THIS DOCUMENT CONSIST OF ELEMENTS OF CRIMINAL LAW ,SOURCES OF CRIMINAL LAWAND EXAMPLES OF CASE STUDIES AND RELEVANT EXAMPLES OF CASES THAT SUPPORT THE DESCRIPTIONS IN THE BOOKLET OF THE CRIMINAL LAW LECTURE NOTES
Criminal Law I
Introduction
Objectives of Criminal Law
Characteristics of Criminal Law
What is a crime?
o A crime is an offence which is prohibited by law and injurious to the public good and
which is enforced by courts and prosecuted by the State.
o A crime is also an act or mission committed or omitted in violation of public
o All crimes are created by parliament through statutes
o A person cannot be held guilty of an act or omission which was not a criminal offence
on the date of omission or commission.
There are misdemeanors and felonies
o Misdemeanors are
o Felonies are
What is criminal law for?
History of criminal law
o There were few criminal offences and which were mainly based on compensation for
the offence
o As time went on and offences increased, society begun to view these offences as pubic
wrongs rather than just private matters.
A person who is alleged to have committed a crime is referred to as a suspect.
As a general rule, suspects are arrested by the state through the police at the instigation of the
complainant. After the arrest, the suspect is charged in an independent and impartial court of
law whereupon he becomes the accused.
Criminal cases are generally prosecuted by the state through the office of the Attorney General
(AG) hence they are framed as R (the State) v. Accused E.g. R v Kamenchu
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If the accused pleads not guilty, it is the duty of the prosecution to prove its case against him
by adducing evidence i.e. the burden of proof in criminal cases is borne by the prosecution.
The standard of proof is beyond any reasonable doubt i.e. the court must be convinced that the
accused committed the offence as charged.
In the event of reasonable doubt, the accused is acquitted. If the prosecution proves its case,
i.e. discharges the burden of proof, then the accused is convicted and sentenced.
The sentence may take the form of:-
1. Imprisonment
2. Fine
3. Probation
4. Capital punishment
5. Community service
6. Conditional or unconditional discharge
Sources of Criminal Law
Judicature Act
o It prescribes the sources of law in Kenya
Constitution
o Article 25 – Fundamental Rights and Freedoms that may not be limited
These are rights which are fundamental freedoms which the State cannot limit.
o Article 49 — Rights of arrested persons.
o Article 50 — Fair hearing
o Article 51 — Rights of persons detained, held in custody or imprisoned
o In the case of R v. Jecinta Wairimu, the court upheld articles 49 & 50 of the
Constitution
Legislation/Statutes/Acts of Parliament
o By virtue of the principle of legality, nullum crimen sine lege, nulla poena sine lege,
as embodied in Article 50(2)(n) of the Constitution, all criminal offences are defined
by legislation. All offences of this kind are called statutory offences and so all criminal
offences in Kenya are statutory offences
o Criminal Procedure Code CAP 75
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o Penal Code CAP 63
o International Crimes Act
Common Law
o As discussed above, by virtue of the principle of legality, nullum crimen sine lege, nulla
poena sine lege, as embodied in Article 50(2)(n) of the Constitution, all criminal
offences are defined by legislation. This therefore excludes common law offences
Customary Law
International Law
o Rome Statute
Elements of a Crime
A crime or offence has several elements
o The general rule is that a person is not criminally liable for an offence unless it is
established by concrete evidence that he committed the offence voluntarily and with a
blameworthy-mind.
o This is the cardinal principle of criminal law and is encapsulated in the maxim – actus
non facit reum, nisi mens sit rea (an act does not make a person legally guilty unless
the mind is legally blameworthy)
This principle brings to fore 2 constituent elements of an offence – actus reus
and mens rea
Actus Reus Elements
The actus reus is constituted as a voluntary act, deed, commission or omission, or even in some
cases the occurrence of an event in which the defendant is involved that includes surrounding
circumstances the consequences and due to the results of the act or omission and/or constitutes
the physical components of a crime
o However, in the case on0f Emma d/o Mwaluko v Republic it was held that however
harmful or reckless an act may be, it does not constitute an offence unless the law has
forbidden it. This takes us back to the principle of legality
Commission
The physical act is the most common basis of actus reus
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A crime is the deed or commission or the result of active human conduct and the doing part
of the offence
The commission of an act, deed or conduct which is prohibited by law and viewed as
sufficiently harmful to society constitutes a crime
The intent to commit a crime is part of the commission of the crime seeing as thinking is a
deed; although not openly manifest.
o The intent is however subjective and the prosecution must prove that the accused
suspect had the specified intention.
o Treason falls under this category
The prohibited acts for the offence of murder may not exactly be expressly laid out. Thus,
murder itself is the unlawful killing of another or the causing of the death of another.
o The focus is on the results and any act which results in the death of another
Commission also covers offences where the act complained of is permitting something
prohibited to be done
o Alli s/o Mzee v R
Bus driver permits passengers to sit on the roof of the bus
The appellate court held that a person can be said to have permitted something
they had no knowledge of provided that it is shown that they were in a position
to forbid the act and they had a responsibility to forbid it
Omission
The common law position is that no one is held criminally liable for the harmful consequences
of his omission to act, whether the omission is careless or intentional,
The exception to this is where the prosecution can establish that they were under a legal duty
or obligation to take action in the circumstances
Presence of a Legal Duty or Obligation
o When there is the presence of a legal duty or obligation, an omission may amount to an
offence
o S. 244 of the Penal Code makes it a misdemeanor for a person to omit to do an act
which it is their duty to do and thereby causing harm to another person.
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