MOUNT KENYA UNIVERSITY SCHOOL OF LAW

CRIMINAL LAW 1
BLW 1202

GENERAL DEFENCES TO CRIMINAL RESPONSIBILITY

MERCY NAMBO BLAW/2017/63615

VALETINE MACHARIA BLAW/2017/62223
SHEILA WAMBUI BLAW/ 2017/62411
LUCY NJERI NJENGA BLAW/2017/63142
OLIVER TANGARA BLAW/2017/63855
LUCY WANGARI BLAW/2017/61991

SUBMITTED TO: MS WANJIRU KINITI

24TH FEBURARY, 2017

 INTRODUCTION

INSANITY

Defences in criminal law afford the suspect an escape from criminal responsibility on the
basis that his behaviour was excusable or justified and for that reason either the mens rea or
the actus reus element required of the offence was absent1.This essay seeks to discuss the
general defences to criminal liability:

A person who commits a crime while suffering from a disease of the mind may plead the
defence of insanity. As a general rule under section 11 of the penal code every person is
presumed to be of sound mind at any time that comes in question. The defence of insanity is
available if the accused person is able to prove that at the time of commission the offence he
was suffering from a disease of the mind and on account of insanity he, was incapable of
understanding that what he was doing was wrong2. In Joyce Mugure Andrew v republic of
Mombasa it was held , that the defence of insanity at section 12 is restricted to the time of
doing the act and does not extend to the time the accused person was charged and cautioned
nor does it cover the admissibility and inadmissibility of his confession. The burden of
proving the insanity is on the accused and the standard of proof required is on a balance of
probability3.

The definition of the defence of insanity is based on the MNaghten case. In this case the
defendant, Daniel MNaghten was charged with murder of the secretary to the prime minister
he raised the defence of insanity at the trail at the time of his arrest he told the police he came
to London to murderer the prime minister because he was told to do so the jury reached a
verdict of not guilty. On appeal to the House of Lords in order to determine what are the
standards of the defence of insanity. It was held in order to establish an insanity case it must
be proved that the accused was on such a defect of the disease of the mind that he did not
know the nature and quality of the act he was committing or if he did know he did not know
that what he was doing was wrong.4These rules are established under section 12 which
stipulates that a person is not criminally responsible for an act or omission if at the time of

1
William Musyoka,Criminal law (2015)105
2
Penal code cap 63
3
William Musyoka ,Criminal Law(2015) 106
4
MNaghten case(1843)10 Cl.& Fin.200
doing the act or making the omission is through any disease affecting the mind ,incapable of
understanding what he is doing ,or of knowing that he ought not to do the act or make the
omission ; but a person maybe 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 or
the other of the effects of above mentioned in reference to that act or omission5

Bona fide claim of right

Section 8 of the penal code provides that a person is not criminally liable in respect of an
offence relating to property, if the act done or omitted was done in an honest claim of right
without intention to defraud. In Oyat v Uganda five oxen strayed in the land of the appellant
and destroyed crops the appellant ceased them in his private pound there after the owner was
ordered to pay compensation to the appellant where upon the appellant released four of them
but retained one until the owner paid the compensation. The owner plead inability to pay
compensation and the appellant sold the ox. He was charged with theft of the ox. On appeal it
was held that that the appellant was entitled to lien over the ox until compensation was paid
by the owner. The appellant was also entitled to sell the ox to raise the amount for
compensation6.

Therefore to establish this defence the claim must be genuinely held, the belief must be one
of legal entitlement and not moral entitlement, the claim of right is not confined to a specific
property or bank notes but can also extend to the cases where what was taken was equivalent
value and the claim of right must be one that involve a belief as to right of the property of
another.

INTOXICATION

Under section 13 of the penal code ,intoxication is not general defence; it does not constitute
a defence to any criminal charge a person can be intoxicated either by consumption of
alcohol or by taking of drugs. A distinction should be drawn between voluntary and
involuntary intoxication.

Section 13(2) Intoxication shall be a defence to any criminal charge if by reason thereof the
person charged at the time of the act or omission complained of did not know that such act or
omission was wrong or did not know what he was doing and the state of intoxication was

5
The penal code cap 63
6
(1967)E.A 1827
caused without his consent by the malicious or negligent act of another person; or the person
charged was by reason of intoxication insane, temporarily or otherwise, at the time of such
act or omission. Where the defence under section 13(2) is established, then in a case falling
under subsection 2 (a) thereof the accused shall be discharged, and in a case falling under
paragraph (b) the provisions of this Code and of 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. Section 13 (1) Save as provided
in this section, intoxication shall not constitute a defence to any criminal charge.

Therefore, under section 13 As a general rule, intoxication is no defence .The law

recognizes 3 instances under which intoxication can be said to be a defence:

1. Involuntary intoxication
2. Intoxication amounting to insanity
3. Intoxication negating intention

Involuntary intoxication
A person who consumes alcohol involuntary may successfully plead the defence of
intoxication.

Intoxication amounting to insanity

This defence is set out under section 13(2) of the penal code, which reflects the
defence of insanity under section 12. Rex V Dh Retief7 IT WAS held that insanity
where caused by excess consumption of alcohol or otherwise is defence to the crime
charged.

Intoxication negating intention

Section 13(4) of the penal code states that the defence of intoxication negating mens
rea by providing that intoxication is to be taken to account in determining if the
person charged had formed an intention of the offence charged would not be guilty.

7
(1941)8 E.A.C.A 71
IMPOSIBLITY

Where the law imposes a duty to act its sometimes been held that its a defence that,
though its no fault of his own, it was impossible for the defendant to fulfil that duty.
There are two types of impossibilities factual impossibility and legal impossibility.

Impossibility maybe available as a defence it will presumably fail if the impossibility

has been brought about by the defendant on default. Defence will also seem to be
confined to case where the law imposes a duty to act and not to case of commission
where the corresponding defence is a necessity

ACCIDENT

A creature of section 9 (1) of the Penal Code: a person is not criminally responsible for an
acts or omissions which occurs by accident. In such incidents, the accused engages in an
innocent act without any element of mens rea: there is no foreseeability that his/her acts may
lead to the crime committed, neither is s/he reckless nor criminally negligent. In David
Odindo Ojowo v R Kisumu. The accused was beating his wife when one of the blows fatally
injured his six month daughter. He was convicted on his plea of guilty for manslaughter. His
reliance on the defence of accident since the blow was meant for the wife was said to be
immaterial since a reasonable person ought to have foreseen the consequences and that his
initial act was unlawful and intended to cause grievous bodily harm8.

Duress/ compulsion
An accused claims that he or she was compelled by another or others to commit the crime
which they are being charged for which is provided for under section 16 of the Penal Code
which limits the application of the offence to the following circumstances:
1. The offence is committed by two or more offenders
2. The compulsion consists of threats to kill or cause grievous bodily harm to the person
compelled if he refuses
3. The threat is applied throughout the period of the commission of the offence. In

8
CACRA No. 71 of 1983
MKanyoro v R: the threats need not be articulate; they can be inferred from conduct and
surrounding circumstances9.
Marital coercion
Under common law, a wife charged with a felony in her husbands presence was presumed,
unless proven otherwise, to have acted under his coercion and was entitled to acquittal.
Section 19 of the Penal Code has changed this. Coercion by husband for offences committed
by the wife in the presence of the husband can no longer be presumed unless wife proves it.
This will however not apply in cases of murder and treason

At common law it was seen to be the duty of the wife to care for the husband and keep his
secrets. Thus, she does not become an accessory after the fact if she were to shield the
husband from punishment. However, given similar circumstances, a husband was treated as
an accessory after the fact. Section 396 (2) of the Penal Code treats spouses equally: none of
them becomes an accessory to the fact if they were to assist each other escape from
punishment after committing a crime. Under common law, husband and wife cannot be
convicted of conspiracy with each other unless a third party is involved or that one spouse
incited another to commit a crime even when the elements of incitement are proved. No
similar provisions under the penal Code. The common law position would still apply is Such
circumstances.

Under both common law and section 274 of the Penal Code, a husband cannot steal from a
wife and vise versa. So long as the two are married it is presumed that they have common
ownership of property. Under common law a spouse was generally deemed to be an
incompetent witness at the trial of the other spouse except where the other spouse was being
tried for bigamy, treason

NECESSITY
This is when an accused is confronted by two unpleasant alternatives and he reasonably
believes that his acts or omission would avert a greater harm .Not expressly provided for
under Kenyan law: section 240 Penal Code on justified surgical operations. In R v Bourne, a
surgeon operated on a 14 year old who was pregnant after being raped by a soldier. The
surgeon was acquitted of murder on grounds of necessity.

9
(1962) EA 110
The courts have however declined to apply the defence to cases of murder10.
The case of R v Dudley and Stephens. Three men and a boy of the crew of a yacht were
shipwrecked. After 18 days in an open boat, having been without food and water for several
days, the two accused suggested to the third man that they should kill and eat the boy. He
declined but two days later, Dudley killed the boy who was now very weak. The three men
fed on the boys body, and four days later, they were rescued. The accused were indicted for
murder. The Jury, by a special verdict found that the men would probably have died within
the four days had they not fed on the boys body, that the boy would probably have died
before them, and that at the time of the killing, there was no appreciable time of saving life,
except by killing one for the others to eat. He was convicted of murder but the sentence was
commuted to 6 months imprisonment. The court distinguished killing in self-defence which
was justified, from killing of an innocent person to save ones own11.

SUPERIOR ORDERS

There is no provision in the Penal Code in this regard but the principle is that a person is not
criminally responsible for an act or omission in obedience to an order, which he is bound by
law to obey, unless the order is manifestly unlawful. One cannot hide behind an unlawful
order to escape criminal responsibility.

IGNORANCE OF LAW

Section 7 of the penal code provides that, ignorance of the law does not afford any excuse for
any act or omission which would otherwise constitute an offence unless knowledge of law
by the offender is expressly declared to be an element of the offence.

MISTAKE OF FACT
Section 10 of the Penal Code provides as follows:
10. (1) A person who does 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
10
(1938) 3 All ER 615
11
(1884) 14 QBD273
or omission to any greater extent than if the real state of things had been such as he believed
to exist. The operation of this section may be excluded by the express or implied provisions
of the law relating to the subject.

This defence applies where an accused holds honest and reasonable but mistake and if the
facts would have existed as the accused believed them to have, he would still not have
committed an offence by acting the way he did. Nyamweru s/o Kinyaboya v R, the accused
had killed his wife. It was suggested that he did so under the mistaken believe that she had
poisoned his beer. The court discounted the defence on the basis that if indeed he had labored
under such believe then it could not have been an honest and reasonable mistake since the
same was attributable to self-induced drunkenness12. Accordingly, in Chabijana v R, the
accused deliberately killed his father under the honest belief that the father was at that
moment killing the accused son by supernatural means. If the belief was reasonable in law,
the accused would have been acting under a mistake of fact in defence of his son. An appeal
based on this argument was dismissed, as the court was of the view that a belief in witchcraft
was not a reasonable mistake of fact13.

DEMINISHED RESPONISIBLITY

This defence is not stated in the penal code and therefore and is not available in Kenya. In
jurisdiction where it is applies the defence would be applied where the accused is found to
have been acting from such abnormality of mind , whether inherent or induced by disease or
injury as to substantially impair his mental responsibility.

This defence is raised by a person who alleges he took all responsible caution and exercised
all due diligence to avoid the commission of the offence .Its recognized in Uganda.

Therefore its a defence for a person to plead innocent in absence of mens rea.

CONCLUSION

In a nut shell in criminal law not all defences are general offences for instance the defence of
bona fide claim of right can only negate a crime in relation to property.

12
(1953) 20 EACA 192
13
EACA 104