1.

Intoxication

The Legal Dictionary defines intoxication as the condition of being drunk as the result of
drinking alcoholic beverages and/or use of narcotics.1 Section 13 (5) of the penal code
underscores the definition by providing that intoxication includes state produced by narcotics or
drugs.

Intoxication is not a general defense to a criminal offence, however there are certain
circumstances that intoxication may avail defense to the offence committed. Section 13 of the
penal code lays down such circumstances. In summary it provides for the following general
rules: -

 There is no general defense of intoxication

 Intoxication will be a defense is by reason thereof the accused, at the time of the offence,
was either:
(i) (a) incapable of understanding what he was doing; or
(b) incapable of knowing that what he was doing was wrong; and
(ii) (a) his intoxication was caused without his consent but by the malicious or
negligent act of another (involuntary intoxication); or
(b) the accused was by reason of intoxication insane temporarily or
otherwise, at the time of the offence (intoxication amounting to insanity)
 Intoxication may be a defense if it renders the accused incapable of forming the necessary
mens rea (intention) for the offence charged (intoxication negativing mens rea)

1.1. Involuntary Intoxication

It arises where at the time of commission of the act complained of, the accused person does not
know that it is wrong or does not know what he is doing, because of intoxication caused without
his consent by the malicious or negligent act of another person.

A person who consumes alcohol involuntary or against his will may successfully plead the
defense of intoxication. It covers situations where a person is forced to consume alcohol or drugs

1
https://dictionary.law.com/Default.aspx?selected=1018
or consumes food or drink spiked with alcohol or drug. In such a case, the court is required to
discharge the accused person.

In Kupele Ole Kitaiga v Republic, 2 the accused was charged with the offence of murder. The
facts of the case were that the accused believed that the newborn child was not his. Subsequently,
he went on a drinking spree.  He left the house from 8.00 a.m. to 2.30 p.m. when he returned
drunk.  The accused entered the bedroom when the deceased was sleeping.  The wife was taking
a bath. In a short while, the accused sat near the bed where the deceased was sleeping. When the
wife came to check the deceased, she saw that the accused was sitting next to the bed while
holding a bolted rungu.  The wife went back to the bath to wash her legs.  While there, she heard
a noise as if something was being beaten.  She came back and found the accused hitting the
deceased with the nutted rungu. The postmortem report showed that the cause of death was
severe internal haemorrhage caused by blunt trauma. During the hearing the accused offered to
plead to a lesser charge of manslaughter and the prosecution accepted that offer.  The
Information for murder was substituted with one for Manslaughter and the appellant readily
pleaded guilty to that charge. He was convicted and sentenced to serve 12 years in prison. The
trial court observed the following:

“on the fateful day, he took alcohol to gain “dutch courage”.  He then assaulted the deceased cause it
to sustain fatal injuries.  it is clear that the accused formed the intention to harm the deceased.”

Aggrieved by the decision, he filed an appeal at the court of appeal on grounds that he was
drunk and that the sentence was harsh and excessive. In upholding the trial court’s decision, and
dismissing the appeal the court of appeal observed the following

“A clear message must also go out to those of the appellants ilk who deliberately induce drunkenness
as a cover up for criminal acts.”

In Republic v O M G,3the accused was charged with the offence of murder. The facts of the case
were that the deceased owed the accused demand from the deceased Kshs.180/-. The deceased
then gave the accused Kshs.80/= but the accused insisted that he wanted the whole amount.  The
deceased then gave the accused an additional Kshs.100/= and settled the whole amount.  On
receiving the total sum of Kshs.180/=, the accused alleged that the deceased had bewitched him

2
[2009] eKLR
3
[2017] eKLR
which prevented him from developing in life. Subsequently, the accused then entered the house,
took a fork jembe and hit the deceased twice at the back of her head whereupon she fell down
and died instantly. The accused left the fork jembe at the scene and went into his house within
the homestead. Thereafter the police came and collected the body and arrested the accused.in his
defense the accused argued that he was drunk at the time and that the deceased had provoked
him beyond control. The accused was found guilty of murder. The court noted the following:

In the instant case, the accused stated that he was drunk at   the time he quarreled with the deceased.
It was not clear how or from what he was drunk. The extent of his drunkenness, if at all, was not
established.  The evidence on record shows that the accused left the deceased sitting outside, went
into the house chose a dangerous weapon with which to deal with the deceased, came out armed with
it, hit the deceased twice in the back of her head after which he left the fork jembe at the scene and
walked away to his house. His walking away from the scene was indicative of the fact that he knew
what he had already done.  His testimony was that he had had an altercation with the deceased
before he went to the local trading centre.  If that were so, did he go drink to be able to   deal with the
deceased when he returned?  It was not clear from his testimony.  

1.2. Intoxication amounting to insanity4

It arises where by reason of intoxication, the accused becomes insane, temporarily or otherwise,
so that at the time of commission of the act complained of, he does not know that it is wrong or
does not know what he is doing. In short, the defense of intoxication amounting to insanity is
really a plea of defense insanity.

The principles governing the defense of intoxication amounting to insanity are the same as those
governing the defense of insanity. This position was set out by the former Court of Appeal of
Eastern Africa in the case of Rex v. Retief,5 and recently underscored by the Court of Appeal in
Bakari Magangha Juma v Republic.6 The court explained the aspect of the defense of
intoxication as follows: -

“The insanity whether produced by drunkenness or otherwise is a defense to the crime charged. The
law takes no note of the cause of insanity and, if actual insanity in fact supervenes as the result of
alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any
other cause. It is immaterial whether the insanity so induced was permanent or temporary and if a

4
Section 13 (2) of the Penal Code
5
[1940-1943] EA
6
[2016] eKLR
 man’s intoxication were such as to induce insanity so that he did not know the nature of his act or
that his act was wrongful, his act would be excusable on the ground of insanity and the verdict should
be as laid down in section 159 of the Criminal Procedure Code ‘guilty of the act charged but insane
when he did the act.’ ”

The court is required to deal with the accused person in the manner prescribed by the Criminal
Procedure Code for accused persons who were insane at the time of commission of the offence,
culminating in a special finding of guilty but insane and the detention of the accused person in a
mental hospital at the pleasure of the President.

1.3. Intoxication negativing mens rea

Section 13 (4) of the Penal Code covers instances where by reason of intoxication or
drunkenness negativing mens rea, the accused person is incapable of forming a specific intent
which an element of the offence charged thus rendering the accused not guilty.

In Bakari Magangha Juma v Republic,7 the court underscored the principles set in the case of
Said Karisa Kimunzu v. Republic, 8 where the court stated the following regarding intoxication or
drunkenness negativing mens rea:

“under subsection (4) the court is required to take into account the issue of whether the drunkenness
or intoxication deprived the person charged of the ability to form the specific intention required for
the commission of a particular crime. The court is required to take that into account for the purpose
of determining whether the person charged was capable of forming any intention, specific or

otherwise, in the absence of which he would not be guilty of the offence .’

In Bakari Magangha Juma v Republic,9 the accused was charged with the offence of murder. On
the material day, the accused had spent the better part of the day drinking traditional mnazi brew
with friends. He started drinking at 9.00 am and continued until 6.30 pm, taking only a short
break between 1.00 pm and 2.00 pm for lunch. When the mnazi seller closed for the day at 6.30
pm, the appellant bought a jerry can of more brew and retreated to the home of his
neighbor, where in the company of two others they continued drinking. By 10.00 pm, the
accused was drunk, rowdy and abusive. Disturbed from her slumber by the bedlam, the deceased
woke up and requested the accused to stop his noisy antics. He became agitated and abusive, and

7
[2016] eKLR
8
CR App No. 266 of 2006 (Msa),
9
[2016] eKLR
exchanged bitter words with the deceased. He then left for his house, some 20 meters away and
returned in about three to five minutes. Again, he exchanged abusive words with the deceased
when he insisted on continuing to drink. As the deceased retreated to her house, he followed her
and stabbed her to death. He then staggered to the nearby house and continued to sleep. During
trial the accused raised the defense of intoxication. The defense was not considered by the court.
He was found guilty and sentenced to death.

Aggrieved by the decision the accused appealed the same in the court of appeal on grounds that
he lacked the specific intent (malice aforethought) necessary for the offence of murder due to his
state of drunkenness. The court of appeal observed the following: -

 once an accused raises the defense of intoxication, the court is duty bound to take it into
account for the purpose of determining whether the accused was capable forming the
specific intent of the offence
 the burden of proving that the accused is capable of forming the intent necessary to
constitute the offence charged remains with the prosecution

The court further noted that in the circumstances the appellant did not have the specific intent
(malice aforethought) while committing the offence which is a necessary ingredient for an
offence of murder. This was informed by the fact that after stabbing the deceased, never made
any attempt to flee the scene, other than staggering to a neighbor’s house from which he was
found sleeping peacefully, and arrested. Such is not normally the conduct of a person with a
guilty mind. Consequently, the conviction of murder was substituted by a conviction for
manslaughter and a sentence of 15 years imprisonment.

2. Necessity
The defense of necessity in criminal law is where the accused is arguing that it was necessary for
them to commit a crime. For example, where a prisoner escapes from a burning prison he may
raise the defense of necessity as it was necessary for him to escape. The defense of necessity
often operates where the accused has two alternatives either commit a crime or suffer or cause
another extreme hardship. The accused has to prove the following to mount a successful defense
of necessity: -
a) that he was confronted with a choice of evils; and
b) he reasonably believed that some was inevitable; and
 c) he reasonably believed that his act or omission would avert a greater harm

In R v Bourne,10 a 14-year-old girl was raped by five soldiers and became pregnant as a result. An
eminent gynecologist performed an abortion on her and was charged with the offence of
conducting an illegal abortion. He was acquitted. Justice Macnaghten observed the following;

“If the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the
probable consequence of the continuance of the pregnancy will be to make the woman a physical or
mental wreck, the jury are entitled to take the view that the doctor is operating for the purpose of
preserving the life of the mother”

This well exemplifies a case of necessity in that, the surgeon, faced with the choice of taking the
life of unborn child or of preserving the physical and mental health of the mother, decided to
destroy the life not yet in existence. Article 26 (4) of the constitution is rationalized from the
principle of necessity. It authorises abortion where the health of the mother is in danger

In Re A (Conjoined twins),11Mary and Jodie were conjoined twins joined at the pelvis. Jodie was
the stronger of the two and capable of living independently. However, Mary was weaker, she
was described as having a primitive brain and was completely dependent on Jodie for her
survival. According to medical evidence, if the twins were left as they were, Mary would
eventually be too much of a strain on Jodie and they would both die. If they operated to separate
them, this would inevitably lead to the death of Mary, but Jodie would have a strong chance of
living an independent life. The parents refused consent for the operation to separate them. The
doctors applied to the court for a declaration that it would be lawful and in the best interests of
the children to operate. The High court granted the declaration on the grounds that the operation
would be akin to withdrawal of support ie an omission rather than a positive act and also the
death of Mary, although inevitable, was not the primary purpose of the operation. The parents
appealed to the Court of Appeal. The appellate court upheld the high court decision while noting
the three requirements for the application of the doctrine of necessity: -
a) the act is needed to avoid inevitable and irreparable evil;

10
[1938] 3 All ER 615 (http://www.e-lawresources.co.uk/cases/R-v-Bourne.php)
11
[2001] WLR 480 (http://www.e-lawresources.co.uk/Re-A--conjoined-twins-.php)
 b) no more should be done than is reasonably necessary for the purpose to be achieved;
c) the evil inflicted must not be disproportionate to the evil avoided

Necessity forms the basis of the defenses of compulsion and self-defense. It is a common law
defense and is not codified in the Penal code

3. Duress
Duress is a common law defense and is not specifically provided in the penal code. It is a general
defense, which means it is a defense to any crime including manslaughter. However, it is
unavailable as a defense to a charge of murder, those who participate in killing, and to attempted
murder. There are two defenses of duress: -
a) duress by threats; and
b) duress of circumstances

Duress by threat was defined in A-G v Whelan,12 as being available when the accused was told to
commit an offence and was subject to: “threats of immediate death or serious personal violence
so great as to overbear the ordinary powers of human resistance.”
 

Duress of circumstances is the most recent development in criminal law and is closely linked
to duress by threats and the defense of necessity. Duress by threat and duress of circumstances
are largely governed by the same criteria. Where the defense of duress is successfully pleaded it
absolves the defendant of all criminal liability.

The rationale behind the defense of duress is that whilst the accused clearly has the mens rea of
the crime, in committing the crime, they are acting out of compulsion and are therefore not
exercising freedom of choice. In this respect the defense of duress has often been described as a
concession to human frailty. 

The defense of duress differs from most defences which seek to demonstrate the accused lacked
the mens rea for example, intoxication, insanity and mistake. It also differs from the defense
12
[1993] IEHC 1 (http://www.e-lawresources.co.uk/cases/A-G-v-Whelan.php)
of self-defense a which perhaps provide a justification for committing a crime. Duress operates
to provide an excuse for criminal behavior.

For the defense of duress to be successful, the accused is expected to satisfy the following
ingredients: -

a) specified crime
The threat must be accompanied by an order to commit a specified crime. It is not sufficient that
the accused has felt the need to commit a crime to meet a demand for money.

In R v Cole,13the appellant borrowed some money from a loan shark. The loan shark threatened
him and his girlfriend with serious violence unless he repaid the money. He robbed several
building societies in order to repay the money. He raised the defense of duress. The defense was
unsuccessful and his conviction was upheld. The court noted that was not a sufficient nexus
between the threat and the crime. The loan shark did not tell him to commit a crime to repay the
money.

b) immediate threat
The threat must be a 'present' threat in the sense that it is effective to neutralize the will of the
accused at that time. When, however, there is no opportunity for delaying tactics, and the person
threatened must make up his mind whether he is to commit the criminal act or not, the existence
at that moment of threats sufficient to destroy his will ought to provide him with a defense even
though the threatened injury may not follow instantly, but after an interval.

In R v. Hudson,14the two appellants, aged 17 and 19, were witnesses of a fight which occurred in
a pub. They were called to give evidence in criminal proceedings against one of those involved
in the fight. They had been threatened with violence if they gave evidence against the defendant.
The threat had been repeated on several occasions leading up to the trial and on the day of the

13
[1994] Crim LR 582 ( http://www.e-lawresources.co.uk/cases/R-v-Cole.php)
14
[1971] 2 WLR (http://www.e-lawresources.co.uk/cases/R-v-Hudson--and--Taylor.php)
trial the person making the threats was in the public gallery in the court room and staring
menacingly at the appellants. The appellants lied in court so as not to implicate the defendant and
they were later charged with perjury. The trial judge found them guilty on ground that the threat
was not immediate. The appellate court however allowed the appeal and quashed the
convictions. The court noted that the threats of Farrell were likely to be no less compelling,
because their execution could not be effected in the court room, if they could be carried out in
the streets of Salford the same night.

c) threat of death or serious injury

Threats to reveal sensitive information alone are insufficient to raise the defense, but may be
taken into account if accompanied by threats of death or serious personal violence.

In R v Valderamma-Vega,15 the appellant had been convicted for importing drugs. He had done
so because he had received threats of serious violence against him and his family if he did not
comply. There were also threats to reveal his homosexual activities to his wife. He also received
financial rewards for his action. The trial judge found him guilty while refusing duress as a
defense. His appeal was allowed with the appellate court noting that threats to reveal his
homosexuality alone would be insufficient to find the defense but could be taken into account
when coupled with threats of serious personal violence.

d) threat to the accused or a person to whom he has responsibility

The threat of violence must be to the defendant or a person for whom he has responsibility or
persons for whom the situation makes him responsible.

In R v Shayler, 16
the accused was a member of MI5 and had signed a declaration under the
Official Secrets Act. In breach of this he had provided journalists with 30 documents which he
had obtained through his position and which related to national intelligence and security issues.
During a case management hearing the judge ruled that the defense of duress of circumstances
was not available to him. He appealed against this ruling contending that the disclosure was

15
[1985] Crim LR 220 (http://www.e-lawresources.co.uk/cases/R-v-Valderamma-Vega.php)
16
[2001] EWCA Crim 1977 (http://www.e-lawresources.co.uk/cases/R-v-Shayler.php)
necessary to safeguard members of the public. His appeal was dismissed on grounds that he
could not identify the action that was going to create imminent threats to life, nor could he
identify the potential victims or establish that he had responsibility for them.

e) threat must be great as to overbear the ordinary powers of human resistance

The test established in R v. Graham,17applies to determine whether the threat was so great as to
overbear the ordinary powers of human resistance. The elements of the graham test are: -
 
 the defendant must have a reasonable belief in the circumstances;
 his belief must lead him to have a good cause to fear death or serious injury would
result if he does not comply; and
 a sober person of reasonable firmness, sharing the characteristics of the defendant,
might have acted as the defendant did.

In R v. Graham,18the appellant lived in a flat with his wife, Mrs. Graham (the victim), and his
homosexual lover, Mr. King. The appellant suffered from anxiety attacks for which he was
prescribed Valium. Mr. King was of a violent disposition and both the appellant and his wife
were frightened of him and had experienced violence from him. On one occasion, King attacked
Mrs. Graham with a knife and the appellant intervened sustaining cuts to his hands as he grabbed
the knife. As a result of the attack Mrs. Graham went to stay with the appellant's mother. King
and the appellant began drinking heavily and the appellant also took a large quantity of Valium.
King then told the appellant it was time to get rid of her for good. Together they hatched a plot.
The appellant phoned up Mrs. Graham and told her that he had cut his wrists and to come round
straight away. When she arrived, King strangled her with the flex from the coffee percolator. The
appellant assisted by holding onto the flex. He then helped King to dispose of the body. King
pleaded guilty to murder and was sentenced. The appellant raised the defences of duress and
intoxication. In relation to duress, the appellant raised an argument which was supported by
medical evidence that his anxiety and intake of Valium would have made him more susceptible
to threats. He was convicted. The appellate court upheld the conviction while noting that the
accused’s will to resist had been eroded by the voluntary consumption of drink or drugs or both

17
[1982] 1 WLR 294 (http://www.e-lawresources.co.uk/cases/R-v-Graham.php)
18
Ibid 
is not to be taken into account. The question should be whether a sober person of reasonable
firmness, sharing the characteristics of the defendant, would not have responded to whatever he
reasonably believed King said or did by taking part in the killing? 

In R v Bowen,19 the appellant had on 40 occasions obtained electrical goods amounting to a value
of £20,000 by deception. He had so acted because of threats to petrol bomb himself and his
family. The appellant was abnormally suggestible and vulnerable. He had a low IQ of 68. The
trial judge did not direct the jury as to whether the characteristics of the defendant could be taken
into account. He was convicted and appealed. His appeal was dismissed with the court noting the
following: -

“Characteristics of being abnormally suggestible and vulnerable were not compatible with a person
of reasonable firmness and therefore were not characteristics that could be taken into account. Also,
a low IQ falls short of being a mental impairment and cannot be taken into account.   Stuart Smith
LJ identified the following characteristics that could be taken into account: Age, sex, pregnancy,
serious physical disability, a recognized mental illness or psychiatric condition.

4. Self Defense
Section 17 and 241 of the Penal Code entitles one to defend himself and his property. It further
places reliance on the principles of the English common law for purposes of criminal
responsibility arising from the use of force for self-defense or property. The general rules are;
a) it is lawful to use such force as is “reasonably necessary” in order to defend one’s
person, any other person or one’s property
b) the question is whether the force used was “reasonable” (proportional to the imminent
danger) in all the circumstances
c) what is “reasonable” in the circumstances is always a question of fact and not law
d) whilst the test to be applied as to whether “reasonable force” was used is an “objective
test” the state of mind of the accused must also be taken into account, that is, a
‘subjective test
e) the accused should not be the one who triggered the conflict or the assault

19
[1997] 1 WLR 372 (http://www.e-lawresources.co.uk/cases/R-v-Bowen.php)
 f) the accused must have had reasonable ground to believe that there was an apparent
imminent or immediate danger of death or immediate danger of death or seriously bodily
harm from his attacker
g) the accused must have “in fact” a reasonable belief that his life is in danger or a third
person or his property
h) in some circumstances a person may need to consider simply avoiding the assailant by
way of withdrawal
i) the onus is on the prosecution to negative this defense “beyond reasonable doubt” if it is
fairly raised
j) In defense of person or property, the accused is criminally responsible for any excess of
force according to the nature and quality of the act which constitutes the excess.20

In Republic v Metrine Akinyi Odhiambo,21 the court considered the common law principles
contemplated in section 17 of the Penal Code. The court reiterated the principles set down in the
Privy Council in Palmer v. Republic,22 where Lord Morris reiterated the following: -
“It is both good law and good sense that a man who is attacked may defend himself. It is both good law
and common sense that he may do, but may only do, what is reasonably necessary. But everything will
depend upon the particular facts and circumstances. …Some attacks may be serious and dangerous.
Others may not be. If there is some relatively minor attack, it would not be common sense to permit
some act of retaliation which was wholly out of proportion to the necessities of the situation. If an
attack is serious so that it puts someone in immediate peril, then immediate defensive action may be
necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the
danger by some instant reaction. If the attack is over and no sort of peril remains, then the
employment of force may be way of revenge or punishment or by way of paying off an old score or
may be pure aggression. There may be no longer any link with a necessity of defense. … the defense of
self-defense either succeeds so as to result in an acquittal or it is disapproved, in which case as a
defense it is rejected. In a homicide case the circumstances may be such that it will become an issue as
to whether there was provocation so that the verdict might be one of manslaughter. Any other possible
issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of
murder was lacking, then the matter would be left to the jury.”

20
Section 241 of the Penal Code
21
[2019] eKLR
22
[1971] AC 818. 
In Republic v Metrine Akinyi Odhiambo,23the accused was charged with the offence of murder.
On the fateful day, the accused had sought permission from her deceased husband to travel to
Nakuru where she was to visit her children. It was at that moment that a fight ensued with as the
deceased got hold of her making attempts to strangle her. When he so held her, the accused got
hold of the kitchen knife to defend herself by stabbing the deceased to stop him from further
beatings. The deceased was not armed with any weapon or device at the material time. In her
defense for the charge of murder, the accused raised the defense of self-defense. The court
observed the following in respect of self-defense:
 the deceased was not armed with any dangerous weapon. There was a fight between the
two categorized as domestic violence.
 the accused got hold of the knife but did not opt to take flight or run away from the scene.
 the accused knowing that a knife is lethal weapon when used against a body of human
being nevertheless, targeted the vulnerable organ, namely the chest between the 10th and
11th rib.   
 the force used in inflicting the stab wound was excessive and disproportionate with the
superficial injuries stated to have been suffered by the accused person.
 the accused appeared to know which direction the sharp edge of the knife faced at the
time of stabbing the deceased.
In view of the foregoing, the defense failed and the accused was found guilt of murder and
sentenced to ten years imprisonment.

In Republic v Ismail Hussein Ibrahim,24the accused was charged with the offence of murder. The
accused was attached as a police driver at Ngong Administration Police Camp.  On the material
day, the accused was having at a bar which continued until 11.00 p.m. One of the customers
started creating disturbance and it was resolved that she should leave the bar. As the owner
opened the door, he noticed that a strange person was standing directly at the entrance who
appeared armed and also wearing Rasta.  In a rush, he closed the door and cautioned them that
there was a suspicious person outside whom in her assessment was up to no good intentions.  At
around 12.00 am one of the customers insisted on leaving despite the fat that majority of the
customers were struggling on the issue of their safety. On opening the door, the customer
23
[2019] eKLR
24
[2018] eKLR
retreated back shouting that they were under attack. At the same time the accused heard someone
cocking a firearm followed with an order of Laleni Chini.  It is at that juncture that the accused
took out his gun and shot towards the direction of the entrance to the bar leading to the death of
one four police officers who were on patrol. The accused contended that he was acting in defense
of self and defense of other person or property and that the act by taking out his pistol and
shooting outside was correlated with the scope of preventing an attack to self and other
customers and also to protect property.  The court observed the following:

 the incident which led to the murder of the deceases was instigated by the reckless
conduct of the patrol police including the deceased
 the accused perceived danger to himself and in a possibility of a commission of a felony
and probable of bodily injury to other customers
 the fear arose from the initial information given by the owner and the second situation
when one of the customers screamed that they were under attack and the accused heard
movements of people accompanied with corking of a firearm. 
 the screaming raised an alarm as to their safety and order of laleni chini was in fact a real
and imminent danger.
 the accused did not have an opportunity to retreat

In view of the foregoing the court concluded that that the force used to repel the attack was
reasonable and appropriate in the circumstances. Consequently, the accused was acquitted.

5. Compulsion
The defense of compulsion is designed to deal with situations in which an accused person has
been compelled by another or others to commit the offence with which he is charged. The
defense is provided for in section 16 of the Penal Code which states that compulsion is a defense
if the following conditions are satisfied: -
a) the offence is committed by two or more offenders;
b) the compulsion consists of threats to kill or do grievous bodily harm to the person
compelled if he refuses; and
c) the threats are applied throughout the period of commission of the crime
Rationale between two or more offenders is from the fact that the person making the threats is a
party to the offence
In Salum v. Republic,25 the court observed that for the defense of compulsion to be successful, an
accused person has to show that during the whole time in which the act of killing was being
done, he was compelled to do the act under the pain of instant death or grievous bodily harm if
he refused to kill. The defense is not available in the following instances:
 threats to do physical harm to the accused not amounting to grievous bodily harm;
 threats to kill or do physical injury to a person other than the accused such as member of
the family;
 threats to injure the property of the accused or another; and
 threats to future injury.

Further, section 62 of the penal code also makes it an offence to compel a person to take oath,
whether by use of force or threat or intimidation.

5.5. Compulsion by Husband

Section 19 of the Penal Code creates a defense for married women who are compelled by their
husbands to commit any crime, other than murder or treason. The defense arose from common
law presumption that a felony, other than murder or treason committed in the presence of her
husband was committed under coercion.

However, section 19 modifies this position by providing that a married woman is not free from
criminal responsibility merely by virtue of having committed the offence in the presence of the
husband. She can only raise the defense if she committed the offence in the presence of her
husband and under coercion from him.

6. Alibi
The term alibi is a Latin phrase meaning elsewhere or at another place. An accused raises the
defense of alibi when he says that he was at a place other than where the offense was committed
at the time when the offence was committed.

25
[2011] 2EA 388
The accused is required to raise the defense at the earliest possible opportunity during the trial to
enable the prosecution to respond to it. He is only expected to put forward the defense as an
answer to the charge and does not extend to him proving the defense. The prosecution has the
onus to establish beyond any reasonable doubt that the accused does not have alibi as a defense.

In Republic v G N K,26the accused was charged with the offense of murder. On the material day,
the deceased sister found the accused locking the door and asked him the whereabouts of his
mother (the deceased). The accused replied that the deceased had left an gone to work. The aunt
noted that the accused was wearing sports shoes that were spotted with blood stains. She did not
ask him about the stains apparently because she was afraid to ask. After the accused left, she
peeped through the iron sheets on the wall of deceased’s house and noticed that the household
items were strewn all over the place. Concerned she called for help called and they broke open
the door and both entered the house. Inside the house they noted that items were scattered all
over the house. They also found a building block with blood stains and bloodstains everywhere
in the house. The house was not cemented and the two witnesses saw wet soil and a carpet
covering the floor. They lifted the carpet and removed some soil from the floor where they found
the body of the deceased covered in a piece of cloth and buried in the soil. The accused was later
arrested and arraigned in court. On his part he raised alibi defense four years later after being
charged. He stated that he was not t home on the material night as he had been offloading goods
from a lorry and only returned in the morning entered the house and left for 30 minutes before
returning back.ahe had met his aunt while leaving. The court considered the case of R. v. Sukha
Singh s/o Wazir Singh & Others,27 the former Court of Appeal for Eastern Africa upheld a
decision of the High Court in which it was stated:

"If a person is accused of anything and his defense is an alibi, he should bring forward that alibi as
soon as he can because, firstly, if he does not bring it forward until months afterwards there is
naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings
it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that
alibi and if they are satisfied as to its genuineness proceedings will be stopped".

In view of the forgoing the court dismissed the defense of alibi on grounds that it was raised 4
years later, the accused could have reported the state of the house to the police when he first
26
[2017] eKLR
27
(1939) 6 EACA 145
returned and that considering that he was working the whole night he would have first rested
before leaving the house.

7. Accident
The defense is governed by section 9 (1) of the Penal Code. It provides that a person is not
criminally responsible for an event which occurs by accident, unless one is charged with offence
which expressly declares liability by negligence. Rationale behind the defense is that the accused
could not foresee the consequences prohibited in the definition of the offense.
The defense of accident differs from mistake of fact in that in an accident the accused does not
foresee the consequences of his action, while in the case of mistake of fact, he mistakes the
circumstances which surround his conduct.

For example, where a person is firing a gun at a target in a riffle range, if he shoots too high and
the bullet injures a person who is beyond the range, he would not be liable, for he could foresee
the consequences of his firing the riffle. It would be a mistake of fact for a person to pull the
trigger of a loaded gun in the belief that it is not loaded. However, the accused in this instance
would not be excused criminal responsibility since the accident was caused by negligence.

In David Ojowo v. Republic,28the accused was beating his wife with a club, when one of the
blows fell on his six-month-old daughter and killed her. He was convicted on his own plea of
guilty of manslaughter. He appealed against the sentence arguing that the death of the child arose
by accident as the fatal blow was aimed at his wife and not the infant. The appellate court held
that the fact that the fatal blow was not aimed at the child was immaterial as it was all the same
an unlawful act intended at a person with knowledge that it would cause grievous harm to that
person.

8. Bonafide claim of right

Section 8 of the Penal Code provides that a person is not criminally responsible in respect of an
offense relating to property, if the act done or omitted to be done by him was done in an honest
claim of right and without intention to defraud

28
Kisumu CACRA No. 71 of 1983
It is mainly a defense in theft but it can also be applied with respect to malicious damage of
property and intimidation. The accused must prove that he honestly believed that he was entitled
to act the way he did.

In Josphat Mwinji Kamwara & Another v Republic,29the accused were charge with the offences
of threatening to kill and forcible detainer. The accused staked claims on two parcels of land. All
the said parcels were registered in the name of complainant.  The complainant had been away for
a long time serving in Kenya Defense Force and had been deployed to Somalia and that when he
returned  to Kenya, he visited his farm on 27th February 2018 in the company of his workers but
on arrival, the accused screamed loudly and together with his two sons and charged at them
while armed with bows and arrows and machete. The complainants and his workers retreated and
as they did so they were shot at with arrows and they left and reported the matter at the Police
Post. On their part, the accused contended that the complainant had acquired the land irregularly
and that National Land Commission had visited the area and ordered for cancellation of all titles.
They further raised the defense of Bonafide claim of right. They were convicted and appealed the
decision. The court noted the following with respect of the Bonafide claim: -

it is quite clear that under Section 8 of the Penal Code Bonafide claim over land cannot be
criminalized and solved   through criminal process. I am persuaded by the decision in Veronica
Nyambura Wahome –vs- Republic [2019] eKLR that the evidence tendered by the Appellant shows
that they had a claim over that parcels of land held by the complainant and their belief was “neither
based on a falsehood or intent to create a false impression”.  The prosecution failed to prove those two
ingredients in the trial court.  This court is therefore   satisfied that the Appellant’s grounds in that
regard is well grounded.

9. Consent
Consent is a defense in those cases where the definition of the offense makes it an offense to do a
particular act without consent. In rape for example, the offense is committed when the accused
causes his genital organs to penetrate the genital organs of another without her consent.

10. Autrefois Convict and Autrefois Acquit

Autrefois convict and Autrefois Acquit are Norman French for convicted and acquitted. The
general principles are inter alia: -

29
[2020] eKLR
 a) a person who has once been acquitted of an offence, while such a conviction has not been
reversed or set aside, is not liable to be tried again on the same facts for the same offense
(autrefois convict)
b) a person who has once been acquitted of an offense, while such acquittal has not bee
reversed or set aside, is not liable to be tried again on the same facts for the same offense
(autrefois acquit)

They are technically pleas made by an accused at the time that he has been called to pleas and
are available when the accused has been convicted or acquitted at a previous trial of the same
offense with which he is now being charged.

11. Judicial Immunity

Section 15 of the Penal Code provides 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 section
affords a wide measure of immunity against criminal prosecution to judges, magistrates and
other judicial officer in the exercise of their judicial functions.
They may not be prosecuted for acting beyond their powers, for instance, imposing a sentence
not allowed by the law or for failure to perform a judicial duty such as failure to deliver a
judgement in open court.

12. Provocation
It is provided for under sections 207 and 208 of the Penal Code. In VMK vs. Republic,30 where
the Court of Appeal sitting in Mombasa underscored the definition of provocation as illustrated
in the case of discussed the case of Duffy31 as: -
“Some act, or series of acts, done by the dead man to the accused which would cause in any reasonable
person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the
accused so subject to passion as to make him or her for the moment not master of his mind...”

It is not an absolute defense as such, it operates to reduce the charge of murder to manslaughter
while in respect of other offences it will be considered as part of the mitigating or extenuating
factors in sentencing.

30
(2015) eKLR
31
{1949} 1ALL ER 932
For the defense of provocation to be successful, the accused is expected to satisfy the following
ingredients: -
a) that the act was done in the heat of passion
b) that the provocation was of a sudden kind; and
c) there was no time for the accused person passion to cool

In Republic v Elizabeth Kemunto Ooga,32the accused was charged with the offense of murder.
On the material day quarrel ensued between the deceased and accused. The accused person hit
the deceased with a glass on his face. The glass broke into pieces. The deceased then gave the
accused person a thorough beating right from the house until the outside. That continued until
when the accused person returned into the house and using a knife which was on the table, she
stabbed the deceased once on the left side of the chest. He was pronounced dead on arrival at the
hospital. In her defense, she contended that the deceased actions had provoked her. In acquitting
the accused for the offence of murder an substituting it with manslaughter, the court noted that
the following:
it is apparent that the accused person was utterly overpowered by the deceased and lost the power of her
self-control. She was provoked into action. As the beating was sustained, the accused person must have
acted in the heat of passion as its clear that there was no time the said passion could be said to have
cooled down.

13. Motive
Section 9 of the penal code provides that motive is not material to criminal liability unless is
expressly declared to be so. In effect a good motive cannot make lawful a criminal act. In R v.
Windle,33the accused gave his wife an overdose of sleeping pills to kill her and save her from
suffering. His actions still amounted to murder.

14. Ignorance of the law

Section 7 of the Penal code states that ignorance of the law is not a defense unless knowledge of
the law is expressly stated to be an element of the offense. The rule is based on the need of
32
[2017] eKLR
33
[1952] 2QB 826 (http://www.e-lawresources.co.uk/R-v-Windle.php)
expediency. Every man must be taken to be cognizant of the law, otherwise there is no knowing
to what extent the excuse of ignorance might be carried.
In R v. Bailey,34 a sailor was convicted of contravening an Act of Parliament of which he could
not possibly have known since it was enacted when he was away at sea, and the offence was
committed before the news of his enactment could reach him.

In Joseph Tinng’a Lesayaton v Republic,35the accused was charged with the offence of
defilement after he had intentionally caused his genital organ (penis) to penetrate the vagina of
the complainant aged 14 years. He was found guilty and sentences to 25 years imprisonment.
Aggrieved by the decision, he appealed on grounds that the complainant had been handed over to
her by her parents to be his wife and that he did not know that a girl of 14 years could not legally
be a wife. In dismissing the appeal, the appellate court underscored that ignorance of the law is
not a defense.

BIBLIOGRAPHY
1. Case Law

David Ojowo v. Republic Kisumu CACRA No. 71 of 1983

34
[1800] R. & R 1
https://criminallawyersauckland.wordpress.com/2013/02/03/ignorance-of-the-law-no-defence/
35
[2017] eKLR
Kupele Ole Kitaiga v Republic [2009] eKLR

Republic v O M G [2017] eKLR

Rex v. Retief [1940-1943] EA 71

R v. Bailey [1800] R. & R 1

R v Bourne [1938] 3 All ER 615

R v Bowen [1997] 1 WLR 372

Republic v G N K [2017] Eklr

R v. Windle [1952] 2QB 826

Re A (Conjoined twins) [2001] WLR 480

Republic v Metrine Akinyi Odhiambo [2019] eKLR

Republic v Ismail Hussein Ibrahim [2018] eKLR

R v Cole [1994] Crim LR 582     

R v. Hudson [1971] 2 WLR

R v Valderamma-Vega [1985] Crim LR 220 

R v Shayler [2001] EWCA Crim 1977  

R v Graham [1982] 1 WLR 294 

R. v. Sukha Singh s/o Wazir Singh & Others (1939) 6 EACA 145

Republic v Elizabeth Kemunto Ooga [2017] eKLR

Salum v. Republic [2011] 2EA 388

Joseph Tinng’a Lesayaton v Republic [2017] eKLR

Josphat Mwinji Kamwara & Another v Republic [2020] eKLR

Bakari Magangha Juma v Republic [2016] eKLR

Palmer v Republic [1971] AC 818. 

VMK vs. Republic (2015) eKLR 

2. E-Resources
E-lawresources.co.uk: Defense of Duress in Criminal Law
http://www.e-lawresources.co.uk/Defence-of-Duress.php