CRIMINAL LAW GPR -105

MODULE II -EVENING
CLASS NOTES

LECTURER: DR.W.MUSYOKI

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LECTURE 1: THURSDAY 13 TH OCTOBER 2011 – 5.30AM-8.30PM – SHERIA
HALL

TYPES /CATEGORIES OF LAW

 Law is generally split into two broad categories namely

a) Public Law-concerns the general publi c e.g. Administrative law, Criminal

law and Constitutional Law.
b) Private Law-which is law of private nature e.g. Law of Contracts and Law
of Torts

 Hence criminal law is part of public law because crimes are wrongs against
society.
 Crimes are wrongs which the state has isolated and hence prohibited (that is why
criminal law is public law).

SUBJECTS COVERED UNDER CRIMINAL LAW

SUBSTANCE OF CRIMINAL LAW

Under this subject you learn about crimes and principals governing crime.
 What is crime?
 What are the elements of criminal law?
 How do you determine criminal responsibility or liability?
 General defences in criminal law.
 Criminology and Penology

NB: Criminology and Penology are not legal topics Parsee but are important because they
help use understand why crim es happen. Especially in policy formulation around criminal
law.

I. Criminology deals with causes and the environment of crimes

II. Penology deals with treatment of offences

DEFINATION OF CRIME

There are several definition of crime which brings out differen t elements of criminal law

What is a Crime?

1. A crime also known as an offence is an act or omission that has been prohibited
by the law, the law has been enacted for the protection of the public and
violation of which is prosecuted by the state in a judicial proceedings in the
name of the state.

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ELEMENTS OF CRIME BASED ON THE ABOVE DEFINATION

From the above definition there are three distinctive elements of a crime

a) Act and omissions that has been prohibited by law.

 Hence an offence is not a crime if i t has not been prohibited by law.
 The prohibition means that the state has passed a law specifically to outlaw the
act.
 And therefore for you to be prosecuted the act must have been prohibited by
statute or act of parliament.

b) Criminal Law is enacted for the protection of the public.

 This explains further why criminal law is part of public law
 The objective of the criminal law is to protect public.
 Hence the act must be injurious to the society for it to be a crime.

c) Violation of the law leads to pr osecution

 If you commit a crime, it exposes the person to prosecution.
 The prosecution is by the state in the name of the state.
 This brings the issue of primacy of the state in criminal law.
 The primacy arises because it is the state that enacts and crimi nalizes the offence;
hence the prosecution is by the state.
 In most jurisdictions the prosecution is in the name of the state and the
complainant is a witness of the state.
 In most criminal cases you will see the case written as follows
I. The People Vs The Accused e.g. in the USA
II. Uganda Vs The Accused e.g. in Uganda
III. The Republic of Kenya Vs The Accused e.g in Kenya
 Even if the prosecution is private it is still done by the state.
 In the old constitutional dispensation the AG was the government’s prosecutor bu t
in the new constitution there is an independent office i.e the office of the DPP.

NB: An individual private person can also file for a criminal case, if the state is not doing
anything about the case. But you still must be given authority by a court of law to do so.
Even if you get the authority the state can still take over the case and continue with it.

2. A crime is an illegal act or omission or event or state, with consequences that the
offender is prosecuted by the state or in the name of the state and if the offender is
found guilty he is liable for punishment .

ELEMENTS OF CRIME BASED ON THE ABOVE DEFINATION

d) Punishment
 Another element of criminal law is punishment. If an offence is created by law
then the penalty/punishment must be spelt out by or in law.

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  One of the most fundamental distinctions between civil and criminal law is in the
notion of punishment.
 In criminal law, a guilty defendant is punished by either
I. Incarceration in a jail or prison,
II. Fine paid to the government, or, in excepti onal cases,
III. Execution of the defendant: the death penalty.
 Crimes are divided into two broad classes: felonies have a maximum possible
sentence of more than one year incarceration; misdemeanors have a maximum
possible sentence of less than one year incar ceration.

What is the purpose of Punishment? Why Punish?

 Punishment should serve some purpose, because criminal law is to protect the
public and society at large, hence the punishment should essentially have some
utility. Below are some purposes of punis hment

a) Retribution-This is the oldest justificati on of punishment dating way back to the

Code of Hammurabi to t the Mosaic law. It’s the tit for tat, eye for eye, and tooth
for tooth concept.

b) Deterrence-This is a preventive measure and nature e.g through imprisonment

the offender is deterred from committing the offence again. Corporal punishment
(although abolished in 2003) was also used as deterrence. The deterrence is also
at a society or community level, because the punishment can serve as a lesson to
other people or community at large. The deterrence can be permanent like in
death penalty.

c) Reformation/Re-habilitation/Correction-This is the modern justification for

punishment. Treat criminals as sick people and you try and reform them for
better.
 The above factors or purposes are taken into consideration when passing
judgment.
 In some cases like murder there is no discretion by the judge because the
judgment is one, but in most of the other cases the judge has discretion.
 As a result when defining an of fence the element of sanction should not be left
out.
 Summarily a crime has a consequence and the consequence has a purpose.

CHARACTERISTICS OF A CRIME

a) It refers to a conduct that is or which is harmful. Which the state decides to

prevent. Hence the basis of determining a crime is whether it is harmful to an
extent of criminalizing it.
b) Among the measures for prevention of a crime or criminal conduct is the threat of
punishment.

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 c) Legal proceedings are employed to decide whether the accused did or caused the
harm in question.

A WRONG

 A wrong is defined as a breach of rule.

 The rule can be a moral or legal.
 In criminal law we are more concerned on the legal wrong.
 A legal wrong can be either a civil wrong or a criminal wrong

CIVIL WRONG AND CRIMINAL WRONG

 Civil wrongs are mainly torts; they follow under civil law which defines rights
and duties of individuals amongst themselves.
 Criminal law defines duties and obligations to society.
 They are both provided for by law but are not one and the same. They are not
provided for in the same manner.
 Crimes are created when people’s character goes beyond the tolerable level while
civil wrongs start from the beginning.
 Society separates the two:
(i) Civil wrong implies a liability for a breach of duty; the wrong doer
compensates the wronged. Crime on the other hand implies a punishment.
(ii) The same conduct can be both criminal and civil.
(iii) Both criminal and civil offences impose sanctions that may be the same. A
criminal and a civil wrongdoer may both be given similar punishme nt
although their wrongs are different.
(iv) Definition or crime: An act or an omission (omission can constitute a
crime only if you are under a legal obligation to act) classified in the law
as a criminal offence.
1961 Suicide act in Britain legalized suicide.
1967 Homosexuality act in Britain legalized homosexuality in private.
 The circumstances are important e.g. homosexuality in private is legal.
 A law can be changed.
 A crime must be endorsed by law, and one cannot define his own crime.
 A crime must be punis hable by law, if an offence is called a crime but it’s
punishment is not defined, then it isn’t a crime.

Peebles Vs State[1897] 10 GA 585

- The accused put some poison in a well with intent to kill the victims. But the
victims discovered the poison before d rinking the water.
- His offence was therefore poisoning the well, which was not punishable by
criminal law. He was therefore not guilty of a crime.

 It cannot be an offence unless it is provided for and it’s punishment is provided

for in writing (Sec 77(8) if the Kenyan Constitution.)

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  The only act that is criminal but is not defined is contempt of court.
 A crime cannot be generally and conclusively defined because it is defined by the
law, which can change at any time. However, the nature of a crime can be
generally and conclusively defined:
(i) Public wrong.
(ii) Prosecuted by the state.
(iii) An act or an omission.
(iv) Generally found offensive by the public.
(v) Endorsed by parliament.
 Criminal wrongs are not always morally reprehensible. e.g. a strike may be moral
to the strikers but illegal to the government.

DISTINCTION BETWEEN CRIMINAL LAW (WRONG) AND CIVIL LAW

(WRONG)

1. By Definition

 There is no clear distinction between civil and criminal wrong .

 The definition of crime brings out the difference.
 A crime has to be defined and written in law.
 There are some instances where a civil wrong can be a criminal wrong as well.e.g
in case of careless driving and causing an accident. In this case the police can
charge you under criminal law and the injured person cab sue for compe nsation
under civil law. And the two will run concurrently
 In criminal proceeding the injured or complainant is not party to the litigation s/he
is infact a witness.
 In practice people use the outcome of the criminal proceeding as evidence for the
civil suit.
 But even if the accused is found innocent in the criminal proceedings the injured
can still sue in a civil proceeding.
 Hence criminal law has to be written or enacted by statute or act of parliament
while most civil wrongs are common law except for contempt of court.

2. Burden of Proof and Threshold of Evidence

 In criminal litigation, the burden of proof is always on the state. The state must
prove that the defendant is guilty. The defendant is assumed to be innocent; the
defendant needs to prove nothi ng. (There are exceptions. If the defendant wishes
to claim that he/she is insane, and therefore not guilty, the defendant bears the
burden of proving his/her insanity. Other exceptions include defendants who
claim self-defense or duress.)
 In criminal litigation, the state must prove that the defendant satisfied each
element of the statutory definition of the crime, and the defendant's participation,
"beyond a reasonable doubt." It is difficult to put a valid numerical value on the
probability that a guilt y person really committed the crime, but legal authorities

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 who do assign a numerical value generally say "at least 98% or 99%" certainty of
guilt.
 Hence in criminal law the threshold of evidence is higher i.e beyond reasonable
doubt, while in civil law it’s a balance of probability.
 In civil litigation, the burden of proof is initially on the plaintiff. However, there
are a number of technical situations in which the burden shifts to the defendant.
For example, when the plaintiff has made a prima facie case, the burden shifts to
the defendant to refute or rebut the plaintiff's evidence.
 In civil litigation, the plaintiff wins if the preponderance of the evidence favors
the plaintiff. For example, if the jury believes that there is more than a 50%
probability that the defendant was negligent in causing the plaintiff's injury, the
plaintiff wins. This is a very low standard, compared to criminal law. In my
personal view, it is too low a standard, especially considering that the defendant
could be ordered to pay millions of dollars to the plaintiff(s).
 A few tort claims (e.g., fraud) require that plaintiff prove his/her case at a level of
"clear and convincing evidence", which is a standard higher than preponderance,
but less than "beyond a reasonable doubt."

3. By Features
 Crimes are serious; because the state usually targets serious conducts and then
criminalize them. That is why felony is used to describe crime. Felony is conduct
which is wicked or evil or fears or gross anti -social behavior.
 Crimes are considered to be more than a matter between the offender and the
victim, a crime is a threat to the society and that is why the state comes in.A civil
wrong is between two people/parties.

4. By Objective
 The objective of criminal law is punishment; if the offender is found guilty he will
be punished.
 In civil law the objective is compensation
NB: In some civil or contract law there can be some punishment in form of punitive
damages- or exemplary damages

5. By Punitive Damages

In some cases the court is give n limited powers under Section 179 of the criminal
procedure code to give compensation in criminal cases. This power is used sparingly this
only happens if the offender pays a fine and a small portion of the fine is given to the
injured. This is also know as punitive damages

 So-called punitive damages are never awarded in a civil case under contract law.
In a civil case under tort law, there is a possibility of punitive damages, if the
defendant's conduct is egregious and had either
I. a malicious intent (i.e., desire to cause harm),
II. gross negligence (i.e., conscious indifference), or
III. a willful disregard for the rights of others.

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  The use of punitive damages makes a public example of the defendant and
supposedly deters future wrongful conduct by others.
 Punitive damages are particularly important in torts involving dignitary harms
(e.g., invasion of privacy) and civil rights, where the actual monetary injury to
plaintiff(s) may be small.
 One can purchase insurance that will pay damages and attorney's fees for tort
claims. Such insurance coverage is a standard part of homeowner's insurance
policies, automobile insurance, and insurance for businesses. In contrast, it is not
possible for a defendant to purchase insurance to pay for his/her criminal acts.
 While a court can order a defendant to pay damages, the plaintiff may receive
nothing if the defendant has no assets and no insurance, or if the defendant is
skillful in concealing assets. In this way, large awards for plaintiffs in tort cases
are often an illusion.

AFRICAN CUSTOMARY LAW AND CRIMINAL LAW

 Under the African customary law compensation was the main remedy for both
civil and criminal wrongs.
 In some cases this is still practices even in cases involving murder hence the term
blood money.
 But under current criminal law the state can not allow this kind of arrangement,
because the law says the punishment or penalty for murder is death.
 The African Customary law was based on reconciliation and forgiveness. Except
for witchcraft because it involves super natural powers.

CRIMINAL LAW AND MORALITY

 From social foundations of law its evident that law is derived from social values.
Hence morality has some influence in law. This comes from the early days when
religion was part of the ruling class and played gre at influence on state.
 For example in historic times adultery was a crime because it was a religious sin,
but in the modern society adultery is not a crime. The argument here is that the
state has no business interfering with two consenting adults.
 Morality has some influence on criminal law even though not all criminal laws
are founded on morality.
 There are some mosaic laws which directly correspond to criminal law like
murder or stealing. While others like adultery and lying are not (unless you lie to
the court under oath).
 Legal obligation is different from moral obligation.
(i) It is moral to love your neighbor, help the needy, tell the truth e.t.c. but it
is not a legal obligation. (except that one cannot lie under oath in a court
of law.)
(ii) It is immoral to commit adultery, to lie, not to stop a thief from robbing
someone else e.t.c. but it is not illegal (except that one cannot lie under
oath in a court of law.)
(iii) Depending on how you commit an act, it can either be immoral or criminal
or both. e.g. Sex outside marriage is immoral but if it is rape (without the
other person’s consent) then it is criminal as well.)

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 (iv) Some acts are not immoral but are criminal e.g. contempt of court.
 A morally reprehensible act is not always criminal e.g. Prostitution or adultery are
not illegal (Prostitution has been legalized in some states, prostitution in itself is
not illegal in most countries around the world but the act of soliciting or looking
for clients is what is illegal)
 The immorality of a criminal offence cannot chang e overnight, but it’s legal
nature can.

PRINCIPLE OF LEGALITY -NULLUM CRIMEN

Definition

 The principle of legality is the legal ideal that requires all law to be clear,
ascertainable and non-retrospective. It requires decision makers to resolve
disputes by applying legal rules that have been declared beforehand, and not to
alter the legal situation retrospectively by discretionary departures from
established law.
 It is closely related to legal formalism and the rule of law .
 The principle has particular r elevance in criminal and administrative law.
 In criminal law it can be seen in the general prohibition on the imposition of
criminal sanctions for acts or omissions that were not criminal at the time of their
commission or omission.
 The principle is also thought to be violated when the sanctions for a particular
crime are increased with retrospective effect.
 In administrative law it can be seen in the desire for state officials to be bound by
and apply the law rather than acting upon whim.
 As such advocates of the principle are normally against discretionary powers.
 The principle can be varyingly expressed in Latin phrases such as
I. Nullum crimen, nulla poena sine praevia lege poenali (No crime can be
committed, nor punishment imposed without a pre -existing penal law),
II. Nulla poena sine lege (no penalty without law) and
III. Nullum crimen sine lege (no crime without law).

 The principle of legality is the main tent of criminal law.

 It says that a crime has to be provided by law and punished by law.
 A person should not be charged for a crime, if that crime is not provided by law,
like wise he cannot be punished if the punishment is not provided by law.
 If a crime does not exist in law then you can not be charged or punished for it.
 The rules governing criminal liab ility must be written prior to the conduct or
offence complained off.
 The law must precede the conduct.
 The origins of this principle can be traced in 12 th and 13 th Century in England
through the Magna Carta
 Magna Carta is an English charter, originally issued in the year 1215 and
reissued later in the 13th century in modified versions, which included the most
direct challenges to the monarch's authority to date. The charter first passed into

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 law in 1225. The 1297 version, with the long title (originally i n Latin) The Great
Charter of the Liberties of England, and of the Liberties of the Forest , still
remains on the statute books of England and Wales. The 1215 Charter required
King John of England to proclaim certain liberties, and accept that his will was
not arbitrary, for example by explicitly accepting that no "freeman" (in the sense
of non-serf) could be punished except through the law of the land, a right which is
still in existence today.
 The principle was embraced by Americans in a document called th e “Declaration
of Rights of Philadelphia, 1774”.
 It was also embraced by the French during the French Revolution in a document
called “Declaration of the Rights of Man, 1789”.
 Legality, in its criminal aspect, is a principle of international human rights l aw,
and is incorporated into the Universal Declaration of Human Rights (1948), the
International Covenant on Civil and Political Rights and the European Convention
on Human Rights. However the imposition of penalties for offences illegal under
international law or criminal according to “the general principles of law
recognised by civilised nations” is normally excluded from its ambit. As such the
trial and punishment for genocide, war crimes and crimes against humanity does
not breach international law.

OBJECTIVE OF PRINCIPLE OF LEGALITY

 The objective of this principle is to protect the citizens against arbitrary
punishment or criminal prosecution.
 It gives the citizen the opportunity to know in advance how and where they stand
in law both in conduct and p enalty.
 In Kenya under the new constitution the principle is stated in Article 50 (2) (n)
“No person is to be convicted for an act or omission that ata the time it was
committed was not an offence in Kenya or a crime in International law”
 The provision is not as clear in the new constitution as it was in the older
dispensation.
 In the old dispensation under Section 77 (4) and (8).It had 3 clear provisions
a) A person could not be found guilty of a criminal offence on an account of
an act or omission which did not constitute an offence when it took place
b) No person was to be convicted for a criminal offence unless the offence
was defined and its penalty described in written law (African customary
law was hence omitted bcz they were not written same as common law
except for contempt of court.)
c) No penalty for a criminal offence should be imposed which is harsher than
the penalty that might have been imposed at the time that it was
committed
 The principle of legality is derived from a Latin maxim “Nullum crimen,sine
lege, Nulla poena sine lege” -Translated as simply as “Crimes must be provided
by law and punished by the law”.
ASPECTS AND ELEMENTS OF THE PRINCIPLE OF LEGALITY
 No conduct is to be held criminal unless it is specifically described in a penal
statute before hand.

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  No person shall be punished except in accordance with a statute that fixes a
penalty before hand.
 The legality principle rules modern criminal law: all laws are to be clear,
ascertainable and non-retrospective.
 In criminal law, the principle of legality is designed to guarantee the primacy of
the law in criminal procedure, so that neither state prosecution nor defendants are
exposed to arbitrary bias.
 The principle of legality assures that no defendant may be punished arbitrarily or
retroactively by the state.
 This means that a person cannot be convicted of a crime that has never been
publicly announced, or by a law that is exessively unclear, or by a penal law that
is passed retroactively to criminalize an action that was not criminal at the time it
occurred.
 It requires judges to always lean in favor of the defendant when they interpret
statutes, and forbids pronunciation of guilt without a clear and reasonable
justification of this sentence.
 The principle prohibits criminal sanctions for acts or omissions that were not
criminal at the time of their commission or omission.
 Likewise, the legality principle demands that the sanctions for a particular crime
cannot be increased with retrospective effect.

NB: The non-retrospective aspect applies only for substantive criminal law but not
criminal legislation and criminal procedure .e.g currently when some one commits
murder he is taken to court immediately, but before 2003, you would be taken to the
magistrate court for committal hearings. The prosecuto r would present the magistrate
with a committal bundle containing all the facts and evidence. The magistrate would then
form an opinion based on the strength of evidence and forward the file to the High Court.
This process was long (sometimes between 1 -2 years) and unfair to the accused. This was
however changed in 2003 and all cases of murder go to high court immediately, this
applied to all murder cases past, current and pending. This was legislation touching on
procedure and it was retrospective

EXAMPLES OF CASES

PATEL VS THE REPUBLIC 1968 - East African Law Report pg 97 -It was held that a
procedural change is done retrospectively.

ELIJAH MAINA WATUTA VS THE REPUBLIC – Criminal appeal case no 102

1996,it was held that an amendment to a statute increasi ng the sentence was to a
retrospective application.

UGANDA VS NYEGENYE – 1967 EA Law report pg 106

INTEPRETATION OF CRIMINAL LAW IN LIGHT OF THE PRINCIPLE OF

LEGALITY

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  Penal legislation must be construed and interpreted strictly unlike other forms of
legislation where interpretation can be benevolent.
 Criminal legislation must be very clearly drafted to avoid ambuigty or
uncertainty.
 If this happens then the Judge must give the accused person the benefit of doubt.
 Synonymous to the Contract Referendum ru le which says that if you draft a
contract with an error, the interpretation of the error should favor the innocent
person, you should not be seen to benefit from your own mistake.
 The court interpreting the criminal statute should not apply the statute fo r matters
not covered or provided in the statute or legislation.
 Similarly there should be no crimes by analogy meaning the court should not
construe a legislation so as to create an offence which is not provided by
legislation. Or extend the legislation t o cover acts which are not provided for or
intended for by the legislation.

EXAMPLE OF CASE CREATED BY ANALOGY: THIS IS POSSIBLE IN THE

UK BUT NOT IN KENYA

SHOW VS DPP -1962 APPEAL CASE PG 220

A crime was created by analogy. The accused person was char ged and convicted with a
conspiracy to corrupt public morals. In his defence he said there was no such an offence
under the English statute. The offence in the statute prohibited prostitutes from soliciting
on the street.Mr.Show in a bid to assist them, cr eated a directory with address and
telephone contacts and advertised their services and saying that they available for
customers. On appeal it was considered that, there was no such law, but a court had a
duty to protect the public morals. Hence he was con victed.

This is not applicable in Kenya on account of the principle of legality.

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