TOPIC 1: HISTORICAL DEVELOPMENT AND SOURCES OF CRIMINAL LAW

1. Summary of Kenya Criminal law

Kenya criminal law is the body of national law relating to crime in Kenya. Broadly
speaking, it defines as criminal such human conduct as threatens, harms or endangers the
safety and welfare of people. It also sets out the punishment to be imposed on persons who
engage in such conduct, provided they have criminal capacity and act unlawfully and with a
guilty mind.

In the definition of Van der Walt et al, a crime is "conduct which common or statute law
prohibits and expressly or impliedly subjects to punishment remissible by the state alone and
which the offender cannot avoid by his own act once he has been convicted." Crime involves
the infliction of harm against society. The function or object of criminal law is to provide a
social mechanism with which to coerce members of society to abstain from conduct that is
harmful to the interests of society.
Classification of Law is usually in three/: Criminal, Public and Civil.

Criminal law (which is to be distinguished from its civil counterpart) forms part of the public
law of Kenya, as well as of the substantive law (as opposed to the procedural). In Kenya, as in
most adversarial legal systems, the standard of evidence required to validate a criminal
conviction is proof beyond a reasonable doubt. The sources of Kenya criminal law are to be
found in the common law, in case law and in legislation.

What Is A Crime?
Any act or omission prohibited by the law that is enacted for the protection of the public and
violation of which is prosecuted by the state in judicial proceedings in its own name. –
classical
Illegal act/omission with consequences that the offender if detected and a decision is made to
prosecute him, is prosecuted by or in the name of the state and if found guilty is liable to be
punished. - modern

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Characteristics Of A Crime

• Harm occasioned by human conduct that sovereign seeks to prevent

• Key preventive measure is threat to punishment
• Trial to determine culpability
• Civil Wrongs / Torts
• Harm Suffered By Society
• Degree Of Wrong
• Punishment

MORALITY

• Legal Posivists- is it uniform?

• Co-extensive with English and Christian roots

2. Sources Of Criminal Law

Most of the Kenyan criminal law is in written form. Its sources atre varied and are set out in Section 3(2)
of the Judicature Act.
They include

(i) The Constitution;

(ii) The Substance of Common Law enforced in England as at 12th August 1897
(iii) All Statutes including the English Statutes as stated in part 1 of the Act
(iv) African Customary Law
(v) International Law

(I) Constitution
The Constitution is the supreme in Kenya and all other laws draw their legitimacy from it. The
constitution is a source of criminal law as it has provisions on aspects of criminal law. The relevant
provisions are in articles 49, 50 and 51.

• Article 49: Right of an arrested person

• Article 50: Fair Trial Principles

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 • Article 51: Rights of Persons in Custody

Article 49 : Rights Of An Arrested Person

Article 49 deals with the rights of an arrested person. Most of these rights are not the substance
of criminal law but of criminal procedure.
(a) to be informed promptly, in language that the person understands, of—
(i) the reason for the arrest;
(ii) the right to remain silent; and
(iii) the consequences of not remaining silent;
(b) to remain silent;
(c) to communicate with an advocate, and other persons whose assistance is necessary;
not to be compelled to make any confession or admission that could be used in evidence
against the person;
(e) to be held separately from persons who are serving a sentence;
(f) to be brought before a court as soon as reasonably possible, but not later than––
(i) twenty-four hours after being arrested; or
(ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is
not an ordinary court day, the end of the next court day;

Effects of weekends and pubic holidays- does 24hrs principle hold?

at the first court appearance, to be charged or informed of the reason for the detention
continuing, or to be released; and
(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless
there are compelling reasons not to be released
(2) A person shall not be remanded in custody for an offence if the offence is punishable by a
fine only or by imprisonment for not more than six months.

Article 50- Fair Hearing (Fair trial princples)

This article sets out the fair trial principle. It entails the right to have any dispute that can be
resolved by the application of law decided in a fair and public hearing before a court or, if
appropriate, another independent and impartial tribunal or body.
2. right to a fair trial, includes the right—

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 (a) to be presumed innocent until the contrary is proved;
(b) to be informed of the charge, with sufficient detail to answer it;
(c) to have adequate time and facilities to prepare a defence;
(d) to a public trial before a court established under this Constitution;
to have the trial begin and conclude without unreasonable delay;
(f) to be present when being tried, unless the conduct of the accused person makes it
impossible for the trial to proceed;
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if
substantial injustice would otherwise result, and to be informed of this right promptly;
(i) to remain silent, and not to testify during the proceedings;
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have
reasonable access to that evidence;
(k) to adduce and challenge evidence;
(l) to refuse to give self-incriminating evidence;
……see the Constitution for more
REFERENCE
st
Republic v Subordinate Court of the 1 Class Magistrate at City Hall Nairobi &
Ano. Exparte Yougindar Pall Sennik & Ano Retread Limited [2006] 1 EA 330
Nyamu J.
“ Right to fair trial from trial to final judgment includes the right to equality before the law;
right to presumption of innocence; right to be tried by competent independent and impartial
tribunal est. by law; right to fair hearing; right to equality of arms and truly adversarial
system.

Article 51- Rights of Persons In Custody

Article 51 deals with the rights of persons who are held in custody whether before, during or
after trial.

a. retains all the rights and fundamental freedoms in the Bill of Rights, except to the
extent that any particular right or a fundamental freedom is clearly incompatible with
the fact that the person is detained.

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 b. A person who is detained or held in custody is entitled to petition for an order of
habeas corpus.
c. Parliament shall enact legislation that––

(i) provides for the humane treatment of persons detained, held in custody or
imprisoned; and
(ii) takes into account the relevant international human rights instruments.
REFERENCE
The essence of habeas corpus was stated in Mohammed V Republic [2003] KLR 344 Etyang J ,
where it was held that If the court finds that an accused is unlawfully detained, it shall ensure
immediate release of such person.

(II) Common Law

Common law is that part of Law not resulting from legislation but originates from customs of the
people and justified and developed by the decisions and rulings of the judges
The concept of common law has its origins in England. It was imposed and applied in Kenya as part of
the Kenyan law at the advent of colonialism through the East Africa Order in Council of 1897.
In England currently regulated by both statute and the common law. The more serious offences were
th th
once called felonies – under the King’s Bench Court (12 C – 15 C)
th
Misdemeanours- less serious offences- 14 C under Court of the Star Chamber.
Murder and manslaughter are examples of common law offence.
Currently, all offences are governed by legislation in England and part common law decisions of courts.
In Kenya by virtue of the principle of legality or nullum crime sine lege or nulla poena sine lege as
embodied in article 50 (2)(n) of the Constitution all criminal offences are defined in legislation
which therefore excludes common law offences. Most of the offences under the Penal code were drawn
from common law.

(III) Legislation
By virtue of article 50 (2)(n) of the Constitution all criminal offences in Kenya are governed an
defined by legislation. Such offences are called statutory offences is distinguished from common law
offences.

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Statutory offences may be created under the principle legislation or under the subsidiary legislation
made under such principal Legislation: Examples Penal Code Cap, 63 Laws of Kenya and Criminal
Procedure Code, Cap 75 Laws of Kenya
Subsidiary Legislation: published in Kenya Gazette as legal notices e.g. Pharmacy and Poisons Act
(Registration of Drugs Rules)

(IV) Customary Law

Prior to independence customary criminal law was recognised and applied through the then African or
native courts. This position however changed with the advent of independence when law reform began
to move towards a unified criminal process where all criminal cases were to be handled by the ordinary
or mainstream criminal courts based on a common criminal procedure code.
This led to the abolition of the African criminal law.

The coming into force of the 1963 Constitution by dint of section 77(8) introduced the principle of
legality meaning that a crime had to be defined in written law for it to be the criminal courts.
Customary law is unwritten.

There were several customary offences under the old dispensation;

-adultery with a married woman was one of them usually punishable by compensation and a
fine; [s. 13 (a) Native Tribunal Ordinance
-fornication was not an offence unless the girl got pregnant in which case compensation had to
be paid to her family; [s. 137-138 Penal Code]. Where the girl was under the age of pouberty it
amounted to a crime
-Rape; [Sexual Offences Act]

(V) International Law

The emergence of the United Nations system after the World War saw what is often called the
internationalisation of criminal law. Under the law of nations, crimes can only be prosecuted in the
countries where they are committed under municipal law.

There are a number of treaties, conventions and protocols dealing with various crimes and prescribing
standards. Article 2 (5&6) Constitution of Kenya, 2010. Article 2(5) of the Constitution makes general
rules of international law as part of the Kenyan law.

UDHR- Universal Declaration of Human Rights

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ICCPR- International Convenant on Civil and Political Rights
Convention against Torture
Convention on the protection on the Protection and Punishment of the Crime of Genocide
Convention on the Rights of the Child etc.

One challenge is that where the crimes are committed by those in power is that there is a real
likelihood that they might never get prosecuted. For example crimes against humanity and
genocide which are under the Rome Statute which established the International criminal court