CRIMINA LAW II

HOMICIDE OFFENCES
INTRODUCTION
The offences in this category involve unlawful killing of another. The offences in this group are governed
by Division IV of the Penal Code. The specific offences include murder and manslaughter and offences
connected to murder and suicide.
MURDER AND MANSLAUGHTER
Murder and manslaughter are governed by Chapter XIX of the Penal Code. They fall under the general
category of offences called Homicide. Homicide is the taking of human life. All killing is homicide, but
not all killing is criminal or not all homicides are unlawful. Lawful homicides are committed in execution
or advancement of justice, in reasonable defence of person or property, and as a result of an accident or
misadventure. The unlawful homicides are classified into murder, manslaughter, suicide and infanticide.
Murder and manslaughter are the main forms of unlawful homicide.
Remember Cholmodley Case!!!!!!!!
MURDER
(1) Definition
The offence of murder is defined in section 203 of the Penal Code. It is the unlawful killing with malice
aforethought. The principal elements of murder are: (a) the causing of death of another person, (b) by an
unlawful act or omission, (c) with malice aforethought, and (d) the death occurs within a year and a day
after the act or omission.
The Actus Reus
(a) Act, omission and result
The acts reus for the offence has two elements: (a) the act or omission and (b) the result or consequence
of the act or omission. The specific result is death, and therefore the act or omission should be one that
results in death or whose consequence is death. Causation is a central issue in the definition of murder,
and, indeed, all the other unlawful homicides. The offences are defined as unlawful acts or omissions
causing death. There must be evidence connecting the acts or omissions of the accused to the death of the
deceased.1
Rex vs. Sirasi Bachumira (1936) 3 EACA 40
(Sir Joseph Sheridan CJ, Sir Sidney Abrahams CJ and Webb J), the appellant was acquitted of a charge of
murder after the prosecution failed to present medical evidence connecting the injuries of the deceased to
the appellants acts.
(b) Proof of death
Since death is at the heart of the matter, proof of death is essential. 2 Where the body cannot be traced,
death may be presumed or proved by circumstantial evidence.
Kimweri vs. Republic (1968) EA 452
(Sir Charles Newbold P, Sir Clement de Lestang VP and Law JA), it was held that although death may be
proved by circumstantial evidence that evidence must be such as to compel the inference of death and
must be such as to be inconsistent with any theory of the alleged deceased being alive. The appellant in
the matter had been charged with the murder of his wife, from whom he was separated and against whom
his petition for divorce had failed. He had been ordered to pay maintenance to his wife and he was in the
meantime cohabiting with another woman. The wife disappeared from her room on a day it was alleged
1

See Ndiba vs. Republic (1981) KLR 103 (Madan, Wambuzi and Law JJA), Republic vs. Felix Nthiwa Nairobi HCCRC No.
43 of 1999 (Etyang J) and Republic vs. Isaiah Muoki Musyoka and two others Nairobi HCCRC No. 69 of 1998 (Etyang J).
2
See Rex vs. Muhoja s/o Manyenye (1942) 9 EACA 70 (Sir Joseph Sheridan CJ, Sir Norman Whitley CJ Thacker J).

the appellant had visited her. Her father later received a letter alleging that she had died in a road
accident. Her body was never recovered, and there was no evidence at all that she had died in a traffic
accident. The husband was convicted of murder, but the conviction was quashed on appeal.
Republic vs. Cheya and another (1973) EA 500
(Mfalila Ag J), it was held that the fact of death and the cause of it could be established otherwise than by
medical evidence. At the trial of the accused for murder no post-mortem report was produced and the
prosecution relied on the evidence of eye-witnesses t establish the death of the deceased and its causes.
(c) Causation issues
The death need not be caused by the immediate act of the accused. Section 213 of the Penal Code defines
causing death to include acts which are not the immediate or sole causes of the death. The accused would
be held responsible for another persons death although his act is not the immediate or sole cause under
the following circumstances: (a) He inflicts bodily injury on another person and as a consequence of that
injury the injured person undergoes a surgery or treatment which causes his death; (b) He inflicts injury
on another which would not have caused death if the injured person had submitted to proper medical or
surgical treatment or had proper precautions as to his mode of living: (c) He by actual or threatened
violence causes such other person to perform an act which causes the death of such person, such an act
being a means of avoiding such violence which in the circumstances appear natural to the person whose
death is so caused: (d) He by any act hastens the death of person suffering under any disease or injury
which apart from such an act or omission would have caused the death; and (e) His act or omission would
not have caused death unless it had been accompanied by an act or omission of the person killed or of
other persons.
(i) deceased undergoes treatment which causes his death
He inflicts bodily injury on another person and as a consequence of that injury the injured person
undergoes a surgery or treatment which causes his death. The accused would still be liable for the death
regardless of whether the treatment was proper or mistaken as long as it was done in good faith and with
common knowledge and skill. No liability attaches on the accused if the treatment, which is the
immediate cause of the death, was not employed in good faith or with common knowledge and skill. In
short, the accused will not be deemed to have caused the death of the deceased if the surgical or medical
treatment which is the immediate cause of death of the deceased person was negligent.
Rex vs. Mwagambo s/o Gishodi (1941) 8 EACA 28
(Sir Norman Whitley CJ, Sir Henry Webb CJ and Bartley J), the appeal against conviction turned on the
question of the cause of death. The appellant had inflicted two deep and serious wounds on the deceased,
who died as a result of sepsis from the wounds. The wounds had been stitched by a medical dresser.
Medical evidence was to the effect that the wound should have been drained instead of being stitched, but
even if it had been drained there would still have been a risk of sepsis setting in. The appeal was
dismissed. The opinion of the court was that there was no evidence that the dresser had acted
unreasonably and also that there was no evidence that the stitching caused the sepsis which caused death.
The fact that a skilled surgeon would have prescribed draining rather than stitching did not affect the
appellants liability for murder.
John Muia Muli vs. Republic Mombasa CACRA No. 96 of 1999
(Gicheru, Shah and OKubasu JJA) (unreported), the appellant had been convicted of the murder of his
cousin, who died in hospital while undergoing treatment eleven days after he was assaulted by the
appellant. The murder conviction was reduced on appeal to manslaughter. The court was of the view,
basing itself on section 213 (a) of the Penal Code, that the medical evidence on the immediate cause of
death was unreliable, as the medical notes relating to the medical treatment given to the deceased were
not tendered in evidence at the trial of the appellant. It was therefore not clear whether or not the
deceaseds medical treatment was the immediate cause of death and whether the treatment was employed
in good faith or with common knowledge and skill.
2

(ii) deceased fails to get proper medical attention

The accused inflicts injury on another which would not have caused death if the injured person had
submitted to proper medical or surgical treatment or had proper precautions as to his mode of living.
Tindira s/o Chiru and another vs. Rex (1951) 18 EACA 180
(Sir Barclay Nihill P, Sir Newnham Worley VP and Lockhart-Smith JA), the appellants had been
convicted of murder. Both appellants were drunk and armed with sticks, and had intervened in a quarrel
over a woman. The deceased came to the scene and enquired as to what was happening. The second
appellant hit him on his temple with a bamboo stick cracking the deceaseds skull leading to hemorrhage.
The first appellant then attacked the deceased on the head with a heavy stick inflicting a deep wound
skull-deep fracturing his skull causing brain hemorrhage. The doctors opinion was that it was the latter
fracture which caused death, although the crack over the temple if left untreated would have been fatal,
and it in fact accelerated death in conjunction with the fracture. The court observed that if medical
evidence were that the cracking of the deceaseds skull and the consequent hemorrhage would not have
caused death but for the deceaseds own refusal to have medical attention or the omission of his relatives
to obtain medical attention in good time, then under the Tanzanian equivalent of section 213 (e) of the
Kenyan Penal Code, the second appellant would be deemed rightly to have caused death.
(iii) act of accused forces deceased to take evasive action which results in his death
He by actual or threatened violence causes such other person to perform an act which causes the death of
such person, such an act being a means of avoiding such violence which in the circumstances appears
natural to the person whose death is so caused.
(iv) act of accused hastens death of deceased
He by any act hastens the death of person suffering under any disease or injury which apart from such an
act or omission would have caused the death.
(v) act of accused accompanied by that of the deceased or of other persons
His act or omission would not have caused death unless it had been accompanied by an act or omission of
the person killed or of other persons. This provision was considered in
Tindira s/o Chiru and another vs. Rex (1951) 18 EACA 180
(Sir Barclay Nihill P, Sir Newnham Worley VP and Lockhart-Smith JA), where the appellants had been
charged with and convicted of murder. Both were drunk and armed with sticks, and had intervened in a
quarrel over a woman. The deceased came to the scene and enquired as to what was happening. The
second appellant hit him on his temple with a bamboo stick cracking the deceaseds skull leading to
hemorrhage. The first appellant then attacked the deceased on the head with a heavy stick inflicting a
deep wound skull-deep fracturing his skull causing brain hemorrhage. The doctors opinion was that it
was the latter fracture which caused death, although the crack over the temple if left untreated would
have been fatal, and it in fact accelerated death in conjunction with the fracture. On appeal, it was held
that the injury inflicted by the second appellant was not the immediate or sole cause of death, as the
immediate cause of death was the blow struck by the first appellant. However, the second appellant had
also caused death by virtue of a provision of the Tanzanian Penal Code equivalent to section 213 (e) of
the Kenya Penal Code, to the effect that the act of the second appellant alone would not have caused
death unless it was accompanied by an act of the of the deceased or of other persons. It was observed that
where the evidence is that the injury inflicted would of itself have caused death, it does not matter in such
case that death was accelerated by a later and more severe injury inflicted by another person. The
conviction of the second appellant of murder was quashed and substituted with manslaughter on other
grounds.
Rex vs. Tabulayenka s/o Kirya and three others (1943) 10 EACA 51
(Sir Joseph Sheridan CJ, Sir Norman Worley CJ and Mark Wilson Ag CJ), the deceased was a suspected
thief who was set upon and assaulted by several persons. The four appellants were part of the crowd that
assaulted him. It was held that it would be sufficient that the cumulative effect of the beating carried out
by the different accused was such as would probably result in death or grievous harm and if all the
3

accused had associated themselves with the assault, each of them would be responsible for all the acts of
the others done in furtherance of their common purpose. It was stated that where a number of persons
assault another, and the general result of the assault is death, it is not necessary to inquire into the effect
of each particular injury caused by each of the assailants as it is naturally impossible to say what injuries
were caused by the kicks and what other instruments and whether the injuries inflicted by an one of the
several accused were sufficient in themselves to cause death apart from the injuries inflicted by the
others.3
(3) The Mens Rea
(a) Malice aforethought
The mens rea required is malice aforethought. 4 The burden of establishing malice aforethought is on the
prosecution.5 Where malice aforethought is not proved but there is proof of death linked to the accused
the court should convict the accused of the lesser offence of manslaughter. This was the position taken in:
Mugoma and another vs. Republic (2003) KLR 382 (Kwach, Tunoi and Githinji JJA)
Where vigilante group members killed the deceased upon suspecting him of being a thief. There was no
evidence of what actually happened immediately before and at the moment of the killing. The actual
circumstances of the death of the deceased were unknown. He was convicted of murder. On appeal, it
was held that there was no doubt that the appellants had caused the death of the deceased and that the
killing was unlawful, but the prosecution had not established malice aforethought on their part. The
conviction was substituted with that for manslaughter.
Joseph Cheboi Kabon vs. Republic Nakuru CACRA No. 86 of 1999 (Gicheru, Owuor and Keiwua JJA)
(unreported),
The accused was convicted of the murder of his girlfriend on the basis that he was the last person to be
seen with her, seated near a river quarreling. On appeal, it was held that the prosecution had not
established the malice aforethought, the mens rea required for murder. The conviction was quashed and
replaced with one of manslaughter.
(b) Elements of Malice Aforethought
Malice aforethought is a technical term defined in section 206 of the Penal Code. Under the provision,
malice aforethought is said to be proved by evidence of any of the following circumstances: (a) an
intention to cause the death of another; (b) an intention to cause grievous harm to another; (c) knowledge
that the act or omission causing death will probably cause death or grievous harm to some person,
whether that person is the person killed or not, accompanied by indifference whether death or grievous
injury occurs or not or by a wish that it may not be caused; (d) an intent to commit a felony; and (e) an
intention to facilitate the escape from custody of or the flight of any person who has committed a felony
or attempted it.
(i) an intention to cause the death of another
This is the direct intention to kill, and it is covered by section 206 (a) of the Penal Code. It is also called
express malice, although it is usually not expressed as such but inferred from the circumstances. Say you
take a pistol, point it at the head of another and pull the trigger. Pick a bow and arrows, point a poisoned
arrow at the heart or chest of another and release the arrow. Take a knife and drive it into the heart of
another. The act will be considered intentional if the consequences of it are foreseen by the killer. For
example, when one points a loaded gun at another believing that the gun to be unloaded and pulls the
trigger causing death, the pulling of the trigger would be intentional, but the person cannot be said to
have an intention to kill. This would be the case of an accident or negligence.
3

See also Njoroge vs. Republic (1983) KLR 197 (Madan, Potter JJA and Chesoni AJA), R vs. Ngereza s/o Masaga and others
(1962) EA 766 (Reide J) and Dracaku s/o Afia and another vs. R (1963) EA 364 (Sir Trevor Gould Ag P, Crawshaw Ag VP
and Newbold JA).
4
See Sharmpal Singh vs. R (1960) EA 779. The court said that to strangle ones wife is only murder if the act of strangulation
is done with the intention to killing or causing grievous harm or with knowledge that the act will probably cause death or
grievous harm.
5
See Lokoya vs. Uganda (1968) EA 332 (Sir Charles Newbold P, Duffus and Spry JJA).

Ogeto vs. Republic (2004) 2 KLR 14 (Omolo, Githinji JJA and Onyango Otieno Ag JA)
The appellant chased the deceased and another person, caught up with the deceased and stabbed him with
the knife on the chest. The deceased died of the stab wound. The Court of Appeal found that by dint of
section 206 (a) of the Penal Code, malice aforethought is deemed to be established by evidence showing
an intention to cause death or grievous harm. On the facts of the case it could be reasonably inferred that
when the appellant stabbed the deceased with a knife on the chest he intended to cause death or grievous
harm to the deceased, and therefore he had been properly convicted of murder.
Rex vs. Mazabia bin Mkomi (1941) 8 EACA 85
(Sir Joseph Sheridan CJ, Sir Henry Webb CJ and Sir Norman Whitley CJ), The appellant killed his friend
by shooting him with an arrow at close range in the rear. There was no evidence of motive, provocation
or insanity. He was convicted of murder. An appeal against conviction was dismissed.
Where the intention is proved, it does not matter that the person killed is the one intended or some other
person. Malice aforethought is deemed to be established by proof of an intention to cause the death of any
person, whether such person is the person actually killed or not. This is called transferred malice, since
the malice directed towards the person intended to be killed is transferred towards the person actually
killed. So that where a person intends to kill some particular person, but kills his servant instead, by
mistake or otherwise, he would still be guilty of murder.6 Or where one intending to kill a particular
person gives a poisoned cup of tea to him, however the person intended does not drink the tea but gives it
to another who dies as a consequence; that would still be a case of murder.
Cheruiyot vs. Republic (1976-1985) EA 47 (Madan, Miller and Potter JJA), was on attempted murder, but
the principle is the same. The appellant had set out to kill a particular person, but when he did not find
him he decided to kill the person he found at the scene. He threw a spear at him and missed. He was
convicted of attempted murder. An appeal against the conviction was dismissed. It was held that where an
accused person sets out with a positive intention to unlawfully kill a specific person but on realizing that
he cannot kill the particular person, forms an intention there and then to unlawfully kill another person
who happens to be there and he manifests that intention by an overt act by attacking the person who
happens to be there with a spear when he knows that throwing a spear at the person could kill, commits
the offence of attempted murder.
It would be murder where a person seeking to commit suicide kills another person accidentally. Paulo s/o
Mabula vs. R (1953) 20 EACA 207
(Sir Barclay Nihill P, Sir Newnham Worley VP and Mayers J), The Court of Appeal for Eastern Africa
explained that this is so because suicide is a felony at common law, and that by virtue of section 206 (a)
of the Penal Code any person includes the person intending to kill himself. The appellant killed his wife
as a result of an act intended to kill himself, she endeavouring to prevent him from cutting his throat. In
his defence he alleged that the wound inflicted on his wife was accidental as she had fallen on the knife
which had been tightly clasped in his hands. In dismissing the appeal, the court held that where as a result
of an act by the accused intended to kill himself another is killed, he is properly convicted of murder,
even if he did not intend to kill that other person.
Intention to kill may be inferred from the facts of the case. The court may infer the same from the use of a
lethal weapon by the accused.
Rex vs. Tubere 12 EACA 63,
It was held that it is the duty of the court in determining whether malice aforethought has been
established to consider the weapon used, the manner in which it is used and the part of the body injured.
It was further observed in the matter that ordinarily an inference of malice would flow more easily from
the use of a spear or of a knife than from the use of a stick.
Tindira s/o Chiru and another vs. Rex (1951) 18 EACA 180
6

See Nyanya s/o Kweyu (1956) EACA 593 (Sir Ronald Sinclair Ag P, Briggs Ag VP and Bacon JA).

(Sir Barclay Nihill P, Sir Newnham Worley VP and Lockhart-Smith JA), the court considered that the
second appellant used a thin bamboo stick about three feet long to strike the deceased, and drew an
inference that he did not intend to kill the deceased nor cause him grievous harm, and reduced the
conviction of murder to manslaughter.
Mugao and another vs. Republic (1972) EA 543 (Spry Ag P, Law Ag VP and Lutta JA), the court
considered that the appellants beat two suspects with light sticks with the intention of forcing them to
reveal information, and therefore they had no intention to kill or cause grievous bodily harm. Had they
intended to kill or cause grievous harm they would not have selected light sticks to beat the deceased, and
therefore malice aforethought was not established.
However, it was held in Rex vs. Mwita s/o Ogondo (1944) 11 EACA 75 (Sir Joseph Sheridan CJ, Sir
Henry Webb CJ and Sir John Gray CJ), that the use of such a weapon is not conclusive proof of such
intention.
(ii) an intention to cause grievous harm to another
This is covered by section 206 (a) of the Penal Code. There is no requirement here that the killer intended
the death of his victim. The killer may not intend to kill his victim, but he may intend to cause him
considerable harm or injury. The accused killer may, in the circumstances, be convicted of murder if
death occurs, even without the intention on his part to kill. Grievous harm is defined in section 4 of the
Penal Code. Put simply, it is any dangerous or permanent harm or injury which is life-threatening. To
secure a conviction, it is important to prove that there was an intention to cause grievous harm. 7 If the
evidence falls short of proof of such an intention, then the same would not suffice to establish malice
aforethought. The rationale behind making the intention to create grievous harm an element of malice
aforethought appears to be that a person intends the natural consequences of his actions.
Rex vs. Gwangire s/o Sinyangwire (1935) 2 EACA 133
(Sir Joseph Sheridan CJ, Abrahams CJ and Fretz Ag CJ), the appellant struck the deceased with a spear
on the forehead, the wound healed but some infection was introduced which caused an abscess on the
brain of which the deceased died. The appellant was convicted of murder. On appeal it was held that the
appellant must have known that to strike a man on the head with a spear was a dangerous act, even if he
did not intend to kill he either intended to cause dangerous harm or was indifferent as to the result of his
act. The appeal wad dismissed.
Rex vs. Yakobo Ojambo s/o Nambio (1944) 11 EACA 97
(Sir Joseph Sheridan CJ, Sir Norman Whitley CJ and Sir John Gray CJ), the deceased was caught stealing
from the farm of the accused and tied up. The accused beat him up so severely that on being untied, he
fell down and seemed to be dead. The accused believed him to be dead and moved his body and threw it
into a swamp. The deceased was in fact alive at the time, but died upon immersion in water. He died of
asphyxia. The court found the accused guilty of murder, upon the finding that the accused intended to
cause the deceased grievous harm from the severe beating. The immersion in water was connected to the
beating in the sense of it being one continuing transaction, the cumulative effect of which was to cause
death. On appeal the conviction for murder was upheld.
R vs. Singh (1962) EA 13,
The accused was convicted by the trial court of the murder of his wife. They were a young couple
married for less than a year, and the marriage appeared to have been a happy one. Evidence showed that
after an act of sexual intercourse the accused strangled his wife, and then attempted to make it appear that
she was stabbed and killed in a robbery on her way to an outside toilet. Death was due to asphyxia. The
accused put up a defence that he killed his wife accidentally during a sexual embrace, and that the feigned
robbery was an act of panic. On appeal, the Privy Council found that the evidence fell short of proving
7

See Republic vs. Isaiah Muoki Musyoka and two others Nairobi HCCRC No. 69 of 1998 (Etyang J) (unreported).

the degree of force used, and this, together with the complete lack of motive, created a real doubt as to
whether the accused intended to cause grievous harm or knew that he was causing grievous harm. He was
found guilty of manslaughter.
Peter Okoth and another vs. R (1964) EA 103
(Sir Samuel Quashie-Idun P, Crawshaw and Crabbe JJA), the appellants, who were tribal policemen, beat
the deceased, who was a suspected thief under their custody, who died. A post-mortem examination
revealed that he died of asphyxia due to vomit entering the respiratory tract while the deceased was
unconscious. The doctors conclusion was that the vomiting and unconsciousness resulted from the
beating. The trial court found that the appellants were jointly involved in an unlawful purpose of beating
a prisoner, that as a direct consequence of the unlawful purpose the deceased died and that malice
aforethought had been proved. On appeal, it was held that there was insufficient evidence to warrant the
trial courts conclusion that there was malice aforethought within the meaning of section 206 of the Penal
Code. The medical evidence tendered fell short of proving that either the deceased sustained grievous
harm or that grievous harm would be necessary to cause the vomiting and the nature of the injuries
suggested that the appellants might have avoided causing serious harm. The conviction of murder was
substituted with manslaughter.
Solomon Mungai and others vs. Republic (1965) EA 782
(Sir Samuel Quashie-Idun P, Crabbe and Law JJA), the appellants were convicted of the murder of an
Indian merchant, who they clubbed to death and burnt his body during a planned theft. 8 They were
convicted of murder upon the finding that they had the requisite malice aforethought. The appellate court
found that the evidence showed that the felony of theft was committed by the appellants in furtherance of
which they used violence. In the opinion of the court the violence used was itself eloquent of an intention
to kill or do grievous bodily harm, and in the circumstances the requirements of section 206 of the Penal
Code had been met. The injuries inflicted on the deceased were so serious that any reasonable person
must have realized that they would cause death. The appellants certainly intended to cause grievous harm,
and that established the requisite malice aforethought.
(iii) knowledge that the act or omission will cause death
Section 206(b) of the Penal Code imports the element of recklessness to malice aforethought. This is the
case of a person performing an act or omission in the knowledge that death is a likely result. Death under
the circumstances is said to be reckless murder. This is a case of implied malice. The act causing death
must be one which is intrinsically likely to kill and which the offender knows is likely to kill or cause
grievous harm, although there is no evidence of express malice. Liability attaches whether or not the
person cares about the likelihood of the death of another. Liability for murder attaches where there is a
high degree of probability that death will result from the act or omission committed by the accused. The
action must be one which creates a situation of some danger to life.9
Rex vs.Tirugurwa bin Byantimba (1943) 10 EACA 44
(Sir Joseph Sheridan CJ, Sir Norman Worley CJ and Lucie-Smith J), it was held that if a person sets fire
to a house knowing or having reasonable grounds for believing that a person is asleep inside, he must be
held to have burnt it with malice aforethought within the meaning of the equivalent of section 206 of the
Kenyan Penal Code in the sense that having that knowledge or grounds for belief, he must at least to be
taken to have known that his act of burning the house will probably cause death or grievous harm, and if
death results he is guilty of murder. The appellant had set fire on a house with the result that the deceased
was burnt to death. Evidence showed that the appellant had knowledge that the deceased was sleeping in
the house at the material time. He was convicted of murder; an appeal against the conviction was
dismissed.
Rex vs. Tabulayenka s/o Kirya and three others (1943) 10 EACA 51
8
9

Today this would be robbery with violence under section 296(2) of the Penal Code.
See Olenja vs. Republic (1973) EA 546 (Sir William Duffus P, Spry VP and Mustafa JA).

(Sir Joseph Sheridan CJ, Sir Norman Worley CJ and Mark Wilson Ag CJ), the deceased was a suspected
thief who was set upon and assaulted by several persons. The four appellants were part of the crowd that
assaulted him. They were found guilty of murder and sentenced to death. Their appeal was dismissed. It
was held that for the purposes of the equivalent of section 206 (e) of the Kenyan Penal Code, it is not
necessary that each of the accused knew that his act or acts would probably cause grievous harm. The
legal result of the equivalent of section 206 (e) of the Kenyan Penal Code is that each of the accused
persons is guilty of having caused the death of the deceased, as each one of them knew that his acts
would probably cause grievous harm to the deceased.10
Isa Mukabya vs. R (1963) EA 376
(Sir Ronald Sinclair P, Sir Trevor Gould Ag VP and Newbold JA), the appellant had been charged with
the murder of a location chief while resisting arrest, by fatally stabbing him with a knife. The trial court,
relying on Rex vs. Karioki wa Njagga (1934) 1 EACA 149 (Abrahams CJ Ag P, Lucie-Smith Ag CJ and
Webb J), found that he had the requisite malice aforethought to justify his conviction for murder. On
appeal, it was held that there was malice aforethought on the part of the appellant on the basis that the
appellant had knowledge as a reasonable man that by stabbing the deceased in the way he did he would
probably cause harm which was likely seriously to injure the health of the deceased. According to the
court, harm which is likely seriously to injure health is grievous harm within the meaning of the
definition of grievous harm in section 4 of the Penal Code. it was observed that a man who uses a knife
in the way the appellant did must know that from one or other of the stabs or from their totality really
serious injury is a probable consequence, and in the circumstances malice aforethought within the
meaning of the equivalent of section 206 (b) of the Kenyan Penal Code was established.
Republic vs. Ndalamia and two others (2003) KLR 638 (Osiemo J),
The court held that there was sufficient proof of malice aforethought as defined in section 206 (b) of the
Penal Code where the accused persons beat the deceased violently and persistently and when they were
persuaded to stop they could not listen. They continued to beat the deceased inflicting injuries on him
which caused his death.
Rex vs. Petro Mangongo s/o Katwa (1944) 11 EACA 100
(Sir Joseph Sheridan CJ, Sir Norman Whitley CJ and Sir Joseph Gray CJ), the appellant while chasing
away children who were grazing cattle near his cabbage farm caught hold of the deceased by the neck,
pushed him into a river and went away. The child died not from drowning but from pneumonia and his
death was largely due to an infirmity from which he was suffering. The appellant was convicted of
murder. On appeal, the appellate court expressed doubt as to whether the appellant when he assaulted the
deceased did so with the knowledge that his act would probably cause the death of the child, especially as
the appellant was unaware of the infirmity which undoubtedly contributed to his death.
It is immaterial whether the person against whom the action is directed is the one actually killed or
whether it is somebody else. So long as there is foresight of the consequences of the act, it is immaterial
that the accused did not want to cause death or grievous harm. In the English case of: R vs. Serne (1887)
16 Cox CC 311
Stephen J remarked that a person who sinks a boat for a purpose of his own, will not escape liability for
the drowning of the passengers by hoping that they would be picked by a passing vessel.
William Blackstone in one of his commentaries11 wrote that where a workman flings down a building
stone or a piece of timber into the street, and kills a person, this may be either a misadventure,
manslaughter or murder, depending on the circumstances under the act was done. If done in a rural
setting where few people are likely to be out in the street, and he calls out to all people to have care, it
10

See also Njoroge vs. Republic (1983) KLR 197 (Madan, Potter JJA and Chesoni AJA), R vs. Ngereza s/o Masaga and
others (1962) EA 766 (Reide J) and Dracaku s/o Afia and another vs. R (1963) EA 364 (Sir Trevor Gould Ag P, Crawshaw Ag
VP and Newbold JA).
11
See 4 Blackstones Commentaries 192

would be misadventure. If it is in a city or other populous town, where people are continually passing, it
would be manslaughter, even though he gives a loud warning. This would be a case of negligence or
recklessness. It would be murder if he knows people are passing and he gives no warning.
R s. Hull (1664) Kel. 40
A workman threw down a piece of timber from a house two storeys high after shouting, Stand clear! All
his colleagues below moved out of danger except for one who was killed. The workman was acquitted of
murder; the court held that that was a case of misadventure.
The knowledge element is a subjective one. The accused must himself have known that there was a
likelihood of death being caused. The test of reasonableness does not apply. The issue of what a
reasonable person would have known does not come into consideration. It is not a question of what a
reasonable person in the position of the accused would have known, but what the accused himself knew.12
The degree of probability of death occurring will assist the court in determining what knowledge the
accused is likely to have.13 Liability will not attach where it appears the accused had not addressed his
mind to the possibility of death resulting from his actions. His behavior in such cases would be reckless,
but it would not demonstrate the level of knowledge required by section 206 (b) of the Penal Code.
Rex vs. Palamba s/o Fundikila and another (1947) 14 EACA 96
(Nihill CJ, Sir G Graham Paul CJ and Edwards CJ), the accused conducted a trial by ordeal of four of his
relatives after suspecting them of causing the death of his eleven children through witchcraft. He forced
them to take a concoction of a substance called mwavi. The local belief was that an innocent person
would survive the ordeal. After the ordeal, the accuseds mother and his elder wife died, but his younger
wife and his daughter survived. He was convicted of murder. On appeal the conviction was quashed. In
the opinion of the court there was no evidence that the concoction was poisonous or how its fatal dose
might to warrant a conclusion that the accused must have known that there was a likelihood of death
being caused.
(iv) intent to commit a felony
Under section 206 (c) of the Penal Code, malice aforethought is deemed to exist where the accused acts
with intent to commit a felony. This amounts to constructive malice. It is not clear whether to this applies
all felonies or only certain felonies.
Sentali s/o Lemandwa vs. R 20 EACA 230
The Court of Appeal took the view that malice aforethought would be established if death is caused by
any unlawful act or omission done in furtherance of an intention o commit any felony. In that matter, the
deceased was heard crying out, They are killing me. She was later found dead or dying on the floor of
her house. The door had been broken and the house was in disorder. The appellants hat was found was
found in the house. When the appellant was arrested a day later, he was found with a sack containing
clothing stolen from the deceaseds house. A post-mortem revealed that the deceased died of a ruptured
spleen. The trial court inferred that the appellant had entered the deceaseds house with intent to steal, and
that the deceased died in consequence of the violence visited on her by the appellant.
Olenja vs. Republic (1973) EA 546
(Sir William Duffus P, Spry VP and Mustafa JA), the court was of the view that malice aforethought is
not necessarily established by proof of an intent to commit any felony. The court appeared to entertain the
opinion that section 206 (c) of the Penal Code was meant to cater for felonies involving personal
violence, and held that he who uses violence measures in committing a felony involving personal
violence is guilty of murder if death results even inadvertently. Going by that position, section 206(c)
would only apply to the felony of an attempted abortion in those cases where death resulted under certain
aggravated circumstances. In the matter, a pregnant girl had died as a direct result of an attempted
abortion by the appellant who was unqualified and inexperienced in the obtaining of abortions. The trial
court convicted of murder, holding that malice aforethought was established by proof of intent to commit
12
13

See R vs. Singh (1962) EA 13.

See R vs. Hancock and Shankland (1986) 1 All ER 641.

a felony. The appellate court convicted the appellant of manslaughter instead. The rule stated in Olenja
vs. Republic (1973) EA 546 (Sir William Duffus P, Spry VP and Mustafa JA) has been applied in cases of
rape,14 arson, burglary15 and stealing cattle when armed.
Abdurabi s/o Musa vs. R (1956) 23 EACA 555
(Sir Newnham Worley P, Sir Ronald Sinclair VP and Briggs JA), The Court of Appeal for Eastern Africa
expressed the opinion that the position taken in Sentali s/o Lemandwa vs. R 20 EACA 230 was too
general, and sought to state the legal position that whereas section 206(a) and (b) of the Kenyan Penal
Code apply to cases of intention to do bodily injury to the deceased, section 206(c) applies where there is
an intent to commit a felony other than one causing bodily injury. However, the courts are reluctant to lay
down a general rule that an unlawful killing in the course of committing a felony amounts to murder.
This was the position in:
Rex vs.Tirugurwa bin Byantimba (1943) 10 EACA 44
(Sir Joseph Sheridan CJ, Sir Norman Worley CJ and Lucie-Smith J), where the Court of Appeal held that
the mere fact that the deceased died in consequence of the appellant committing arson did not make him
guilty of murder. It would appear constructive malice only applies to violent measures used in the course
of felonies involving personal violence.16
Rex vs. Selman s/o Ngulu and another (1947) EACA 94
(Nihill CJ, Sir G Graham Paul CJ and Edwards CJ), in the course of a burglary in the house of the
deceased by the appellants who were unarmed, the first appellant seized the deceaseds bow and arrows
and fired two arrows at him causing fatal injuries. They were both convicted on the grounds that when
people do the felonious act of burglary together and one kills the victim of the burglary both are liable to
be convicted of murder. On appeal it was held that that position was too broad, and the conviction of the
second appellant was quashed.
(v) intention to facilitate the escape from custody of a person who has committed a felony
Section 206(d) of the Penal Code covers the situation where a killing is done in the process of facilitating
the escape from custody of a person who has committed a felony. This is also a case of constructive
malice. It would appear that a death caused, whether by negligence or accident, would amount to murder
if it is caused in an effort to facilitate the escape of a criminal. For example, where a by-stander is killed
as a person assisting an offender to escape quickly reverses or drives off a get-away car. Under normal
circumstances the defence of accident would be available, and the offender would ideally be liable of a
lesser offence founded on negligence or recklessness.
Isa Mukabya vs. R (1963) EA 376
(Sir Ronald Sinclair P, Sir Trevor Gould Ag VP and Newbold JA), the Court of Appeal for Eastern Africa
appeared to give a narrow interpretation to section 206(d) by holding that the intent to resist or even to
use violent means to resist arrest does not per se constitute malice aforethought.
The above case departs from that taken in:
Rex vs. Karioki wa Njagga (1934) 1 EACA 149
(Abrahams CJ Ag P, Lucie-Smith Ag CJ and Webb J), where a proclaimed offender killed a private
person who had gone to arrest him. The court took the position that violence inflicted in effecting an
arrest lawfully made implies malice aforethought and the death resulting justifies conviction for murder.
(4) Person for Murder Purposes

14

See R vs. Stone (1937) 3 All ER 920, where it was said that if a man intending to commit rape upon a woman, but without
the least wish to kill her, squeezed her by the throat to overpower her, and in doing so killed her , that would be murder. See
also DPP vs. Beard (1920) AC 479.
15
See Petero Sentali (1953) 20 EACA 230.
16
See R vs. Isingoma 6 EACA 159

10

A person for the purpose of a murder charge includes a child. Section 214 of the Penal Code provides that
a child is a person for the purpose of being killed when it has completely proceeded in living state from
its mother.
Republic vs. Nyamu and two others (2005) 1 KLR 806 (Rawal J),
The accused were charged with the murder of an unidentified male and female, fetuses or children whose
bodies were found in a rubbish dump. The defence advanced the case that the prosecution had failed to
demonstrate that the deceased were persons capable of being murdered. The court found that, by virtue of
section 214 of the Penal Code, the accused were not guilty of murder as for a child to become a person
capable of being murdered, it must have completely proceeded in a living state from the body of the
mother. It was found that that this ingredient was not present in that case. The fetuses were not persons
capable of being killed, and therefore there was no murder.
(5) Defences and Extenuating Circumstances
Where extenuating circumstances exist or are present at the time of the crime, the accused could be
excused or the offence reduced to manslaughter. Extenuating or mitigating circumstances reduce the
blameworthiness of the accused. These circumstances include immaturity, intoxication or provocation.17
Mberu ole Legure vs. Rex (1934) EACA 157
(Abrahams CJ Ag P, Lucie-Smith Ag CJ and Webb J), it was held that it is only in cases where there is
express malice that the accused cannot claim the excuse of provocation. The court is expected to consider
whether such circumstances, which determine the moral wickedness of the accuseds conduct, existed.
The law makes a distinction between callous blood-thirsty or cold-blooded murder and murder in the grip
of passion or intoxication. Regret on the part of the killer is one of the guides for determining mitigation
or extenuation. The other consideration is between a person who kills intentionally and another who
seeks to only inflict injury. Both are equally culpable for murder, but morally they are not equally
culpable. The doctrine of extenuating circumstances enables the court to assess these moral differences.
The absence of premeditation on the part of the accused reduces the accuseds blameworthiness. It is
taken that spur of the moment acts of violence are less morally reprehensible than those that are planned.
Mistake of fact, defence of person or property, insanity and belief in witchcraft are the other
considerations. Malice aforethought may be negatived by a mistake of fact in some situations, such as
where a person shoots at another believing him to be a wild animal.18
(6) Penalty for Murder
(a) Mandatory death
By virtue of section 204 the punishment for the offence of murder is mandatory death. It is mandatory in
the sense that the law does not give the court any discretion in the matter; once it finds a person guilty of
murder it must sentence him to death. Under section 25(1) of the Penal Code, the sentence of death is
fixed; he is to suffer death in the manner prescribed by the law. The President may commute the sentence
or pardon the offender. However, certain exceptions are allowed concerning minors and pregnant women.
(b) Pregnant women
Under section 211 of the Penal Code, where a woman convicted of murder is found to be pregnant she
shall be sentenced to life imprisonment instead of death. Section 212 provides the procedure where such a
convicted woman alleges to be pregnant or appears to the court to be pregnant. The court should deal
with the matter before sentence, based on evidence presented by either side.
(c) Minors above eight years old
Section 25(2) of the Penal Code addresses the case of a minor, by providing that the death penalty shall
not be pronounced against a person under the age of eighteen. The court has the residual responsibility to
satisfy itself as to the accuseds age apart from the prosecution which must furnish such evidence as it
17
18

See Republic vs. Felix Nthiwa Nairobi HCCRC No. 43 of 1999 (Etyang J)
See Lord Denning in Shoukatallie vs. R (1962) AC 81.

11

can.19 It was held in Njuguna s/o Karanja vs. Reginam (1953) EACA 196 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Briggs JA) that the responsibility of determining the age of an accused person
convicted of a capital offence is upon the trial court which may either act on its own judgement or may,
especially in doubtful cases, call for expert or other evidence as is available. The burden of proof of the
fact that the accused is above the age of eighteen lies with the state, as was stated in Rex vs. John s/o
Ngona and three others (1944) 11 EACA 119 (Sir Joseph Sheridan CJ, Sir Norman Whitley CJ and Sir
John Gray CJ), where the court said that the onus of proof of that fact always lies with the prosecution to
prove beyond reasonable doubt that the accused was indeed above eighteen, and if the state fails to prove
the same beyond doubt, the accused must be given the benefit of that doubt. 20 The age of one of the
appellant in that matter was stated in the record as his apparent age; and he was given the benefit of
doubt. The penalty for murder for such an offender is detention during the Presidents pleasure, 21 at such
place and in such conditions as the President may direct.
The coming into force of the Children Act (Act No. 8 of 2001) has changed the legal position regarding
the penalty for capital offences, murder included, where the offenders are minors. The Children Act
provides that a child offender should not be ordered to be imprisoned, placed in a detention camp or
sentenced to death. This position was applied in Koech and another vs. Republic (2004) 2 KLR 322
(Apondi J and Kimaru AgJ), where minors at the time of the commission of the offence of robbery with
violence. They were convicted and sentenced to detention during the Presidents pleasure in terms of
section 25(2) of the Penal Code. On appeal, it was held that in view of the coming into force of the
Children Act, the penalty of the detention of a minor offender in lieu of the death sentence was no longer
tenable, as section 190 of the Children Act outlaws the holding of a minor in a detention camp. Instead
the offender should be dealt with in terms of section 191 of the Children Act. The court found that on the
evidence on record indicated that the appellants had been properly convicted, but since they were minors
at the time of the commission of the offence they were children for the purposes of the Children Act, and
ordered them set at liberty as they had already served five years in detention camp.
(d) Minors below eight years old
Where the minor is below the age of eight no criminal liability attaches to him, by virtue of section 14(1)
of the Penal Code, and he ought to be acquitted. In Republic vs. Wamboi Kamau (1965) EA 548 (Harris
J), the accused was aged about nine and faced a charge of murdering an infant left in her care. The court
entertained doubts, even after considering medical evidence, whether the accused was over eight years at
the time of the commission of the offence. The doubt was resolved in favour of the accused who was
acquitted of the murder charge. The court underscored the duty on the part of the court in cases of doubt
to satisfy itself judicially of the age of the accused where age affects criminal responsibility. This has to
be dealt with at the commencement of the proceedings. The procedure for inquiring into the age of such a
minor is analogous to that affecting the capital sentence after conviction of an accused aged about
eighteen under section 25(2) of the Penal Code.
By virtue of section 222 a person who becomes an accessory after the offence of murder commits a
felony and is liable to imprisonment for life.
(7) Jurisdiction over Murder
Murder is triable by the High Court. Subordinates courts have no jurisdiction at all.
ATTEMPTED MURDER
19

See Republic vs. Wamboi Kamau (1965) EA 548 (Harris J). In the Ugandan case of Byagonza vs. Uganda (2000) EA 351
(Oder, Tsekooko, Karokora, Kanyeihamba and Mukasa-Kikonyogo JJSC) it was held that one of the legally acceptable ways
of proving age is a statement by a witness of his own age. Where an accused person states his age the trial court may have no
reason to doubt him, and it becomes unnecessary for the court to order medical examination of the accused. See also Rex vs.
Mvula s/o Irove (1944) 11 EACA 112 (Sir Joseph Sheridan CJ, Sir Norman Whitley CJ and Sir John Gray CJ).
20
See also R vs. Kiripo (1942) 20 KLR 60 (Thacker J).
21
See Ekai vs. Republic (1981) KLR 569 (Law, Potter JJA and Simpson AJA)

12

(1) Definition
It is an offence to attempt murder. The offence is defined in sections 220 and 221 of the Penal Code. The
offence is committed when a person attempts to unlawfully to cause the death of another; or with intent
unlawfully to cause the death of another does any act or omits to do any act, which there is a duty to do,
which act or omission is of such nature as to be likely to endanger human life. In simple terms, it is the
doing of an act which endangers the life of another with intent to kill or cause the death of the other,
(2) The Actus Reus
The actus reus for the offence is an act or omission which endangers the life of another.
(3) The Mens Rea
The mens rea is the intention to kill. It was stated in:
R vs. Gwempazi s/o Mukonzho (1943) 10 EACA 101
That it must be shown that that the accused had a positive intention to kill or cause death.22
This position found reinforcement in:
Hamisi s/o Tambi (1954) 20 EACA 176
(Sir Barclay Nihill P, and Sir Newnham Worley VP and Sir Hector Hearne CJ), where it was held that it is
an essential ingredient of the offence of attempted murder to prove an intention to murder and no lesser
intent suffices. The appellant had tried to run down a motor cyclist and was convicted on two counts, of
attempted murder and dangerous driving. The conviction of attempted murder was quashed on appeal on
the ground that there was no proof of an intention to kill.
On the issue of a lesser intent it was stated in:
R vs. Muhoja s/o Manyenye 9 EACA 70,
That it is not sufficient to prove intention to cause grievous harm in a charge of attempted murder.
Zebiyo s/o Ndyoka vs. Reginam (1956) EACA 505
(Sir Newnham Worley P, Sinclair VP and Bacon JA), the appellant had been convicted of the attempted
murder of his wife. In answer to the charge he stated that he struck her with a panga several times as he
believed that she was sleeping with another man, and that he only intended to punish her. It was held that
that statement amounted to an admission that the appellant was guilty of unlawful wounding, but not
necessarily to the offence charged neither was it an admission that he had in fact caused grievous bodily
harm whether with or without intent. The case was remitted to the High Court so that the appellant could
be asked to properly plead to the charge of attempted murder or any other charge that the state might find
fit to lay against him.
The intention to kill is inferred from the evidence tendered in support of the charge.
Ahmed Mohamed Saeed vs. Reginam (1956) 23 EACA 396
(Sir Barclay Nihill P, Sir Newnham Worley VP and Sir Enoch Jenkins JA), it was held that it is the duty
of the court to determine whether, on the facts adduced, it could reasonably infer either that the accused
intended to kill or that he at least knew that what he was doing was so eminently dangerous that he must
in all probability cause death or such bodily injury as was likely to cause death.
The more recent pronouncement on the mens rea necessary for attempted murder is in:
Cheruiyot vs. Republic (1976-1985) EA 47
(Madan, Miller and Potter JJA); where it was emphasised that an essential ingredient of an attempt to
commit an offence is a specific intention to commit that offence. If the charge is one of attempted murder,
the principal ingredient and the essence of the crime is the deliberate intent to murder. It must be shown
that the accused person had a positive intention unlawfully to cause death, and that intention must be
manifested by an overt act. The appellant had set out to kill a particular person, but when he did not find
him he decided to kill the person he found at the scene. He threw a spear at him and missed. He was
22

See also Mustafa Daga s/o Andu vs. Rex (1950) 17 EACA 140 (Sir Barclay Nihill CJ, Sir Graham Paul CJ and Edwards CJ).

13

convicted of attempted murder. An appeal against the conviction was dismissed. It was held that where an
accused person sets out with a positive intention to unlawfully kill a specific person but on realizing that
he cannot kill the particular person, forms an intention there and then to unlawfully kill another person
who happens to be there and he manifests that intention by an overt act by attacking the person who
happens to be there with a spear when he knows that throwing a spear at the person could kill, commits
the offence of attempted murder.
The court should only convict a suspect of attempted murder where there is positive proof of an intention
to kill. It was stated in:
Cheruiyot vs. Republic (1976-1985) EA 47
(Madan, Miller and Potter JJA), that in a prosecution for attempted murder it is not sufficient to prove
that it would have been a case of murder if death had ensued, or that the accused had acted with
indifference as to what was likely to be the fate of the victim, or that he acted in a manner which was so
rash as to endanger the life of another person or as to be likely to cause harm to him, and that an intent
merely to cause grievous harm is not sufficient.
This echoes the position taken earlier by the Court of Appeal for Eastern Africa in:
Rex vs. Luseru Wandera s/o Wandera (1948) 15 EACA 105
(Sir Barclay Nihill CJ, Edwards CJ and Sir John Gray CJ), where it was held that in a prosecution for
attempted murder it is not sufficient to prove that the offence would have been murder if death had
ensued, it must be shown that the accused had a positive intention unlawfully to cause death. It was
further stated that under the Penal Code, unlawfully causing death by an act done with intention to cause
death need not necessarily be murder; notwithstanding the positive intention to kill it may be done in
circumstances of extenuation which reduce the offence to manslaughter or infanticide. If death does not
ensue, by reason of his intent to kill, an accused person would be guilty of an attempt unlawfully to cause
death. Generally, the existence of provocation will not operate to bar a conviction for attempted murder,
but it can be considered in the mitigation of sentence.
(3) Conviction of Related Offences
Where the mens rea for attempted murder is not established, but a different offence is proved, the court
may convict the accused, by virtue of section 179 of the Criminal Procedure Code, of the other offence.
Rex vs. Roy Hull Home (1944) EACA 107
(Sir Joseph Sheridan CJ, Sir Norman Whitley CJ and McRoberts J), it was held that, by dint of section
179(2) of the Kenya Criminal Procedure Code, a person charged with attempted murder may be
convicted of a lesser offence such as assault occasioning actual bodily harm. The appellant had been
charged with attempted murder, but convicted of assault occasioning actual bodily harm. An appeal
against the conviction was dismissed.
Mustafa Daga s/o Andu vs. Rex (1950) 17 EACA 140
(Sir Barclay Nihill CJ, Sir Graham Paul CJ and Edwards CJ), the appellate court was of the opinion that
the intention to unlawfully cause had not been established, and substituted the conviction of attempted
murder with that of unlawfully causing grievous harm.23
(4) Penalty for Attempted Murder
The prescribed penalty for attempted murder is life imprisonment, by virtue of sections 220 and 221 of
the Penal Code. The sentence meted out by the court is at the discretion of the court based on the
circumstances of each case. In Cheruiyot vs. Republic (1976-1985) EA 47 (Madan, Miller and Potter
JJA), the trial court imposed a sentence of seven years imprisonment, but the appellate reduced it to four
years after taking into account the fact that the complainant had not suffered any personal injury.
MANSLAUGHTER
See also Rex vs. Luseru Wandera s/o Wandera (1948) 15 EACA 105 (Sir Barclay Nihill CJ, Edwards CJ and Sir
John Gray CJ)
14
23

(1) Definition
Manslaughter is defined in sections 202 and 205 of the Penal Code. It is unlawful killing without malice
aforethought. Its principal elements are:
(a) the causing of the death of another person,
(b) by an unlawful act or omission, and
(c) death following within a year and a day. Manslaughter is a residual offence to murder.
The distinction between it and murder lies in the absence of malice aforethought. This means that the
actus reus elements for the offence are the same as those required for murder, but the mens rea required
falls short of malice aforethought.
(2) The Actus Reus
(a) A dangerous act
The actus reus required for the offence is an unlawful act or omission causing the death of another
person. The unlawful act must be one which is dangerous and likely to cause injury to another. It is not
necessary that the accused should have known that the act would be likely to cause such injury, what is
important is that a reasonable person considering such an act would have recognized the danger. The test
whether an act is dangerous is an objective one. This means that if an accused person does something
dangerous but does not have the intention of endangering life, he may still be convicted of manslaughter.
The dangerousness test was laid down in the case of:
DPP vs. Newbury (1976) 2 All ER 365
Where was stated that it is manslaughter where death results from an unlawful act directed against the
person involving a considerable risk of injury, but which no reasonable man would foresee as likely to
cause death or grievous harm..
Rex vs. Mutono s/o Luigo and another (1936) 3 EACA
(Sir Joseph Sheridan CJ, Dalton CJ and Hearne J), it was held that to convict of manslaughter it is only
necessary to find that the act of the accused was an unlawful one. The first appellant had assaulted his
wife rendering her unconscious and, when he failed to restore her to consciousness, and he and the
second appellant honestly and reasonably believing her to be dead hanged her by the neck to a tree and
thereby killed her. This was in an effort to mask the cause of death. Their conviction for manslaughter
was upheld. The appellate courts view was that all what was necessary in the circumstances was proof
that the act of the appellants, which caused the death, was unlawful, assuming that at the time of doing
that act they honestly and reasonably but mistakenly believed that the woman was dead.
Rex vs. Jeremiah Singine (1935) 2 EACA 120
(Sir Joseph Sheridan CJ, Hall CJ and Law CJ), it was held that where parties fight immediately upon their
quarrel without weapons, neither taking an unfair advantage of the other resulting in the death of one of
the combatants, the offence would be manslaughter, not murder.
A minor assault, though an unlawful act, cannot be a basis for a charge of manslaughter as the same is not
properly dangerous and likely to cause injury. The accused should not be convicted of manslaughter
where death results from a minor assault, but of a lesser offence, such as assault. This applies in cases
where the accused commits a minor assault on a person with an underlying medical illness or health
weakness.
Rex vs. Petro Mangongo s/o Katwa (1944) 11 EACA 100
(Sir Joseph Sheridan CJ, Sir Norman Worley CJ and Sir John Gray CJ), the appellant had been convicted
of the murder of a minor. He had found the minor, together with other children, herding cattle near river,
which near the appellants farm. Believing that the cattle had damaged his crops he accused the children
while armed with sticks, and the children ran away. Four of the bigger children managed to escape, but he
caught up with two smaller ones, who included the deceased. He seized the deceased by the back of the
neck and pushed him into the river and went away. The children died subsequently, not of drowning but
of pneumonia, largely caused by an infirmity from which the child was suffering. On appeal the
15

conviction was substituted with manslaughter. The assault on the deceased was found to have been minor
and that the appellant had no knowledge that the child had an infirmity which would have made him
vulnerable to pneumonia.
(b) Proof and cause of death
Since the offence is that of causing death, there must be proof of death.
Amir Begum and another vs. Reginam (1956) 23 EACA 402
(Sir Newnham Worley P, Bacon JA and Sir Owen Corrie J), the appellants were convicted of the
manslaughter of a girl whose death they caused by beating. There was ample evidence of the beating, but
no specific medical examination of the body was made to exclude the possibility that she had died of
other possible causes. The court found that there was reasonable doubt that the bodily harm inflicted had
caused death and a reasonable possibility that her death was due to natural causes. The conviction was
substituted with assault occasioning actual bodily harm. The chain of causation is of essence, there must
be evidence linking the accused to the killing.
Rex vs. Qurban Malik and another (1948) 15 EACA 81
(Edwards CJ, Pearson J and Ainley J), the court found that although one appellant did not take part in the
assault which caused the injuries which finally resulted in the death of the deceased and denied all
knowledge of it, there was sufficient evidence linking him with it to justify his conviction of
manslaughter.
(3) The Mens Rea
(a) Malice aforethought mitigated by extenuating circumstances
As indicated above, the mens rea for manslaughter falls short of malice aforethought. This could be on
account of a variety of factors, including the presence of mitigating or extenuating circumstances. Malice
aforethought is mitigated by the elements of provocation, defence of defence, intoxication, mistake of
fact,24 and negligence, among others. A person acting under the influence of such extenuating
circumstances is said to have a less guilty or morally blameworthy mind, and should be convicted of
manslaughter rather than murder. The principles governing provocation, excessive defence of person or
property, mistake of fact and intoxication were discussed earlier, showing the extent to which the
presence of these factors influences the reduction of the offence of murder to that of manslaughter.
Rex vs. Zakayo Lwabijjawo (1947) 14 EACA 128
(Nihill CJ, Sir G Graham Paul CJ and Thacker J), it was held that in a trial for murder where a defence is
put forward and rejected, the court still has a duty to consider the possibility of manslaughter if there is
some evidence to support it.25
Rex vs. Mbologa s/o Nyeshema (1947) 14 EACA 120
(Nihill CJ, Sir G Graham Paul CJ and Bartley J), it was held that proof that an accused person has lied in
his defence to charge of murder does not absolve the court from ascertaining from the whole evidence
whether the crime is murder or manslaughter.

(b) Intention to commit a dangerous act

The element of intention is sufficient in cases where there is intent to do an act which is dangerous or
which endangers life.
(c) Knowledge
Knowledge as an element of mens rea is also relevant and was considered in:
Rex vs. Petro Mangongo s/o Katwa (1944) 11 EACA 100
(Sir Joseph Sheridan CJ, Sir Norman Worley CJ and Sir John Gray CJ). It was stated in Rex vs. Mgambo
bin Kwenyema (1934) EACA 169 (Lucie-Smith Ag CJ, Horne J and Webb J), that if a person feloniously
24
25

See Rex vs. Musomi s/o Rutengra (1937) EACA 91 (Sir Joseph Sheridan P, Webb J and Gamble Ag. J).
See Kinyua vs. Republic (2003) KLR 294 (Tunoi, OKubasu and Keiwua JJA).

16

fires at another in such circumstances as would make the killing of that other person manslaughter, but by
accident he hits and kills a third person whom he never intended to hit at all, he is guilty of manslaughter.
He would be deemed to have known that their act was likely to cause dangerous injury or even death to
someone.
(d) Recklessness
For other cases, the relevant elements would be recklessness and negligence, where death results from
such conduct. These two concepts are distinct, although the courts sometimes treat them as amounting to
the same thing. Recklessness is usually deemed present where the accused has acted in the awareness of
the existence of a risk but proceeds nonetheless. A person who acts recklessly is said to be indifferent as
to the results of his action; in the sense that he does not care if harm ensues from what he does.
Recklessness was fleetingly mentioned by the Court of Appeal in:
Gideon Miano vs. Republic Nairobi CACRA No. 13 of 1999
(Gicheru, Lakha and Bosire JJA), the appellant, a policeman, killed the deceased, a suspect, by shooting
at the back as he sought to flee. The officer did not give chase or any warning, but simply cocked his gun,
aimed and pulled the trigger. In the opinion of the court this amounted to reckless behaviour on the
officers part and he was accordingly guilty of manslaughter.
(e) Negligence
Negligence, on the other hand, involves the doing of something with an attitude which shows less than
the required degree of care. Section 202(2) of the Penal Code, makes the element of negligence a mens
rea requirement in relation to duties concerned with preservation of life or health. It would appear in such
cases that the moral quality of an omission amounting to culpable negligence is the determining factor. A
gross failure to discharge a duty which a reasonable man would consider a very serious failing is likely to
be considered a culpable negligence; whereas a momentary inattention, which a reasonable man is
capable of, might not be so considered.
In Rex vs. Danieri Bisamuli s/o Kite (1943) 10 EACA 42 (Sir Joseph Sheridan CJ, Sir Norman Worley CJ
and Mark Wilson Ag.CJ) and Rex vs. Amosi Onoka s/o Amboya (1943) 10 EACA 69 (Sir Joseph Sheridan
CJ, Sir Norman Worley CJ and Mark Wilson Ag.CJ),
It was is held that the ingredients of manslaughter by negligence are duty of care on the part of the
accused, failure to discharge that duty, death is caused by default on the part of the accused and the
accuseds negligence goes beyond a mere matter of compensation and shows such disregard for the life
and safety of others as to amount to a crime against the state and therefore deserving of punishment.26
James Philip vs. Rex (1952) 19 EACA 231
(Sir Barclay Nihill P, Sir Newnham Worley VP and Ainley J), the appellant was convicted of a rash and
negligent act but acquitted of manslaughter. He had given an order that electrical current be switched on
when he knew that a gang of men were working on poles which were in fact connected to the area into
which the current was switched. He had no authority to give such orders. A linesman was killed as a
result. The appellant found that his negligence was criminal or culpable and much more serious than
would be required to fix him with criminal liability, but the same it was not so high as prove
manslaughter.
Rex vs. Obao s/o Olukamba (1936) 3 EACA 25
(Sir Joseph Sheridan CJ, Abrahams CJ and Knight-Bruce Ag.J), the appellant was convicted on an own
plea of guilty to a charge of manslaughter, and sentenced five years imprisonment with hard labour. He
and the deceased were members of a hunting party, they and others stood in a line several metres apart, an
antelope ran between the deceased and the appellant, the appellant threw his spear at it without waiting
till it had passed through the line and struck the deceased who died of his injuries. The court found that
the deceased was killed in circumstances which amounted to manslaughter by negligence. The court was
26

See also Rex vs. Kaluna Seguja (1935) 2 EACA 85 (Sir Joseph Sheridan P, Webb J and Francis J) and Rex vs. Yokana
Kafero s/o Samvill Letakbulide (1936) 3 EACA 104 (Sir Joseph Sheridan CJ, Law CJ and Lucie-Smith).

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of the view that members of the hunting party had consented to some risk and therefore this was a class
of manslaughter of lesser gravity and reduced the sentence to one of one years imprisonment.
Issa Nurra vs. Rex (1939) 16 EACA 158
(Sir Graham Paul CJ, Edwards CJ and Sinclair J), the appellant was convicted of manslaughter. There
was evidence that the brakes of the bus driven by the appellant were defective and the lights of the
vehicle did not function, but no evidence was adduced as to the width of the bus or that the appellant was
driving on the wrong side of the road. The appellate court found that there was no evidence that the lack
of light or lack of braking power or the bus was caused by the speed of the bus were responsible for the
accident. The court was of the view that the collision was due to a matter of an inch or two of steering
error, which, even if it were all blame on the appellant was not sufficient to constitute a very high degree
of driving negligence required to constitute manslaughter.27
Rex vs. Daudi Magomu s/o Anderea Magombe (1941) 8 EACA 52
(Sir Joseph Sheridan CJ, Sir Henry Webb CJ and Gamble J), the appellant, who was a medical orderly,
had given an intravenous injection of bismuth preparation which was only safe if injected into the
muscles and thereby caused the death of the patient. He was authorized to give the injection. There was
some evidence that the appellant had been given instructions that such injections should be given
intramuscularly, but no evidence that he had been told or had reason to believe that the intravenous
injection would have a poisonous effect likely to cause death. He was convicted of manslaughter. On
appeal it was held that it had not been established that the appellant had been guilty of criminal
negligence.28
(4) Suicide Pacts
A person who kills another in pursuance of a suicide pact commits manslaughter. A suicide pact is an
agreement between persons that they should all die at the hands of one member, who himself shall die in
the execution of the pact. The objective of all involved is the deaths of all of them. This is dealt with in
section 209 of the Penal Code. The rationale is that the accused must have had a settled intention of dying
as a result of entering the pact, and the accused would in such circumstances be considered to be of a
lesser degree of moral guilt, compared with a person guilty of murder. The mens rea required for the
offence is the settled intention to die in that manner.
(5) Penalty for Manslaughter
The penalty prescribed for the offence of manslaughter by section 202 of the Penal Code is a maximum
of life imprisonment. The severity of the sentence depends on the circumstances of the case.
Gedion Kenga Maita vs. Republic Mombasa CACRA No. 35 of 1997
(Omolo, Akiwumi and Lakha JJA), it was stated that in manslaughter cases the court has discretion to
assess the appropriate sentence, and is not bound to award the maximum of sentence of life
imprisonment. The circumstances that ought to be taken into account include the circumstances under
which the offence was committed, the circumstances of the accused person such as whether he is a first
offender, how long he has been in prison awaiting trial and things of that nature. In the matter the
appellant did not have a wife and children, and his brother insulted saying he was a useless man with no
wife and children and that upon his death nobody would remember him. The brother then kicked the
appellant, who lost his cool, ran and got a knife and stabbed his brother to death. He was sentenced to life
imprisonment. On appeal the sentence was reduced to five years imprisonment.29
Orwochi Arani vs. The Republic (1980) KLR 113
(Madan, Law and Potter JJA), the appellant had pleaded guilty to a manslaughter charge. The deceased
had come to the homestead of the appellant and found the appellants sisters celebrating a birth, he was
27

See also Terence John Image vs. R (1957) EA 94 (Sir Ronald Sinclair VP, Briggs and Bacon JA).
See Rex vs. Kosta Rwechungura s/o Tamuzira (1947) 14 EACA 54 (Sir Joseph Sheridan CJ, Sir G Graham Paul CJ and
Thacker J).
29
See also Rex vs. Rubia s/o Waiyu (1947) 14 EACA 66 (Sir Joseph Sheridan CJ, Sir G Graham Paul CJ and Thacker J).
28

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drunk and he asked them why they were rejoicing. He then attacked the appellant who was thatching a
hut. A struggle ensued; the appellant got hold of a panga and stabbed the deceased with it. He was
sentenced to four years imprisonment. On appeal, the court took into account the fact that the appellant
was a young man of twenty-five, who had spent fifteen months in custody at the time of sentence, the
trouble had been started by the deceased, the appellant was unarmed and he apparently had no intention
of having a fight with the deceased. The sentence was substituted with a sentence which ensured his
release on the date of judgment.
Zedekia Lukwago vs. Reginam (1955) EACA 507
(Sir Newnham Worley P, Sinclair VP and Bacon JA), the appellant was convicted of the manslaughter of
a person who entered into his house while the appellant was asleep, and was sentenced to life
imprisonment. On appeal the sentence was reduced to seven years, on the basis that the court ought to
have considered that the deceased started it all, and the accused was entitled to self-defence, defence of
property and to expel an intruder.30
Rex vs. Amimu s/o Mahomedi (1941) 8 EACA 39
(Sir Joseph Sheridan CJ, Sir Norman Worley CJ and Sir Henry Webb CJ), the appellant was sentenced to
ten years imprisonment with hard labour on a plea guilty to manslaughter. He and the deceased had
exchanged words over a woman, whereupon the deceased struck the appellant with a stick. The appellant
retaliated by drawing a knife and killed the deceased with a single stab. The appellate court found the
sentence severe in the circumstances and reduced it to five years.
INFANTICIDE
This refers to the killing by mothers of their infants aged less than twelve months. The offence is defined
in section 210 of the Penal Code. Infanticide is treated as manslaughter if the mother kills her child at a
time when her balance of mind is disturbed by not having recovered fully from the effects of giving birth
or of the effect of lactation.
Yowanina Namayaja vs. Reginam (1953) 20 EACA 204
(Sir Barclay Nihill P, Sir Newnham Worley VP and Bourke J), it was stated that as a rule a woman who is
recently delivered of a child does not expose it for the purpose of destroying it, but for the purpose of
abandoning it, and where a newly-born child has been abandoned the issue of homicidal intent is a matter
of inference, which must be beyond reasonable doubt before a conviction for murder is entered. A mother
who alleges that the balance of her mind was disturbed by reason of giving birth is not really raising an
insanity defence, and the mother need not be dealt with according to the provisions applying to insane
offenders. The mother does not have the same burden of proof as that required of persons raising the
defence of insanity. She is only required to provide some evidence of the fact that the balance of her mind
was affected at the time of the killing. In Yowanina Namayaja vs. Reginam (1953) 20 EACA 204 (Sir
Barclay Nihill P, Sir Newnham Worley VP and Bourke J), it was held that in cases of infanticide the
standard of proof required to show a disturbance of the balance of the mind cannot be so high as is the
case of a defence resting on insanity. The maximum penalty for infanticide is life imprisonment.
SUICIDE
Suicide was regarded at common-law as self-murder. However since the dead cannot be prosecuted, the
Penal Code does not punish suicide. The law focuses on attempted suicide instead. The offence is defined
in sections 225 and 226 of the Penal Code. It is an offence, under section 226, for a person to attempt to
kill himself. Attempted suicide is treated in law as a minor offence, and it is therefore defined in section
226 as a misdemeanour, attracting the general penalty for misdemeanours prescribed in section 36 of the
Penal Code where no punishment is provide for any misdemeanour, imprisonment for a maximum of two
years or a fine or both. In practice, however, those who unsuccessfully attempt suicide are rarely
punished. The reluctance to punish such persons can be explained. First, on the basis that the life of a
person is his own, and he can destroy it if he so wishes, and there is therefore no justification for the state
30

See also Saleh bin Mohamed bin Salim Shikeli vs. Reginam (1955) EACA 437 (Sir Newnham Worley P, Bacon JA and
Windham CJ).

19

to get itself involved in the matter. Secondly, most of those who seek to kill themselves suffer from
psychological problems, and they often require sympathy and treatment rather than punishment.
The related offence is that defined in section 225, of a person to procure or counsel or aid another to kill
himself. The penalty for the offence is a maximum of life imprisonment. This is treated as a more serious
offence since it is a second person aiding or procuring or counseling the would-be suicide seeker to kill
himself. Availing a weapon to a person who has indicated an intention kill themselves amounts to aiding
the person, and it falls under this provision. Giving advice to a person on the best methods of committing
suicide would either be a case of aiding or counseling.
CONCEALING BIRTH
It is an offence, classified as a misdemeanour, for a person, after a woman is delivered of a child, to try to
conceal the birth of the child. This applies whether the child died before, at or after its birth. This offence
is defined in section 227 of the Penal Code.
KILLING AN UNBORN CHILD
This offence is defined in section 228 of the Penal Code. It is the killing of an unborn child. The offence
is committed when a mother who is about to be delivered of a child prevents the child from being born
alive, by any act or omission that, if the child had been born alive and had then died, she would be
deemed to have unlawfully killed the child. The offence lies somewhere between abortion and homicide.
The distinction between abortion and this offence is that in abortion it is not necessary to prove that the
child would have been born alive, whereas for child destruction it must be proved by medical evidence
that the child was capable of being born alive. The two offences, however, overlap to some extent and a
person charged with child destruction may be convicted of abortion.

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