By Isaac

Group G Firm 20

ATP 101 - Criminal litigation

CASE LAWS

Tikise Ole Neusiet v Republic [2021] eKLR

Republic v Kimbugwe S/O Nyagoli & Others (1936) 3 EACA 129

Republic v Cheya & Another (1973) EA 500.

Peter Mbugua Kabui v Republic [2016] eKLR

Kinyatti v Republic[1984] eKLR

Simon Nyoike Gakuo v Republic [2019] eKLR

BMN v Republic [2014] eKLR

Nzuki v. Republic [1973] KLR 171

STATUTES

Section 5 Trespass Act: Trespass with intent to commit offence

Section 202 of the Penal Code: Manslaughter

Section 203 and 204 of the Penal Code: Murder

Section 206 of the Penal Code: Malice Aforethought

Section 207 of the Penal Code: Killing on provocation

Section 220 of the Penal Code: attempted murder

Section 244 of the Penal Code: Negligent Acts causing Harm

Section 258 of the Penal Code: Kidnapping with intention to kill.

Section 251 of the Penal Code: Assault with intention to cause grievous bodily harm.

Section 128 as read with 128A of the Penal Code: Offences by Public Officers.

FACTS

January 30th, 2006 was a day Corporal Tindaza Tima would not forget. On the said date, at
about 3 p.m., he was manning the report office of the Madare Police Station in Kiambu County,
when he heard loud blood-curdling screams emanating from the gate. Before he could react, his
phone rang and it was Inspector Kagoze Kage who directed him to call an ambulance as there
was someone who was unresponsive at the gate. He did so as he rushed to the gate. There, he
saw a person, with several cuts on his body lying on the ground, facing down and another sitting
on his back. The one lying down would later be pronounced dead after being rushed to the
County General Hospital. The one seated on the deceased was repeatedly saying, “I’ve finished
him, now you can finish me!” Corporal Tindaza assisted the Inspector to restrain him and they
led him into the police station and locked him in. His vehicle was also detained.

The Officer Commanding the Police Station, Chief Inspector Makoni Madere interrogated him.
He willingly waived the right to legal representation and offered to record his statement. He
gave his name as Kaario Kelu and stated that the deceased, Maguni Kasio was his village mate.
According to Cprl. Tindaza, the statement Kaario gave was simply bizarre. Apparently, 7(seven)
years ago, Kaario was with the deceased and two other friends enjoying a football match at the
local stadium when the two got into a heated argument over a controversial goal and in the
process, the deceased told Kaario, among other things, “ hujui kitu wewe nugu” That the
exchange became so intense but before they came to fists, their two friends cooled them down.

Fast forward to the fateful day. Kaario had gone to the local forest with his family and while
they were touring it with a guide, the guide pointed at a monkey saying “hii inaitwa nugu kwa
lugha ya Kiswahili” There and then, Kaario came to the realization that the deceased had called
him a monkey when they had had the argument 7(seven) years ago. He was enraged. In his
culture, for someone to call you a monkey was a grave unforgivable insult. Hid blood was
boiling and he ran to his car and drove to the home of the deceased. He found the deceased
seated under a tree reading a newspaper. He landed on him and beat him thoroughly using a
golf stick. When the deceased became motionless, he dragged him to his car and drove to the
police station to report the incident and give himself up. He stated that he thought the deceased
was dead. That when he got out of his vehicle, he saw Inspector Kagoze, whom he knew
therebefore, and was walking towards him to tell him what he had done when suddenly he saw
the deceased crawling towards the gate. He ran and grabbed the deceased by the pant of his
trousers causing him to fall flat on his face. He then sat on his back and did not move until the
ambulance arrived.

All the while as he sat on the deceased, Inspector Kagozi, who was with Police Constable Tony
Maoni was laughing and telling him to get off the deceased since they were now at the police
station. According to one Jane Marita, who had accompanied the two officers to the station due
to a domestic violence report she made earlier and which they were attending to, the two police
officers were just laughing and the Inspector kept telling Kaario to get off the deceased since
they were now at the police station. That neither of the officers made any effort to pull Kaario off
of the deceased. It is Jane who noticed that the deceased had stopped moving and started
screaming telling the officers to do something. That’s when the Inspector reached for the
deceased’s wrist and made a phone call to Tindaza. Jane stated that the deceased was bleeding
from the nose and several cut wounds and that Kaario sat on him for about 5(five) minutes.

The autopsy report showed that the deceased died as a result of collapsed lungs due to external
pressure.

(a))The County State Attorney has decided to prefer charges and has sought the legal counsel of
your esteemed firm requesting a draft charge sheet.
(b) Recommend to the County State Attorney what legal provisions can be made to adequately
cover the charges preferred for the offenses you have identified but are not legislated. Give a
very brief history leading to the related current charges set out in the statute

Analysis.

Summary of facts cum issues for determination

1. Did the entering amount to Criminal Trespass?

2. At what point did the Death occur? And was it murder or manslaughter?
3. Did the Assault on the deceased using a golf stick constitute murder or aggravated
assault/Grievous harm?
4. Did the police actions amount to negligence?
5. What charges should be metted?

Issue 1: Did the entering amount to Criminal Trespass?

From the facts …His blood was boiling and he ran to his car and drove to the home of the
deceased. He found the deceased seated under a tree reading a newspaper. He landed on him
and beat him thoroughly using a golf stick….

Section 5(1)(a) Trespass Act provides that Any person who enters into or upon property in the
possession or occupation of another with intent to commit an offence or to intimidate, insult or
annoy any person lawfully in possession or occupation of such property shall be guilty of an
offence and liable to imprisonment for a term not exceeding six months or to a fine not
exceeding two thousand shillings or to both such imprisonment and fine.

Kenya Trespass act does not term it Criminal Trespass despite it having a criminal nature
attracting a criminal sentence like in other jurisdiction that have the same import.

The prosecution also has burden to prove that the deceased own the land as was held in Tikise
Ole Neusiet v Republic [2021] eKLR

“I wish to settle a misunderstanding by the appellants that a person must be the

registered owner of the property for a charge of trespass to hold. Far from the truth,
 Section 5 of the Trespass Act also recognizes other rights such as possessory or
occupation rights.”

In the USA; Criminal Trespass Under the Thai Criminal Code of B.E. 2499 (1956)

Trespass is defined as a criminal offense in which there are different manners that the offense
can be committed. For example, under Section 362, trespass can be committed where a person
enters into immovable property belonging to another in order to take possession of the property
in whole or in part or in order to disturb the peaceful possession of that person. Furthermore,
according to Section 59 of the code, a person can only be criminally liable of an offense if it is
committed intentionally, unless the law designates negligence or strict liability.

In Tanzania Section 299 of the penal code, [CAP. 16 R.E. 2022] provides for the criminal
trespass in Tanzania and defines the same to mean unlawfully entrance into or upon property in
the possession of another with intent to commit an offence or to intimidate, insult or annoy any
person in possession of the property

Conclusion

Charges under section 5(1)(a) Trespass Act should be meted.

Statutory Reform: the Offence should be amended to Criminal Trespass

Issue 2: At what point did the Death occur? And was it murder or manslaughter?

Facts: …When the deceased became motionless, he dragged him to his car and drove to the
police station to report the incident and give himself up. He stated that he thought the deceased
was dead….

…and was walking towards him to tell him what he had done when suddenly he saw the
deceased crawling towards the gate. He ran and grabbed the deceased by the pant of his
trousers causing him to fall flat on his face. He then sat on his back and did not move until the
ambulance arrived…

The charge of murder requires establishment of actus reus.

In the instant case death (the actus reus herein) occurred at the police station when the 1 st
accused sat on the deceased until the ambulance arrived.
Issue 2b: This raises the question: was the assault using a golf stick the cause of death?

The facts further provide that;

…The autopsy report showed that the deceased died as a result of collapsed lungs due to
external pressure…

Hence the cause of death would probably than not be by the external pressure caused by the 1 st
accused seating on the deceased and not by assault using a golf stick.

Relevance of hypothesis: This is necessary when determining whether the relevant mens rea for
the count of murder was the assault at home or at police station.

As held in the case of Republic v Kimbugwe S/O Nyagoli & Others (1936) 3 EACA 129 it is
cause of the death which often links the accused to the death. As regards proof of death it is
usually through medical evidence as stated in the case of Republic v Cheya & Another (1973)
EA 500.

In an article on causation in English Law by Hart, HLA & Another the author had this to say:

“For causation to amount to murder by a defendant at the time of death, the

defendant’s acts or omissions must be the operating and most substantial cause of
death with no novus actus intervenieus (latin for new act breaking in) to break the
chain of causation.”

Issue 2b: It also raises the question of whether the events amount to the same transaction or
was the act at police novus actus intervenieus.

The Court of Appeal in Peter Mbugua Kabui v Republic [2016] eKLR while considering the
issue as to the circumstances in which a court can direct sentences to run concurrently or
consecutively held that: -

“As a general principle, the practice is that if an accused person commits a series of
offences at the same time in a single act/transaction a concurrent sentence should be
given. However, if separate and distinct offences are committed in different criminal
transactions, even though the counts may be in one charge sheet and one trial, it is not
illegal to mete out a consecutive term of imprisonment”

What constitutes same transaction “res gestae”?

Under section 6 of the Evidence Act facts which, though not in issue, are so connected with a
fact in issue as to form part of the same transaction are relevant whether they occurred at the
same time and place or at different times and places. This is what is referred to as “ res gestae”
which means “the transaction”. see Kinyatti v Republic [1984] eKLR

In Peter Mbugua Kabui v Republic [2016] eKLR the Court of Appeal held that

“…In the instant case, the offences were not committed at the same time and in the same
transaction; they occurred on diverse dates. Furthermore, the acts complained of were
perpetrated against different complainants.”

In Simon Nyoike Gakuo v Republic [2019] eKLR the court held at par 8

“Considering these offences, they were committed on diverse dates. They did not arise
from the same transactions but from a chain of events which culminated in obtaining
money by false pretences after making a false document. Where the offences were not
committed in the same transaction upon conviction, the sentence will not be ordered to
run concurrently but consequitively in accordance with the chain of events.”

In BMN v Republic [2014] eKLR held at par 15

“As a general principle, the practice is that if an accused person commits a series of
offences at the same time in a single act/transaction a concurrent sentence should be
given.”

Conclusion: the 1st accused’s actions were a chain of events forming the same transaction “res
gestae”.

Issue 3: Did the Assault on the deceased using a golf stick constitute murder or aggravated
assault/Grievous harm?

With the facts and analysis in Issue 2 above, death was not caused by beating using a golf stick
but by seating on the plaintiff but the fact that the accused assaulted the deceased are relevant
facts “res gastae” to form the transaction.

Issue 4: was there malice on 1st accused during death of the deceased
Section 206 provides that Malice aforethought shall be deemed to be established by evidence
proving any one or more of the following circumstances—

(a) an intention to cause the death of or to do grievous harm to any person, whether that
person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or
grievous harm to some person, whether that person is the person actually killed or not,
although such knowledge is accompanied by indifference whether death or grievous
bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from
(e) custody of any person who has committed or attempted to commit a
(f) felony.

In the case of Nzuki v. Republic [1973] KLR 171 the Court of appeal stated that in the
commission of the offence of murder it must be committed with the following intentions:-

“(i) The intention to cause death;

(ii) The intention to cause grievous bodily

harm

(iii)Where the accused knows that there is a serious risk that death or grievous bodily
harm will ensue his acts, and commits those acts deliberately and without lawful excuse
with the intention to expose a potential victim to that risk as the result of those acts. It
does not matter in such circumstances whether the accused desires those circumstances
to ensue or not and in none of these cases does it matter that the act and the intention
were aimed at a potential victim other than the one who succumbed. The mere fact that
the accused’s conduct is done in the knowledge that grievous harm is likely or highly
likely to ensue form his conduct is not by itself enough to convert a homicide into a crime
of murder.”

Malice may be present in the first transaction of beating the deceased with a golf stick. Indeed
the accused thought the deceased had died but he had not.
However it is arguable whether malice was present in the second instance forming the causal
chain. The accused was provoked by the movement by the deceased while he thought he had
died.

A possible defense of killing on provocation under section 207 of the penal Code may be
available for the accused that provides;

When a person who unlawfully kills another under circumstances which, but for the
provisions of this section, would constitute murder, does the act which causes death in
the heat of passion caused by sudden provocation as hereinafter defined, and before
there is time for his passion to cool, is guilty of manslaughter only.

If such defense would suffice, then an alternative charge of attempted murder in the first
transaction an alternative charge of attempted murder under Section 220 of the Penal Code or
Section 251 of the Penal Code Assault with intention to cause grievous bodily harm.

ON THE PART OF POLICE;

“… All the while as he sat on the deceased, Inspector Kagozi, who was with Police Constable
Tony Maoni was laughing and telling him to get off the deceased since they were now at the
police station.”

Section 244 of the Penal Code: Negligent Acts causing Harm;

“Any person who unlawfully does any act, or omits to do any act which it is his duty to
do, not being an act or omission specified in section 243 by which act or omission harm
is caused to any person, is guilty of a misdemeanour and is liable to imprisonment for six
months.”

Statutory Reform: In other Jurisdiction Kadozi’s actions would amount to Negligent

manslaughter (also known as involuntary manslaughter) is an offence under common law. This
occurs when the accused negligently breaches their duty of care to the victim, and this breach
causes the victim’s death. The act will constitute criminal negligence if it falls below the
standard of care a reasonable person in the accused’s position would have exercised. Once again,
the accused’s action does not need to be the sole cause of the death.
Unlike with voluntary manslaughter, the prosecution does not need to prove that the accused’s
actions were unlawful, merely that they were negligent in exercising their duty of care.
Involuntary manslaughter also differs from murder, as no element of intent to cause death is
required to be established. Instead, the prosecution only needs to prove that the death was caused
by the accused’s negligent behavior.

Section 128 as read with 128A of the Penal Code: Offences by Public Officers.

Every person employed in the public service who wilfully neglects to perform any duty
which he is bound either by common law or by any written law to perform, provided that
the discharge of the duty is not attended with greater danger than a man of ordinary
courage might be expected to face, is guilty of a misdemeanour.

128A “A public officer commits an offence and is liable, upon conviction, to

imprisonment for a term of not less than fifteen years where in the course of his or her
employment he or she—

(a) aids or facilitates the commission of a felony;

(b) facilitates the irregular entry of an alien or a criminal into Kenya;

(c) conceals the whereabouts of a criminal; or

(d) irregularly issues identification documents.

Under s 5 of the Crimes Act 1958 (Vic) a person found guilty of the offence will liable to a
maximum penalty of 25 years imprisonment.

POSSIBLE DEFENSES

1. Provocation under section 206.