, is presumed to lack criminal capacity, unless the State proves that he or she has criminal capacity, so there is a rebuttable presumption of lack of capacity.

The common law pertaining to the criminal capacity of children under the age of fourteen years was thereby amended.
When dealing with proof of criminal capacity, the State must prove, beyond reasonable doubt, that a child who is ten years or older, but under the age of fourteen years, had the capacity

• to appreciate the difference between right and wrong at the time of the commission of an alleged offence; and
• to act in accordance with that appreciation.

Section 8 provides for review of the minimum age of criminal capacity:

Mental incapacity

The “defence of insanity” had its roots in English law, in particular the M’Naghten rules.
There are two questions to consider in respect of mental incapacity:

1. Is the accused fit to stand trial? This is a preliminary issue.
2. Did the accused have the requisite capacity when he committed the unlawful act?

Test of insanity

“Mental illness” or “mental defect” is “a pathological disturbance of the accused’s mental capacity, and not a mere temporary mental confusion which is not attributable to a mental abnormality but rather to external stimuli such as alcohol, drugs or provocation.”
An affliction or disturbance is pathological if it is the product of a disease.
Mental illnesses (as opposed to mental defects) is defined as only those disorders which are

1. pathological; and
2. endogenous.

To be endogenous is to be of internal origin.
The difference between the first contingency and the second is between the cognitive and the conative respectively.

• The cognitive refers to insight, or appreciation of the wrongfulness of an act.
• The conative refers to self-control, or acting in accordance with an appreciation of that wrongfulness.

Types of mental disorders

Types of mental disorder:

• organic disorders, which are due to a general medical condition, and which are pathological and endogenous, and which therefore satisfy the criteria of the legal definition of insanity;
• substance-related disorders, which are not necessarily pathological, endogenous or permanent, so that persons suffering from them are not necessarily legally insane;
• schizophrenia and other psychotic disorders, which are pathological, endogenous and capable of depriving the sufferer of insight or self-control, and therefore satisfy the criteria of the legal definition of insanity;
• personality disorders, which are not a consequence of disturbance of the psychic state, but rather of patterns of behaviour learned during the formative years, and which are discussed further below; and
• mood and anxiety disorders:
• Mood disorders are capable of depriving the sufferer of insight or self-control, and may therefore satisfy the criteria of the legal definition of insanity.
• Anxiety disorders do not affect one’s ability to distinguish reality from unreality, and therefore are not psychotic in nature. Dissociative orders, however, may deprive the sufferer of insight or self-control, and therefore may satisfy the criteria of the legal definition of insanity.

Onus of proof

Kenyan law has adopted English law on the onus of proof in these matters: “Every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved.”
The Kenya criminal procedure code reiterates that every person is presumed not to suffer from a mental illness or mental defect so as not to be criminally responsible ,until the contrary is proved on a balance of probabilities.
Whenever the criminal responsibility of an accused is in issue, with reference to a commission or omission which constitutes an offence, the burden of proof will be on the party who raises the issue.
Almost always, therefore, it will be on the accused.An accused person who relies on non-pathological causes in support of a defence of criminal incapacity is required in evidence to lay a factual foundation for it, sufficient at least to create a reasonable doubt on that point. It is, ultimately, for the court to decide the issue of the accused’s criminal responsibility for his actions, having regard to the expert evidence and to all the facts of the case, including the nature of the accused’s actions during the relevant period.

Diminished responsibility

The CPA provides that, if the court finds that the accused, at the time of the commission of the offence, was criminally responsible, but that his capacity to appreciate the wrongfulness of the act, or to act in accordance with an appreciation of that wrongfulness, was diminished by reason of mental illness or mental defect, the court may take that fact into account when sentencing him.
Non-pathological criminal incapacity must be distinguished from mental illness. A person may suffer from mental illness, and yet nevertheless be able to appreciate the wrongfulness of certain conduct, and to act in accordance with that appreciation.

Non-pathological criminal incapacity

Intoxication

Intoxication may affect

• the act (rendering the conduct involuntary);
• capacity; or
• intention.

There are four types of intoxication:

1. involuntary;
2. intoxication leading to mental illness;
3. actio libera in causa (the principle that a person who voluntarily and deliberately gets drunk in order to commit a crime is guilty of that crime even though at the time he commits the prohibited conduct he may be blind-drunk and acting involuntarily); and
4. voluntary.

In R v Bourke,the accused was charged with rape, but acquitted as a result of intoxication. (He was, however, convicted of indecent assault.) The court noted three broad propositions in Roman-Dutch law:

1. “that, as a general rule, drunkenness is not an excuse for the commission of a crime, though it may be a reason for mitigation of punishment;”
2. that, “if the drunkenness is not voluntary, and is severe, it is an excuse;—that is, if the drunkenness was caused not by the act of the accused person but by that of another, and was such as to make him unconscious of what he was doing, then he would not be held in law responsible for any act done when in that state;” and
3. that, “if constant drunkenness has induced a state of mental disease, delirium tremens, so that, at the time the criminal act was done, the accused was insane, and therefore unconscious of his act, he is not responsible, but in such a case he can be declared insane.”

The court held that absolute drunkenness is not equivalent to insanity. The essential difference is that the drunk person, as a rule, voluntarily induces his condition, whilst the mentally ill person is the victim of a disease: “It is therefore not unreasonable to consider that the person who voluntarily becomes drunk is responsible for all such acts as flow from his having taken an excess of liquor.”
“To allow drunkenness to be pleaded as an excuse,” wrote Wessels J, “would lead to a state of affairs repulsive to the community. It would follow that the regular drunkard would be more immune from punishment than the sober man.”
The CPA provides that any person who consumes or uses any substance which impairs his or her faculties to appreciate the wrongfulness of his or her acts or to act in accordance with that appreciation, while knowing that such substance has that effect, and who [...] thus impaired commits any act prohibited by law [...], but is not criminally liable because his or her faculties were impaired [...], shall be guilty of an offence and shall be liable on conviction to the penalty [...] which may be imposed in respect of the commission of that act.
The elements of the offence of contravening the Act are as follows:

• consumption or use of any intoxicating substance by the accused;
• impairment of the accused’s faculties (to appreciate the wrongfulness of the act or to act in accordance with that appreciation) as a result of the consumption or use;
• knowledge that the substance has the effect of impairing his faculties;
• commission by the accused of any act prohibited by law while his faculties are so impaired; and
• absence of criminal liability because his faculties are so impaired.

There are two main components:

1. requirements relating to the consumption of the substance; and
2. circumstances surrounding the commission of the act.

Provocation and emotional stress

Provocation may be a complete defence in Kenyan law, and may exclude:

• the voluntariness of conduct (sane automatism), although this is very rare;
• criminal capacity; or
• intention.

Anger, jealousy or other emotions are not regarded as defences for any criminal conduct; they were only factors in mitigation of sentence, and even then only if they could be justified by provocation.
Any wrongful act of such a nature as to be sufficient to deprive any ordinary person of the power of self-control may be provocation, if the offender acts upon it on the sudden, and before there has been time for his passion to cool.
To be criminally liable, a perpetrator must, at the time of the commission of the alleged offence, have criminal liability. The doctrine of criminal capacity is an independent subdivision of the concept of mens rea. Therefore, to be criminally liable, a perpetrator’s mental faculties must be such that he is legally to blame for his conduct.
There are two psychological characteristics of criminal capacity:

1. the ability to distinguish right from wrong, and to appreciate the wrongfulness of an act;
2. the capacity to act in accordance with that appreciation, and to refrain from acting unlawfully.

Where a defence of non-pathological incapacity succeeds, the accused is not criminally liable; he may not be convicted of the alleged offence. He must be acquitted. Because he does not suffer from a mental illness, or from a defect of a pathological nature, he may not be declared a State patient either.

Specific crimes

Crimes against the State

Treason

Under the Kenya criminal law, treason is"any overt act committed by a person, within or without the State, who, owing allegiance to the State, having majestas," has the intention of

1. "unlawfully impairing, violating, threatening or endangering the existence, independence or security of the State;
2. "unlawfully overthrowing the government of the State;
3. "unlawfully changing the constitutional structure of the State; or
4. "unlawfully coercing by violence the government of the State into any action or into refraining from any action."

Damage of property

Arson

A person commits arson if he unlawfully and intentionally sets fire to

• immovable property belonging to another; or
• his own immovable insured property, to claim the value of property from an insurer.

Elements

The elements of the crime are the following: (a) setting fire to (b) immovable property (c) unlawfully and (d) intentionally.

Requirements

Arson is only a particular form of the crime of malicious injury to property. The crime can be committed only in respect of immovable property: that is, "buildings and other immovable property." If movable property is set alight, the crime of malicious injury to property may be committed, provided that the other requirements are met. The crime is completed only at the moment that the property has been set alight. If the arsonist is caught at a stage before the property has been set alight, he is guilty of attempted arson only, provided that his conduct has, according to the general rules governing liability for attempt, proceeded beyond mere acts of preparation.
As in malicious injury to property, one cannot in principle commit arson in respect of one's own property. A person commits arson if he sets fire to his own property to claim its value from the insurer. It would have been better to punish this type of conduct as fraud instead of arson, but the courts will in all probability not depart from the appeal court's view."
Intention, and more particularly the intention to damage property by setting fire to it, thereby causing patrimonial harm to somebody, is also required. Dolus eventualis in this regard is sufficient.