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The Penal Code

The Penal Code Is A Statute That Describes The Principles Of Criminal Law, Whereby, Offences, The Defences Provided For The Accused And Punishments Attached To Those Offences Are Listed. The Penal Code Is A Guideline On The Offences Recognized By Law And The Punishments Relating To Such Offences.

An offence can be committed by either one person or several. Where several people are involved, they may be playing different roles or their involvement may take various forms. The participants are classified as; principal or minor offenders, accessories before and after the fact, aiders, abettors, inciters, counselors and procures. The general name given to these participants is accomplices. These are provided for under Sections 20 to 23 of the Penal Code.

Principle offenders: They are the primary participants in the commission of the offence. They include the person who actually does the prohibited act, the person who assists the other to commit the crime, the person who advices or procures another person to commit an offence.

Aiders and Abetters: They assist the offenders before or at the time of committing a crime. They may help in planning or giving material support for the execution of the crime.

Counsellors and procures: These ones advice and secure the commission of the crime. If the offence is actually committed, the counselors and procures become principal offenders.

Instigators and Inciters: Inciting another person to commit an offence makes the inciter a party to that offence.

Accessories before the fact: They are persons who offer assistance to the actual perpetrators before the commission of the offence. This could be provision of information, advising, or facilitation of any sort.

Accessories after the fact: He is the person who helps the principal offender escape or evade justice, either by helping them escape or by destroying incriminating evidence.

Accomplice: One is an accomplice if he participated as a principal or accessory in the commission of the offence.

 

The Act provides for a penalty for disobeying the set laws. These punishments are only imposed through the orders issued by a court of law. They are provided for under Section 24. They include; death, imprisonment or community service, detention under the Detention Camps Act, fine, forfeiture, payment of compensation, finding security to keep the peace and be of good behavior, and any other punishment provided for by the Penal Code or any other Act.

  1. Death: 
  • The death penalty is provided for the offences of treason, administration of oaths to capital offences, murder, and robbery with violence. The penalty is mandatory, this means 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.
  • The mode of execution is hanging by the neck until the convictee is dead.
  • Exceptions to the death penalty are;
    • Pregnant women: Instead of death penalty they are sentenced to life imprisonment.
    • Minors: For minors they are detained at the pleasure of the president, that is, in a place and condition as the president may direct.
  1. Imprisonment: Imprisonment ranges from a day in prison to life imprisonment. The duration of sentence is at the discretion of the court; however, the court is guided by the legislation creating the offence.
  2. Removal from Kenya: Where a non-citizen of Kenya is convicted of an offence punishable with imprisonment for a period not exceeding twelve months, the court may direct that the person be removed from Kenya either immediately or at the completion of the imprisonment. Where the imprisonment period exceeds 12 months, the removal is mandatory.
  3. Fines: 
    • Where no sum is expressly stated, the amount of fine which may be imposed should not be excessive.
    • A fine can be administered singly or together with imprisonment. The discretion of deciding whether one should give a fine only or they should be committed to imprisonment and pay a fine in addition to that, lies with the court.
  4. Forfeiture: Where one has been convicted of a crime, the property subject to the charge is surrendered to the government. Forfeiture is an additional punishment to the one already imposed or it can be issued singly.

Treason is when a person enjoying the protection of Kenya as a state, that is, a Kenyan citizen, residents and foreigners within boundaries of the Republic of Kenya, imagines or actually does something that will result to the death or wounding or maiming or imprisonment or restraint of the president. Treason can be committed by either a citizen or an alien. The punishment for treason is death. Other offences allied to treason include; treasonable felony, Treachery, Promoting Warlike Undertaking. These are provided for under Sections 40 to 44 of the Penal Code.

SECTION

CRIME

INGREDIENTS

PENALTY

Section 40

Treason

(Felony)

Expressing, printing or writing by words or action the imagining/ intending:

  • Death/ injury/ imprisonment of the President
  • Unlawfully to depose the President

Overthrowing unlawfully the Government

Death

Section 42

Concealment of treason

(Felony)

The offence is committed by:

  • a person who is an accessory after the fact of treason, who receives or assists the person who has committed treason, knowing that person to be guilty of treason, and with an intention to aid his escape
  • a person who knows that another person intends to commit treason, but fails to relay the information to relevant authorities, or fails to prevent the felony of treason

Life Imprisonment

Section 43

Treasonable Felony

(Felony)

It is committed by a person who does not owe allegiance to the Kenyan State but he does an act that amount to treason under Section 40 of the Penal Code.

Life Imprisonment

Section 43A

Treachery

(Felony)

It is committed by a person who does an act:

  • to assist an enemy of the Republic
  • to interfere with maintenance of public order
  • to interfere with the government of Kenya
  • to impede the operations of the disciplined forces
  • to endanger life

Life Imprisonment

Section 44

Promoting Warlike Undertaking

(Felony)

It is committed by a person who:

  • without lawful authority, carries on or makes preparations for any war or warlike undertaking against any person or entity in Kenya

Life Imprisonment

These are rules that may have an effect on the accused person’s responsibility for the alleged crime. The effect could be either in relation to the crime itself or the criminal process. They include; Ignorance of law, Bona fide claim of right, Intention and motive, Mistake of fact, Presumption of sanity, Insanity, Intoxication, Compulsion, and Compulsion by husband.

These Rules are provided for under Sections 7 to 19 of the Penal Code.

(i) Ignorance of the law (Section 7);- Ignorance or mistake of law is not a defence in law. One cannot be excused from punishment just because he did not know he was committing a crime.

(ii) Bona fide claim of right (Section 8);- It is not an offence where one acquires a property in good faith which he has a right to. This extends to destruction of property, where one cannot be held liable for an act which was done honestly. This principle can only be used as a defence if the accused is able to prove that he honestly believed that he was entitled to act the way he did.

(iii) Intention and Motive (Section 9); Intention: One cannot be criminally liable for an act he did innocently and with a pure intention. Motive: The reasons for the conduct of the accused are irrelevant in showing that one had intended to commit a crime. These reasons can only enhance or lessen the one’s responsibility in regards to the crime committed.

(iv) Mistake of fact (Section 10);- One is not liable for a crime where he reasonably mistook of what the facts were. That is if the facts had really been as the accused believed them to be, he would still not be been committing an offence in acting as he did. The mistaken belief has to be that of a fact not law.

(v) Insanity (Section 12);- A person affected by mental illness cannot be criminally liable for an act he did during the moment he was suffering from such illness. The policy attributed to this is that it is wrong to punish those whose actions are attributable to illness rather than responsible choices on their part.

(vi) Intoxication (Section 13); - Being under the influence of alcohol or drugs does not excuse one from being punished for the offence committed; unless, he was in a state where he could not form an intention to commit a crime. A person who drinks alcohol or uses drugs involuntarily exposing the person to aggression and violence, he may successfully plead the defence of intoxication.

(vii) Compulsion (Section 16);- A person who has been forced to do an act which is an offence against his will is not liable for the offence he committed. For one to be accorded this defence, the following conditions must be satisfied;

  • the offence must be committed by two or more offenders
  • the compulsion consists of threats to kill or cause grievous bodily harm to the person compelled if he refuses, and
  • The threats are applied throughout the period of the commission of the offence.

(viii) Compulsion by husband (Section 19); - A married woman is not criminally liable for an act done under the influence or coercion of the husband. However, this does not apply to cases of treason and murder.

 

The Act provides for two major offences under this chapter. These are Sections 67 and 68 of the Penal Code.   

1. Defamation of foreign princes: This is an offence where one defames a foreign dignitary with an intention to disturb peace and friendship between Kenya and the country to which the dignitary belongs.

2. Foreign Enlistment: It is a criminal offence for Kenyan citizens to engage in military activities hostile to friendly foreign states.

SECTION

CRIME

INGREDIENTS

PENALTY

Section 67

Defamation of foreign princes

(Misdemeanor)

Publishing or saying anything to any foreign prince, potentate, ambassador or other foreign dignitary with intent to disturb peace and friendship between Kenya and the country to which the dignitary belongs

Imprisonment or Fine or Both

Section 68

Foreign Enlistment

(Misdemeanor)

Involving oneself in military activities with foreign states without the permission of the President.

Imprisonment or Fine or Both

SECTION

CRIME

INGREDIENTS

PENALTY

Section 108

Perjury and Subornation of Perjury

(Misdemeanor)

It is committed by:

  • a person who, in judicial proceedings or for instituting judicial proceedings, knowingly gives false testimony touching on any matter which is material to any question in the on-going or proposed judicial proceedings
  • a person who helps, advices or procures another person to commit perjury

Fine, Imprisonment

Section 121

Contempt of Court

(Misdemeanor)

It is committed when:

  • a person shows disrespect to any judicial proceedings or to a presiding judicial officer
  • a person fails to attend judicial proceedings upon being summoned
  • causes an obstruction or disturbance in the course of judicial proceedings

 

Fine, in default, imprisonment

Section 122

Rescuing prisoner from lawful custody

(Misdemeanor)

It is committed when a person uses force to rescue or attempt to rescue someone from lawful custody

Fine, Imprisonment

Section123

Escaping from lawful custody

(Misdemeanor)

It is committed by:

  • Aiding the prisoner escape from lawful custody
  • Conveying anything or causing anything to be conveyed into a prison with the intention of facilitating an escape of a prisoner

 

Fine, Imprisonment

Misdemeanor:  It is a minor wrongdoing. That is, a less serious offence for example, disobeying a court order. The punishment mostly accorded to such offences is either a fine or imprisonment for a period not exceeding 6 months.

Felony:  This is a more serious crime, for example, murder or robbery with violence.

SECTION

CRIME

INGREDIENTS

PENALTY

146

DEFILEMENT OF IDIOTS OR IMBECILES

 

(FELONY)

  • Knowing a person to be an idiot or imbecile, you have or attempt to have unlawful carnal connection with him or her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person was an idiot or imbecile

Max imprisonment 14 years

147-149

(Repealed by 3 of 2006.)

  • N/A

N/A

150

(Repealed by 5 of 2003, s. 24.)

  • N/A

N/A

151

DETENTION  OF PERSONS FOR IMMORAL PURPOSES

( FELONY)

  • Detention of a person involuntary in any premise or brothel with intent that that person will have unlawful sexual connection with any person, whether any particular person or generally.

 

152

POWER OF SEARCH FOR PERSONS DETAINED FOR IMMORAL PURPOSES

  • 151(1) Magistrate acting on information under oath of  parent, relative, guardian or from person  acting in the interests of the person so named, believes  that there is reasonable cause to suspect that the person named in the information is unlawfully detained for immoral purposes by any person within the jurisdiction of the magistrate, the magistrate may issue a warrant to search and detain in a place of safety the person named in the information until he or she can be brought before a magistrate.

 

 

 

 

 

 

  • 151(2) Once the person is  brought before the  Magistrate as in 151(1) above, the magistrate may direct that  the person be delivered up to his or her parents or guardians or to be otherwise  be dealt with as circumstances may require.

 

  • 151(3) on the warrant issued in section 151(1) by the Magistrate, the Magistrate may also issue on the same warrant or on another  warrant an order  for apprehension of the person who unlawfully detained the  person and order that the such person be brought before a magistrate and be dealt with in accordance to the law.

 

  • 153(4) under the subsection,  a person is deemed unlawfully detained for immoral purposes if;  the person is detained for purpose of having unlawful sexual ,  a person is under 16 years,  if is of between ages 16 to 18 is detained against the person’s will or the parent’s/ guardian’s will  and finally if the person is of over 18 years, the person is detained against his or her will

 

  • 153(5) a person authorized by a warrant to search under this section may enter by force in the place and remove the person from there.

 

153

MALE PERSON LIVING ON EARNINGS OF PROSTITUTION

(FELONY)

  • 153 (a) male living wholly or partly on the earnings of prostitution

 

  • 153(b)  or in the public place the said male person solicits or importunes for immoral purposes,  

 

 

 

 

  • 153(2) Male person habitually in company of prostitution or aids, abets or compels a prostitute to pursue prostitution, he  shall be deemed to living on the proceeds of prostitution unless he proofs the contrary to the court.

 

154

WOMAN PERSON LIVING ON THE EARNINGS OF PROSTITUTION

(FELONY)

  • Woman knowingly living wholly or in part on the earnings of prostitution, or who is proved to have aided, abetted

or compelled a prostitute to engage in prostitution with any person, or generally.

 

155

WARRANT FOR SEARCH FOR PREMISES USED FOR PROSTIUTION

  • By information on oath a Magistrate has reason to suspect that any house or any part of a house is used by a woman or girl for the purposes of prostitution, and that any person residing in or frequenting the house is living wholly or in part on the earnings of the prostitute, or is exercising control, direction or influence over the movements of the prostitute, the magistrate may issue a warrant authorizing any police officer to enter and search the house and to arrest such person

 

156

OFFENCE RELATING TO OPERATION OF BROTHELS

(Felony)

  • 156(a) keeping or managing or assisting in the management of a brothel;

                        or

  • 156(b) being the tenant, lessee or occupier, or person in charge, of any premises, knowingly permits the premises or any part thereof to be used as a brothel;

or

  • 156(c) being the lessor or landlord of any premises, or the agent of the lessor or landlord, lets the same or any part thereof with the knowledge that the premises or part of is to be used as a brothel, or is wilfully a party to the continued use of the premises as a brothel

 

157

CONSPIRACY TO DEFILE

(FELONY)

  • Conspiring with another to induce any woman / girl or man /boy, by means of any false pretence or other fraudulent means, to permit any man with respect to woman/ girl or any person with respect to man/boy,  to have unlawful carnal knowledge of her or him.

 

 

Three (3) years imprisonment

158

ATTEMPT TO PROCURE ABORTION

(FELONY)

  • A person with  intent  to  procure  miscarriage  of  a woman  whether with or without a  child,  unlawfully  administers to her or causes her to take any poison or other noxious thing, or uses  any force of any kind, or uses any other means whatever, is guilty of a felony.

Fourteen (14) years imprisonment.

159

ATTEMPT TO PROCURE ABORTION BY A WOMAN WITH A CHILD

(FELONY)

  • Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing or uses any other means, or permits any such thing or means to be administered or used to her.

Seven (7) years imprisonment

160

SUPPLYING DRUGS OR INSTRUMENTS TO PROCURE ABORTION

(FELONY)

  • Unlawfully supplying or procuring  for any person any thing, knowing that it is intended to be unlawfully

used to procure the miscarriage of a woman whether she is or is not with child.

Three (3) years imprisonment

161

(Repealed by 3 of 2006)

  • N/A

N/A

162

UNNATURAL OFFENCES

(FELONY)

 

  • 162(a)  having  carnal  knowledge  of  any  person  against  the  order  of nature; or

 

  • 162(b) having carnal knowledge of an animal; or

 

  • 162(c) permits a male person to have carnal knowledge of him or her against the order of nature.

 

 

Fourteen (14) years imprisonment

 

For offence under 162(a) , the

offender shall be liable to imprisonment for twenty-one years (21) if -

 

(i)  the  offence  was  committed  without  the  consent  of  the

person who was carnally known; or

 

(ii) the offence was committed with that person’s consent but

the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act.

163

ATTEMPT TO COMMIT UNNATURAL OFFENCES

  • Attempting  to commit any of the offences set out in section 162 above .

Seven (7) years imprisonment

164

(Repealed by 3 of 2006)

 

  • N/A

N/A

165

INDECENT PRACTICES BETWEEN MALES

  • Male person whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure  the  commission  of  any  such  act  by  any  male  person  with himself or with another male person, whether in public or private.

Five (5) years imprisonment

166 to 168

(Repealed by 3 of 2006)

  • N/A

N/A

169

  (Repealed by 5 of 2003, s. 36)

  • N/A

N/A

SECTION

CRIME

INGREDIENTS

PENALTY

170

(Repealed by 7 of 2007.)

  • N/A

N/A

171

BIGAMY

(FELONY

  • A married spouse who goes through a ceremony of another marriage which is void by reason of its taking place during the life of the husband or wife.
  • Not applicable to a spouse whose marriage has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife if the husband or wife, at the time of the subsequent marriage, has been continually absent from such person for 7 years and not heard from the person for the same period.

Five (5) years imprisonment

172

MARRIAGE WITH  DISHONEST OR FRADULENT INTENT

  • Any person who dishonestly or with a fraudulent intention goes through the ceremony of marriage, knowing that he is not thereby lawfully married.

Five (5) years

imprisonment

173

MASTER NOT PROVIDING OR CARING FOR SERVANTS OR APPRENTICES

(MISDEMEANOUR)

 

 

 

 

 

 

 

 

 

 

 

  • Any master or mistress legally liable to provide for any apprentice or servant necessary food, clothing or lodging, wilfully and without lawful excuse refuses or neglects to provide the same, or unlawfully and maliciously does or causes to be done any bodily harm to such apprentice or servant so that the life of such apprentice or servant is endangered or that his health has been or is likely to be permanently injured.

 

174

CHILD STEALING

(FELONY)

  • 174 (1)  Stealing a child under 14 years by;
  1. forcibly  or  fraudulently  taking or  enticing  away  or  detaining the child; or
  2. receiving or harbouring the child, knowing it to have been so taken or enticed away or detained.

 

  • 174 (2) It is a defence to a charge of any of the offences defined in this section to prove that the accused person claimed in good faith a right to the possession of the child, or, in the case of an illegitimate child, is its mother or claimed to be its father

Seven (7) years

imprisonment

SECTION

CRIME

INGREDIENTS

PENALTY

175

COMMON NUISANCE

( MISDEMEANOR)

  • (1) Doing an act not authorized by law or omits to discharge a legal duty and thereby causes any common injury, or danger or annoyance, or obstructs or cause inconvenience to the public in the exercise of common rights, commits the misdemeanor.

 

(2)Itisimmaterialthattheactoromissioncomplainedofis convenient to a larger number of the public than it inconveniences, but the fact that it facilitates the lawful exercise of their rights by a part of the public may show that it is not a nuisance to any of the public.

1 (one) year

imprisonment

176 to 180

Deleted by Act No. 9 of 1966, s. 71.

 

  • N/A

N/A

181

TRAFFIC IN OBSCENE PUBLICATIONS

( MISDEMEANOR

  • (1) Any person who—

(a) for the purpose of or by way of trade or for the purpose of distribution or public exhibition, makes, produces or has in his possession any one or more obscene writings, drawings, prints, paintings, printed matter, pictures, posters, emblems, photographs, cinematograph films or any other obscene objects, or any other object tending to corrupt morals; or

 

(b) for any of the purposes above mentioned imports, conveys or exports, or causes to be imported, conveyed or exported, any such matters or things, or in any manner whatsoever puts any of them in circulation; or

 

(c) carries on or takes part in any business, whether public or private concerned with any such matters or things, or deals in any such matters or things in any manner whatsoever, or distributes any of them, or exhibits any of them publicly, or makes a business of lending any of them; or

 

(d) advertises or makes known by any means whatsoever, with a view to assisting the circulation of or traffic in any such matters or things, that a person is engaged in any of the acts referred to in this section, or advertises or makes known how, or from whom, any such matters or things can be procured either directly or indirectly; or

 

(e) publicly exhibits any indecent show or performance or any show or performance tending to corrupt morals,is guilty of a misdemeanor.

 

(2) , in respect of any of the offences specified in paragraphs (a), (b), (c) and (d) of subsection (1), any constituent element thereof is committed in Kenya, such commission shall be sufficient to render the person accused of such offence triable therefore in Kenya.

  • (3) A court, on convicting any person of an offence against this section, may order to be destroyed any matter or thing made, possessed or used for the purpose of that offence.

 

  • (4)          A court may, on the application of the Director of Public Prosecutions, the Solicitor-General, a State Counsel or a Superintendent of Police, order the destruction of any obscene matter or thing to which this section relates, whether any person may or may not have been convicted under this section in respect of the obscene matter or thing.

Two (2) years or to a fine of seven thousand shillings (Kshs.7000).

182

IDLE AND DISORDERLY PERSONS

( MISDEMEANOR)

  The following persons shall be deemed  idle and disorderly persons—

  • (a)           every common prostitute behaving in a disorderly or indecent manner in any public place;

 

  • (b)  every person causing, procuring or encouraging any person to beg or gather alms;

 

  • (c) deleted by Act No. 61 of 1968, s. 22;

 

  • (d)          every person who publicly conducts himself in a manner likely to cause a breach of the peace;

 

  • (e) every person who without lawful excuse publicly does any indecent act;

 

  • (f)           every person who in any public place solicits for immoral purposes;

 

(g) deleted by Act No. 61 of 1968, s. 22,

 

 

One (1) month imprisonment or fine not exceeding one hundred shillings (Kshs.100), or both for first offense , for every subsequent offence to imprisonment for one year (1 year).

183

Deleted by Act No. 5 of 2003, s. 37.

N/A

N/A

184

UNATHOURIZED UNIFORMS

(MISDEMEANOR)

184(1) Not in the disciplined forces or the police force, or any other armed forces for the time being lawfully present in Kenya, wears without the permission of the Minister or without other lawful authority the uniform of any of those forces, or any dress having the appearance or bearing any of the regimental or other distinctive marks of such uniform, is guilty of a misdemeanor.

 

Not applicable to plays, or in the course of a music-hall or circus performance or in the course of any bona fide military representation.

 

184 (2) Unlawfully wearing the uniform of any of the forces aforesaid, or any dress having the appearance or bearing any of the regimental or other distinctive marks of any such uniform, in such a manner or in such circumstances as to be likely to bring contempt on that uniform, or employs any other person so to wear such uniform or dress, is guilty of a misdemeanor.

 

 

(3)          Not being in the service of Kenya or not having previously received the written permission of the Minister so to do, imports or sells or is found in possession for sale the uniform or dress mentioned in this section, or the buttons or badges appropriate thereto, is guilty of a misdemeanor.

 

Provided that nothing in this subsection shall be deemed to prohibit the importation of any such uniform or dress by any person who is lawfully in possession thereof.

(4)          Such uniform related to the above offences shall be forfeited unless the Minister otherwise orders.

One (1) month  imprisonment or to a fine of six hundred shillings (Kshs600)

 

 

184 (2) Three months  imprisonment or to a fine of one thousand two hundred shillings.

 

 

184 (3) six months imprisoment or to a fine of six thousand shillings.

 

186

SPREADING INFECTION

( MISDEMEANOR) 

Unlawfully or negligently does any act which is, and which  she orhe knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life.

 

187 to 190

Deleted by Act No. 8 of 1965, s. 40.

N/A

N/A

191

FOULING WATER

(MISDEMEANOUR)

  • Voluntarily corrupting or fouling the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used.

 

192

FOULING AIR

(MISDEMEANOUR)

  • voluntary vitiatong the atmosphere in any place, so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way.

 

193

OFFENSIVE TRADES

  • For the purposes of trade or otherwise, makes loud noises or offensive or unwholesome smells in such places and circumstances as to annoy any considerable number of persons in the exercise of their common rights commits an offence.

One (1) year imprisonment

SECTION

CRIME

INGREDIENTS

PENALTY

194

DEFINITION OF LIBEL

(MISDEMEANOUR)

  • Unlawfully publishing any defamatory matter by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, concerning another person, with intent to defame that other person.

 

195

DEFINITION OF DEFAMATORY MATTER

  • Is matter likely to injure the reputation of by exposing  the person to hatred, contempt or ridicule, or likely to damage any person‘s profession or trade by an injury to his or her reputation; and it is not important whether the defamed person is alive or dead at the time of publication of defamatory matter.

 

196

DEFINITION OF PUBLICATION

196(1)

Occurs when the print, writing, painting, effigy or other means by which the defamatory matter is conveyed either by exhibition, reading, recitation, description, delivery or otherwise, that the defamatory meaning thereof becomes known or is likely to become known to either the person defamed or any other person.

196(2)

It is not necessary for libel that a defamatory meaning should be directly or completely expressed; and it suffices if such meaning and its application to the person alleged to be defamed can be collected either from the alleged libel itself or from any extrinsic circumstances, or partly by the one and partly by the other means.

 

 

197

DEFINITION OF UNLAWFUL PUBLICATION

Publication is unlawful unless—

(a)

the matter is true and it was for the public benefit that it should be published; or

(b)

it is privileged on one of the grounds mentioned in the Chapter.

       

 

 

 

 

 

 

 

 

 

198

CASES IN WHICH PUBLICATION OF DEFAMATORY MATTER IS ABSOLUTELY PRIVILEGED

(1)

Publication of defamatory matter is absolutely privileged in the following cases—

(a)

if the matter is published by the President, or by the Cabinet of Ministers, or in Parliament, in any case in an official document or proceeding; or

 

(b)

 

if the matter is published in the Cabinet of Ministers, or in Parliament, in any case by the President, or by a Minister, or by a Member of Parliament, as the case may be; or

       

 

(c)

if the matter is published by order of the President or by order of the Cabinet of Ministers; or

(d)

if the matter is published concerning a person subject to military or naval discipline for the time being, and relates to his conduct as a person subject to such discipline, and is published by some person having authority over him in respect of such conduct, and to some person having authority over him in respect of such conduct; or

       

 

(e)

if the matter is published in the course of any judicial proceedings by a person taking part therein as a judge, magistrate, commissioner, advocate, assessor, witness or party thereto; or

(f)

if the matter published is in fact a fair report of anything said, done or published in the Cabinet of Ministers or in Parliament; or

       

 

(g)

if the person publishing the matter is legally bound to publish it.

(2)

Where a publication is absolutely privileged, it is immaterial for the purposes of this Chapter whether the matter be true or false, and whether it be or be not known or believed to be false, and whether it be or be not published in good faith:

Provided that nothing in this section shall exempt any person from any liability to punishment under any other Chapter of this Code or under any other written law in force within Kenya.

 

 

199

CASES IN WHICH PUBLICATION OF DEFAMATORY MATTER IS CONDITIONALLY PRIVILEGED

A publication of defamatory matter is privileged, on condition that it was published in good faith, if the relation between the parties by and to whom the publication is made is such that the person publishing the matter is under some legal, moral or social duty to publish it to the person to whom the publication is made or has a legitimate personal interest in so publishing it, provided that the publication does not exceed either in extent or matter what is reasonably sufficient for the occasion, and in any of the following cases, namely—

(a)

if the matter published is in fact a fair report of anything said, done or shown in a civil or criminal inquiry or proceeding before any court:

Provided that if the court prohibits the publication of anything said or shown before it, on the ground that it is seditious, immoral or blasphemous, the publication thereof shall not be privileged; or

(b)

if the matter published is a copy or reproduction, or in fact a fair abstract, of any matter which has been previously published, and the previous publication of it was or would have been privileged under section 198; or

       

 

(c)

if the matter is an expression of opinion in good faith as to the conduct of a person in a judicial, official or other public capacity, or as to his personal character so far as it appears in such conduct; or

(d)

if the matter is an expression of opinion in good faith as to the conduct of a person in relation to any public question or matter, or as to his personal character so far as it appears in such conduct; or

       

 

(e)

if the matter is an expression of opinion in good faith as to the conduct of any person as disclosed by evidence given in a public legal proceeding, whether civil or criminal, or as to the conduct of any person as a party, witness or otherwise in any such proceeding, or as to the character of any person so far as it appears in any such conduct as in this paragraph mentioned; or

(f)

if the matter is an expression of opinion in good faith as to the merits of any book, writing, painting, speech or other work, performance or act published or publicly done or made or submitted by a person to the judgment of the public, or as to the character of the person so far as it appears therein; or

       

 

(g)

if the matter is a censure passed by a person in good faith on the conduct of another person in any matter in respect of which he has authority, by contract or otherwise, over the other person, or on the character of the other person so far as it appears in such conduct; or

(h)

if the matter is a complaint or accusation made by a person in good faith against another person in respect of his conduct in any matter, or in respect of his character so far as it appears in such conduct, to any person having authority, by contract or otherwise, over that other person in respect of such conduct or matter, or having authority by law to inquire into or receive complaints respecting such conduct or matter; or

 

(i)

if the matter is published in good faith for the protection of the rights or interests of the person who publishes it, or of the person to whom it is published, or of some person in whom the person to whom it is published is interested.

 

 

200

EXPLANATION AS TO GOOD FAITH

Publication is not made in good faith within the meaning of section 199, if it is made to appear either—

 

(a)           that the matter was untrue, and that he did not believe it to be true; or

 

(b)          that the matter was untrue, and that he published it without having taken reasonable care to ascertain whether it was true or false; or

(c)           that, in publishing the matter, he acted with intent to injure the person defamed in a substantially greater degree or substantially otherwise than was reasonably necessary for the interest of the public or for the protection of the private right or interest in respect of which he claims to be privileged.

 

SECTION

CRIME

INGREDIENTS

PENALTY

202 read with 205

MANSLAUGHTER

(FELONY)

  • (1)          unlawful act or omission causes the death of another person

 

  • (2) An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.

Life imprisonment

 

 

 

 

 

 

 

 

 

 

 

 

 

203 read with 204

MURDER

(FELONY)

 

person with malice aforethought  (intention) causes death of another person by an unlawful act or omission is guilty of murder

Death sentence ( compulsory)

206

MALICE AFORETHOUGHT

 

Malice aforethought  is proved by evidence proving any one or more of the following circumstances—

(a)           an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;

 

(b)          knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by not caring whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;

 

(c)           an intent to commit a felony;

 

(d)          an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

 

207

KILLING ON PROVOCATION

(FELONY)

  • A person who  commits an offence that would  otherwise constitute murder but does it in the heat of passion caused by sudden provocation as defined in section 208 below, and before there is time for his passion to cool, is guilty of manslaughter only.

 

208

DEFINIITON OF PROVOCATION

(1)

The term “provocation” means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.

(2)

When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.

 

(3)

A lawful act is not provocation to any person for an assault.

(4)

An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.

 

(5)

An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.

 

 

209

SUICIDE PACTS

(1)

It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other killing himself or being killed by a third person.

(2)

Where it is shown that a person charged with the murder of another killed the other or was a party to his killing himself or being killed, it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between him and the other.

 

(3)

For the purposes of this section, “suicide pact” means a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.

 

 

210

INFANTICIDE

( FELONY)

  • Where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent on the birth of the child, then, notwithstanding that the circumstances were such that but for the provisions of this section the offence would have amounted to murder, she shall be guilty of a felony, to wit, infanticide, and may for that offence be dealt with and punished as if she had been guilty of manslaughter of the child.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

211

SENTENCE OF DEATH NOT TO BE PASSED ON PREGNANT WOMAN

  • Pregnant woman sentenced to death as set out in section 212, the sentence shall be commuted to life imprisonment.

Life imprisonment

212

PROCEDURE WHERE WOMAN CONVICTED OF CAPITAL OFFENCE ALLEGES SHE IS PREGNANT

(1)

Where a woman convicted of an offence attracting a death sentence alleges that she is pregnant,  and the court is convinced , the trial judge shall make a determination whether the woman is pregnant before a sentence is passed.

(2)

The judge shall hold that the woman is not pregnant unless it is prove affirmatively that she is pregnant after hearing evidence from the woman or  on part of the Republic.

 

(3)

The woman alleging to be pregnant may appeal to the Court of Appeal if the trial judge finds that she is not pregnant. The Court of Appeal if convinced will quash the decision of the trial judge and sentence the woman to life imprisonment

(4)

If for any reason whatsoever the trial judge is unable to sit for the purpose of determining the question whether or not the woman is pregnant, then some other judge of the High Court shall sit and determine that question.

 

 

213

CAUSING DEATH DEFINED

A person causes death in any of the following cases—

 

(a)           if he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatment which causes death. In this case it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith or was so employed without common knowledge or skill;

 

(b)          if he inflicts bodily injury on another which would not have caused death if the injured person had submitted to proper surgical or medical treatment or had observed proper precautions as to his mode of living;

(c)           if by actual or threatened violence he causes such other person to perform an act which causes the death of such person, such act being a means of avoiding such violence which in the circumstances would appear natural to the person whose death is so caused;

(d)          if by any act or omission he hastened the death of a person suffering under any disease or injury which apart from such act or omission would have caused death;

(e)          if 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.

 

 

214

WHEN CHILD IS  DEEMED TO BE A PERSON

  • A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is severed or not.

 

215

LIMITATION AS TO TIME OF DEATH

(1)

A person is not deemed to have killed another if the death occurs after a year and a day of the cause of death (infliction of the alleged cause of injury).

(2)

Such period is reckoned inclusive of the day on which the last unlawful act contributing to the cause of death was done.

 

(3)

When the cause of death is an omission to observe or perform a duty, the period is reckoned inclusive of the day on which the omission ceased.

(4)

When the cause of death is in part an unlawful act, and in part an omission to observe or perform a duty, the period is reckoned inclusive of the day on which the last unlawful act was done or the day on which the omission ceased, whichever is the later.

 

 

SECTION

CRIME

INGREDIENTS

PENALTY

216

RESPONSIBILITY OF PERSON WHO HAS CHARGE OF ANOTHER

  • A person taking care of another who is unable by reason of age, sickness, unsoundness of mind, detention or any other cause to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and he shall be deemed to have caused any consequences which adversely affect the life or health of the other person by reason of any omission to perform that duty.

 

217

DUTY OF MASTERS

  • A master or mistress who has contracted to provide necessary food, clothing or lodging for any servant or apprentice under the age of sixteen years to provide the same; and he or she shall be deemed to have caused any consequences which adversely affect the life or health of the servant or apprentice by reason of any omission to perform that duty.

 

 

 

 

218

DUTY OF PERSONS DOING DANGEROUS ACTS

  • It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing the act and shall be responsible for any adverse effect on health or life for failure to observe such reasonable care.

 

 

 

 

 

219

DUTY OF PERSONS IN CHARGE OF DANGEROUS THINGS

  • A person in charge or in control  of anything dangerous is obliged to take reasonable care to avoid danger that may be caused by such a thing and the person shall be  held responsible to any adverse consequences to life and health that may emanate from failure to observe such care

 

SECTION

CRIME

INGREDIENTS

PENALTY

220

ATTEMPT TO MURDER

(FELONY)

 

(a) attempting to unlawfully cause the death of another;

or

 

(b) with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do,

such act or omission being of such a nature as to be likely to endanger human life,

is guilty of a felony.

Life imprisonment

221

ATTEMPT TO MURDER BY CONVICT

(FELONY)

  • A person serving a 3 year prison sentence or more who attempts to commit murder of another.

Life imprisonment

222

ACCESSORY AFTER THE FACT TO MURDER

(FELONY)

  • Any person who becomes an accessory after the fact to murder is guilty of a felony.

Life Imprisonment

223

THREATS TO KILL

(FELONY)

Conveying or causing conveyance of  a threat to kill in writing or not.

 

 

Ten (10) years imprisonment

224

CONSPIRACY TO MURDER

(FELONY)

Conspiring with another to kill any person within or without Kenya.

Fourteen (14) years imprisonment

225

AIDING SUICIDE

(FELONY)

 (a) procuring another to kill oneself ; or

 

(b) counsels another to kill oneself and thereby induces  the person to do so;

 

or

 

(c) aids another in killing himself

 

Life Imprisonment

226

ATTEMPTIN SUICIDE

(MISDEMEANOR)

Attempting  to kill oneself.

 

227

CONCEALING BIRTH

(MISDEMEANOR)

Concealing the body of a child on being born, whether the child died before, at or after its birth.

 

228

KILLING UNBORN CHILD

Preventing a child from being born alive by any act or omission of such a nature that, if the child had been born alive and then dies, the person would be deemed to have unlawfully killed the said child.

Life imprisonment

SECTION

CRIME

INGREDIENTS

PENALTY

229

DISABLING IN ORDER TO COMMIT FELONY OR MISDEMEANOUR.

(FELONY)

  • choking, suffocating or strangling with intent to commit or to facilitate the commission of a felony or misdemeanour, or to facilitate the flight of an offender after the commission or attempted commission of a felony or misdemeanour, renders or attempts to render any person incapable of resistance, is guilty of a felony .

Life imprisoment

230

STUPEFYING IN ORDER TO COMMIT FELONY OR MISDEMEANOUR.

(FELONY)

  • With intent to commit or to facilitate the commission of a felony or misdemeanour, or to facilitate the flight of an offender after the commission or attempted commission of a felony or misdemeanour, administers or attempts to administer any stupefying or overpowering drug or thing to any person, is guilty of a felony.

Life imprisonment

231

ACTS INTENDED TO CAUSE GRIEVOUS HARM OR TO PREVENT ARREST.

(FELONY)

  • With intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person –

 

(a) unlawfully wounds or does any grievous harm to any person by any means whatever; or

 

(b) unlawfully attempts in any manner to strike any person with any kind of projectile or with a spear, sword, knife or other dangerous or offensive weapon; or

 

(c) unlawfully causes any explosive substance to explode; or

 

(d) sends or delivers any explosive substance or other dangerous or noxious thing to any person; or

 

(e) causes any such substance or thing to be taken or received by any person; or

 

(f) puts any corrosive fluid or any destructive or explosive substance in any place; or

 

(g) unlawfully casts or throws any such fluid or substance at or upon any person, or otherwise applies any such fluid or substance to the person of any person,

is guilty of a felony .

Life imprisonment

232

PREVENTING ESCAPE FROM WRECK.

(FELONY)

 (a) Unlawfully  preventing or obstructing  any person who is on board of, or is escaping from, a vessel which is in distress or wrecked, in his endeavours to save his life; or

 

(b) Unlawfully  obstructing any person in the person’s endeavours to save the life of any person so situated, is guilty of a felony.

Life imprisonment

233

INTENTIONALLY ENDANGERING SAFETY OF PERSONS TRAVELLING BY RAILWAY

(FELONY)

With intent to injure or to endanger the safety of any person travelling by any railway, whether a particular person or not -

 

(a) places anything on the railway; or

 

(b) deals with the railway, or with anything whatever upon or near the railway, in such a manner as to affect or endanger the free and safe use of the railway or the safety of any such person; or

 

 

 

(c) shoots or throws anything at, into or upon, or causes anything to come into contact with, any person or thing on the railway; or

 

(d) shows any light or signal, or in any way deals with any existing light or signal, upon or near the railway; or

 

(e) failing to do a duty one is obliged to do and thus causes the safety of any such person to be endangered.

 

Life imprisonment

234

CAUSING GRIEVOUS HARM

(FELONY)

Unlawfully inflicting grievous harm to another person

 

Life imprisonment

235

ATTEMPTING TO INJURE BY EXPLOSIVE SUBSTANCES.

(FELONY)

With intent to harm another, unlawfully puts any explosive substance in any place.

Fourteen (14) years imprisonment

236

MALICIOUSLY ADMINISTERING POISON WITH INTENT TO HARM.

(FELONY)

With intent to injure or annoy another,  unlawfully causes  administers any poison or noxious thing leading to the victim person’s  life being endangered or causing grievous harm to the person.

Fourteen (14) years imprisonment

237

UNLAWFUL WOUNDING OR POISONING.

(MISDEMEANOR)

 (a) unlawfully wounding  another; or

 

(b) unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to, or taken by, any person.

Five (5) years imprisonment

238

INTIMIDATION AND MOLESTATION

(1) intimidating  or molesting  a person.

 

(2) Intimidating another with intent to cause alarm to that person or to cause him to do any act which he is not legally bound to do or to omit to do any act which he is legally entitled to do, causes or threatens to cause unlawful injury to the person, reputation or property of that person or anyone in whom that person is interested.

 

(3) molesting another person who, with intent as aforesaid, dissuades or attempts to dissuade, by whatever means, anyone from entering or approaching or dealing at any premises at which that person carries on trade or business or works or otherwise from dealing with that person, or with any person by whom that person is employed, in the course of his trade or business, or watches and besets any premises where that person resides or works or carries on trade or business or happens to be, or the approaches to such premises, or persistently follows that person or anyone in whom that person is interested from place to place, or interferes with any property owned or used by, or deprives of or hinders in the use of such property, that person or anyone in whom that person is interested.

 

(4) Nothing in subsection (3) shall apply to any peaceful picketing which is lawful under the provisions of any law relating to trade unions or trade disputes within the meaning of the Trade Unions Act.

238(1) imprisonment not exceeding three (3) years.

 

239

FAILURE TO SUPPLY NECESSARIES.

(FELONY)

Person mandated with providing for another the necessaries of life, without lawful excuse fails to do so, whereby the life of that other person is or is likely to be endangered or his health is or is likely to be permanently injured.

Three (3) years imprisonment

240

SURGICAL OPERATION.

No criminal responsibility by a person performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.

 

241

EXCESS OF FORCE.

Person authorized by law or by the consent of the person injured by him to use force is criminally responsible for any excess, according to the nature and quality of the act which constitutes the excess.

 

242

CONSENT

Notwithstanding anything contained in section 241, consent by a person to the causing of his own death or his own maim does not affect the criminal responsibility of any person by whom the death or maim is caused.

 

242 A

SUPPLY OF HARMFUL SUBSTANCES TO CHILDREN.

(1) Supplying  or offering to a child -

 

 

 

(a) any petroleum distillate, glue or other substance consisting of or containing matter having stupefying or hallucinogenic properties; or

 

(b) any substance which the Minister responsible for health has declared, by notice published in the Gazette, to be a substance to which this section applies, with intent that the child should inhale, consume or otherwise abuse the substance, or knowing or having reasonable cause to suspect that the child is likely to do so, is guilty of a misdemeanour and liable to imprisonment for three years.

 

(2) The provisions of this section are in addition to, and do not limit the operation of -

 

(a) any provision of Chapter XX or XXII or any other provision of this Code;

 

(b) the provisions of section 16 and 22 of the Children Act; or

 

(c) the provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act or any other written law.

 

(3) In this section, “child” means a person under the age of eighteen years.

 

SECTION

CRIME

INGREDIENTS

PENALTY

243

RECKLESS AND NEGLIGENT ACTS.

In a manner so rash or negligent as to endanger human life or to be likely to cause harm to any other person-

(a) drives any vehicle or rides on any public way; or

 

(b) navigates, or takes part in the navigation or working of, any vessel; or

 

(c) does any act with fire or any combustible matter, or omits to take precautions against any probable danger from any fire or any combustible matter in his possession; or

(d)  doesn’t take precautions against probable danger from any animal in his possession; or

 

(e) gives medical or surgical treatment to any person whom he has undertaken to treat; or

 

(f) dispenses, supplies, sells, administers or gives away any medicine or poisonous or dangerous matter; or

 

(g) does any act with respect to, or omits to take proper precautions against any probable danger from, any machinery of which he is solely or partly in charge; or

(h) does any act with respect to, or omits to take proper precautions against any probable danger from, any explosive in his possession,

is guilty of a misdemeanour.

 

244

OTHER NEGLIGENT ACTS CAUSING HARM.

(MISDEMEANOR)

Unlawful act or omission  to do an act which it is his duty to do, not being an act or omission specified in section 243 by which act or omission harm is caused to any person

Six (6) months imprisonment

245

DEALING IN POISONOUS

SUBSTANCES IN NEGLIGENT MANNER.

(MISDEMEANOR)

  • Any act in a manner so rash or negligent  with regard to poisonous substances as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such care with any poisonous substance in his possession as is sufficient to guard against probable danger to human life from such poisonous substance.

Six (6) months imprisonment or to a fine of seven thousand shillings( Kshs.7,000).

246

ENDANGERING SAFETY OF PERSONS TRAVELLING BY RAILWAY.

(MISDEMEANOR)

  • By unlawful act or omission not specified in section 233, causes the safety of any person travelling by any railway to be endangered.

 

247

EXHIBITION OF FALSE LIGHT, MARK OR BUOY.

  • Exhibiting any false light, mark or buoy, intending or knowing it to be likely that the exhibition will mislead any navigator.

Seven (7) years imprisonment

248

CONVEYING PERSON BY WATER FOR HIRE IN UNSAFE OR OVERLOADED VESSEL.

(MISDEMEANOR)

  • knowingly or negligently conveying, or causing conveyance for hire, any person by water in any vessel, when that vessel is in such a state or so loaded as to be unsafe.

 

249

DANGER OR OBSTRUCTION IN PUBLIC WAY OR LINE OF NAVIGATION.

  • Act done or omission to take reasonable care with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation,

Fine

SECTION

CRIME

INGREDIENTS

PENALTY

250

COMMON ASSAULT

(MISDEMEANOR)

  • unlawfully assaulting another

One (1) year imprisonment if the assault is not committed in circumstances for which a greater punishment is provided in the Penal Code.

251

ASSAULT CAUSING ACTUAL BODILY HARM.

(MISDEMEANOR)

  • Assault occasioning actual bodily harm.

Five(5) years imprisonment

252

ASSAULT ON PERSONS PROTECTING WRECK.

(MISDEMEANOR)

  • Assaulting, strikes or wounding  any magistrate, officer or other person lawfully authorized in or on account of the execution of his duty in or concerning the preservation of any vessel in distress, or of any vessel or goods or effects wrecked, stranded or cast on shore, or lying under water.

Seven (7) years imprisonment

253

OTHER ASSAULTS

(MISDEMEANOR)

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

 

  • (b) assaulting, resisting or wilfully obstructing any police officer in the due execution of his duty, or any person acting in aid of that officer; or

 

 

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

 

  • (d) assaulting, resisting or obstructing any person engaged in lawful execution of process, or in making a lawful distress, with intent to rescue any property lawfully taken under such process or distress; or

 

  • (e) assaulting any person on account of any act done by him in the execution of any duty imposed on him by law.

 

Five(5) years imprisonment

SECTION

CRIME

INGEDIENTS

PENALTY

254 as read with 257

KIDNAPPING FROM KENYA.

(FELONY)

  • Conveying any person beyond the limits of Kenya without the consent of that person or person legally authorized to give such consent

Seven (7) years imprisonment

255 as read with 257

KIDNAPPING FROM LAWFUL GUARDIANSHIP.

(FELONY)

  • Taking or enticing any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of a lawful guardian of the minor or person of unsound mind, without the consent of the guardian

Seven (7) years imprisonment

256

DEFINITION OF ABDUCTION.

  • Forcefully compelling, or by any deceitful means induces, any person to go from any place is said to abduct that person.

 

258

KIDNAPPING

OR ABDUCTING IN ORDER TO MURDER.

(FELONY)

  • Kidnaping or abducting any person in order to murder, or may be so disposed of as to be put in danger of being murdered.

Ten (10) years

259

KIDNAPPING OR ABDUCTING WITH INTENT TO CONFINE.

  • Kidnaping or abducting any person with intent to cause that person to be secretly and wrongfully confined.

Seven (7) years

260

KIDNAPPING OR ABDUCTING IN ORDER TO SUBJECT TO AMONG OTHERS GRIEVOUS HARM, SLAVERY

(FELONY)

  • Kidnaping or abducting any person  so as to subject or may be disposed of as to be put in danger of being subjected to grievous harm, or knowing it to be likely that such person will be so subjected or disposed of.

Ten (10) years imprisonment

261 as read with 263

WRONGFULLY CONCEALING OR KEEPING IN CONFINEMENT KIDNAPPED OR ABDUCTED PERSON

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

One (1) year imprisonment or to a fine of fourteen thousand shillings (Kshs 14,000).

262

 

 

 

 

 

 

KIDNAPPING OR ABDUCTING CHILD

UNDER FOURTEEN YEARS WITH INTENT TO STEAL FROM ITS PERSON.

 

 

  • Kidnaping or abducting any child under the age of fourteen years with the intention of taking dishonestly any movable property from the person of such child.

 

 

Seven (7) years imprisonment

 

 

 

 

264 and 265

(Repealed by 8 of 2010, 2nd Sch.).

N/A

N/A

266

UNLAWFUL COMPULSORY LABOUR.

(MISDEMEANOR)

Unlawfully compelling any person to labour against the will of that person.

 

SECTION

CRIME

INGREDIENTS

PENALTY

267

THINGS CAPABLE OF

BEING STOLEN.

(1) Nonliving and movable thing which is the property of another

 

(2) Inanimate and movable thing capable of being owned is capable of being stolen as soon as it becomes movable, although it is made movable in order to steal it.

 

(3) Every tame animal, whether tame by nature or wild by nature and subsequently tamed, which is the property of any person is capable

of being stolen.

 

(4) Animals wild by nature, of a kind which is not ordinarily found in a condition of natural liberty in Kenya, which are the property of

any person, and which are usually kept in a state of confinement, are capable of being stolen, whether they are actually in confinement or have escaped from confinement.

 

(5) Animals wild by nature, of a kind which is ordinarily found in a condition of natural liberty in Kenya, which are the property of any

person, are capable of being stolen while they are in confinement, and while they are being actually pursued after escaping from confinement, but not at any other time.

 

(6) An animal wild by nature is deemed to be in a state of confinement so long as it is in a den, cage, sty, tank or other small enclosure, or is otherwise so placed that it cannot escape and that itsowner can take possession of it at pleasure.

 

(7) Wild animals in the enjoyment of their natural liberty are not capable of being stolen, but their dead bodies are capable of being

stolen.

 

(8) Everything produced by or forming part of the body of an animal capable of being stolen is capable of being stolen.

Unlawful compulsory

labour.

 

(9) Information is capable of being stolen.

 

 

268

DEFINITION OF STEALING.

(1) Fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.

 

(2) A person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say -

 

(a) an intent permanently to deprive the general or special owner of the thing of it;

 

(b) an intent to use the thing as a pledge or security;

 

(c) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;

 

(d) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;

 

(e) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner;  and “special owner” includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question.

 

(3) When a thing stolen is converted, it is immaterial whether it is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it; and it is also immaterial that the person who converts the thing in question is the holder of a power of attorney for the disposition of it, or is otherwise authorized to dispose of it.

 

(4) When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes on reasonable grounds that the owner cannot be discovered.

(5) A person shall not be deemed to take a thing unless he moves the thing or causes it to move.

Definition of stealing.

54 of 1960, s. 30.

 

269

SPECIAL CASES.

1) When a factor or agent pledges or gives a lien on any goods or document of title to goods entrusted to him for the purpose of sale or otherwise for any sum of money not greater than the amount due to him from his principal at the time of pledging or giving the lien, together with the amount of any bill of exchange or promissory note accepted or made by him for or on account of his principal, such dealing with the goods or document of title is not deemed to be theft.

 

(2) When a servant, contrary to his master’s orders, takes from his possession any food in order that it may be given to an animal belonging to or in the possession of his master, such taking is not deemed to be theft

 

270 as read with 275

FUNDS AND OTHERS HELD UNDER DIRECTION.

(FELONY)

  • Receiving either alone or jointly with another person, any money or valuable security or a power of attorney for the sale, mortgage, pledge or other disposition of any property, whether capable of being stolen or not, with a direction in either case that such money or any part thereof, or any other money received in exchange for it, or any part thereof, or the proceeds or any part of the proceeds of such security, or of such mortgage, pledge or other disposition, shall be applied to any purpose or paid to any person specified in the direction, such money and proceeds are deemed to be the property of the person from whom the money, security or power of attorney was received until the direction has been complied with.

Three (3) year imprisonment

271 as read with 275

FUNDS AND OTHERS RECEIVED BY AGENTS FOR SALE.

(FELONY)

  • Receiving either alone or jointly with another person, any property from another on terms authorizing or requiring him to sell it or otherwise dispose of it, and requiring him to pay or account for the proceeds of the property, or any part of such proceeds, or to deliver anything received in exchange for the property, to the person from whom it is received or some other person, then the proceeds of the property, and anything so received in exchange for it, are deemed to be the property of the person from whom the property was so received, until they have been disposed of in accordance with the terms on which the property was received, unless it is a part of those terms that proceeds, if any, shall form an item in a debtor and creditor account between him and the person to whom he is to pay them or account for them and that the relation of debtor and creditor only shall exist between them in respect thereof.

Three (3) year imprisonment

272 as read with 275

MONEY RECEIVED FOR ANOTHER

(FELONY)

  • Receiving alone or jointly with another person, any money on behalf of another, the money is deemed to be the property of the person on whose behalf it is received, unless the money is received on the terms that it shall form an item in a debtor and creditor account, and that the relation of debtor and creditor only shall exist between the parties in respect of it.

Three (3) year imprisonment

273 as read with 275

THEFT BY PERSON HAVING AN INTEREST IN THE THING STOLEN.

(FELONY)

  • Taking or converting anything capable of being stolen, under such circumstances as would otherwise amount to theft, it is immaterial that he himself has a special property or interest therein, or that he himself is the owner of the thing taken or converted subject to some special property or interest of some other person therein, or that he is lessee of the thing, or that he himself is one of two or more joint owners of the thing, or that he is a director or officer of a corporation or company or society who are the owners of it.

Three (3) year imprisonment

274 as read with 275

HUSBAND AND WIFE

(FELONY)

  • While a man and his wife are living together, procures either of them to deal with anything which is, to his knowledge, the property of the other in a manner which would be theft if they were not married, is deemed to have stolen the thing.

 Three (3) year imprisonment

276

STEALING WILLS

(FELONY)

  • If the thing stolen is a testamentary instrument, whether the testator is living or dead

Ten (10) years imprisonment

277

STEALING POSTAL MATTER AND OTHERS

(FELONY)

  • If the thing stolen is postal matter or any chattel, money or valuable security contained in any postal matter.

Ten (10) years imprisonment

278

STEALING STOCK

  • If the thing stolen is any of the following ;a horse, mare, gelding, ass, mule, camel, ostrich, bull, cow, ox, ram, ewe, wether, goat or pig, or the young of any of the mentioned

Imprisonment not exceeding fourteen (14) years.

278A

STEALING MOTOR VEHICLE.

  • If the thing stolen is a motor vehicle within the meaning of the Traffic Act.

Seven (7) years imprisonment

278B

STEALING FISHING GEAR.

  • If the thing stolen is fishing gear within the meaning of the Fisheries Act, 1988.

Five (5) years imprisonment

279

THEFT COMMITED IN SPECIAL CIRCUMSTANCES

 (a) if the thing is stolen from the person of another;

(b) if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house;

 

(c) if the thing is stolen from any kind of vessel or vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another;

 

(d) if the thing stolen is attached to or forms part of a railway;

 

(e) if the thing is stolen from a vessel which is in distress or wrecked or stranded;

 

(f) if the thing is stolen from a public office in which it is deposited or kept;

 

(g) if the offender, in order to commit the offence, opens any locked room, box, vehicle or other receptacle, by means of a key or other instrument,

 

Fourteen (14) years imprisonment

280

STEALING BY PERSONS IN THE PUBLIC SERVICE.

  • If the offender is a public servant and the thing stolen is the property of the Government, or came into the possession of the offender by virtue of his employment.

Seven (7) years imprisonment

281

STEALING BY CLERKS AND SERVANTS

  • If the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer.

Seven (7) years imprisonment

282

STEALING BY DIRECTORS OR OFFICERS OF COMPANIES.

  • If the offender is a director or officer of a corporation or company, and the thing stolen is the property of the corporation or company.

Seven (7) years imprisonment

 

 

283

STEALING BY AGENTS

If it was in the following circumstances pertaining to agents;

 (a) property which has been received by the offender with a power of attorney for the disposition thereof;

 

(b) property which has been entrusted to the offender either alone or jointly with any other person for him to retain in safe custody or to apply, pay or deliver for any purpose or to any person the same or any part thereof or any proceeds thereof;

 

 (c) property which has been received by the offender either alone or jointly with any other person for or on account of any other person;

 

(d) the whole or part of the proceeds of any valuable security which has been received by the offender with a direction that the proceeds thereof should be applied to any purpose or paid to any person specified in the direction;

 

(e) the whole or part of the proceeds arising from any disposition of any property which has been received by the offender by virtue of a power of attorney for such disposition, such power of attorney having been received by the offender with a direction that such proceeds should be applied to any purpose or paid to any person specified in the direction.

Seven (7) years imprisonment

 

284

STEALING BY TENANTS OR LODGERS

  • If the thing stolen is a fixture or chattel let to the offender to be used as  house or lodging, and its value exceeds one hundred shillings.

Seven (7) years imprisonment

285

STEALING AFTER PREVIOUS CONVICTION.

  • If the offender had been previously convicted of theft punishable under any of sections 275 to 284 inclusive,

Seven (7) years imprisonment

CHAPTER XXVII – OFFENCES ALLIED TO STEALING

SECTION

CRIME

INGREDIENTS

PENALTY

286

 

CONCEALING REGISTERS

(FELONY)

 

With intent to defraud, concealing or taking from its place of deposit any register which is authorized or required by law to be kept for authenticating or recording the title to any property, or for recording births, baptisms, marriages, deaths or burials, or a copy of any part of any such register which is required by law to be sent to any public office.

 

Max imprisonment 10 years

287

 

CONCEALING WILLS

(FELONY)

 

With intent to defraud, concealing any testamentary instrument, whether the testator is living or dead

 

Maximum imprisonment 7 years

 

288

 

CONCEALING DEEDS

(FELONY)

 

With intent to defraud, concealing the whole or part of any document which is evidence of title to any land or estate in land

 

Maximum imprisonment 3 years

 

289

 

KILLING ANIMALS WITH INTENT TO STEAL

(FELONY)

 

Killing any animal capable of being stolen with intent to steal the skin or carcass, or any part of the skin or carcass

 

Maximum imprisonment for 3 years

 

290

 

SEVERING WITH INTENT TO STEAL

(FELONY)

 

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

 

 

Maximum imprisonment for 3 years.

 

 

 

 

 

291

 

FRAUDULENT DISPOSITION OF MORTGAGED GOODS

(MISDEMEANOR)

Being the mortgagor of mortgaged goods, removing or disposing of the goods without the consent of the mortgagee, and with intent to defraud

 

Maximum imprisonment for  2 years or  a fine, or both

292

 

FRAUDULENTLY DEALING WITH MINERALS IN MINES

(FELONY)

 

Taking, concealing or otherwise disposing of any ore or any metal or mineral in or about a mine, with intent to defraud any person

Maximum imprisonment 5 years

293

 

FRAUDULENT APPROPRIATION OF POWER

(FELONY)

 

Fraudulently abstracting or diverting to his own use or to the use of any other person any mechanical, illuminating or electrical power derived from any machine, apparatus or substance, the property of another person

Maximum imprisonment 5 years

294

UNLAWFUL USE OF VEHICLES, ANIMALS, ETC.

(MISDEMEANOR)

Unlawfully and without colour of right, but not so as to be guilty of stealing, taking or converting to his own use or to the use of any other person any draught or riding animal or any vehicle or cycle, however propelled, or any vessel

Maximum imprisonment for 6 months or to a fine of Kshs 3,000 or to both.

CHAPTER XXVIII – ROBBERY AND EXTORTION

SECTION

CRIME

INGREDIENTS

PENALTY

298

 

ASSAULT WITH INTENT TO STEAL (FELONY)

 

Assaulting any person with intent to steal anything

 

Maximum imprisonment for 5 years

 

299

 

DEMANDING PROPERTY BY WRITTEN THREATS

(FELONY)

 

With intent to extort or gain anything from any person, and knowing the contents of the writing, causing any person to receive any writing demanding anything from any person without reasonable or probable cause, and containing threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with

 

Maximum imprisonment for 14 years

 

300

 

 

ATTEMPTS AT EXTORTION BY THREATS

(FELONY)

With intent to extort or gain anything from any person—

  • Accusing  or threatening to accuse any person of committing any felony or misdemeanour, or of offering or making any solicitation or threat to any person as an inducement to commit or permit the commission of any felony or misdemeanour; or
  • Threatening that any person shall be accused by any other person of any felony or misdemeanor , or of any such act, or
  • Knowing the contents of the writing, causing  any person to receive any writing containing any such accusation or threat as aforesaid

 

  1. Maximum imprisonment for 14 years if the accusation or threat of accusation is of:-
  • an offence for which the punishment of death or imprisonment for life may be inflicted; or
  • any of the offences defined in Chapter XV, or an attempt to commit any of such offences; or
  • an assault with intent to have carnal knowledge of any person against the order of nature, or an unlawful and indecent assault upon a male person; or
  • a solicitation or threat offered or made to any person as an inducement to commit or permit the commission of any of the offences aforesaid

 

 
  1. Maximum imprisonment for 3 years in all the other cases.

301

 

PROCURING EXECUTION OF DEEDS, ETC., BY THREATS

(FELONY)

 

With intent to defraud, and by means of any unlawful violence to, or restraint of, the person of another, or by means of any threat of violence or restraint to be used to the person of another, or by means of accusing or threatening to accuse any person of committing any felony or misdemeanour, or by offering or making any solicitation or threat to any person as an inducement to commit or permit the commission of any offence, compelling or inducing any person:-

  1. to execute, make, accept, endorse, alter or destroy the whole or any part of any valuable security; or
  2. to write any name or impress or affix any seal upon or to any paper or parchment, in order that it may be afterwards made or converted into or used or dealt with as a valuable security

Maximum imprisonment for 14 years

 

302

DEMANDING PROPERTY WITH MENACES (FELONY)

With intent to steal any valuable thing, demanding it from any person with menaces or force

Maximum imprisonment 10 years

CHAPTER XXIX – BURGLARY, HOUSEBREAKING AND SIMILAR OFFENCES

SECTION

CRIME

INGREDIENTS

PENALTY

305

 

ENTERING DWELLING-HOUSE WITH INTENT TO COMMIT FELONY

(FELONY)

 

Entering or being in any building, tent or vessel used as a human dwelling with intent to commit a felony

 

Maximum imprisonment for 5 years. If the offence is committed at night. Maximum imprisonment is for 7 years.

 

307

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

BREAKING INTO BUILDING WITH INTENT TO COMMIT FELONY

(FELONY)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

Maximum imprisonment for 5 years

 

Court may order that any dangerous or offensive weapon or instrument of housebreaking carried or used in connection with any such offence  be forfeited.

 

Court may also order that the aircraft, vessel or vehicle used to commit an offence  be forfeited.

311(4)

DAMAGING DETAINED ITEMS

(MISDEMEANOR)

Damaging or unlawfully removing any aircraft, vessel or vehicle while it is detained under section 26 of the Criminal Procedure Code.

 

Maximum imprisonment for  2 years or  a fine, or both

 

 

 

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