COMMON DEFENCES IN CRIMINAL CASES

In criminal cases, several common defenses can be raised to challenge criminal responsibility, as outlined in the Penal Code. These defenses aim to show that an accused person should not be held liable for an act or omission that would otherwise constitute an offense. Here are the common defenses:

1. Ignorance of Law- Generally, ignorance of the law does not provide an excuse for an act or omission that constitutes an offense.  However, there's a rare exception: if the law creating the offense specifically says that you must know about that particular law for your action to be a crime, then not knowing it could be a defense. 
2. Bona Fide Claim of Right- If someone takes or uses property believing they honestly have a right to it, and they don't intend to cheat anyone, they usually won't be held responsible for a property-related offense. It's about their genuine belief in their ownership or right to the property. 
3. Lack of Intention or Accident- A person is not criminally responsible for an act or omission that occurs independently of the exercise of their will, or for an event that occurs by accident. The reason why someone did something (their motive) usually doesn't matter for criminal responsibility. What matters is whether they intended the specific forbidden action, unless the law specifically states that a particular result must be intended for it to be an offense 
4. Mistake of Fact- If you do something because you honestly and reasonably believed certain facts were true, but it turns out you were wrong, you're usually not held more responsible than you would have been if your belief had been correct. However, some laws might say this defense can't be used, either directly or indirectly.
5. Insanity- Every person is presumed to be of sound mind until the contrary is proven. A person is not criminally responsible if, at the time of the act or omission, they were incapable of understanding what they were doing or of knowing that they ought not to do the act or make the omission, due to a disease affecting their mind. Criminal responsibility can still attach if the mental disease does not produce one of these effects in relation to the specific act or omission
6. Intoxication- Normally, being intoxicated (drunk or high) is not a defense for a crime. It can be a defense if: Because of the intoxication, you didn't know what you were doing was wrong or what you were actually doing; and your intoxication was caused by someone else maliciously or negligently, without your consent; OR you were temporarily or permanently insane because of the intoxication. If this defense works, you might be discharged or dealt with like someone with a mental illness. Intoxication can also be considered to see if you were able to form a specific intention required for the crime (like intending to steal, for example). "Intoxication" includes being affected by drugs or narcotics.
7. Immature Age- A child under eight years old is never criminally responsible for any action. A child under twelve years old is not criminally responsible unless it can be proven that they understood they shouldn't do the act. A male child under twelve is also presumed unable to have sexual intercourse.
8. Compulsion- 

• General Compulsion: If you commit an offense with other people, and you only did it because the others threatened to instantly kill you or cause you serious harm if you refused, then you might not be responsible. However, threats of future harm or threats to cause death (when you are causing death) don't excuse any offense.
• Compulsion by Husband: A married woman, when charged with an offense (except treason or murder), can use the defense that she committed the crime in her husband's presence and because he forced her.
• Compulsion for Unlawful Oaths: If someone is forced to take an unlawful oath (like joining a secret society), it's not a defense unless they report everything they know to the police or their commanding officer within five days (or five days after they are no longer physically forced or sick). Similarly, being present when such an oath is administered implies consent, unless reported within five days.

        9. Defense of Person or Property- Your responsibility for using force to defend yourself or your property is judged based on established legal principles (English Common Law), unless other laws in Kenya specifically say something different  

        10. Use of Force in Effecting Arrest- If you're accused of a crime for using force while lawfully trying to arrest someone who resisted, the court will look at how serious the crime the arrested person committed was and all the circumstances to decide if the force you used was necessary or reasonable. 

        11. Judicial Officers- Judicial officers are generally not criminally responsible for things they do or don't do while performing their judicial duties, even if they go beyond their authority. 

        12. Consent to Injury (Limitations)- While using excessive force (more than allowed by law or consent) can make someone criminally responsible, if a person agrees to be killed or seriously injured (maimed), that consent does not remove the criminal responsibility of the person who causes the death or injury. 

Defenses in criminal law serve as a reminder that justice is not simply about punishment but about fairness and due process. They ensure that every accused person has the opportunity to explain their actions, challenge the prosecution’s evidence, and rely on principles that protect their rights.

Catch you in the next blog!

 

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES 

Penal Code, Chapter 63, Laws of Kenya (Revised Edition 2012) (Cap. 63, Laws of Kenya)