INTRODUCTION

What exactly does "mistake as a defense" mean?

While it may initially bring to mind the common definition of a
mistake, there is actually a subtle distinction when it comes to using it
as a defense.
Essentially, it refers to a scenario where the defendant made an
honest and reasonable error regarding a fact that, if true, would mean
they are not guilty of the alleged crime.
There are two specific types of mistakes that can be used as a legal
defense in certain situations:
- mistakes of law
- mistakes of fact.
MISTAKE OF LAW
A key fact to remember before using this as a defense Is that ignorance of the
law is very rarely
acceptable as a defense. This defense is based on the fact that the defendant
misunderstood or was
ignorant of the law as it existed at the time. However, all individuals are
expected to be aware of the
laws of the state or community and thus this defense only applies in very
limited circumstances.
These circumstances being;
• When the law has not been published- all laws in Kenya are available
for every citizen to access in section 3(1) of the Judicature Act. Hence
it’s possible for every citizen to be aware of what they can and can’t do.
You can’t hold someone accountable for something that
hasn’t been stated to be a crime.
• When the defendant relied upon a law or statute that was later
overturned or deemed
unconstitutional- an unconstitutional act is not a law. Once the action is
declared unconstitutional it therefore becomes null and void.
• When the defendant relied upon a judicial decision that was later
overruled: However this reliance must have been reasonable for
example, one cannot claim to have relied on a case that was decided
200 years ago and there have been subsequent changes to the matter.
• When the defendant relied upon an interpretation by an applicable
official: It may be a defence if an individual reasonably
relies on an official declaration of the law (legal counsel from a
government entity) and acts in good faith based on such reliance.
 MISTAKE OF LAW CASE

A 1957 U.S Supreme court case called Lambert V California which

concerned a convicted felon who failed to register as such after moving to
the city of Los Angeles, California violating a city statute that she had not
been aware of. Lambert was convicted and fined but the supreme court
later overturned her conviction on the grounds that there was no proof of
the probability of such knowledge. Lambert escaping conviction on the
basis of mistake of law was an exception. In most cases, mistake of law is
not accepted as a defence in court
MISTAKE AND STRICT LIABILITY
Neither mistake of fact nor mistake of law defenses are available in strict
liability cases. Strict liability crimes are crimes where an individual’s state of
mind does not matter.
Strict liability is a legal term that refers to a type of liability that does not
require proof of fault. This means that the defendant with a case under strict
liability is held responsible for the damages, regardless of whether they were
negligent or not. The only thing that a prosecutor must demonstrate is that
the defendant committed the act and that the act was against the law.
Mistake is not a defense to a strict liability offense, for example, Mary lives in
place where selling alcohol to minors is a strict liability offense. She checks
Identifications every time someone buys alcohol. Ben presents a fake ID and
otherwise appears to be over eighteen. If Mary sells alcohol to ben, she could
be guilty of selling alcohol to a minor, even though she reasonably and
honestly believed that ben was old enough to purchase it.
 MISTAKE OF FACT
Mistake of fact arise when a criminal defendant misunderstood some fact that
negates an element of the crime. An important qualification, however, is that this
mistake of fact must be honest and reasonable. Thus, a defendant cannot later
claim that he /she was mistaken when he/she actually knew the situation.

Likewise, the mistake must be reasonable to a judge or jury. If the criminal

defendant can prove that the mistake reasonably negated an element of the
crime, the defence will usually be able to apply and absolve the defendant of
liability.

Section 10 of the Penal Code Cap 63 Laws of Kenya.

MISTAKE OF FACT CASE LAW
Smith v. Zimbalist case – A 1934 case from California
George Smith and Efrem Zimbalist were two violin collectors. Zimbalist visited
smith’s collection of violins and noted two that he desired- one he believed was a
Stradivarius (a type of violin made by Antonio Stradivari during the 17th and 18th
centuries), and the other believed to be a Guarnerius (similarly collectible
instruments made by the Guarneri family during the 17th and 18th centuries).
Smith was initially unwilling to sell his violins but eventually Smith and Zimbalist
agreed on a price of 8000USD for the pair. With an argument in writing, they
settled on an initial down payment of 2000USD with monthly payments of
1000USD to follow.
It was later discovered that the 2 violins were imitations worth no more than
300USD. Because the violins were not the originals both parties believed them to
be, Zimbalist refused to pay the 8000USD they had agreed upon. Smith sued for
the balance but the trial court and appellate court found that they had agreed
upon. Smith sued for the balance but the trial court and appellate court found
that
 CONCLUSION
Mistake as a general defence in law is a complex and nuanced area of law.
A court will consider a number of factors before allowing a mistake
defence. These include;
• The reasonableness of the defendant’s mistake
• The type of mistake made
• The nature of the crime alleged.
Here are some general conclusions from mistake as a general defense in
law.
Generally ,mistake of fact defences are more likely to be successful than
mistake of law defences. This is because everyone is presumed to know the
law, or at least have a duty to know it, the law assumes everyone is well
versed in it.
Mistakes of law are only likely to be successful as a defence in very limited
circumstances. In instances of language barrier or if the defendant was
coerced into committing the crime by a person in authority.
Whether or not a mistake will be successful as a defence depends on the
specific facts of the case and the specific law in question.