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 theius certumprinciple, 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 nulland 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 priorto 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 itis 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.
Kenya Criminal Law: Legality and the Constitution
Kenya Criminal Law: Principals of Legality
According to the principle of legality under Kenya criminal law, "punishment may only beinflicted for contraventions of a designated crime created by a law that was in force before the contravention." This is summed upin the dictumnullum crimen sine lege, "no crime without a law."
Another important principle isnulla 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 dictumnullum crimen, nulla poena sine praevia lege poenali, "laws and punishments do not operate retrospectively."
Aim And Purpose of Punishment Under Kenya Criminal Law
THEORIES OF PUNISHMENT
This are theories that explain the purpose of punishment in criminal law
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 theperpetrator's record of previous wrongdoing. They do not seek to justify punishment with reference to some future benefit which it mayachieve, 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, sinceboth 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.
Kenya Criminal Law: Punishment under criminal law
The criminal justice system in Kenya is aimedat 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; and3.combination or unitary, which fuse in various measures the other two.
General summary of Kenya Criminal law
Kenya criminal lawis the body ofnational 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 Waltet al, a crimeis "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.
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Criminal Law: Use of Force by police officer
Section 14A of the police act describes how a police officer should conduct and control force in executing his functions.
14A. (1) The force shall perform its functions under the overall
direction, supervision and control of the Commissioner of Police, and
shall be impartial and objective in all matters and in particular in all
political matters and shall not accord different treatment to different
persons on the basis of their political opinions.
(2) No police officer shall subject any person to torture or to any
other cruel, inhuman or degrading treatment.
(3) Any police officer who contravenes the provisions of this
section shall be guilty of a felony.
Criminal Law: Cognizable Offence in Kenya
Cognisable offence and non-cognisable offence are classifications of crime used in the legal system of Kenya.Non-cognizable offences includes misbehavior, public annoyance etc. In general non-cognizable offences are bailable.
Definition of a Cognizable offense
Generally, cognisable offence means a police officer has the authority to make anarrest without a warrant and to start an investigation with or without the permission of a court. By contrast, in the case of a non-cognisable offence, a police officer does not have the authority to make an arrest without a warrant and an investigation cannot be initiated without acourt order.
In Kenya, crimes like rape, murder and theftare considered cognisable unlike crimes like public nuisance, hurt and mischief.
Examples of Cognisable offenses
*.Waging or attempting to wage war, or abetting the waging of war against the government of India,
*.Murder
*.Rape,
*.Dowry Death,
*.Kidnapping,
*.Theft,
*.Criminal Breach of Trust,
*.Unnatural Offenses.
Police Officer’s Power to Investigate Cognizable Cases
Any officer-in-charge of a Police Station, without the order of a magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such stationwould have power to inquire into or try under the provisions of the Criminal Procedure Code.
Criminal Law: Non Cognizable Offence in Kenya
Non-cognizable offence means an offence for which, and `non-cognizable case’ means a casein which, a police officer without anywarrant has no authority to arrest.Non-Cognizable offenses are not much serious in nature.
Examples of Non cognizable offenses
*.Assault,
*.Cheating,
*.Forger
In case of Non-Cognizable offence, it is important for the police officer to obtain the permission from the Magistrate to start the investigation.In such offences for arrest, following steps have to be followed:
1.Filing of complaint/F.I.R
2.Investigation
3.Charge sheet,
4.Charge sheet to be filed in court
5.Trial
6.Final order of arrest if case has been made out.
Ordinarily a private citizen intending to initiate criminal proceedings in respect of an offence has two courses open to him. He may lodge an FIR before the police if the offence is cognizable one; or he may lodge a complaint before a competent judicial magistrate irrespective of whether the offence is cognizable or non-cognizable.
Criminal Law: Death Penalty in Kenya
Capital punishment, also known as thedeath penalty, is a government-sanctioned practice whereby a person is killed by the state as a punishment for a crime. Thesentencethat someone be punished in such a manner is referred to as adeath sentence, whereas the act of carrying out the sentence is known as an execution.
Crimes that are punishable by death are known ascapital crimesorcapital offences, and they commonly include offences such asmurder,treason,espionage,war crimes,crimes against humanityandgenocide. Etymologically, the termcapital(lit. "of the head", derived via theLatincapitalisfromcaput, "head") in this context alluded to execution by beheading.
Capital punishmenthas been practiced inKenyasince beforeindependenceand is still provided for under Kenyan law. No executions have been carried out in Kenya since 1987,When Hezekiah Ochuka and Pancras Oteyo Okumu were hanged for treason.
In 2009, Kenya commuted all death sentences to life imprisonment, impactingover 4000 death row inmates. The move was made to compel these prisoners to work, something condemned men are exempted.Despite the lack of executions,death sentencesare still passed in Kenya. In July 2013, Ali Babitu Kololo was sentenced to death for his role in the murder and kidnapping of two British tourists, and in 2014 a nurse received a death sentence after being convicted of carrying out anabortionon a woman whosubsequently died.
History
Capital punishment was introduced in Kenya in 1893 by the colonial government;the practice was uncommon in pre-colonial communities, which placed a high value on human life.In general, most African communities did not imposea death sentence on an individual unless as a last resort for an offender who had repeatedly "made themselves dangerous beyond the limits of endurance of their fellows".The Penal Code as created by the British required a mandatory death penalty for murder,treason and armed robbery. Numerous executions, documented as 1,090 in number, were carried out by the British colonial government during theMau Mau Uprising.
Afterthe 1982 coup d'état attempt,Hezekiah Ochuka, Pancras Oteyo Okumu and two other masterminds of the coup were convicted of treason, sentenced to death and consequently hanged. They were the last people executed in Kenya to date.[6]In 2010, theCourt of Appealrepealed the mandatory death sentence for murder inMutiso v. Republic, the third national court in common-law Africa to do so.[8]In 2016, President Uhuru Kenyatta commuted the death sentences of 2747 inmates on death row to life imprisonment, as was done by President Mwai Kibaki 7 years previously, where he commuted the sentences of 4000 inmates on death row to life imprisonment.
Criminal Law: Rights of an Accused Person in Kenya
The rights of an accused person in Kenya are divided into right before trial, rights during trial and rights after trial. The rights of accused include right to have a fair trial, get bail, hire a criminal lawyer, get free legal aid, and many more.
Every person is entitled to thebasic human rights, fundamental rights under the Kenyan Constitution and certain legal rights under various laws. These rights are provided to a person, irrespective of the fact that person is accused of a crime.These rights are given to an accused in Kenya on the lines that ‘let hundreds go unpunished, but never punishan innocent person. The rights of accused in Kenya are provided at different stages which include right an accused before his trial begins, rights of accused during a court trial, and right of an accused after his trial is completed. Here’s a complete list of rights of an accused in Kenya:
Pre-Trial Rights of the Accused
Any person who is accused of committing a crime has been given some rights so that his freedom and liberty are not hampered. The first stage of a trial is the pre-trial stage where an FIR is filed on the basis of which the police arrests a person, searches his property. The stage prior to the commencement of a court trial is extremely crucial and any person accused of a crime must be granted the following rights:
1. Right to know about the accusations and charges:Under The Criminal Procedure Code (CPC), , the accused person has the right to know the details of the offence and the charges that are filed against him.
2. Right against wrongful arrest:
The right is provided only in cases where a warrant is issued. The Constitution provides that a person arrested must be produced before a Judicial Magistrate within 24 hours of arrest.
3. Right to privacy and protection against unlawful searches:
The police officials cannot violate the privacy of the accused on a mere presumption of an offence. The property of an accused cannot be searched by the police without a search warrant.
4. Right against self-incrimination:A person cannot be compelled to be a witness against himself.
5. Right against double jeopardy:A person cannot beprosecuted and punished for the same offence more than once.
6. Right against ex-post facto law:
A person cannot be tried for an offence that was earlier a crime and now is not. This means that retrospective effect a law is not applicable. An act that was not a crime on the day when it was done, cannot be considered as an offence
7. Bail as a right of the accused:An accused person has the right to file a bail application to be released from jail custody. There are three kinds of bail under Kenyan law- anticipatory bail, interim bail and bail by a bond. A bail application for normal bail can be filed only in case of bailable offences. However, a person can also file an anticipatory bail through his criminal lawyer, before his arrest.
8. Right to legal aid:An accused person has the right to hire a lawyer to defend him and in case, he is not able to afford a lawyer, the State has to provide free legal aid to him for his representation in court.
9. Right to a free and expeditious trial:An accused has the right to have an expeditious trial, which is free of any bias or prejudice.
Rights of the Accused During the Trial
There are many rights of an accused provided for the time period when his trial is ongoing in the court. It has been observed that the State has to ensure that due process of law is followed, the accused gets a quick and impartial trial, the accused is not subjected to torture or forced to implicate himself. The rights of an accused during trial include the following:
1. Right to be present during trial:
the CPC provides that all evidence andstatements must be recordedin presence of the accused orhis criminal lawyer.
2. Right to get Copies of Documents:The accused has the right to receive copies of all the documents filed by the prosecutor in relation to the case.
3. Right to be considered Innocent till proven guilty:The accused has the right to be considered innocent until his guilt is proven in court on the basis of evidence and statements by witnesses.
4. Right to be present at the trial: The accused person has the right to be present during his trial and have testimony presented in front of him.
5. Right to cross-examination:The accused has the right to be cross-examined by the prosecutor to prove his innocence.
Post-Trial Rights of the Accused
An accused person also has certain rights once his trial is over. These rights depend upon the outcome of his trial,i.e. whether he has been acquitted by the court, or he has been held guilty and arrested by police.Right of an Accused if declared Innocent When a person is declared innocent and acquitted by the court, the following rights are given to him:
1. Right to get a copy of judgement
2. Right to receive protection by police if there are reasons to believe there is a threat to his life post-acquittal.
Rights of an Arrested Person
1. Right to Appeal:The rights of arrested persons include the right to file an appeal against his conviction in a higher court.
2. Right to Humane Treatment in Prison:The accused has a right to have all his human rights when in prison and be subjected to humane treatment by the prison authorities
3. Right to have Family Visits in Jail
4.Right against solitary confinement.There are numerous rights of an accused given to him before his trial, during his trial or after his acquittal or conviction. A person who is accused of committing a crime must consult a criminal lawyer to file for a bail application or when his rights are violated at any stage.
Criminal Law: Can police search your house or office without a warrant in Kenya
Let’s start with a basic. What is a search warrant? A search warrant is a court order that a magistrate, Judge or Court issues that authorizes law enforcement officers to conduct a search of a person, location or vehicle for evidence of a crime and to confiscate illegal items or evidence of crime, if they find any.
In order toget a search warrant, the police must convince a judge that there isevidence of a crime at that place and if the judge is convinced, he shall issue a warrant and the warrant must be very specific, as it should clearly state where exactly the search should take place, including a specific date and time.
The Kenyan Constitution gives protection to the accused person against testifying against themselves which implies protection of citizens from unreasonable searches.
The power to issue search warrant should be exercised with all the care and circumstances. According To the provisions of the Criminal Procedure Code, search warrant can be issued under specific circumstances.
The answer of the question as to whether police can search your house without warrant is “Yes”. The police can enter your private residence or office without a warrant, but only under very limited circumstances.
If a police investigation leads them tobelieve that there is an object which counts as evidence, that they must procure immediately, or if there is a criminal hiding in your house who might flee, then they can enter without a warrant so that they may secure the evidence or felon without any delay.
Under non-emergency circumstance, if the police have reasonable grounds to suspect that you are harbouring a suspect, conducting illegal activities, are hiding stolen goodsor evidence or have an illegal weapon in your home then they must first obtain a warrant from amagistrate before they can enter your home.
It is not a good idea to restrict the police from searching if they demand to search your house or office even if they do not have an warrant to do so, since they can use force with impunity and later on justify the search under the Criminal Procedure Code.
They can also arrest you for obstruction of a police officer, which is an offence.At best, you may demand that a police officer be present during the search. You can also demand that respectable civilian people in the area be present during the search. Also, the police should prepare a seizure list and make you sign the same.The real danger is that one may plant evidence against you during asearch and police may use this against you in a case. This is why, if possible searches should be video recorded.If search is not video recorded and it appears that evidence has been planted against you – the best recourse you have is in the court oflaw, and it is unlikely that you will be able to reason with the police.It is possible to demand that your lawyer, if immediately available, be present during a search. In fact, it is a great idea to have a good lawyer present during a raid or search of your premises.
Criminal Law: Difference Between Cognizable and Non cognizable offences in Kenya
Arrest
In a cognizable offence, a police officer may arrest without warrant for such offences
In a non cognizable offence a police officer has no authority to arrest without warrant for such offences
Nature of Crime
A cognizable offence is serious while a non cognizable offence id Not much serious
Filing of Complaint/FIR registered
In a cognizable offence FIR can be registered without magistrate’s permission.
In a non cognizable offence FIR cannot be registered without magistrate’s permission
Permission from Magistrate
If a Cognizable offense has been committed, a Police Officer Can investigate without the Magistrate’s permission.
Under a Non-Cognizable offense/case, in order to start the investigation, it is important for the police officer to obtain the permission from the Magistrate.
Criminal Law: Treason in Kenya
In law,treason is the crime that covers some of the more extreme acts against one's nation or sovereign.
Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife or that ofa master by his servant. Treason against the king was known ashigh treasonand treason against a lesser superior was petty treason.
A person who commits treason is known in law as atraitor.At times, the term traitor has been used as a politicalepithet, regardless of any verifiable treasonable action. In a civil war or insurrection, the winners may deem thelosers to be traitors. Likewise the termtraitoris used in heated political discussion – typically as a slur against political dissidents, or against officials in power who are perceived as failing to act in the best interest of their constituents.
In Certain cases, as with the Dolchstoßlegende(Stab-in-the-back myth), the accusation of treason towards a large group of people can be a unifying political message. Treason is considered to be different and on many occasions a separate charge from "treasonable felony" in many parts of the world.
InEnglish law,high treasonwas punishable by beinghanged, drawn and quartered(men) orburnt at the stake(women), althoughbeheadingcould be substituted by royal command (usually forroyalty and nobility). Those penalties were later abolished.
Any person convicted of treason against Kenya will receive a mandatory sentence of life imprisonment.
Criminal Law: Malicious Damage of Property in Kenya
Malicious Damage of Property Definition
Malicious Damage of Property simply means that you intended to cause the damage to the property or intended to destroy it.Damage refers to the ‘physical derangement’ of property. But, the damage does not have to be permanent or long lasting. The damage may include marking, defacing, removing or altering the property.
Malicious Damage to property may even go so far as to include interference such as deleting files from a computer, taking a key or erecting barriers, aimed at preventing use of a person’s property.
Malicious Damage Penalty
If an election is made for atrial on indictmentthen the penalty given to a person found guilty of damaging or destroying property ranges depending on how the property was damaged or destroyed.
Pleading Not Guilty
For you to be convicted of malicious damage the police will need to prove:
1.That you caused the damage or destroyed property
2.That the property that was damaged or destroyed belonged to another person, or you and another person
3.That you intended to cause the damage.
Each of these parts must be proved beyond a reasonable doubt.
If you decide to plead not guilty, a brief of evidence will be served. This brief containsall the evidence the police willuse to try and convict you of destroying or damaging the property.
This brief must be examined carefully. Once the brief has been considered, you can choose to adhere to the not guilty plea, or change your plea to guilty. Following this, a hearing date will be setfor your defended hearing.At the defended hearing, witnesses will be in court to testify against you and explain their version of events.
We will then have the ability to cross examine them. You can choose to testify and give your own version of events. When you testify, then you are also cross examined by the prosecution. Your solicitor can advise you whether or not you should testify.The law related to intent is very complicated and each case will often have a different outcome depending on the defendant’s state of mind. It is importance to examine the circumstances of each case carefully. The police will try to rely on any evidence of foresight to prove intent.
Malicious Damage Defences
*.Wrongfully accused (you are not the one who did it)
*.Necessity
*.Duress
It is important to note that you cannot be convicted of malicious damage if the property has been damaged or destroyed accidentally. This is because you did not have the intent required for malicious damage.A defended hearing requires significant preparation. It helps to have representation with expertise in Criminal law.
The brief of evidence must be carefully dissected. Consideration must be given to whether any subpoenas should be issued, and you need a criminal defence lawyer who can stand up in Court and defend your rights.
Pleading Guilty to Malicious Damage
If you are charged with this offence and you decide to plead guilty, you will still needto appear before a Magistrate to be sentenced.
A Magistrate when sentencing you for this offence will take into accountthe facts of the case, your prior record and any subjective material you present to them at the sentencing hearing.
Criminal Law: Malicious Prosecution in Kenya
An action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced Without Probable Cause And for a purpose other than that of bringing the alleged offender to justice.An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil.The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case. The defendant in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant. In most states the claim must be filed within a year after the end of the original case.A claim of malicious prosecution is a tort action.
A TORT action is filed in civil court to recover money damages for certain harm suffered. The plaintiff in a malicious prosecution suit seeks to win money from the respondent as recompense for the various costs associated with having to defend against the baseless and vexatious case.The public policy that supports the action for malicious prosecution is the discouragement Of Vexatious LITIGATION.
This policy must compete against one that favors the freedom of law enforcement officers,judicial officers, and private citizens to participate and assist in the administration of justice.
An action for malicious prosecution is distinct from an action for false arrest or false imprisonment. If a person is arrested by a police officer who lacks legal authority for the arrest, the proper remedy is an actionfor false arrest. If a person is confined against her or his will, the proper remedy is an action for false imprisonment. An action for malicious prosecution is appropriate only when the judicial system has been misused.
Malicious Prosecution - Elements Of Proof
To win a suit for malicious prosecution, the plaintiff must prove four elements:
(1) that the original case was terminated in favor of the plaintiff,
(2) that the defendant played an active role in the original case,
(3) that the defendant did not have probable cause or reasonable grounds to support the original case
Criminal Law: Criminal Damage in Kenya
What is criminal damage?
A person commits criminal damage whenthey intentionally destroy or damage a piece of property without lawful excuse.
What are the elements of criminal damage?
The essential element of the offence of criminal damage, is one of intent. The testin which is applied can be found inPace v H, in which Scott J stated that a person isnot guilty of the offence, unless he or she “…intended to cause that result, or believed that it was more likely than not such a result would be achieved.”
The following elements must be met:
• knowledge of the existence of the property
• knowledge of the existence of a risk thatthe conduct may damage the property
• an awareness of the risk
• proceeding with the offending conduct, despite of the awareness of the risk
• evidence that the causing of the damageis without lawful authority
• an understanding on the part of the defendant that no such lawful authority is evident.
How much damage must there be for a person to be found guilty of the offence?
A thing is damaged if it is rendered imperfect or inoperative.
A person can commit an offence of criminal damage towards their own property
Yes, it may seem unusual that a person can be found guilty of an offence of criminal damage in relation to their own property – but it can happen. The most common examples of criminal damage to ones property, is when a person either arranges for an acquaintance to get rid of their car for insurance purposes.
Kenya Criminal Law Revision Paper
1. Match the following theories of criminal punishment with their respective attributes:
A. Utilitarianism 1. punish this criminal to deter other criminals.
2. punish this criminal to deter this criminal from future crimes.
B. Retributivism 3. respect the criminals free will choice to commit crime by punishing him.
4. forward looking - focus on preventing crime.
5. backward looking - focus on the crime itself.
6. punish criminal because he deserves it.
7. punish criminal to express societys disapproval of his conduct
1. A: 1, 2, 4; B. 3, 5, 6, 7.
2. What is the difference between the principle of legality and the rule of lenity? What are the policy reasons behind each?
2. The principle of legality is that there is no crime or punishment without a pre-existing law that prohibits that crime. Thus, the conduct must be deemed a crime before the act is committed. The policy behind the principle of legality is that fair warning should be provided to a criminal so that he does not inadvertently commit a crime that he has no reason to believe is illegal. There is no deterrence value in having unwritten crimes because people do not know what actions to avoid. Also, it is not morally culpable to do an act that a person reasonably believes is not illegal. Lastly, it would be unconstitutional under the ex post facto clause to do so. The rule of lenity is a corollary to the principle of legality - it follows naturally from it. The rule of lenity requires that all ambiguities in statutory language be resolved in the defendants favor. The policy reasons are the same as the rule of legality. Also, the rule of lenity encourages the legislature to write more clear statutes.
3. Jim is a hypnotist who hypnotizes Annette at a party. While Annette is hypnotized, Jim entertains the crowd by suggesting that she punch her husband, Bill in the nose. Annette does punch Bill in the nose, but she claims that she does not remember anything during the time she was hypnotized. If Bill were to press charges against Annette for battery, what possible defenses could Annette raise?
3. Annette would attempt to negate the actus reus requirement of the crime, and perhaps the mens rea as well. In either case, these would be failure of proof defenses as opposed to true defenses. To defeat the actus reus, Annette would claim that since she was hypnotized, her act was not voluntary. That is to say that it was not a product of her free will. She could claim automatism or unconsciousness, meaning that she was not conscious of her actions and they were reflexive in nature. Also, the acts could be equated to those of a sleepwalker. However, one can make a policy argument that so little is known about hypnosis that a line can not be drawn between what actions are voluntary and which are not when a person is hypnotized.
4. Robin suffers from a legitimate, documented mental disease called multiple personality disorder or MPD. Her alternate personality, Jennifer, is a wild partier who drinks excessively. One evening, while Jennifer was in control of her body, she was arrested for drunk-driving. What defenses would Robin raise in regards to the DUI charge? Assume that both Robin and Jennifer are rational personalities, the only difference being that Jennifer is much less inhibited than Robin.
4. Robin would attempt (as did Annette in Question 3, above) to defeat the actus reus requirement of the crime. Robin would not claim insanity as a defense to the mens rea because both she and Jennifer are both able to form the intent to drive drunk, and both should know it is illegal. To defeat the actus reus element, Robin would claim that her actions were involuntary because they were performed by her alternate personality, and that she had no control over her body while Jennifer had control. However, a policy argument can be made that since it is difficult to prove, MPD should not be a defense because the courts can not punish one personality separately from another in the same mind and should not have to do so. (See Dressler, pg. 75-76).
5. Harry is a boisterous drunk who likes to drink beer at home each night while he listens to loud music. A neighbor calls the police on Harry, and they come to tell him to quiet down. When they get to his door, they arrest him and take him out into the front yard and begin to argue with him about the noise level. Harry, obviously intoxicated, shouts loud obscenities at the police officers, who subsequently charge him with public drunkenness, which is defined by statute as appearance while intoxicated in a public place and acting in a boisterous manner. What is Harrys defense to the public drunkenness charge?
5. Harry will argue that although his intoxication was voluntary, that the proper voluntary act required to be proven by the statute was the appearance in public. Since he was taken from his home by the police officers, his appearance in public was involuntary. Had he not been arrested by the police officers and removed from his home, his conduct would not have satisfied the public drunkenness statute. (See Dressler, pg. 79).
6. Jane is married to Michael. Michael is a drug dealer. One night, Jane comes home and finds Michael on the floor, doubled over in pain as a result of being beaten by the buyer in a drug deal gone sour. Michael is bleeding internally and is in a lot of pain and can not reach the telephone to call for help. Michael asks Jane to call 911, but she refuses, saying that it serves him right for getting involved with drugs, and that she is going to let him suffer for a while before she calls for help, so that he is sure to learn his lesson. After 15 minutes, she calls for 911, but when the paramedics arrive, it is too late to save Michael, who dies. May Jane be charged with murder for waiting 15 minutes to call for help?
6. The general rule is that there is no liability for an omission in the absence of a legal duty to act. A moral duty to act is insufficient to create criminal liability. However, there are several exceptions, including express statutory duty, contractual obligation, and the common-law duties arising from creation of the risk, voluntary assistance, and special relationship. Married couples, like Jane and Michael are part of a common-law special relationship between spouses. Thus, Jane had a legal duty to summon assistance for her husband, Michael. A factual issue exists whether the delay of 15 minutes caused Michaels death, or whether he would have died anyway as a result of his wounds. Also, Jane must have had the requisite mens rea, which for murder is intent to kill. It is likely that Janes spiteful comment that she was delaying to teach Michael a lesson would be viewed as extreme recklessness and extreme indifference to human life (depraved heart murder).
7. Divide the following crimes into their respective elements: the actus reus, and the mens rea. For each crime, classify the actus reus as a conduct or result crime (social harm element) and identify the attendant circumstances elements.
A. murder - the killing of a human being by another human being with malice aforethought.
B. DUI - intentionally driving under the influence of alcohol.
C. burglary - the breaking and entering of the dwelling house of another at nighttime with the intent to commit a felony within.
7. The actus reus in the following answers are bolded, the mens rea is underlined:
A. murder - the killing of a human being by another human being with malice aforethought.
1. result crime - it is the result that is prohibited.
2. Attendant circumstances are not expressly defined but could include the fact that the murder weapon was loaded.
B. DUI - intentionally driving under the influence of alcohol.
1. conduct crime - no harmful result is required, the conduct itself is prohibited.
2. Attendant circumstances are part of the crime definition - driving must occur while the driver is under the influence of alcohol.
C. burglary - the breaking and entering of the dwelling house of another at nighttime with the intent to commit a felony within.
1. conduct crime - no harmful result is required.
2. Attendant circumstances are part of the crime definition - house must be a dwelling house, conduct must occur at nighttime.
8. An anarchist throws a bomb into the Kings carriage. The King and his valet are riding inside and are killed by the concussion of the explosion. The coachman sitting atop the carriage is killed by being thrown from the carriage and landing on his head. The people lining the street to watch the King go by are killed by flying fragments. When questioned, the anarchist states that he intended to King, and knew that the valet would also die because he was so close. He also stated that he figured the coachman would be hurt, but he wouldnt let that stop him from killing the King. Lastly, he stated that he had no idea that the explosion might kill the people lining the street and was sorry that they died because he did not intend to kill any of them. What was the anarchists mental state with regard to 1) the King, 2) the valet, 3) the coachman, and 4) the bystanders.
8. The Model Penal Code § 2.02 defines 4 mental states: purposely, knowingly, recklessly and negligently. A person acts purposely if it is his conscious object to engage in conduct or cause a particular result. The anarchist stated that he intended to kill the King. Thus, the anarchist acted purposely with respect to killing the King. A person acts knowingly if he is aware or practically certain that a particular result will occur. The anarchist knew that the valet would also die because he was so close. Thus, the anarchist acted knowingly with respect to killing the valet. A person acts recklessly if he consciously disregards a substantial and unjustifiable risk. Whether the risk is substantial and unjustifiable is measured by the law-abiding citizen standard. A law abiding citizen would regard the risk of blowing up a person as substantial and unjustifiable. Since the anarchist figured the coachman would be hurt, but he wouldnt let that stop him from killing the King, he consciously disregarded a substantial and unjustifiable risk, thus acting recklessly with respect to killing the coachman. A person acts negligently if he should be aware of a substantial and unjustifiable risk. Whether the risk is substantial and unjustifiable is measured by the reasonable person standard. A reasonable person would likely have known that an explosion inside the carriage would cause lethal fragments to be thrown into the crowd. Even though the anarchist never intended to kill an innocent bystander, he is held up to the reasonable person standard and thus acted negligently with regard to killing the bystanders.
9. Under the Model Penal Code, if a statute is silent as to the particular mental state required for any particular element, what mental states would satisfy the requirement?
9. When the definition of a criminal offense is silent regarding the matter of culpability as to any material element of the offense, §2.02 provides that the element is satisfied if the person acted purposely, knowingly or recklessly (but not merely negligently).
10. If a statute defines the crime of false imprisonment as knowingly restraining another person unlawfully, how would the Model Penal Code treat the mens rea for each of the material elements of the crime?
10. MPC §2.02(4) provides that if a single mens rea element is given in the definition of a crime, without distinguishing among the material elements of the crime, then that mens rea applies to each material element of the crime. Thus, to be guilty of false imprisonment under this statute, the person must have knowingly restrained the person, and also have known that the restraint was unlawful. See Ratzlaf and Dressler, pg. 123.
11. Jim is pulled over for suspicion of driving drunk. He consents to a search of his car. Under the back seat, the police officer finds a bag of cocaine. When questioned, Jim claims that the car belongs to a friend who loaned it to him to go bar-hopping for the night. Jim states that he had no idea that there was cocaine under the back seat. What issues are raised if Jim is charged with knowing possession of a controlled substance.
11. First, we will deal with the actus reus portion of this conduct crime. Possession requires that the actor have been aware of his control of the object for a sufficient period to have been able to terminate his possession. If Jim were reasonably never aware of his control of the object, then he could not have had a chance to terminate his possession, thus negating the actus reus of possession. As to the mens rea, a person acts knowingly in a conduct crime if he is aware or is practically certain of the existence of a certain fact. If Jim honestly and actually did not know what, if anything, was under the back seat, then he could not have been aware of his conduct. However, if Jim had reason to suspect that there was a controlled substance under the back seat, then he would not be excused merely by avoiding actual knowledge of what was there. Jim may not use willful blindness to negate the mens rea of knowingly.
12. Which of the following is not a factor that the court would consider in determining whether a crime is a strict liability crime:
A. The penalty is small.
B. Legislative policy would be undermined if a mens rea were required.
C. The standard imposed by the statute is reasonable and would be properly expected of a person.
D. The stigma associated with violation of the statute is large.
E. The statutory crime is malum prohibitum, not malum in se (not derived from the common law crimes.
12. D. The stigma must be small not large.
13. What is Lady Wootens Proposal? What are the arguments in favor of it? What are the arguments against it?
13. Lady Wooten proposed that the mens rea be done away with in the definition of all crimes, thus making all crimes strict liability offenses. Mens rea would only be relevant at the time of sentencing. She argued that the mens rea element was solely retributive in nature, going to the moral culpability of the actor. Thus, in a utilitarian system relying on deterrence, failing to prosecute any crime stands in the way of efficient deterrence. The punishment aspect of sentencing was the more rational place to take into account the persons moral culpability. Leniency would be given to those who were not morally culpable. However, this would result in the police being overburdened by having to enforce the law in unnecessary situations, and provide intolerable intrusion into the citizens life. Any casual bump in public would have to be prosecuted as a battery, only to let the defendant off without punishment after a burdensome trial. Thus, the transaction costs in maintaining such a system would be prohibitive.
14. Consider the following short hypos. In each, who is a proximate cause of Vs death?
A. D1 takes aim at V. But before D1 shoots, D2 shoots V, killing V instantly. D1s bullet strikes Vs dead body.
B. Both D1 and D2 shoot V simultaneously in the stomach. Either shot would have killed V in 1 hour, but the combination causes V to die in 5 minutes.
C. Both D1 and D2 simultaneously shoot V in the head. Either shot would have been sufficient to kill him instantly.
D. D1 shoots V in the stomach (which would have killed V in 1 hour). A second later, V is struck in the head by a bullet shot by D2, which kills V instantly.
E. D seriously (but not lethally) wounds V. At the hospital, V receives negligent medical care, and then dies.
F. D seriously (but not lethally) wounds V. At the hospital, V is stabbed by a knife wielding maniac.
Theft By Servant in Kenya: Penalty For Stealing From Employer in Kenya
How is Embezzlement Punished?
Restitution
Aggravating factors
Kenya criminal law:Abuse of office
Penalty for abuse of office.A person convicted of an offence of abuse of office under Kenya law is liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding 10 years or to both.
List of offenses one can be charged with as abuse of office under Kenya law.
1.Unauthorized administration of oaths.Any person who administers an oath, or takes solemn declaration or affirmation or affidavit, touching any matter with respect to which he has not by law any authority to do so is guilty of a misdemeanour and is liable to imprisonment for one year.
2. Personating persons employed in the public service.Any person who -
(a) personates any person employed in the public service on an occasion when the latter is required to do any act or attend in any place by virtue of his employment; or
(b) falsely represents himself to be a person employed in the public service, and assumes to do any act or to attend in any place for the purpose of doing any act by virtue of such employment,
is guilty of a misdemeanour and is liable to imprisonment for three years.
3.False assumption of authority.Any person who -
(a) not being a judicial officer, assumes to act as a judicial officer; or
(b) without authority assumes to act as a person having authority by law to administer an oath or take a solemn declaration or affirmation or affidavit or to do any other act of a public nature which can only be done by persons authorized by law to do so; or
(c) represents himself to be a person authorized by law to sign a document testifying to the contents of any register or record kept by lawful authority, or testifying to any fact or event, and signs such document as being so authorized, when he is not, and knows that he is not, in fact, so authorized,
is guilty of a misdemeanour.