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- Provocation - An action or speech intended to make someone angry, often deliberately.
- Plead - To present and argue a case or make an emotional appeal.
- Omission - The act of leaving out or excluding someone or something, leading to a gap or blank.
- Constitute - To give legal or constitutional form to an institution; to establish by law.
- ABH - Assault occasioning actual bodily harm, a statutory offense of aggravated assault.
- Assault - A threat of bodily harm coupled with the present ability to carry out that harm.
Criminal law is the body of law that pertains to crime. It regulates social conduct by prohibiting actions that threaten, harm, or endanger the health, safety, and moral welfare of people, and prescribes punishments for those who violate these laws. Criminal law contrasts with civil law, which focuses more on resolving disputes and compensating victims than on punishment.
Alternatively, criminal law is the body of law concerned with acts or omissions that disrupt public order or societal norms and which render the guilty party subject to punishment.
- Mens Rea - Latin for "guilty mind." In criminal law, it represents a necessary element in many crimes, alongside actus reus ("guilty act"). The common law principle, “actus non facit reum nisi mens sit rea” (an act is not culpable unless the mind is guilty), underscores the requirement for a mental state aligned with criminal intent. Thus, for criminal liability to apply, there must be both a guilty act and a corresponding mental fault, except in cases of strict liability crimes, where mens rea is not required.
- Bahri Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502. The appellant from Turkey was found in possession of heroin hidden in a Turkish samovar in Australia. He claimed ignorance of the drugs. The court focused on mens rea, allowing his appeal and overturning his conviction.
- He Kaw Teh v. The Queen [1985] HCA 43. This case clarified that for offenses under the Customs Act 1901, the prosecution must prove mens rea, or a "guilty mind."
- Sherras v De Rutzen [1895] 1 QB 918. The appellant was convicted of selling alcohol to an on-duty officer who had removed his duty armlet. The conviction was quashed due to the absence of knowledge, emphasizing the role of mens rea emphasizing the role of mens rea.
a) Intention - The highest degree of fault, reflecting a person’s purposeful engagement in criminal conduct. Intention differs from motive, as illustrated in R v Moloney [1985] AC 905, Thus, a person who kills a loved one dying from a terminal illness, in order to relieve pain and suffering, may well act out of good motives. Nevertheless, this does not prevent them having the necessary intention to kill.
- R v Moloney [1985] AC 905. The defendant shot his stepfather after consuming alcohol. The House of Lords held that there was no oblique intent, substituting his murder conviction with manslaughter.
- Brazilla v. R (1968) H.C.D No. 309. The defendant allowed prisoners to escape due to extreme negligence. His conviction was upheld, citing intent and recklessness.
- R v Inglis [2011] 1 WLR 1110. A mother injected her son with heroin to end his suffering. Her appeal was rejected, upholding her conviction for murder.
- R. v. Chepe Kalangali (1973) L.R.T N.77. The accused failed to care for a sick child who was in his custody, exposing the child to cold conditions that led to death. The court found that the accused had a duty to care for the child but neglected this duty, resulting in the child's death. Held: The accused was guilty of manslaughter due to his negligence in failing to protect the child from exposure to cold.
- Brazilla v. R (1968) H.C.D N0.309. The accused, employed by the Bukoba District Council, was in charge of two prisoners. He allowed them to leave their cell to wash clothes and left them unsupervised, during which they escaped. Charged under section 117(1) of the penal code for aiding prisoners to escape, it was held that he was negligent and reckless. His appeal was dismissed due to his extreme carelessness, suggesting an intent to let the prisoners escape.
- R. v. Selemeni Hassan (1969) H.C.D. N0.250. The accused, while attempting to protect his crops from wild pigs, saw a shadow in his field at night and, without verifying, fired an arrow. It turned out to be a person, not a pig, resulting in fatal injuries. Held: He was charged with manslaughter as his high degree of negligence led to the unintended death.
- Bolton v. Stone [1951] AC 850 (House of Lords). Miss Stone was injured by a cricket ball near her home. She sued the cricket club for nuisance and negligence. The club had taken several precautions, including a 17-foot fence and positioning the pitch below ground level. Despite occasional stray balls over 30 years, it was deemed that the likelihood of harm was low, and practical precautions were taken. Held: No breach of duty, as the cricket ground provided community service, and the risk was minimal.
- Conduct: Examples include lying under oath (perjury), which completes the actus reus regardless of effect.
- Result/Consequence: The harm caused by actions, such as injury from a thrown stone, establishing causation in result crimes (e.g., assault, murder).
- Omission: Usually, there is no liability for failing to act unless a statutory, contractual, or legally imposed duty exists (e.g., failure to aid a drowning child without a specific duty does not incur liability).
To establish mens rea, the accused's intention, knowledge, or foresight of the event’s consequences is assessed. Ways to prove mens rea include:
- Circumstance and Consequence
- Knowledge or Awareness
- Foresight of Event
- Intention
1. Ignorance of the Law
Section 8 of Penal Code, Cap 16 R.E 2022: Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence.
Relevant Cases:
- Maulid v. R [1970] H.C.D No. 346: The appellant, convicted for failing to meet the minimum wage for employees as mandated, argued ignorance of this requirement. The court rejected this defense, stating that “ignorance of the law does not afford any excuse.”
- Joseph and others v. R [1970] H.C.D No. 271: The appellants, convicted of illegal entry into Tanzania, argued they had been misled by customs officials. Their appeal was dismissed based on the rule that ignorance of the law is not an excuse.
2. Bona Fide Claim of Right
Section 9 of P.C: A person is not criminally responsible for an offense related to property if their actions are taken in the honest exercise of a claim of right, without intent to defraud.
Relevant Cases:
- Lenderito Laidosoli v. R [1970] H.C.D No. 169: The appellant took a tenant’s items as payment for unpaid rent. On appeal against the theft conviction, the court upheld the defense of bona fide claim of right, finding the appellant acted honestly.
- Mohammed Hassan v. R [1969] H.C.D No. 71: The appellant, a dismissed employee, took clothes from his employer’s room as compensation for unpaid wages. The court accepted the bona fide claim of right, leading to an acquittal of the burglary charge.
3. Mistake of Fact
Section 11: A person who acts under an honest and reasonable but mistaken belief in the existence of a particular situation is not criminally responsible to a greater extent than if the actual situation had been as they believed it to be.
Relevant Cases:
- R v. Sultan Maginga (1969) H.C.D No. 33: The accused, while guarding his field, mistakenly threw a spear at a person he believed to be an animal due to poor lighting. Charged with manslaughter instead of murder, the court acknowledged his mistaken belief as a mitigating factor.
- R v. Selemeni Hassan (1969) H.C.D No. 250: Believing he was targeting wild pigs, the accused fired at a person who was actually in the field. He was convicted of manslaughter, as the degree of negligence was deemed high, though his mistake of fact defense was recognized.
4. Insanity
Section 13: A person is not criminally responsible if, due to a mental disease, they are incapable of understanding their actions. However, if the disease does not prevent understanding, they may still be held responsible.
Relevant Cases:
- R v. Tomson Msumali (1969) H.C.D No. 26: The accused, affected by epileptic fits, killed his father while in a confused state. The court found him not guilty, as he did not understand his actions due to his mental condition.
- Nyinge Suwatu v. R [1959] E.A.C.A No. 974: Despite suffering from delusions, the appellant, who killed a police officer, was aware of his actions’ wrongfulness as he surrendered to authorities. His conviction for murder was upheld, as he displayed awareness of the act’s consequences.
5. Intoxication
Section 14:
- Intoxication is not a defense to any criminal charge.
- However, it may be a defense if the person charged, at the time of the act or omission, did not know that their actions were wrong or did not understand what they were doing, under the following conditions:
- (a) The intoxication was caused without their consent by the intentional or negligent actions of another person.
- (b) Due to intoxication, the person was temporarily or otherwise insane at the time of the act or omission.
Types of Intoxication
1. Voluntary Intoxication
- DPP v. Beard [1920] AC 479: The accused raped a 13-year-old girl and tried to silence her, causing her death by suffocation. Despite being intoxicated, his appeal was dismissed as he was aware of his violent actions.
- Pearson's Case (1835) 2 Lew C.C. 144: The appellant killed his wife while drunk and argued intoxication as a defense. The court held that voluntary drunkenness does not excuse crime unless caused by the actions of another person.
2. Involuntary Intoxication
- R v. Kingston (1994) 3 WLR 519: The accused was drugged without his knowledge and engaged in criminal acts. His conviction was upheld as he had the necessary intent, despite the involuntary intoxication.
- Kinuthia Kamau v. R (1950) 17 E.A.C.A 137: The accused committed several violent acts while extremely drunk. The court reduced his murder conviction to manslaughter due to his intoxicated state.
- R v. Michael Chibingati (1983) T.L.R No. 441: The accused, intoxicated, attacked family members with a weapon, leading to a fatal injury. His plea of intoxication did not absolve him of the charge.
Section 15:
- A person under the age of ten years is not criminally responsible for any act or omission.
- A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that, at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
- A male person under the age of twelve years is presumed to be incapable of having sexual intercourse.
Relevant Cases:
- R v. F.2 N.R.L.R (a juvenile) 185: A 10-year-old boy stole a watch and sold it. Despite his age, he was found guilty as he demonstrated the capacity to understand his actions.
- R v. Mkeja s/o Mashauri (1969) HCD 220: An 11-year-old accused of murder was found capable of understanding his actions, confirming his criminal responsibility.
Section 16:
A judicial officer is not criminally responsible for actions or omissions within their judicial functions, even if exceeding authority, unless otherwise stated by the Act.
Relevant Cases:
- Mzee Selemani v. R (1968) HCD No. 364: A division officer wrongfully detained a complainant without a warrant, arguing immunity. His actions were deemed outside judicial function, and his conviction was upheld.
- Mwaitebele v. R (1970) EA 659: The appellant was convicted of wrongful confinement after unlawfully detaining people for not paying rates. His appeal was dismissed due to the lack of lawful justification for confinement.
Section 17:
A person is not criminally responsible if compelled to commit an offense under immediate threat of death or grievous harm from another person. However, threats of future harm do not excuse the offense.
Requirements:
- The accused must have faced an immediate threat of death or serious injury.
- The threat must be directed at the accused and not someone else or their property.
In Penal Code Cap 16 of 2022, Section 18A(1) outlines every person’s right to defend themselves, others, or property against unlawful assault or violence. It includes:
- Section 18A(1)(a): The to defend himself or any other person against any unlawful act or assault or violence to the body; or.
- Section 18A(1)(b): The right to defend his own property or any property in his lawful possession, custody or under his care or the property of any other person against any unlawful act of seizure or destruction or violence.
Additional Provision:
Section 18A(2) “property of any
other person” includes any property belonging to the
Government or a public corporation or an employer or any
property communally owned by members of the public as a
co-operative society or a village, whether or not that village
is registered under the Local Government (District
Authorities) Act.
Reasonable Force
Section 18B specifies that only reasonable force necessary for defense can be used, and any excessive force results in criminal liability.
- Section 18B(1): Criminal liability arises from any offense resulting from excessive force.
- Section 18B(2): A person shall be criminally liable for any offence, resulting from excessive force used in self defense or in defense of another or in defense of property.
- Section 18B(3): If excessive force results in death, it is manslaughter.
Key Ingredients of Self-Defense:
- Use only reasonable force as necessary.
- Criminal liability for excessive force.
- Causing death due to excessive force leads to manslaughter charges.
Relevant Case Law:
R. v. Nyakabo (1970) HCD No. 344
- Facts: The accused killed her father-in-law in defense against an attempted assault.
- Held: She was found not guilty, as she acted in self-defense.
Mohammed Ally v. R [1969] HCD No. 54
- Facts: The accused fired at thieves to protect his property and was convicted of unlawful wounding.
- Held: The appeal judge stated that firearms in defense of property are only justified if the defender's life is threatened. Conviction was quashed.
Under Section 20, a married woman is not exempt from criminal responsibility simply because an offense occurred in her husband's presence. However, for non-capital offenses (excluding treason or murder), it can be a defense if the offense was committed under her husband's coercion.
Key Ingredients:
- The offense must be other than murder or treason.
- It must occur in the husband’s presence.
- It must be committed under the husband’s coercion.
The concept of parties to offenses pertains to individuals deemed responsible and punishable for the offense.
Principal Offenders
Section 22 of P.C outlines who qualifies as a principal offender:
Actual Perpetrator (The Doer):
- Defined in Section 22(1)(a): A person who commits the offense themselves, such as a direct act like murder.
- Relevant Case:
- Kinuthia Kamau v. R (1950) 17 E.A.C.A 137
- Facts: Accused committed violent acts under alcohol influence.
- Held: Conviction reduced to manslaughter due to drunkenness.
- Kinuthia Kamau v. R (1950) 17 E.A.C.A 137
Enabler:
- Defined in Section 22(1)(b): A person who assists or enables another to commit an offense, e.g., driving the perpetrator to the crime scene.
Aider or Abettor:
- Defined in Section 22(1)(c): A person who aids or abets the commission of the offense, e.g., holding a victim’s arms while another commits assault.
Counselor:
- Defined in Section 22(1)(d): A person who counsels or procures another to commit the offense, e.g., hiring a witch doctor to commit murder.
Accessory Before the Fact
An individual absent at the crime scene but involved in enabling or encouraging the offense with knowledge of its intent.
Accessory After the Fact
A person who, knowing that a crime has been committed, assists the offender in evading justice.
Relevant Cases:
Damiano Petro and Jackson Abraham v. R [1980] T.L.R 260
- Facts: Accused seen with a knife used in murder; second accused was in company.
- Held: Insufficient evidence to prove aiding or abetting by the second accused.
Jackson Mwakatoka and Two Others v. R [1990] T.L.R 17
- Facts: Three appellants were convicted of murder committed in a fight, with common intent established.
- Held: All were convicted for participating in the offense under common intention.
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