THE CATHOLIC UNIVERSITY OF EASTERN AFRICA

FUCULTY OF LAW

SEPTEMBER – DECEMBER 2024 SEMESTER

CLS 200, CRIMINAL LAW

NAME: CHRISTINE WANJIRU MURAYA

ADMINISTRATION NO :1060895
Table of Contents
INTRODUCTION.....................................................................................................3
SOURCES OF CRIMINAL LAW IN KENYA........................................................3
1. THE CONSTITUTION OF KENYA..............................................................3
2. STATUTES AND SUBSIDIARY LEGISALTION........................................4
3. COMMON LAW.............................................................................................5
4. ACTS OF UNITED KINGDOM PARLIAMENT..........................................6
5. INTERNATIONAL LAW...............................................................................6
CONCLUSION.........................................................................................................7
BIBLIOGRAPHY.....................................................................................................8
QUESTION

Outline the sources of criminal law in Kenya

INTRODUCTION
Criminal law is the branch of law that deals with crime and punishment, mostly
concerned with the duties of individuals to a society as a whole. The sources of
criminal law in Kenya are diverse and rooted in legal documents and traditions of
the country.
Pre colonialism Kenya followed the rules of the African customary laws of each
community, they outlined on the necessary procedures to be followed when
someone commits crime and punishment provided. During colonialism they
heavily borrowed the English laws and Indian laws which were received in Kenya.
After colonialism Kenya made its own laws and also relied on English laws which
re still applicable due the judicature Act.

SOURCES OF CRIMINAL LAW IN KENYA

1. THE CONSTITUTION OF KENYA
The constitution is the supreme law in Kenya. It make provision for the court
process, the appeal process for criminal cases and it states the rights for both the
accused persons and victims.1
The bill of rights chapter IV of the constitution article 29 protects the rights of
accused persons, they have a right to trial and article 157 (6) states that the director
of public prosecution has the power to undertake criminal proceedings2
In a case of Mini Cabs & Tours Company Limited v Attorney General & 2 others
(Petition 450 of 2019) [2022] KEHC 11207 (KLR), the petitioner, Mini Cabs &
Tours Company Limited, challenged the actions of the Director of Criminal
Investigations (DCI), asserting that their rights under the Constitution of Kenya

1
Criminal law 1 notes 2021 UON summaries - introduction- lecture 2 1. defining a crime 
crimen –Studocu. Available at: https://www.studocu.com/row/document/university-of-
nairobi/llb/criminal-law-1-notes-2021-uon-summaries/22675366
2
Constitution of Kenya - Nairobi. Available at:
https://kenyalaw.org/kl/fileadmin/pdfdownloads/TheConstitutionOfKenya.pdf
were violated. The crux of the matter revolved around the DCI's demand for
documents from the company under the threat of obtaining a court order for search
and seizure, which the petitioner argued was a form of coercion infringing upon
their right to silence and against self-incrimination as protected by articles 49(1)(b)
and (d) and 50 of the Constitution. The court sided with the petitioner, ruling that
the DCI's approach of using threats and intimidation rather than following due
legal process to obtain a search warrant constituted a violation of these
constitutional rights. This case underscores the delicate balance between the
powers of criminal investigation authorities and the fundamental rights and
freedoms of individuals and entities, particularly regarding the nature of self-
incrimination rights during tax evasion investigations.3

2. STATUTES AND SUBSIDIARY LEGISALTION

Statutes are written laws enacted by the legislation of Kenya. There are various
statutes enacted that lead the criminal for example:
i. Penal code (cap 63)
It defines the criminal offences and the punishment.
In the case of Republic v Lewis (Criminal Case E077 of 2021) the court
relied on the Penal Code (CAP 63 ) section 9, 11, 12 4 to establish that the
requirement for a mental assessment in criminal trials is a complex issue that
intersects with legal standards and human rights. The legal system mandates
that an accused must be competent to stand trial, which includes having the
ability to understand the proceedings and assist in one's defense. This is
rooted in the principle of fair trial rights, ensuring that the accused has the
capacity to participate meaningfully in their trial. The exact standard for
competence varies by jurisdiction, but generally, it involves evaluating
whether the accused has a rational and factual understanding of the
proceedings against them. The assessment is typically conducted by a
mental health professional, such as a forensic psychiatrist or psychologist.

3
Petition 450 of 2019 - Kenya Law. Available at:
http://kenyalaw.org/caselaw/cases/view/237569/
4
Penal code. Available at:
http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/PenalCode_Cap63.pdf
 The timing of this assessment can be critical and is subject to legal debate;
some argue it should occur before the plea to ensure the accused's
understanding of the charges, while others suggest a different timing.
Declining a mental assessment does not automatically lead to a presumption
of normal mental state, as the court may order an evaluation if there are
doubts about the accused's competence.5
ii. Criminal Procedure Code (cap 75)
This statute outlines the procedure of criminal justice including the process
of arrest, trials and sentencing .6
iii. Sexual Offence Act 2006
It addresses the sexual crimes and protects the victims of this crimes. 7
iv. Evidence Act – this act ensures evidence used are relevant and reliable
v. Traffic Act –this act outlines the rod offences and punishment
vi. Narcotic Drugs and Psychotropic Substances 1994 –regulates the drug abuse
and trafficking
vii. Anti-Corruption and Economic Crimes Act 2003 –regulates economic
crimes and punishment
Subsidiary legislation is when statutes give authority to minister or local authority
to make laws and prescribe their breach.
3. COMMON LAW
Since Kenya was colonised by the English Kingdom their law is considered
common law which is still applicable here for example judicial decisions made my
higher courts re to be followed by the lower courts, this helps them interpret
statutes and laws. Case laws which are from English Kingdom are used as
precedent here in Kenya. In the case of State v Truphena Ndonga Aswani (2021)
EKLR the defendant was accused of murder but she pleaded self defence. This was
because she was in an abusive marriage with her husband but she could not leave

5
Criminal case E077 of 2021 - Kenya law. Available at:
http://kenyalaw.org/caselaw/cases/view/222862
6
(Cap. 75) http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.+75
7
2006, Sexual offences act. Available at:
http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/SexualOffencesAct_No3of2006
.pdf
the marriage. So she protected herself by using an appropriate force from her
abusive husband. The courts used The common law position regarding the defence
of self-defense and that it has changed over time. Prior to the decision of the House
of Lords in DPP v. MORGAN [1975] 2 ALL ER 347, the view was that it was an
essential element of self-defense not only that the accused believed that he was
being attacked or in imminent danger of being attacked but also that such belief
was based on reasonable grounds. But in DPP v MORGAN (supra) it was held
that:
“...........if the appellant might have been labouring under mistake as to the facts, he
was to be judged according to his mistaken view of facts, whether the mistake was,
on an objective view, reasonable or not. The reasonableness or unreasonableness of
the appellants' belief was material to the question whether the belief was held, its
unreasonableness, so far as guilt or innocence was concerned, was irrelevant.”8
4. ACTS OF UNITED KINGDOM PARLIAMENT
Certain Acts of parliament of the United Kingdom are still applicable as our
Kenyan laws due to the Judicature Act 9for example: The Admiralty Offences
(Colonial) Act 1860, The Evidence Act 1851 sections 7 and 11, Foreign Tribunals
Evidence Act, 1856,The Evidence by Commission Act, 1859, The British Law
Ascertainment Act,1859, The Admiralty Offences (Colonial Act), 1860, The
Foreign Law Ascertainment Act, 1861, The Conveyancing (Scotland) Act, 1874
Section 51 and Evidence by Commission Act, 1885.10
5. INTERNATIONAL LAW
Kenya is considered a monist state therefore the international law re considered
laws of Kenya. In article 50(2) of the constitution of Kenya 2010 allows for the

8
(Criminal case E011 of 2020 - Kenya law)
http://kenyalaw.org/caselaw/cases/view/208842/
9
‘Judicature Act ’ (Cap. 8) http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=CAP.+8
10
‘Legal Sources - Some Research - 1. Legal Sources of Criminal Law the Primary Sources
of Law in Kenya’ (Studocu) https://www.studocu.com/row/document/masinde-muliro-
university-of-science-and-technology/corporate-law/legal-sources-some-research/
38940226
conviction for offences which are crimes under international law.11 In the case of
Attorney General & 2 others v Kenya Section of International Commission of
Jurists [2018] eKLR the case explains how the international Criminal Court was
established and its pivotal role. The establishment of individual criminal
accountability in international law marked a significant advancement in the pursuit
of justice for the gravest of crimes. The 1948 Genocide Convention was a pivotal
moment, setting the stage for the development of mechanisms to hold perpetrators
accountable. Despite initial setbacks and the historical impunity enjoyed by many,
the 1990s brought renewed efforts to address these issues. The establishment of ad
hoc tribunals for the former Yugoslavia and Rwanda, and later the International
Criminal Court, reflected a growing international consensus on the need for a
systematic approach to prosecuting war crimes, genocide, and crimes against
humanity. These institutions embody the principle that no one is above the law and
that victims deserve justice, signaling a shift towards greater accountability in
international relations. The legacy of these efforts continues to influence the
development of international criminal law and the global commitment to
preventing such atrocities.12

CONCLUSION
The above are the sources of criminal law which outline the procedures on criminal
trials, the crimes along with their punishment. African customary law is not
considered a source in criminal law but in other laws.13

11
Constitution of Kenya - Nairobi. Available at:
https://kenyalaw.org/kl/fileadmin/pdfdownloads/TheConstitutionOfKenya.pdf
12
(Civil appeal 105 of 2012 & criminal appeal 274 of 2011 (consolidated) - Kenya law)
<http://kenyalaw.org/caselaw/cases/view/148746/>

13
‘Legal
Sources - Some Research - 1. Legal Sources of Criminal Law the Primary
Sources of Law in Kenya’ (Studocu)
https://www.studocu.com/row/document/masinde-muliro-university-of-science-
and-technology/corporate-law/legal-sources-some-research/38940226
BIBLIOGRAPHY

1. Criminal law 1 notes 2021 UON summaries - introduction- lecture 2 1. defining

a crime  crimen –Studocu. Available at:
https://www.studocu.com/row/document/university-of-nairobi/llb/criminal-law-
1-notes-2021-uon-summaries/22675366
2. Constitution of Kenya - Nairobi. Available at:
https://kenyalaw.org/kl/fileadmin/pdfdownloads/TheConstitutionOfKenya.pdf
3. Petition 450 of 2019 - Kenya Law. Available at:
http://kenyalaw.org/caselaw/cases/view/237569/
4. Penal code. Available at:
http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/PenalCode_Cap63.pdf
5. Criminal case E077 of 2021 - Kenya law. Available at:
http://kenyalaw.org/caselaw/cases/view/222862
6. (Cap. 75) http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.+75
7. 2006, Sexual offences act. Available at:
http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/SexualOffencesAct_
No3of2006.pdf
8. (Criminal case E011 of 2020 - Kenya law)
http://kenyalaw.org/caselaw/cases/view/208842/
9. ‘Judicature Act’ (Cap. 8) http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=CAP.+8
10. ‘Legal Sources - Some Research - 1. Legal Sources of Criminal Law the
Primary Sources of Law in Kenya’ (Studocu)
https://www.studocu.com/row/document/masinde-muliro-university-of-science-
and-technology/corporate-law/legal-sources-some-research/38940226
11.Constitution of Kenya - Nairobi. Available at:
https://kenyalaw.org/kl/fileadmin/pdfdownloads/TheConstitutionOfKenya.pdf
12.(Civil appeal 105 of 2012 & criminal appeal 274 of 2011 (consolidated) -
Kenya law) <http://kenyalaw.org/caselaw/cases/view/148746/>
13. ‘Legal Sources - Some Research - 1. Legal Sources of Criminal Law the
Primary Sources of Law in Kenya’ (Studocu)
https://www.studocu.com/row/document/masinde-muliro-university-of-science-
and-technology/corporate-law/legal-sources-some-research/38940226