A.

INCHOATE OFFENCES (INCITEMENTS,CONSPIRACY & ATTEMPT)

WEEK 7

1. Incitement.

i. The crime.

 Section 96 Penal Code of Kenya . Incitement to violence and disobedience

of the law

‘Any person who, without lawful excuse, the burden of proof whereof shall lie
upon him, utters, prints or publishes any words, or does any act or thing,
indicating or implying that it is or might be desirable to do, or omit to do, any
act the doingor omission of which is calculated—(a)to bring death or physical
injury to any person or to any class, community or body of persons; or(b)to
lead to the damage or destruction of any property; or(c)to prevent or defeat by
violence or by other unlawful means theexecution or enforcement of any
written law or to lead to defiance or disobedience of any such law, or of any
lawful authority, is guilty of an offence and is liable to imprisonment for a term
not exceeding five years.[Act No. 32 of 1958, s. 2, Act No. 54 of 1960, s. 19, Act
No. 5 of 2003, s. 10.]97.

ii. Mens rea.

 Mens rea is understood from the words,

‘which is calculated—(a)to bring death or physical injury to any person or to any

class, community or body of persons; or(b)to lead to the damage or destruction of
any property; or(c)to prevent or defeat by violence or by other unlawful means
theexecution or enforcement of any written law or to lead to defiance or
disobedience of any such law, or of any lawful authority’.

iii. Actus reus

 The forbidden act is described vide section 96 of the Penal Code of Kenya
as follows:

1
‘As utters, prints or publishes any words, or does any act or thing, indicating or
implying that it is or might be desirable to do, or omit to do, any act the doing or
omission’

2. Conspiracy.

 It is an offence for a person to conspire with another to commit a

criminal offence.
 It is classified as a felony by virtue of section 393 of the PC, if the offence
is to commit a felony,

Section 393 of the Penal Code of Kenya provides for conspiracy to

commit felony.

‘Any person who conspires with another to commit any felony, or to do

any act in any part of the world which if done in Kenya would be a
felony, and which is an offence under the laws in force in the place where
it is proposed to be done, is guilty of a felony and is liable, if no other
punishment is provided, to imprisonment for seven years, or, if the
greatest punishment to which a person convicted of the felony in
question is liable is less than imprisonment for seven years, then to that
lesser punishment.

 A misdemeanor by section 394 of the PC if the offence is to commit a

misdemeanor. Criminal law seeks to punish conspiracy as an inchoate
offence.

Section 394 of the Penal Code of Kenya provides for, conspiracy to

commit misdemeanor.

‘Any person who conspires with another to commit a misdemeanour, or

to do any act in any part of the world which if done in Kenya would be a
misdemeanour, and which is an offence under the laws in force in the
place where it is proposed to be done, is guilty of a misdemeanour.

 Section 395 of the Penal of Code of Kenya provides for other conspiracies

‘Any person who conspires with another to effect any of the purposes
following, that is to say—(a)to prevent or defeat the execution or

2
 enforcement of any written law; or(b)to cause any injury to the person or
reputation of any person or to depreciate the value of any property of any
person; or(c)to prevent or obstruct the free and lawful disposition of any
property by the owner thereof for its fair value; or(d)to injure any person
in his trade or profession; or(e)to prevent or obstruct, by means of any
act or acts which if done by an individual person would constitute an
offence on his part, the free and lawful exercise by any person of his
trade, profession or occupation; or(f)to effect any unlawful purpose;
or(g)to effect any lawful purpose by any unlawful means, is guilty of a
misdemeanour’.

 The criminal process treats the preparatory stage as a crime itself. This
means that it is improper to charge conspiracy where the completed
offence has been committed.
 There is conspiracy in every case where accused persons are charged
jointly, but the accused persons can only be charged with conspiracy
where the completed offence has been committed.
 Secondly, criminal law uses conspiracy as a means of preventing group
activity which is seen generally as posing a particular social danger.

Offences consisting of conspiracy

 Conspiracy to defeat justice s. 117

 Conspiracy to defile s. 157
 Conspiracy to murder s. 224
 Conspiracy to defraud s. 317
 Conspiracy to commit a felony s. 393
 Conspiracy to commit a misdemeanor s. 394
 General conspiracy s. 395

Proof of Conspiracy *(direct evidence of agreement or things said in reference

to a common design. See section 10 of the Evidence Act.

Elements of conspiracy

i. The mens rea.

3
The guilty mind in the offence of conspiracy can be inferred from the coming
together whether physically or virtually with an unlawful intention, to commit
the prohibited act.

ii. The actus reus.

a) The agreement.

The gist of the offense of conspiracy lies not in the doing of the act, or in
effecting the purpose for which the conspiracy was formed, nor in attempting to
do them, nor in inciting others, but in the forming of the scheme or agreement
between parties.

b) Proof of agreement.

A conspiracy may be proved by direct evidence of agreement, especially where

there are documents that can be put in as evidence. It may also be proved from
things said in reference to a common design. See section 10 of the Evidence Act
Laws of Kenya. It provides that, ‘where there is reasonable ground to believe
that two or more persons have conspired together to commit an offense,
anything said, done or written by anyone having such intention at any time
after the intention was first entertained by any one of them is a relevant fact
against each of the conspirators and for purposes of proving the existence of
the conspiracy and that the accused person was party to it.

Case Law

Rex v Awadh bin Ali and others [1910] 3 EALR 82 (Hamilton and Barth JJ) it was
held that evidence of the statement by one of several conspirators in reference
to the common design is relevant in showing the part taken by the other
conspirators. The usual way, however is proving the acting of the parties which
points towards conspiracy. Agreement can be inferred from the facts.

4
 c) Number of Parties.

There must be two or more conspirators, since the offence cannot be

committed where there is no agreement. Conspirators should be charged
together and joined in one count. See Mattaka and others v Republic [1971] EA
495

3. Attempt

 An attempt to commit an offence is punishable although the accused

person has not achieved his objective and the actus reus of a completed
offence is not committed.
 S. 388 (1) of the Penal code provides that, ‘when a person, intending to
commit an offence, begins to put his intention into execution by means
adapted to its fulfillment and manifests his intention by some overt act,
but does not fulfill his intention to such an extent as to commit the
offence, he is deemed to attempt to commit the offence
 S. 388 (2) It is immaterial, except so far as regards punishment, whether
the offender does all that is necessary on his part for completing the
commission of the offence or whether the complete fulfilment of his
intention is prevented by circumstances independent of his will or
whether he desists of his own motion from further prosecution of his
intention
 S. 388 (3) It is immaterial that by reason of circumstances not known to
the offender it is impossible in fact to commit the offence. (The
punishment of attempt vide section 389 is one half of such punishment
as may be provided for the offence attempted, but it is punishable by
death or life imprisonment, he shall not be liable to imprisonment for a
term exceeding seven years.

Necessary ingredients of an attempt vide PC are:

 An intention to commit an offence

5
  A beginning to put the intention into execution by means adapted to its
fulfillment
 and a manifestation by some overt act.

Case law

Ismail bin Farah v. The Queen KLR 183 [1956]

It was held that the accused had tried to force the window of the car, had acted
furtively, moved off as soon as the police arrived and had denied falsely
tampering with the car at all .

i. Mens rea in attempt

As a general rule the intention required for an attempt will be the same as the
intention required for the completed offence, The intention can only be inferred
from the facts.

Case Law

Queen v Button [1900] 2 QB 597 (Mathew, Lawrence, Wright, Kennedy and

Darling JJ)

A good runner who personated moderate runners to win prize money. An

inference was drawn that he had entered the races with the intent to obtain the
prizes and amounted to obtaining goods by false pretense. For attempted rape
what should be shown is that the accused intended to gratify his passions and
that he intended to do so at all costs, not withstanding any resistance on the
part of the woman.

ii. Recklessness.

Rashness i.e. not giving sufficient though of the prohibited act though clear
that the result would be undesirable

iii. Negligence and strict liability.

6
Having duty of care, failure in that duty of care and causing injury/damages.
The intention is deemed to be irrelevant and therefore it is an offence of strict
liability

iv. Actus Reus.

Section 388 (1) provides that failure to commit the offense whether due to other
circumstances or voluntarily is immaterial for purposes of an attempt.

Case law

It was held in Reg v Ring and others (1890- 1895) 17 Cox CC 491 (Lord
Coleridge CJ, Hawkins, Wills, Lawrence and Wright JJ) that a person could be
convicted of attempted theft for putting his hand into an empty pocket.

7
FATAL OFFENCES AGAINST THE PERSON WEEK 8 & 9

HOMICIDES

Homicide means killing. There are different types of killings. Therefore all
murders are homicides. It therefore may be said that all murders are homicide
while not all homicides are murders. This term is ordinarily used in North
America.

1. MURDER

Section 203 of the Penal Code of Kenya provides that,

Any person who of malice aforethought causes death of another person by an

unlawful act or omission is guilty of murder.

Most jurisdictions define the criminal act element of murder as conduct that
causes the victim’s death (N.Y. Penal Law, 2011). The criminal act could be
carried out with a weapon, a vehicle, poison, or the defendant’s bare hands.
Like all criminal acts, the conduct must be undertaken voluntarily and cannot
be the result of a failure to act unless a duty to act is created by common law or
statute.

 Definition of Malice Aforethought

Malice aforethought means deliberately, knowingly, intentionally directing ones

acts or omissions to achieve an intended objective. Malice aforethought also
denotes a state of mind of a person who foresees and wills the possible
consequences of his conduct.1 For example when a person pushes another over
a cliff, so that the other falls to his death, it is presumed that he both foresaw
the person’s death as a consequence and desired it.

The phrase 'malice aforethought' originally bore its literal meaning. A killing
would only be murder if it was planned or premeditated in some way. However,
it soon became clear that this definition of murder was too narrow as it
1
See Busoya and another v Republic [1975] EA 215

8
excluded other types of killing deemed just as heinous and deserving of the
death penalty. Furthermore, the identification of malice aforethought with
premeditation meant that it was often difficult to prove. 2

Accordingly, judges began to expand the concept of 'malice aforethought' and

quickly dispensed with the requirement of premeditated intent. Thus it was
soon held that malice could be implied from the surrounding circumstances.
Indeed, there was support for the view that malice could be implied from a
general intent to injure.3 Furthermore, unprovoked homicides were excluded
from benefit of clergy with the result that provocation, rather than
premeditation, became the test of whether a homicide could be subject to
benefit of clergy.

See Republic v Abdinego Odera Tiema [2015] eKLR

By 1628 Coke was able to define murder as an unlawful killing done with
“malice aforethought, either expressed by the party or implied by law.” 4 Malice
would be implied by law where the killing was done in the absence of
provocation, by poisoning or in the course of a robbery (the forerunner of the
modern 'felony murder rule'). Coke's analysis was quickly seized on by judges
as a way of extending the law of murder to killers who “in the public opinion of
the day, ought not to be let off with the comparatively slight punishment
attaching to clergyable offences”. By the mid-seventeenth century it was clear
that malice aforethought comprehended:

Section 206 of the Penal Code of Kenya defines malice aforethought as follows:
-

“Malice aforethought shall be deemed to be established by evidence proving

any one or more of the following circumstances: -

a.  An intention to cause the death of or to do grievous harm to any person,

whether that person is the person actually killed or not;

b.  Knowledge that the act or omission causing death will probably cause
the death of or grievous harm to some person, whether that person is the
person actually killed or not, although such knowledge is accompanied by
indifference whether death or grievous bodily harm is caused or not, or by
a wish that it may not be caused.

c.  An intent to commit a felony.

2
CONSULTATION PAPER ON HOMICIDE: THE MENTAL ELEMENT IN MURDER, The Law Reform Commission, I.P.C.
House, 35–39 Shelbourne Road, Ballsbridge, Dublin 4 Copyright The Law Reform Commission 2001, First Published
March 2001, ISSN 1393 – 3140

3
R v Saunders [1576] 2 Plowd 473.
4
Coke, The Third Part of the Institutes of the Lawes of England (London, 1983), 45–52.

9
 d.  An intention by the act or omission to facilitate the fight or escape from
custody of any person who has committed or attempted to commit a
felony.

The Court of Appeal has on several occasions dealt with this aspect. In
the case of Joseph Kimani Njau vs R (2014) eKLR in concurring with
an earlier finding of the Court, but differently constituted in the case of
Nzuki vs R (1993) KLR 171 held as follows: -

“Before an act can be murder, it must be aimed at someone and in addition,

it must be an act committed with one of the following intentions, the test of
which is always subjective to the actual accused;-

i. The intention to cause death;

ii. The intention to cause grievous bodily harm;
iii. Where the accused knows that there is a serious risk that death or
grievous bodily harm will ensue from his acts, and commits those acts
deliberately and without lawful excuse with the intention to expose a
potential victim to that risk as the result of those acts.

It does not matter in such circumstances whether  the accused desires

those consequences to ensue or not in none of these cases does it matter
that the act and intention were aimed at a potential victim other than the
one succumbed”.

Meaning of aforethought

The term aforethought at common law meant that the defendant planned or
premeditated the killing. However, this term has lost its significance in modern
times and does not modify the malice element in any way. Premeditation is a
factor that can elevate murder to first-degree murder, as is discussed shortly.

Types of Malice Aforethought

The Court in the above case went on to say that: -

“In the case of Isaac Kimathi Kanuachobi -vs- R (Nyeri) Criminal Appeal
No. 96 of 2007(UR), the Court expressed itself on the issue of malice
aforethought in terms of Section 206 of the Penal code: -

“There is express, implied and constructive malice.  Express malice is

proved when it is shown that an accused person intended to kill while   implied
malice is established when it is shown that he intended  to cause grievous
bodily harm.  When it is proved that an accused killed in further course of a
felony (for example rape, a robbery or when resisting or preventing lawful arrest)
10
even though there was no intention to kill or cause grievous bodily harm, he is
said to have had constructive malice aforethought. (See Republic  vs
Stephen Kiprotich Leting & 3 others (2009) eKLR…”

- Express

Express malice is proved when it is shown that an accused person intended to

kill. See Isaac Kimathi Kanuachobi -vs- R (Nyeri) Criminal Appeal No. 96
of 2007(UR),
This is where it is obvious, that the act or omission was intended to reach a
desired objective. For example where a person leaves a child or infant without
food, so that the child dies of starvation, it is deemed that he foresaw the
consequences of neglect to feed the child and desired or willed it. The common
law position is that there cannot be intention unless there is also foresight,
hence the statement that every person intends the natural consequences of
their actions.5 This position taken in Rex v. Augen s/o Manyakutama (1948) 15
EACA 95.

- Implied

Implied malice is established when it is shown that he intended  to cause

grievous bodily harm. see Isaac Kimathi Kanuachobi -vs- R (Nyeri) Criminal
Appeal No. 96 of 2007(UR),
Intention may be inferred from facts and surrounding circumstances. In
Cleopas Hamisi Oforo v Republic, Mombasa CACRA No. 26 of 1984, it was held
that intention may be inferred from the facts and or surrounding
circumstances of the particular case.

- Constructive
Constructive malice aforethought is said when it is proved that an accused
killed in further course of a felony (for example rape, a robbery or when resisting
or preventing lawful arrest) even though there was no intention to kill or cause
grievous bodily harm. See Isaac Kimathi Kanuachobi -vs- R (Nyeri)
Criminal Appeal No. 96 of 2007(UR),

The question of causing death may in turn raise the following questions

- When does life begin

According to the Constitution of Kenya 2010, vide article 26 (2) ‘the life of a
person begins at conception.

5
See Kongoro alia Athumani s/oMrisho v Reginam (1956) 23 EACA 532

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 - When does life end

The Constitution does not seem to determine when life ends. Though article 26
(3) provides that,

A person shall not be deprived of life intentionally, except to the extent

authorized by this constitution or other written law. This article implies that
life ends naturally and not ‘intentionally’

- Year – and – a day rule

Definition.

A bright-line, common law rule that a person cannot be convicted of homicide

for a death that occurs more than a year and a day after his or her act(s) that
allegedly caused it. The rule arose from the difficulty of determining cause of
death after an extended period of time.

Historical origins of the rule

It has been suggested6 that the origin of the present substantive rule was a
procedural time limit which was imposed upon certain homicide proceedings.
Historically, when a homicide occurred, two different actions could be brought:
proceedings at the king's suit (a public prosecution) and an appeal for felony of
death.7

It was customary for an appeal for felony of death, which was the equivalent to
a private prosecution by interested parties, usually the relatives of the victim, to
be instituted first. 2.1 2.2 Originally there was no set time limit, although the
appeal proceedings had to be brought without delay.

In 1278, however, a statute 8 provided that if the relative sued within a year and a
day after the "deed" was done, the appeal would stand. The intention of the Act
6
See generally DEC Yale "A Year and a Day in Homicide" [1989] CLJ 202.
7
The proceedings were not alternatives; both could be brought in respect of the same death. It became the
practice of the Crown not to bring proceedings at the king's suit until the expiration of the time limit imposed upon
private prosecutions. This caused some difficulty since private parties were slow at initiating proceedings. An Act of
1486 (3 Hen VI1 c 1) expressly gave the Crown the authority to proceed before the expiration of a year and a day.
The 1486 Act stated that it was necessary to bring proceedings without delay for "by the end of the year all is
forgotten". This may suggest that, in part, the year and a day rule was based on evidential necessity: the need to
bring proceedings within a period in which cogent evidence could be readily obtained.
8
Statute of Gloucester, 6 Edw 1, c 9 (1278).

12
was to simplify the procedure which had previously existed. It was interpreted,
however, as imposing a rule that if proceedings were not brought within the
specified period, the right to bring appeal proceedings was lost.

The development of this rule from being a rule of procedure to becoming a rule
of substantive law has been traced by Yale. 9 He suggests that the judges 'I..

.simply announced the proposition that the criminal could not be proceeded
against as a murderer when a year had gone by before death ensued [and] since
it was expressed as a general rule it was adopted as the rule for the felony
it~elf10".~

In his opinion, the rule was the result of "historical accident" and.. "it is not
wonderful that a rule which denied the actionability by appeal for homicide
should have been considered applicable to all prosecutions on account of the
death.11

Connection between Rule of Procedure and Substantive Rule

Holdsworth12 also identifies a connection between the rule of procedure and the
substantive rule. He identifies early authority 13 establishing an additional
function for the rule as a presumption of causation reversing the burden of
proof. "At an early date the rule was laid down that if death ensued within a year
and a day sufficient connection [between the act and the death] would be
presumed. Perhaps this period was connected with the fact that it was the length
of time within which the relatives of the murdered man were able to bring their
appeal.14 From this presumption developed the modern rule that if death ensued
'I9

after a year and a day a sufficient connection can never be shown.

Although the source of the substantive rule seems to have been the time limit
imposed upon appeals for felony of death, the year and a day provision as part
of the definition of homicide gained an existence independent of its source. This
is illustrated by the different provisions which related to the date on which the
year and a day period started.
9
DEC Yale "A Year and A Day in Homicide" [1989] CLJ 202
10
Ibid p.207
11
Ibid p.206
12
Sir William Holdsworth, A History ofEnglish Law vol 111 (5th ed 1942) p 315. .
13
Fitz Ab Corone (1330) 303.
14
Sir William Holdsworth (op cit) p 315

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Date of death in the year and day rule

The year and a day in the definition of homicide begins with the infliction of
injury, but when calculating the period in which an appeal for felony of death
could be brought the time started from the date of death.15 Blackstone wrote:
"In order ... to make the killing murder, it is requisite that the party die within a
year and a day afer the stroke received, or cause of death administered.16

However, in his discussion of the appeals of death under the statute of

Gloucester, he said:
"...all appeals of death must be sued within a year and a day after the
completion of the felony by the death of the party".17
This distinction is found in other historical legal works. 18 When the appeals of
death procedure was abolished in the reign of George 111, the procedural time
limit went too, but its abolition did not affect the continuing existence of the
year and a day rule as a substantive rule of law.

Coke19 wrote that an essential ingredient to the crime of murder was that "the
party wounded, or hurt, etc die of the wound, or hurt, etc within a year and day
after the same". The 'day' was added merely to indicate that the 365th day after
the day of the injury must be included. This indication was made necessary by
the existence of an old rule (now obsolete) that, in criminal law, when
reckoning a period 'from' the doing of any act, the period was to be taken (in the
prisoner's favour) as beginning on the very day when the act was done. 20

Present status of the rule In addition to forming part of the law of murder, the
rule also applies to the law of manslaughter. In Dyson21, the accused inflicted
15
Coke's Institutes (1809) vol 1 part I1 p 320; Heydon's case (1586) 4 Coke's Reports 41. It is argued by Coke that
until the date of death no felony has been committed and that for this reason the period in which to bring an appeal
for a felony should not start until death. The authorities are not wholly consistent. Staunford's Les Plees del Coron
f.63r, stated that the period was calculated from the date of injury. Cases support this proposition: see Sayle's Select
Cases in the Court ofthe Kings Bench vol I11 p 109. Yale in [1989] CLJ 202 supports Staunford's approach and
suggests that the rule never underwent a change in form but only one of function.
16
Blackstone's Commentaries (1811) Book 4 p 197 (emphasis added).
17
Blackstone's Commentaries (181 1) Book 4 p 315 (emphasis added). He thought that this was declaratory of the
old common law and made reference to the position in the Gothic constitutions.
18
Hale's Pleas of the Crown (1736) p 427..
19
Coke's Institutes, (1809) vol 1 part 111, p 47.
20
JW Cecil Turner, Kenny's Outlines of Criminal Law (19th ed 1966) p 135
21
[1908] 2 KB 454.

14
injuries on a child in November 1906 and again in December 1907. The child
died in March 1908. The trial judge directed the jury that the accused could be
found guilty of manslaughter if the death was caused by the injuries inflicted in
November 1906. Lord Alverstone CJ, giving the judgment of the newly created
Court of Criminal Appeal, held that this was a clear misdirection because:

"it is still undoubtedly the law of the land that no person can be convicted of
manslaughter where the death does not occur within a year and a day after the
injury was inflicted, for in that event it must be attributed to some other cause. 22
It is significant that the court was expressing an unequivocal proposition. In so
doing, it turned what was probably a question of fact for a jury to decide (that is,
the question of causation), into an irrebuttable presumption of law. In due
course,23 we will consider whether the task of the jury should be restricted in
this way while it remains unrestricted for deaths within a year and a day.

 Intent – to – kill/murder

Among the elements of the crime of murder is the intent to kill which forms the
mens rea or the guilty mind.

Iay decides he wants to kill someone to see what it feels like. Jay drives slowly
up to a crosswalk, accelerates, and then runs down an elderly lady who is
crossing the street. Jay is acting with the intent to kill, which would be express
malice or purposely.

- Intention
There are only two reported Irish cases which discuss the meaning of intention,
one in the context of attempted murder, 24 and the other in the context of
capital murder.25 These cases rely on the relevant English authority pertaining
to the definition of 'intention', and so it is proposed to deal mainly with the
latter cases here. Both the Irish and English cases are set out below in
chronological sequence.

Following DPP v Smith, the next major case in this area of the law to reach the
House of Lords was Hyam v DPP.26 In this case the accused, Mrs Hyam, in
22
ibid, p 456.
23
See paras 4.8-4.12 below.
24
People (DPP) v Douglas and Hayes [1985] ILRM 25
25
People v Murray [1977] IR 360
26
Hyam v DPP [1974] 2 All ER 41.

15
order to frighten away her rival for the affections of a man, poured petrol
through the letterbox of the house where the woman and her children were
sleeping. She then ignited the petrol causing a fire in which two of the children
were killed.

The trial judge directed the jury that the necessary intent would be established
if the jury were satisfied that when the accused set fire to the house she knew
that it was highly probable that this would cause death or serious bodily harm.

The question which came before the House of Lords was whether proof of the
fact that the accused knew that it was highly probable that the act in question
would result in death or serious bodily harm would suffice to establish malice
aforethought in the crime of murder. The House of Lords, by a majority, upheld
the conviction for murder.27 All five judges were of the view that carrying out an
act with the knowledge that it was highly probable that death or grievous
bodily harm would result amounted to malice aforethought. 28 Accordingly, as
this state of mind was held to be a species of malice aforethought, it was not
strictly necessary to decide whether the accused actually intended to kill or
cause grievous bodily harm. Nevertheless, various views were expressed as to
whether foresight of probable consequences would amount to intention in the
strict sense.

- Deadly Weapon doctrine

The deadly weapon doctrine creates an inference of murder intent when the
defendant uses a deadly weapon (People v. Carines, 2011). A judge may
instruct the jury that they can infer the defendant intended the natural and
probable consequences of the criminal act, which are death when a deadly
weapon is utilized. This basically alleviates the burden of having to prove
criminal intent for murder.

- Means of producing Intentional Death

A deadly weapon is any instrumentality that can kill when used in a manner
calculated to cause death or serious bodily injury (Acers v. United States,
27
The two dissenting judges, Lords Diplock and Kilbrandon, differed from the majority only in construing grievous
bodily harm as bodily harm known by the offender as being likely to endanger life.
In reaching this decision the House of Lords based themselves on the definition of mens rea contained in article
244(b) of Stephen's Digest of the Criminal Law: “knowledge that the act which causes death will probably cause
the death of, or grievously bodily harm to, some person, whether such person is the person actually killed or not,
although such knowledge is accompanied by indifference whether death or grievously bodily harm is caused or
not, or by a wish that it may be caused”– Stephen, Digest of the Criminal Law (6th ed., Macmillan and Co., 1904),
article 244(b).

28

16
2010). The Model Penal Code defines deadly weapon as “any firearm, or other
weapon, device, instrument, material or substance, whether animate or
inanimate, which in the manner it is used or is intended to be used is known
to be capable of producing death or serious bodily injury” (Model Penal Code
§ 210.0 (4)). Some examples of deadly weapons are knives, guns, broken
bottles, or even bare hands if there is a discrepancy in the size of the attacker
and the victim. Aside from creating an inference of intent for murder, use of a
deadly weapon may also enhance a sentence for certain crimes.

- Causation

There is always a causation analysis for murder. The defendant must be the
factual and legal cause of a very specific harm—the victim’s death. Causation
issues in murder are numerous. If a state has a one or three years and a day
rule, this could complicate the causation scenario when a victim’s life is
artificially extended. One and three years and a day rules are discussed in
detail in Chapter 4 “The Elements of a Crime”. In addition, co-felon liability
could extend criminal responsibility to defendants that did not actually kill the
victim, as is discussed shortly.

 Intent to do serious bodily injury – murder

Jay wants to injure Robbie, a track teammate, so that he will be the best
runner in the high school track meet. Jay waits for Robbie outside the locker
room and when Robbie exits, Jay attacks him and stabs him several times in
the knee. Unfortunately, one of Jay’s stabbing wounds is in the carotid artery,
and Robbie bleeds to death. Jay is acting with the intent to cause serious bodily
injury, which would be implied malice, or knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human life.

 Depraved heart

Jay is angry at Brittany for turning him down when he asks her to the senior
prom. Jay decides to teach Brittany a lesson. He knocks her unconscious as
she walks home from school and then drives her out to a deserted field and
dumps her on the ground. He thereafter leaves, feeling vindicated at the
thought of her walking over ten miles to the nearest telephone. Brittany does
not regain consciousness and spends the entire night in the field, where
temperatures drop to 5°F. Brittany dies of exposure and acute hypothermia.
Jay acts with the intent of depraved heart, also called abandoned and
malignant heart. This criminal intent is another form of implied malice, or

17
knowingly or recklessly under circumstances manifesting extreme indifference
to the value of human life.

- Creation of risk
An act which creates risk. See irector of Public Prosecution v. Newbury and
another [1976] 2 All ER 365 (Lord Diplock, Lord Simon of Glaisdale, Lord
Kilbrandon, Lord Salmon and Lord Edmund-Davies) where it was stated that it
is manslaughter where death results from an unlawful act directed against a
person involving a considerable risk of injury, but which no reasonable
man would foresee as likely to cause death or grievous harm.

- Realization of the risk

Director of Public Prosecution v. Newbury and another [1976] 2 All ER 365 (Lord
Diplock, Lord Simon of Glaisdale, Lord Kilbrandon, Lord Salmon and Lord
Edmund-Davies) where it was stated that it is manslaughter where death
results from an unlawful act directed against a person involving a
considerable risk of injury, but which no reasonable man would foresee
as likely to cause death or grievous harm.

 Felony murder

- Limitation to certain felonies

- Vicarious Responsibility for Co- Felonies

 Resisting lawful arrest

 Degrees of murder

- First degree
- Second degree

2. MANSLAUGHTER
 Definition and classification
The penal code of Kenya in section 202 and 205 defines manslaughter as,

It is unlawful act without malice aforethought. Its principle element are:

a. The causing of the death of another person,
b. By an unlawful act or omission and
c. Death following within a year and a day.

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Manslaughter is the residual offence to murder. 29 The distinction between it
and murder lies in the absence of malice aforethought. This means that the
actus reus elements for the offence are the same as those required for murder,
but the mens rea required falls short of malice aforethought.

Case Law

Wycliff Oluoch Odhiambo v Republic Nairobi CACRA No. 27 of 1998 (Gicheru,

Tunoi and Okubasu JJA) there was evidence that the appellant did indeed
stabbed the deceased and caused his death, but there was doubt as to whether
he had malice aforethought. His conviction was substituted with
manslaughter.

Actus reus

- An unlawful act

The unlawful act or omission causing death of another person.

Case Law

In Rex v Mutono s/o Luigo and another (1936) 3 EACA (Sir Joseph Sheridan CJ,
Dalton CJ and Hearne J), it was held that to convict of manslaughter it is only
necessary to find that the act of the accused was an unlawful one.

- A dangerous act
The unlawful act must be one which is dangerous and likely to cause injury to
another. It is not necessary that the accused should have known that the act
would be likely to cause such injury, what is important is that a reasonable
person considering such an act would have recognized the danger.

Case Law

The dangerousness test was laid down in the case of the Director of Public
Prosecution v. Newbury and another [1976] 2 All ER 365 (Lord Diplock, Lord
Simon of Glaisdale, Lord Kilbrandon, Lord Salmon and Lord Edmund-Davies)
where it was stated that it is manslaughter where death results from an
unlawful act directed against a person involving a considerable risk of injury,
but which no reasonable man would foresee as likely to cause death or
grievous harm.

Mens rea
29
James (1965) supra, 260 at page 260 defines manslaughter as a’residual category of miscellaneous killings, a junk
room of those types of culpable homicides which do not, for one of several varied reasons amount to murder. See
also Tibamanya Mwane Mushanga, Homicide and its social causes, Law Africa Publishing (K) Ltd 2011, Nairobi, 38-
41

19
The mens rea for manslaughter falls short of malice aforethought. This could
be on account of a variety of factors, including the presence of mitigating or
extenuating circumstances. Malice aforethought is mitigated by the elements of
provocation, defence of life/property, intoxication, mistake of fact and
negligence among others. A person acting under the influence of such
extenuating circumstances is said to have a less guilty or morally blameworthy
mind and should be convicted of manslaughter rather than murder.

The following elements of a state of mind bring out the existence of mens rea or
guilty mind though falling short of malice aforethought;:

a. Malice aforethought mitigated by extenuating factors, intention to

commit a dangerous act, knowledge, recklessness, negligence

 Voluntary manslaughter
 Provocation and third parties
 The subjective condition

 The reasonable man

Negligence, a gross failure to discharge a duty which a reasonable man would
consider a very serious failing is likely to be considered a culpable negligence;
whereas a momentary inattention, which a reasonable man is capable of might
not to be so considered .

Case Law

Rex v Amosi Onoka s/o Amboya (1943) 10 EACA 69 (Sir Joseph Sheridan CJ,
Sir Norman Worley CJ and Mark Wilson Ag. CJ)

It was held that the ingredients of manslaughter by negligence are duty of care
on the part of the accused, failure to discharge that duty, death is caused by
default on the part of the accused and the accused’s negligence goes beyond a
mere matter of compensation and shows such disregard for life and safety of
others as to amount to a crime against the state and therefore deserving
punishment.
 Provocation arising from a mistake of fact
 Self induced Provocation
 By lawful fact

3. INVOLUNTARY MANSLAUGHTER
Involuntary manslaughter is defined as an unintentional killing that
results either from criminal negligence or the commission of a low-level

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 criminal act such as a misdemeanor. Involuntary manslaughter is
distinguished from other forms of homicide because it does not require
deliberation or premeditation, or intent. Because neither of these mental
states is required, involuntary manslaughter is the lowest level category
of homicide. 30

The first type of involuntary manslaughter occurs when a defendant

negligently commits an act that results in the death of another. The level
of negligence required for involuntary manslaughter is higher than
normal civil negligence and requires that the defendant have acted in a
very unreasonable manner.31

4. DEFENCE TO MURDER AND MANSLAUGHTER

The following are defenses to the charge of murder and manslaughter:

 By order of court

The execution of a court order i.e. death sentence would be a defense against
the charge of murder or manslaughter.
 In the prevention of crime or arresting of offenders

A police man is allowed to use reasonable force in preventing a crime or

arresting an offender and in the process if the subject of the act dies, the
policeman could use this defense against the charge of murder or
manslaughter.

 In self-defense

The Uganda High Court in Uganda v Mbubuli (1975) HCB 225 (Ssekandi Ag. J)
stated the law relating to self defense as consisting of four major elements.

i. That there must be an attack

ii. The accused must as a result of the attack, have believed on
reasonable grounds that he was in imminent danger of death or
serious bodily harm
iii. That the accused must have believed it necessary to use force to repel
the attack made upon him.
iv. That the force used accused must be such force as the accused
believed, on reasonable grounds, to have been necessary to prevent or
resist the attack.
30
https://www.justia.com/criminal/offenses/homicide/involuntary-manslaughter/
31
ibid

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 v.

 In defense of property

It was stated that in Muthiga v Reublic [1987] KLR 134 (Gicheru J) that
asserting one’s right of ownership and possession of some property against a
trespasser amounts to a defense of such property.

5. INFANTICIDE

 Introduction
This refers to the killing by mothers of their infants aged less than twelve
months. The Penal Code of Kenya defines this offence in section 210. It is
treated as manslaughter if the mother kills her child at a time when her
balance of mind is disturbed by not having recovered fully from the effects of
giving birth or of the effect of lactation.

Child Destruction32

1. 7.2 Section 10 of the Crimes Act 1958 (recommended for repeal in

England and Wales), which is headed ‘Offence of child destruction’,
states:

 Any person who, with intent to destroy the life of a child capable of being
born alive, by any wilful act unlawfully causes such child to die before it
has an existence independent of its mother shall be guilty of the
indictable offence of child destruction, and shall be liable on conviction
thereof to level 4 imprisonment (15 years maximum).
 For the purposes of this section evidence that a woman had at any
material time been pregnant for a period of twenty-eight weeks or more
shall be prima facie proof that she was at that time pregnant of a child
capable of being born alive.
 Where upon the trial of any person for the murder or manslaughter of
any child or for infanticide or for any offence under section sixty-five of
this Act the jury are satisfied that the person charged is not guilty of
murder manslaughter or infanticide or of any offence under the said
section sixty-five (as the case may be) but are satisfied that he is guilty of
the indictable offence of child destruction, the jury may find him guilty of
that indictable offence and he shall be liable to punishment accordingly.
 Where upon the trial of any person for the indictable offence of child
destruction the jury are satisfied that the person charged is not guilty of
that indictable offence but are satisfied that he is guilty of an offence
under section sixty-five of this Act the jury may find him guilty of that
offence and he shall be liable to punishment accordingly.
32
Victorian Law Reform Commission

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 1. 7.3 This section makes it a criminal offence for a person to intend to
destroy the life of an unborn child capable of being born alive by
unlawfully using any means to achieve this result. Section 10(2) of the
Crimes Act creates the rebuttable presumption that a woman who has
been pregnant for 28 weeks or more is carrying a child capable of being
born alive. This does not preclude a finding on the facts of a particular
case that a woman who has been pregnant for less than 28 weeks is
carrying a child capable of being born alive.2
2. 7.4 Sections 10(3) and (4) provide for alternative verdicts. Section 10(3)
permits a jury to find a person guilty of child destruction when the
person has been charged with murder, manslaughter, or infanticide.
Section 10(4) permits a jury to find a person guilty of the offence of
unlawful abortion under section 65 when the person has been charged
with child destruction.
3. 7.5 The Victorian offence of child destruction was drawn from the Infant
Life Preservation Act, enacted in England in 1929. The offence was
originally created in England to deal with lethal acts intentionally
performed during childbirth where there was doubt about whether the
child was born alive. To convict a person of murder, manslaughter, or
infanticide, the prosecution must prove the child was born alive. If that is
in doubt, the offence of child destruction can be charged as an
alternative.
4. 7.6 The offence is an anachronism, developed to cover a potential former,
rather than current, problem: the calculated and intentional killing of a
child in the process of childbirth to avoid punishment for infanticide or
murder. Punishment could, theoretically, be avoided due to a gap
between abortion and homicide laws.
5. 7.7 The offence creates a lack of clarity in Victorian law, which has three
different aspects. First, an unlawful abortion 3 that occurs at a stage
when a fetus is capable of being born alive falls within the ambit of both
section 65 (abortion) and section 10 (child destruction) of the Crimes
Act.4 The reach of those offences may not be the same because the
Menhennitt ruling about the meaning of the word ‘unlawful’ in section 65
may not apply to the child destruction offence. 5 Secondly, the offence has
been interpreted, and used, in Victoria as applying in circumstances far
removed from abortion: that is, when harm has been caused to a viable
fetus following an assault on a pregnant woman. Thirdly, the offence
requires the fetus to be ‘capable of being born alive’, which is a concept
that has a contested meaning. It draws in the complexities of the
common law ‘born alive’ rule and confuses the lines between child
destruction, abortion, and homicide offences

Abortion

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Penal Code Laws of Kenya

Article 158. Attempts to procure abortion.

Any person who, with intent to procure miscarriage of a woman, whether she is
or is not with child, unlawfully administers to her or causes her to take any
poison or other noxious thing, or uses any force of any kind, or uses any other
means whatever, is guilty of a felony and is liable to imprisonment for fourteen
years.

Article 160. Supplying drugs or instruments to procure abortion.

Any person who unlawfully supplies to or procures for any person any thing
whatever, knowing that it is intended to be unlawfully used to procure the
miscarriage of a woman whether she is or is not with child, is guilty of a felony
and is liable to imprisonment for three years.

[…]

Article 228. Killing unborn child.

Any person who, when a woman is about to be delivered of a child, prevents

the child from being born alive by any act or omission of such a nature that, if
the child had been born alive and had then died, he would be deemed to have
unlawfully killed the child, is guilty of a felony and is liable to imprisonment for
life.

Article 240. Surgical operation.

A person is not criminally responsible for performing in good faith and with
reasonable care and skill a surgical operation upon any person for his benefit,
or upon an unborn child for the preservation of the mother's life, if the
performance of the operation is reasonable, having regard to the patient's state
at the time and to all the circumstances of the case.

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