LECTURE 5: THURSDAY 17 TH NOVEMBER 2011 5.30-8.

30 PM-SHERIA HALL

9. OBLIQUE RESULTS
 This is addressed in section 9(2) of the Penal Code.
 Unless proof of a specific intent is required by statute, the particular result
intended to be caused is immaterial t o liability.
 A specific intent is intent to produce a particular result. Under section 9(3)of the
Penal Code, apart from offences constituted by proof of a specific intent, by
definition in the penal statute, for all other offences the particular result i ntended
is irrelevant.
 A person may intend one thing, and another thing may happen, either
independently or simultaneously with the intended result.
 Either way the person will still be liable for the other result, the oblique one,
although the same is not what he intended, provided that he had foresight of that
result.
 Meaning that you may have a specific intention to get a certain result, but you get
another undesired result.e.g You intended to shoot and kill A, but accidentally kill
B.(Transferred malice).You are still criminally liable.
 It does not matter the specific intention or results so long as the act is prohibited
by law or the act is evil and you had the mens rea to commit the act, then you will
be criminally liable.

PENAL OFFENCE FACTS Interpretation

CODE
9 General Rules As 9 (2)-Unless the intention to cause a
To Criminal particular result is expressly
declared to be an element of the
Responsibility offence constituted, in whole or
part, by an act or omission, the
(Intention and result intended to be caused by an
Motive) act or omission is immaterial
This is the guiding principle for
oblique results. It does not matter the
specific intention or results so long as
the act is prohibited by law or the act
is evil and you had the mens rea to
commit the act, then you will be
criminally liable.

9 General Rules As 9 (3)-Unless otherwise expressly The general rule is that motive is not a
To Criminal declared ,the motive by which a consideration in determining criminal
person is induced to do or omit to
Responsibility do an act or to form an intention, is
responsibility
immaterial so far as regards
(Intention and criminal responsibility
Motive)
CASE EXAMPLE

In R vs. Serne (1887)

It was said that where a person for some purpose of his own (say to claim some money)
sinks a boat at sea with the result that the passengers are drowned, he will be guilty of
murder. It matters not that he may have hoped that the passengers would be picked by a
passing boat, nor that he did not specifically inten d their death; provided he has
knowledge that death would probably occur from the sinking. All that matters is that the
intended result be unlawful or wrongful in the first place, or that the act was evil in the
first place.
10. JUDICIAL IMMUNITY

 This is dealt with in section 15 of the Penal Code.

 The general rule is that a judicial officer is not criminally responsible for anything
done or omitted to be done by him in the exercise of his judicial functions.
 The provision protects judges, magistrates and other judicial officers (such as
justices of the peace and commissioners of assize) from criminal prosecution
arising from the exercise of their judicial functions.
 Commissioners of assize are advocates appointed in int erim basis to discharge the
functions of a judge of a high court. They were mostly used in the 90s e.g. Judge
Vishram and Khaminwa were commissioners of assize.
 Justices of peace-are respectable and knowledgeable people but laymen in low
that are called to give views on general life issues e.g. civil servants or church
leaders etc.They acted as magistrates especially in minor claims cases
 They therefore commit no offence when they act beyond the powers invested in
them by the law or for their failure to per form their judicial duties.

CASE EXAMPLE

Attorney-General vs. Oluoch (1972) EA 392 (Spry Ag P, Lutta Ag VP and Mustafa IA)

It was held that no legal proceedings can arise in respect of acts done by judicial officers
in discharge or purported discharge of judicial functions. It was explained by Lutta Ag
VP, that, as a matter of public policy, this is necessary if such judicial officers are to
discharge their duties without fear of harassment by those who may feel aggrieved by the
judicial officers’ actions.

Kionywaki vs. Republic (1968) EA 195 (Biron J)

A justice of the peace caused the complainant to be arrested and detained for refusing to
attend a local primary court following the complainant’s refusal to assist in a self -help
scheme. The justice of the peace was subsequently charged and convicted of wrongful
confinement. On appeal, the conviction was quashed. It was held that although the arrest
and confinement of the complainant were unlawful and unjustified, the appellant was
immune from criminal process for such act.

11. DIPLOMATIC IMMUNITY

 Diplomat enjoys immunity from criminal prosecution in the countries of
accreditation.
 Applies to both criminal and civil matters.
 The rational is that the diplomats represents the head of state hence enjoy the
same immunity based on the principle of recipricocity of the international public
law.
 The host country must extend the same privileges enjoyed by the head of state.
  A diplomat can not be prosecuted in the country he is accredidated unless the
immunity is waived by his government or by the diplomat himself (where he says
that he is ready to face charges in the host country).
 The best the host country can do is to ask for him to be re -called.
 Diplomatic immunity is governed by the Geneva Conventions on diplo matic
relations and not the penal code.
 The Geneva conventions have been domesticated under a statute.

CASE EXAMPLE

Zaire Ambassador to France

During the reign of Mobutu, the Zaire ambassador was rushing to meet his president who
was set to tour France. Because he was late he asked his driver to use the pedestrian
pavement and I since he was over speeding he killed a 16 year old boy. Due to the public
outcry that ensued he presented himself for prosecution and he waived his diplomatic
immunity. Had he not done so, he could not have been criminally liable.

Nigerian Ambassador to Kenya

This is a more recent case were the Nigerian ambassador was accused of assaulting his
wife. He could not be prosecuted but the Kenyan government asked for him to be recal led
and he was recalled
 12. IMMATURITY

 The law presumes innocence of minors of certain ages, and affords them
protection from criminal liability.
 This is dealt with in section 14 (1) of the Penal Code. The law makes the
irrebuttable presumption that a child under eight years is not criminally
responsible for any offence.
 This means that no person under eight years can be charged with a crime.

PENAL OFFENCE FACTS Interpretation

CODE
14 General Rules of 14 (1)-A person under the age of 8 This is an irrebuttable presumption of
Criminal years is not criminally responsible law; once it is established that the
for any acts or omission
Responsibility suspected offender is a child less than
(Immature age) eight years old no charges ought to be
brought against him. No evidence can
be led to prove that he committed the
offence

 However, where an adult person uses such child to commit a crime, the adult will
be liable, such as in cases where a parent causes a child to commit theft, by
sending him to steal.

CASE EXAMPLE

RC vs. Republic (2005) 2 KLR 239 (Omolo, Githinji and Waki JJA)

It was held that the philosophy behind section 14(1) of the Penal Code is that such a
person is incapable of forming any intent or mens rea which is a n ecessary ingredient in
many crimes. It was also held that a priori that a person under the age of eight cannot
lawfully form an intention to say or do an act which any other person can latch on to
escape liability for a criminal act.

 Section 14(2) creates the rebuttable presumption that a child under twelve i s not
criminally responsible. This presumption of innocence covers children in the age
bracket of eight to eleven years.
 The presumption can be rebutted by evidence that the child k new what he was
dying was wrong.
PENAL OFFENCE FACTS Interpretation
CODE
14 General Rules of 14 (2)-A person under the age of 12 This is a rebuttable presumption which
Criminal years is not criminally responsible need to be proved by knowledge
for an act or omission, unless it is
Responsibility proved that at the time of doing the
(Immature age) act or making the omission he had
the capacity to know that he ought
not to do the act or make omission
 CASE EXAMPLE

R vs Owen (1830) 4 C & P 236

It was held that it is not neces sary to prove that the child knew that the conduct was
legally wrong, but it must be established that they knew that the same was morally
wrong.

R vs Kershaw (1902) 18 TLR 357

It was stated that the prosecution should seek to infer the irrelevant mens r ea from the
actus reus, as in most cases, other evidence must be adduced to the effect that the child
knew that he was doing something morally wrong. This is usually done by adducing
evidence of what the child was taught at home and at school.

 An irrebuttable presumption is created by section 14(3) of the Penal Code that a

boy under twelve years is incapable of having carnal knowledge.
 This gives boys below that age absolute immunity from charges of rape and other
involving carnal knowledge.

PENAL OFFENCE FACTS Interpretation

CODE
14 General Rules of 14 (3)- A male person under the It follows that one it is proved that the
Criminal age of 12 is presumed to be boy is under twelve no eviden ce
incapable of having carnal
Responsibility knowledge
should thereafter be led to prove that
(Immature age) he has committed rape or defilement.

CASE EXAMPLE

R vs Waité(1892)2QW600

A boy below that age can be convicted of indecent assault if it can be shown that he knew
his act to be morally wrong.

Rex vs. Opiri s/o Meope and another EALR 90 (Sheridan J)

A boy of twelve to thirteen assisted another boy of over fourteen to commit the offence of
rape. It was held the boy of over fourteen was capable physically of committing rape on a
woman as he had reached the age of puberty. The other boy, however, although
incapable physically of committing rape himself was guilty as a better for assisting his
colleague.

 To avoid the possibility of an immature child being subjected to criminal liability,

or conversely, a mature child unfairly enjoying the protection afforded by section
14 of the Penal Code, the court is duly bound to satisfy itself judicially as to the
age of the accused, particularly in cases of doubt.
  The best practice, is to inquire into the age of the accuse d at the commencement
of the proceedings rather than waiting for evidence on the general issue.
 It is usually done through referring the minor to a medical facility for
ascertainment of age.

CASE EXAMPLE

Republic vs. Kamau (1965) BA 548,

Rex vs. Ahmed bin Abdul HaJid 76 (Abrahams CJ Ag P, Lucie -Smith Ag CJ and
Home J).

Keteta vs. Republic (1972) BA 532 (Madan Ag CJ) and Mama vs. Republic (1970) EA
370 (Mwendwa CJ and Madan J).

Njuguna s/a Karanja vs. Reginam (1953) 20 EACA 196 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Briggs JA)

It was stated that the responsibility of determining the age of an accused person
convicted of a capital offence is upon the trial court which may either act on its own
judgment or may, and in doubtful cases should, c all for such expert or other evidence as
is available.

 It is also permissible to call for medical evidence after conviction, where the court
is in doubt as to the age of the accused. This transpired in

CASE EXAMPLE

Rex vs. Kulabirawo (1947) 14 EACA 116 Nihill CJ, Sir G Graham Paul CJ and
Edwards CJ)

Where the trial court upon convicting the accused entertained doubts as to his age, and
postponed sentence in order to call an expert medical witness. The state challenged this
procedure on appeal, but the a ppellate court was of the view that the trial court followed
the right procedure.

 The same approach was also employed in

CASE EXAMPLE

Jacob Mama Nyaga vs. Republic (1985) 2 KAR 73 (Hancock, Nyarangi JJA and Platt
Ag JA)

Where the Court of Appeal in i ts rare exercise of its powers to call evidence before it,
admitted oral testimony from a specialty radiologist to help resolve the age of the
appellant at the time of the commission of the offence, as the trial court had not resolved
the matter. At taking the medical evidence, the Court of Appeal concluded that the
appellant was above the minimum age when the offence was committed .
 13. HUSBAND AND WIFE

 The common law has several rules relating to the criminal re sponsibility of
husbands and wives.
 The law recognizes the special relationship that exists between a husband and
wife.
 At common law it was presumed that married women did not have will power.
 A wife charged with a felony in her husband’s presence was p resumed, unless the
contrary was proved to have acted under his coercion, and was entitled to an
acquittal.
 Section 19 of the Penal Code has changed the common law position and provides
that coercion by the husband is no longer presumed for offences commi tted by a
married woman in the presence of her husband, but it would be a good defence if
the wife can in fact prove coercion by the husband.

PENAL OFFENCE FACTS Interpretation

CODE
19 General Rules of 19 -A married woman is not free Negates the common law presumption
Criminal from criminal responsibility for that married women did not have will
doing or omitting to do an act
Responsibility merely because the act or omission
power and that even if she did under
(Compulsion by takes place in the presence of her the presence of the husband it wa s
Husband) husband; but on a charge against a coercion
wife for any offence other than
treason or murder, it shall be good
defence to prove that the offence
was committed in the presence of,
and under coercion of, the husband

 This, however, will be no defence where the charge is that of treason or murder.
 Both the common law and the Penal Code do not make any although the general
provision, at Section 16 of the Penal Code, on compulsion would be applicable in
such a situation.
PENAL OFFENCE FACTS Interpretation
CODE
16 General Rules of 16 -A person is not criminally The married woman can plead defence
Criminal responsible for an offence by two of compulsion based on this section
or more offenders, and if the act is
Responsibility done or committed only because
(Compulsion) during the whole of the time in
which it is being done or omitted
the person is compelled to do or
omit to do the act by threats on the
part of the other offender or
offenders instantly to kill him or do
him grievous bodily harm if he
refuses; but threats of future
injury do not excuse any offence,
nor do any threats excuse the
causing of, or the attempt to cause
death.
 CASE EXAMPLE

Rex vs. Wambogo and Another (1924) 10 KLR 3 (Pickering and Sher idan JJ)

The issue of marital coercion under the Indian Penal Code, which was then in force,
arose. The woman had been married under customary law; the issue was whether she
was to be presumed to have acted under her husband’s coercion in accordance with the
common law rule. The court held that under the Indian Penal Code there was no room
for the application of the common law presumption. This was before the current Kenyan
Penal Code came into force, which provides for the defence of marital coercion to b e
proved.

Lenson Ambindwile s/o Mafubila vs. R (1955) 22 EACA 445

The former East African Court of Appeal said that the deci sion in Rex vs. Wambogo and
another (1924) 10 KLR 3 (Pickering and Sheridan JJ), should, after the coming into force
of the Kenyan Penal Code, be read in the light Section 20 (now section 19) of the Penal
Code of Kenya which is in effect an enactment of the common law presumption.

ACCESSORY TO ESCAPE PUNISHMENT

 The common law also created a duty on the part of the wife to care for her
husband and to keep his secrets, which means that a wife does not become an
accessory after the fact to her husband’s crime by sheltering him from justice.
 The reverse however is not true in common law: a husband who harbors a wife
who has committed crimes becomes punishable as an accessory to her crimes.
 The Kenyan law treats the spouses equally in this respect. Under section 396(2) of
the Penal Code neither the wife nor the husband becomes accessory to the other
spouse’s crime by reason of receiving or assisting him or her in order to enable
her to escape punishment.
PENAL OFFENCE FACTS Interpretation
CODE
396 Accessories After 396 (2)- A wife does not become an Couples are not criminally liable for
The Fact accessory after the fact to an accessory after a fact of an offence to
offence of which her husband is
guilty by receiving or assisting him
enable them to escape punishment.
in order to enable him to escape
punishment; or by receiving or
assisting in her husband’s presence
and by his authority another
person who is guilty of an offence
in the commission of which her
husband has taken part, in order
to enable that other person escapes
punishment ;nor does a husband
become an accessory after the fact
to an offence of which his wife is
guilty by receiving or assisting her
in order to enable her to escape
punishment
 CONSPIRACY

 At common law a husband and wife cannot be convicted of conspiracy with each
other alone; unless there is a third party involved or the spouse is found to have
incited the other spouse to commit the crime if the elements of incitement are
proved.
 The Kenyan Penal Code does not carry a provision to that effect, but the common
law rule is deemed to apply by virtue of the Judicature Act, which applies the
English common law in Ken ya.
 The term ‘conspiracy’ is held to mean, as in English law, ‘conspiracy other than
that between husband and wife only.

CASE EXAMPLE

Laila Jhina Mawji and another vs. The Queen (1957) AC 126, (1956) 23 EACA 609
(Lord Oaksey, Lord Tucker, Lord Cohen, Lo rd Keith and Lord Somervile of Harrow)

THEFT

 Regarding the law of theft, spouses enjoy certain privileges.

 The common law treated husband and wife as having sufficient common
possession of their property, although the matrimonial law did not recognize
common ownership between them, so that neither of them could be guilty of
stealing from the other.
 However, under Section 274 of the Penal Code, a person who procures a husband
or wife, while the husband or wife is still living together with the other spous e, to
deal with the property of the other spouse, knowing it to be the property of such
spouse, in a manner which would amount to theft if the two were not married,
would be guilty of theft.
 This provision presumes the application of common law rule that it is not theft for
a spouse to rakes the others property.

PENAL OFFENCE FACTS Interpretation

CODE
274 THEFT 274-A person who, while a man A husband and wife who procure the
(Husband and and his wife are living together, services of another person to steal
procures either of them to deal
Wife) with anything which is, to his
from the husband or wife is liable for
knowledge ,the property of the theft.
other in a manner which would be
theft if they were not married, is
deemed to have stolen the thing,
and may be charged with theft
PERSONAL VIOLENCE

 At common and customary law the husband is entitled to chastise his wife and
that was not an offence.
 That is no longer the case under the new penal code and constitution and any
violence on another is regar ded as assault or battery.

RAPE

 At English Common Law (12 th August 1897) husband could not normally be
guilty of raping his wife.
 The common law position is that the wife had given a general consent to sexual
intercourse with her husband upon the celebra tion of the marriage.
 Rape may, however, be committed when the parties are separated by a judicial
order.
 No offence would be committed where the parties are merely leaving apart, and it
does not matter that divorce proceedings are pending.
 This position is now fairly controversial.
 The concept of spousal rape has gained currency, although there are no reported
cases in Kenya of convictions for spousal rape.

CASE EXAMPLE

R vs. Clarke (1949)2 All ER 448

R vs.Y9ung(1847).2 Cox CC 291.

LAW OF EVIDENCE

 In the law of evidence, various rules apply to married couples.

 At common law, the rule was that neither a husband nor a wife could testify
against his or her spouse when he or she was on trial.
 A number of exceptions, however, were allowed.
 On a charge of bigamy, the first marriage had to be proved and therefore the
spouse in the second marriage, who in any case in law was not a spouse at all, was
a competent and compellable witness.
 On a charge of an offence against the person or liberty of the spouse hi mself or
herself, the application of the common law rule would mean that there would no
evidence, given that the complainant would be an incompetent and un -
compellable witness; hence the exception which makes the complainant spouse
both competent and compellable at common law.
 The other exception appears to lie with re spect to a charge of treason.
 On a charge against the man of forcibly abducting and marrying a woman, the
wife was a competent and compellable witness, even if the marriage was held to
be valid.
 CASE EXAMPLE

Range vs. Republic (2003) KLR 692 (Tunoi, O’Kubasu JJA and Onyango -Otieno
Ag JA)

R vs Lapworth (1931) 1 KB 117

John Odongo Banaba vs Republic Mombasa CACRA No. 79 of 1997 (Chesoni CJ,
Kwach and Tunoi JJA)

R vs Griggs (1660) Raym. T 1 , 2 Hawk C 47, S 82, 1 Hale 48, 3O1 1.CO Litt 6(b)

Rvs Wakefield (1827) 2 lew 279

Cooper vs Ciane (1891) P369

CUSTOMARY MARRIAGE (POLYGAMY)

 The colonial courts tended to hold that the common law rules envisaged a
Christian marriage, which is strictly mo nogamous, but not marriages under
other systems of law which tend to be potentially polygamous.
 Indeed, the attitude of the colonial courts, as refl ected in the case of

Rex vs. Amkeyo (1917) 7 EALR 14

It was held that the African customary law marriage was not a marriage but mere wife
purchase, and the common law was therefore of no application to it.

 This decision was followed by a host of other decisions e.g

Robin vs. Rex (1929) 12 KLR 134 (Sheridan Ag CJ, Guthrie Smith J and Muir
Mackenzie J)

Abdulrahman bin Mohamed and Manuel alias Emanuel Khalifa vs. R (1963) EA 188

Laila Jhina Mawji and another vs. The Queen (1957) AC 126, (1956) 23 EACA 609
(Lord Oaksey, Lord Tucker, Lord Cohen, Lord Keith and Lord Somervile of Harrow)

The privy council of Tanzania took the view that the English common law rule applied to
the spouses of any marriage, including a potentially bigamous law marriage.

Rex vs. .Daudi Odongo 10 EALR49 (Sir J W Barth CJ and Pickering J),

In this case the court took a different view from the Rex vs. Amkeyo approach, by
holding that a woman who has been married to a man in accordance with the recognized
law and custom of her tribe is his wife. The appellant had been acquitted of adultery on
the grounds that a woman married under customary law was not a within the meaning of
the Indian Penal Code

 The trend after independence reflects a changed judicial attitude.

William Mull vs. Francis Kithuka (1971) K} -ICD 118,

Miller J stated that it was wrong to conceive the idea that marri ages under any of the
customary laws of Kenya are inferior to those protected by statute.

See also

Rex vs. Toya s/o Mamure 145 (Sir Jacob Barth CJ, Law Ag CI and Thomas J)

R vs. Nyawa wa Nyawa 15 KLR 99 (Abrahams CJ, Sir Joseph Sheridan CJ and Gray
Ag I)

Rex vs. Anderea Edoru s/o Okomera (1941) 8 EACA 87 (Sir Joseph Sheridan CJ, Sir
Henry Webb CJ and Wilson J)

Rex vs. Mwakio Asani s/o Mwanguku KLR 133 (Sir Jacob Barth CJ, Sir Charles
Griffin CJ and Pickering CJ)

PRESUMPTION OF MARRIAGE

 The principle of presumption of marriage applies in criminal law.

 Where the couple co-habit (come we stay) for a long time or you are married by
reputation (in the eyes of the society you are seen as married e.g. have children
and have acquired property together) the court will presume that you are married
and all privileges and rules of criminal responsibility will apply

CASE EXAMPLE

Kalume wa Tuku alias Saidi vs. Reginam (1954) 21 EACA 201 (Sir Newnham Worley
Ag P, Sir Enoch Jenkins Ag VP and Briggs JA)

The court treated as husband and wife for criminal law purposes parties who lived
together as husband and wife, though not regularly married. The appellant had for many
years lived with the deceased as her husband, although they had never been married.
When one day he found he in bed with another man, he killed her. It was held that the
defence of provocation was available to him.
14. RECENT POSSESSION OF PROPERTY

 This principle applies to cases of theft and related offence

Muiruri Njoroge vs. Republic Nakuru CACRA No. 18 of 1999 (Tunoi, Lakha and
Owuor JJA)

It was stated that the doctrine of recent possession is a presumption of fact arising under
section 119 of the Evidence Act, from recent possession of stolen goods. It was
emphasized that the presumption arises only when the court believes that the person in
possession of the goods knew or had reason to believe that the goods were stolen or
otherwise unlawfully received.

Malingi vs. Republic (1989) KLR 225 (Bosire J)

Where it was stated that the doctrin e is a presumption of facts which makes it a
rebuttable presumption.

 The doctrine cannot apply where the accused has not been identified as the thief
or assailant. It was expressed in this way in

Chaama Hassan Hasa vs. The Republic (1974) KLR 6 (Trevely an and Hancoax JJ)

It was expressed that where an accused person has been found in possession of property
very recently stolen, in the absence of an explanation by him to account for his
possession, a presumption arises that he was either the thief or a h andler by way of
receiving. His possession raises a presumption of his guilty connection with any further
crime that accompanied the theft, such as burglary, robbery, robbery with violence,
arson or murder.

Kigoye and another vs. Uganda (1970) EA 402 (Duf fus VP, Spry and Law JJA)

Where it was held that the presumption of recent possession of stolen property is
rebuttable.

Francis Barrallon vs.Rex 119 (Maxwell Ag CJ and Sheridan J)

Muraguri s/o Muigai and another vs. Regina 83 (Heame J)

Michael Mhuto vs. Republic (1975) LRT 72 (Biron J)

Mathai vs. Republic (1983) KLR 422 (Todd J).

Sefu Ally vs. Republic (1976) LRT 215 (Mwakibete J).

Wamavuno vs. Uganda (2001) 2 EA 608 (Odoki CJ, Oder, Tsekooko, Mulenga and
Kanyeihamba JJSC)

Kariuki and another vs. Republic (2005) 2 EA 97 (Omolo, Githinji and Waki JJA)

Yasamu vs.Uganda(2002)2EA568(Oder,Tsekooko,Karokora,Mulenga and Kikonyogo

JJSC).

 Read also Kenya’s Outlines for Criminal Law 15 th Edition pg 391

 See also

Hassan vs Republic (2005)2 KLR 151 (Omolo, Githinji and Waki JJA)

Bukenya and another vs. Uganda (2002) 2 BA 348 (Oder,Tsekooko, Mulenga and
Kanyeiharnba JJSC)

Gachuru vs. Republic (2005) 1 BA 56 (Omolo, Githinji and Waki JJA)

Mtalemwa vs. Republic (1990 -1994) EA 384 (Kisanga, Ramadhani and Mnz avas)

Uganda vs. Joseph Sempala Mukasa (1975) HCB 210 (Butagira Ag J)

Uganda vs. Joseph Sempala Muka sa (1975) HCB 210 (Butagira Ag J)

Karanja vs. Republic (1983) KLR 501 (1976 -1985) BA (1982-88) 1 KAR 355 (Hancox,
Chesoni JJA and Platt Ag JA)

Ekai vs. Republic (1981) KLR 569 (Law, Potter JJA and Simpson Ag JA)

Arum vs. Republic (2006) 2 BA 10 (Tunoi, O’Kubasu and Onyango Otieno JJA)

Nashaba vs. Uganda (2003) 2 BA 626 (Odoki CJ, Tsekooko, Karokora, Mulenga and
Kanyeihamba JJSC)

Ogembo vs. Republic (2003) 1 EA 222 (Tunoi, Lakha and Owuor JJA)

In this case it was stated that the doctrine of recent possession of stolen property can in
fact be relied on as the only basis of a conviction on a charge carrying a death sentence
such as murder or robbery with violence.

 The doctrine does not apply to all cases of theft.

 The rule is that where it is proved that property has been stolen and very soon
after the stealing the accused has been found in possession of it, it is open to the
court to find him guilty of stealing, or of handling it by way of receiving it.
Rex vs. Hamisi bin Saidi and another (1942) 9 EACA 50 (Sir Joseph Sheridan CJ, Sir
Norman Whitley CJ and Sir Henry Webb CJ)

Rex vs. Yego s/o Kitum (1937)4 EACA 25 (Sir Joseph Sheridan CJ, Sir Sidney
Abrahams CJ and Hall CJ)

Wambura vs. Republic (1990 -1994) BA 609 (Nyalali CJ, Ramadhani JA and Mapigano
Ag JA)

Mwangi vs. Republic (2005) 2 KLR 371 (Tunoi, O’Kubasu and Githinji JJA)

Andrea Obonyo and others vs. R (1962) EA 542 (Sir Ronald Sinclair P, S ir Alastair
Forbes VP and Sir Trevor Gould JA)

KaranJa vs. Republic (1983) KLR 501 (1976 -1985) BA (1982- 88) 1 KAR 355 (Hancox,
Chesoni JJA and Platt Ag JA)

A conviction for murder was upheld on circumstantial evidence to the effect that the
appellant was seen wearing, and therefore in possession, of clothing belonging to the
deceased.

Republic vs. Gachanja (2001) KLR 428 (Etyang J).

Uganda vs. Joseph Sempala Mukasa (1975) I -ICB 210 (Butagira Ag J)

It was held that in detrminig whther the possession points to theft or receving, each case
must be examined on its own facts. The court should consider such factors as the nature
of the property stolen, w hether it was of a kind that readily pa sses from hand to hand, the
nature of the accused’s occupation or business, among others. Whether the presumption
of recent possession arises depends on the facts of each case.

Ogembo vs. Republic (2003) 1 EA 222 (Tunoi, Lakha and Owuor .JJA),

It was emphasized that for the doctrine of possession of recently stolen property to apply,
possession by the accused of the stolen property must be proved, and the fact that the
accused had knowledge that the property was stolen must also be prove d.

HOW RECENT IS RECENT IN RECENT POSSESSION OF PROPERTY?

 As to what time is near enough to the recent, there is no general rule, for the
period within which the presumption can operate will vary according to the nature
of the article stolen.
 Three months has been held sufficiently recent for a motor car, four months for a
debenture bond, and less than two months for article s of common usage).
 Read 110Kenny’s, ibid, p. 392.
CASE EXAMPLE

Ibrahim Lekartelo and another vs. Republic Nakuru CACRA No. 52 of 1999 (Gicheru,
Tunoi and Keiwua JJA).

Matu vs. Republic (2004) 1 KLR 510 (Tuno i, Githinji JJA, and Ringera Ag JA)

In this case it was held that possession of kiosk goods twenty days between the date of the
robbery and the discovery of the goods was recent enough for the presumption that the
appellant was one of the robbery to arise .

 Four and half months were held to be sufficient for stolen cattle

CASE EXAMPLE

Njoroge vs. RepUblic (1983) KLR 197, (1982 -88) 1 KAR 142 (Madan, Potter JJA and
Chesoni Ag JA).

Abdullah Ibrahim vs. R (1960) BA 43 (Law 3),

It was held that where a co nviction is founded on the law of recent possession the court
must sufficiently direct itself on the scope and limitation of the presumption. The court
was of the opinion that possession of an article of common use, such as tyre pump, seven
months after the burglary could not raise the presumption that the accused was guilty of
burglary and stealing.

 See also

Andrea Obonyo and others vs. R (1962) EA 542 (Sir Ronald Sinclair P, Sir Alastair
Forbes VP and Sir Trevor Gould JA)

Mwangi vs. Republic (2005) 2 KLR 371 (Tunoi, O’Kubasu and Githinji JJA).

Shabani s/o Juma alias Shabani s/o Nassero alias Shabani s/o Hassan vs. Reginam
(1953) 20 EACA 199 (Sir Barclay Nihill P, Sir Newnharn Worley VP and Mayers J)

The accused was charged with entering a dwelling ho me with intent to steal and stealing
therein. The evidence presented was that two months after the dwelling house was
entered the accused was seen wearing some of the articles stolen from the dwelling
house, namely, a pair of shorts, a kanzu and a pair of shoes. The court declined to rely on
the presumption of recent possession on the grounds that two months was rather too long
on a charge of such common articles. He was convicted of receiving and handling stolen
goods. His appeal was dismissed.
  See also

Rex vs. Bakari s/oAbdulla (1949) 16 EACA 84 (Sir Barclay Nihill CJ, Sir G Graham
Paul CJ and Edwards CJ).

Samuel Kahiga Gathire and another vs. Republic Nakuru CACRA Nos. 45 and 60 of
1996 (Gicheru, Shah JJA and Bosire Ag JA)

The appellant was found less than one full day after the robbery at the complainant’s
house in possession of a motor vehicle stolen from the complainant. Five days later the
appellant was still in possession of the said vehicle and when he was arrested he was still
in possession, driving the vehicle.

 The court found similarly in

Thomasi Mwanjoka vs. Republic (1975) LRT 141 (Mnzavas J)

Where the items in question were common household articles that were readily available
in the shops, a cooking pot and a tumbler, found on the a ccused two years after the
alleged theft.

 In

Mwangi vs. Republic (1974) EA 108 (Bennett J)

It was held that possession of a firearm thirteen months after its theft could not be recent
possession.

 A similar finding was made in

Hussein s/o Sanga vs. Republic (1976) LRT 194 (Mnzavas J)

Where the court found that where the property stolen was a watch it would appear that
the period of over three months is too long a period to be considered recent in order to
raise the presumption that the accused was th e thief or the guilty receiver.

 See also

Maina and three others vs. Republic (1986) KLR 301 (Platt, Gachuhi and Apaloo
JJA).
  The presumption arose in the case of

Ngugi and another vs. The Republic (1979) KLR 182 (Trevelyan and Scriven JJ)

Where the accused were found in possession of a large number of coins and assorted
packets of cigarettes shortly after violent robbery in a nightclub where similar property
was reportedly stolen after a juke box was broken into. The trial court found them gui lty
of robbery with violence, and based this finding on the presumption of recently stolen
property. The court was convinced that what was found on the appellants was taken
during the robbery, the accused were found in very recent possession of it when the y
were arrested, and they offered no explanation for that possession because they denied
the possession. On the question whether money and cigarettes found on the accused were
part of the proceeds of the robbery given that they are items of common usage, t he court
found it unusual that a person could have in his possession so many as 135 or 147 one
shilling coins in three currencies and four unopened packets of cigarettes not of one kind
but of two. In the opinion of the court the circumstances required som e explanation from
the accused, without necessarily casting any burden of proof on them. Their appeal to the
High Court was dismissed.

See also

The Republic vs. Muindi and others (1978) KLR 44 (Simpson and Sachdeva .JJ)

Gachuru vs. Republic (2005) 1 EA 56 (Omolo, Githinji and Waki JJA)

Wandue vs. Republic (2003) KLR 26 (Kwach, Owuor and Keiwua JJA).

 In

Sefu Ally vs. Republic (1976) LRT 215 (Mwakibete J)

It was held that presumption arises when the prosecution has established ownership of
the article in question, theft of the article, and its recent possession by the accused.
Where the three conditions are satisfied, and the accused offers no explanation that
would be construed as reasonably true to account for his possession, he would be a guilty
receiver.

 See also

Michael Mhuto vs. Republic (1975) LRT 72 (Biron J)

  This was echoed in

Arum vs. Republic (2006)2 EA 10 (Tunoi, O’Kubasu and Onyango Otieno JJA)

Where the court held that before a court can rely on the doctrine of recent posses sion as
a basis of conviction in a criminal matter, the possession must be positively proved, that
is, there must be positive proof. First, that the property was found with the suspect;
secondly, that the property is positively identified as the property o f the complainant;
thirdly, that the property was stolen from the complainant, and lastly; the property was
recently stolen from the complainant.

 In

Mwachanje and two others vs. Republic (2002) 2 KLR 341 (Onyancha J and
Khaminwa CA)

It was held that where an accused is found in recent possession of goods alleged to have
been stolen, he is under an obligation to explain how he came into such possession and
that such possession is innocent. Failure to do that leads you the inescapable conclusion
that he is the thief or robber.

 See also

Njoroge vs. Republic (1986 -1989) BA 419 (Platt, Apaloo JJA and Masime Ag JA)

Republic vs. Gachanja (2001) KLR 428 (Etyang J).

 In

Yunge s/o Ndaki vs. Republic (1976) LRT 155 (Mnzavas J)

The court found that the appel lant had given a reasonable explanation to account for his
possession of the recently stolen cattle, and consequently he was not guilty of cattle theft.
His defence, supported by the testimony of his son -in-law, showed that his possession of
the stolen cattle was innocent as he bad lawfully acquired them from the son-in-law as
dowry.

 See also

Mwaula and another vs. The Republic (1980) KLR 127 (Law, Miller and Potter JJA).
  It was pointed out in

Mwihambi s/o Chinyele and another vs. Regina (1953 -57) 2 TLR 128 (Law Ag J)

That the presumption does not displace the presumption of innocence thereby shifting to
the accused the burden of producing legal proof of the innocent origin of his possession.
The burden remains on the state, and the accused is ex pected to merely state how it did
originate. Where the accused person, before trial, gives a reasonably probable
explanation to account for his possession of stolen property, this explanation should be
investigated and not rejected at the trial unless the prosecution can prove that it was
untrue.

 In

Bzikenya and another vs. Uganda (2002) 2 BA 348 (Oder, Tsekooko, Mulenga and
Kanyeihamba JJSC)

It was held that an accused person would be excused if he can give an account or
explanation of his possession.

 See also

Kilome vs. Republic(1990) KLR 193 (Bosire J)

 It was held in

Rex vs. Hassani s/o Moham ed alias Kinyonyoke (1948) 15 EACA 121 (Sir Barclay
Niliill CJ, Edwards CJ and Sir John Gray CI)

That the presumption of recent possession is a presumption of fact and not an implication
of law.

 While in

Uganda vs. Joseph Sempala Mukasa (1975) HCB 210 (Butagira Ag J)

It was held that the presumption which arises from the possession of property recently
stolen is merely an application of the ordinary rul e relating to circumstantial evidence.

 For a statement of the principle of circumstantial evidence, see generally

Ernest Asami Bwire Abanga alias Oiiyango vs. Republic Nairobi CACRA No. 32 of
1990 (Tunoi, Lakha and Keiwua JJA).
15. CORPORATIONS

 A corporation has the same criminal responsibility as a natural person.

 A corporation is defined as a group of people who come together for a common
purpose, usually to carry on business.
 The corporation is considered to be a legal entity or person, separate and distinct
from its members. It has a corporate name, perpetual succession and a common
seal.
 Corporations are established either by statute or formed under the Companies Act.
 In the Tanzanian case of

Wilfred Tyenyi vs. Reginam (1956) 23 EACA 558 (Sir Newnham Worley P, Briggs Ag
VP and Bacon JA)

It was held that since the words ‘corporation’ and ‘company’ were not defined in the
Penal Code they must bear their ordinary meanings.

 A limited liability company was in

R vs. ICR Haulage Ltd(1944) I All E R 691

The limited company was charged with the offence of conspiracy to defraud. It raised the
objection that it was not a natural person, it did not have a mind and therefore it could
not form a mens rea. The argument was rejected by the court, which hel d that the acts
and states of mind of a company’s servants may be treated as that of the company itself.
The court set out the limits to criminal liability of corporations: some offences, such as
perjury and bigamy, by their very nature cannot be committed by corporations, and for
some offence, such as murder, the only available penalty is corporal to which a
corporation cannot be subjected.

 See Also

Majestic Theatre Co. Ltd vs. Regina 157 (Sir Hector Hearne CJ and Bourke J)

Kerementi Lyangombe and anoth er vs. R (1959) EA 678 (Bennett Ag CJ)

Republic vs. International Trading and Credit Corporation of Tanganyika Ltd (1969)
EA 314 (Duff J)

 1n

Regina vs. Nassa Ginners Limited (1955) 22 EACA 434 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Briggs JA )

A limited liability company was convicted of an offence under the Factories Act for
failing in its duty to securely fence a machine called cotton opener.
  See Also

Bombay Trading Stores (U) Limited and another vs. R (1962) EA 589 (Sir Ronald P
Sinclair Sir Alastair Forbes VP and Sir Trevor Gould JA)

Range vs. Republic (2003) KLR 692 (Tunoi, O’Kubasu JJA and Onyango -Otieno Ag
JA).

 Unincorporated bodies, such as political parti es, trade unions, partnerships and
firms do not have corporate existence.

 See Also

Nemchand Jeshang Shah and another vs. Regina 161 (Sir Hector Hearne CJ and
Windham J)

 In

Nterekeiya Bus Service vs. Republic (1966) EA 333 (Sir John Ainley CJ and Miller J)

It was held that a firm or body corporate cannot be charged, convicted and punished
solely in the name adopted by the firm or society. A firm was charged and convicted of
permitting someone drive a motor vehicle in an unworthy condition. It was recorded that
the accused was present in court and the fine was paid by someone w hose name was
unknown and who was charged paid the fine. The conviction was quashed on appeal.

 According to section 23 of the Penal Code, where an offence is committed by a

corporate or non corporate body, every person who is in charge of the control of
the management of the affairs or activities of the corporate or non -corporate body
is guilty of the offence and is liable to be punished for it.
 Criminal liability arising from the activities and operations of corporations
attaches on both the corporation and its managers, but for such bodies as are not
corporations criminal liability attaches on the partners, managers or organizers
individually.

PENAL OFFENCE FACTS Interpretation

CODE
23 PARTIES TO 23- Where an offence is committed Every person who is in charge of the
OFFENCES by any company or by any society, control of the management of the
association or body of persons,
(Offences by every person charged with or
affairs or activities of the corporate or
corporations and concerned or acting in, the control non-corporate body is guilty of the
societies) or management of the affairs or offence and is liable to be punished for
activities of such company ,body it.
corporate,society,association or
body of persons shall be guilty of
the offence and liable to be
 punished accordingly ,unless it is
proved by such person that,
through no act or omission on their
part, he was not aware of the
offence was being or intended or
about to be committed or tha t he
took all reasonable steps to prevent
its commission.

 See

R vs. Ivan Arthur Camps (1962) EA 403 (Sir Ronald Sinclair P, Sir Alastair Forbes
VP and Crawshaw JA)

Mkendeshwo vs. Republic (2002) 1 KLR 461 (Omolo, Shah and Bosire JJA)

 The legal position regarding unincorporated bodies was stated in

Stephen Obiro vs. R (1962) EA 61 (Farrell J)

Where the court said that an unincorporated body could theoretically be guilty of a
criminal offence, but in practice no criminal proceedings could be instituted against it,
for there is no procedure for bringing it before a court or receiving its plea. The court
found that the charge against the society was bad in law as criminal proceedings cannot
lie against an unincorporated body; it was further held that the plea of guilty by the
chairman of the society on behalf of the society was a nullity as it was not made by a
person duly authorized to plead on behalf of the society.

 In

Uganda vs. Khimchand Kalidas Shah and two others (1966) EA 30 (De Lestang and
Law JJA)

It was held that when one is dealing with a priva te company, evidence that stolen
property was found on its premises must tend to implicate the directors of the company
with the offence of receiving or retaining. Stolen property had been found on a coffee
farm and house owned by the company, and the issu e was whether this implicated the
directors of the company, who were charged with receiving or retaining stolen property.

 See also

R vs. Kalsons Limited and others (1957) EA 347 (McKisack CJ).

 16. USE OF FORCE IN EFFECTING ARREST

 The law, through sections 17, 18 and 241 of the Penal Code, allows security
agents and private individuals to use all necessary means and all such force as are
reasonable to affect a lawful arrest of a wanted person.

PENAL OFFENCE FACTS Interpretation

CODE
17 GENERAL 17-Subject to any express Private persons are allowed to use
RULES OF provisions in this Code or any force in self defence or defence of
other law in operation in Kenya,
CRIMINAL criminal responsibility for the use
their property
RESPONSIBILITY of force in the defence of person or
(Defence of person property shall be determined
or property) according to the principles of
English Common Law.
18 GENERAL 18-Where any person is charged Allows security agents and private
RULES OF with a criminal offence arising out individuals to use all necessary
of the lawful arrest, or attempted
CRIMINAL arrest, by him of a person who
means and all such force as are
RESPONSIBILITY forcibly resists such arrests or reasonable to affect a lawful arrest of
(Use of Force in attempts to evade being arrested, a wanted person.
effecting Arrest) the court shall ,in considering
whether the means used were
necessary or the degree of force
used was reasonable, for the
apprehension of such persons,
have regard to the gravity of the
offence which had been or was
being committed by such person
and the circumstances in which
such offence had been or was
being committed by such persons
241 OFFENCES 241-Any person authorized by law Officers are criminally responsible
ENDANGERING or by consent of the person injured for using un-necessary force.
by him to use force is criminally
LIFE AND responsible for any excess,
HEALTH according to the nature and
(Excess Force) quality of the act which constitutes
the act.

 Apart from sections 17 and 241 of t he Penal Code, section 28 of the Police Act is
stated to be to be part of the law which provides the circumstances in which a
police officer may use a firearm .

ACT POLICE ACT FACTS INTERPRETATION

28 POWER TO USE 28-A police officer may use arms
ARMS against-
a) any person in lawful custody
and charged with or convicted of a
felony, when such a person is
escaping or attempting to escape.
b) any person who by force rescues
The police act section 28 provides the
circumstance under which a police
officer can use their fire arms to
effect arrest or prevent escape from
lawful arrest.
 or attempts to rescue another from
lawful custody.
c) any person who by force
prevents or attempts to prevent
the lawful arrest of himself or of
any other person:
Provided that arms shall not be
used
i) as authorized in in paragraph
(a) ,unless the officer has
reasonable grounds to believe that
he can not otherwise prevent the
escape, and unless he gives
warning to such person that he is
about to use arms against him and
the warning unheeded.
ii) as authorized in paragraph (b)
or paragraph (c) unless the officer
has reasonable ground to believe
that he or any other person is in
danger of grievous bodily harm or
that he cannot otherwise prevent
the rescue or, as the case may be,
effect the arrest

Anthony Njue Njeru vs. Republic (2006) eKLR (Bosire, O’Kubasu and Onyango
Otieno JJA).

Apart from sections 17 and 241 of the Penal Code, section 28 of the Police Act is stated
to be to be part of the law which provides the circumstances in which a police officer may
use a firearm to be part of the law which provide the circumstances in which a police
officer may use a firearm.
 The Kenya Police Manual of 1980 also elaborates in greater detail on use of arms
by police officers.

 See also

Musyoka and others vs Republic (2003) 1 BA 177 (Gicheru, Lakha and Keiwua JJA)

 See

Zedekia Lukkvago vs. Reginam (1955) EACA 507 (Sir Newnham Worley P, Sinclair
VP and Bacon JA)

M’Ibui vs. Dyer (1967) EA 3 15 (Farrell J).

 Compare with
Muthiga vs. Republic (1987) KLR 134 (Gicheru J)

On the defence of property, where force is used to eject a trespasser.

  Where issues arise as to whether the means and force used in effecting arrest are
reasonable, the court should consider the behavior of the person be ing arrested as
well as the nature and gravity of the offence alleged committed or about to be
committed by the suspect. These provisions give protection to persons lawfully
effecting arrest, but there is criminal responsibility for any excess force used i n
effecting the arrest.

 See

Rex vs. Machage s/o Mwita (1937) EACA 94 (Sir Joseph Sheridan P, Webb J and
Gamble Ag J)

Where it was held that a private person is not entitled to cause the death of a thief in
attempting to effect his arrest even though th e arrest could not otherwise be effected or to
justify the incapacitation of a thief with a weapon.

 See also

Gideon Miano vs. Republic Nairobi CACRA No. 13 of 1999 (Gicheru, Lakha and
Bosire JJA),

Augustino Orete and others vs. Uganda (1966) 430 (Sir Charles Newbold P, Duffus Ag
VP and Law JA),

Gitau and another vs. Republic (1967) EA 449 (Sir John Ainley CJ and Rudd J)

Uganda vs. Muherwa (1972) EA 466 (Mukasa J),

It was held that a private person is not entitled to cause the death of a thief, or t o
incapacitate the thief with a weapon, in attempting to effect his arrest even though the
arrest could not otherwise be effected .

 In

Marwa s/o Robi vs. R (1959) EA 660 (Forbes VP, Gould and Windham JJA)

The court stated with regard to force used to ef fect arrest that it must be a question of
fact in each case whether the degree of force used in defence of property which caused
death was, in the particular circumstances of the case, justifiable, or if not justifiable,
whether it was such as to amount to manslaughter or was so excessive as to constitute the
offence of murder. The deceased had gone to the homestead of the appellant armed with
a stick to claim cattle that did not belong to him. He believed that he had a legitimate
claim to the cattle, the dispute between him and the appellant was an old one, and he did
not act stealthily, but went to the home of the appellant openly to exercise a right which
be thought he was entitled to. Although he had a stick, he did not use it or threat to use it
against the appellant; neither did he attempt to commit any forcible crime. He did
attempt to drive away the disputed cattle when the appellant hit him fatally with a spear.
The court found that the appellant was entitled to use reasonable force to prevent the
taking away of his cattle, but the means used were disproportionate to the tort which was
being committed by the deceased. In the opinion of the court the thrust of a spear into the
chest of the deceased was calculated to kill, rather than to prevent the rem oval of the
cattle.

 See

Mutua Mwalata vs. Republic Mombasa CACRA No. 153 of 1983 (Hancox JA, Chesoni
and Nyarangi Ag JJA).

 See also

Rex vs. Mohamed Sekendo bin Nyange (1941) 8 EACA 67 (Sir Joseph Sheridan CJ,
Sir Norman Whitley CJ and Sir Henry Webb CJ)

Where the court stated the English position that where a man attacks another and the
latter, without fighting, flies and then turns and kills his assailant it is justifiable
homicide if he had retreated as far as he could and manslaughter if he had n ot. If there is
no other way of saving his life it is justifiable.

 This test was adopted in the case of

Muhidini s/oAsuniani vs. R (1962) EA 383 (Sir Ronald Sinclair P, Sir Alastair Forbes
VP and Sir Trevor Gould JA)
Where a landowner, went out at night armed with a panga in search of thieves stealing
from his farm. Two people came running towards him, and as they ran past him, he
slashed one with a panga, killing him instantly. The deceased was a youth of sixteen, who
was unarmed and who made no effort to attack the landowner. There was, however,
evidence that maize thefts were prevalent in the area, perpetrated by armed gangs. The
court found that the landowner was entitled to effect arrest, but that the force he used
was excessive in the circumstances. He was convicted of manslaughter.

 In the more recent case of

Msiwa and another vs. Republic (1999) 2 EA 190 (Mfalila, Samata and Lugakingira
JJA)

The deceased had reasonably assumed that the pursuing police officers were bandits,
since they were in civilian clothes, driving a civilian vehicle and they did not identify
themselves, as a result he stopped his vehicle and attempted to run away. The police on
their part genuinely believed that the deceased was an armed robber. They shot at him
and killed him. They were convicted of murder. Their appeal against conviction was
dismissed. The appellate court noted that the deceased was unarmed and was already
injured and therefore had an awkward run, which made him neither a threat to the police
officers nor a difficult subject to arrest. It was held that the shooting was unjustified and
therefore the police officers had malice aforethought. It was concluded that the police
used unreasonable force to effect an arrest.

 In

Musembi s/o Kilonzo and another vs. R (1957) EA 422 (Sir Ronald Sinclair VP, Briggs
and Bacon JJA)

The accused, who were armed, sought to arrest the deceased who had issued a threat to
kill one of the accused persons and his wife. The deceased ran away, and the accused
gave chase. In the course of the chase he threw a knife at the accused, but retained a
kiboko which he used against one of the accused. One of the accused fatally struck him
with a panga. The accused were convicted of murder. On appeal the conviction was
substituted for manslaughter. The court found that the accused were armed for a lawful
purpose of effecting the arrest of the deceased, and therefore they had embarked on a
lawful undertaking with a lawful intent. It was further held that it was the deceased who
first attacked the accused with his knife and lashed out at them with the kiboko, and he
was intent on inflicting injury on the accused.

 In

Yuszfu alias Hema s/o Lesso vs. Regina (1952)19 EACA 249 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Cox CJ)

The accused pursued a fugitive intruder, who fell and the accused struck him several
times on the head with a bill hook killing him. He was convicted of murder. On appeal
the court considered the fact that the accused had a right to arrest the intruders, but the
degree of force he used was unnecessary and grossly excessive. The nature of the attack
by the accused on the intruder indicated the accused’s dominant intention was to kill the
deceased in retaliation and not merely to arrest him. The conviction for murder was
upheld.

 See also the more recent case of

Mungai vs. Republic (1976 -1985) EA 3 18(1982-88) 1 KAR 611 (1984) KLR 85
(Kneller, Hancox JJA and Nyarangi Ag JA)

Where the appellate court in quashing the appellant’s conviction of manslaughter,

considered the fact that the appellant had acted for the purpose of preventing a felony
when he shot the deceased, and criticized the trial court for failing to consider the state
of mind of the appellant when he fired the shots, the general anguish of the moment and
the fact that the deceased appeared to be reaching for a gun. Given the circumstances, it
would appear, the appellant acted rather reasonably.
  1n

Patrick Mugo Muchira vs. Republic Kisumu CACRA No. 31 of 1996 (Kwach, Tunoi
JJA and Bosire Ag JA)

The appellant, a police officer, had been convicted of manslaughter of a suspect. Medical
evidence showed that the deceased was shot on the back as he fled from the appellant.
The appellate court was of the view that the appellant’s conduct was unjustified. In its
opinion, a killing of a person can only be justified and excusable where the accused
person’s action which caused the death was in the course of averting a felonious attack
and no greater force than is necessary is applied for that purpose. And for the plea to
succeed it must be shown that by the accused that he was in immediate danger or peril
arising from a sudden and serious attack by his victim.
17. AUTREFOIS ACQUIT AND AUTREFOIS CONVICT

 These are really pleas at the bar, in answer to a criminal charge.

 Answers to charges guilty or not guilty.
 They can be raised in cases where a suspect is objecting to a charge on the
grounds that he had been previously acquitted of the same charge or that he had
been previously convicted of the same charge.
 This would be where the person had been either acquitted or convicted in a
previous trial on a similar charge based on the same facts as that with which he is
now charged.

CASE EXAMPLE
 See

Rex vs. Zcfferali Taxability Mulla Daudji (1948) 15 EACA 89 (Sir Barclay Nihill CJ,
Edwards CJ and Sir John Gray CJ)

Where it was said that on a plea of autrefois convict the test is not whether the facts
relied on are the same at the two trials, but rather whether the acquittal or conviction on
the previous charge necessarily involves an acquittal or conviction on the subsequent
charge. The appellant had pleaded guilty to smuggling ivory contrary to the provisions of
the Customs Management (Export Control) Order, 1946. He was later charged with
attempting to export game animal trophies without the written permission of the game
warden. He pleaded autrefois convict, which plea was dismissed by the trial court. The
appellate court upheld the rejection of the plea.

 1n

Ngarachu and another vs. Repu blic (2004) 2 hA 215 (Ochieng and Makhandia Ag JJ)

The appellants had been convicted of robbery with violence. On appeal against the
conviction, it transpired that the appellants had earlier been charged with and
convictedof simple robbery, based on the s ame facts, and where the complainant was one
and the same person. It was held the principle of autrefois convict applied and that the
appellants should not have been charged with the same facts upon which they had earlier
been convicted of. The appeal was allowed.

 In

Salim bin Karama (1951) 18 EACA 304 (Sir Barclay Nihill P, Sir Newnham Worley
VP and Hearne CJ)

The accused was convicted of affray. He was subsequently charged before course of the
affray (fighting in public). He pleaded autrefois convict . It was held that if the facts
disclosed only one act or omission then the law bars any subsequent prosecution on a
charge for another offence based on the same act. But a previous conviction or acquittal
does not prevent a person from being subsequently charged with a different offence
which could have been joined with the first charge at the former trial.

 See

El Mann vs. Republic (1970) E A 24 (Sir Charles Newbold P, Duffus VP and Law JA)

 1n

R vs. Absolom s/o Mohanga and another (1957) hA 660 (Rudd Ag CJ and Forbes J),

The respondents were police officers who took two women from the cells and had carnal
knowledge of them without their consent. The respondents were subsequently charged
under the Police Act (in what are known as orderly room proceedi ngs) over their acts
with conduct to the prejudice of good order and discipline, convicted and sentenced.
They were later brought before a magistrate charged with rape. The plea of autrefois
acquit was raised and accepted. On appeal by the state, it was he ld that magistrate
should have rejected the plea of autrefois acquit. In the opinion of the court, the offence
which was the subject of the orderly room charge was based on the same facts, but it was
not the same offence of rape; and for the plea of autref ois acquit to be effectual, the
previous conviction must be the same, or practically the same offence as that
subsequently charged.

 In

Haji Sedi Semuyaga vs. Uganda (1975) HCB 237 (Law Ag P, Mustafa Ag VP and
Musoke JA)

It was held that the principle of autrefois acquit does not apply in cases where the
subsequent charges are based on different facts from those which the accused had been
charged with and acquitted of earlier. The appellant had been acquitted of an alleged
conspiracy on l’ November 1972 with one Edrisa Kinvuga to steal 36 bags of rice. He
was subsequently charged with an alleged conspiracy between 25th and 3O’ October
1972 with one Christopher Ouma to steal 72 bags of rice. He pleaded autrefois acquit.
The trial court applied the princip le of autrefois acquit, and discharged him on the
finding that the theft and conspiracy charges were substantially the same as the earlier
ones for which he had been acquitted. On appeal it was held that the trial court was
wrong, since the two sets of cha rges were based on different facts; to wit, the conspiracy
was alleged to have occurred on different dates involving different persons.

NOTE

 These pleas are only good where the convictions or acquittals remain in force.
 It would appear that a conviction which is overturned on appeal on the grounds
that it was not supported by the facts presented to the trial court would technically
 amount to an acquittal, and therefore a bar to a subsequent charge on the same
facts.
 It would appear, however, that a conv iction that has been reversed on appeal for
being erroneous in Jaw is no bar to a subsequent trial on the same facts .

 See

R vs.Drury (1849) 18LJMC 189

 1n

Rex vs. Abdi Moge and others (1948) 15 EACA 86 (Sir Barclay Nihill, Edwards CJ and
Sir John Gray CJ)

It was held that quashing a conviction on the basis that the trial record is indecipherable
and leaving it open to the state to institute fresh proceedings de novo does not bar the
plea of autrefois convict to a subsequent charge, and to prevent such a scenario the
better order for the appellate court to make would be to order a new trial.

 This decision was followed with approval in

Bhagubhai Lalbhai Patel vs Rex 127 (Sir Hector HearneCJ and Bourke J).

 See also

Simpson vs. Nakuru District Council 19 KLR 27

 In

Rex vs. Kimnyongo arap Kimanjo KLR 164 (Sir Jacob Barth CJ)

It was held that where a higher court quashes a conviction and sentence and does not
order a re-trial, the accused person cannot again be placed on trial for the same offence,
as he would be entitled to plead autrefois acquit. In the opinion of the court, following
the principle that no one should be in jeopardy twice on the same charge, the effect of an
order quashing a conviction and sentence without ordering a re-trial has the effect of an
acquittal and it is a bar to further proceedings on the same charge with the same
evidence.

 It would also appear that where the consequences of a criminal act had not
happened. or were not known to the court at the time of the acquittal or
conviction.
 This is the position under section 140 of the Criminal Procedure Code, which
provides that a person convicted or acquitted of any act causing consequences
which together with such an act constitute a different offence from that for which
such person was convicted or acquitted may be afterwards tried for such last -
 mentioned offence, if the consequences had not happened or were not known to
the court to have happened at the time whe n he was acquitted or convicted.

ACT CAP FACTS INTERPRETATION

75:CRIMINAL
PROCEDURE
ACT
140 PREVIOUS 140-A person convicted or
CONVICTIONS acquitted of an act causing
consequences which together with
OR ACQUITALS that act constitute a different
(Consequences offence from that for which he was
supervening or not convicted or acquitted may be
known at time of afterwards tried for the last
former trial) mentioned offence, if the
consequences had not happened or
were not known to the court to
have happened at the time when
he was acquitted or convicted.

 The principle was applied in the English case of

R vs. Thomas 1949) 2 ALL ER

Where a person was convicted for the felony of wounding his wife. The wife subsequently
died, and the convict was charged with her murder. He pleaded autrefois convict but the
plea was rejected. On appeal, the rejection of the plea was upheld.

 It was held in

Rex vs. Jiwan Nathu and another EACA 62 (Sir Norman Worley CJ, Sir Henry Webb
CJ and Lucie-Smith J)

That if a trial court discharges an accused person where the state fails to present
evidence against him, that would the case of an discharge under section 87(a) of the
Criminal Procedure Code, and it is not an acquittal and therefore the plea of autrefois
acquit would not be available to the accused should the state thereafter charge him of the
same offence for which he had been previously discharged.

 See

Republic vs. Owako and others (1974) EA 507 (Trevelyan J)

 The same applies to a dismissal of a charge under section 200 of the Criminal
Procedure Code, such dismissal is not a bar to subsequent proceedings.
ACT CAP FACTS INTERPRETATION
75:CRIMINAL
PROCEDURE
ACT
87 CONTROL OF 87-In a trial before a subordinate
REPUBLIC IN court a public prosecutor may
CRIMINAL with the consent of the court or on
PROCEEDING the instruction of the AG at any
(Withdrawal from time before judgment is
prosecutions in trials before a pronounced, withdraw from the
subordinate court ) prosecution of any person and
upon withdrawal

a) if it is made before the accused

person is called upon to make his
defence he shall be discharged, but
discharge of an accused person
shall not operate as a bar to
subsequent proceedings against
him on account of the same facts.
b) if it is made after the accused
person is called upon to make his
defence,he shall be acquitted
200 MODE OF TAKING 200 (1)-Subject to subsection (3)
OR RECORDING OF where a magistrate, after having
EVIDENCE BEFORE heard or recorded the whole or
TRIAL part of the evidence in a trial,
(Conviction on ceases to exercise jurisdiction
evidence partly therein and is succeeded by
recorded by one another magistrate who has and
magistrate and partly exercises that jurisdiction, the
by anothe r) succeeding magistrate may: -

a) Deliver a judgment that has

been written and signed but not
delivered by his predecesso r ; or

b) Where judgment has not been

written or signed by his
predecessor or resummon the
witness and recommence the trial.

(2)-Where a magistrate who has

delivered judgment in a case but
has not passed sentence, ceases to
exercise jurisdiction therein and is
succeeded by a magistrate who has
and exercises that jurisdiction, the
succeeding magistrate may pass
sentence or make any order that
could have made if he had
delivered the judgment

(3)-Where a succeeding magistrate

commences the hearing of a
 proceeding and part of the
evidence has been recorded by his
predecessor, the accused person
may demand that any witness be
resummonded and reheard and
the succeeding magistrate shall
inform the accused person of that
right.

(4) –When an accused person is

convicted upon evidence that was
not wholly recorded by the
convicting magistrate ,the High
Court, may if it is of the opinion
that the accused was materially
prejudiced thereby, set aside the
conviction and may order a new
trial.

 It was pointed out in

Haji Sedi Semuyaga vs. Uganda (1975) HCB 237 (Law Ag P, Mustafa Ag VP
Musoke JA)

That a discharge on the grounds of autrefois acquit is not an acquittal but merely a
finding order that the accused person should not be placed on his trial. The same would
apply to a conviction.

 Look tip constitutional provisions on this plea. Look up also section 77(5) of
the old Constitution.
18. DOUBLE JEOPARDY

 This concept is closely related to the pleas of autrefois acquit and autrefois
convict.
 The rule is that it is unjust for a person to be punished more than once for the
same offence or crime.
 It is a protection against double punishment.
 There is no provision in the Kenyan statutes on the rule, but it is nevertheless a
concept applied in the country’s criminal j ustice system.
 The courts have interpreted the rule to mean that a person cannot be convicted
twice for the same offence.
 However if the same act, discloses several offences it is possible and permissible
to charge with several offences in the alternativ e.e.g Theft and Handling stolen
property ,they will choose the higher crime but you cannot be charged with both.

CASE EXAMPLE

 It was stated in

Myano s/o Ileme vs. Rex (1951) 18 EACA 316 (Sir Barclay Nihill P, Sir Newnham
Worley VP and Sir Hector Hearne CJ)

Following

Salim bin Karama (1951) 18 EACA 304 (Sir Barclay Nih ill P, Sir Newnham Worley
VP and Hearne CJ)

That if the facts of a case disclose two acts the accused may be charged with and
punished for both, but if all the facts amount to one act and no more, he cannot be
punished twice for that act.

 In
Rex vs. Kildare Robert Eric Dobbs (1951) 18 EACA 319 (Sir Barclay Nihill P. Sir
NewnhamWorley VP and Sir Hector Hearne CJ)

The appellant was charged with stealing by a person employed in the pub lic service and
unlawful possession of government trophies. He was convicted on both counts, and given
concurrent sentences. On appeal, it was held that whilst it was open to the prosecution to
charge him with two offences he cannot be punished twice for t he same; act. It was held
to have been wrong for the trial court to have passed sentence on both counts. The act
disclosed two offences, and the appellant should have been punished for only one of
them. The sentence for the second count was set aside.
  See also

Kabunga s/o Magingi vs. Reginam (1955) 22 EACA 387 (Sir Barclay Nihill P, Marion
J and Holmes J)

 In

Santokh Singh Kehar vs. Reginam (1955) 22 EACA 430 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Sir Enoch Jenkins JA)

The accused stood charged on two counts: with attempting to procure another to commit
the offence of destroying certain documents required for court proceedings and with
attempting in the same transaction to procure the same person to steal the said
documents. The accused was convicted of both charges. On appeal, the court held that
the appellant had been punished twice for the same act. The desire of the appellant was
to achieve the destruction of the said documents to prevent their being used at a pending
trial. It was in furtherance of this objective that he procured the other person to steal and
destroy the documents.

 See also

Singile s/o Mpina and others vs. Rex 182 (Abrahams CJ, Ag P, Law CJ and
McDougall Ag CJ)

 It was stated in

Cosma s/a Nyadago vs. R 22 EACA 450

That it is permissible to lay different charges, relating to same criminal act or omission,
or based on the same facts if the said facts disclose several offences, in several courts in
the alternative.

 But in

Sefu s/o Bakari vs. R (1960) EA

The point was made that where the charges are in the alternative, the proper course,
upon conviction of the accused on one count, is for the court to refrain from entering a
verdict on the other to avoid double conviction or punishment.
  In

Shah vs. Republic (2002) 2 KLR 526 (Ouna J),

The court held that no court should try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit between
parties under whom they or any of them claim o r suit in which such issue has been heard
and fully decided by the court, The matter before court was a criminal application
seeking to have certain charges or complaints accepted by a criminal magistrate’s court
rejected as similar charges or complaints h ad been previously brought against the
accused and fully heard and determined.

19 SUPERIOR ORDERS

 There is no provision in the Penal Code on superior orders,

 But the principle is that a person is not criminally responsible for an act or
omission in obedience to an order, which he is bound by law to obey, unless the
order is manifestly unlawful.
 It would appear, as implied in

CASE EXAMPLE

Magayi vs. Uganda (1965) EA 667

That where an order is plainly unlawful, a person cannot shelter behind it to esc ape
criminal liability. This principle would apply basically with respect to the security forces,
and it is designed to protect junior officer act on the orders of their superiors.