AS CLEAR AS MUD: THE UNCONSTITUTIONALITY OR OTHERWISE OF

ACCOMPLICE CRIMINAL LIABILITY FOR MURDER IN KENYA.

by G Wanyama.*

INTRODUCTION.

The basis for accomplice criminal liability for murder in Kenya is statutory.1In the years after
Cap 63 came into force, England abolished the common law doctrine of pleas through a
statute.2Consequently, in English criminal law, offences are not classified as felonies or
misdemeanours in the manner they are in Cap 63 but rather as crimes of basic or specific
intent.3Therefore, the difference between English and Kenyan homicide law is that in
England, the crime of murder needs the specific intent to kill or cause grievous bodily
harm(GBH)4while Kenyan law uses the ancient common law test for malice aforethought to
justify imposing criminal liability for an unlawful death on a defendant.5The continued use of
ancient common law tests for express and implied ‘malice’6 in Kenyan homicide law means
that the positive intention to kill or cause GBH has been consistently equated to the foresight
of harm just like in English common law.7

The Constitution of Kenya has a Bill of Rights8 which donates certain rights to individuals
our supreme law has jurisdiction over. This Bill of Rights classifies some rights as absolute
while the rest are qualified.9 Qualified rights may be derogated through the exercise of public

*LLB Catholic University of East Africa

1
S21 Chapter 63 Laws of Kenya (Cap 63 )
2
Criminal Justice Act 1967 (CJA 1967): Hyam v DPP [1975] AC 55 [Hyam]: G Lamond, what is a Crime?
(Oxford J of Legal Studies Vol27,2007 )
3
Majewski v DPP [1977] AC 433 [Majewski ]
4
Homicide Act 1957 (EHA 1957): CJA 1967 : R v Cunningham [1982]AC 566[Cunningham]:
5
S 206 Cap 63 :
6
Bromage v Prosser [1825] 4 B & C 247 [Bromage] per Bayley J (at common law , the term ‘malice’ denotes a
wrongful act, done intentionally without just cause or excuse.)
7
S206 (b) cap 63 : S206 (c) Cap 63 : R v James Muriungi [2013]eKLR[James Muirungi]Per Lesit J at pp 9: Kongu
v R [1977] KeCA Crmnl App 26(unrptd)[Kongu]: R v Alice Chelangat Chewen [2007] eKLR [Chewen]:
8
CHAPTER IV Constitution of Kenya (hereafter COK 2010)
9
ART 19(3)(c)COK when read with ART 25 COK: see BP Odhiambo ,Limitation of Rights under the Kenyan
Constitution ,(unpublished LLM thesis University of Pretoria ,2015)

1
or private power.10The legality any such derogation depends on the extent to which the
derogation conforms with the standards set by our supreme law under Article 24.11 The study
maintains that criminal punishment amounts to a derogation of some individual rights
through the exercise of public power.12In regards to the crime of murder, the prescribed
punishment is death by hanging.13 The Supreme Court recently held that the mandatory death
sentence for murder in Cap 63 is unconstitutional because the principle of proportionality is
the cornerstone of Kenya’s criminal justice system.14 There is a similar need to evaluate if the
felony murder rule in Cap 6315disproportionately punishes joint offenders who never
consented to the use of lethal force in order to overcome resistance, avoid detection or
facilitate escaping arrest.

ACCOMPLICE CRIMINAL LIABILITY FOR MURDER IN ENGLAND.

English common law uses the doctrine of common purpose to justify punishing D for the
crimes of P.16 For example in Collison,17 two people had planned to steal apples however when
they were detected by the landowner’s watchman(V), one of them(P) attacked the V with the
intent to overcome resistance and facilitate escape. At trial, D was convicted as an accomplice
in P’s crime of causing GBH. D appealed this arguing that the attack on V by P amounted to
a ‘departure’ from the original plan to only steal apples and thus D should not have been held
liable for the consequences of P’s departure. The appellate court agreed and quashed D’s

10
Rubia and Anr v Mwangi and Ors [2014]eKLR[ Rubia ]: Ikere v Standard Grp Ltd and Anr [2012]eKLR [Ikere]:
Atwal v Singh Amrit [2011]eKLR[ Atwal]: LSK v Nyabuto and 2 Ors [2012]eKLR [Nyabuto]: BA and Anr v Standard
Grp Ltd [2012]eKLR: D Matu , Improving Access to Justice in Kenya through Horizontal Application of the Bill of
Rights and Judicial Review (Strath ULR ,2017)pgs. 63-84(Matu 2017)
11
Andare v AG and 2 Ors [2016] eKLR [Andare ] per Mumbi J
12
NB Paul, The heart of Blackstone (New York: Abigdon Press, 1915)
13
S.204 Cap 63
14
Muruaretu and Anr v R [2017]eKLR[Muruaretu]
15
S206 (c) CAP 63
16
S Powles, Joint Criminal Enterprise-Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity (2004) : A
Cassese ,The proper limits of individual responsibility under the doctrine of joint criminal enterprise (Journal of
International Criminal Justice 5 (1) ,2007) pgs.109-133:T Mullins, Broader Liability for Gang Accomplices:
Participating in a Criminal Gang (Auckland UL Rev. 8 ,1996):
17
R v Collison [1831]4Car&P 565[Collison]

2
conviction because the prosecution evidence had failed to show that the common purpose
involved a plan of using violence.18

In the years prior to EHA 1957 coming into force, the common purpose doctrine may have
been the general basis for accomplice criminal liability, however, the operation of the doctrine
of pleas in English criminal law made the law on accomplice liability for murder unduly
complex as well as uncertain. This is because to convict someone as an accomplice to murder,
the primary liability of the actual killer must be established. This meant the prosecution
evidence must have shown among other things that P’s state of mind was that of ‘malice
aforethought.’ This state of mind necessary to prove murder consists of the following: (1)the
intent to kill; (2) the intention to cause GBH;(3)reckless conduct that cause unlawful
deaths;(4) the intent to commit a felony A but in the course of committing the intended felony,
an unlawful death occurs(Felony B); (5) helping a person who has committed a felony to
escape arrest or police custody and in the process of doing so, an unlawful death ensues. This
broad definition of the fault element needed to establish P’s primary liability for murder,
unfortunately, meant two things. First, accomplice criminal liability may be established
through the prosecution evidence showing that joint offenders had a plan that involved an
agreement to use deadly force in order to overcome resistance, avoid detection and avoid
arrest. Second, that under the ‘felony murder rule’ a joint offender may still be deemed an
accomplice to an unlawful death even if the plan did not include using deadly force to achieve
the common purpose.19

After EHA 1957 came into force, the twin system for accomplice liability for murder was
abolished.20The doctrine of common purpose became the only jurisprudential cornerstone for

18
Collison [1831]
19
Lord Dacres Case [1535] 72 Eng. Rep 458 KB : Mansell and Herbert’s Case [1558] 73 Eng. Rep 279 KB:R v Betts
and Ridley [1931] 22 Cr App R 148 [Betts and Ridley ]:
20
S Prevezer, The English Homicide Act: A New Attempt To Revise The Law of Murder, (COLUM. LR Vol
57,1957): JH Seibold ,The Felony-Murder Rule: In Search of A Viable Doctrine (The Catholic Lawyer23(2) 2017)

3
punishing D for the murders committed by P.21This is because the intent of the statute was to
make murder a crime where the mens rea must be the positive intent to kill or cause GBH.22The
statute consequently eliminated the felony murder rule from English criminal law paving the
way for the landmark decision in Davies.23 This decision was made the very same year EHA
1957 came into force. The appellant’s murder conviction as an accomplice was quashed
because the prosecution failed to prove beyond reasonable doubt, that they were party to a
common intention to use of deadly force to kill or cause GBH to members of a rival youth
gang. Therefore, when P removed a concealed knife and proceeded to fatally stab V, this was
a radical departure from the common intention of only engaging in a physical confrontation
by the two youth gangs.24Consequently, it is only the P who could be held criminally liable
for the stabbing and death of V.

ACCOMPLICE CRIMINAL LIABILITY FOR MURDER IN KENYA.

Section 21 of Cap 63 has been consistently identified as the statutory expression of the
common purpose doctrine.25The leading Kenyan authority on accomplice liability for murder
is the Dickson Munene case.26The Kenyan Court of Appeal quashed the murder conviction of
an appellant accused of being an accomplice to murder because prosecution evidence had
failed to prove, beyond reasonable doubt, that the appellant was party to a pre-arranged plan
to kill V or that such a plan was formulated by the appellants ‘during the course of
events.’27While defining what accomplice liability for murder in Kenya amounted to, the
court said inter alia that :

[I]n order to secure a conviction on the basis of common intention, the prosecution
must prove that the accused had: (a) a criminal intent to commit the offence charged

21
G Hughes, The English Homicide Act of 1957: The Capital Punishment Issue, and Various Reforms in the Law of
Murder and Manslaughter (J. Crim. L. Criminology & Police Sci vol 49,1959)
22
ibid
23
DPP v Davies [1957] AC378[Davies]
24
Davies [1957] : R v Spraggett [1960]Crim LR 840[Spraggett]
25
Wanja Kanyoro v R [1965] EA [Wanja] : R v Stephen Kiprotich Leting and 3 Ors [2009]eKLR [Leting]: Republic v
Mohammed Dadi Kokane & 7 others [2014] eKLR[Dadi Kokane]
26
Dickson Munene Mwangi and Anr v R [2014] eKLR [Dickson Munene]
27
ibid

4
 jointly with others; (b) the act committed by one or more of the perpetrators in respect
of which it is sought to hold an accused guilty, even though it is outside the common
design, was a natural and foreseeable consequence of effecting that common purpose,
and that; (c) the accused was aware of this when he or she agreed to participate in that
joint criminal act.28

This formulation by the Kenyan Court of Appeal is an accurate recognition that the Kenyan
law is in the state that English accomplice law was prior to EHA 1957 coming into force. As
things stand, Cap 63 allows for two systems of accomplice liability in the crime of murder
namely:(1) the common purpose system29and;(2) the felony murder system. 30
This state of
affairs makes this area of Kenyan law as clear as mud.

CONCLUSIONS.

Criminal law has ‘practical value to a society’ when the people it is applied to consider it to
be fair.31A criminal justice system that has fair substantive and procedural laws will be seen
as legitimate by the citizens of a nation.32The benefit of this is that a ‘legitimate criminal justice
system’ promotes the ‘systemic compliance’ of a society through ‘obeying criminal law, the
police and the decisions of criminal courts.’33A feature of a legitimate criminal justice system
is the distribution of criminal liability and punishments in a way society considers to be
fair.34Therefore when a criminal justice system is considered by people to be procedurally
unfair or substantively unjust, such a criminal justice system ‘provokes resistance and
subversion.’35Kenya’s criminal justice system is governed by the supreme law of the

28
Dickson Munene [2014] per Nabuye ,Maraga and Mohammed JJA
29
Wanja [1965] : Leting [2009] : Dadi Kokane [2014]
30
Kongu [1977] : Chewen [2007] :
31
RT Tyler, Why People Obey the Law(1990): online at http://www.des.ucdavis.edu/
32
ibid
33
ibid
34
R v Huges [2002] 2 AC 259 (appeal from St.Lucia)[Hughes Case] :PH Robinson, Distributive Principles of
Criminal Law: Who Should Be Punished? How Much?(2015):online at
http://www.researchgate.net/publication/266098738
35
PH Robinson, Why Does the Criminal Law Care What the Lay Person Thinks Is Just? Coercive Versus Normative
Crime Control (UVLR Vol.86,2002) pg1839-69(Robinson 2002)

5
land.36Therefore, all statutes that preceded it as well as those that are enacted after it came
into force must be aligned with it.37The study limited itself to investigating the effect of
constitutionalizing the principle of proportionality38on the continued application of the felony
murder rule in Kenya’s law on accomplice criminal liability.

The study postulates that the felony murder rule ensures unconstitutional outcomes for joint
offenders who never agreed to a plan that involved the use of deadly violence in order to
overcome resistance, avoid detection and facilitate escape.39 This is because the felony murder
rule ensures that these types of offenders are disproportionately punished with the mandatory
death penalty.40As things stand, the twin system for accomplice liability for murder equates a
wife who joins in on an attack on her husband with the positive intent to kill her or cause her
husband GBH 41
with a concerned mother who facilitates an illegal abortion for her high
school going teenage daughter who subsequently dies.42 The study recommends that
Parliament amends the law on accomplice criminal liability for murder by amending Section
206 of Cap 63 to limit the mens rea needed for murder to the positive intent to kill or cause
GBH.43 This would abolish the felony murder rule in Kenyan criminal law in the same way
EHA 1957 did. Such a change in law is needed make it clear and certain as well as to align
existing laws with emerging jurisprudence that the principle of proportionality must govern
the severity of punishments in Kenya’s criminal justice system.44

36
Art 2 COK: Okunda v R [1970] EA 453[Okunda]: Madhwa and Others v City Council of Nairobi [1968]EA
406[Madhwa]: John Hayo Owuor v Attorney General & 2 others [1991]eKLR[John Hayo]: Gachiengo v R
[2000]eKLR[Gachiengo]: Michuki v Ag [2003]1 EA 158 [Michuki]: Njoya v Ag [2005]1 EA 194 [Njoya]per Ringera
J: Communications Commission of Kenya & 5 Ors v Royal Media Services Limited & 5 Ors [2014] eKLR[CCK
petitions]per Mutinga CJ : CORD and 2 Ors v Republic of Kenya and 10 Ors ,[2015]eKLR[CORD Petition]: CKRC
v National Assembly of Kenya and 2 Ors [2013]eKLR[CKRC petition] per Lenaola J: Raila Amolo Odinga v IEBC and
2 Ors (No.2)[2017] eKLR[Raila (No.2)] per Maraga CJ
37
Art 162 COK: CKRC petition [2013]: CORD petition [2015]: CCK [2014]
38
Art 24 COK
39
Chewen [2007]
40
Art 26(3) COK:S 24 Cap 63:S25 Cap 63:S.204 Cap 63:
41
Wanja [1965]
42
Chewen [2007]
43
Koitee Jackson v R [2009]eKLR[Koitee Jackson]: Hamisi s/o Tambi [1953]20 EACA 176: Cheruiyot v R
[1985]EA47 [Cheruiyot] :
44
Muruaretu [2017] : AOO and 6 Ors v AG and DPP [2017] eKLR [AOO Case] per Mativo J

6
References.

A Cassese , The proper limits of individual responsibility under the doctrine of joint criminal enterprise
(Journal of International Criminal Justice 5 (1), 2007) pgs.109-133

BP Odhiambo, Limitation of Rights under the Kenyan Constitution, (unpublished LLM thesis
University of Pretoria, 2015)

D Matu, Improving Access to Justice in Kenya through Horizontal Application of the Bill of Rights
and Judicial Review (Strath ULR, 2017)pgs. 63-84

G Hughes, The English Homicide Act of 1957: The Capital Punishment Issue, and Various Reforms
in the Law of Murder and Manslaughter (J. Crim. L. Criminology & Police Sci vol 49,1959)

G Lamond, what is a Crime? (Oxford J of Legal Studies Vol27,2007 )

JH Seibold, The Felony-Murder Rule: In Search of A Viable Doctrine (The Catholic Lawyer23(2)
2017)

NB Paul, The heart of Blackstone (New York: Abingdon Press, 1915)

PH Robinson, Distributive Principles of Criminal Law: Who Should Be Punished? How

Much?(2015): online at http://www.researchgate.net/publication/266098738

PH Robinson, Why Does the Criminal Law Care What the Lay Person Thinks Is Just? Coercive
Versus Normative Crime Control (UVa.LR Vol.86,2002) pg1839-69

RT Tyler, Why People Obey the Law(1990): online at http://www.des.ucdavis.edu/

S Powles, Joint Criminal Enterprise-Criminal Liability by Prosecutorial Ingenuity and Judicial

Creativity (2004) :

S Prevezer, The English Homicide Act: A New Attempt To Revise The Law of Murder, (COLUM.
LR Vol 57,1957)

T Mullins, Broader Liability for Gang Accomplices: Participating in a Criminal Gang (Auckland UL
Rev. 8, 1996)