INTRODUCTION TO LAW

By the end of the Sub-Unit, the trainee should be able to:

 Define law
 Explain the classes and nature of law
 Explain sources of law
LAW

 Law is a body of principles recognized and applied by the state in the administration of justice.
 All regulations, rules, orders, etc which have been formulated or agreed upon to guide the
conduct of human beings.
 It is a set of rules to control the behavior of people in society.

Classification of Law
Law is divided into two main categories:-

a. Public
b. private
1. Public law.
Public law is concerned with the relationship between the state and its citizens. This comprises several
areas such as:

a. The constitutional law: - consists of those rules which regulate the relationship between the
different organs of state and determines their principal function e.g. powers and privileges of
members of parliament as well as the relationship between the central government and the county
governments.
b. Administrative law: - Is the law relating to the public administration, e.g., the legal right of an
individual. Schemes in Kenya, for example, have been introduced to help ensure a minimum
standard of living for everybody. Government agencies are involved, for example, in the
provision of a state retirement pension, income support and child benefit. A large number of
disputes arise from the administration of these schemes and a body of law, administrative law,
has developed to deal with the complaints of individuals against the decisions of the
administering agency.

Criminal law: Criminal law is a body of specific rules regarding human conduct which have
been plumaged by political authority, which apply uniformly to all members of classes which the
rules refer.

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Criminal law it includes:

i. The Penal Code: - the nature of crime and the punishment imposed, e.g., rape,
murder, robbery, etc.
ii. The Criminal Procedure Code: - it’s the procedure in criminal courts and
prosecution, i.e, investigate arrest and take to court.
iii. Evidence Act: - procedures of evidence during court proceedings.

2. Private Law: -
Private law is primarily concerned with the rights and duties of individuals towards each other.
The state’s involvement in this area of law is confined to providing a civilized method of resolving
the dispute that has arisen. Thus, the legal process is begun by the aggrieved citizen and not by the
state. Private law is also called civil law and is often contrasted with criminal law
It embraces:
i. Law of tort – is a civil wrong which gives rise to an action at common law for
liquidated damages. Other remedies are injunction, restitution, etc.
ii. Law of contract – an agreement between two or more persons giving rise to legal
obligation. It can be oral or written.
iii. Law of succession – regulates the transmission of properly on death of a person e.g.,
a ‘will’ – written document in which a person declares how his/her estate is to be
redistributed.
iv. Law of persons – deals with legal personality of an individual or body, e.g., marital
status, infants, minors, people with disabilities, etc.

Differences between Criminal Law and Civil Law:-

Criminal Law:
1. Wrongs against the community in general, e.g., murder, rape, etc.
2. The object is to punish the offender and can be asked to pay compensation under special
circumstances.
3. The state prosecutes in the public interest.
4. The trial may be stopped by the prosecutor if he does not wish to go on with the case but the
complainant has no power to stop the case, e.g. Sec 87a of the CPC and the Nolleprosqui.
5. The trial is done in accordance with the provisions of the Criminal Procedure Code
6. The standard of proof is beyond reasonable doubt.

Civil Law:
1. Wrongs affecting an individual(s), e.g. failing pay to debt.

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 2. The objective is to obtain compensation for the damage /injury or restitution of property, e.g.,
attachments of property to clear a debt.
3. The case is filled by an individual known as plaintiff
4. The proceedings may be stopped by the plaintiff if he/she wishes to settle the dispute out of the
court or decided not to go on with the case.
5. Trial done according to the provisions of Civil Procedure Act
6. The standard of proof is based on balance of probability.

Criminal Law: Civil Law:

1. Wrongs against the community in 1. Wrongs affecting an individual(s), e.g.
general, e.g., murder, rape, etc. failing pay to debt.
2. The object is to punish the offender and 2. The objective is to obtain compensation
can be asked to pay compensation under for the damage /injury or restitution of
special circumstances. property, e.g., attachments of property to
3. The state prosecutes in the public interest. clear a debt.
4. The trial may be stopped by the 3. The case is filled by an individual known
prosecutor if he does not wish to go on as plaintiff
with the case but the complainant has no 4. The proceedings may be stopped by the
power to stop the case, e.g. Sec 87a of the plaintiff if he/she wishes to settle the
CPC and the Nolleprosqui. dispute out of the court or decided not to
5. The trial is done in accordance with the go on with the case.
provisions of the Criminal Procedure 5. Trial done according to the provisions of
Code Civil Procedure Act
6. The standard of proof is beyond 6. The standard of proof is based on balance
reasonable doubt. of probability.

SOURCES OF KENYAN LAW

The sources of the laws of Kenya are contained in the section of Judicature Act 1967 Cap 8 L.O.K. and
are as follows:-

1. The Constitution of Kenya

The constitution is the supreme law of the republic and binds all persons
2. Legislations (statute laws) - Acts of Kenyan parliament, while subject to the constitution, take
precedence over other sources of law.

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 3. Subsidiary legislations (by-laws and rules) - It’s made under the express authority of an Act of
parliament.
4. The substance of the common law and statute of general application in force in England as on
12th August 1897.
5. The African customary law in civil cases on which one or more of the parties are subject to or
affected by it.
6. Islamic law where both parties are concerned and are followers of Islamic faith. The cases are
presided over by the Kadhi.

CRIME: -

Crime - is a wrong or deviation from accepted norms or standards.

 It is a breach of rules established by a governing authority and the breach thereof being punished
by conviction.
 This is an offence punishable by the state.
Offence: is act, omission or attempt punishable by law.
CLASSIFICATION OF CRIMES

Crimes may be defined in 4 main ways:

(1) Felony: - Penal code describes a felony as follows.

 It means an offence which is declared by law to felony or if not declared a misdemeanor is

punishable without proof of previous conviction with death or with imprisonment.

Crimes such as rape and robbery are some of the crimes that may befall under the category of
felony.

(2) Misdemeanour- The penal code describes misdemeanor as any offence which is not a felony.
Misdemeanour is a lesser crime punishable by fine or 3 years.
(3) Petty offences – are sub-set of Misdemeanour. They comprise of the least serious offences such
as traffic violation.
(4) Capital offence – Capital offences are more serious offences punishable by death eg. Robbery
with violence

Elements of Crimes:-
For an act/omission to constitute an offence, it must have the following elements:

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 a. The mental (Mens rea)
b. The physical (Actus Reus)

a. Mens Rea-this is the mental part, the state of mind required to be criminally liable. It is also referred
to as “a guilty mind” or possessing a criminal intent vis-a vis accidental acts.
Elements of Mens Rea

i. Intent
ii. Knowledge
iii. Recklessness
iv. Negligence
b. Actus Reus– this is the physical part of a crime. It is the act engaged in by the accused.
This is the wrongful act.

PENAL CODE CAP 63 L.O.K

INTERPRETATION OF TERMS
Unless the context otherwise requires—

“Act” includes any order, rules or regulations made under any Act;

Court” means a court of competent jurisdiction; “

Dangerous harm” means harm endangering life;

Disciplined forces” means the armed forces or the National

“dwelling-house” includes any building or structure or part of a building or structure which is for the
time being kept by the owner or occupier for the residence therein of himself, his family or his servants or
any of them, and it is immaterial that it is from time to time uninhabited; a building or structure adjacent
to or occupied with a dwelling-house is deemed to be part of the dwelling-house if there is a
communication between such building or structure and the dwelling-house, either immediate or by means
of a covered and enclosed passage leading from the one to the other, but not otherwise; “electronic
record” means a record generated in digital form by an information system which can be transmitted
within an information system or from one information system to another, and stored in an information
system or other medium;

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“Felony” means an offence which is declared by law to be a felony or, if not declared to be a
Misdemeanour, is punishable, without proof of previous conviction, with death, or with imprisonment for
three years or more;

“Grievous harm” means any harm which amounts to a maim or dangerous harm, or seriously or
permanently injures health, or which is likely so to injure health, or which extends to permanent
disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;

“Harm” means any bodily hurt, disease or disorder whether permanent or temporary;

“Judicial proceeding” includes any proceeding had or taken in or before any court, tribunal, commission
of inquiry or person in which evidence may be taken on oath;

“Knowingly”, used in connection with any term denoting uttering or using, implies knowledge of the
character of the thing uttered or used;

“Maim” means the destruction or permanent disabling of any external or internal organ, member or
sense;

“misdemeanor” means any offence which is not a felony; “money” includes bank notes, currency notes,
bank drafts, cheques and any other orders, warrants or requests for the payment of money;

“Night” or “night-time” means the interval between half-past six o’clock in the evening and half-past six
o’clock in the morning;

“Oath” includes affirmation or declaration;

“Offence” means an act, attempt or omission punishable by law;

“Possession” –

(a) “be in possession of” or “have in possession” includes not only having in one’s own personal
possession, but also knowingly having anything in the actual possession or custody of any other person,
or having anything in any place (whether belonging to or occupied by oneself or not) for the use or
benefit of oneself or of any other person;

(b) if there are two or more persons and any one or more of them with the knowledge and consent of the
rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the
custody and possession of each and all of them;

“premises” includes any land, any building and any other place whatsoever; “print” means to produce or
reproduce words or pictures in visible form by printing, writing, typewriting, duplicating, cyclostyling,
lithography, photography or any other means of representing the same in visible form;

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“Prohibited publication” means any publication the importation of which has been prohibited under
section 52, and any part, copy or reproduction of any such publication;

“property” includes any description of movable or immovable property, money, debts and legacies, and
all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to
recover or receive any money or goods, and also includes not only such property as has been originally in
the possession or under the control of any person, but also any property into or for which the same has
been converted or exchanged, and anything acquired by such conversion or exchange, whether
immediately or otherwise;

“public” refers, not only to all persons within Kenya, but also to the persons inhabiting or using any
particular place, or any number of such persons, and also to such indeterminate persons as may happen to
be affected by the conduct in respect to which such expression is used.
“public place” or “public premises” includes any public way and any building, place or conveyance to
which, for the time being, the public are entitled or permitted to have access either without any condition
or upon condition of making any payment, and any building or place which is for the time being used for
any public or religious meetings or assembly or as an open court;

“Public way” includes any highway, market place, square, street, bridge or other way which is lawfully
used by the public;

“Publicly”, when applied to acts done, means either –

(a) That they are so done in any public place as to be seen by any person whether such person be or be
not in a public place; or

(b) that they are so done in any place not being a public place as to be likely to be seen by any person in a
public place;

“Unlawful society” means any unlawful society within the meaning of section 4(1) of the Societies Act;

“Utter’ means and includes using or dealing with and attempting to use or deal with and attempting to
induce any person to use, deal with, or act upon the thing in question;

“valuable security” includes any document which is the property of any person, and which is evidence of
the ownership of any property or of the right to recover or receive any property; “vessel” includes any
ship, a boat and every other kind of vessel used in navigation either on the sea or in inland waters and
includes aircraft;

“wound” means any incision or puncture which divides or pierces any exterior membrane of the body,
and any membrane is exterior for the purpose of this definition which can be touched without dividing or
piercing any other membrane;

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“Written law” means the Constitution, any Act of Parliament of Kenya, or any applied Act, and includes
any orders, rules, regulations, by-laws or other subsidiary legislation made under any written law.

THE GENERAL RULES AS TO CRIMINAL RESPONSIBILITY

AUTHORITY: - SEC 7-19 OF THE PENAL CODE CAP 63 LAWS OF KENYA

 Define the term crime

 State the elements of crime
 Explain Criminal responsibility
 Outline rules as to criminal responsibility
 Explain the exceptions and qualification in criminal responsibility

Introduction:-
The concept of criminal responsibility concerns the different mental states related to crimes, the ways in
which those mental states are evaluated, and the variety of associated defenses.
Whenever an act or omission that constitutes an offence occurs, the law places responsibility on certain
individuals. The law lays down the circumstances under which one can either be held responsible or not
for an offence. Basically sections 7-19 of the Penal Code provide the defences available for persons
facing criminal prosecutions.

What Is Criminal Responsibility?

The term criminal responsibility refers to a person's ability to understand his or her conduct at the time a
crime is committed. In other words, what a person is thinking when he commits a crime, or what result is
anticipated or expected when a crime is committed. Laws define crimes in terms of an act or omission
(actus reus) and a mental state (mens reas). Criminal responsibility relates to the mental state element of a
crime.

The following are the circumstances:-

i. Ignorance of Law (Sec 7):-

Ignorance of law does not afford any excuse for any act/omission which constitutes an
offence unless knowledge of the law by the offender is expressly declared to be an element of
the offence, i.e., ignorance of law is no defence.

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ii. Bona Fide Claim of Right [One’s claim of right] (Sec 8) :- f
A person is NOT criminally responsible in respect of an offence relating to property, if the act
done or omitted to be done by him with respect to the property was done in the exercise of an
honest claim of right and without intention to defraud.
 This section only refers to property and it is a good defence to a theft charge.
Example:

‘A’ takes his car to ‘B’ who is a mechanic for repair. ‘B’ repairs the car and charges
Ksh.1000, but ‘A’ refuses to pay. ‘B’ detains the car till he is paid for the services.

iii. Intention and Motive (Sec 9):-

 Intention - is what the accused person had in mind.
 Motive - is the reason why the person committed the offence. The motive by which a
person is induced to do an act or omission to do act or to form an intention is immaterial
so far as regards criminal responsibility.
(1) Subject to the express provisions of this Code relating to negligent acts or omissions, a
person is not criminally responsible for an act or omission which occurs independently
of the exercise of his will, or for an event which occurs by accident.
(2) Unless the intention to cause a particular result is expressly declared to be an element of
the offence constituted, in whole or part, by an act or omission, the result intended to be
caused by an act or omission is immaterial.
(3) Unless otherwise expressly declared, the motive by which a person is induced to do or
omit to do an act, or to form an intention, is immaterial so far as regards criminal
responsibility.
Example:
 A is offloading bricks from a truck when accidentally one of the bricks slips and hits
and instantly kills B who is passing by. A is not guilty of murder. However this
section does not absolve from blame those guilty of negligent acts and omissions.
 A robs from B with a motive to give the money to one Mrs. Poor. His good intentions
do not change his criminal intention to commit robbery.

iv. Mistake of Facts (Sec 10):-

(1) A person who does an act or omits to do an act under an honest and reasonable, but
mistaken, belief in the existence of any state of things is NOT criminally responsible for
the act/omission to any greater extent than if the real state of things had been such as he
believed to exist.

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 (2) The operation of this section may be excluded by the express or implied provisions of the
law relating to the subject.
Example:
X goes to a market place aboard his bicycle and parks it outside a shop where there
are other bicycles of similar make and colour. On leaving the shop he mistakenly
rides away on Y’s bicycle believing it’s his. He is not guilty of theft.

v. Presumption of Sanity (Sec 11):-

Every person is presumed to be of sound mind, and to have been of sound mind at any time
which comes in question, until the contrary is proved.

vi. Insanity (Sec 12):-

A person is not criminally responsible for an act/omission if at the time of doing the act or
making the omission he is through any disease affecting his mind incapable of understanding
what he was doing, or of knowing that he ought not to do the act or make the omission; but a
person may be criminally responsible for an act or omission , although his mind is affected by
disease , if such disease does not in fact produce upon his mind one ore other of the effects
above mentioned in reference to the act or omission.
Explanation –

 There is a rebuttable presumption of sanity by the law.

 Insanity once ascertained is defence in criminal responsibility.
 For the defence to materialize, the person claiming it need to prove the following:-
a. That he/she was through a disease of mind which incapacitated his/her
cognitive rationality.
b. That consequent to the disease of he/she did not know what he/she was
doing.
c. That the disease of mind made him not to know that what he was doing was
wrong.

vii. Intoxication (Sec 13):-

(1) Save as provided in this section, intoxication shall not constitute a defence to any
criminal charge.
(2) intoxication shall be a defence to any criminal charge if by the reason thereof the person
charged at the time of the act/omission complained of did not know that such act or
omission was wrong or did not know what he was doing and:
a. The state of intoxication was caused without his consent by the malicious/negligent
act of another person; or

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 b. The person charged was by reason of intoxication insane, temporarily or otherwise, at
the time of such act or omission.
(3) Where the defence under subsection (2) is established, then in a case falling under
paragraph a. thereof the accused shall be discharged, and in a case falling under
paragraph b. the provisions of this Code and the Criminal Procedure Code relating to
insanity shall apply.
(4) Intoxication shall be taken into account for the purpose of determining whether the
person charged had formed any intention, specific or otherwise, in the absence of which
he would not be guilty of the offence.
(5) For the purpose of this section, ’intoxication’ includes a state produced by narcotics or
drugs.
Explanation –
 Generally speaking, intoxication is no defence for any act/omission constituting
an offence.
 The person claiming defence need to prove that they did not know that what they
were doing was wrong consequent to the intoxication.
 That the intoxication was caused by another person without his/her consent.
 That the intoxication caused him insanity, temporary or otherwise.
viii. Immature Age (Sec 14):-
a. A person under 8years is not criminally responsible for any act or omission.
b. A person under 12years 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/she had the capacity to
know that he/she ought not to do the act or make the omission.
c. A male person under the age of 12years is presumed to be incapable of having carnal
knowledge.
Explanation –
 Sec 14(1) is an irrebuttable presumption of law.
 Sec 14(2) is a rebuttable presumption of law. If the contrary is as
aforementioned, the child can be held responsible for the act or omission
constituting the offence.
ix. Sec 14(3) is an irrebuttable presumption of law.

x. Judicial Officers (Sec 15):-

Except as expressly provided by this Code, a judicial officer is not criminally responsible for
anything done or omitted to be done by him in the exercise of his judicial functions, although
the act done is in excess of his judicial authority or he is bound to do the act omitted to be
done.

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 Explanation –

This means that if an officer of the court of law does an act or makes an omission in the course
of his duties, which would otherwise be an offence, he is not criminally responsible provided
that the act or the omission was made in good faith and without any criminal intention.

xi. Compulsion (Sec 16):-

A person is not criminally responsible for an offence if it is committed by two or more
offenders, and if the act is done or omitted only because during the whole of the time in
which it is being done or omitted the person is compelled to do or omit to do the act by
threats on the part of the other offenders or offenders instantly kill him or do him grievous
bodily harm if he refuses; but threats of future injury do not excuse any offence, nor do any
threats excuse the causing of, or the attempt to cause, death.
Explanation –
To afford a defence:-
 The offenders must be two or more,
 There must be a threat to kill or do grievous harm if the person being compelled fails
to do the act or make omission constituting the offence, and
 The threats should be real, present and proximate.

xii. Defence of Persons or Property (Sec 17):-

Subject to any express provisions in this Code or any other law in operation in Kenya,
criminal responsibility for the use force in the defence of person or property shall be
determined according to the principals of the English Common Law.

Explanation –

 Excessive use of force in the defence of person or property cannot afford defence in
criminal responsibility.

 The force to apply should be commensurate with the threat.

 The threat should be real and imminent.

 It is a defence if the force is applied simultaneously with the threat.

xiii. Use of Force in Effecting Arrest (Sec 18):-

Where any person is charged with a criminal offence arising out of the lawful arrest, or
attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade
being arrested, the court shall, in considering whether the means used were necessary, or the
degree of force used was reasonable, for the apprehension of such person, have regard to the

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 gravity of the offence which had been or was being committed by such person and the
circumstances in which such offence had been or was being committed by such person.
Explanation –
 The law does not expressly permit the use of excessive force in affecting arrest.
 The force to be applied should be reasonable and commensurate with the ensuing
resistance.
 It is not in order to charge a person with the offence of resisting arrest without first
preferring a charge for the offence he was being sought for.
 The court may only convict a person so charged after taking cognizance of the
gravity of the first offence and the degree of force used and the circumstances under
which the offence was committed.
xiv. Compulsion by Husband ( Sec 19):-
A married woman is not free from criminal responsibility for doing or omitting to do an act
merely because the act or omission takes place in the presence of her husband; but, on a
charge against a wife for any offence other than treason or murder, it shall be a good defence
to prove that the offence was committed in the presence of, and under the coercion of, the
husband.
Explanation –
 Mere presence of husband when the wife is committing an offence cannot afford an
excuse for an act or omission constituting an offence.
 For a charge of treason or murder the wife cannot claim that she was forced by the
husband to do an act or make an omission constituting the said offence.
 For other offences apart from murder and treason, it shall be a defence to claim that
she committed the offence in the presence of and under the coercion of her husband.
 The coercion must be proximate and real and the husband within reach.

PARTIES TO OFFENCES
AUTHORITY SECTION 20-23 OF PENAL CODE
 Outline persons classified as principal offenders
 Outline persons classified as joint offenders
 Discuss accessory after the fact

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Introduction:-

When an offence has been or is about to be committed, it is the responsibility of law enforcers to establish
the author of the said offence. Generally speaking, offences may be committed by some person(s), but at
times many persons are segmentally engaged in the commission thereof. However, the law recognizes
their contribution and provides for necessary punishments. Notwithstanding their level of participation or
contribution, the law provides that they be punished as persons who actually committed the offence or
aiding, abetting, counseling or procuring the commission of the said offence.

Definition – Offence: - any unlawful conduct/act punishable by law.

Parties to offences are divided into four categories:-

20. Principal offenders

(1) When an offence is committed, each of the following persons is deemed to have taken part in
committing the offence and to be guilty of the offence, and may be charged with actually committing it,
that is to say—
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to
commit the offence;
(c) Every person who aids or abets another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence, and in the last-
mentioned case he may be charged either with committing the offence or with counseling or procuring its
commission.
(2) A conviction of counseling or procuring the commission of an offence entails the same consequences
in all respects as a conviction of committing the offence.
(3) Any person who procures another to do or omit to do any act of such a nature that, if he had himself
done the act or made the omission, the act or omission would have constituted an offence on his part is
guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the
act or made the omission; and he may be charged with doing the act or making the omission.
21. Joint offenders in prosecution of common purpose
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction
with one another, and in the prosecution of such purpose an offence is committed of such a nature that its
commission was a probable consequence of the prosecution of such purpose, each of them is deemed to
have committed the offence.
22. Counseling another to commit offence
(1) When a person counsels another to commit an offence, and an offence is actually committed after
such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is
the same as that counseled or a different one, or whether the offence is committed in the way counseled or

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in a different way, provided in either case that the facts constituting the offence actually committed are a
probable consequence of carrying out the counsel.
(2) In either case the person who gave the counsel is deemed to have counseled the other person to
commit the offence actually committed by him.
23. Offences by corporations, societies, etc.
Where an offence is committed by any company or other body corporate, or by any society, association or
body of persons, every person charged with, or concerned or acting in, the control or management of the
affairs or activities of such company, body corporate, society, association or body of persons shall be
guilty of that offence and liable to be punished accordingly, unless it is proved by such person that,
through no act or omission on his part, he was not aware that the offence was being or was intended or
about to be committed, or that he took all reasonable steps to prevent its commission.
Accessories after the fact sec 396 of p.c
Anyone receiving, comforting or assisting another, who to his knowledge, is guilty of an offence, is an
accessory after the fact to that offence.
There are some exceptions to this:
A wife is not an accessory after the fact for receiving, comforting or assisting her husband knowing that
he has committed an offence
A wife is not an accessory after the fact if in her husband’s presence and by his authority, she receives
comforts or assists another person who was jointly concerned with her husband in committing an offence.
A husband is not an accessory after the fact for receiving, comforting or assisting his wife knowing that
she has committed an offence.

PUNISHMENTS-AUTHORITY
AUTHORITY SECTION 24 –39 OF PENAL CODE

 Define punishment

 Explain various types of punishments

 Distinguish between cumulative and concurrent punishments

Definition of punishment
Punishment - Means penalty inflicted to a person by a court of law.
Discretion of A judge or magistrate
 A judge or magistrate has considerable discretion as to the punishment to be inflicted/awarded
 Apart from imprisonment there are other ways that a judge or magistrate can ensure the convict is
punished.

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  He may award the maximum term or unless the penalty is fixed not only may the court impose a
lesser term of imprisonment but it may impose a fine or other punishment.
 The discretion helps a judge or magistrate to avoid the hardship which can occur where there are
no fixed penalties.
 It enables a judge or magistrate to take into account the circumstances surrounding each
individual case.
 Where the accused is convicted of more than one offence the sentence will be cumulative, unless
the court directs that it will be executed concurrently

DIFFERENT KINDS/TYPES OF PUNISHMENTS

The following punishments may be inflicted by a court—
a) Death;
b) Imprisonment
c) Community Service Orders Act, 1998,
d) Fine;
e) Forfeiture;
f) Payment of compensation;
g) Finding security to keep the peace and be of good behaviour;
h) Discharged under sec 35(1) penal code
i) Restitution
j) Probation
k) Suspended sentence
l) Any other punishment provided by this Code or by any other Act.

Types of Sentence
1. Cumulative: Means that after the expiration of one sentence he will serve another sentence Example
The accused was charged with two or more counts and each count carries a penalty and the accused
after trial is found guilty of each count. The judge or magistrate during the ruling announces that the
sentence will run cumulatively; that means, if the first count is three (3) years and the second count is
four years the accused will serve seven (7) years
2. Concurrent: Means all together at the same time i.e. serve the longest length of punishment e.g. first
count 3 months second count -8 months, third count- 12 months respectively. If the sentences are to
run concurrently, he will serve the longest length imposed, that is 12 months
3.
OFFENCES AGAINST THE PERSON

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ASSAULTS
 Define assaults
 Explain the types of assault
 Describe punishments for assaults
250. Common assault

Any person who unlawfully assaults another is guilty of a misdemeanour and, if the assault is not
committed in circumstances for which a greater punishment is provided in this Code, is liable to
imprisonment for one year.

251. Assault causing actual bodily harm

Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is
liable to imprisonment for five years

251A.Insulting modesty by forcible stripping

A person who intentionally insults the modesty of any other person by forcibly stripping such person,
commits an offence and is liable, upon conviction, to imprisonment for a term not less than ten years.

253. Other assaults

Any person who—

(a) Assaults any person with intent to commit a felony or to resist or prevent the lawful apprehension or
detainer of himself or of any other person for any offence; or

(b) Assaults, resists or wilfully obstructs any police officer in the due execution of his duty, or any person
acting in aid of that officer; or

(c) assaults any person in pursuance of any unlawful combination or conspiracy to raise the rate of
wages, or respecting any trade, business or manufacture or respecting any person concerned or employed
therein; or

(d) assaults, resists or obstructs any person engaged in lawful execution of process, or in making a lawful
distress, with intent to rescue any property lawfully taken under such process or distress; or

(e) assaults any person on account of any act done by him in the execution of any duty imposed on him by
law, is guilty of a Misdemeanour and is liable to imprisonment for five years.

HOMICIDES AND ALLIED OFFENCES-

Authority: SECTION 202 – 215 OF PENAL CODE

 Define homicide

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  Types of homicides
 Define murder
 Explain offences allied to murder
 Explain meaning of “causing death”
 State various punishments under murder and allied offences

HOMICIDE: This is the killing of human being by another human being.

Types of homicides

1. Felonious-criminal
2. Non felonious- not criminal
Felonious: The felonious or criminal homicides are the ones we are mostly concerned with. They include
murder, manslaughter, infanticide etc. They are offences which existed if not in statutes, then under
customary or traditional rules. Even religious books have commandments that prohibit killing.

Non felonious- not criminal

The non-felonious or not criminal homicides are those ones which are excusable. The circumstances
which prevail are the ones which make them allowable. They include lawful hanging and killing during
wartime.

MURDER:

Definition: This is the killing of a human being by another by unlawful act or omission and with malice
aforethought

Malice Aforethought:

A person would be deemed to kill another with malice aforethought if he or she does so during peace
time with any of the following: -

 Intent to cause death or grievous bodily harm to any person whether that person is the person
actually killed or not.
 Having the knowledge that the act or omission is likely to cause death or grievous bodily harm to
any person whether that person is the person actually killed or not.
 Intent to commit a felony.
 Intent to facilitate the flight or escape of any person who has committed or attempted to commit
a felony.
MANSLAUGHTER:

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Is the killing of a human being by another by unlawful act or omission without malice aforethought.
There are various circumstances when a person is deemed to have committed manslaughter.

CIRCUMSTANCES WHICH CONSTITUTE MANSLAUGHTER

A charge of murder may be reduced to one of manslaughter if the killing was done under any of the
following circumstances:

a) INFANTICIDE:
This is where a woman by;
 Unlawful act or omission causes the death of her child who is
 Under 12 months but
 At the time of killing the balance of her mind was disturbed
 By reason of her not having fully recovered from the effect of giving birth to the child or
 Due to lactation consequent to the birth of the child.
b) SUICIDE PACT:
Means a common agreement between two or more persons having its object the death of all of them
NB: Suicide is the intention killing of oneself; the survivor of suicide pact commits manslaughter.
c) KILLING ON PROVOCATION: -
The word provocation simply means: -
any wrongful act or insult likely when done to an ordinary person or in his presence to another with
whom he stands any relationship to deprive him the power of self-control and induces him to commit
an assault of the kind the person by whom an act or assault is done or offered.

STATUTORY DEGREE OF RELATIONSHIP IN PROVOCATION

i. Conjugal i.e. husband and wife
ii. Parental i.e. father, mother to children
iii. Filial i.e. son and daughter
iv. Fraternal i.e. brothers
v. Master and servant
POINTS TO REMEMBER IN PROVOCATION

 Act by which death is caused is done in the heat of passion (hot blood)
 It was done by an ordinary person or in the presence of another person whom the ordinary person
stands in the above statutory degree of relationship.
 An assault was done on the person who provoked the other by that other person
 A lawful act is not provocation for an assault
 An act done in consequence of incitement is not an excuse to provocation to commit an assault.

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  An unlawful arrest is not provocation but may be used as evidence to provocation by a person
who knows its illegality.

(D) DEATH CAUSED BY LAWFUL CORRECTION

This is whereby an unlawful act or omission death is caused during lawful correction.

(E) FAILURE TO PERFORM LAWFUL DUTY

This is where a person fails and without any reasonable ground to perform a lawful duty and death is
caused.

(F) SUDDEN FIGHTS BETWEEN PERSONS:

If two persons all of a sudden bring about a fight and incidentally one of them dies.

CAUSING DEATH:

A person would be deemed to have caused the death of another who dies within the limitation as to the
time of death in one year and one day who;

 Inflicts bodily injuries to another person who undergoes surgical or medical treatment, which is
offered in good faith and with common knowledge and skill, but still dies.
 Inflicts bodily injuries to any person who then does not undergo any surgical or medical
treatment or does not observe his mode of living and still dies.
 Hasten the death of another person (Mercy killing).
 By actual or threatened violence causes a person to do an act or omission being a means of
avoiding such violence.
 Even if the act or omission alone could not have caused the death had it not been accompanied
by act or omission of the person killed.
UNLAWFUL OMISSION

This is an omission amounting to culpable negligence to discharge duty in intending preservation of life
or health. In this respect intention is immaterial.

Culpable: This means blame worthy or deserving punishment.

WHEN A CHILD IS DEEMED TO BE A PERSON CAPABLE OF BEING KILLLED

A child is deemed to be a person capable of being killed when: -

 It has completely proceeded into a living state from the body of its mother, whether;

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  It has breathed or not, and
 Whether it has an independent circulation or not, and
 Whether the naval string is severed or not.
LIMITATION AS TO TIME OF DEATH
 A person is not deemed to have killed another if the death of that person does not take place
within a year and a day of the cause of death.
 Such period is reckoned inclusive of the day on which the last unlawful act contributing to the
cause of death was done.
 When the cause of death is an omission to observe or perform a duty, the period is reckoned
inclusive of the day on which the omission ceased.
 When the cause of death is in part an unlawful act, and in part an omission to observe or perform
a duty, the period is reckoned inclusive of the day on which the last unlawful act was done or the
day on which the omission ceased, whichever is the later.
Punishments
 Punishment of murder - Any person convicted of murder shall be sentenced to death.
 Punishment of manslaughter - Any person who commits the felony of manslaughter is liable to
imprisonment for life.
 If the sentence is unspecified the punishment shall be awarded as per sec 36 of the penal code
(General punishment for misdemeanors) i.e.
 When in this Code no punishment is specially provided for any misdemeanor, it shall be
punishable with imprisonment for a term not exceeding two years or with a fine, or with both.

OTHER OFFENCES CONNECTED WITH MURDER

220. Attempt to murder.
Any person who –
(a) Attempts unlawfully to cause the death of another; or
(b) with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his
duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of
a felony and is liable to imprisonment for life.
221. Attempt to murder by convict.
Any person who, being under a sentence of imprisonment for three years or more, attempts to commit
murder is liable to imprisonment for life.
222. Accessory after the fact to murder
Any person who becomes an accessory after the fact to murder is guilty of a felony and is liable to
imprisonment for life.
Definition of accessories after the fact

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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.

223. (1) Threats to kill

Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a
threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for
ten years.
224. Conspiracy to murder
Any person who conspires with any other person to kill any person, whether that person is in Kenya or
elsewhere, is guilty of a felony and is liable to imprisonment for fourteen years.
225. Aiding suicide
Any person who - (a) procures another to kill himself ; or (b) counsels another to kill himself and thereby
induces him to do so; or (c) aids another in killing himself, is guilty of a felony and is liable to
imprisonment for life.
226. Attempting suicide
Any person who attempts to kill himself is guilty of a misdemeanour.
227. Concealing birth
Any person who, when a woman is delivered of a child, endeavours by any secret disposition of the dead
body of the child to conceal the birth, whether the child died before, at or after its birth, is guilty of a
misdemeanour.
228. Killing unborn child.
Any person who, when a woman is about to be delivered of a child, prevents the child from being born
alive by any act or omission of such a nature that, if the child had been born alive and had then died, he
would be deemed to have unlawfully killed the child, is guilty of a felony and is liable to imprisonment
for life.

OFFENCES AGAINST LIBERTY

KIDNAPPING

Definition of kidnapping from Kenya

Any person, who conveys any person beyond the limits of Kenya without the consent of that person, or of
some person legally authorized to consent on behalf of that person, is said to kidnap that person from
Kenya.

Definition of kidnapping from lawful guardianship

Any person who takes or entices any minor under fourteen years of age if a male, or under sixteen years
of age if a female, or any person of unsound mind, out of the keeping of a lawful guardian of the minor or

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person of unsound mind, without the consent of the guardian, is said to kidnap the minor or person from
lawful guardianship.

ABDUCTION SEC 256-266A

Definition of abduction
Any person who by force compels, or by any deceitful means induces, any person to go from any place is
said to abduct that person.

Punishment for abduction and kidnapping

Any person who kidnaps any person from Kenya or from lawful guardianship is guilty of a felony and is
liable to imprisonment for seven years.

Kidnapping or abducting in order to murder

Any person who kidnaps or abducts any person in order that the person may be murdered, or may be so
disposed of as to be put in danger of being murdered, is guilty of a felony and is liable to imprisonment
for ten years.

Kidnapping or abducting with intent to confine

Any person who kidnaps or abducts any person with intent to cause that person to be secretly and
wrongfully confined is guilty of a felony and is liable to imprisonment for seven years.

Kidnapping or abducting in order to subject to grievous harm, slavery, etc.

Any person who kidnaps or abducts any person in order that the person may be subjected, or may be so
disposed of as to be put in danger of being subjected to grievous harm, or knowing it to be likely that such
person will be so subjected or disposed of, is guilty of a felony and is liable to imprisonment for ten years.

Wrongfully concealing or keeping in confinement kidnapped or abducted person

Any person who, knowing that any person has been kidnapped or has been abducted, wrongfully conceals
or confines such person is guilty of a felony and shall be punished in the same manner as if he had
kidnapped or abducted such person with the same intention or knowledge, or for the same purpose, as that
with or for which he conceals or detains such person in confinement.

Kidnapping or abducting child under fourteen years with intent to steal from its person
Any person who kidnaps or abducts any child under the age of fourteen years with the intention of taking
dishonestly any movable property from the person of such child is guilty of a felony and is liable to
imprisonment for seven years.

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Punishment for wrongful confinement
Whoever wrongfully confines any person is guilty of a misdemeanor and is liable to imprisonment for
one year or to a fine of fourteen thousand shillings.

Unlawful compulsory labor

Any person who unlawfully compels any person to labor against the will of that person is guilty of a
misdemeanor.

Offences under this Part

Where it appears that any of the offences specified under this Part is committed for the purpose of
exploitation, the person committing the offence shall be charged with the appropriate offence as specified
in the Counter Trafficking in Persons Act.

Summary of Punishments
a. Punishment for abduction and kidnapping-imprisonment for seven years.
b. Kidnapping or abducting in order to murder-imprisonment for ten years.
c. Kidnapping or abducting with intent to confine-imprisonment for seven years.
d. Kidnapping or abducting in order to subject to grievous harm, slavery, etc.-imprisonment for ten
years.
e. Kidnapping or abducting child under fourteen years with intent to steal from its person-
imprisonment for seven years.
f. Punishment for wrongful confinement-imprisonment for one year or to a fine of fourteen
thousand shillings.
g. Unlawful compulsory labour- punished as per sec 36 pc

OFFENCES AGAINST PUBLIC ORDER AND UNLAWFUL ASSEMBLY

78. DEFINITION OF UNLAWFUL ASSEMBLY AND RIOT

1) When three or more persons assemble with intent to commit an offence, or, being assembled with
intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the
neighbourhood reasonably to fear that the persons so assembled will commit a breach of the peace, or will
by such assembly needlessly and without any reasonable occasion provoke other persons to commit a
breach of the peace, they are an unlawful assembly.

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2) It is immaterial that the original assembling was lawful if, being assembled; they conduct themselves
with a common purpose in such a manner as aforesaid.

(3) When an unlawful assembly has begun to execute the purpose for which it assembled by a breach of
the peace and to the terror of the public, the assembly is called a riot, and the persons assembled are said
to be riotously assembled.

79. Punishment of unlawful assembly

Any person who takes part in an unlawful assembly is guilty of a misdemeanour and is liable to
imprisonment for one year.

80. Punishment of riot

Any person who takes part in a riot is guilty of a misdemeanour.

81. Proclamation for rioters to disperse

(1) Any administrative officer or magistrate, or, in his absence, any gazetted officer or inspector of the
Kenya Police Force or any commissioned officer in the military forces in Kenya, in whose view twelve or
more persons are riotously assembled, or who apprehends that a riot is about to be committed by twelve
or more persons assembled within his view, may make or cause to be made a proclamation, in such form
as he thinks fit, commanding the rioters or persons so assembled to disperse peaceably.

92. Affray

Any person who takes part in a fight in a public place is guilty of a misdemeanour and is liable to
imprisonment for one year

94. Offensive conduct conducive to breaches of the peace

(1) Any person who in a public place or at a public gathering uses threatening, abusive or insulting words
or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be
occasioned is guilty of an offence and is liable to a fine not exceeding five thousand shillings or to
imprisonment for a term not exceeding six months or to both.

(2) In this section, “public gathering” means—

(a) any meeting, gathering or concourse of ten or more persons in any public place; or

(b) any meeting or gathering which the public or any section of the public or more than fifty persons are
permitted to attend or do attend, whether on payment or otherwise; or

(c) any procession in, to or from a public place.

95. Threatening breach of the peace or violence

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(1) Any person who—

(a) uses obscene, abusive or insulting language, to his employer or to any person placed in authority over
him by his employer, in such a manner as is likely to cause a breach of the peace; or

(b) brawls or in any other manner creates a disturbance in such a manner as is likely to cause a breach of
the peace, is guilty of a misdemeanour and is liable to imprisonment for six months.

(2) Any person who—

(a) with intent to intimidate or annoy any person, threatens to break or injure a dwelling-house; or

(b) with intent to alarm any person in a dwelling-house, discharges a loaded firearm or commits any
other breach of the peace, is guilty of a misdemeanour and is liable to imprisonment for three years, or, if
the offence is committed in the night, to imprisonment for four years.

96. Incitement to violence and disobedience of the law

Any person who, without lawful excuse, the burden of proof whereof shall lie upon him, utters, prints or
publishes any words, or does any act or thing, indicating or implying that it is or might be desirable to do,
or omit to do, any act the doing or omission of which is calculated—

(a) to bring death or physical injury to any person or to any class, community or body of persons; or

(b) to lead to the damage or destruction of any property; or

(c) to prevent or defeat by violence or by other unlawful means the execution or enforcement of any
written law or to lead to defiance or disobedience of any such law, or of any lawful authority, is guilty of
an offence and is liable to imprisonment for a term not exceeding five years.

OFFENCES RELATING TO PROPERTY

THEFT AND ALLIED OFFENCES

AUTHORITY: sections 268- 284 of the penal code.

DEFINITION OF STEALING – SEC. 268

Any person who;-Fraudulently and without claim of right takes anything capable of being stolen or
fraudulently converts it to the use of any person other than the general or special owner thereof any
property – is said to steal that thing or property.

FRAUDULENTLY INTENTS

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A person is said to deal with anything fraudulently (dishonestly) if he does so with any of the following
intents;
a) An intent to permanently deprive the general owner of the thing off it, e.g.
‘A’ takes ‘B’s pen and goes with it for good, not intending to return it.
b) Intent to use the thing as a pledge of security.
Example: ‘A’ wants to borrow money from ‘B’. ‘B’ is not willing to give money without an assurance
that the money will be refunded. So ‘A’ takes ‘C’s money and gives it to B as the required assurance. A
will be deemed to have dealt with the radio fraudulently.
c) Intent to part with it on a condition as to its return which the person taking or converting it may be
unable to perform.

Example: ‘A’ borrows book from ‘B’ which gets lost. ‘B’ wants his book back. Since he has lost the
book, he goes back to c and borrows another book the same as the one which was given to him by ‘B’.He
gives it to ‘B” pretending that it is the one which was given to him by “B”. So, ‘A’ will be decided to
have dealt fraudulently with the book of c since he may not be able to perform the act of returning it to
‘C’.

d) Intent to deal with the thing in a manner that it cannot be returned in the condition it was at time of
taking or conversion.

Example:Kamau takes suit to Onyango’s dry cleaner for cleaning. Onyango cleans it and puts it on to
attend a party. Onyango will have dealt with the suit fraudulently.

e) In the case of money, intent to use it at the will of the person who takes or converts it although he
may intend afterwards to repay the amount to the owner.

Example: Constable Mwaura takes seven shillings which is prisoner’s property in order to buy a packet
of cigarettes from the police canteen. He intends to return it the following day. He will have dealt with the
money fraudulently since he used it at his will. The intent to repay the money will not absolve him from
criminal responsibility

THINGS CAPABLE OF BEING STOLEN

1) Ever inanimate thing whatever which is the property of any person and which is movable e.g., a
pen
2) Every inanimate thing which is property of any person and which is capable of being stolen as
soon as it becomes movable although it is made movable in order to steal it e.g., car windscreen.
3) Every tamed animal, whether tamed by nature or wild by nature and subsequently tamed, which
is the property of any person e.g., horse, donkey, cat, etc.
4) Animals wild by nature of a kind which are not ordinarily found in a condition of natural liberty
in Kenya, which are property of any person and which are usually kept in a state of confinement

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 are capable of being stolen when they are actually in confinement or have escaped from
confinement, but not at any other time e.g., Australian kangaroo, polar bear, llama etc.
5) Animals wild by nature which are ordinarily found in a condition of natural liberty in Kenya ,
which are the property of any person are capable of being stolen while they are in a confinement,
and while they are being actually pursued after escaping from confinement, but not at any other
time e.g., lion, elephant etc.
6) Wild animals in their enjoyment of their natural liberty are not capable of being stolen, but their
dead bodies are capable of being stolen e.g., a leopard carcass
7) Everything produced by or forming part of the body of an animal capable of being stolen is
capable of being stolen.
8) Information is capable of being stolen.

Special cases
1) When a factor or agent pledges or gives a lien on any goods or document of title to goods
entrusted to him for the purpose of sale or otherwise for any sum of money not greater than the
amount due to him from his principal at the time of pledging or giving the lien, together with the
amount of any bill of exchange or promissory note accepted or made by him for or on account of
his principal, such dealing with the goods or document of title is not deemed to be theft.
2) When a servant, contrary to his master’s orders, takes from his possession any food in order that
it may be given to an animal belonging to or in the possession of his master, such taking is not
deemed to be theft.

Stealing By Clerks and Servants-Sec 281 Penal Code

If the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the
possession of the offender on account of his employer, he is liable to imprisonment for seven years.

Stealing by Directors – Sec. 282 Penal Code

If the offender is a director or officer of a corporation or company and the thing stolen is the property of
the corporation or company, he is liable to imprisonment for 7 years.

NOTE: when any person takes or converts anything capable of being stolen, under such circumstances as
would otherwise amount to theft, it is immaterial that he is a director or officer of a corporation or
company or society who are owners of it.

Stealing By Agents- Sec. 283. Penal Code

If the thing stolen is any of the following, that is to say-;

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(a) Property which has been received by the offender with a power of the attorney- general for the
disposition thereof;
Example: of a court broker who has having received authority from court to confiscate some property,
later after confiscation steals the goods.
(b) Property which has been entrusted to the offender either alone or jointly with any other person for
him to retain in safe custody or to, apply, pay or deliver for any purpose or to any person, the same or
any part thereof or proceeds thereof.
(c) Property which has been received by the offender either alone or jointly with any other person for or
on account of any other person.
(d) The whole or part of the proceeds arising from any other disposition of any property which has been
received by the offender by virtue of a power of attorney for such disposition, such power of attorney
generally having been received by the offender with a direction that such proceeds should be applied
to any purpose or paid to any person specified in the direction, the offender is liable to imprisonment
for seven years.

Stealing by tenants’ or lodgers sec- 284 Penal Code

If the thing stolen is a fixture or chattel to the offender to be used by him in a house or lodging, and its
value exceeds one hundred shillings, he is liable to imprisonment for seven years.

Comment: this offence is common in hotels and lodgings where a lodger steals things like bed sheets,
blankets, pillows etc. belongs to the hotel

OFFENCES ALLIED TO STEALING (CHAPTER XXVII OF THE PENAL CODE)

286. Concealing registers

Any person who, with intent to defraud, conceals or takes from its place of deposit any register which is
authorized or required by law to be kept for authenticating or recording the title to any property, or for
recording births, baptisms, marriages, deaths or burials, or a copy of any part of any such register which is
required by law to be sent to any public office, is guilty of a felony and is liable to imprisonment for ten
years.

287. Concealing wills

Any person who, with intent to defraud, conceals any testamentary instrument, whether the testator is
living or dead is guilty of a felony and is liable to imprisonment for seven years

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288. Concealing deeds
Any person, who, with intent to defraud, conceals the whole or part of any document which is evidence of
title to any land or estate in land, is guilty of a felony and is liable to imprisonment for three years.

289. Killing animals with intent to steal

Any person, who kills any animal capable of being stolen with intent to steal the skin or carcass, or any
part of the skin or carcass, is guilty of an offence and is liable to the same punishment as if he had stolen
the animal.

290. Severing with intent to steal

Any person who makes anything movable with intent to steal it is guilty of an offence and is liable to the
same punishment as if he had stolen the thing after it had become movable.

291. Fraudulent disposition of mortgaged goods

(1) Any person who, being the mortgagor of mortgaged goods, removes or disposes of the goods without
the consent of the mortgagee, and with intent to defraud, is guilty of a misdemeanour.
(2) In this section, “mortgaged goods” includes any goods and chattels of any kind, and any animals, and
any progeny of any animals, and any crops or produce of the soil, whether growing or severed, which are
subject for the time being, by virtue of any instrument or any written law, to a valid charge or lien by way
of security for any debt or obligation.

292. Fraudulently dealing with minerals in mines

Any person, who takes, conceals or otherwise disposes of any ore or any metal or mineral in or about a
mine, with intent to defraud any person, is guilty of a felony and is liable to imprisonment for five years.

293. Fraudulent appropriation of power

Any person who fraudulently abstracts or diverts to his own use or to the use of any other person any
mechanical, illuminating or electrical power derived from any machine, apparatus or substance, the
property of another person, is guilty ofa felony and is liable to imprisonment for five years.

294. Unlawful use of vehicles, animals, etc.

Any person who unlawfully and without colour of right, but not so as to be guilty of stealing, takes or
converts to his own use or to the use of any other person any draught or riding animal or any vehicle or
cycle, however propelled, or any vessel, is guilty of a misdemeanour and is liable to imprisonment for six
months or to a fine of three thousand shillings or to both.

275. General punishment for theft

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Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable,
unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is
provided, to imprisonment for three years.

BURGLARY, HOUSE BREAKING AND SIMILAR OFFENCES

BURGLARY AND HOUSE BREAKING

Authority section 303 -311

1. Definitions of breaking and entering section 303: Penal Code

Any person who breaks any part, whether external or internal, of a building, or opens by: -Unlocking,
Pulling, Pushing, Lifting or any other means whatever any; Door, Window, Shutter, Cellar flap or any
other thing intended to close or cover an opening in a building or an opening giving passage from one part
of a building to another is deemed to break that building.

1. When entry is deemed

A person is deemed to have entered a building as soon as any part of his body or any part of an
instrument used by him is within the building. This caters for incident of pole fishing.

2. Types of breakings
There are two types of breakings: -

a) Actual breaking – This is where an offender actually breaks into a building as defined above.

b) Constructive breaking –This falls under four categories: -

i) THREATS: This is where an offender uses threats in order to gain entrance into a building.
Example: Omollo threatens a young girl who was left with the keys to her parent’s house that
if she does not open for him, he will beat her. So fearing the beating, she opens the door for
Omollo. In this case, Omollo is deemed to have broken into the house.

ii) ARTIFICE: Artifice means trick. Here the offender lures the occupier of a building to
believe that the offender ought to be allowed into the building.
Example: Kamau pretending to be a meter reader with Kenya Power and Lighting Company,
Nyeri goes to the house of Jane and introduces himself as a meter reader. Jane believing him
allows him into her house where Kamau steals her money.

iii) COLLUSION: This is an agreement between an inmate of a building and the offender.
Example: - Samwel is a watchman in a factory where tyres are manufactured. Samwel on

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 payment of some money agrees with the thieves to leave the door open for the thieves to
come and steal tyres.

iv) APERTURE: - An aperture is an opening in a building. In this context, the aperture is not
intended to be ordinarily used as a means of entrance. So if a person entered through such an
opening, he will be deemed to have broken into the building.

Examples: Kamau entered into Mwangi’s house through the chimney.

House breaking and burglary section 304 Penal Code

1. Any person who Breaks and enters any building, tent or vessel used as a human dwelling with intent
to commit a felony therein, or having entered any building, tent or vessel used as a human dwelling
with intent to commit a felony breaks out, thereof, is guilty of the felony termed housebreaking and is
liable to imprisonment for seven years.

2. If the offence is committed in the night, it is termed burglary, and the offender is liable to
imprisonment for ten years.
NB: The difference between the two offences is the time when the offence is committed and the sentence,
which may be imposed.

OTHER OFFENCES RELATED TO HOUSE BREAKING AND BURGLARY

Entering a building with intent to commit a felony Section 305 Penal Code

This is where the offender does not break any part of the building in order to enter. All what happens is
that the offender finds the door open and enters through it with the intent to commit a felony therein. The
punishment is imprisonment for five years.

If the offence is committed in the night, the offender is liable to imprisonment for seven years.

Breaking into building and committing felony: Section 306 Penal Code

Any person who—

(a) breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion,
club, factory or workshop, or any building belonging to a public body, or any building or part of a
building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house
and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony
therein; or

(b) Breaks out of the same having committed any felony therein, is guilty of a felony and is liable to
imprisonment for seven years.

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Breaking into building with intent to commit felony: Section 307 Penal Code

Any person who breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage,
pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of
a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house
and occupied with it but is not part of it, or any building used as a place of worship, with intent to commit
a felony therein, is guilty of a felony and is liable to imprisonment for five years.

Preparations to commit felony: Section 308 Penal Code

(1) Any person found armed with any dangerous or offensive weapon in circumstances that indicate that
he was so armed with intent to commit any felony is guilty of a felony and is liable to imprisonment of
not less than seven years and not more than fifteen years

(2). Any person who, when not at his place of abode, has with him any article for use in the course of or
in connexion with any burglary, theft or cheating is guilty of a felony, and where any person is charged
with an offence under this subsection proof that he had with him any article made or adapted for use in
committing a burglary, theft or cheating shall be evidence that he had it with him for such use.

(3) Any person who is found—

(a) having his face masked or blackened, or being otherwise disguised, with intent to commit a felony;
or
(b) in any building whatever by night with intent to commit a felony therein; or
(c) in any building whatever by day with intent to commit a felony therein, having taken precautions to
conceal his presence, is guilty of a felony.
(4) Any person guilty of a felony under subsection (2) or (3) is liable to imprisonment with hard labour
for five years or, if he has previously been convicted of a felony relating to property, to such
imprisonment for ten years.

Forfeiture of housebreaking instruments: Section 310 Penal Code

When any person is convicted of an offence under this Chapter, the court may order that any dangerous or
offensive weapon or instrument of housebreaking carried or used in connexion with any such offence
shall be forfeited.

Forfeiture of aircraft, vessel or vehicle, and penalty for interfering with aircraft, vessel or vehicle
when detained: Section 311 Penal Code

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(1) Where any person is convicted of an offence, or of an attempt to commit an offence or of counselling
or procuring the commission of an offence, under the provisions of this Chapter, or of Chapter XXVI or
Chapter XXVIII or section 322, and the court by which the person is convicted finds that any aircraft,
vessel or vehicle was used or employed by that person in the commission or to facilitate the commission
of the offence of which he is convicted, the aircraft, vessel or vehicle may be forfeited.

(2) An aircraft, vessel or vehicle which is liable to forfeiture under subsection (1) shall be dealt with in
accordance with section 389A of the Criminal Procedure Code (Cap. 75).

HANDLING STOLEN GOODS

.
HANDLING PROPERTY STOLEN OR UNLAWFULLY OBTAINED AND LIKE OFFENCES
(CHAPTER XXXI- PENAL CODE)

Handling of stolen goods: Section 322 Penal Code

A person handles stolen goods if (otherwise than in the course of stealing) knowing or having reason to
believe them to be stolen goods if he: - Dishonestly receives or retains the goods or, Dishonestly
undertake, or assists in their; or, Retention, Removal, Disposal or Realization by or for the benefit of
another person or, if he so arranges to do so.

Proof Of Knowledge (knowledge of possession/ handling stolen goods)

Is normally inferred from surrounding circumstances such as;
 Purchasing goods at unreasonably low prices.
 Denial of possession of goods before they are actually found.
 The fact that there is no receipt for the goods.
 When goods are hidden in some way.
 When goods are received outside business hours.
 The goods found not being normally stocked by the purchaser or in his line of business.
 Failure to enter particulars of goods in his business books
 Proof of the receiver having information of the goods being subject of an offence (i.e. having
connection with an offence).

When Goods Cease To Be Stolen Good

Goods shall be regarded as having ceased to be stolen goods if: -
 They have been restored to the person from whom they were stolen.
 They have been restored to other lawful possession or custody e.g. police.

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 After that person and any other person claiming through him have otherwise ceased as regards those
goods to have any right to restitution in respect of the stealing.

OTHER RELATED OFFENCES

1. Person suspected of having or conveying stolen property: Section 323 Penal Code
Any person who is charged with conveying or having in his possession, or keeping in any building or
place, whether open or enclosed, any stores so marked, which may be reasonably suspected of having
been stolen or unlawfully obtained and who does not give an account to the satisfaction of the court how
he came by the same is guilty of a a misdemeanor.
2. Marking and possession of public stores –Section 324 (1) Penal Code
Any person, who is charged with conveying or having in his possession, or keeping in his building or
place, whether open or enclosed, any stores so marked (any stores under the control of any branch or
department of the government of Kenya or Kenya railways corporation or Kenya ports authority), which
may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an
account to the satisfaction of the court how he came by the same, is guilty of a misdemeanor.

3. Tracing possession - Section 325 (1) Penal Code

If any person brought or appearing before a court declares that he received any such thing from some
other person, or that he was employed as a carrier, agent or servant to convey the same for some other
person, the court may cause every such other person, and also other person through whose possession any
such thing shall previously have passed to be brought before it.

NB: for the purposes of this section, the possession of a carrier, agent or servant shall be to be the
possession of the person who shall have employed such carrier, agent or servant to convey the same.

4. Receiving goods stolen outside Kenya- Section (326) Penal Code

Any person who, without lawful excuse, receives or has in his possession any property so stolen or
obtained outside Kenya, is guilty of an offence of the like degree (whether felony or misdemeanor) and is
liable to imprisonment for seven years.

Punishment:
A person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for
a term not exceeding fourteen years.
Note: Where 12the punishment is not stated, Sec 36 Pc shall apply.

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GENERAL PUNISHMENT FOR MISDEMEANOURS: Section 36 Penal Code: When in this Code
no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment
for a term not exceeding two years or with a fine, or with both.

PENAL CODE

PERSONATION
AUTHORITY SECTION 382-387

SECTION 382-PERSONATION IN GENERAL

(1) Any person who, with intent to defraud any person, falsely represents himself to be some other
person, living or dead is guilty of a misdemeanor.

INGREDIENTS OF PERSONATION
(a) Intent to defraud
(b) False representation
(c) Any person, living or dead

OFFENCES ALLIED TO PERSONATION

SECTION 383-FALSELY ACKNOWLEDGING DEEDS, RECOGNIZANCE, E.T.C

(1) Any person who without lawful authority or excuse, the proof of which lies on him, makes in the
name of any other person before any court or person lawfully authorized to take such an
acknowledgement of deed or other instrument is guilty of a misdemeanor
A ‘deed’ means a document which transfers an interest in property, e.g. a land title deed.

SECTION 384-PERSONATION OF A PERSON NAMED IN A CERTIFICATE

(1) Any person who utters any document which has been issued by lawful authority to another person,
whereby that other person is certified;
(a) to be a person possessed of any qualification recognized by law for any purpose; or
Example: a person personating an advocate
(b) to be entitled to exercise any profession, trade or business.
Example: a person personating an auctioneer
(c) to be entitled to any right or privilege
Example: a person personating an airport worker in order to gain entry into restricted areas which are out
of bound to such person.
(d) to enjoy any rank or status

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Example: a person personating a policeman by using a police appointment card and falsely represents
himself to be the person named in the document, Is guilty of an offence

SECTION 385-LENDING, ETC CERTIFICATE FOR PERSONATION

Any person who, being a person to whom any document has been issued by any lawful authority,
whereby he is certified to be a person possessed of any qualification recognized by law for any purpose,
or to be the holder of any office, or to be entitled to exercise any profession, trade or business, or to be
entitled to any right or privilege, or to enjoy any rank or status, sells, gives or lends the document to
another person with intent that, that other person may represent himself to be the person named therein, Is
guilty of a misdemeanor

SECTION 386-PERSONATION OF PERSON NAMED IN TESTIMONIAL

Any person, who, for purpose of obtaining any employment, utters any document of the nature of a
testimonial of character given to another person, Is guilty of a misdemeanor and is liable to imprisonment
for one year.

SECTION 387-LENDING, ETC TESTIMONIAL FOR PERSONATION

Any person who, being a person to whom any such document as mentioned in section 386 has been
given, gives, or lends such document to another person with intent that the other person may utter such
document for the purpose of obtaining employment, Is guilty of a misdemeanor

ROBBERY AND ALLIED OFFENCES

AUTHORITY - SEC 295-302

INTRODUCTION:
Of all the different types of offences handled by police officers, robbery (forcible theft from a person), is
considered to be one of the most dangerous. This is because the suspect could possibly be armed with
some type of weapon and, not only poses a threat to the victim, but to the responding police officer as
well.

SECTION 295:- DEFINITION OF ROBBERY

Any person who steals anything, and, at or immediately before or immediately after the time of stealing
it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing

37
stolen or to prevent or overcome resistance to its being stolen or retained is guilty of a felony called
robbery.

TYPES OF ROBBERY
1. Robbery
2. Robbery with violence
3. Attempted robbery
4. Attempted robbery with violence

ROBBERY
Brief explanation
Robbery is the use or threats to use actual violence which amounts to: Pulling, Pushing, Grabbing, and
grasping the person or his property.
 The person to whom violence is directed need not to the owner of the property.
 Mere threat to use violence is sufficient to constitute robbery (use of threatening words and gestures).
 In a case of robbery stealing must be complete
NB: In Robbery, Actual violence is used as opposed to Robbery with violence where Personal violence
is used.

Punishment
Any person who commits the felony of robbery (sec 296 (1) PC) is liable to imprisonment for fourteen
years.

ROBBERY WITH VIOLENCE SEC 296 (2) PC

If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with
one or more other person or persons, or if, at or immediately before or immediately after the time of the
robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced
to death.

Explanation
This is an aggravated form of robbery. There must be one or more of the following ingredients:-
(i)If the offender is one he must wound, beat, strike or use any other personal violence to any person.
(ii)If the offender is one he must be armed with any dangerous or offensive weapon or instrument, or
(iii)If the offender is in company with one or more other person or persons, He shall be sentenced to
death.

297. (1) Attempted robbery

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(1) Any person who assaults any person with intent to steal anything, and, at or immediately before or
immediately after the time of the assault, uses or threatens to use actual violence to any person or property
in order to obtain the thing intended to be stolen, or to prevent or overcome resistance to its being stolen,
is guilty of a felony and is liable to imprisonment for seven years.

297. (2) Attempted robbery with violence

(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with
one or more other person or persons, or if, at or immediately before or immediately after the time of the
assault, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced
to death.

298. Assault with intent to steal

Any person who assaults any person with intent to steal anything is guilty of a felony and is liable to
imprisonment for five years.

299. Demanding property by written threats

Any person who, with intent to extort or gain anything from any person, and knowing the contents of the
writing, causes any person to receive any writing demanding anything from any person without
reasonable or probable cause, and containing threats of any injury or detriment of any kind to be caused to
any person, either by the offender or any other person, if the demand is not complied with, is guilty of a
felony and is liable to imprisonment for fourteen years.

302. Demanding property with menaces

Any person who, with intent to steal any valuable thing, demands it from any person with menaces or
force is guilty of a felony and is liable to imprisonment for ten years.

FALSE PRETENCES
312. Definition of false pretence

Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which
representation is false in fact, and which the person making it knows to be false or does not believe to be
true, is a false pretence.

313. Obtaining by false pretences

Any person who by any false pretence, and with intent to defraud, obtains from any other person anything
capable of being stolen, or induces any other person to deliver to any person anything capable of being
stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.

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315. Cheating

Any person who by means of any fraudulent trick or device obtains from any other person anything
capable of being stolen, or induces any other person to deliver to any person anything capable of being
stolen or to pay or deliver to any person any money or goods or any greater sum of money or greater
quantity of goods than he would have paid or delivered but for such trick or device, is guilty of a
misdemeanour and is liable to imprisonment for three years.

316. Obtaining credit, etc., by false pretences

Any person who—

(a) in incurring any debt or liability, obtains credit by any false pretence or by means of any other fraud;
or

(b) with intent to defraud his creditors or any of them, makes or causes to be made any gift, delivery or
transfer of or any charge on his property; or

(c) with intent to defraud his creditors or any of them, conceals, sells or removes any part of his property,
after or within two months before the date of any unsatisfied judgment or order for payment of money
obtained against him, is guilty of a misdemeanour and is liable to imprisonment for one year.

316A. ISSUING BAD CHEQUES

(1) Any person who draws or issues a cheque on an account is guilty of a misdemeanour if the person—

(a) knows that the account has insufficient funds;

(b) knows that the account has been closed; or

(c) has previously instructed the bank or other institution at which the account is held not to honour the
cheque.

(2) Subsection (1)(a) does not apply with respect to a post-dated cheque.

316B. Certain felonies by banks or other institutions

(1) A bank or other institution is guilty of a felony if it—

(a) with intent to conceal its true financial position, holds a cheque or similar instrument that cannot be
settled for the amount due thereon;

(b) assists a person to obtain money or credit on the basis of a cheque drawn or issued in the
circumstances described in section 316A(1); or

40
(c) with intent to defraud, facilitates the transfer of money to the holder of a false cheque or other
instrument.

(2) A bank or other institution that is guilty of a felony under subsection (1) is liable to a fine not
exceeding five hundred thousand shillings.

(3) Any person who, by deceit or any other fraudulent means, assists a person to obtain anything on the
basis of a cheque drawn or issued in the circumstances described in subsection (1) is guilty of a
misdemeanour.

(4) A person who is guilty of a misdemeanour under this section is liable to a fine not exceeding fifty
thousand shillings, or to imprisonment for term not exceeding one year, or to both.

OFFENCES CAUSING INJURY TO PROPERTY

332. ARSON
Any person who wilfully and unlawfully sets fire to—

(a) any building or structure whatever, whether completed or not; or

(b) any vessel, whether completed or not; or

(c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel; or

(d) a mine, or the workings, fittings or appliances of a mine, is guilty of a felony and is liable to
imprisonment for life.

333. Attempts to commit arson

Any person who—

(a) attempts unlawfully to set fire to any such thing as is mentioned in section 332; or

(b) wilfully and unlawfully sets fire to anything which is so situated that any such thing as is mentioned in
that section is likely to catch fire from it, is guilty of a felony and is liable to imprisonment for fourteen
years.

334. Setting fire to crops, etc.

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Any person who wilfully and unlawfully sets fire to, cuts down, destroys or seriously or permanently
injures—

(a) a crop of cultivated produce, whether standing, picked or cut; or

(b) a crop of hay or grass under cultivation, whether the natural or indigenous product of the soil or not,
and whether standing or cut; or

(c) any standing trees, saplings or shrubs, whether indigenous or not, under cultivation, is guilty of a
felony and is liable to imprisonment for fourteen years.

338. Injuring animals

Any person who wilfully and unlawfully kills, maims or wounds any animal capable of being stolen is
guilty of a felony and is liable, if the animal is an animal such as is referred to in section 278, to
imprisonment for fourteen years, and, in any other case, to imprisonment for three years.

339. MALICIOUS INJURIES TO PROPERTY

(1) Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence,
which, unless otherwise stated, is a misdemeanour, and is liable, if no other punishment is provided, to
imprisonment for five years.

(2) If the property in question is a dwelling-house or a vessel, and the injury is caused by the explosion of
any explosive substance, and if—

(a) any person is in the dwelling-house or vessel; or

(b) the destruction or damage actually endangers the life of any person, the offender is guilty of a felony
and is liable to imprisonment for life.

FORGERY AND ALLIED OFFENCES

345. Definition of forgery is the making of a false document with intent to defraud or to deceive.

347. Making a false document;

Any person makes a false document who—

(a) makes a document purporting to be what in fact it is not; or

(b) alters a document without authority in such a manner that if the alteration had been authorized it
would have altered the effect of the document; or

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(c) introduces into a document without authority whilst it is being drawn up matter which if it had been
authorized would have altered the effect of the document; or

(d) signs a document—

(i) in the name of any person without his authority, whether such name is or is not the same as that of the
person signing; or

(ii) in the name of any fictitious person alleged to exist, whether the fictitious person is or is not alleged to
be of the same name as the person signing; or

(iii) in the name represented as being the name of a different person from that of the person signing it and
intended to be mistaken for the name of that person; or

(iv) in the name of a person personated by the person signing the document, provided that the effect of
the instrument depends upon the identity between the person signing the document and the person whom
he professes to be;

(e) fraudulently—

(i) makes or transmits any electronic record or part of an electronic record;

(ii) affixes any digital signature on any electronic record; or

(iii) makes any mark denoting the authenticity of a digital signature, with the intention of causing it to be
believed that such record, or part of document, electronic record or digital signature was made, signed,
executed, transmitted or affixed by or by the authority of a person by whom or whose authority he knows
that it was not made, signed, executed or affixed;

(f) without lawful authority or fraudulently, by cancellation or otherwise, alters a document or an

electronic record in any material part thereof, after it has been made, executed or affixed with a digital
signature either by himself or by any other person, whether such person is living or dead at the time of
such alter;

(g) fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to
affix his digital signature on any electronic record knowing that such person by reason of deception
practised upon him, does not know the contents of the document or electronic record or the nature of the
alteration

348. Intent to defraud

An intent to defraud is presumed to exist if it appears that at the time when the false document was made
there was in existence a specific person ascertained or unascertained capable of being defrauded thereby,

43
and this presumption is not rebutted by proof that the offender took or intended to take measures to
prevent such person from being defrauded in fact, nor by the fact that he had or thought he had a right to
the thing to be obtained by the false document.

PUNISHMENT FOR FORGERY

349. General punishment for forgery

Any person who forges any document or electronic record is guilty of an offence which, unless otherwise
stated, is a felony and he is liable, unless owing to the circumstances of the forgery or the nature of the
thing forged some other punishment is provided, to imprisonment for three years.

353. Uttering false documents

Any person who knowingly and fraudulently utters a false document is guilty
of an offence of the same kind and is liable to the same punishment as if he had
forged the thing in question.

OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE

108. Perjury and subornation of perjury

(a) Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding,
knowingly gives false testimony touching any matter which is material to any question then pending in
that proceeding or intended to be raised in that proceeding, is guilty of the misdemeanour termed perjury.

(b) It is immaterial whether the testimony is given on oath or under any other sanction authorized by law.

(c) The forms and ceremonies used in administering the oath or in otherwise binding the person giving the
testimony to speak the truth are immaterial, if he assent to the forms and ceremonies actually used.

(d) It is immaterial whether the false testimony is given orally or in writing.

(e) It is immaterial whether the court or tribunal is properly constituted, or is held in the proper place or
not, if it actually acts as a court or tribunal in the proceeding in which the testimony is given.

(f) It is immaterial whether the person who gives the testimony is a competent witness or not, or whether
the testimony is admissible in the proceeding or not.

(2) Any person who aids, abets, counsels, procures or suborns another person to commit perjury is guilty
of the misdemeanour termed subornation of perjury.

109. False statements by interpreters

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If any person, lawfully sworn as an interpreter in a judicial proceeding, wilfully makes a statement
material in the proceeding which he knows to be false, or does not believe to be true, he shall be guilty of
perjury.

110. Punishment of perjury and subornation of perjury

Any person who commits perjury or suborns perjury is liable to imprisonment for seven years.

111. Evidence of perjury or subornation of perjury

A person cannot be convicted of committing perjury or of subornation of perjury solely upon the evidence
of one witness as to the falsity of any statement alleged to be false

113. Fabricating evidence

Any person who, with intent to mislead any tribunal in any judicial proceeding—

(a) Fabricates evidence by any means other than perjury or subornation of perjury; or

(b) Knowingly makes use of such fabricated evidence, is guilty of a misdemeanour and is liable to
imprisonment for seven years.

116. Destroying evidence

Any person who, knowing that any book, document or thing of any kind whatsoever is or may be required
in evidence in a judicial proceeding, wilfully removes or destroys it or renders it illegible or
undecipherable or incapable of identification, with intent thereby to prevent it from being used in
evidence, is guilty of a misdemeanour.

121. Offences relating to judicial proceedings

(1) Any person who—

(a) within the premises in which any judicial proceeding is being had or taken, or within the precincts of
the same, shows disrespect, in speech or manner, to or with reference to such proceeding, or any person
before whom such proceeding is being had or taken; or

(b) having been called upon to give evidence in a judicial proceeding, fails to attend, or having attended
refuses to be sworn or to make an affirmation, or, having been sworn or affirmed, refuses without lawful
excuse to answer a question or to produce a document, or remains in the room in which such proceeding
is being had or taken, after the witnesses have been ordered to leave such room; or

45
(c) causes an obstruction or disturbance in the course of a judicial proceeding; or

(d) while a judicial proceeding is pending, makes use of any speech or writing misrepresenting such
proceeding or capable of prejudicing any person in favour of or against any parties to such proceeding, or
calculated to lower the authority of any person before whom such proceeding is being had or taken; or

(e) publishes a report of the evidence taken in any judicial proceeding which has been directed to be held
in private; or

(f) attempts wrongfully to interfere with or influence a witness in a judicial proceeding, either before or
after he has given evidence, in connexion with such evidence; or

(g) dismisses a servant because he has given evidence on behalf of a certain party to a judicial
proceeding; or

(h) wrongfully retakes possession of land from any person who has recently obtained possession by a writ
of court; or

(i) commits any other act of intentional disrespect to any judicial proceedings, or to any person before
whom such proceeding is being had or taken, is guilty of an offence and is liable to imprisonment for
three years

(2) When any offence under any of paragraphs (a), (b), (c), (d) and (i) of subsection (1) is committed in
view of the court, the court may cause the offender to be detained in custody, and at any time before the
rising of the court on the same day may take cognizance of the offence and sentence the offender to a fine
not exceeding one thousand four hundred shillings or in default of payment to imprisonment for a term
not exceeding one month.

(3) The provisions of this section shall be deemed to be in addition to and not in derogation from the
power of the High Court to punish for contempt of court

ATTEMPTS, CONSPIRACIES AND ACCESSORIES AFTER THE FACT

AUTHORITY: - SEC 388-398 OF THE PENAL CODE CAP 63 LAWS OF KENYA

ATTEMPTS (Sec 388):-

Def:- when a person intending to commit an offence

- Begins to carry out his intention in a manner,

- Which will enable the completion of the offence and,

46
- Makes his intention obvious (Overt Act) but,
- Does not complete/fulfill his intention to the extent of completing the offence, he is deemed to have
attempted to commit the offence.

Points to consider:-

 There must be an intention formed by the accused to commit the crime (men’s rea)
 Some overt act (obvious act) of such a kind that was intended to form a series of acts which
would constitute the actual commission of the offence if it were not interrupted. (Actus –rea of
the accused manifested)
 The act (Actus-rea) must not be a mere preparation to commit the offence.
NB - It is immaterial except as regards punishment, whether the offender does all that is necessary on
his part for completing the commission of the offence.

- Or whether the complete fulfilment of his intention is prevented by circumstances

independent of his will.
- Or whether he desists of his own motion from the further execution of his intention.
- It is also immaterial that by reason of circumstances not known to the offender it is
impossible in fact to commit the offence.

Sec.389 Punishment for Attempted Felony or Misdemeanour:-

Any person who attempts to commit a felony or misdemeanour is guilty of an offence and is liable, if no
other punishment is provided, to one half of such punishment as may be provided for the offence
attempted. But if such offence is one punishable by death or life imprisonment, he shall be liable to
imprisonment for a term not exceeding 7 years.

CONSPIRACIES:-

Def: conspiracy is the agreement of two or more persons to do an unlawful act or do a lawful act by
unlawful means.

Conspiracy to Commit a felony (Sec 393):- Any person who conspires with another to commit any
felony or do any act in any part of the world which if done in Kenya would be a felony and which is an
offence under the laws in force in the place where it is proposed to be done is guilty of a felony.

Punishment: - Conspiracy to commit a felony attracts 7 years imprisonment where no other punishment
is provided or where the punishment for that felony is lesser then an equivalent punishment to the accused

Conspiracy to Commit a Misdemeanour (Sec 394):-

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Any person who conspires with another to commit a misdemeanour, or to do any act in any part of the
world which if done in Kenya would be a misdemeanour and which is an offence under the laws in force
in the place where it is proposed to be done is guilty of a misdemeanour.

Other Conspiracies (Sec 395):-

Any person who conspires with another to effect any of the following purposes: that is to say-

a. To prevent or excuse the enforcement of any written law or

b. To cause any injury to a person or reputation of any person or to depreciate the value of any
property of any person; or
c. To prevent or obstruct the free and lawful disposition of any property by the owner thereof for its
fair value; or
d. To injure any person in his trade or profession; or
e. To prevent or obstruct, by any means of any act or acts which if done by an individual person
would constitute an offence on his part, the free and lawful exercise by any person or his trade,
profession or occupation; or
f. To effect any unlawful purpose; or
g. To effect any lawful purpose by any unlawful means; is guilty of a misdemeanor

ACCESSORY AFTER THE FACT (SEC 396):-

1. 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.
2. 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 escape punishment, or by receiving and assisting in her
husband’s presence and his authority, another person who is guilty of an offence, the commission
of which her husband has taken part, in order to enable that person to escape punishment; nor
does a husband become an accessory after the fact to an offence which his wife is guilty by
receiving or assisting her in order to enable her to escape punishment.

Punishment to Accessories after the Fact to Felonies for 3 years

Punishments of Accessories after the Fact to Misdemeanor (Sec 398):-

Any person who becomes an accessory after the fact to a misdemeanor is guilty of a misdemeanor.

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