RIARA UNIVERSITY

RLB 201, CRIMINAL LAW 1

ACCESSORIES BEFORE AND AFTER THE ACT

Accessories before the act

These are parties who offer assistance or help before the commission of the offence. This can

take place in various ways e.g.; providing information, counselling, providing services or

even equipment. Such people are viewed as principal offenders who ought to be

charged jointly with the persons who actually carry out the prohibited deed. However, a

remarkable case in the Kenyan judicial system is the Wanja Kanyoro Kamau vs. Republic

(1965) EA 50 1 (Crabbe, Duffus and Spry JJA) case where the Court stated that a passive

attitude while a crime is being committed or following the commission of a crime will not

ordinarily, of itself, make a person a principal offender. Additionally, there should be some

participation in the act either by actual assistance or countenance and encouragement. They

concluded that a person who fails to report a crime is not normally an accomplice.

Facts;

the deceased and his wife the appellant and one Ngugi were at a place when the appellant

struck the deceased on the back of the neck with a panga. Then Ngugi struck the deceased

three times on the head with a rungu. The deceased fell down and both Ngugi and the

appellant struck him again. The deceased got up and ran into the bush pursued by Ngugi and

the appellant. Ngugi and the appellant were charged with murder. From the evidence there

was nothing to show as to who between the appellant and Ngugi had delivered the fatal blow

and the doctor could not say in his post mortem report the cause of death.

It was held that there was no common intention at the time when the appellant struck the first

blow. If the appellant had subsequently gone away or dissociated herself from the subsequent

acts of Ngugi there would be no basis for holding that there was ever a common intention.
Since however after Ngugi had assaulted the deceased, the appellant had struck further blows,

that was evidence of a common intention at that stage.

In that case the mother of the appellant was present and saw all that happened. Her conduct

indicated that she was in sympathy with the criminals. She was the only eye witness. The

Court rejected the argument that she was an accomplice stating that a passive attitude while a

crime is being committed or following the commission of a crime will not ordinarily make a

person a principal offender in the former case, or an accessory after the fact in the latter case.

She had not reported the crime to authorities.

Accessories after the act

An accessory after the fact is a person who assists the principal offender to evade justice.

These classes of persons are those that assist the perpetrator after he/she has committed the

crime. They are in pursuit to help them evade justice. This can be done either by helping

them escape or by helping them destroy and/or cover up evidence. Section 396 of the Penal

Code provides that;

A person who receives or assists another who is, to his knowledge, guilty of an

offence, in order to enable him to escape punishment, is said to become an accessory

after the fact to the offence.

However, for one to be charged as an accessory after the act, there has to be proof that the

person personally assisted the perpetrator. This was held in Paskazia d/o Kabaikye v

Reginam (1954) 21 EACA 359.

It is important to note that motive behind aiding a perpetrator is key to establishing whether

a person can be established as an accessory after the fact or not. If one helps to hide evidence

towards a case, making it more difficult for investigators, then they are an accessory.

However, if one assists out of fear for their own life, or they are coerced, they would not be
established as an accessory. This was held in Gathitu s/o Kiondu v Reginam (1956) 23

EACA 526. An accessory may be convicted even in instances where no one has been

convicted of murder provided that there is enough evidence for such a conviction.

An accomplice is a person concerned with another in the commission of a crime. An

accessory after the crime may know nothing whatever of the commission of the crime, until

the offender after fleeing from justice informs the accessory of the same while seeking

shelter, comfort or assistance.

A wife does not become an accessory after the fact to an offence of which her husband is

guilty by receiving or assisting him 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 to escape 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.

Punishment;

396 Punishment of accessories after the fact to felonies; Any person who becomes an

accessory after the fact to a felony is guilty of a felony and is liable, if no other punishment is

provided, to imprisonment for three years.

397 Punishment of accessories after the fact to misdemeanours; Any person who becomes

an accessory after the fact to a misdemeanour is guilty of a misdemeanour.

Key differences between the two;

 i. Timing- Accessories before the act assist before the act is committed, in the

planning stage while accessories after the act assist after the crime is already

committed.

ii. Role- Accessories before the act help in planning for the act beforehand while

accessories after the act assist the perpetrator evade justice after the crime.

iii. Liability- accessories before the act are charged jointly as the principal offenders

while accessories after the fact are considered to have committed an offence under

Section 396 of the penal code.

Justifications for imposing stricter penalties on accessories before the fact (as compared

to accessories after the fact).

In my opinion, accessories before the act carry a huge role compared to those after the act.

The ones before the act could have prevented the case seeing as they had foreknowledge

about the criminal act. Their degree of involvement makes them much more actively involved

seeing as they help plan for the crime. The bottom line is, they could have prevented the

crime but chose not to.