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HISTORICAL DEVELOPMENT AND SOURCES OF CRIMINAL LAW
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The document provides in-depth summary of historical development and sources of Kenyan Criminal law.
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TOPIC 1: HISTORICAL DEVELOPMENT AND SOURCES OF CRIMINAL LAW1. Summary of Kenya Criminal law
Kenya criminal law is the body of national law relating to crime in Kenya. Broadly speaking, it
defines as criminal such human conduct as threatens, harms or endangers the safety and welfare
of people. It also sets out the punishment to be imposed on persons who engage in such conduct,
provided they have criminal capacity and act unlawfully and with a guilty mind.
In the definition of Van der Walt et al, a crime is "conduct which common or statute law
prohibits and expressly or impliedly subjects to punishment remissible by the state alone and
which the offender cannot avoid by his own act once he has been convicted." Crime involves the
infliction of harm against society. The function or object of criminal law is to provide a social
mechanism with which to coerce members of society to abstain from conduct that is harmful to
the interests of society.
Classification of Law is usually in three/: Criminal, Public and Civil.
Criminal law (which is to be distinguished from its civil counterpart) forms part of the public law
of Kenya, as well as of the substantive law (as opposed to the procedural). In Kenya, as in most
adversarial legal systems, the standard of evidence required to validate a criminal conviction is
proof beyond a reasonable doubt. The sources of Kenya criminal law are to be found in the
common law, in case law and in legislation.
What Is A Crime?
Any act or omission prohibited by the law that is enacted for the protection of the public and
violation of which is prosecuted by the state in judicial proceedings in its own name. – classical
Illegal act/omission with consequences that the offender if detected and a decision is made to
prosecute him, is prosecuted by or in the name of the state and if found guilty is liable to be
punished. - modern
Characteristics Of A Crime
1
, • Harm occasioned by human conduct that sovereign seeks to prevent
• Key preventive measure is threat to punishment
• Trial to determine culpability
• Civil Wrongs / Torts
• Harm Suffered By Society
• Degree Of Wrong
• Punishment
MORALITY
• Legal Posivists- is it uniform?
• Co-extensive with English and Christian roots
2. Sources Of Criminal Law
Most of the Kenyan criminal law is in written form. Its sources are varied and are set out in
Section 3(2) of the Judicature Act.
They include
(i) The Constitution;
(ii) The Substance of Common Law enforced in England as at 12th August 1897
(iii) All Statutes including the English Statutes as stated in part 1 of the Act
(iv) African Customary Law
(v) International Law
(I) Constitution
The Constitution is the supreme in Kenya and all other laws draw their legitimacy from it.
The constitution is a source of criminal law as it has provisions on aspects of criminal law.
The relevant provisions are in articles 49, 50 and 51.
• Article 49: Right of an arrested person
• Article 50: Fair Trial Principles
• Article 51: Rights of Persons in Custody
2
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