Criminal Law Notes-1-1-1

Criminal Law
INTRODUCTION
1. What is a crime?
To date there is no agreed definition of the term crime. Various writers have tried to
define this term differently depending on their philosophical outlook and other various
material factors in the society they come from.
Some criminologists, namely Michael J, and Mortimer J, define the term crime as;
“…The most precise and least ambiguous definition of crime is that which define it as a
behaviour which is prohibited by the criminal code….this is the only possible definition
of crime…”
Criminal Law and Social Science New York, 1933, at p. 2.

Another legalistic definition says crimes are;
“…Wrongs which judges have held or parliament has from time to time laid down as
sufficiently injurious to the public to warrant the application of criminal procedure to
deal with them…” Smith, J.C. and Hogan Criminal Law 6th Ed.
According to Osborn, P.G. in his concise law Dictionary 5th Ed. Crime is defined as;
“…An act, default or conduct prejudicial to the community, the commission of which the
law renders the person responsible liable to punishment by a fine or imprisonment in
special proceedings…”
In Kenny’s Outline of Criminal Law 17th Ed. At p.5 there major characteristics of crime
are pointed out;
i) That it is a harm brought about by human conduct which the sovereign
power in the state desire to prevent.
ii) That among the measures of prevention selected is the threat of
punishment.
iii) That the legal proceedings of a special kind are employed to determine the
guilty of the accused before being punished.
1
Training manual for certificate in Law Samuel MSHANA
Criminal Law
2. What is Criminal Law?

Is a branch of public law (public law include; Administrative law, Constitutional law, and
Criminal law) and it is designated to protect the interest of the public.
It defines the duty, which a person owes to the society in contrast to civil law, which
primarily concerned with rights of individuals among themselves.
In criminal law it is the state, which prosecutes. When we talk of criminal law is that
where the state is directly interested. The end result of any criminal offence procedure is
to determine whether the person is guilty or innocent.
3. Crime and Morality.

There is a difference between crime and morality. As you know each society has its
morals. However you may find that sometimes morals and crimes coincides.
Morals emerged earlier than the state and law. Morals and customs regulated the relations
of people during the primitive mode of production. Where there is a class society the
dominant system of moral is that of the ruling class. This is so because by the use of
apparatus of ideological influence, political and legal institutions the dominant class
strives to impose its morals on the whole society.
At one point there was an attempt to extend criminal law to morals. “This however has
led to some legal problems. In the case of Shaw V. DPP [1962] AC 220, Shaw published
a “Ladies Directory” in order to help prostitutes to get customers and he was charged,
interalia, with conspiracy to corrupt public morals. He was convicted of this offence, and
the Court of Criminal Appeal and the House of Lord upheld his conviction. Lord
Simonds at page 267 said he entertained no doubt that in the sphere of criminal law;
“…There remains in courts of law a residual power to enforce the supreme and
fundamental purpose of the law, to conserve not only the safety and order but also the
moral welfare of the state, and that it is their duty to guard against attacks which may be
more insidious because they are morals…”
2
Criminal Law
We see that this decision was extending criminal law to morals. However this decision
did not stand the test of time. The case of Knuller L.T.D. V DPP [1973] AC 435 reversed
the position. In this case the House of Lords emphasized that the courts did not have
residual powers to extend criminal law by creating newer offences and widening existing
ones, to enforce good morals.
You have to note that many of the rules enforced by criminal law have nothing do to with
morality, and many of the rules of morality are not enforced by criminal law.
Law consists of rules established in a specific way by the state organs and fixed in legal
acts. Morals however do not include just norms but also concepts, views and feelings.
Legal acts consist of the will of the class in power while moral may include this will in
the form of public opinion.
Moral norms embrace a sphere of relations that is considerably broader than that
regulated by law.
Law and morals are also based on measures of coercion but these differ. In morals
coercion takes the form of public opinion. Moreover, moral norms do not regulate in
advance specific measures and form of coercion.
In the event of violation of law, however, corresponding law enforcement agencies are
obliged to take measures envisaged by the law.
Sources of Criminal Law

1. The Constitution
The constitution provides for the rights and duties of its citizens. The constitution of
Tanzania for example provides for the presumption of innocence to the accused person.
The constitution is the basic source of criminal law.
2. Statutes
Statutes consists of Acts of Parliament and Subsidiary legislation. The laws that were
passed by the legislature council in the colonial period are referred to as Ordinance,
whereas, after independence laws passed by the parliament are known as Acts of the
3
Criminal Law
Parliament. The major source of criminal law is the penal code (cap 16). This was
introduces in the country in 1930.
There are other statutes, which cover specific crimes or group of crimes e.g. The
Prevention of Corruption Act, Economic and Organized Crimes Control Act, The Road
Traffic Act. Persons or bodies to whom power has been delegated by the Parliament
make subsidiary legislations. Normally this power is delegated to the Minister, Local
Government Authorities, and Public Corporation. The reason for delegating power is to
fill in more details giving effect to the principles of enabling Act. These subsidiary
legislations cover vast areas of life such as commerce, health, sanitation etc. in these
legislations penal provisions are always provided for defaulters.
3. Common Law of England, Doctrine of Equity and Statute of General

Application.
The laws we have in Tanzania are either whose we inherited from the colonial masters or
have been enacted after independence. The laws of Tanzania are based on English
Jurisprudence in which Common Law, Doctrine of Equity and Statutes of General
Application forms an important part. This is another source of criminal law in Tanzania.
The basis of this is the Tanganyika Order in Council of 1920, section 17 (which is
commonly known as reception clause) which provides that; criminal jurisdiction in
Tanganyika, so far as circumstances admit, shall be exercised in conformity with the

Criminal Procedure and Penal Code of India and where the same was not applicable, the
courts were to apply Common Law, Doctrine of Equity and Statute of General
Application in force in England on or before 20th day of July 1920. This position was
reintegrated after independence by the reproduction of the section in section 2(2) of the
Judicature and Application of Laws Ordinance 1961. In addition the Penal Code allows
the application of the Common Law and Doctrine of Equity in the circumstances
specified in section 3(1) PC.
4. Precedent/Case Laws
4
Criminal Law
The lower courts are bounded by the decisions of the superior courts. This is the practice
of the inferior courts in common law jurisdiction. This being so, the decisions of the
former East Africa Court of Appeal, the Court of Appeal of Tanzania and important
decision of the High Court of Tanzania on important matters are also a source of criminal
law.
5. International Law
The basic sources of International Law among others are treaties. These treaties however
before binding to the country they have to be incorporated in the Local Act and this Act
must be passed by the parliament. Some of these treaties deal with international criminal
law. Some of the most outstanding international crimes are;
War crimes:
The Geneva Convention (I-IV)
Piracy on the High Seas:

The Convention of High Seas, 1958
The Seizure of Aircraft and Other Attack on the Security of Civil Action:
The 1950 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, the
1971. Montreal Convention for the Suppression of Unlawful Act Against the Safety of
Civil Aviation.
Salve Trade:
The Slavery Convention of 1920 as amended in 1953. the supplementary Convention on
the Abolition of Slavery, Slave Trade and Institution and Practices similar to slavery,
1966, the Convention for the Suppression of Traffic in Person and the Exploitation and
the Prostitution of other 1956.
The Nature and Function of Criminal Law Under Different Modes of Production.
5
Criminal Law
i) Primitive Mode of Production

In the primitive mode of production there was no law let alone criminal law. the law
emerged together with classes.
ii) Slave Mode of Production

In this society there were two classes;
 The slave who were the main class
 Slave owner.
The law in the slave mode of production was used for two major functions; the
suppression of resistance put by the slaves and other exploited strata of the population.
E.g. The Greco-Lation Antiquity produced the law book of Gortyn, The Helensis. In
Rome the Law of the Twelve Tablets, The Lex Aquilia and the Corpus Luis Civile. The
codes offered a statutory definition of conduct constituting a danger to society (criminal
law) conduct, which entitled the consequence, held out by the law and enforced by a
sovereign power. Severe coercion e.g. death penalty were resorted to only against slaves.
The slave master could kill a slave of his own with impunity whereas the killing of a
slave owned by another merely entailed the payment of compensation. The second
function was the protection of the slave owner’s property. Ferocious sanctions were
afflicted on offences against property. This was intended to safeguard the institution of
private property and social order relying on this institution. In graver cases there was
punished with death. E.g. In Rome according to the law of twelve Tablets, for gravest
theft, a freeman was reduced to slave whereas the slave had to suffer death. Milder case
theft was maiming the offender.
iii) Feudal Mode of Production

Chronologically, the feudal state belongs to the Middle Ages (5th -17th A.D). This was
also a class of society;
 The big land owner
 Mass of peasant Labour.
6
Criminal Law
The main functions of criminal law were;

To put down resistance on the part of the exploited peasant masses as well as anti-feudal
uprisings of the urban population.
Protecting feudal ownership of land and providing various forms of compulsion of the
peasant to offer their labour for landlord.
iv) Capitalist Mode of Production

The main functions of criminal law include;
The protection of the political foundations of the capitalist society.
To put down the resistance of the working class and other masses.
To take reprisals against political opponents.
Protection of private property.
Establishment of the general conditions for the functioning of the capitalist economy.
In the capitalist era criminality grew to a mass phenomenon and in particular offences
against property showed an upward trend and manifested itself in entirely new forms.
Most offenders were workers, jobless and other poor people e.g. offences like corruption
and extortion, industrial espionage sabotage etc were on the forefront.
v) Socialist Mode of Production

Criminal Law here is used for two main purposes;
To protect the socialist state system against opposition;
To protect the socialist property and its relation.
Property which was owned by private person was nationalized and taken by the state.
Thus laws were enacted to safeguard the new property relations. The only effective
method was the use of criminal law to control resistance or counter-revolution.
GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY

Basic Element of Crime
A crime for the purpose of analysis is divided into two element, namely, “actus reus”
and “mens rea”. Before a man can be convicted of a crime it is usually for the
prosecution to prove:
7
Criminal Law
a) That a certain event or a certain state of affairs, which is forbidden by the criminal
law, has been caused by his conduct.
b) That this conduct was accomplished by a prescribed state of mind-mens rea.
1. Actus Reus
Actus Reus is a Latin word. Actus simply means an act and reus is that prohibited by
law. Therefore actus reus may be described as such result of human conduct as the law
seeks to prevent. The word conduct here covers both acts and omissions. The Actus Reus
includes all those elements in the definition of the crime other than the accused’s state of
mind.
Proof of Actus Reus

Actus Reus must be proved; if there is no Actus Reus there can be no crime, since a
person cannot be convicted solely because of the state of his mind. The mere intention to
kill is not punishable as such; there must have been a killing.
Example:
i) Where A takes B’s property with intent to steal it but unknown to A, B has given his
consent to its being taken.o
ii) D believes that he is appropriating P’s property he cannot in any circumstances be
guilty of theft if the property belongs to no one. D has the mens rea but Actus Reus of the
crime is missing/ lacking.
Actus Reus and will

If the Actus Reus includes an act, that act must be willed by the accused. If the man is
unable to control the movement of his limbs it seems obvious that he should not be held
criminally liable for that movement or any of its consequences.
“Actus reus” is a muscular contradiction a something more. A spasm is not an act. The
contradiction of the muscular must be willed”
8
Criminal Law
In the case of R. V. CHARLSON [1955] 1 ALL E.R. 859, the father invited his ten year
old son to look out of the window at a rat in the river below, and when the boy did so,
struck him on the head with a mallet and threw him out of the window, causing him
grievous bodily harm. There was no evidence of provocation or motive. The father said
he did not know why he hit the/his boy but remembered was being in his car. There was a
history of ill health in the father’s family and according to medical evidence: he possibly
has a cerebral tumor. A man from cerebral tumor is liable to an outburst of impulsive
violence over him which he has no control. The accused was acquitted because he did not
act on his own volition.
In the case of HILL V. BAXTER [1958] 1 ALL E.R 193, the respondent being a driver
of motor vehicle on public road, drove across a road crossing in disregard of a halt sign,
and his vehicle collided with another motor vehicle. A police constable arrived at the
scene and found the respondent in a dazed condition and at the hospital to which he said:
“….I remember being in Preston Circus going to Withden, I don’t remember anything
else until I was searching for my glasses. I don’t know what happened….”
The accused’s plea failed, for the evidence showed that the accused had driven a
considerable distance along a busy street between the point where his memory was
alleged to have failed and the point where the offence occurred.
Actus Reus as “State of Affairs”

A crime may be so defined that it can be committed although there is no act. There may
also be no necessity for “willed muscular movement”. Instead it may be enough if a
specified “state of affairs” is proved to exist. Under the Road Traffic Act, for example,
there is or could be a rule that any person who, when in charge of a motor vehicle on a
road or other places is unfit to drive through drink or drugs commits an offence. It is not
taking charge of the vehicle or becoming unfit which is the offence, but simple being in
charge or being unfit. Thus an offence may be committed by the accused being in
particular place, or being in possession of something or being in charge of something.
9
Criminal Law
It must be shown that the accused did not do an act or omitted to do an act but also
certain circumstances resulted from that act or omission. E.g. A & B decided to shoot
different persons; A kill, B misses therefore only A can be guilty of murder.
All offences include a number of ingredients, which must be present. Some offences may
be only committed;
a) By a particular class of person E.g. a repudiated thief.

b) Against a person of particular age. E.g. Indecency with a child.
c) Against a particular class of public servant. E.g. Assault on a constable.
d) In respect of a property of a particular type. E.g. Theft of motor vehicle.
e) Without the consent of the victim. E.g. Rape.
f) There is a particular relationship between the accused and the victim. E.g.
Incest.
g) At a particular time. E.g. Burglary.
h) In a particular place.
Actus Reus and Causation

When the definition of an actus reus requires the occurrence of certain consequences it is
necessary to prove that it was the conduct of the accused, which caused those
consequences to occur. In murder or manslaughter for example it is necessary to prove
that the act of the accused caused death. If the death came about solely through some
other cause then the crime is not committed, even though the other elements of the actus
reus and mens rea are present.
A person is said to have caused something to happen only if that thing would not have
occurred at the time and in manner in which it did occurred if he had not done what he
did. So if A puts a poison in B’s drink, intending thereby to kill him, but before B drinks
it or a fatal amount of it, B dies of heart attack. A cannot be guilty of murder.
10
Criminal Law
An actus reus may also consist in failure to take action is required by the criminal law i.e.
sometimes in criminal law an offence to include an act, attempt or omission punishable
by law.
Omission in particular is not punishable unless there is law permitting it. However once it
has been shown that a particular offence can be committed by omission it must be shown
that the accused was in the circumstances under a duty to act. The common law rarely
punished omissions. The usual illustration of the common law altitude is that of a group
of people watching a child whom they could save down in a shallow pool. If they are in
no specific relationship with the child, it is said that they commit no crime. If however
one of them were parent or guardian of the child, this relationship would impose a duty to
act, violation of which would be a breach of the criminal law.
In the case of THE QUEEN V. INSTAN (1893) QB 450, the accused a woman lived
with the deceased. The deceased felt sick and could not support herself. The accused
didn’t supply her with food nor did she secure/procure for her, any medical or nursing
attendance. The deceased’s death was accelerated by want of food or nursing or medical
attendance. The court said that
“….A duty was imposed upon the prisoner under the circumstances to supply the
deceased with sufficient food to maintain her life, and the death having been accelerated
by the neglect of such duty; the prisoner was properly convicted of manslaughter….”
The common law seems never to have imposed a duty to act in protection of another’s
property. The duty to protect another’s property arose only where there was some special
relationship such as parent or guardian with that other, or where is under a duty to take
care gratuitously.
, Actus Reus Specific Elements

For the purpose of criminal law it sometimes necessary to break down an act into the
constituents of;
11
Criminal Law
Conduct (which is the central feature of the crime)

Circumstances (the surrounding material)
E.g. section 13 of the Penal Code, abduction of girl under sixteen years-
Conduct , here the conduct, which is the central feature of the crime, is the physical act
of taking away the girl.
The material circumstances are

The absence of lawful authority (unlawful) or excuse (against the will)
That the girl is unmarried and under sixteen.
That she was in possession of the parents or guardian.
If any of these circumstances is missing/is not present, the crime is not committed. Thus
if D was acting under the order of a competent court or if D was married, or seventeen or
if she was not in the possession of any parent or guardian in none of these cases would
there be an actus reus.
2. Men’s Rea
Knowledge of the wrongfulness of the act, state of mind, mental capability required in
guilty and state of mind defined in the act, (actus reus), generally a blameworthy state of
mind accompanying the forbidden acts expressed in the three different degrees (through
no every offence require these three degrees) although as general rule there must be a
mind at fault before there can be a crime, it is not an inflexible rule, and a statute may
relate to such a subject matter and may be so framed as to make an act criminal whether
there has been an intention to break the law or otherwise do wrong or not. Many minor
statutory offences however are punishable irrespective of the existence of men’s rea.
Intention
According to section 10 of the Penal Code, a person is not criminally responsible for an
act or omission which occurs independently of his will or accident.
But where the intention to cause a particular result is expressly declared by the section
creating an offence to be an essential act or omission is immaterial.
12
Criminal Law
When a man’s conduct has produced a consequence prohibited by the definition of the
actus reus of the crime charged the most common question that is asked is whether he
intended such consequence to occur?
An affirmative answer to that question is general justified if the accused had one of the
two types of intention with regard to the prohibited consequence.
Direct intention, an act is said to be directly intended if the person aimed at achieving it
and believed that he was likely to succeed.
Oblique intention, an act is said to have been intended obliquely when although was not
aimed by the person it was foreseen by him as a probable or certain.
A man intends a consequence of his act when he foresees that it may result and desired
that it should do so. If the consequence is desired it is immaterial that the chances of it
resulting may be small.
Thus if A hoping to kill B were to shoot at him from a miles range, knowing that the
chances to kill him were small, it would be intentional killing if the one came up.
Intention in statutory offences is frequently expressed as “intentional” or “with intent
to” or “willfully”
Examples:
Section 196 of the Penal Code “…malice aforethought….”
Section 258(1) of the Penal Code “…fraudulently….”
Section 294 of the Penal Code “…with intent to ….”
Section 319 of the Penal Code “…willfully….”
If a person is charged under a section requiring a specific intention such intention must be
proved. In the case of BRAZILA V. R. (1969) H.C.D. No. 309, the accused was a
messenger employed by the Bukoba District Council, was in charge of prisoners held at
Primary Court. He let two prisoners out of their cells and ordered them to wash their
13
Criminal Law
clothes while he went for a work. The prisoners escaped. The accused was charged under
section 117(1) of the Penal Code, which applies to “…any person who aids a prisoner in
escaping or attempting to escape from lawful custody…
“…It was held that the word ‘aid’ imports an element of positive assistance and or an
intention of helping the prisoners to escape. The evidence only showed that the accused
was extremely negligent and careless…”
In many cases of contempt of court, the High Court of Tanzania has demanded something
higher than mere negligence or recklessness to secure a conviction. In the case of
GODSON V. R (1972) H.C.D No. 36, the appellant was summarily convicted of
contempt of court for failing to turn up in answer to summons to give evidence c/s 114(1)
of the Penal Code. He claimed that he was in the toilet at the material time. The court
held that:
“…It is to be presumed that an offence under section 114 of the Penal Code requires
mens rea. The appellant’s explanation negates any such mens rea or intentional
disrespect…”
In the case of D.M.PATEL V. R.(1969) H.C.D No. 60, the accused that was participating
in a court case called out to one of his witness “Wewe shahidi kaa huku” while the court
was in session. He was charged with and convicted of contempt of court under section
114(1) (a) of the Penal Code. On the ground that he spoke without the court’s permission,
although the accused pleaded that he did not realize that such permission was required.
The court held that:
“…The conviction was improper, and intentional disrespect was an essential ingredient
of the offence. The court pointed to the fact that the section in question after listing an
array of different forms of contempt, ended by including ‘and other acts of intentional
disrespect’ i.e. section 114(1)(i), which implies that other acts listed where also
intentional…”
14
Criminal Law
Motive
A person’s motive in his reason for acting as he did. According to section 10 of the Penal
Code motive is immaterial when a person is charged in criminal case. This section refers
to the motive, which induced a person to do something prohibited by the law or to omit to
do something, which he was duty bound to do.
However under the same section i.e. section 10 of the Penal Code where it is expressly
declared in a fewer cases it is possible for a person to commit a crime but with good
motive. But in criminal law generally speaking motive should not affect liability.
Therefore if a person causes an actus reus with the requisite mens rea he is guilty of the
crime inspite of his good motive. A man who kills his incapacitated and suffering wife
out of motive of compassion is just as guilty of murder as the man who kills for revenge.
In R.V. WINDLE [1952] 2QB 826, the appellant was married to a woman 10 years his
senior, she was certified insane, and led him a most horrible and wretched existence. She
was always threatening to commit suicide. As a result of living with her, he too suffered
from a form of communicated insanity as “folice a deux” . he gave her 100 aspirin tablets
from which she died. At the time he did so he knew that it was against the law, but he
believed that what he was doing was right and that, in view of his wife’s condition it was
something which should be done and which he ought to do.
In R. V. SENIOR (1899) 1 QB 283, the accused was charged with the manslaughter of
his infant child of which he had the custody. He belonged to a j who objected on religious
grounds to calling on medical aid, and to the use of medicine, and he had deliberately
abstained from providing medical aid and medicine which were necessary for the child,
though he knew it to be dangerous ill, but in other respect he had done all he could in his
best interests of the child.
15
Criminal Law
“…It was held that the accused has willfully neglected the child in a manner likely to
cause injury to its health and having thereby caused or accelerated its death, he was
rightly convicted of manslaughter. His religious motive could not help him…”
In evidence motive is a relevant factor. Therefore if the prosecution can prove motive for
X murdering Y, the existence of that motive makes it more likely that it is X who
committed the actus reus.
Motive is also relevant in determining the type of punishment to be given or in assessing
the sentence. A person who had a good motive will normally be punished leniently.
Recklessness
Intention cannot exist without foresight but foresight can exist without intention. A man
may foresee the possible consequences of his conduct and yet not desire them to occur.
Nonetheless if the persist on his course he knowingly runs the risk of bringing about the
unwished result. In recklessness a man takes unjustified risk. In some other words the
accused had some actual awareness of the risk he was taking although he didn’t desire the
consequences. Under chapter XXII of the Penal Code the degree of mens rea required is
that of recklessness.
Negligence
A man is negligent with respect to consequences of his act when he does not foresee the
possibility of the occurrence of those consequences at all when he ought as a reasonable
man to foresee it. E.g. A driver who drives a motor vehicle with defective tires without
minding to check the condition of his tires is negligent.
In manslaughter cases it is sufficient to prove that the accused was negligent or reckless.
In the case of
…”
R. V. CHEPE KALANGALI 1973 L.R.T N.77, the accused failed to take care of the
deceased child who was in his custody, and who was suffering from cold. The resultant
exposure to cold hastened the death of the deceased:
16
Criminal Law
“…Mnzava J (as then he was) found the accused guilty of manslaughter within the
meaning of section 203 of the Penal Code. He observed that for a person to be guilty of
manslaughter by negligence, it must be proved that he had a duty to take care, that he
failed to discharge that duty thereby causing the death of the deceased
Sometimes the borderline between negligence and recklessness is obscure and in a
number of offences; e.g. the Road Traffic Act, one may find both words used in the
alternative e.g. section 50 says;
“…Any person who uses parks or stands a motor vehicle or trailer on any road
carelessly or without any reasonable consideration for any other person using the road
shall be guilty of the offence…”
Again the whole of chapter XXIII of the Penal Code is devoted to offences of criminal
recklessness and negligence.
Mens Rea and Voluntariness

Since it is said that mens rea includes those acts willed by the accused, any involuntary
muscular movement will not contain mens rea. Involuntary acts would protect a man who
suffers a epileptic fit while driving causing death or sleepwalking and other unconscious
state. Section 10 0f the Penal Code.
In the case of BRATT V. A.G. FOR NOTHERN IRELAND [1963] A.C. 386, Lord
Denning at page 409 said
“…No act is punishable if it is done involuntary, and involuntary act in this context…
means an act done by the muscles without any control by the mind such as spasm, a
reflex action or a convulsion or an act done by a person who is not conscious of what he
is doing such as an act done whilst suffering from concussion or whilst sleepwalking….”
17
Criminal Law
In ANTHONY MHIKWA V. R. (1968) H.C.D NO. 460, the accused was convicted of
contempt of court c/s 114(1)(a) of the Penal Code on the grounds that he had shown
disrespect to the court by laughing and making peculiar noises in the court of the trial in
which he was involved. On appeal he explained that a fly had flown into his nose,
causing him to snort and sneeze. The High Court accepted the explanation and quashed
the conviction. The reason given was lack of mens rea because the accused’s reaction
was instinctive and subjective to conscious control.
Strict Liability
In strict liability cases the accused is held guilty on the strength of the actus reus only
without proof of mens rea. Offences of strict liability are also known as offences of
absolute prohibition. It is not easy to recognize offences of strict liability one cannot also
predict with confidence whether the court will rule the particular statute imposes strict
liability. This has led sense criminal law writers to argue that crimes of strict liability are
the creation of the courts rather than parliament. Read Smith and Hogan, Criminal Law,
London, Butterwoths, 1965 at page 56.
In JOSEPH HARKWORTH V. R. (1970) H.C.D. No. 27, the accused were Englishmen,
they crossed the Songwe Valley from Malawi to Tanzania and walked to Kyela and
reported at the police station. They were arrested and charged with unlawfully entering
into Tanganyika. The particulars alleged that they entered into Tanganyika by way of
Songwe River, which was not an official port of entry. During the trial the first appellant
said “I realize my mistake now, I entered unlawfully into Tanzania, I was misled by the
customs officials in Malawi to come this way.” The second appellant said “ I admit this
offence I did not follow the official ports of entry to Tanzania.” They were convicted.
On appeal the defense council submitted that the trial magistrate should not have entered
a plea of guilty since mens rea was an essential pre-requisite for the commission of the
offence. In deciding the appeal the judge has this to say:
 Regarding the intention of the legislature,
18
Criminal Law
“…I would hold that at the present time, the regulation of entry into Tanzania through
proper ports is the subject which the legislature did intend to control rigorously…”
 Regarding the problem of proving mens rea;

“…In this type of case…it would be extremely difficult to prove in most instances that the
person charged did intend to break the regulation…”
 Regarding the gravity of the harm (not the offence) likely to be caused to the
public;
“…I am well aware that the security of this country along its southern border is a matter
of concern…”
As the result the appeal was dismissed. It has to be noted that the act of the accused
person must be willed. It must also appear that he was responsible for the act, which
brought this about, i.e. muscular movement was willed. For this reason it has been
suggested that the liability is strict and not absolute.
What is the justification for this rule?

 The good sense of the court is to put pressure upon the thoughtless and inefficient
to their whole duty in the interest of public health, safety and moral.
If mens rea were to be proved in every offence some guilty defendant would escape
simply because of lack of evidence.
Vicarious Liability
As the general rule law does not regard the master as having any criminal liability for the
acts of his servant. Whatever may be his liability in civil, tort or contract unless he has
himself actually authorized or aided and abetted him.
Exceptions to this general rule:
19
Criminal Law
 At common law the proprietor of a newspaper may be liable criminally for libels
published by his servants in conducting his newspaper even though he had not
authorized their publication.
 In case of public nuisance, it is possible for the master to be vicarious liable for
the acts of his servants.
Vicarious liability is mainly restricted to cover cases of negligent masters. E.g. Section 54
of General Interpretation of Laws and General Clause Act, 1972 Cap. 1.
“…Where any offence under any Act is committed by a person as an agent or employee
then the principal or employer shall be guilty of the offence and shall be liable to be
proceeded against and punished accordingly unless he proves to the satisfaction of the
court that he had knowledge, and could not by the exercise of reasonable diligence have
had knowledge of the commission of the offence…”
The reason advanced for holding a master liable is that a statute would be rendered
ineffective and the will of the parliament thereby defeated if he were not held so.
The case of HAMAD ABDALLAH V. R [1964] EA 270, shows the situation where the
master was held vicarious liable for the acts of his servant after delegating to him the
performance of certain duties cast on him through the license. The fact were that, the
owner and holder of a license for a public services vehicle was convicted of failing to
comply with a special condition of his road service license c/s 23(3) and 26 of the
Transporting Licensing Ordinance Cap. 373.
“…On appeal it was argued that he was not on the vehicle when the offence was
committed or that he was a part thereto or even knew of it. The court said that section
26(1) creates an absolute liability, and it was no defence that the appellant was not a
party to even aware of the breach of the special condition…”
Corporate Liability
20
Criminal Law
This is a situation whereby a company is held criminal liable for the acts/offences
committed by its employees. When we look at the General Interpretation of Laws Clause
Act, the definition of a person include includes “any body of persons whether corporate
or uncorporated”-S. 3. Section 53 provides that:
“…Where any offence under any Act is committed by a body of corporate then, unless a
contrary intention appears, as well as the body corporate, any person who, at the time of
the commission of the offence was concerned as the director or an office with the
management of the affairs of such corporate body shall be guilty of the offence and shall
be liable to be proceeded against and punished accordingly, unless he proves to the
satisfaction of the court that he had no knowledge and could not be the exercise of
reasonable diligence have had knowledge of the commission of the offence…”
Although the corporation has a legal personality, it has no physical existence and as such
cannot form intention of any kind except though its directors or servants. As each
directors or a servant is also a legal person quite distinct from the corporation, it follows
that a corporation’s legal liabilities are all a sense of vicarious.
However, since the people acting in the company’s business are considered to be
company, the courts treat the company personally not vicarious liable. The acts of these
officers within the scope of their employment are the company’s acts and the company is
held liable not for the acts of its servant but for what are deemed to be its own acts.
Limitations on Liability of Corporation

 It is the acts of the responsible officers of the corporation only, like the managers,
or members of the board of directors, which will be considered as the acts of
corporation itself. Wrongful acts and omissions by the subordinate staffs of a
company would not in ordinary circumstances be sufficient to fix criminal
responsibility on a company.
21
Criminal Law
 A corporation can only be convicted of offences, which are punishable by fine,

because there is no other way by which a corporation can be punished. There are
offences which it is inconceivable that an official of a corporation can claim to
have committed within the scope of his employment e.g. murder, sexual offences,
etc.
Collective Liability
This is another form of vicarious liability since like vicarious liability; it is possible for a
person to be punished without having performed the actus reus. In Tanzania the best
example is found under the Collective Punishment Ordinance, 1921 Cap 74. Under
section 2 the president may impose fines on all or any village, area, district or member of
any tribe, sub-tribe or community if, after inquiry he is satisfied.
 That they or any of them have colluded with or harbour or failed to take all
possible means to prevent the escape of any criminal.
 That they have suppressed or combined to suppress evidence in any criminal case.
 That stolen property having been traced to within the limit of any village, area, or
district they have failed or neglected to restore the property or to trace it beyond
the limits of such village, area or district.
NB: The power to impose collective punishment is vested on the president only and not
the courts.
Burden of Proof
This part concern with the burden and standard of proof in criminal cases. The question
of proof in most criminal cases is very important. Every allegation put forward by the
prosecution must be proved by strong or concrete evidence. Throughout the burden of
proof is one of the prosecutions. This burden does not shift.
22
Criminal Law
The standard of proof is that the prosecution has to prove its case beyond reasonable
doubt, whereas the defense has to prove its case on the balance of probabilities. The
prosecution has the burden of proving its case beyond reasonable doubt that the accused
person is guilty of the offence charged. This burden of proof doesn’t change, the accused
is always presumed to be innocent until the contrary is proved.
The accused person under the normal circumstances is simply required to raise a
reasonable doubt. There are certain instances where the accused may be required to prove
certain things example ownership in cases of dealing with possession of properties
suspected to have been stolen. Even on such cases the burden is very light so that he is
only supposed to prove the matter on a balance of probabilities.
General rules of criminal responsibility

In this chapter we will discuss provisions of the law regarding criminal responsibilities.
Earlier we discussed that for a person to be criminal liable he must act on his own free
will coupled with the necessary evil mind i.e. the crime committed must contain the two
elements required-Actus Reus and Mens rea. However in certain circumstances criminals
who commit crimes may be considered criminally not liable for such offence. Here
under, we are going to discuss the rules that operate as defences of a general nature, and
may be raised in appropriate statements in criminal trials.
Ignorance of Law
The law regarding ignorance of law is provided u/s 8 T.P.C. according to this section,
ignorance of law is no defense in criminal trials. The ignorance of law can not afford any
excuse for any act or omission, which would otherwise constitute an offence. The
existence of this rule is presumably passed on the presumption of everybody knows law.
This section has its origin from the Latin word “Ignorantia Jurist Non
Excusat”-“Ignorantia Facit Excusat”, which means ignorance of law cannot afford any
excuse while ignorance of fact can be good excuse. The justification of this rule is
expedience for it would be very difficult to prove that an accused person in every case
23
Criminal Law
knew the law he violated. Let us look an example of an old English case where a sailor
was convicted for contravening an Act of the Parliament. This Act was enacted when he
was away at sea and the offence was committed before the news of its enactment could
reach him.
See R.V. BAILEY 1800 R & R.1. In a Tanzanian case MAULID V. R. (1970) H.C.D.
No. 346, the appellant was convicted of failure to prepare and maintain records of oral
contracts in respect of his employees, failure to insure in respect of liability to his
employees, failure to insure to pay minimum wages. Evidence established that the
appellant who owned a bar paid his barmaids Tshs. 60/- per month whereas the minimum
wage was Tshs. 170/- per month. The appellant pleaded ignorance as to requirement of
having employees insured or contracts made out for them. The plea was rejected on the
ground that ignorance of law does not excuse. The judge went further to say that:
“…Apart from the finding on the facts that the appellant did know the law, I am inclined
to the view that these statutory offences are absolute, and no mens rea is required, even
so it is pointed that there is no such presumption that everybody is presumed to know the
law. In fact, I very much doubt if such presumption would hold good of even those who
administer the law. The principle is that ignorance of the law does not afford a defence
which, as the magistrate will appreciate, is no the same as presuming that everyone
knows the law…”
Read also the case of MUSA & OTHERS V. R [1970] E.A 42
Bonafide Claim of Right

This defence is provided u/s 9 T.P.C. this defense is available to an accused person under
the following conditions. The claim must relate to the property The accused may raise
this defense only if he is charged with an offence relating to property example when A
destroys B’s car on the ground that B has beaten his child, A will be charged with
malicious damage to property. The defense of claim of right will be available to him as
his claim is directed to property. This is so because the defense is not limited to the
offence of theft only.
24
Criminal Law
The section expressly provides that the offence must relate to the property. This position
was further settled in the case of YUSUPH HUSSEIN V. R. (1969) H.C.D No. 36, where
it was decided that the defense of claim of right doesn’t only apply to offences of theft,
but also the offences relating to property such as malicious damage to property. This will
be different if A beats B’s child on the ground the B injured his cow, the claim will not be
available to A as the claim is directed to the person of another person and not to property.
The person appropriating the property of another must do so bonafide or in good faith,
honestly and without fraud, in respect, of that property. Here we have to look at the
intention of that person appropriating the property of another. If his intention in
interfering with another’s property was not fraudulent as defined u/s 258 T.P.C. his claim
is said to be made bonafide.
A good example of a bonafide claim of right is the case of MOHAMED HASSAN V. R

(1969) H.C.D No. 71; in this case the appellant was employed as a house servant by the
complainant. He admitted that he had taken the clothes from the complainant’s room by
opening the widow and “pole-finishing” them out. He justified this by declaring that the
complainant had dismissed him from his employment owing him three moth’s wages,
and the complainant had failed to pay the wages due to him despite repeated requests, he
decided to take his clothes.
“…On appeal against the conviction of Burglary, the High Court allowed the appeal on
the ground that if his story were true it would constitute a defense to the charge, as the
appellant may well have thought he was acting under a claim of right…”
The same reasoning was applied in the case of LENDERITO LAIDOSOLI V. R (1970)
HCD No 169, the complainant was a tenant of the appellant and left without paying rent.
Complainant rented another house and when the appellant demanded his rent he failed to
pay him, whereupon appellant told him that he would see the consequences in the
evening. That evening the appellant took the complainants’ two suitcases bed sheets. On
appeal.
25
Criminal Law
“…Since the appellant took the goods of the complainant because he refused to pay him
his rent, the obvious conclusion was that the appellant acted under a claim of right…”
The claim to be made with honest belief that he is entitled in law to do what he did. The
claim should not refer to the actual legal right but should base on a belief in legal right.
What the accused claim should not necessarily be permitted by law. It is sufficient to
show that the accused honestly believed that he had such a right in respect of the property
concerned.
In the case of OYAT V. R. [1976] E.A 827, the accused seized five oxen, which had
damaged his crops. The owner of the oxen was ordered to pay the accused Tshs. 20 for
compensation of damage crops. Accused returned four oxen and retained one. Later he
sold it in order to get his Tshs 20 and remit the balance to complainant. Before he could
do so he was arrested and convicted. On appeal it was held that he had a good claim of
right.
Another case is SALUM IBRAHIM V. R. (1971) H.C.D No. 481, the appellant and
complainant were married for about 8 years but were later divorced. It was agreed that
complainant should remain with household goods all of which were bought by the
appellant. Appellant visited the complainant who, he learned that she had been having an
affair with another man. Because of this he demanded all his former property from her.
He assaulted the complainant and removed a number of articles from the house. He was
charged and convicted of robbery with violence c/s 285 and 286 of the Penal Code. On
appeal:
a) That the bonafide claim of right could be accepted with regard to those things,
which he removed although legal, the goods belonged to the woman.
b) That a claim of right may be unfounded in law, but if it was honestly held and was
not manifestly unreasonable, it can be a good defence to a charge of stealing.
26
Criminal Law
c) Since the appellant might have thought that he was entitled to demand his things
back from the complainant in the circumstances. The appeal was allowed on this
count, but not for the count of assault.
Mistake of fact
Mistake of fact is another defense provided u/s 11 T.P.C. this defense extends to all
mistakes of facts but not law. example, if A and B were caught hunting in a restricted
area where hunting is illegal and A says that he was not aware that it is illegal to hunt in a
restricted area, while B says that he was not aware that they had crossed boundary from
non-restricted area: A will be pleading ignorance of law while B will be pleading mistake
of facts. Therefore A will not be excused while B may be excused.
According to section 11 T.P.C. the defense of mistake of fact must base on a honest,
reasonable and mistaken belief. the mistake of fact, which is relied on by the accused
person, must be such that he could have been excused if the real state of things had been
such as he believed to exist. While some mistakes of facts negatives mens rea, some
don’t have this effect and don’t prevent the accused from being convicted. Example: If A
intending to kill his enemy B mistakenly kills C, he will still be guilty of murder because
had he supposed circumstances been real, A would still have been convicted of the
offence.
Mistake of fact must be honest and reasonable as was decided in the case of R V.
SULTAN MAGINGA (1969) H.C.D. No. 33, The deceased and a woman were lying in a
rice field at night after having sexual intercourse. The accused, on his way to guard his
shamba against the incursions of wild pigs, saw a movement in the grass and shone his
torch in that direction, but the batteries were weak and he could see little. He called out,
asking whether it was an animal or people. There was no reply. The couple then ran off in
different directions. The accused threw his spear at one of the shadow, hitting and fatally
wounding the deceased who died later on. The accused was charged with murder. The
court found that:
27
Criminal Law
“…The evidence supported the view that the accused did not know that he was throwing
a spear at a man, and the charge of murder could not be sustained…”
The judge declined to find the accused guilty of manslaughter because the evidence did
not show the requisite degree of recklessness. On the argument that the accused should
have known that it was a common practice (knowledge) in Rufiji that many couples go
off into the bush at night and during the day for lovemaking, the judge said that he was
absolved from recklessness because he called out, asking whether the object was human
or not. Since he got no reply, he may will have thought it was a pig.
Another case where the standard of reasonableness was used is the case of R.V.
SELEMANI HASSANI (1969) H.C.D No. 250, where the facts were slightly different
leading to a different decision. The accused went out at night to chase away wild pigs
which were destroying crops on his shamba. Believing that the pigs had run away into the
shamba of the deceased, his neighbour and relative, he went over to the deceased’s house
where he woke up the deceased’s wife who told him that she did not know where her
husband was. He then went into the shamba alone and when he found the pigs he fired his
shot gun. Later he heard a voice saying “you have already shot our brother-in-law”. The
deceased had in fact been in the shamba and was found to have died from a gunshot
wound. The accused was charged with manslaughter.
“…What the accused did amounted to recklessness of an extreme kind, and that the
degree of negligence was so high that what he did amounted to the offence of
manslaughter…”
The accused went into the deceased’s shamba that was full of maize, and at the same time
saw some pigs, he saw a black shadow and without warning he opened fire immediately.
Since he had found deceased missing in his house that night, it was reasonable to expect
that the deceased could have gone into his shamba to hunt pigs.
The question is whether the mistake is reasonable or not is solved objectively not
subjectively. Therefore it is possible for a mistake to be honestly held, but if it ruled
28
Criminal Law
unreasonable it will not afford a defense in a criminal trial. In the case of R. V. KAJUNA
(1945) 12 E.A.C.A 104, the appellant killed his father in the honest but mistaken belief
that the later was causing death of the appellant’s child by supernatural means. The trial
judge convicted him of murder. On appeal:
“…A mere belief founded on metaphysical as opposed to something physical, that a

person is causing the death of another by supernatural means however honest that belief
cannot in law be reasonable one…”
The subsection two (2) of section 11 TPC “the operation of this rule may be excluded by
the express or implied provisions of the law relating to the subject”. The effect of
excluding this rule would be to create an offence of strict liability.
Insanity
The law relating to insanity is provided u/s 13 T.P.C. However this law was codified
from the rules laid down in the famous case of R. V. M’NAGHTEN (1843) 10 Col. And
F. 200 (T.A.C.). The fact were that DANIEL M’NAGHTEN was suffering from mental
diseases wanted to kill Sir ROBERT PEEL but intend killed his secretary EDWARD
DRUMUND. The acquittal of M’naghted on the ground of insanity provoked such a
wide spread dissatisfaction that it become the subject of debate in the House of Lords. In
consequences of the debate Lords submitted to the judges certain abstract questions
respecting persons afflicted with insane delusions. The famous “M’NAGHTEN RULE”
is found in the answers to the first and second questions. The answer to the first question
is.
Every person is presumed to be sane, and to possess a sufficient degree of reason to be

responsible for his crime until the contrary is proved to the satisfaction of the jury.
To establish a defense on the ground of insanity, it must be clearly proved that, at the
time of committing of the act, the party accused was labouring under such a defect of
29
Criminal Law
reason from disease of mind as not to know the nature and quality of the act he was
doing, or if he did know it, that he did not know he was doing what was wrong.
The answer to the first question is the same as the provision of section 12T.P.C. that
states every person is presumed to be sane until the contrary is proved.
The answer to the second and third question is reflected in section 13 T.P.C. according to
this section,
A person shall not be criminally liable if at the time of doing or making the omission he
is through:
a) Any disease affecting his mind incapable of understanding what he was doing.
b) Of knowing that he ought not to do the act or make the omission.
At the same time of making the act or omission he was incapable of understanding what
he was doing. If the person does an act or makes omission and at the time of doing so he
was suffering from a disease affecting his mind to such extent that he was incapable of
understanding what he was doing. Then will not be held criminal responsible. A good
case which illustrated this is that of R. V. TOMSON MSUMALI (1969) H.C.D No. 26,
whereby the accused was subjected to epileptic fits and for this reason, he used to sleep
with his father in the same house for care of if a fit came on. On the material night he
was found standing outside the house by the dead body of his father, with a heavy stick
alongside. He told his mother that he had killed a thief. She asked him why he had killed
his father, and he made no reply. Later, in an extra-judicial statement, he said that earlier
that day he had been visited by a man who wished to marry his sister and asked the
accused to use his good offices to arrange the marriage. The accused refused and the
suitor left, threatening to return later and deal with him. That night, the accused dreamed
that the suitor had come back, had entered the house and was beating his father.
In defence of his father, the accused took a stick and beat the supposed assailant. Later he
dragged the body of the assailant outside the house. There he was told that the man he
had killed was his father. The evidence showed that the accused was a confirmed
30
Criminal Law
epileptic. While under observation in the hospital after the killing, he suffered three
epileptic fits, remaining in a confused state for about two hours after each one. The court
found that:
1) The accused was a person who killed his father. He killed him in
circumstances which would have amounted to murder had he been sane.
2) At the time of the killing, by reason of a disease affecting his mind, he was
unable to understand what he was doing and that he could not realise that
he ought not to have done what he did.
At the time of making the act or omission he did not knew that he ought not to do the act
or make the omission. This party requires that the accused person at the same time of
doing the act or making omission must know that what he is doing is wrong and is
prohibited by law to do so.
In NYINGE SUWATU V. R (1959) E.A.C.A. 974, the appellant killed an inspector of

police under the delusion that he was plotting his death. He surrendered himself to the
police and stated, “I have come here to be killed because they wanted my head” Medical
evidence showed that the accused would know what he was doing, but not that it was
wrong. The trial judge accepted that the accused was insane in medical sense, but held
that the accused’s statement to the police showed that he knew that what he had done was
wrong and convicted him of murder.
“…On appeal, conviction upheld on the same ground. The court noted further that the
accused saying “I have come here to be killed” indicated clearly that he was accordingly
not merely admitting a justifiable killing such as killing by accident or even one in
justifiable self-defense. When asked in cross-examination ‘did you know what you were
doing was wrong-against the law?’ he replied “it was wrong, but they wanted to kill
me…”
31
Criminal Law
If the disease of the mind does not produce any of the effect u/s 13 T.P.C a person may
be criminally responsible: R. V. MWAMWINDI (1972) H.C.D No. 212, where it was
held that:
“…The insanity must relate to the act complained of it is not enough to show that the
accused had a history of mental disease. It must be shown that the mental disease
affected his act in the way specified in the section…”
The issue of insanity is the question of fact to be resolved by the court aided by assessors.
It is not enough for medical expert to come to the court and say generally that in his
opinion the accused is insane. The court in the case of SAIDI MWAMWINDI said that,
while respecting the opinion of a medical expert it is not bound by it.
In determining the issue of insanity, normally the courts employ objective test. In R.V.
WINDLE (1952) QB 826, it was held that
“…A man may be suffering from defect of reason, but if he knows what is doing is
wrong-and by “wrong” is meant contrary to law he is responsible. So a man who after
killing goes forthwith to the police station to surrender himself and give a lucid account
of what he has done, could certainly seem to know the nature and gravity of the act
committed, and to know that in doing it he did wrong…”
What does disease affecting the mind mean?

In R. V. KEMP [1957] 1 QB 299, the issue was whether a physical disease affecting the
brain was a disease of the mind. The answer was:
“… The law is not concerned with the brain but with the mind, in the sense that mind is
ordinarily used, the mental faculties of reason, memory and understanding…”
If one read for “disease of the mind” “disease of brain” it would follow that in many
cases plea of insanity would not be established because it could not be proved that the
brain had been affected in any way either by degeneration of the cells or in any other
32
Criminal Law
way-the primary thing that has to be looked for is the defect of reason. In R. V.
MAGATA KACHEHAKANA [1957] E.A 330, the accused killed his father because he
believed that his father was Satan and that he had bewitched him and other members of
his family. The evidence of the psychiatric was that the accused appeared to be mentally
normal during the examination. LYON, J (Uganda High Court) said:
“… I have considered the words ‘disease of the mind’ in section 12 U.P.C. I am of the
opinion that an African living far away in the bush may become so observed with the
idea that he is being bewitched that the balance of his mind may be discussed to such
extent that it may be described as disease of the mind. Here the killing is unexplained,
and in any opinion inexplicable, except upon the basis that the accused did not know
what he was doing…”
However it is not easy to reconcile this case with that of MUSWI MUSULE V. R. (1956)
23 E.A.C.A 622, the appellant killed his wife believing that she was bewitching him. A
psychiatric testified that the accused knew what he was doing when he killed his wife, but
he could not say whether the accused knew what he was doing was against the law, and
history of episodes.
“…Even if he believed he was justified in killing his wife because she was practicing
witchcraft, there was no evidence that such belief arose from any mental defect, it is a
belief held by entirely sane Africans…”
The defense of insanity operates only as a partial defense. This is because, even if it is
accepted it doesn’t lead to the release of the accused but instead the accused is detained
as a criminal lunatic.-section 219CPA.
Insane Delusion
The answer to the forth question concerning with insane delusion doesn’t appeal in the
Penal Code. However, the answer is relevant since it defines common law position
towards insane delusions. The answer is:
33
Criminal Law
“…The answer must be-depend on the nature of delusion-He must be considered in the
same situation as to responsibility as if the facts with respect to which delusion exists
were real. Example, if under influence of his delusion he supposes another man to be in
the fact of attempting to take away his life and he kills that man, as he supposes in self-
defiance, he would be exempted from punishment. If his delusion was that the deceased
had inflicted a serious injury to his character and fortune and he killed him in revenge
for such supposes injury he would be liable to punishment…”
When the defense is held under insane delusions the accused is not convicted as a
criminal lunatic, rather may be acquitted of the offence or imprisonment.
In the case of R.V. KIBIEGON ARAP BARGUTWA (1939) 6 E.A.C.A 142, appellant
and father were passing a night at appellant’s hut. Around 6 am a neighbour heard shouts
from the hut. Appellant was attacking his father with a sword. Also appellant wounded
five goats in the hut. When seized by neighbours he was very violent. Father died due to
multiple injuries. When asked why he did so, appellant said that his father had tried to
have unlawful connection with him. He repeated so to the doctor, during preliminary
inquiry and at the trial. According to the medical testimony, the attack was so violent that
it suggested that the appellant couldn’t have been in right senses. He was convicted of
murder. On appeal:
“…Through such incomprehensible acts are not in themselves sufficient to establish

insanity in law, nevertheless, such act coupled with the facts that at the moment when he
was compelled to cease his attack he made the allegations against the deceased there
was good reason to think that the appellant may atleast have been labouring under an
insane delusion that the deceased had made an indecent assault upon him…”
He was convicted of manslaughter, sentence to imprisonment and not a special finding of

‘guilty but insane’
34
Criminal Law
In HILDA ABEL V. R [1993] T.L.R 246, the issue was whether the defense of insanity
applies where a person suffering from defective reasoning due to delusion of
understanding what she was going. The appellant was convicted of murder and sentenced
to death. At her trial, she raised the defence of insanity. The doctor who examined her
reported that she was insane at the time of the alleged murder as she was suffering from
defective reasoning due to delusion of thought and imperative hallucination. After
analyzing and evaluating the evidence and directing himself on the cautioned statement
of the appellant in which she admitted killing the deceased and gave a detailed account of
the incident, the Trial Judge held that though the appellant was mentally disturbed at the
time, she was sane within the meaning of s 13 of the Penal Code. On appeal it was held:
1) Insanity within the context of section 13 of the Penal Code is a question of fact
which could be inferred from the circumstances of the case and the conduct of the
person at the material time.
2) Courts are not bound to accept medical expert's evidence if there are good reasons
for not doing so.
3) As the law now stands in Tanzania, though the appellant may well have been
under diminished responsibility, no destruction could be made in terms of
criminal responsibility; there is need to update the law in this field.
Intoxication
As the general rule intoxication afford no defence to any criminal charge. However,
there is an exception to this general rule. According to section 14(2) of the Penal code.
Intoxication can be a defense where:
a) A person charged at the time of the act or omission complained of did not
understand what he was doing.
b) If the state of intoxication was not produced by the person charged, but rather by
another person by negligent or malice.
c) Where the person charged was by reason of intoxication insane, temporarily.
35
Criminal Law
Where a person raises a defence of intoxication and is accepted the person is discharged
and not acquitted. This gives the prosecution room to re-institute criminal proceedings in
the future in case new evidence is unhardened which will discredit such defense. In
D.P.P V BEARD [1920] A.C 479, the accused ravished a girl of 13 years and in
furtherance of the act of rape place his hands upon her mouth and his thumb upon her
throat, thereby causing death by suffocation. The sole defense was a plea of drunkenness.
His appeal against murder was dismissed on the ground that he knew that he was
committing rape, that is why he put his hand on the girl’s mouth to stop her from
screaming which indicated that he knew that he was doing an act of violence in
furtherance of an act of rape.
There are certain cases of intoxication, which leads to insanity such as delirium tremens.
Such a state must have been produced at the time of the act or omission complained of.
This matter was dealt in the case of R. V. ROTIEF (1941) E.A.C.A 71, where it was
stated:
“…Insanity whether produced by drunkenness or otherwise is defense to the crime

charged. The law takes no notice of the cause of insanity and if actual insanity in fact
supervenes as the result of alcoholic excess it furnishes as complete an answer to
criminal charge as insanity so produced by any other cause. It is immaterial whether the
insanity induced was permanent or temporary and if a man’s intoxication were such as
to induce insanity so that he didn’t know the nature of his act or that his act was
wrongful, his act would be “guilty of the act charged and insane when he did the act”.
The burden of proof of insanity is on the accused and the degree of proof required is that
required of a plaintiff on a civil case. Furthermore, intoxication is taken into account to
determine whether the person charged had formed any intention. E.g. if a man though
intoxicated is able to select lethal weapon or is able to select his victim, or is able to act
with motive then the defense cannot stand…”
In the case of KINUTHIA KAMAU V. R (1950) 17 E.A.C.A 137, the accused without
any apparent reason/motive or purpose smashed a window chased a small boy, stuck a
36
Criminal Law
person on the arm with a panga and threw it at him and then struck the decease on the
back of the head with a piece of firewood. He was falling several times as he did this, and
later on he was found asleep on top of a panga smelling heavily of alcohol.
The court on appeal substituted the conviction of murder for one manslaughter on the
ground that the actions of the accused could only be accounted for by his excessive
drunkenness, which made it extremely by unlikely that he was able to form the specific
intention to kill or cause grievous harm.
In R.V. NYONDE WOPERA (1948) 15 E.A.C.A 145, the accused participated in a beer
drinking party which had been going on continuously for 12 hours. He suddenly drew a
knife from his waistband and without a word and without getting up, stabbed a 10 years
old boy in the thigh fatally wounding him. He was convicted of murder. On appeal
“…There was no provocation, and the act done was only explicable if the accused was
very drunk. We feel that the only reasonable conclusion that can be drawn from the
evidence as a whole is that the appellant, when he stabbed the boy, had formed an
intention to kill, or cause grievous bodily harm and in the absence of such intention he
should no have been found guilty of murder…”
In the case of R. V. MICHAEL CHIBING’ATI [1983] T.L.R. 441, At or about 8 p.m.

on 18th September 1981 the accused Michael Chibing'ati returned home. He found his
mother Merina and his three brothers in the house of one of his brother's. The mother had
gone there to summon the three to her hut to eat. The accused somehow conceived this
gathering as one aimed at criticizing him. His mother assured him that there was nothing
of the sort and that she was there to invite his brothers to eat. The accused was
unsatisfied. He pursued his mother to her hut where he pounced on her in an attempt to
throttle her. The other brothers came to their mother’s help. They wrenched him from his
mother and one (the deceased) slapped him as he was led away to his hut. The accused
rushed to his hut, came out with a bill-hook (hengo) and cut the right arm of one brother
(Jackson) and the neck of another (Yonas) who fell and died instantly. He threw down
37
Criminal Law
the weapon and went into hiding. Later he re-emerged at the mortuary to see the body of
his dead brother where he was arrested and charged with murder.
The accused gave an un-sworn statement and pleaded intoxication but also alluded to self
defence. The defence of provocation was not raised but the trial Judge explained to the
assessors circumstances under which it could be available. So it was held as follows;
i) In the instant case there was undisputed evidence that the accused was
violently wrenched from his mother and slapped but these were not wrongful
acts since the accused was engaged in a criminal and murderous act of
throttling his mother, in which case provocation could not arise.
ii) In the instant case the accused claimed to have got drunk after drinking
Kangara brewed out of honey from 1 P.M. until night and there was sufficient
corroborative evidence which enabled the court to find without hesitation that
the accused was drunk at the time though he was not insane in the legal sense.
iii) Considering his degree of intoxication, the accused had reasonable ground to
believe that his brothers were about to attack him and or his family, a belief
which entitled him to rely on the defence of self-defence based on mistake of
fact.
Immaturity
For the purpose of this section, immaturity is that age whereby a person is said to be
incapable of committing criminal offences. According to section 15 of the Penal Code a
person under the age of ten years is incapable of committing offences. This is irrebutable
presumption –s. 15(1) PC.
There is rebuttable presumption when a person under the age of twelve years i.e. the age
between ten and twelve years commits any offence. It is the prosecution, which has the
duty to rebut this presumption by showing that at the time of doing the act, or making the
omission the child had capacity to know that he was doing something wrong.
In sexual offences, the presumption is irrebutable –a person under the age of twelve years
is incapable of having carnal knowledge.
38
Criminal Law
In R.V. F. 2 N.R.L.R. 185, a boy aged ten years found a wristwatch at a swimming bath
and took it home. His mother told him to take it back to the bath. Instead of doing it the
boy took it to a shop to sell it. The boy told the shopkeeper that he had been given the
watch as a present, but as he had two watches already, he wanted to sell it. When a
shopkeeper demanded a note to authenticate his story, the accused juvenile got a friend of
his, aged fourteen years of age to forge a note and on the strength of the forged note, the
watch worth about eight pound was sold for one pound.
“…Because of the untruth told by the accused juvenile as well as the deceits practiced by
him, the court had little difficulties in finding that the boy had capacity to know what he
was doing was wrong and was found guilty of theft…”
Compulsion and Coercion

It is the act of forcing someone to do so what he is not willing to do by using force on
him or threatening to use force on him.-S. 17 of the Penal Code.
A person relying on this defense must show the following:
 The accused together with another person (s) did the offence charged. In JOSIAH
V. R. [1972] E.A 157, the accused was charged alone. It was held that “the two
or more offenders do not have to be jointly charged to allow the accused to rely
on the defense of compulsion.”
 It must be shown that the accused person was at the material under threats of
in--------- being Killed or grievously injured in case he refused
to commit the crime with which he is charged. The threats must be directed to the
accused person and not another person or property. Threats of future injury will
not excuse any offence. See JOSIAH V. R
 He must also show that the threats directed to him continued to operate through
out the time of the offence. See JOSIAH V. R
Judicial Privilege
Section 16 of the Penal Code protests judge, justice of peace and another judicial officers
against criminal prosecution for an act or omission done bona fide in the exercise of their
39
Criminal Law
judicial functions. E.g. where a magistrate imposes a sentence of imprisonment while the
appropriate sentence is fine.
In the case of MZEE SELEMANI V. R. (1968) H.C.D No. 364, the accused, a Divisional
Executive Officer, was convicted u/s 253 and 96 of the Penal code. The complainant
went to seek a permit to hold an ngoma. He was told by the accused no such permits were
available, complainant apologized for bothering him. At this point accused rebuked
complainant for interrupting a “bwana mkubwa” and ordered a clerk to arrest
complainant. No warrant was issued. Complainant was charged with an offence c/s 124
of the Penal Code and was released on bail after being detained for short period. The
charge was dropped. Accused argued that because he was an ex-officio justice of the
peace, he was immune from prosecution as a judicial officer under section 16 of the Penal
Code and section 60 of the M.C.A.
“…The immunity of judicial officers extends only to those actions taken by the officer in
the performance of judicial functions…”
Compulsion by Husband
According to section 20 of the Penal Code a married woman has a defense of compulsion
by her husband if the offence charged with is;
 Any offence other than murder or treason.
 Committed in the presence of her husband.
 Is committed under this coercion.
Defense of Person or Property

The law relating to defenses of person or property is provided under section 18 of the
Penal Code.
i) In defense of his own person, a person may use all such measures to defend himself as
reasonable having regard to the nature of the assault.
40
Criminal Law
ii) A person entitled to use all reasonable force to prevent the commission of a violent
offence upon another.
iii) In defense of his own property a man may use all such means and force as are
reasonable in all the circumstances.
iii) In defense of a person or property; a person is criminally responsible for any excess
of force according to the nature and quality of the act, which constitutes the excess.
Defense of Person
The test that is applied in defense of person is reasonableness. It is to be observed that the
defense of self-defense is only available if there is reasonable apprehension of death or
grievous harm, and if the person who claims to protect himself from death or grievous
harm was to kill his assailant. According to Kenny,
“…If a felonious attack is made upon a man he has the legal right to stand his ground
and to resist, and if he kills his assault the homicide will be justifiable, proving that the
measures of resistance which he takes are reasonable in the circumstances. But if the
assault is not felonious then the person attacked must if safely possible retreat, and must
not use force against his assailant unless he is placed in such a position that he cannot
otherwise evade the attact, as it is used to be said, he must flee until he is driven to the
wall…”-Cecil Rurner, Kenny’s Outline of Criminal Law
This rule was reinstated in the Court of Appeal for Eastern Africa in SELEMANI USSI
V. R. [1963] E.A 442, where it was held that a person against whom a forcible and
violent felony is being attempted has no duty to retreat. It was further observed that “...if
the force used is excessive but if the other elements of self-defense are present, there may
be a conviction of manslaughter...”
The court is therefore going to consider whether the accused acted reasonably in the
circumstances. In the case of R. V. NYAKAHO (1970) H.C.D. No. 344, the accused was
charged with the murder of her father-in-law by slashing him to death with a panga. The
deceased, an old man of 60 years entered the house of his son, the husband of the accused
41
Criminal Law
where the accused was sleeping convalescing from a T.B. attack and locked the door. The
accused was suddenly awakened to find the deceased lying between her legs, his trousers
stripped down to his feet, trying to have sexual intercourse with her. When she refused to
have sexual intercourse with him, he tried to throttle her to stop he from shouting for
help, whereupon accused jumped out of bed picked up a panga and cut the deceased
several times on the head and arms. The deceased died from those wounds. At the trial a
submission of no case to answer was made. Acquitting the accused, SAIDI, J. held that:
“….There was no doubt whatsoever that the accused was in the circumstances entitled to
defend her –self against the assault on her by the deceased. The deceased “misbehaved
so grossly when he was a guest in his own son’s home where his own ill wife was being
nursed. The accused exercised her right of self defense when the deceased throttled her.
If she didn’t do so, she would have been chocked to death”
“…Under the law of woman is entitled to defend her chastity against a man who wants to
have carnal knowledge of here forcibly…”
“..The accused had both the right to defend her chastity and also the right to defend her
life when the deceased tried to throttle her in a bid to overcome her and be able to ravish
her…” …”
Therefore if the defense of person is reasonable, in the circumstances a person may be

acquitted of the offence. If the defense is unreasonable a person may be convicted of
manslaughter. And if the means adopted for self-defense are grossly unreasonable, a
person may be convicted of murder.
In the case of DAUDI SABAYA V. R. [1995] T.L.R. 148, the appellant was charged with
and convicted of murder by the High Court. The trial court found that the appellant
killed with malice aforethought because he used excessive force and rejected his defence
of self-defence. The appellant inflicted several serious cut wounds on the deceased whom
he found stealing from the shamba he was guarding and who, after some pursuit stopped
and started advancing towards the appellant holding a knife in hand. On appeal:
42
Criminal Law
i) Having regard to all the circumstances of the case as a whole the defence of
self defence was properly founded.
ii) The appellant used greater degree of force than was necessary in the
circumstances; he should have been found guilty of manslaughter. Conviction
of murder set aside, that of manslaughter substituted.
In another case of SALUM ABDALLAH KIHONYILE V. R. [1995] T.L.R. 349, the
issue was whether the defense of self-defiance is available where the accused speared
decease from the back while pursuing him. The answer is:
“…When the appellant speared the deceased from behind while pursuing him he was not
then defending himself against anything as the deceased was no longer aggressive…”
In CLAYLAWAY V. R. [1992] T.L.R. 72, the issue was whether killing on suspicion one
has been poisoned constitute self-defiance.
“…The plea of self-defence cannot by any stretch of imagination be applicable to the

appellant. Was the appellant by hacking the deceased defending himself from further
poisoning?…”
In MOSES MUNGASIANI LAIZER ALIAS CHICHI V. REPUBLIC [1994] T.L.R.

222, the issue was whether the plea of self-defense is available also to a person who
started the fight:
1) The defence of self-defence is available also to a person who has started a fight
depending on the circumstances of the case.
2) Where death occurs as a result of a fight an accused person should be found guilty
of the lesser offence of manslaughter and not murder.
The defense of the others was dealt in the case of ILAPALA IBRAHIM V. R. 20
E.A.C.A 300, in this case the court held that a killing in defense of another is justifiable
where an accused person acts without vindictive feelings and believes on reasonable
grounds that a person’s life is in imminent danger and that his action is absolutely
43
Criminal Law
necessary for the preservation of life. Again the courts are going to consider whether the
accused acted reasonably in the circumstances.
Defense of Property
Like the defense of person, the test of lawfulness in defense of property is
reasonableness. The English saying that “an Englishman’s home is his castle” is reflected
in the principles underlying the defense of property in English Law. it is generally
recognized that the owner of a house or his family member may kill a trespasser who
would forcibly dispenses him of the house, and that in protecting one’s home to his
adversary.
Before any force can be used against a non-violent trespasser the owner of the house
must first request the trespasser to depart. Should he refuse to leave, the owner of the
house may use reasonable force to explain him. If the trespasser fights back the law
entitles the owner or the householder to apply the principles of self-defense proper. But
since the householder is being fought by the trespasser in his “castle”, whether it is a
felonious on non-felonious attack, the householder has no legal duty to retreat. When the
trespasser’s entry has been obtained forcibly as by burglary, the trespasser may be at once
forcibly ejected.
Courts have insisted that use of lethal weapons in defense of property should only be
exercised where the life of the defender himself is threatened. In MOHAMED ALLY V.
R. (1969) H.C.D NO. 54 the appellant had a coconut shamba and for some time had been
troubled by thieves. While in his shamba one day he heard sounds from three people who
had come to steal coconuts. He fired his gun and wounded the complainant. He was
subsequently convicted of unlawful wounding. On appeal against conviction George C.J
(as then he was) Said:
“…Basically the common law does not favour the use of firearms in the defence of
property unless the life of the defender himself is threatened ….”
44
Criminal Law
The judge observed further (obiter) that the appellant would have been entitled under
provisions of section 32(2) CPC (S. 16(1)) CPA to arrest any one found committing any
offence involving injury to his property and under section 19(1) CPC (21(1)) CPA he
would be entitled if such person attempt to avoid arrest, to use all means necessary
including the use of firearms to effect arrest.
A similar observation was made in the case of R. V. MOHAMED MDOE AND

OTHERS (1970) H.CD. No. 211, the three accused who were watchmen were confronted
with an unknown number of thieves and killed one of the thieves. The judge held that:
“….I must say that a person is not entitled to kill a chief to retrieve his stolen property.
He can arrest him and take him before the court. But if the thief uses force so that the
property which he has stolen should not be recovered, and in doing so he uses a weapon
in a manner which could cause grievous harm to or kill, the owner, the owner or the
person who guards the property can defend to the extent of even killing the thief, because
he will be defending his life and his property. None of the accused used more force then
was necessary in law, and they were doing so in defence of their lives and their
employer’s property….”
However in defense of property like defense of person, it must be a question of fact in

each case whether the degree of force used in defense of property which caused death
was, in the particular circumstances of the case, justifiable, or if not justifiable, whether it
was such as to constitute the offence of murder.
Necessity
The defense of ne?cessity is a common law defense, which is not codified in our Penal
Code. It is a defense, which is sometimes available where a man who has done something
wrong did so for the purpose of saving himself or others from greater harm e.g. breaking
the speed limit to take a causality to hospital, driving at night on lamp less bicycle for
fetch a fire engine etc. some statutes recognize the necessity of breaking the law in order
45
Criminal Law
to avert some greater danger e.g. the Road Traffic Act in section 54 concerning
emergence vehicle.
In serious cases like homicides, this defense has been given strict interpretation. It has
always been insisted that the value preserved must be greater than that destroyed. Where
it is a case of life for life, the doctrine of necessity normally will be silent because the two
lives must be accounted equal in the eye of law and there is nothing to choose between
them.
In R. V. DUDLEY & STEPHENS (1884) 14 QB 273, three ship wrecker seamen a drift
in an open boat with practically no food for twenty days killed and ate a cabin boy who
was with them. On arrival in England they were tried for murder of the boy. The court
said:
“…Where it is a case of protecting one man’s life or another’s at the expenses of an

innocent person; the law has not concede
d the right to destroy a life in the interest of self-preservation. They were found guilty of
manslaughter…”
In another case of R. V. ABBAS MOHAMED COMORIAN (1969) H.C.D. No. 133, the
accused pleaded guilty for driving without a proper licence. His uncle had gone to Dar es
Salaam to receive medical treatment. The accused received a message that his uncle had
arrived at the Zanzibar Airport, and that he was very sick and needed to be collected.
Accused took his uncle’s motor vehicle to the airport to pick up his uncle and bring him
home on which he was stopped by the police. The accused was a Post Office van driver.
He holds a Government licence, which is issued free of charge to Government drivers,
and which authorized him only to drive Government vehicles only. The accused was
fined Tshs. 100/= On revision, KIMICHA, Ag. J (as then he was) said that:
“…The accused was faced with an emergency situation and it is hardly surprising that he
drove to the airport without thinking about licensing technicalities. He was a competent
46
Criminal Law
driver; indeed, he made his living as a driver, so it cannot be argued that he was
endangering the public safety…”
Economic necessity has never been accepted as a defense to criminal charge. The reason
is that where it ever countenanced, it would leave the individuals the right to take law
into their own hands.
In larceny cases, economic necessity is frequently invoked in mitigation of punishment,

but has never been recognized as a defense, nor is it available as a defense to a charge of
riot. The fact that a riot is spontaneous makes it nonetheless premeditated. Premeditation
may and frequently does arise on the instant. A lawful assembly may turn into a riotous
in a moment of time over trivial incident or substantial provocation. When it does, those
participating are guilty of riot, and neither the cause of riot nor their reason for
participating in it can be interposed as a defense.
PARTIES TO OFFENCES
Introduction
We have already seen that the law always demands an Actus Reus as necessary
ingredients of a criminal liability. As we have seen the reason for the requirement is that
the danger perceived in the mental attitude of one criminal inclined its truly as dangerous
as it might appear. In most cases that which comprises the criminal act is part and parcel
of the criminal harm accomplished. Thus the murder is the man who kills, the thief the
man who steals.
But there is a whole category of persons who are guilty of crime even though their
activity is not thus intimately connected with a situation where the offence is committed
by more than one person. Each person will be held criminally liable. But the question
arises as to how and what extent should each held liable. This occurs when and where
several offenders perform different roles in the execution of a common dead.
Parties to Offenders in England
47
Criminal Law
I. An accessory Before the Fact

This is the person who is absent at the time of the commission of the offence but yet
procure, cancel, command or abet another person to commit the offence. To be an
accessory before the fact.
 He must have known the particular deed contemplated.
 He must approve it.
 His approval was expressed in some form, which operated to encourage the
principal to perform the deed.
 The above three elements came into existence before the time when the offence
was being committed.
If the offence is committed in the different manner prescribed by the accessory before the
fact, it doesn’t excuse him from liability. E.g. A hires B to poison C but B instead kills C
by shooting. A is still liable as an accessory before the fact to C’s murder.
Where the principal makes mistake in performance of the act, accessory before the fact
will not be excursed. E.g. B mistakenly kills C’ brother instead of C, A will still be liable.
II. Principal Offenders In The First Degree

This is the actual offender, a person who executes a criminal act. It is stipulated that no
man can be a principal offender unless he be present, but there are situation where he will
not be present. E.g. in case of willful poisoning whereby he lay or infuses a poison with
intent to poison any person and the person intended or any other person take it in his
absence. Another situation is where the principal uses the hand of an innocent agent. E.g.
a man who uses a child in committing an offence, a man who uses his dog to assault his
enemy, a doctor who poisons and kills a patient by using an innocent nurse.
It is possible to have more than one principal offender in the first degree especially where
there is joint or common participation in the actual doing of the prohibited act.
III. Principal Offenders In The Second Degree

This includes aiders and abettors.
E.g. a man who offers his motorcycle or vehicle to facilitate robbery.
48
Criminal Law
A man who aids a thief by keeping watch outside the house where theft is taking place.
To render a person liable, the aid or assistance must be intentional.
IV. Accessory After The Fact.

This is the person who knows that a crime has been committed but subsequently shelter
or aid the offender in such a way as to enable him to evade justice. Accessory after the
fact includes also person who rescue a person from being arrested. It includes a person
who intentionally and voluntarily shelters another person who is in his custody, who has
committed a crime from being apprehended or to enable escape. It must be shown that
active assistance was given before a person is convicted as an accessory after the fact.
Mere sympathy is not enough.
Parties To Offences In Tanzania

The law relating to parties of offence in Tanzania is not the same as that of England. In
Tanzania there is no distinction between accessory before the fact and the principle
offenders in the first degree and second degree. In Tanzania there are only two categories
of parties to offences:
Principal offenders and accessory after the fact
I. Principal offenders
According to section 22 of the Penal Code, if the offence is committed each of the
following persons may be deemed to have taken the act or make the omission.
 A person who actually does the act or makes the omission.
 A person who does or omits to do any act for the purpose of enabling or aiding
another person to commit the offence.
 A person who aids or abets another person in committing the offence.
 A person who counsels or procures any other person to commit the offence
Illustration of section 22 TPC.

Suppose A persuades B to murder
C knowing to the plot gives B a gun
D who is also knows of the plan, drives B to X house.
49
Criminal Law
Whilst D keeps watch outside B shoots and Kills X.
From the above illustration

A falls u/s 22(d) TPC
B falls under section 22(a) TPC
C and D fall under section 22(b) or (c) TPC
From the above, it is quite possible that a person may be convicted with an offence
although he did not perform the actus reus, which constitutes the offence.
Further more, we find that a person who participate in the commission of an offence
under section 22(d) TPC he may either be charged with the commission of an offence or
with counseling or procuring its commission.
When a person is convicted for counseling or procuring the commission of an offence, he
will face the same consequences as if he had been convicted for committing the offence.
If the person procures another person to do or omit to do any act, and that person does
such act or make such omission, then the person who so procures, will be responsible as
if he had done it or made the omission himself.
When two or more persons are jointly charged with the offence and it is impossible to
ascertain which particular one committed the offence, the all of them must be acquitted,
unless there be established on the part of the accused person common intention to commit
the offence charged. Mere presence at the scene of crime is not itself an offence as in the
case of DAMIANO PETRO AND JACKSON ABRAHAM V. R, [1980] T.L.R 260, the
issue was whether the presence of the second appellant at the scene of the crime, and on
flight with the principal and advise the principal to discard the weapon were sufficient to
constitute him an aider or abettor.
According to the evidence given before the court is that the first accused was seen with a
knife, which was used to murder the deceased. The second accused was seen in the
50
Criminal Law
company of the first accused. When spotted, the second accused and first accused throw
the knife away. As pointed above are these acts sufficient evidence of aiding and abetting
by the second accused?
“…The court declined to accept this as sufficient. The court said mere presence at the
scene of crime is not sufficient/enough to constitute a person an aider and abettor: the
person must also participate in the crime to some extent…”
To constitute an aider or abettor some active steps must be taken by words or actions with
the intention to instigate the principal (s). it is not criminal offence to standby, a mere
passive spectator of a crime is not itself a crime. But the fact that a person was voluntarily
and purposely present witnessing the commission of a crime, and offered no opposition to
it, though he might reasonably expected to prevent and had power to do so or at least to
express his dissent, might under some circumstances afford cogent evidence upon which
a court would be justified in finding that the willful encourage and so aided and abetted
the person to commit the offence.
In the case of JACKSON MWAKATOKA AND TWO OTHERS V. R [1990] T.L.R 17,
the three appellants were convicted for murder. In a trial for murder caused during a fight
at night, the trial judge found the appellants were guilty of murder on the evidence that
the first appellant was identified as being present when the second and third appellant
attacked the deceased on the fateful night and thus participated in the murder under the
doctrine of common intention.
“…mere presence of the first appellant at the scene of the crime was not sufficient to
invoke the doctrine of common intention and implicate him to the murder…”
If it is established that the accused participated in the commission of an offence, the court
will convict all of them for committing the offence. In the case of GEORGE WALTER
AND TWO OTHERS V. R [1980] T.L.R. 313, the appellants were convicted: two of
them for forgery and the third attempting to obtain money by false pretences. The first
51
Criminal Law
and second accuseds were both employed by Oyster Bay Hotel, the former was a
storekeeper and the later as a cook. The third accused was a fishmonger who used to
supply the hotel with a fish. On the material day. The General Manager (GM) of the hotel
while looking out of the window of his room in the hotel, notice that the accused were
taking a long time in weighing a basket of lobsters brought by the third accused.
The weighing was taking place outside the store, which was visible from his point of
observation. He went to the spot to investigate and found that the weighing of the lobsters
shown in the scare was 811/2 KGS whereas a receipt voucher written and signed by the
second accused gave the weight off the lobsters as 25KGS. The lobsters were weighed
again in his presence and that of his wife and it was confirmed that they weighed only
181/2 KGS. By the time the lobsters were weighed again the third accused had already
taken the receipt voucher to the cashier and was told to come for payment on the morrow.
The magistrate convicted the first and second accused of the first count i.e. forgery and
acquitted them of the second count i.e. attempting to obtain money by false pretences and
acquitted him of the first count. On appeal:
“…The High Court found that the first and second accused were also guilty of the second
count, given the fact that they conspired with the third accused to rob their employer,
and possibly instigated the offence. From the fact given during the trial, it is possible that
all three accused were deliberately trying to defraud the hotel, and as such the
magistrate should have convicted them all on both counts as charged…”
Thus as provided by section 22 PC, where conspiracy to defraud is proved, all parties
concerned should be convicted.
II. Common Intention By Joint Offenders

According to section 23 PC for persons to be charged as joint offenders:
 There must be two or more persons.
 They have to form a common intention to prosecute an unlawful purpose.
 Such unlawful purpose must be committed.
52
Criminal Law
 Such commission must be a probable consequence of the prosecution of their

unlawful purpose.
To fulfill the requirements of this section, it is not necessary that there should be an
agreement among the parties prior to the commission of the offence. In the case of
MATHIAS MHENYI AND ANOTHER V. R. [1980] T.L.R. 290, the appellants were
convicted of murder. The first appellant enlisted the second appellant in assaulting the
deceased with whom he suspected of having an affair with his former concubine. On the
material date the second appellant held the deceased’s hand to prevent the deceased from
fleeing and from defending himself against the assault. On appeal to the court of Appeal:
“…The court found the second appellant principle offender in that he was an active
participant in the vicious assault of the deceased. By holding the deceased’s hand not
only made it impossible for the deceased to flee from his assailant but also to ensure that
the first appellant in carrying out his evil deed would not meet no resistance from his
victim…”
Thus where a person is killed in the prosecution of a common unlawful purpose and the
death was a probable consequence of that common purpose, each party to the killing is
guilty of murder. In the case MSENGI MKUMBO V. R. (1955) E.A.C.A 500, the two
appellants went to a maize shamba to break and remove maize cobs. They were armed
with sticks. The deceased surprised them. The second appellant threw a stick not very
heavy one to the deceased and thereby caused his death. Both appellants were convicted
of murder. On appeal against the conviction the court held that:
“…The two accused being in the shamba with intent to commit the felony of theft, they
both being armed with sticks showed that they were prepared to offer violence in pursuit
of their common intention and as death resulted from the act of one of them, the element
of malice aforethought necessary to constitute murder has been established [S. 200(1)
PC]…”
53
Criminal Law
In another case of MUGHUIRA BWAYA AND ANOTHER V. R (1943) 10 E.A.C.A.

105, nine appellants formed a common intention during famine for burgling a house and
carried out this plan. During burglary one of the appellants who alone was armed, speared
and killed the owner of the burgled house. The appellants denied any intention of murder.
They were convicted of murder. On appeal against conviction;
“…The court said that even though one member of a party i.e. the first appellant was
armed, the enterprise of burglary was unlawful and resistance by the owner was a
probable consequence and the overcoming of such resistance by violence if necessary by
burglars would probably be resorted to, were sufficient factor to bring all the accused
within the doctrine of common intention…”
In SHENE KIMBOKA V. R. (1968) H.C.D. No. 52, the five accused were convicted on
two counts of robbery and malicious damage to property. A taxi driver had taken a
passenger to a certain hamlet, where he waited while the passenger went to his house for
money to pay the fare. When the passenger returned, a group of persons, including the
five accused, had gathered about the car. They questioned the driver and the passenger,
indicating that they suspected them of being thieves. Dissatisfied, they set upon the pair,
during the struggle, the two men were injured and property and money were stolen from
them. It is not clear that any of the five accused stole any of the valuables. The court held
that;
“…Clearly, the accused participated in the assault. Conviction entered accordingly,

However, although the accused “shared a common intention to prosecute an unlawful
purpose, namely, the beating of so-called thieves,” it is not clear that they themselves
committed any robbery…”
In another case of JUMANNE SALUM PAZI V. R. [1981] T.L.R 246, the appellant was
jointly charged with another persons, the first accused with unlawful possession of
government trophy. On the day in question he was travelling to DSM. He then directed
the bus to the appellant’s home to pick some bags of rise, from there to be transported to
54
Criminal Law
DSM. On arriving at the appellant’s home he informed the appellant, whose one leg was
lame, that he has brought the bus. Then he (the first accused) and the turn boys loaded
three bags of rise on the bus and just as they were leaving the appellant asked the first
accused to pay Tshs 5 loading charges to the turn boys. At some point on the way, the bus
was stopped and upon inspecting the three bags were found to contain not only ricebutals
elephant tasks-thirteen in all.
On being asked, the first accused claimed that the three bags belonged to the appellant
who requested him to convey them to DSM. In his defense the appellant denied charge.
The issue here is whether there was joint possession of the tasks by the accused persons:
on this issue the court found that;
1) The first accused led the bus to the appellant’s home and dully informed him
that he had brought the bus. This goes to suggest that the appellant had an
interest in the matter i.e. if the first accused merely brought the bus there to
collect his own property, that is, three bags, then why should he find it
necessary to inform the appellant that he had brought the bus?
2) After the bus had arrived at the appellant’s home, the appellant had a
conversation with the turn boys of the bus after which the turn boys proceeded
to load the three bags on the bus. This shows that the appellant was a person
who had an interest in the bus coming to his home and taking away the bags.
Because if the bus merely came to collect the property of the first accused,
why should he (the appellant) go to talk to the turn boys on his business which
didn’t concern him.
3) After the bags were loaded on the bus and the bus was leaving, the appellant
asked the first accused to pay Tshs. 5 to the turn boys as loading charges. If
the appellant had no interest in the whole business and had nothing to do with
the bags, then why should he take the trouble and pain of seeking to ensure
that the turn boy was accordingly paid for the services he rendered in loading
those bags on the bus?
55
Criminal Law
“…From the above observations, the court came to the conclusion that the appellant had
an interest in the bags in question and took part in making arrangement to transport
them to DSM, as such he was a joint possessor of the bags. The appellant as a joint
possessor, he was a principal to the commission of the offence…”
It is always that common intention is formed from the outset. It may be formed at the
spur of the moment. This is common in the cases of thief beating or drives in cases where
pedestrian has been knocked down. In TABULAYENKA KIRYA V. R (1943) 10
E.A.C.A. 51, it was said that, to constitute common intention to prosecute an unlawful
purpose within the meaning of section 22 UPC (section 2i3 TPC) e.g. to beat a so called
thief there being no suggestion that the violence used was necessary to effect the chief’s
arrest, it is not necessary that there should have been any concerted agreement between
the accused prior to the attack of the so called thief. Their common intention may be
inferred from their presence, their actions and the omission of any of then to dissociate
himself from the assault.
We can see therefore that, when a person is jointly charged with another, he can only
excuse himself from criminal responsibility of the offence if he has either;
 Disassociate himself from such common purpose e.g. by taking steps to prevent it
or reporting the matter to the authority concerned, or
 If it can be shown that the offence committed was not a probable consequence to
the one intended.
NB, It is not sufficient for joint responsibility for an offence under section 23PC that the
offence actually committed was likely to occur as a result of the several persons acting
together, but the existence of a common intention being the sole test of joint
responsibility it must be proved what the common intention was and that the common act
for which the accused were to be made responsible was acted upon in furtherance of that
common intention.
56
Criminal Law
III. Counseling Another to Commit an Offence

A counselor is a person who advices, encourages or persuades another person to commit
an offence. According to section 24 PC for the offence of counseling to be committed:
 A person must counsel another person to commit an offence.
 The offence has to be committed by the person to whom counseling was given.
 It is immaterial whether the offence committed was the same or a different one as
that counseled.
 It is immaterial also whether the offence was committed in the same manner as
counseled for or not.
 The offence committed must be a probable consequence of carrying out the
counsel.
Illustration
A counsels B to steal X’s motorcycle. B instead of stealing it set it on fire. The fact of
setting it on fire is not a probable consequence of the counseling.
If B afraid of stealing the motorcycle himself employs C to steal it, it will not be a
defense to A that he intended B to do the act himself. If B breaks X’s house to get the
motorcycle, both B and C will be responsible for the burglary since burglary was a
probable consequence of the act of stealing the motorcycle.
In the case of R. V. BIGULI s/o LWEMARA (1947) 14 E.A.C.A. 115, the second
appellant was charged with counseling the first appellant to set fire to the deceased’s
house, deceased died in the fire. The second appellant adviced the first accused to burn
the house of the deceased because he possessed the knowledge that it was the deceased’s
wife who was responsible for the death by witchcraft of some of the first appellant’s
children.
On appeal against the conviction for murder it was argued that the trial judge misdirected
himself when he held that the evidence established that the second appellant had given
the first appellant advice to destroy deceased’s life.
57
Criminal Law
“…The court held that, there was no evidence that the counseling of the first appellant
went further than an injunction to burn the deceased’s house…”
Whether the mere injunction to commit arson not necessary at night places the second
appellant in position where he can rightly be convicted for murder.
Under section 24 PC where a person counsels another to commit an offence, the offence
actual committed must be a probable consequences of carrying out the counsel. In this
case it could not be reasonably held that loss of human life is a probable consequence of
arson parse. Everything will depend upon the circumstances in which the crime is
committed. In this case the first appellant committed the crime at night and without
warning the deceased and others who were sleeping in the hut, but there is no evidence
that those were the circumstances in which the second appellant counseled the first
appellant to commit the crime.
Where the person counsels another person to commit an offence it is immaterial whether
the offence committed in the same way as counseled or not.
In the case of CHOITRAM V. R. (1952) 26 K.L.R 93, the accused had made a statement
to the police that he had handled a diamond necklace to an agent in Mombasa with
instruction to have the diamonds removed from it by a jeweler and to bring the diamonds
to him, which had been done.
Accused counseled the agent to confirm that the statement which was false. The agent
made two statements to the police.
1) That he had never received a necklace from the accused.
2) That he had taken the accused to a jeweler whose assistant had removed the
diamonds and handed them to the accused. The accused was convicted of
counseling another person to give false statement to the police.
“…On appeal against the conviction, the court said that where the offence, which has
been advised, is committed and the mode of committing the offence differs as in this case
58
Criminal Law
but slightly from the mode advised by the appellant, he cannot in law be excused from
liability for it…”
VI. Accessory After The Fact.

Section 387 PC defines accessory after the fact as a person who receives or assists
another who is, to his knowledge, guilty of an offence, in order to enable him to escape
punishment. Before a person can be convicted of an accessory after the fact the
prosecution must prove the following;
 The person has committed an offence.
 Another person knew or believed that the first person had committed it, even
though he may not know the actual identity of the first person.
 That the second person did an act with intent to impede the apprehension or
prosecution of the first person and
 The act was done without lawful authority or reasonable excuse.
In the case of ANDREA NICODEMO V. R. (1969) H.C.D No. 25, the two accused were
charged with theft. There was evidence that the first accused had stolen a bicycle and had
taken it to the house of the second accused. The second accused kept it for several days
and assisted the first accused in removing the saddle. The bicycle was then recovered by
the police. The trial magistrate found that the second accused knew that the bicycle had
been stolen and convicted him of being an accessory after the fact c/s 387, Penal Code.
“…The court on appeal held that: To be convicted as an accessory after the fact an
accused not only must know or have reason to know about the offence but must take steps
for the purpose of enabling the offender to escape punishment. There was no evidence
that the second accused took such steps. Conviction of first accused affirmed; conviction
of second accused quashed…”
A person may be an accessory after the fact if for example to murder he offers shelter to
the murderer with the intention of enabling him to escape punishment. Similarly if a
person aids an offender to escape or if he aids an offender by way of destroying
59
Criminal Law
incriminating evidence. Persons who help hide the body of a person knowing that person
to have been murdered are accessories after the fact to the murder, whereas a natural and
probable consequence of their acts it must be likely that the authorities would trace the
murderer and the result of that might be that he would escape punishment.
But where a person buries a dead body in fear of his own safety he cannot be convicted as
an accessory after the fact to the murder or manslaughter.
A wife cannot be an accessory after the fact for receiving or assisting her husband who is
guilty in order to enable him to escape punishment. Furthermore, the wife cannot be an
accessory after the fact for receiving and assisting another person who is guilty of an
offence in presence of her husband and for which her husband is involved. Likewise the
husband cannot be accessory after the fact for receiving and assisting his wife in order to
enable her escape punishment.
ATTEMPTS AND CONNSPIRACIES

Attempts
These are considered to be inchoate offences in the sense that they are not complete. We
see that the law does not punish the intent alone, ordinarily there must be some criminal
harm accomplished before liability will be imposed.
Section 380 of the Penal Code is concerned with offences where people require the
formation of intention, the preparation and the execution of the offence. In preparation
we have remote and proximate acts of preparation.
Remote acts-Actus Reus is not complete, hence act not punished.
Proximate-Actus Reus is complete hence act punishable for it is an attempt.
Mens rea
In attempt it is mens rea, which the law regards as of primary importance and desire to
prevent. Where the law prohibits certain consequences like death or injury to person then
in order to be convicted of an attempt. The accused person must have foreseen that the
consequence were likely to occur and desired that they should or conduct himself in the
60
Criminal Law
prohibited manner. E.g. crime of arson, the accused must have intended to set fire to the
house; foreseen burning was a likely consequence and desired that consequence.
Actus Reus
As already stated above, mere intention to commit an offence doesn’t constitute an
attempt. An attempt to commit a crime is an act done with intent to commit the crime and
forming part of a series of facts which should constitute its actual commission if it were
not interrupted.
To constitute an attempt, the act done must be immediately and not mere remotely
connected with the commission of the offence. In other words, it must be something more
than mere preparation for the commission of the offence. It must be proved that the
accused began to put his intention into execution by means adapted to its fulfillment and
that he manifested his intention by an overt act.
In R.V. ROBINSON [1915] 2 KB 342, the appellant was charged with an attempt to
obtain money by false pretences. He insured his jewelries after concealing jewelries and
shouted for help when rescued and when jewelries were found in his shop he admitted
that he wanted to obtain money by false pretences from the insurance company.
“…On appeal against conviction, it was held that what he had done was merely
preparation for the commission of the crime not a step towards the commission of it.
However the court held that(obiter) a claim for the money from the insurance company
or a communication to them of the pretended burglary would have been sufficient to
make him guilty of attempt…”
Attempt Theft
In cases of theft are no specific clauses of any attempt, and here asportation is very
important, the thing must move from one place to another. In R. V. RHINO & OTHERS
(1892) Cox 17 c.c. 491, it was held that in order to prove that an attempt to commit an
61
Criminal Law
offence has been committed it is not necessary to prove that had the attempt not been
frustrated the offence could have been committed?
In the case of AMBOKILE MWAMALONGO V. R (1967) H.C.D No. 275, the accused
was convicted of stealing from the person of another. He was pulling a purse out of the
pocket of another person when a sudden movement by the intended victim’ prevented
accused from obtaining the purse. However, the purse was far enough out of the intended
victim’s pocket so that when he sat down immediately thereafter, his purse fell to the
floor. On appeal
“…There was enough asportation and the accused was guilty of attempted pick
pocketing…”
In KOMBO ABDARAMAN V. R. [1980] T.L.R. 90, the appellant was convicted of

attempted pick pocketing, the appellant with another person pushed on Zefania Mmasi
while the appellant unsuccessfully tried to force his hands into Zefania’s pockets and
both fled when Zefania become inquisitive. The charge cited section 380 of the Penal
Code and no more. On appeal:
“…In order to constitute an attempt the act of the accused must be such that if not
interrupted they would end in the commission of a particular offence. When the appellant
tried to force his hands into the complainant’s pocket, he had clearly put his intention
into execution by means adapted to its fulfillment...”
Attempted Murder
In murder there is specific provision-section 211 of the Penal Code. On a charge of
attempted murder it is not enough to show an intention to cause grievous harm. It must be
proved that there was intent to kill. In R. V. CHRISTOPHER NGAMBILO (1967)
H.C.D No. 38, the accused was charged with attempted murder of one William. He came
to William’s house and while aiming a gun in a general direction of William’s knee he
said, “Today you will die”. He then shot William in the knee. The court said:
62
Criminal Law
“…Where a charge is murder, the intention to cause grievous bodily harm will suffice to
establish malice aforethought, but where the charge is attempted murder “the actual
intention to kill must be proved”…”
In R. V. RUKONDO KAMANO (1968) H.C.D. No. 48, the accused was charged with
attempted murder. He and several others shot a shower of arrows at complainant. They
shot from about 40 paces away and one of the arrows hit complainant in the buttocks
causing a wound. On appeal:
“…In view of the distance from which the arrows were shot and the other circumstances
of the case, accused was guilty of the offence of an act intended to cause grievous harm,
rather than attempted murder…”
Attempted Rape
The rule is: on a charge of rape, it must be shown not only that the accused intended to
gratify his passion but that he intended to do so at all costs and not withstanding any
resistance on the part of a woman-S 132 PC.
In the case of MULIRA V. R. 20 E.A.C.A, the appellant was convicted of attempted rape
of his employee’s wife. The appellant entered her bedroom, switched off the light, put the
hand over her mouth and with the other hand removed his shorts and lifted her pet coat.
The woman screamed for help and when a torch was shone in the room he ran away. On
appeal:
“…The conviction was set aside and substituted an assault with intent to ravish because
it had not proved beyond reasonable doubt the accused intended to rape despite any
resistance on the part of the woman…”
In OMARI V. R. (1971) H.C.D No. 362, the appellant was convicted of attempted rape.
He grabbed the complainant, threw her down, tore her under pants and laid on her. The
63
Criminal Law
complainant stated however, that he did not unbutton his trousers in preparation of
penetrating her private parts. On appeal it was held that:
“…From the proven facts it is quite clear that appellant’s act did not constitute an
attempt to rape the complainant. The appellant didn’t undress, therefore appellant was
found guilty of indecently ‘assaulting the complainant’…”
From the above cases we see that the courts were very strict in convicting an accused
person of attempted rape. The rule laid down in the Mulira’s case was that mere
preparation was not enough; the act of the accused must be proximate. The rule was
known as the ‘pants down rule’, in that the accused must have undressed. If not, the
accused was only guilty of indecent assault.
In the case of R. V. ANDREA AYARIT 1973 L.R.T. No. 92, Mfalila, Ag. J. (as then he
was) dealt at length with the question of attempted rape. The facts of this case were that,
on 13/06/72 the complainant one Gaudensia D/O Mwesengera was walking home from a
shopping expedition. This was at night, around 10.00pm. the path she took passes
through mango trees and as she was thus walking the accused came upon her from
behind, he got hold on her and started stripping off her clothes. The complainant shouted
for help. People appeared at the scene, thereupon the accused ran away. But he was
arrested two days later and charged with attempted rape. He was convicted of indecent
assault.
On revision Mfalila dealt at length with previous cases dealing with attempted rape. He
found that in those cases judges concerned themselves with proximate and remote acts of
the accused. He further stated that had the judges followed the principles laid down under
section 380 of the Penal Code leaving aside the concepts of preparation and proximate,
the result would have been different.
He observed that in the case of HARUNA and OMARI, the intention to rape was
established and in both cases the accused had started putting their intentions to execution
64
Criminal Law
by overt acts clearly adapted to their fulfillment, namely, the holding of the complainants,
tripping their clothes including underclothes and proceeding to lie on them.
Furthermore the judge went on to look at the expectation of an ordinary member of the
society. He used the example from the case of HARUNA and OMARI that an ordinary
member of the society would unhesitatingly say that the accused was guilty of attempted
rape. He will say that having dragged the complainant to the ditch placed his hand over
her mouth and pulled down her underclothes while lying on top of her but stopped short
and fled when he was observed the accused clearly had attempted rape.
The judge after discussing past cases, he confines himself in the provisions of section 380
of the Penal Code.
 Whether the accused intended to rape the complainant.
 Whether he had started putting his intention into execution by some overt acts
adapted to its fulfillment.
 Whether the overt acts had been established.
i) With regard to intention the accused himself admitted as much in his own
words. He certainly began to put his intention into execution when he got
hold of the complainant and started striping her clothes.
ii) To constitute attempted rape there must be evidence of an attempt to have
sexual connections with a woman not withstanding her resistance and
execution of his intention by overt acts clearly adapted to its fulfillment.
iii) Where existence of overt acts is established, it is not required to classify
further the overt acts into preparatory and non-preparatory, proximate and
remote.
iv) It is immaterial, except as regard sentence, that the accused desisted from
his own motive or otherwise from the further execution of his intention.
v) For any legal system to be effective, the concept of rights and wrongs
must not be divorced from the expectation of the ordinary member of the
society in which it operates.
65
Criminal Law
Impossibility
In literal sense, there is no such thing as ‘legal impossibility’ because any behaviour and
any conduct can be made criminal. What is meant is the distinction between conduct,
which has been forbidden in penal law, and conduct, which is illegal. Legal impossibility
is therefore an awkward expression of the principle of legality. In sum:
Unless the intended end is legally prescribed harm, causing it is not criminal, hence
conduct falling short of that is not a criminal attempt i.e. the principle of legality. If the
intended end is a legally prescribed harm, the failure to effect it because of the lack of
factual condition necessary to its occurrence is no defense i.e. factual impossibility.
Section 380 of the Penal Code expressly provides that it is immaterial that by reasons of
circumstances not known to the offender it is impossible in fact to commit the offence.
Thus it is clear that impossibility is not a defense to a charge for attempt to commit an
offence.
Furthermore, the use of ineffective means of carrying out a crime doesn’t negative the
conduct of the person using those means from amounting to an attempt to commit the
crime. Example, where the intention is to blow a safe, the use of weak explosives for that
purpose is no defense. It is also clear that where the sole intention of the accused is to
commit a crime, the fact that there circumstances unknown to him which render the
commission of the crime impossible doesn’t negative the attempt. E.g. the taking of
something by a pregnant woman with intent to procure her own abortion of something,
which she believed to be a “noxious thing” but which in fact, is harmless.
Another situation is where the offender’s sole intention was to do an act not in itself
criminal but where he believes that the particular circumstances he would be involved in
criminal conduct. E.g. A man attempt to have sexual intercourse with a girl who is in fact
over sixteen but whom he believes to be under eighteen.
66
Criminal Law
Why conviction for an attempt?

The answer is that he stands in need of a punishment or correction because he has shown
that although he knows that legally he ought not to do this thing. He is prepared to defy
the law in order to pursue his own self-ends. He thus shows himself to a dangerous man,
prepared to break the law when it suits him.
In the case of EDWARD MICHAEL V. R. (1948) 1 T.L.R 308, the appellant was
charged with attempting to sell diamonds. He pleaded guilty to the charge. The objects
turned out not to be diamonds but only pieces of glass.
The issue on appeal was whether a plea of guilty was rightly entered in view that the
‘diamonds’ which the appellant had admittedly attempted to sell, were not diamonds at
all. The court held:
i) It is immaterial that by reason of circumstances not known to the offender
it is impossible to, in fact of commit the offence.
ii) We must look at the intention of the offender and to what he thinks he is
doing when he began to carry it out. In this case the appellant must held to
have committed the offence because he intended without license or
authority to sell diamonds and believed that the objects he was trying to
sell were in fact diamonds.
It is not the intention in itself, which constitute the offence there, must of course in
addition to some overt act manifesting the intention. But where there is a clear intention
to commit an offence and an overt act putting that intention into execution and belief that
what is being done is something which is an offence, then that overt act undoubtedly
constitutes an attempt to commit the offence, although for some reasons outside the
doer’s knowledge the offence attempted can’t actually be committed.
Some Specific Offences Of Attempt

1) Section 45-attempted mutiny
2) Section 132-attempted rape
3) Section 150-attempted to procure abortion.
67
Criminal Law
4) Section 155-attempted to commit unnatural offence.

5) Section 158-attempted to commit incest.
6) Section 211-attempted murder.
7) Section 217-attempted suicide.
8) Section 226-attempted to injure by explosive.
9) Section 287-attempted robbery.
10) Section 290-attempted extortion.
11) Section 320-attempted arson.
12) Section 322-attempting setting fire on crops.
13) Section 324-attempt to cast away vessels.
14) Section 327-attempt to destroy by explosives.
15) Section 382-punishment generally for attempts.
Conspiracies
Conspiracy is an agreement between two or more people to do unlawful act by unlawful
means.
Ingredients of conspiracy
 There must be more than two or more persons.
 There must be an agreement, which is unlawful.
 There must be a particular thing that is aimed at.
The actus Reus of conspiracy is “an agreement” mere knowledge of the plan is not
sufficient nor the mere intention to achieve unlawful object. To be conspiracy more than
one person must agree, thus husband and wife for this purpose are no longer one person-
S. 386A CPA.
Conspiracy may be completed even if no further act is done in pursuance of the

agreement and provided that the stage of negotiation has been passed even though the
parties have not yet settled the means to be employed.
To constitute conspiracy there need not be direct communication between the members
nor there to be proved that the accused was present at its origin. The conspirators may
join conspiracy at various times; any one may not know the full extent of the scheme to
68
Criminal Law
which he attaches himself. It is sufficient to prove that each conspirator knows that there
is in existence or coming into existence a scheme, which goes beyond the illegal acts,
which he agrees to do, and attaches him self to the scheme Quite slight participation in
the scheme will suffice.
Conspiracy to commit an unlawful acts even an offence of strict liability requires mens
rea. The prosecution must prove not only an agreement to amount to conspiracy between
the conspirator to carry out an unlawful purpose but also an intention in the mind of the
individual conspirator to carry out the unlawful purpose.
Since there is no agreement of one person alone, if one conspirator is acquitted then the
other shall be acquitted even if he pleaded guilty.
One person may be convicted alone of conspiracy with persons who are known or not in
the court, or dead or whose trial has been postponed. This is because, it is very difficult
sometimes to get all the people who have conspired, and sometimes it is only possible to
have only one person alone, provide that there is enough evidence of “unknown other or
others’ In the case of R. V. KARIA 16 E.A.C.A 116, the appellants were convicted for
conspiracy to export diamonds from Tanzania and individually for being in possession of
diamonds. On appeal against the conviction the court confirmed the conviction.
“…conspirators do not normally meet together and execute a deed setting out the details
their common unlawful purpose. It is a common place to say that an agreement to
conspire may be deduced from any acts which the presumption of a common plan. That is
why the prosecution is bound to call all the material witnesses before the court even
though they give inconsistent accounts, in order that the whole of the facts may be before
the court…”
In OGODIA & ERIMA V. UGANDA [1967] E.A. 137, the two appellants were
convicted of conspiracy, the charge reads: that on February 24, 1966 at Entebbe they had
conspired with other persons unknown to effect unlawful purpose namely to set up a road
block and arrest the then prime minister Milton Obote. The court said:
69
Criminal Law
“…Evidence was sufficient to justify the inference that the first appellant conspired with
person or persons unknown to arrange for roadblock to arrest the Prime Minister…”
OFFENCES AGAINST MORALITY

RAPE
Section 130(1) of the Penal Code creates the offence of rape, thus it is an offence for a
male person to rape a girl or a woman.
Section 130(2) of the Penal Code provides circumstances where a person can be said to
have committed rape after having sexual intercourse with a woman or a girl.
 If a male person carnally knows a woman not being his wife, or she is his wife
who is separated from him without her consent.
 If a woman consented to the sexual intercourse with that man and the consent was
obtained by the using force, threats or intimidation or he put her in fear of death
or of hurt or while she is in unlawful detention.
 If the women consented but the consent was obtained when she was of unsound
mind due to intoxication induced by any drugs or matter or thing and
administered to her by the man or other person. However if it is proved that there
was prior consent between the two, and then the man will not be liable.
 When the woman gives the consent when the man knows that he is not her
husband but the consent of woman was given because she has been made to
believe that she is legally married to the man.
 If he has sexual intercourse with a girl who is under eighteen years of age. Here
consent of a girl is immaterial. However the man will not be criminally liable if
the woman is his wife who is fifteen or more years of age and they are not
separated.
The Sexual Offences Special Provision Act No. 4/98 adds a new subsection that is
section130 (3) under which the categories of men who are deemed to commit rape if they
have sexual intercourse with a woman or girl under the following circumstances.
70
Criminal Law
If a person takes advantage of his position to have sexual intercourse with a woman or
girl, and commits rape on a girl or a woman in his official relationship or wrongfully
restrains and commits rape on the girl or woman;
 Being a person in a position.

 Being on the management or on the staff of a remand home or other place of
custody or a woman’s or children’s institution.
 Being a traditional healer.
 Being a religious leader.
The issue of traditional healer taking advantage of their position to have sexual
intercourse with their female patients was discussed in the case of KABULUNGU
JUMA V. R. [1991] T.L.R. 154, The appellant Kabulungu Juma, a medicine-man was
convicted of the offence of rape and sentenced to 5 years imprisonment. However, it was
established that the woman voluntarily consented to the intercourse believing that it was
part of her treatment by the appellant of her ailment. On appeal:
“…A woman who is enslaved by strange ideas and beliefs who allows a medicine-man to
have intercourse with her in the hope that the sexual act was the medicine-man's way of
examining her pregnancy cannot be heard to complain of rape. …”
NB, this case was decided before the enactment of Act no. 4/98. Now the position is
clear, if a medicine man takes advantage of his position and has sexual intercourse with
his female patients he will be committing rape, because the woman consented to sexual
intercourse believing that it is the way the medicine man’s treatment.
Another new feature of this Act is that it recognizes separations arranged by the family or
clan members.
Ingredients of Rape
71
Criminal Law
Having Unlawful Carnal Knowledge of a Woman or a Girl.

Unlawful carnal knowledge has a religious and historical background. It is unlawful
when it takes place outside the marriage bonds. In the case of R.V. CHAPMAN [1959]
1QB 100, the accused was convicted for having unlawful sexual intercourse with a girl
aged 16 years old. This case said that unlawful sexual intercourse means illicitly sexual
intercourse i.e. sexual intercourse outside the bonds of marriage.
As a general rule a husband can’t rape his wife. But there are exceptions these are:
i) Where there is separation then if a husband has sexual intercourse with her
he may be convicted of rape. The law recognizes even separation arranged
by the family or clan members-S. 130(5) of the Penal Code.
ii) Another exception is where there is a decree nisi of divorce.
In the case of R. V. O’BRIEN [1974] 3 ALL E.R. 663, the court said that a decree nisi
effectively terminated a marriage and thereupon the consent to marital intercourse
impliedly given by a wife at the time of the marriage was revoked. It follow that the
accused had committed the offence of rape if he had sexual intercourse with the wife
after the date of the decree nisi without her consent.
For the purpose of proving rape, it is not necessary to prove the completion of the act by
the emission of semen. Intercourse is deemed to be complete upon proved penetration
only. Even slightest penetration is sufficient.
Furthermore, it is not necessary to adduce evidence of physical injuries to the body for
the purpose of showing that sexual intercourse too place without consent-S. 130(4) (a)(b)
of the Act No. 4/98 of the Penal Code. It is not necessary also to prove that the hymen
was ruptured.
One can see that, penetration is an important ingredient of the commission of rape. In the
case of FUNDI OMARI MADEGE V. R. (1970) H.C.D. No. 98, the accused was
convicted of rape. Complainant stated that she was raped but no evidence as to what she
72
Criminal Law
meant. She had said “the accused threw me to the ground and threatened to kill me if I
tried to raise an alarm, I was not wearing underwear”. The court said that
“…In a case of rape there must be evidence of penetration of penis into the vagina
though emission of seeds is not necessary. The term rape as used by the complainant may
amount to penetration or not…”
Without Her Consent

Lack of consent is on of the most important ingredients of the offence of rape. The
essence of rape is the absence of real consent on the part of the woman or girl. Therefore
in a situation where the woman consents to sexual intercourse what arises therefore
cannot amount to rape. Earlier under Common Law, apart from lack of consent, there
should be force or fraud. The current position is the emphasis on only one question: was
the woman at the time of sexual intercourse consented to it?
It is not necessary for the prosecution to prove that what might otherwise appeared to
have been consented was in reality merely submission induced by force, fear or fraud.
The distinction between consent and submission is still controversial in law, because a
person submits where she/he yield or gives in to some pressure of some kind.
E.g. A, a woman with F a fiancée insists to have sex with A, F threatens that if this
transaction doesn’t take place then engagement is broken, as a result A submits to have
sex with F.
E.g. A held down by F, F holds the knife upon her throat, threatening to kill her if she
doesn’t submits to sex.
In the first example there was no fear of her life while in the second there is fear of life. If
the woman yields because the man promised to marry her that is not rape however there
was submission.
73
Criminal Law
The distinction between consent and submission is very controversial so judge or

magistrates have to take each case so far as it is concerned.
In most cases, consent is one of the major defenses where a person charged with rape. If
the accused can prove that there was consent, then there is no rape.
Confusion may cloud the whole concept of consent because different societies react
differently in certain issues, in some societies there is a very strong belief that a woman
will never say “yes” to sexual advances even if she means it.
Consent Obtained by Force or Fear of Bodily Harm

If a woman gives in under fear of coercion, this doesn’t amount to consent. In the case of
MTUNDU CHILE AND OTHERS V. R. (1970) H.C.D. No. 304, the three appellants
were convicted of burglary, stealing and rape and sentenced to a total of three years and
twenty four strokes each. According to evidence given by a woman and her daughter, the
appellants broke into their house, stole some articles and demanded to have sexual
intercourse with the daughter who was in an advanced state of pregnancy. The mother,
fearing for the life of her daughter, offered herself instead, whereupon each of the
appellants had sexual intercourse with her in turn. On appeal
“…The women volunteered as a substitute for her daughter. Such consent is initiated by
fears of her daughter’s death. Consent obtained by fear of bodily harm is equal to
rape…” Consent Obtained By Means of False Representation as to the Nature of the Act
This ingredient is relevant in situations involving young girl who are incapable of
forming an opinion on the nature of the act being performed or intended to be performed.
In the case of R. V. WILLIAMS [1923] 1 K.B 340, the appellant was engaged to give
lessons in singing and voice production to a girl of sixteen years of age. He had sexual
intercourse under the pretence that her breathing was not quite right and that he had to
perform an operation to enable her produce her voice properly. The girl submitted to
what was done under belief, willfully and fraudulently induced by the appellant that she
was medically and surgically treated by the appellant and not with intention that she
should have sexual intercourse with her. On appeal:
74
Criminal Law
“…Convicted for rape. A consent or submission obtained by fraud, it would not be a

defense…”
Personating as a Husband
The man who induces a woman to have sexual intercourse with him by personating her
husband commits rape. This is so because where a husband is personated there is also an
error as to the nature of the transaction because this is no longer a marital intercourse but
adultery. Sexual intercourse is a transaction in which personality is of supreme
importance because consent to have sexual intercourse with say A is not to have sexual
intercourse with B. therefore naturally, when a woman consented to have sex with her
husband, she was not ready to have sex with the personator.
In the case of R. V. DEE (1884) 15 Cox 579, a married woman consented to have
connection with the accused under the impression that he was her husband. On appeal the
court held that;
“…The accused was guilty of rape…”
Rape Committed by Juvenile

Section 15(2) of the Penal Code-a person under ten years is not criminally responsible for
any act or omission.
Section 15(2) of the Penal Code-under twelve years is not criminal responsible until it is
proved that he had capacity to know that he ought not to do the act or make the omission.
Section 15(3) of the Penal Code- a male person under twelve years is presumed to be
incapable of having sexual intercourse.
Corroboration in Rape
To corroborate means to confirm or give support to a statement, belief or theory. It has
sometimes been suggested that the victim of rape-complainant-on the ground of
experience regarded as an accomplice and therefore as a matter of practice her evidence
needs corroboration by some other evidence.
75
Criminal Law
In the case of NJUGUNA WANGURIUMU V. R. 20 E.A.C.A 196, the court said that:
“…Whilst it is not a rule of law that an accused charged with rape cannot be convicted
on uncorroborated evidence of the prosecutrix, it has been the practice of the Eastern
Africa Court of Appeal to look for and require corroboration in sexual offences…”
In ABBAS RAMADHAN V. R (1969) H.C.D. No. 226, it was held that:
“…The requirement of corroboration in not a rule of law but of practice though it has
the elevated to almost a rule of law but not mandatory, nor its absence fatal to conviction
the absence of corroboration…”
It is therefore necessary to examine evidence in this case very careful:

First in order to determine whether there is corroboration, second even if there is no
corroboration whether conviction can nonetheless be sustained.
In the case of SHIKU SALEHE V. R [1987] T.L.R. 193, the appellant was charged with
and convicted of the offence of rape contrary to sections 130 and 131 of the Penal Code.
The conviction was based solely on visual identification and uncorroborated testimony of
the raped victim. The issue on appeal was whether the conviction was proper. The court
said:
“… (i) Before basing a conviction solely on evidence of visual identification, such

evidence must remove all possibilities of mistaken identity and the court must be satisfied
that the conviction is watertight; since the trial Magistrate considered these factors the
conviction was proper.
(ii) In sexual offences, the court should warn itself of the dangers of acting on
uncorroborated testimony of the complainant and having done so the court may convict
if it is satisfied that the victim's evidence is true…”
76
Criminal Law
The magistrate in this case gave these reasons on identifications; he noted that the
victim----- (PW)
 Knew the appellant and his colleague before the incident.
 That the appellant himself admitted this fact.
 That the victim PW1 had been with the appellant in the pombe shop shortly
===before incident.
 That it was the moonlight night.
 That she saw the rapist very closely to her as they each lay on her chest in the act
of intercourse.
 That she saw them for a longtime while they took turns in raping her.
 That she immediately gave a description of the attire of the appellant and also is
names.
From the above cases we find that the court may convict a person without corroboration
that it is fully satisfied that the complainant is telling nothing but the truth, and is full
with her evidence.
Why Courts Have Been Insisting on Corroboration?

i) It is to avoid the danger of a woman telling false accusation for sexual
ass----- where there has been none.
ii) Even where the woman has actual been raped, there is always the danger
of ---identity as to the ravisher-poor light or fear etc.
iii) Even where the woman had consented to sexual intercourse, she may
afterwards----varieties of reasons deny consent and accuse her partner for
act of rape.
As a general rule of practice, the courts require corroboration of the evidence of a single
witness and where the child of tender years gives evidence-S. 127 of the Tanzania
Evidence Act.
77
Criminal Law
However, section 127(7) TEA adds a new dimension on the evidence of a single witness
or that of a child of tender years. When in any criminal proceedings involving sexual
offence:
“…The only independent evidence is that of a child of tender years or is that of the victim
of the sexual offence…”
The court is allowed to receive such evidence. it is to be noted that before receiving such
evidence the court is required to assess the credibility of the child or the victim as the
case may be on its merits.
After assessing the credibility of the child or victim, the court may convict on this
evidence even where it is not corroborated.
The court before conviction is required to satisfy itself that the child or victim is telling
nothing but the truth and shall record its reasons as to why it is of the opinion that the
victim or child is telling the truth.
We see therefore that the magistrate is allowed to convict on the evidence of a child or
victim only as giving reason as to why he believes that the child or victim is telling the
truth, where he is in doubt then he will require some corroboration.
Punishment of Rape
Section 131(1) of the Penal Code (Act No. 4/98) provides that punishment for rape is life
imprisonment
 In any case-not less than 30 years with corporal punishment and with fine.
 To pay compensation to the victim in respect of injuries caused to her-the amount
to be fixed by the court.
Section 131(1) of the Penal Code (Act No. 4/98) if the offence is committed by a boy
under 18 years.
 If first offender-corporal punishment only.
 If second offender- imprisonment for twelve months with corporal punishment.
78
Criminal Law
 If third offender and recidivist-life imprisonment.
Section 131(3) of the Penal Code (Act No. 4/98) if the offence is committed to a girl less
than ten years-life imprisonment.
Section 131A creates a new offence of gang rape. Punishment for gang rape is life
imprisonment-section 131A(2) Act No. 4/98.
In imposing sentence, the courts apart from obeying the statutory requirements also do
look at:
 The nature of the circumstances under which the offence was committed.
 The age of the accused.
 The character of the accused-whether first offender or not.
In the case of AMIRI AHMED V. R (1968) H.C.D. No 329, the accused was convicted
of rape. The version of the matter offered by the accused was that accused and
complainant, a virgin of 15 or 16 years of age, had agreed to undress and to engage in
some sexual intimacies with each other, the girl saying from the start that there would be
no intercourse. After some time together, accused did in fact have intercourse with the
girl, apparently having to overcome some resistance on her part with force. The court on
appeal held that:
“…If the girls …. Laid down any condition … however foolish she was in allowing any
sexual intimacy at all, the breach of such condition and penetration would constitute
rape. That a woman may allow some form of sexual liberty to a man (be it little or great)
does not entitle that man to proceed to have intercourse with her against (without) her
will or consent. The Court must consider the fact that accused may have been entrapped
by desires, which may have been inflamed by the recklessness and foolishness of the
complainant. Some person may be charged of a rape but also found guilty of attempted
rape or defilement or indecent assault…”
In R. V. AMIRI ALI (1969) H.C.D. No. 40, the accused was convicted of defilement. He
was sleeping in the same room as the complainant, in the middle of the night went to her
79
Criminal Law
bed, and without even awakening her, undressed her and had sexual intercourse with her,
not only without her consent but without her knowledge. She however awakened, raised
the alarm, and the accused was apprehended on the spot. On appeal;
“…In this case the accused had temptation thrust upon him, in that sleeping together in
the same room; he was affected by the proximity and tempted by the sight and presence
of the sleeping girl so near him. In those circumstances… a short sharp lesson to teach
the accused self-control would serve a much more useful purpose than sending him to
prison where he will be exposed to hardened criminals. Sentence quashed, corporal
punishment imposed instead…”
The accused was seventeen years old; the complainant was under twelve years. The
sentence was two years imprisonment and six strokes.
Attempted Rape
Section 132(1) TPC creates the offence of attempted rape. The punishment is life
imprisonment and in any other case liable to not less than thirty years with or without
corporal punishment. A person is said to attempt to commit rape if with intent the
manifests his intention by:
i) Threatening the girl or woman for sexual purpose.
ii) Being a person of authority or influence in relation to the girl or woman.
iii) By false representation.
iv) By personating her husband.
Section 132(3) TPC if the offence is committed in manner specified under (c) and (d) the
accused is liable to imprisonment for life and in any other case to not less than ten years.
Defilement
Section 136(1) TPC which deals with defilement of girls under the age of sixteen years
has been repealed. This offence is now dealt under section 130(2)e TPC Act No. 4/98.
80
Criminal Law
This section adds extra element-any girl under the age of eighteen years. However, if the
woman is married to the accused and they had not been separated then the offence is not
committed. What is important here is that:
i) The woman must be under eighteen years.

ii) The accused must have unlawful sexual intercourse with the girl.
iii) If the woman is married to the man, then she must be fifteen years or
more, and not separated from the man.
iv) Consent is immaterial in this offence.
We find thus, that the ingredients of this offence are the same as those of rape except:
i) The age of the complainant is immaterial, it is important that the
prosecution must prove that the girl was under eighteen years.
ii) Consent here is immaterial, the person charged cannot rise the defence that
the girl consented to the sexual intercourse. Even if the girl consented, the
person charged will be held responsible. But if the man thought that the
girl was a about the age of eighteen years, a defense of mistake of fact can
be held.
In the case of ALLY ATHUMAN V. R. [1991] T.L.R. 59, the appellant was convicted for
defilement of a girl under the age of 14 years contrary to section 136(1) of the Penal
Code. The entire proceedings give the impression that the Magistrate proceeded on the
assumption that the charge was one of rape contrary to sections 130 and 131 of the Penal
Code. Appellant in his testimony didn’t deny having sexual intercourse with the
complainant. His defense according to him is that, that was his girl friend for a long time
and that was not the first time they had gone out for sexual intercourse. During the trial
the age of the girl was not ascertained. On appeal:
i) The trial was a confused exercise, and cannot sustain the conviction
entered.
81
Criminal Law
ii) Rape and defilement are two entirely different offences, each one having
its own ingredients requiring proof.
iii) While in rape consent or lack of it must be proved, to make it rape or not,
in defilement it is immaterial whether the girl consented or not. In
defilement there must be proof of age.
In the case of THOMAS EMMANUEL V. R. [1996] T.L.R. 373, PW1, Farida Mohamed
was a tenant in a house where the appellant also lived. She had two-years old daughter,
Buya Sylivester. On the material day, at about 11.30 HRS she was in her room. She
heard her daughter, Buya crying in the appellant’s. she rushed there and found the
appellant lying on top of the child. He was naked. She raised an alarm and one Masunga,
PW2 was the first person to arrive at the scene. Semen looking staff was seen on the
vagina of the child and on her buttocks. The appellant was arrested and subsequently
charged with and convicted of defilement. The child was examined and PF3 showed
“…Hakuna jeraha lolote la kimwili au la sehemu za uzazi lililoonekana. Uchafu ulikutwa

sehemu za kike umeonyesha mbegu za kiume…”.
On appeal against conviction and sentence it was contended that the evidence had not
proven that the girl defiled, who was two years of age, had been penetrated. It was held:
i) The evidence adduced did not show that there had been penetration: if
there had been penetration, the complainant, being a very young girl,
would have shown some injury. In the circumstances, therefore the full
offence of defilement was not committed.
ii) The evidence did however prove the offence of attempted defilement c/s
136(2) TPC.
Defilement of Idiots and Imbecile

According to section 137TPC
1) It is an offence to have carnal knowledge with a n idiot or imbecile.
82
Criminal Law
2) In the circumstances not amounting to rape.

3) Knowing at the time of the commission of the offence that the woman or girl
is an idiot or imbecile.
Defense: Lack of knowledge at the time of commission.

Idiot: This is a private person for a company cannot be idiot. An idiot is a person who is
ignorant. A person destitute of reason or intellectual powers with very limited
intelligence that cannot think or behave properly or normal.
In law: Idiot is a person in whose case there exists mental defectiveness of such a degree
that he is unable to guard himself against common physical dangers.
Imbecile: mental weak, physical weak, a person who though mental deficient show signs
of rudimental intelligence, a person with abnormal low intelligence.
In law: Imbecile is the person in whose case there exists mental defectiveness though not
amounting to idiocy is yet so pronounced that is incapable of managing himself or his
affairs. Therefore when a person is destitute of strength of either body or mind is called
an imbecile.
Hence: an idiot is a person who is born without mind while an imbecile is born with full
mental capacity but loses that later.
In the case of WILSON V. COMMONWEATH (1942), W was fixing a flat tire. A, a lady
of 44 years called him and assisted him to enter a house through a window. Brothe-in-law
of a woman entered the room and found her having sexual intrcouse with W. W was
charged and convicted of rape. During the trial the relative testified that she could not
carry on an intelligent conversation, she had never learned to read and write. She was
described as a men crazy and that she could hang out on the window and call to men. On
appeal W contended that he did not have reasonable ground to make him believe that this
lady was incapable of consenting.
83
Criminal Law
“…Sexual intercourse with an idiot or insane woman is not rape unless the man knows
that she is insane or an idiot and takes advantage of that fact to accomplish his
purpose…”
Defilement by Husband of a Wife Under Fifteen Years

If a man is married to a girl under fifteen years, has or attempt to have carnal knowledge
of the girl whether with or without her consent is guilty of an offence. Punishment is ten
years.
If a person is a father or mother, or any person having the custody of a girl under fifteen
years, permits such a girl or parts with the possession or disposes her with the intention
that she shall be carnally known by (having sexual intercourse with) her husband,
whether with or without her consent, while still under fifteen years is guilty of an offence.
Punishment is ten years imprisonment-S. 138TPC.
In the case of R V. JUMA MOHAMED (1970) H.C.D. No. 154, the accused was
convicted on his own plea of permitting the defilement by a husband of a wife under
twelve, c/s 138 (2), Penal Code. The accused was the father of Tabu, did dispose her to
be married to Tuhuba knowing it to be likely that the girl was still under the age. The
court held:
“…His plea didn’t refer to any intention on his part to have the girl carnally known by
her husband nor did he admit that it was likely to happen. He didn’t intend his daughter
to have carnal knowledge. ‘Intention is an ingredient of the offence which had to be
proved. Accused said I married the husband not to sleep with her until she was grown
up…”
Section 138(5) TPC

No person shall be convicted if the court is of the opinion that the girl has attained the age
of 15 years.
84
Criminal Law
If the court is of the opinion that the accused had reasonable cause to believe and did in
fact believed that the girl was or above fifteen years.
Section 138(6) TPC

Marriage is allowed if the person is of African or Asiatic descend, provided that it is not
intended to be consummated before the girl attain the age of fifteen.
Incest
Incest by Male
Any male person commits the offence of incest if he has prohibited sexual intercourse
with a female person, who is to his knowledge his granddaughter, daughter, sister or
mother.
In cases involving incest, consent is immaterial thus a person charged cannot raise the
defense that the female person consented-S. 158(2) TPC.
If the female is less than eighteen years, if (must be) convicted to imprisonment for a
term not less that thirty years.
If the female is eighteen years or more (must be convicted) to imprisonment for not less
than twenty years.
Incest by Female
Any female person of or above the age of eighteen years who with consent permits her
grandfather, father, brother or son to have sexual intercourse with her, commits the
offence of incest.
To amount to incest, a female person must have with consent permits and with full
knowledge that the male person is her grandfather, father, brother or son.
If convicted she shall be liable to imprisonment for life. Or, imprisonment for not less
than thirty years.
In addition she may be ordered to pay compensation for the amount to be determined by
the court.
If the male person is below ten years, to imprisonment for not less than thirty years.
85
Criminal Law
No prosecution for the offence under section 158 and 160 TPC of the accused without the
consent of the DPP-Section 162 TPC.
Sexual Assault on Person and Indecent Assault on Women

Section 135(1) TPC has been amended to cover both sexes. Any person who:
i) Utters any word or sound.
ii) Makes any gestures.
iii) Exhibits any object.
Intending such words, sound be heard or gestures or object to be seen by that person,
commits the offence of sexual assault.
If convicted he will be liable to imprisonment for a term not exceeding five years or fine
not exceeding three hundred five years of fine not exceeding three hundred thousand
shillings or to both.
If it relate to a boy or girl under or less than eighteen years it shall be no defense that the
boy or girl consented.
OFFENCES AGAINST THE PERSON

HOMICIDES
Homicide is the killing of human being by a human being. These can be divided into two
categories:
Lawful killings
 Killing an enemy in execution of war.
 Killing in execution of lawful judgment.
 Killing in self-defense.
 Killing in the course of arresting or preventing a crime.
 Accidental killing.
Unlawful killing
 Murder
 Manslaughter.
86
Criminal Law
 Suicide.
 Child destruction.
Who can kill?

A man of sound memory and of age of discretion i.e. a man who is responsible according
to the general principles of criminal responsibility.
Who is a victim of homicide?

One must be a living person. Section 204 of the Penal Code explains when a child is
deemed to be a person capable of being killed.
When does the life end?

A person is termed dead when the brain stop working.
Causation in Homicide
Causation in homicide is provided under section 203 of the Penal Code. This section
deals with complicated cases of homicide. According to this section, a person can be held
to have caused the death of another person even if his act is not the immediate or sole
cause of death. The following are the instances of causation.
Section 203(a) TPC

A person inflicts bodily injury to another person and that person dies after treatment.
In the case of R.V.STEPHANO ALOIS (1972) H.C.D No. 199, the accused was
convicted of murder. The accused fatally stabbed the deceased during circumcision
ceremony. An argument developed as to why he drew a dagger and the accused stabbed
the deceased. He died of shock and hemorrhage on the ninth day. The court said:
“…The fact that the life of the deceased might have been saved if he had received good
medical attention cannot affect the legal responsibility of the accused for the death of the
deceased, That the deceased’s life could have been saved if received good medical care
cannot be of a defense in law or snap the claim of causation…”
87
Criminal Law
In another case of R. V. NJARURA NDUGO 11 E.A.C.A. 59, the deceased received

from thieves a wound which was itself dangerous. He died under anesthetic administered
for the purpose of stitching the wound. All the usual precautions were taken before the
anesthetic was administered. The doctor admitted in evidence that if the deceased had not
been given anesthetic, he would not have died, and that it was quite possible that he
would have survived had not been operated. The court found that:
“…The trial court was justified in presuming that a qualified practitioner would not
perform an operation unless it was in his opinion necessary and advisable. The thieves
were liable…”
In MWITA NYAMHANGA V. R. [1992] T.L.R 118, the appellant, using a panga,

inflicted a cut wound on a person who later died because of tetanus. He was convicted of
murder by the High Court. On appeal he challenged the conviction arguing that there was
no evidence to connect the cut wound and tetanus which ultimately caused the death of
the deceased. The wound was inflicted on 14/4/86 and the deceased died on 25/4/86 i.e.
eleven days later. Advocate for the appellant argued, whether the wound inflicted by the
appellant brought about tetanus or that wound hastened death? The post-mortem report
showed that the cause of death was ‘respiratory failure caused by tetanus’. Advocate that
the report didn’t give the cause off tetanus and the doctor who performed the post-
mortem was not called to testify. The advocate referred the court two medical treaties
which say that the incubation period for tetanus is a minimum of eight days, but the
treaties don’t say what is the minimum incubation period nor do they indicate after how
many days from the time of injury or when symptoms have appeared is death likely to
result. The court said:
“…We cannot say beyond reasonable doubt that the wound by the appellant caused
tetanus. There is evidence that the deceased had fever before the attack by the
appellant…”
88
Criminal Law
Section 203(b) of the Penal Code.

In the case of R. V. HOLLAND (1948) 2 Mood & R 351, the accused waylaid and
assaulted the deceased. Among other wounds, the deceased was severely cut cross his
fingers by an iron instrument. His surgeon urged him to submit to amputation, but the
deceased refused to allow this. The deceased attended the infirmary from day to day to
have his wound dressed. After a fortnight however, lockjaw came on, induced by the
wound on the finger. The finger was then amputated but it was too late to save the
deceased’s life. The surgeon deposed that if the finger had been amputated in the first
instance, the deceased would probably have survived. The court said that:
“…The accused was found guilty and was responsible for the death, but the sentence was
apparently, later respited…”
In R. V. MUBILA 1955 (1) S.A 31, accused stabbed the deceased. Two days later after
the stabbing deceased was admitted to hospital. It showed that the wound had stopped
bleeding and there was no evidence of internal breeding. The deceased was warned to
remain immobile. Nevertheless the deceased got up and moved about, the movement
probably started the hemorrhage, and the hemorrhage caused his death. It can’t be said
with any certainty that the hemorrhage would not have restarted even if the deceased had
not moved, the chances of recovery in an event were less than even.
“…There is no obligation in a person who is wounded to obtain any medical assistance

at all. And hence no obligation to follow the instruction of the doctor if he does seek
assistance. Hence the failure to take doctor’s advice can’t be an intervening cause as to
relieve the accused of liability…”
Section 203(c)
A person dies as the result of avoiding violence threatened by the accused.
89
Criminal Law
In the case of R. V. PITTS (1842) Car & M. 284, the deceased threw himself into a river
to avoid acts of intentional violence against himself by the accused. The deceased
drowned.
“…Accused guilty of murder. ‘A person is responsible for homicide if by actual or

threatened violence he causes that other person to perform an act which causes the
death of that person such act being a means of avoiding such violence which in
circumstances would appear natural to the person whose death is so caused…”
In R. V. AGUMAGU MWAOKO 5 W.A.C.A 120, the accused demanded the return of

one pound he had paid as “head money” for his wife when she refused to continue living
with him. She didn’t repay it. Accused brought a juju, pointed it at her, and said that since
you refuse to pay me my money this juju will kill you”. She become depressed and six
days later after the bringing of the juju she hung herself. On appeal the court held that:
“…The court reversed the conviction for manslaughter on the ground that the act of the
deceased was not immediate consequence of the accused’s invocation of juju, the act of
woman hanging herself was held to be an independent intervening cause…”
Thus we see that under section 203(c) of the Penal Code if one under a well-grounded
apprehension of personal violence does an act, which causes his death, as for instance,
jumps out of a window or into a river he who threatened is answerable for the
consequences.
The proper test is not whether the accused foresaw the conduct of the victim, which
resulted in actual bodily harm, but whether the conduct could have been reasonably
foreseen as the consequences of what the accused was saying or doing. It seems
immaterial whether the fear arises from violence or threat.
Section 203(d) TPC

Persons already sick, accused hastens death of sick person or dying persons.
90
Criminal Law
In R. V. ENYAJU EGURUTO 12 E.A.C.A 42, during tribal dance, T willfully gave the
deceased a violent poke on the head with the sharper end of his heavy dancing stick,
piercing skill and causing the deceased’s brain to prerude . The deceased fell to the
ground and almost immediately E beat him violently on the other side of the fractured
skull. The court found that:
“…Both T and E were rightly convicted of the accused’s murder. Successive but separate
beatings causing death, it was no defense to E to say that the injuries that he inflicted
upon the deceased would not have cased death but the prior assault…”
In another case of R. V. OKUTE KALEBI 8 E.A.C.A. 78, the deceased was first beaten
up by four men and made to dig up some stolen meat. Sometimes later, as the deceased in
a very weak condition was being taken to the chief he was assaulted by another. The
deceased died from shock resulting from cumulative effect of his injuries.
“…The four men could not be held responsible for causing deceased’s death, as on the
evidence it was possible that the injuries inflicted by them might not have caused death
but for subsequent assault by X and there was no evidence of any common intention
between them and X. But X was guilty of murder, for he had with intent to cause grievous
harm, assaulted on who was already in a very weak state…”
Section 203(e) TPC

In R. V. KATUNZI 13 E.A.C.A, the appellant set fire to a hut made of millet stalks and
with only one door, with the intention of causing death or grievous harm to the
occupants. Z, K and four helpless children were in the hut at the time Z with K’S help
evacuated the children. Then Z under mistaken belief that one of the children was still in
the hut re-entered it and sustained burns from which he died next day.
“…The applicant was responsible for Z’s death and guilty of murder…’
91
Criminal Law
In the case of R. V. MPULUTA 5 N.R.L.R. 377 (1954), the accused while driving a lorry
on a wide, dry-surfaced road endeavored to overtake a lorry in front. In doing so he
collided with another lorry. After the collision, the accused’s lorry swerved all over the
road. Two passengers in the back of the accused’s lorry thought it safer to jump out than
stay in it. One jumped clear but the other fell back under the accused’s lorry and was
killed. In the event the lorry didn’t turn over.
“…The accused caused the deceased’s death because the deceased has done the natural
thing in the circumstances. The accused was not guilty of manslaughter, as the evidence
didn’t go so far as to show that the accused foresaw or ought to have foreseen that his
driving would likely to result in the death of the deceased. The accused was convicted of
reckless driving…”
The Problem of Causation/Coincidence of Actus Reus and Mens Rea

In this situation you may find that actus reus, which caused the act, may not be
accomplished by mens rea. Thus where there is an intention to kill or cause grievous
harm that intention may be presumed to continue throughout the course of the actus reus.
In the case of R. V. OJAMBO NAMBIO (1944) 11 E.A.C.A. 97, the deceased was
caught stealing sugar cane in the appellant’s shamba and tied up. The appellant then beat
the deceased so severely that on being untied he fell down and seemed to be dead. The
appellant believing him dead removed this body to a swamp.
“…The act of depositing the deceased in the swamp was the direct consequence of and
consequence to the beating and that these acts were so closely connected as to constitute
a continuing series of acts and one transaction the cumulative effect of which was the
death of the deceased. Such beating as was inflicted infers an intention to cause at least
grievous harm and establish malice aforethought making the killing murder…”
In another case of THABO MELI V. R [1954] 1 W. L. R. 228, the appellants in execution

of a pre-conceived plan to kill the deceased took him to a hut where he was struck over
92
Criminal Law
the head with an instrument. Believing to be dead they took him out and rolled him over a
low cliff and dressed the scene to make it look like an accident.
“…It was impossible to divide what was really one transaction. They set out to do all
those acts as part of and to achieve their plan and it was too much refined a ground to
judgment to say that because they mere misapprehension at one stage and thought that
their guilty purpose had been achieved before it in fact was therefore they were guilty of
murder…”
MURDER
Section 196 of the Penal Code defines the term murder. Ingredients of murder are:
 Causing death of another.
 With malice aforethought.
 By an unlawful act or omission.
In murder actus reus is found in causation-S. 203 and intention/mens rea is found in
malice aforethought. Malice aforethought can be proved either by express or implied
malice. Malice aforethought is proved under section 200 of the Penal Code.
Section 200(a) TPC
A person is said to have malice aforethought if he intended to cause death or to do

grievous harm to any person. Once intention is proved, it doesn’t matter whether the
person intended to be killed is the one actually killed or not. But if intention is not proved
then the person cannot be convicted for murder.
In the case of HERMAN NYINGO V. R [1995] T.L.R 178, the appellant was convicted
of murder by the High Court. In an unprovoked manner, using a heavy stick, he had hit
the deceased hard on the head. Subsequently the deceased died. The appellant was heard
saying “I am killing you because of your sorcery”. On appeal the appellant complained
that the trial court should have accepted his defence of provocation and self-defence and
found him guilty of the lesser offence of manslaughter.
93
Criminal Law
 Normally the defence of provocation is available in circumstances which would

otherwise constitute murder except for the sudden loss of control of oneself as a
result of some act which provokes the accused person.
 There was no provocation at all involved in this case.
 In the absence of a fight between the appellant and the deceased and that it was
the appellant who started attacking the deceased with a heavy stick forcefully; the
defence of self defence was not available either.
 The appellant's utterance that he was killing the deceased because of his sorcery is
a clear manifestation of malice aforethought.
In MOSES MICHAEL@ TALL V. [1994] TLR T.L.R 195, the appellant killed a
woman he was cohabiting with and was convicted of murder. On appeal he argued that he
ought not to have been convicted of murder because malice aforethought was established.
The issue was whether malice afore thought may be inferred from the amount of force
used and whether conduct may be indicative of malice.
 Malice afore thought may be inferred from the amount of force, which the
offender employs in inflicting fatal injury.
 The conduct of the accused may be indicative of malice aforethought as it was in
this case where the appellant was persistent in beating the deceased for a longtime
and prevented intervention by persons who wanted to help the deceased.
In WILSON NYAMHANGA V. R [1984] TLR 340, the appellant, a prisoner, killed an

inmate at Isanga Prison. The deceased was fighting with a fellow prisoner. A commotion
ensued. During such commotion the appellant stabbed the deceased and uttered words to
the effect that the deceased had to die on that day. The trial court found that all the
ingredients of the offence of murder, including malice aforethought, were established
and convicted the appellant of murder. On appeal it was argued whether given the fight
and the commotion malice aforethought could be said to have been established.
94
Criminal Law
“…The stabbing by the appellant took place in the heat of passion generated by the fight
and commotion; although at one point of the fight and commotion the appellant told the
deceased "Lazima ufe leo", that is, "you must die today", that statement by itself is not
evidence of premeditated killing, since the statement was made in the course of, and
during, the fight and commotion and not before…”
In R. V. MOHAMEDI NITE 1974 L.R.T. N. 36, the accused murdered the deceased. The
incident took place on the night when the deceased’s wife and the accused were returning
home from pombe party. When they were nearing accused’s home the accused went for a
short call and that he was returning back, the wife heard the accused raising an alarm. She
saw the accused fighting with her husband and that the accused felled him on the ground
and stabbed him many times.
i) Malice aforethought is rarely proved by direct evidence if it can often
inferred to the circumstances viewed as a whole. The nature of the weapon
used and the manner in which the blow is inflicted are factors to be
considered.
ii) By using a lethal weapon the accused may be presumed to have formed
either an intention to kill or cause grievous harm.
iii) Where death ensures from a fight the person who causes death is normally
guilty of manslaughter.
iv) The benefit of doubt will be resorted in favour of the accused.
In SOLOMON ULAYA V. R (1972) H.C.D. No. 233, the accused intended to kick his
wife but kicked his mother instead and she died.
“…Had no intention to cause grievous. The weapon and manner used was not indeed to
cause grievous harm, the fatal consequences could not be foreseen---Manslaughter…”
Section 200(b) TPC

Under this part the person had knowledge of the occurrence of death, but does not
wish/want or intend death to occur, he is indifferent whether death occur or not.
95
Criminal Law
In the case of R. V. TIRUGURWA (1943) 10 E.A.C.A 44, the accused set fire to
deceased’s hut, as a result the deceased was burn to death. The body of the deceased was
badly burnt but was recognized as that of KAZOMBA, a cousin of the accused. The
accused had been at the deceased’s hut for some hours previously to the hut being set on
fire and according to accused’s own evidence parted from deceased’s company with a
man called KIFWETE, after the deceased had said “it is two days now that I have been
drinking like this and I want to go to bed, if you people wish to stay and sleep you can do
so, if you wish to go home you may go now”. This evidence is very important for it shows
that the accused had the best reasons for believing that KAZOMBA had retired for the
night. The circumstances in the case are that the accused was to some extent intoxicated.
The issue on appeal was whether the accused was intoxicated to such extent when he set
fire to the hut he was incapable of forming and didn’t form an intention either to cause
death or to do grievous harm.
“…If a person is found guilty to have burn the house and to have formed intention of
doing so, with the knowledge or having reasonable ground for believing that a human
being is asleep within, he must be held to have burn the house with malice aforethought
within the meaning of section 189 UPS (S. 200(B) TPC) in the sense that having the
knowledge or grounds for believing he must atleast take to have known that his act in
burning the house will probably cause death or grievous harm, and if death results he is
guilty of murder. The accused was not intoxicated enough not to be incapable of forming
intention to cause death or grievous harm due to the fact that he was able to move about
the countryside, able to take leave of his friend, able to return home, able to call for his
pipe, his drink of banana juice and his saying to his father ‘I will burn your house if you
make any trouble as I have burned that of KAZOMBA’…”
Section 200(c) TPC constructive malice

Under this part, the accused person has no intention to cause death or do grievous harm.
The death was the result of intention to commit an offence e.g. abortion, robbery, rape,
burglary, etc.
96
Criminal Law
In SENTALI LEMENDWA V. R (1952) 20 E.A.C.A 230, the appellant was convicted of

murder of a woman. The facts established that the deceased died in consequence of
violence inflicted on her by the appellant in the furtherance of or in the course of
committing an offence in her house (theft).
“…If death is caused by an unlawful act or omission done in furtherance of an intention

to commit any offence, malice aforethought is established…”
In another case of DIENJA V. R [1973] E.A 546, a pregnant girl died as a direct result of
attempted abortion by the appellant who was unqualified and inexperienced in the
obtaining of abortion. The trial judge convicted the appellant of murder holding that
malice aforethought was established by an intention to commit a felony:
i) Malice aforethought is not necessarily established by proof of intent to
commit felony:
ii) He who uses violent measures in committing a felony involving personal
violence is guilty of murder if death results even advertently.
iii) Knowledge that the act will probably cause death or grievous harm is
required before death as a result of abortion in murder-Manslaughter.
In MANAZO MANDUNDU AND ANOTHER V. R [1990] T.L.R. 92, the appellants,

charged with and convicted of the offence of murder, appealed against both conviction
and sentence. The trial court based its conviction on the fact that the appellants were
found in possession of stolen property a few hours after the watchman of a shop was
killed. And, it was established that the property was stolen from the shop which the
watchman was guarding. When arrested one of the appellants asked to be pardoned and
the other said matters were becoming serious and later cried at the CCM office. The
incident took place at night at Majengo C area in Nachigwa, and the appellants were
arrested the following day at about 10.00 AM at Chigudu village.
97
Criminal Law
“…in the circumstances it was not wrong to conclude that the appellants were also
responsible for killing the deceased, and because we are satisfied that the killing was so
as to effect the stealing we are of the view that it was quite proper to infer malice
aforethought…”
Section 200(d)
This section refers to any person who causes death when in the process of facilitating the
escape of a person who is in custody who has committed any offence or has attempted to
commit any offence.
CORPUS DELICT
This means the body of the crime, the fact which constitutes an offence. If there is no
direct evidence, then, circumstantial evidence can be capable of holding someone guilty.
In R. V. AMANI ZEPHANIA KIMWERI (1970) H.C.D. No. 50, the accused was
charged with murder. The alleged victim had been unaccounted for and to the best of
anybody’s knowledge, absent from his world for the last three years. She was seen with
the accused shortly before her disappearance. There was very strong circumstantial
evidence that the accused had murdered his wife but the body was never found and he
denied killing her.
“…The fact of death is probably by circumstantial evidence notwithstanding the fact that
neither the body nor any trace thereof has ever been found, and that the accused has
confessed to any wrongdoing…”
MANSLAUGHTER
Section 195 of the Penal Code defines manslaughter as causing death of another by an
unlawful act or omission. The difference between manslaughter and murder is the
absence of malice aforethought in manslaughter and presence of it in murder.
The actual killing of murder and manslaughter consists of actus reus. Manslaughter can
be voluntary or involuntary.
98
Criminal Law
Voluntary-consists of those homicides which would have been murder but are in fact
manslaughter because the accused was either provoked or was party to the killing in
pursuance of suicide pact.
Involuntary-what constitute involuntary manslaughter is not clear and it must be

approached with caution e.g. negligence, recklessness etc.
If any one commits an act or omission under section 206 to 210 TPC is guilty of
manslaughter. (Unlawful acts)
In the case of SINGH V. R [1962] E.A. 13, Singh was convicted for the murder of his
wife. The evidence was that, after an act of sexual intercourse Singh had strangled his
wife and then tried to make it appeal that she had been robbed and stabbed to death on
her way to an outside toilet. Death was due to asphyxia. The defense argued that Singh
killed his wife accidentally during sexual embrace and that the feigned robbery was an
act of panic.
“…There was a real doubt to whether Singh intended to cause grievous harm or knew
that he was causing grievous harm-Manslaughter as …”
PROVOCATION
Section 201 and 202 TPC for the defense of provocation to be accepted:
i) The provocative act or insult must be wrongful.
ii) The provocative act must be of such gravity as would deprive a reasonable
man his power of self-control.
iii) The murder must be done in a heat of passion.
iv) The means of retaliation adopted must be proportionate to the degree of
provocation committed.
The test that is used in provocation is objective test-the test is that of the community i.e.
You have to judge a person according to the community he belongs.
99
Criminal Law
In BERDER V. R. [1954] 2 All E.R. 801, the accused who was sexual impotent,
attempted in vain to have intercourse with prostitute, who jeered at him and hit and
kicked him. He lost his head. Stabbed her with a knife and killed her. On his trial he
pleaded provocation.
“…Conviction for murder. The jury found out that a reasonable man wouldn’t have been
provocated under the circumstances and they were probably directed not to take special
regard of the fact that the defendant was sexual impotent…”
A good case, which clearly defines ‘heat of passion’, is that of YOVAN V. UGANDA
[1970] E.A. 405, the appellant suspected the deceased, his stepmother of having killed his
children by witch craft or poison. On his blaming her, she replied that he would die
before he could bury his children. He then cut her about the head causing her death. It
appeared from the statement made by him that he armed himself intending to kill her for
killing his children. The trial court rejected the defense of provocation and sentenced the
appellant to death.
i) A threat to cause the death of the accused may amount to provocation
depending on the circumstances.
ii) Provocation must be judged by the standard of an ordinary person of the
community to which the accused belongs.
iii) The heat of passion required but to any emotional state caused by provocation
and which is such as to deprive ordinary person self-control.
iv) The judge’s finding that there was no evidence that there was no legal
provocation was correct on the facts.
Provocative act must refer to “person” and not to ‘things”. E.g. on cannot be provoked
because his dog has been beaten. In general “mere words” do not amount to provocation
but they may in certain circumstances.
In the case of R.V. MOHAMUDU KIBWANA (1968) H.C.D. No. 186, the accused’s
only possible defence to a murder charge was that shortly before the killing he heard
100
Criminal Law
deceased say to someone else that he (deceased) had signed a paper authorizing the police
to beat accused.
“…As a general rule … spoken words alone cannot be the basis for provocation. Where
words are accepted in customary view as constituting provocation, the words must be of
so devastating a character, of such over-bearing force, as to shatter the self-control of a
normal person of in the community. Accused was convicted of murder and sentenced to
suffer death by hanging...”
In BENJAMIN MWANSI V. R. [1992] T.L.R 85, the appellant confessed killing his
fiancee. In his defence he said he was provoked by the words of the deceased whom he
found in the bed of her new lover. Upon being asked she replied: "wewe bwana achana
na mimi. Sina habari na wewe" (literally translated: "Please leave me alone. I have no
business with you"). The Court considered whether these seemingly innocent words could
provoke a person to killing. The appellant and the deceased had agreed to marry. The
deceased was also dishing out favour to one Iddi Kazimoto. The appellant had
intelligence of that affair but was satisfied by the assurance of Iddi that he, Iddi that is,
was not aware that he was trespassing on the appellant’s garden and promised to desist
further encroachments.
“…Now, those words in themselves appear innocent. But if they are looked at with the
hindsight of what had transpired they are powerful dynamite sufficient to blow off the
faculty of reasoning of the appellant. Not only that the appellant’s hope of marriage
with her was kindled by her deceit but also that very day she made him part with his
Tshs. 20/=. As if that was not enough, and to add insults to injury, she turned him into a
sentry and made him kick about his heels eagerly waiting for her when she knew just too
well that she was not going to come back to him. The appellant was provoked by those
words…”
Provocation and witchcraft
101
Criminal Law
Attitude of courts to witchcraft is that it is unreasonable belief, unless it is proved to be

reasonable.
In the case of ERIA GALIKUWA V. R. (1951) 18 E.A.C.A 175, the appellant was
convicted for killing a witchdoctor. The appellant was threatened with death unless he
paid 1000/= that he was unable to pay. The appellant imagined that he heard the
witchdoctor’s spirit voice repeat a demand for a ransom with a threat to kill “by sucking
your blood”. Terrified the accused killed the witchdoctor in order to save his life.
i) The act of causing death must be proved to be done in a heat of passion

i.e. anger and not fear of immediate death.
ii) If the fact established that the deceased was performing some acts in the
presence of the accused which was believed, and an ordinary person of
his community would genuinely believe was an act of witch craft against
and the accused was so angered as to deprived of self-control, the defence
of grave and sudden provocation was ope—the accused.
iii) A belief in witchcraft parse did not constitute a circumstance of excuse or
mitigation for killing person believed to be a wizard or witch where there
is no immediate provocation.
Without there being time for that pas== to cool fear of witchcraft alone cannot amount to
provocation unless the accused has been put in such a fear of immediate danger to his
own life that the defense of grave and sudden provocation was held proved.
In the case of R.V. KUMWAKA WAKULUMBI 14 K.L.R. 137, the accused was believed
to be witch. The accused genuinely believed to be a witch and to have bewitched the wife
of the first accused. So as to make her ill and unable to speak. The first accused
summoned the rest of the accused and brought them to the vicinity of the hut in which
was his wife, the woman believed to have been bewitched.
The deceased was seized and brought the sick woman’s hut and ordered to remove the
spell. The accused alleged that she removed half of the spell during the night. Early in the
102
Criminal Law
morning the witch was detected running away. All the accused run after and beat her with
sticks. As a result of the beating the witch was killed:
“….There was aforethought and that self-defense was a tenable plea. The belief in
witchcraft is of course widely spread and is deeply engraved in the nature character, for
courts to adopt any other altitude to such cases would be to encourage the belief that an
aggrieved may take the law into his own hands since the government doesn’t tolerate the
killing of witches…”
In JOHN NDUNGURU RUDOWIKI V. REPUBLIC [1991] TLR 102, the appellant is

the grandson of the deceased man. He (the appellant) has a brother called Dustan who
was mentally sick. Both were staying together with the appellant’s home. On a number of
occasions the appellant had consented witchdoctors who told him that the deceased had
killed a number of people in the family and had caused temporary sterility to his own
daughter through witchcraft and on being asked the accused confirmed this.
On the day of incident the accused visited the appellant’s home to see Dustan, the sick
grandson. There was an exchange of words between them in the course of which the
deceased threatened to kill the appellant by witchcraft, following which the applicant
picked up an axe and brutally attacked the deceased with it causing his death instantly.
In a trial for murder, the trial judge held that as the appellant had previously heard
confessions by the deceased of having killed his victims by witchcraft, the threat by the
deceased to cause death of the appellant by witchcraft did not come as a shock and never
put the appellant in fear of any danger to his life or that of his brother when he killed the
deceased.
“…Although mere belief in witchcraft is no defence to a charge of murder, a threat to kill
by witchcraft may in certain circumstances constitute legal defence to that charge…”
On appeal, the justices of appeal found that on previous occasions when the deceased
admitted to have killed people by witchcraft he had made no threats to the appellant and
thus on the day of the incident the deceased’s threat to kill him was sudden and must
103
Criminal Law
have come to him as a shock. Such a suddenly threats has to be viewed in the context of
deceased’s previous admissions in the appellant’s presence to have caused death and his
fortune to some family members and the appellant’s honest belief I his having power to
do so . At page 105.
”…In killing the deceased the appellant did not follow the deceased, rather it was the
deceased who had gone to the appellant’s home, and that we would be inclined more to
the view that the killing was in circumstances of provocation rather than
premeditation…”Per Kisanga, J.A at page 105
Provocation and Adultery

When talking of adultery, here it means spouses or people who are married. Killing in
adultery generally is not sudden but takes a long time.
In the case of GABRIEL V. R. (1971) H.C.D. No. 299, the accused found his wife
getting out of the house of the man with whom she was having an affair and stabbed her
to death. The trial judge found that there was no provocation or insanity because the
accused had waited for some time for his passion to cool.
“…The appellant went to the deceased’s house with intent to kill or inflict grievous harm
and the defense of provocation by sudden knowledge of the deceased’s adultery not open
him…”
In another case of R. V. ALLY SAID KIUBATYO [1990] T.L.R. 137, the accused was
charged with the murder of his wife. After killing the wife he dumped her body into an
abandoned latrine, buried her and made a false report to his own father and mother in
law about the whereabouts of the wife. The killing took place after the accused had
suspected that his wife had committed adultery, failed to arrest the suspect after chase
and the wife had uttered words which made the accused lose his temper and hit the
deceased with a billhook which was nearby. Words uttered by the deceased were “Sijui
na umemkimbiza na umeshidwa mwenyewe kumkamata sasa unamwuliza nani na mtu
104
Criminal Law
mwenewe umemwona? Literal translated “I do not know. You have seen the person and
failed to arrest him. Whom do you ask then?”
During the trial two issues were raised by the trial court.
 Whether suspicion of adultery can afford a defence of provocation in murder.
 Whether or not the statement by the deceased can afford a defence of provocation
in the circumstances.
i) Prior knowledge by a husband of the adultery of his wife with a

paramour does not bar him from raising the plea of provocation if the
killing was upon finding the wife and her paramour in the act of
adultery. In the present case the accused alleges that the deceased had
committed adultery in similar circumstances three times but he had
never seen the deceased committing adultery; so the defence of
provocation is not open to the accused.
ii) The statement alleged to have been uttered by the deceased was
provocative in law and as the accused killed the deceased as a result
of such provocation the killing was not intentional.
“ ..I have considered the alleged statement by the decease quoted above to see whether it
could not have provoked the accused. Looking at it in a superficial manner the statement
is innocent. But considered in the circumstances in which the statement was uttered could
have provoked the accused. The accused had come home from hacking coconuts. He
knocked at the door expecting the deceased to open the door for him. Then he pushed the
door open only to find his child sleeping alone in the bed. The deceased was nowhere to
be seen. The accused went out and as he was searching around he heard footsteps of a
person running. He chased the person and he failed. He did not know who the person
was. He turned inside and saw the wife sitting on be. The accused asked who was the
person he saw running. Instead of being civil she uttered the words she was alleged to
have said. The reply could have infuriated the accused, as it actually happened and took
the billhook and caused the death of the decease. In my view those words uttered to an
105
Criminal Law
ordinary man in the circumstances which accused had would have provoked him to
assault the deceased…it is true that he used a lethal weapon but it is not suggested that
the accused had time to look for it.” Per Kazimoto, J at page 141.
Confession Leading to Provocation

In the case of R. V. JUMA LEGEZA (1969) H.C.D. No. 244, the accused was told his
wife was having an adulterous association with another man. He questioned her after
having taken drink, slapping her several times. When she confessed, he beat her with
stick, told her to go and followed her to her supposed lover’s house where he took away
her clothes and left her naked on the bed. The accused later returned and found her dead
due to head injuries suffered during the beating. His attempts to revive her with buckets
of water failed. He reported the matter, and confessed his actions to the elders
subsequently the matter, and confessed his actions to the elders subsequently to the
Administrative Secretary.
“…Sudden discovery of a wife’s adultery even if not by finding her in flagrant delicto
may in Tanganyika in law be sufficient provocation. Circumstances of the killing
influenced by drinking made him unable to make a careful choice of action…”
Provocation on Concubines
Here there must be a strong relationship even though not legal married. Accused must act
in the heat of passion.
In R. V. SHILINDE MATHEW (1970) H.C.D. No 143, the accused returned home on

the right of 4/9/69 at about 10 P.M and knocked at the front door of his house but there
was no reply. Then he heard his wife say from inside “To-day we are down for it.”
Accused then heard some sound as if the rear door was being opened. He went around
and saw a man coming out of the house through the rear door. The man was running
away. Accused chased the man and struck him on the head with a piece of wood which
he had picked up three times on the head with a piece of wood which he had picked up.
Accused was arrested and charged with grievous bodily harm. The deceased was taken to
106
Criminal Law
Kahama Government Hospital where he died few hours after his admission. Death was
due to the wounds on deceased’s head.
“…The parties have lived together for a long time as husband and wife, though not
regularly married, so provocation can be raised as a defense.
The accused didn’t meet his wife and the other man in the act of adultery but they were
inside his house in circumstances with suggests that adultery may have taken place of
intercourse was about to take place…”
In SUKUMA RASHIDI MWAMAKOSI V. R. [1958] E.A. 776, deceased who knew that
the appellant was after his wife found after returning from a hunting trip the appellant
sitting out his house. He asked him what he wanted at his and made no reply. Deceased
assaulted as a result of the struggle between them the deceased died.
i) There is a very law degree of provocation, the appellant was assaulted
and so by throat, which might constitute a throat to his life.
ii) There was no question of a time for passion to cool, the appellant struck
only blow with a weapon from the deceased.
iii) The appellant was acting lawful under section 202 TPC.
SHABANI RASHIDI V. REPUBLIC [1995] TLR 259, Fatuma Hussein cohabited as

man and woman from 1983 to 1986 when they formally ended their relationship. They
even divided whatever had earned together. Fatuma then lived as a single woman with
her parents from 1986 to 1988. When the deceased started courting her. On 28/1/1988 at
about 10.00pm as the two were seat her bedroom, the appellant suddenly burst in and
without much ado proceeded to stab the deceased. He stabbed him in a stomach.
Both the deceased and his lover ran out of the house shouting for help. Neighbours came
in answer to the alarm. The appellant told them that he had stabbed the deceased because
he found him committing adultery with his wife. His main ground on appeal was that the
trial court did not accept that the defence of provocation was available to the appellant.
The Court of Appeal considered this ground against the background of the appellant's
107
Criminal Law
denial of killing the deceased and that the relationship between the appellant and the
women who the appellant alleged to have caught committing adultery with the deceased
had terminated.
i) For the defence of provocation to avail the appellant two factors must be
present:
 That a relationship between him and Fatuma still existed,
 He must admit to killing the deceased.
ii) There was ample evidence that the relationship between the appellant and
Fatuma had effectively ended in 1986.
iii) Once the appellant denied killing the deceased the defence of provocation
disappeared and the Trial Judge was right in rejecting the defence of
provocation.
The Last Straw Doctrine of Provocation

If one looks an act of killing itself (say act E) it would not amount to provocative act. but
acts A, B, C, D, may amount to provocation.
In the case of R. V. JOHALI ISMAIL 1974 L.R.T. No. 23, the accused found the
deceased on a path talking to his wife. The deceased started to run away but he was
chased by the accused and caught them, he was brought before the elders. When the
elders started to ask the deceased the allegations he denied but explained that the accused
had requested him to assist him in chasing a thief. at this juncture the accused got up and
stabbed the deceased (put in mind the cap in the pocket of the wife’s undergarment
incident.)
i) The discovery of the cap in the undergarment to the finding of the

deceased with the accused’s wife and his apprehension, these are
series of provocative acts. These factors are enough to reduce this
offence to manslaughter.
108
Criminal Law
ii) Provocation is a statutory defense created under section 201 and

202 of the Penal Code.
iii) When provocation is raised as a defense to the charge of murder.
iv) The provocative act pleaded must be a wrongful act or insult.
a) The provocative act must be of such gravity as would deprive a reasonable
man of his power of self-control.
b) The murder must be done in a heat of passion.
c) The means of retaliation adopted must be proportionate to the degree of
provocation committed.
v) Making an allowance for the “last straw” doctrine of cumulative
provocation there was no wrongful act or insult and the accused’s
passion had time to cool. Guilty of murder.
IINFANTICIDE
section 199 TPC creates the offence of infanticide. the object of introducing into the
criminal law the offence of infanticide was to reduce what would otherwise be an act of
murder to a lesser offence where the killing was done by a mother at a time when her
responsibility for the act may have been reduced by the disturbance of mind caused by
the stress of the child birth.
In the case of R. V. ESTHER IKUMBOKA (1967) H.C.D No. 447, the accused was
charged with infanticide. she killed a new-born child in circumstances would normally
amount to murder, but that at the time of the incident the balance of her mind was
disturbed as the result of child birth. It is not disputed that the accused was pregnant and
she delivered a child. There is considerable conflict as to whether or not this child was
born dead or alive. The doctor who performed post-mortem examination, though
adequately qualified, was not himself a pathologist and he didn’t feel able fully to discuss
matters, which demanded special expertise in the field.
“…The accused not guilty of infanticide but concealing the birth of a child…”
109
Criminal Law
In another case of R. V. EVELYINE MATHIAS (1969) H.C.D. No. 245, the accused
was charged with infanticide c/s 199 Penal Code. She willful threw her new-born child
into a latrine, while the balance of her mind was disturbed. Apparently no one knew of
the birth of the child, who was only discovered in the latrine when it was heard crying.
The accused’s parents, with whom she lived, denied any knowledge of her pregnancy or
of any child-birth. Medical evidence however showed that the accused, when examined
shortly after the discovery of the child, had recently delivered a child and the placenta
and membranes were still in her body.
i) The prosecution had to prove that the accused had caused the child’s death by
a willful act which, but for the balance of her mind being disturbed would
have been murder.
ii) The prosecution has to prove that the accused had no simply abandoned the
child but had intended to cause its death.
iii) Accused not caught at the latrine. She went there for the purpose of passing
faces and involuntary gave birth to the child.-Acquitted.
CONCEALING BIRTH
According to section 218 TPC the prosecution has to prove:
 That the accused was delivered of a child as stated in the charge.
 That the accused endeavored to conceal its birth by secretly disposing off it.
 That the child was dead at the time of such secret disposition.
On a charge of endeavouring to conceal the birth of a child it must appeal that child had
“arrived at the stage of maturity at the time of birth” that it might have been a living
child. It has been said that, in order to convict an accused of endeavouring to conceal the
birth of a child, a dead body must be identified as that of the child the mother is said to
have been delivered, or atleast a confession should have been made by the accused.
CHILD DESTRUCTION
Since the common law requires constituting a crime of murder that the victim be a
“reasonable creature in being” it is followed that it was no murder to kill a child in the
womb or while in the process of being born.
110
Criminal Law
 Prohibits attempts to procure a miscarriage at any time between conception and

the birth of the child alive.
 Prohibits the killing of any child capable of being born alive.
ASSAULTS
According to section 240-243 TPC, assault is an act, which intentionally possibly
recklessly caused another person to apprehend immediate and unlawful violence.
It is an assault to strike at another with a stick, to draw a knife at a person or to point a
gun, or to throw a stone at another even if it misses.
Battery is the actual application of unlawful force, however slight to another, whether
directly or indirectly. Kissing a woman without her consent is battery.
Battery is not unlawful:
 Where a person is being lawful chastised,
 Where a person is being operated,
 Where a person consents to the use of force in a game and is by law able so to
consent,
 Where a person otherwise consents to and is able to consent to the use of force-S.
231 to 232. TPC
An operation done without just cause and excuse is unlawful although a person consents.
In the case of R. V. REV. FATHER JOHN RWECHUNGURA (1979) H.C.D No. 168, it
was held that the act will be said to be unlawful assault if it is done in an angry
revengeful, rude, insolent, or hostile manner, that is, the accused acted so with an evil
mind. Therefore an assault in any act by which D intentionally or recklessly, caused P to
apprehend immediate and unlawful personal violence. A battery is any act by D
intentionally or recklessly with inflicts unlawful personal violence upon P. it is neither an
assault nor battery for D to pull himself free from P who is detaining him, even though D
uses force. An assault is often described as an attempt to commit a battery or other crime
of personal violence, but this is too narrow, for an assault may be committed where D has
no intention to carry out a battery.
111
Criminal Law
Where a constable executes duties, the nature of the force used can amount to an assault
also. In WATERFIELD V. R. (1964) 1 QB 164, at page 170 it was said that, if the police
officer’s conduct falls within the scope of the general “duty” to prevent crime and to
bring offenders to justice, then it would seem to be within the prosecution of the state, if
it was lawful. If in the course of carrying out his duty to prevent crime and to bring
offenders to justice, the officer exceeds his powers, then he is no longer acting in the
execution of his duty for this purpose.
ASSAULTING CAUSING ACTUAL BODILY HARM

Section 241 TPC, any person who commits an assault occasioning actual bodily harm is
guilty of an offence and liable to imprisonment for five years.
The expression harm means any harm which amounts to a maim or dangerous harm or
which seriously or permanently injures health or is likely to do so or which extends to
permanent disfigurement or to any permanent or serious injury to any external or internal
organ member or sense. Maim means the destruction or permanent disabling of any
external or internal organ or sense or member.
Wound is any incision or puncture with devise or pierces any exterior or membrane of the
body. And any membrane is exterior for the purpose of this definition, which can be
touched without dividing or piercing and other membrane. To constitute a wound within
the code the continuity of the skin must be broken. Thus a kick causes internal
hemorrhage that breaks no skin is not a wound and so long as the skin is broken the
nature of the instrument with which the skin is broken is immaterial.
The offence created by section 241 TPC is some aspects is similar to that of unlawful
wounding under section 228 TPC, thus creating difficulty in deciding whether to prefer a
change of unlawful wounding or assault causing actual bodily harm. There so difficulties:
 In a charge of unlawful wounding, you have to prove that an exterior organ,
membrane or sense of the body was incised or punctured.
112
Criminal Law
 The offence of causing actual bodily harm is more general in the sense that the
harm refers to any bodily hurt, disease or disorder whether permanent or
temporary.
 The difference to a charge of assault causing bodily harm are similar to those of
unlawful wounding, that is;
i) The essential evidence of identification of the accused be it direct or
circumstantial that he sustained harm.
ii) That the accused intended to cause such harm.
iii) That harm was caused without lawful excuse.
Assault as a result of consent, accident or assault which are legally justifiable, do not
amount an offence. It is also a defence to a charge of assault causing actual bodily harm
that the accused did that self-defense, but such bodily harm must not be excessive. In
SAIDI ABDALLAH V. R () H.C.D No. 226, where the complainant slapped the second
accused who is his nice and---hard enough that she fell down. There the niece picked up a
large pestle (apparently the near thing at hand which served as a weapon) and started
hitting the complainant with it. the first accused immediately joined the fray on the side
of the niece. The damage to the complainant superficial, mainly a few lacerations and
abrasions. Accused were convicted of assault and sentenced to eight months each.
i) Even though this quarrels was initiated by the complainant accused

were===in retaliating as they did.
ii) Sentence reduced-suggested that fine and compensation would met the
jur--= of the case.
If the defence is that the complainant consented to the assault the defense will be rejected
if the assault was of such a nature or with such a degree of violence that bodily harm was
a probable consequence.
Provocation is no defence to a charge of assault or related offences, but it would be a

mitigating factor. In the case FIDEL V. R (1968) H.C.D No. 34, where the accused was
113
Criminal Law
convicted of assault causing actual bodily harm. He alleged on appeal that he had been
provoked and, under the circumstances, had been justified in committing the assault.
“…Provocation cannot justify an assault; it can only be ‘mitigation’…”
PROPERTY OFFENCES
THEFT
DEFINITION OF THEFT
According to section 258(1) TPC, any person commits the offence of theft if:
 Fraudulently.
 Without claim of right.
 Takes/Converts.
 Any thing capable of being stolen.
From the above definition we see that the actus reus of theft is the taking or asportation of
property, which belongs to another person. The mens rea is dishonest or fraudulent
intention to deprive permanently the other person of his property.
WHAT ARE THINGS CAPABLE OF BEING STOLEN?

These are explained under section 257 TPC which include.
1) In animate things- which must be the property of another and which is movable.
Even those which are immovable, but can be made movable are capable of being
stolen. So thing to be capable of being stolen it must be:
a) In animate.
b) Movable.
c) The property of another person.
2) Tame animals and wild animals which are the property of another person and
which are kept in a state of confinement.
3) Wild animals in the enjoyment of their natural liberty are not capable of being
stolen but their dead bodies are.
4) Everything produced by or forming part of the body of an animal capable of being
stolen is capable of being stolen.
114
Criminal Law
NB: General intangible things are not capable of being stolen example air, ideas, etc. But
things like water, gas, electricity are capable of being stolen. In the case of R. V.
NDESARIO [1969] E.A. 267, it was held that so long as fluids like water could be
sufficiently be appropriated to the user, it could be stolen. Since the accused has no right
to extract water except at the time stipulated in his agreement with the complainant, the
accused was therefore taking away a movable object which didn’t belong to him with
intent to deprive the owner permanently of it. Section 283 TPC expressly provides the
electricity can be stolen.
THE VALUE OF THING CAPABLE OF BEING STOLEN:

To make a thing the subject, it must be of some value, yet it need not be of any coin
known to the law. In the case of KYEWAWULA V. UGANDA [1974] E.A. 293, the
accused was employed by the Currency Board, counting old notes. She was convicted of
stealing some of these notes, which were described in the charge as cash. In this case the
court allowed the appeal on the ground that the notes were no longer money and thus
could not be stolen. The judge said:
“…To form a subject of larceny the thing stolen must have some value. Only economic
value is taken into account. The value may be greater or smaller so long as it was actual
money value for some person or persons-in this case the stolen notes had no money value
for any person including the government, they could not be described as money. “there
were nothing but waste paper”….”
In the case of R. V. DANIEL KAMBEGWA (1968) H.C.D. No. 333, the accused was
charged with theft by public servant. A bonnet stand was missing from a motor vehicle,
and the accused was seen some days later using it as a walking stick. When the charge
was read over to him he said “I didn’t know that the bonnet stand was of any use”. The
court held that: There is no proposition of the law that there cannot be a larceny from an
owner of a property which is of no value and of which he does not make further use.
115
Criminal Law
Definitely, valueless thing or abandoned articles like worn out clothes, should not be the
subject matter of theft. If the accused takes such valueless articles, the taking cannot be
said to be fraudulent if at the time of taking it, he honestly believes that such a thing had
been abandoned and in fact uses it as the walking stick. (Therefore not even concealing of
hiding it) we can safely conclude that at the time of taking it honestly believed that the
bonnet stand was incapable of being stolen because it was valueless.
OWNERSHIP AND POSSESSION

Ownership is one of the most important ingredients of the offence of theft. The subject
matter of the theft must be the property of some person. The taking can therefore be from
the actual owner or “special owner”-Section 258(2) (e) proviso.
Since ownership is very important, it follows; thus, in drafting a charge of theft it is
always necessary to mention the owner or possessor. Possession should not be a
temporary nature, as where guest sleeps for only one night in a house and thereby gets
temporary possession of the relevant items in the bedroom or where a customer enters a
shop and takes some items in order to examine them.
In the case of SELEMAN TILWIZAYO V. R [1983] T.L.R. 402, by using a fictitious

name of the payee the appellant was able to steal government checks, deposited them in a
bank account opened in the name of the fictitious payee, and withdraw cash from the
bank. The trial court convicted him on eleven counts of stealing government money. On
appeal it was considered whether the money withdrawn from the bank belonged to the
government so as to constitute stealing government money.
1) Bank customers, including the government do not own the money which is
deposited in the bank.
2) The stolen government checks deposited in the NBC (National Bank of
Commerce, Kuu Street Branch, Dodoma,) became the bank's and not the
government's money; thus a conviction of stealing government money cannot be
sustained.
116
Criminal Law
3) The evidence available shows that there was theft of the government checks by
the appellant.
4) On the analogy that a cheque can be imported into a charge by virtue of its being
money within the meaning of that term in the Penal Code the appellant was
properly convicted as charged on the proven counts of theft.
FRAUDULENT TAKING
A person is said to take or convert anything capable of being stolen fraudulently under
any circumstances explained under section 258(2) TPC. If a person is exercising a bona
fide claim of right he cannot be convicted because he didn’t acted fraudulently. In the
case of D.P.P. V. HENRY RWEGASHAMIRA 1973 L.R.T. No 15, the respondent was a
sub-agent of====in the state lottery system. He deducted from the revenue of the tickets
sold sum in excessive percentage to which he was due honest belief that he was entitled
to reduce a balance owing to him from previous transactions. D.P.P appealed against
acquittal.
“…The respondent had a claim of right and so was not guilty of theft, even if as a mare
law he was not entitled to make the deduction…”
Once it is shown that a person is honestly asserting what he believes to be a lawful
claiming he has a lawful claim of right under section 9 TPC even though the claim
asserted is unfair law and fact.
DOCTRINE OF IMPLIED CONSENT

Implied consent sometimes negatives fraudulent intention. Where for example a
person==money entrusted to him under an honest belief that consent would have been
given by the=== he may be acquitted of theft for lack a fraudulent intent.
In the case of ALLY IDDI V. R (1969) H.C.D. No. 263, the complainant gave the
appellant Tshs. 580/- in old notes to change into new ones. Appellant returned with Tshs.
400/- new notes. Complainant wanted her money back, appellant agreed to repay her, but
117
Criminal Law
did not. He kept avoiding her. Appellant was charged and convicted of theft of Tshs.
180/-. On appeal the court said:
“…It is quite clear that there may be circumstances in which a person might use
another’s money entrusted to his custody without that other’s consent where it is
reasonable to assume that consent would have been given if asked. If in such
circumstances the owner of the money treats the transaction as one of loan when it is
reported to him that the money has been used, then he could not later seek to take
criminal charges. On the other hand, if there was no ground for reasonably believing
that the owner would have given consent for the user and if on the report of it the owner
protests, the mere fact that he takes no immediate action and gives the offender time to
put the matter right by payment could not change the character of the original
unauthorised user…”
“In Tanzania a person who uses money entrusted to him by another at his will
may==larceny even if he had the intention to repay”
Implied consent was said to exist in the case of YUSUPHU SALIM MKALY .V. R
(1969) H.C.D. No. 260, the appellant was TANU employee (Tanganyika African
National Union) at Songea was entrusted with Tshs. 695/- for the repairs to a Land
Rover. He received a message from TANU Headquarters, that one member of his family
was sick, and authorizing him to travel to Morogoro. He used the money for this purpose
and reported to TANU Headquarters informing that deductions would be made from his
salary. He asked that no deductions be made during his period of leave –(three months)
but after and not in installments but in one installment. The deduction were in fact be
made, but was later charged. He was convicted, the magistrate citing section 258(2) (e)
TPC that fraudulent intent is established, in the case of money notwithstanding an intent
to pay the money afterwards to the owner. On appeal it was held that:
1) In this case it is clear that appellant felt that he could have obtained permission to
use the money in the circumstances, which had, arisen.
118
Criminal Law
2) He reported to the Headquarters of TANU, no steps were taken against him. He

was allowed to remain in the employment of TANU and he was allowed to go on
leave. Arrangements were made to have the money deducted from his pay at this
convenience and the money was in fact deducted.
3) It is impossible in these circumstances to hold that there was a fraudulent taking.
The law regarding to implied consent is not settled, as was held in the case of
GEOFREY BUYOMBO V. R (1968) H.C.D. No. 373, where the accused was convicted
of stealing by servant. He was a Divisional Secretary of T.A.P.A., and collected revenues
on its behalf. He admitted appropriating part of it for himself, but alleged that this was
partly because he had not been paid his salary by T.A.P.A for 8 months. Without
considering whether this taking could be described as fraudulent or not, MUSTAFA, J
dismissed the appeal holding that.
“…Even “if an employee has not been paid his salary he has no right to use money
which he has received for his employer, without authorization.” There can be no claim of
right in such a case…”
It is submitted that the mere absence of a claim of right doesn’t automically mean that the
taking is fraudulent. It is important to consider whether the accused acted dishonestly or
not. The courts should not confine themselves to legal technicalities since the question
whether the taking is fraudulent one or not is both a question of law and fact.
TAKING & ASPORTATION

For an offence of theft to be complete, there must be taking/asportation. The stolen thing
must have been moved from its original place to another otherwise it may be assumed to
be attempted theft. Section 258(5) TPC expressly provides that-A person shall not be
deemed to take a thing unless he moves the thing or causes it to move. Thus according to
this section, even slightest movement is sufficient to amount to theft. MAZENGO
MAGALA V. R. (1969) H.C.D. No. 156, the accused was charged theft but was
convicted of attempted cattle theft. The evidence showed that at about three o’clock in
119
Criminal Law
the morning two herdsmen employed by the complainant were awakened by the sound of
cattle moving and they found four head of cattle outside the boma, which had been
broken open. The accused attempted to escape by breaking through a hedge surrounding
the compound but was apprehended. According to the magistrate the act of driving out of
the boma four cows but without moving them away from the victim’s courtyard didn’t
amount to is ‘taking’. On appeal:
“…There was more than sufficient asportation in this case to constitute taking within the
meaning of the definition of theft…”
Another case, which is relevant, is that of SAMWEL MSIRANGALA V. R. [1981]

T.L.R. 319, In this case the appellant was convicted by a primary court of attempted
cattle theft. His appeal to the District Court failed. The appellant had broken into another
person’s kraal and driven a bull away from it. He was seen by two people. On its own
bull returned to its owner’s kraal. On a further appeal to the High Court the issue was
whether the offence committed was one of the attempted cattle theft. It was held:
“….Since the appellant drove the bull from where it was to another place, asportation
was proved and therefore, the offence committed was one of the cattle theft…”
CONVERSION
Section 258 TPC defines theft in such a way that the offence is capable of being
committed by two different ways, that is, by fraudulent taking, or by fraudulent
conversion. For a
conversion_______________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Page 64 & 65 is missing so find it.
120
Criminal Law
Magistrate convicted him of stealing the money holding that he stole the money by virtue
of his employment. On appeal Mnzava, J. followed the Yesaya case holding that:
“…In the present case, there is no dispute whatsoever that the appellant was a person
employed in the public service when he stole the Tshs.100/=, Equally there is no doubt
at===== that he received the said money by virtue of his employment as a prison
officer, that servant of the government…”
Hence was rightly convicted.
In RASHID V. R. [1972] E.A., the appellant a detective corporal police was convicted of
theft by public servant by stealing money, which he seized from the person ( a suspect)
whom===searched. The warrant under which he professed to act was invalid as it was
unsigned. On appeal he argued that the money had not come into his employment, as the
search was illegal. On appeal:
“…The property came into the appellant’s possession by virtue of his employment even
though the act was outside his authority…”
Where it is clear that the money does not belong to the government nor did it reach the
accused by virtue of his employment, he cannot be convicted under the section . In the
case of MIKIDADI ABDALLAH V. R (19700 H.C.D. No. 225, the appellant is the
former Officer-in-charge of the Tabor Prison. As such, he was ex-officio Chairman of the
Prison Officers Staff Club. The appellant was convicted of stealing by a public servant in
that he stole 334/30/- from the prison staff club fund. On appeal:
“…As the money belonged to the Prison Staff Club and not to the Government, the
offence does not fall within section 270 of the Penal Code, He was convicted of simple
theft…”
121
Criminal Law
In another case of CHRISTIAN MBUNDA V. R. [1983] T.L.R. 340, the appellant was
charged with stealing by servant contrary to sections 271 and 265 TPC. Appellant being
an employee of his village council as cashier. He used to receive money from the
(N.M.C.) National Milling Corporation and other crops authorities on=== of the village
for the purpose of buying crops from peasants. It is not in dispute that ame==== the
money received by him from N.M.C. at the material time was 10.000/= for the purpose of
buying millet. it was the prosecution’s case that the appellant didn’t use the money for
buying millet nor did he account for the same.
Appellant’s explanation is that he used the money in various village projects after he was
on====to do so by the village authority. Appellant maintained that the village leadership
sanctioned use of this money in the alleged projects by authorizing the relevant payment
vouchers. However the prosecution and the village council never produced these payment
vouchers. The trial magistrate ordered the appellant to proceed with his defence without
these vital documents. The magistrate convicted him of stealing by agent contrary to
section 273(b) and 265 TPC. On appeal:
“…It can’t be refuted as far as N.M.C. was concerned; the recipient of this money was
the village council. Since it was not practicable for all the members of the council to
k===money jointly, they engaged the appellant for that purpose. But still the council
ret--- overall control of how the money was to be used. As between the appellant and the
council it was quite legitimate for the latter to direct the former on how the money be
used. After all the N.M.C. communicated with the village authority and not with
appellant in all matters pertaining the buying of crops…”
Was there theft in this case?

In order to convict an accused of theft, the prosecution must prove the existence of actus
reus which is specifically termed as asportation and mens rea. In the instant case there
was undoubtedly asportation but definitely appellant had not the requisite guilty
mind when he======the money for the purpose other than buying the millet from the
villagers.
122
Criminal Law
Stealing by servant-whether covers situation where the thing stolen is not the property
===of accused’s employer?
It is not necessary for one charged with stealing by servant contrary to section 271TPC
that property stolen should belong to the accused’s employer, but the section covers a
situation though the stolen property doesn’t belong to the employer it came into
possession of the employee or accused on account of his employer.
DOCTRINE OF RECENT POSSESSION

Where it is proved that the property has been stolen and that very soon after the theft the
defendant has been found in possession of the property, he may fairly be regarded as
either the actual thief or else guilty receiver.
Before doctrine is revoked, proof must be given that:
1) The good in question has been stolen,
2) The theft should have taken place recently.
The doctrine of recent possession is a rebuttable presumption of fact based upon the
finding of the property recently stolen in possession of the receiver. See the case of
MICHAEL MHUTO V. R. 1975 L.R.T. No. 118.
Therefore where recent stolen property is found in possession of a person, the possessor
of such property is deemed to have stolen or unlawful obtained unless he can give a
reasonable explanation of innocent possession. Such presumption raises also a
presumption of guilty connection with any further crime that accompanied theft.
This has been explained in the case of MANAZO MANDUNDU & ANOTHER V. R
[1990] T.LR. 92. The appellants, charged with and convicted of the offence of murder,
appealed against both conviction and sentence. The trial court based its conviction on the
fact that the appellants were found in possession of stolen property a few hours after the
watchman of a shop was killed. And, it was established that the property was stolen from
the shop which the watchman was guarding. When arrested one of the appellants asked to
be pardoned and the other said matters were becoming serious and later cried at the
CCM office. Counsel for appellants charged on appeal that recent possession of stolen
123
Criminal Law
property could not alone, in the circumstances, ground a conviction of murder. The court
held that:
1) The possession was very recent and that this fact cannot be ignored. The distance
from the burgled shop to Chigugu is 28 miles and it takes 5 hours to travel by
taking a short cut path or road. To be found at 10.00 am. The following day
having already arrived at Chigugu means that there was no time lost by the
possessors of goods in running away from the scene of crime.
2) In the circumstances it was not wrong to conclude that the appellants were also
responsible for killing the deceased, and because we are satisfied that the killing
was so as to effect the stealing we are of the view that it was quite proper to infer
malice aforethought.
3) This is a fit case for invoking the doctrine of recent possession to support not only
the shop breaking and theft but also the murder.
In the case of SAIDI MKUYU V. R. (1972) H.C.D. No. 41, the judge observed that
where a person is found with a stolen radio two and half hours after a house breaking,
even if no direct evidence can be given on the breaking, in the absence of a probable
explanation he can be convicted of house breaking and stealing.
In D.P.P. V. JOACHIM KOMBA [1984] T.L.R. 312, The doctrine of recent possession
provides that if a person is found in possession of recent stolen property and gives no
explanation depending on the circumstances of the case, the court may legitimately infer
that he is a thief, a breaker or a guilty receiver.
At what time is near enough to be “recent” no general rule can be given for the period
within which the presumption can operate will vary according to the article stolen. In the
case of SEIF ALLY V. R. 1976 L.R.T. No. 55, in deciding whether the possession is
recent or not, the nature of the property stolen must be taken into account, whether it be
of a kind readily passes from hand to hand and the trade of occupation to which the
accused belongs can all be taken into account.
124
Criminal Law
In D.P.P. V. JOACHIM KOMBA [1984] T.L.R. 213, the respondent was originally
charged with burglary. He was found in possession of a radio cassette which had been
stolen some eight months earlier together with some household goods from complainant's
house which had been burgled. The trial court acquitted the accused on the charge of
burglary but convicted him of stealing and subsequently discharged him conditionally
under section 38(1) TPC. D.P.P. appealed.
“… There is no general principle of determining the period of time, which is recent

enough to justify the application of the doctrine of recent possession. In the
circumstances of this case, eight months after the disappearance of the said stolen radio
cassette is too long for the doctrine of recent possession to be invoked. Therefore he is
guilty of receiving stolen property…”
In the case of NAFTAL s/o NGALYA V. R. 1976 L.R.T. No. 45, the appellant was
charged and convicted of cattle theft. On 7.3.73 two herds of cattle were stolen. One herd
was found two days later already slaughtered. On 21.7.73 the second herd was found in
possession of the appellant, as he was about to sell it at KIGWE cattle market. On
appeal:
“…In deciding whether possession is recent the court must have regard to the nature and
value of the property. The period of four and a half months between the stealing of the
herd of cattle and the finding of it in the possession of the accused entitled the court to
invoke the doctrine of recent possession…”
In the case of WILLIAM MAZIKU V. R. (1972) H.C.D. No. 174, the court held that the
doctrine of recent possession could be invoked to convict the appellant of burglary where
the appellant has found in possession of stolen radio and clothes within three weeks after
the burglary had been committed although he was arrested twenty-five months later.
125
Criminal Law
However in the case of JAMES MALAWI V. R (1969) H.C.D. No. 172, it was held that
four and half months period is not recent where the accused was found with the stolen
radio which is a common article which can easily exchange hands.
In the case of IBRAHIM RAMADHAN V. R (1969) H.C.D. No. 218, the same court
held that fort-three days were “recent” in a case of burglary where the accused was
found with a stolen gun since a gun is not a thing which can easily change hands. The
question of “recent possession” therefore, remains largely a question of fact where each
case is to be decided on its own merits.
Receiving and Retaining Stolen Property or Unlawful Obtained

The offence of receiving and retaining stolen property or unlawful obtained are created
under section 311 TPC. Receiving and retaining are different offences. In receiving it
implies that at the time the accused received the property he knew that it had been stolen
or otherwise unlawfully required. In retaining the implication is that at the time of the
receipt the accused doesn’t know that the property was stolen or otherwise unlawfully
acquired but discover this fact at some later . If he continues to keep such property
after such discovery, then he is deemed to retain the property it is logical therefore, that a
person can’t be charged with both receiving and retaining the same property.
In the case of MOPUYANI OLE NDOTOO & ANOTHER V. R. (1970) H.C.D. N0. 74,
the six appellant were charged with receiving and retaining stolen cattle and were
convicted of these offences. On appeal:
A charge of receiving stolen cattle is mutually distinct from a charge of retaining stolen
cattle.
Receiving stolen cattle implies that at the time the property stolen was received the
receiver did not know it was stolen property, but that sometime later he came to know
that it was stolen property, and thus retain it in his possession. A person therefore can’t be
both a receiver and a retainer at one and same time.
126
Criminal Law
It is necessary for the prosecution to charge and prove that the receiver knew that the
property had been obtained unlawfully.
In MASWEDA ADIGA V. R. [1992] T.L.R. 140, the court held that in order to prove a
charge under section 311(1) TPC, it must be established that the accused received or
retained the property in question and that he received or retained the same with guilty
knowledge in the sense that he knew or had reason to believe that the same had been
stolen or otherwise feloniously obtained or disposed off. Furthermore, the prosecution
must prove:
1) Theft or obtaining by unlawful means.

2) Receipt of the stolen property by the accused person.
3) The accused’s guilty knowledge at the time of receipt.
It should be noted that on retaining, the same elements prevails, except that the guilty
knowledge may exist after receipt.
In the case of MWANGI NJOROGE V. R. [1963] E.A. 624, the appellant was convicted
of receiving or retaining stolen property. The evidence showed that when the appellant’s
house was searched a large number of M & B Tablets were found in tins placed under the
bed. The appellant argued that the tablets were not stolen but that they belonged to
someone else and that he had bought them. In convicting the appellant, the magistrate
held that having regard to the circumstances of the appellant’s purchase and possession of
the tablets, they had been stolen and the appellant knew that they had been stolen. In
allowing the appeal:
“… Where there is no direct proof of theft or of receiving goods knowing them to have
been stolen, the ordinary rule of circumstantial evidence must be applied, namely, that
the circumstances must be such as to convince any reasonable person that no other
conclusion was reasonably possible. Since it was possible that the tablets had been
127
Criminal Law
concealed because the appellant had committed the minor offence of contravening the
pharmacy and poison laws. Thus the magistrate was wrong in convicting the appellant of
receiving stolen property…”
In another case of IDDI WAZILRI V. R. [1961] E.A. 246, there was strong
circumstantial evidence of stealing leading to a finding of receiving stolen property. The
appellant was convicted of receiving stolen property, namely four bags of coffee, but
there was no direct to prove conclusively the theft or ownership of the stolen goods. He
was selling coffee at a price well below the market price, and the bags were hidden in a
maize field. When he saw the police he ran away. In dismissing the appeal:
“…The resident magistrate was right in finding that the circumstances in which the
appellant was found in possession of the goods and the circumstances in which he
attempted clandestinely to sell them and his subsequent denial of knowledge or
possession pointed irresistibly to the receipt of the goods by the appellant knowing them
to have been stolen…”
The person accused of receiving or retaining stolen property must be in actual possession
of it. In SAID KIGOZI V. R. [1958] E.A. 1, the appellant was convicted of receiving a
bicycle knowing it to have been stolen. The bicycle had been taken to the appellant for
repairs and was found in his possession in a dismantled condition. The appellant had
removed the small part which bears the number, and substituted another such part with a
different number. It was argued on the appeal that the appellant didn’t have possession of
the bicycle of the nature that must be proved to establish a charge of receiving. In
receiving the appeal:
“…Although were manual possession of a stolen article, without having control of it

doesn’t amount in possession in law, in this case the RM had considered this question
and had rightly inferred from the evidence that the appellant had atleast joint possession
and had, at least joint control over the article…”
128
Criminal Law
Conveying or Being in Possession of Suspected Stolen Property

For section 312TPC to apply the person must have been detained by a police officer
under section 25 CPA. Thus if a person is found in possession of or conveying in any
manner anything, which may reasonably be suspected to have been stolen or unlawful
acquired he may be charged with the offence of being in possession or conveying or has
control over the property suspected to have been stolen or unlawful acquired.
For the purpose of this section “unlawful acquired” means acquired in circumstances
which constitute a criminal offence under any written law. Read sections 312(2) (a-b) and
312(3) (a-b) TPC which elaborate the unlawfulness of such property.
The first ingredient of this offence is the detention of the accused by a police officer
under section 25 CPA. This section vests on a police officer of any rank the power to
stop, search or detain any vessel, boat, aircraft or vehicle which he has reasons to suspect
anything stolen or unlawfully obtained any person having in his possession or conveying
in any manner anything stolen or unlawful acquired. When the prosecution has
established these ingredients, it will be for the accused to satisfy the court that he didn’t
steal the article or unlawfully acquired it.
In the case of ALLY RAMADHANI V. R. (1968) H.C.D. No. 430, the Accused was
convicted of retaining stolen property contrary to section. 311(1) TPC. He had at first
been charged with being in possession of property suspected to have been stolen, contrary
to section. 312 of the Penal Code, but this charge was altered. Accused had been found in
possession of a number of bicycle parts, some of which were usable. The serial numbers
on a few of them appeared to have been erased. There was no evidence that the property
was concealed. The accused’s explanation was that he was a bicycle repairer and that
various customers would leave parts with him after repairs had been effected. On appeal:
1. Accused clearly could not have been convicted u/s 312 TPC as original charged. The
pre-requisites for a conviction under this section are:
i) That the accused was detained in exercise of powers under section 24CPC (25
CPA)
129
Criminal Law
ii) That he was detained while in the course of a journey, whether or not in
street, in private land or in a building.
iii) That he had in his possession, when detained a particular thing.
iv) That the thing may reasonably be suspected to have been stolen or unlawful
obtained from its nature or from the circumstances..
v) That the accused refused to give an account to the court of how he came by
the thing or gave an account which was so improbable as to be unreasonable,
or which was rebutted by the prosecution.
But there was no evidence that either pre-requisite (a) or (b) above were satisfied.
Therefore accused could not have been convicted under section 312 TPC.
2. Accused was wrongly convicted u/s 311 TPC “where as u/s 311 all that needs to be
done is to lead evidence to show that there was reasonable suspicion that the property
was in fact stolen or unlawfully obtained and that the appellant knew or had reason to
believe that this was the case. This doesn’t necessarily mean that the owner of the
property should be identified, or that there should be direct evidence of theft.
The circumstances under which an accused received or possessed the goods may prove
that they were stolen and that the accused knew it. In order to rebut innocent possession
the prosecution may adduce evidence of the conduct of the accused at the time he was
found in possession of the article in question if each conduct is inconsistent innocent
possession.
E.g. Denial of possession of goods,

Attempt to destroy the goods,
Attempt to run away
In both situations, the accused has to satisfy the court that he did not or otherwise
unlawfully acquired the property. He will have failed to satisfy the court if, for instance,
he gives no account to the court as to how he came by the said property or if he gives an
account which is so inherently improbable as to be reasonable or which the prosecution
130
Criminal Law
gives an account which ought reasonably be true and which is consistent with innocent
possession he will be entitled to an acquittal. However the section doesn’t require him to
prove that he came by the possession of the property honestly. Read the case of
GEORGE LERAI V. R 1(1921-1952) T.L.R. (R) 366.
This principle was reiterated in the case of KIONDO HAMISI [1963] E.A. 209, where it
was held that before a magistrate could convict on a charge u/s 312 TPC, he must make
finding as in the case of ALLY RAMADHANI (above). The burden on the accused
person was something less than satisfying the court on a balance of probabilities.
In BAKARI V. R. [1962] E.A. 466, it was held that the offence must be committed in the
course of a journey, possession, therefore is not enough, conveying must also be proved.
In R. V. NJUGUNA 2 K.L.R. 50, it was held that, the section doesn’t apply to possession
at large, but only to such possession as a man has when he is conveying the object. The
reason for this is because a conviction precedent to the offence is that the person charged
must have been stopped, searched or detained by the police officer under the powers
conferred by section 25CPA.
However, in NJOROGE V. R. [1965] E.A. 585 where by the appellant when surprised by
a police patrol fled from a land rover, which was found to contain copper wire,
reasonably suspected to have been stolen from a nearby transmitting station. The
appellants were caught after short chase. It was held that the evidence was sufficient to
justify a finding that the appellants were “Conveying” the copper wire.
Robbery
Robbery is defined under section 285 TPC. The elements of the offence are:
1. That the accused stole something.
2. That at or immediately before or immediately after such stealing he used or
threatened to use actual violence to any person or property.
3. With intent either:
131
Criminal Law
a) To obtain or retain the thing stolen, or

b) To prevent or overcome resistance to its being stolen or retained.
The punishment of robbery is twenty years imprisonment, if it is simple robbery, if it is

aggravated robbery the punishment is life imprisonment with or without corporal
punishment.
1. It Must Be Proved That The Accused Stole Something

In this case it must be shown that there was taking. On top of that, the property must be
handled over by the person threatened or at his request.
In the case of NURU AYUBU V. R. (1968) H.C.D. No. 279, the accused were convicted
of the offence of robbery. They threatened to shoot the complainant unless he gave them
Tshs. 600/- Complainant’s son, without a request from complainant, got the money and
handed it to accused persons. Conviction for demanding money with menaces was
substituted because the money was not taken from complainant or at his request but was
given by his son.
2. It Must Be Proved That The Accused Formed Intention To Steal At Or Before He

Used Or Threatened To Use Violence
If the intention to steal is formed after assault, that can’t be held to be robbery.
|
The case of MKWEPU V. R. T.L.R. (R) 108 is good illustration. In that case the accused
met complainant, a woman and overtures to her, she rejected them, whereupon he seized
her by the wrists, and as she struggled, he snatched her basket of food and clothing away
from her and ran a short way into bush. He then invited her to come after him under no
illusion as to his intentions, declined and went off in search of help. The accused was
arrested the next day, but the complainant’s goods were not recovered.
“…It was held that, since at the time the accused took away the woman’s basket he had
no intention of stealing it and that he did so in the hope that she would be enticed to
132
Criminal Law
follow him and further that he formed the intention to steal the goods after his refuse to
enticing her into the bush had failed, he could not be convicted of robbery because the
intention to steal was not formed at the time he assaulted her., A conviction for theft was
substituted…”
Similarly, general belligerent behaviour in which theft is committed with no rational

connection between the theft and belligerent behaviour is not robbery.
In MIDEREGE BEMEYE V. R. (1968) H.C.D. No. 74, the accused was convicted of
robbery with violence. There was evidence that accused, while drunk, assaulted a number
of persons in a pombe shop. After assaulting complainant, accused took complainant’s
coat and walked away with it. On appeal:
“…Penal Code section 285 provides that any person who steals anything an uses
violence to obtain or retain the thing stolen is guilty of robbery. Here, the actions of
accused were not in order to obtain or retain the coat, but rather were part of generally
belligerent behaviour which had no rational connection with the theft. Conviction for
simple theft substituted…”
3. The Connection Between The Theft And The Violence Must Not Be Too Remote
In Time Or Place In Relation To The Theft.
In the case of GATHURI NJUGUNA V. R. [1965] E.A. 583, the complainant had left his
house at 7.00 am and while returning at about 9.00pm the same day, saw the appellant
proceeding from the direction of his house carrying a bundle. On discovering that it was
his house that has been broken into, alerted his neighbours and they set out after the
accused that they found 500 yards away. The appellant resisted and hit the complainant
with a club before being overpowered. On appeal the court said:
“…We think that the essence of the offence of robbery is an openly committed theft from
or in the presence of someone or a theft where the offender is caught more or less in the
133
Criminal Law
act or immediately after the act. We do not think it extends to a case such as this where
the offence was committed clandestinely without discovery or chase until after the
offender had left the premises and had proceeded so far in his way as he had in this case
without being discovered to be a thief. A conviction for burglary and theft was
substituted…”
In the case of MKWE LAKIMOJA V. R. (1967) H.C.D. No. 372, Mkwe stole a tin of
millet from a pombe club. The owner returned and searched for the tin, but could not find
it. Shortly thereafter the club watchman found accused carrying the tin outside the club.
A struggle ensured in which the appellant assaulted the watchman before being
overpowered.
The use or threat of violence must not only be for the purpose of
 obtaining or
 retaining the thing stolen,
But must occur (i) at
(ii) Immediately before or
(iii) Immediately after the time of theft.
In this case the search intervened between the theft and assault imposed. The conviction
for robbery quashed conviction for stealing and assault imposed.
In MAGATI s/o MCHOYA V. R. (1968) H.C.D. No. 375, the accused was convicted of
robbery with violence. The village headman and others discovered his wife illegally
brewing Moshi. When they arrested her, the accused seized a bicycle and briefcase
belonging to the headman and pulled out a knife, saying that if the headman could take
his wife he would take his bicycle. When the wife was taken away, the accused took
away, the articles into his house. The headman later recovered them. On appeal:
“…Conviction quashed. “As to he detaining of the bicycle and the briefcase, the
appellant’s motives were to exert pressure to have his wife freed by detaining them
temporarily.” He did not intend to deprive the headman permanently of them, so there
could be neither theft nor robbery…”
134
Criminal Law
In SAYALE SELIANI V.R. (1968) H.C.D. No. 243, the three accused were convicted of
robbery. They were in the process of beating complainant when his watch fell or was torn
off his wrist, whereupon one of the accused pocketed it. On appeal:
“…Section 285 TPC “…” The purpose must be to steal something. Here the taking of the
watch was incidental to the assault. Convicted of causing actual bodily harm…”
The issue of an extent of violence used is immaterial; the fact that very little violence was
used should be a factor in mitigation of sentence and not a defense to this offence. Even if
little violence was used to overcome the complainant’s resistance to the theft that would
amount to robbery. However merely snatching away property from a person unaware and
running away with it does not amount to robbery.
On allegation that the accused threatened to use actual violence to any person or property,
the threat need not to have to be uttered. General conduct may constitute threat of
violence. It is equally immaterial that the accused did not take but was given the property
by the complainant, so long as it is proved that the complainant parted with his property
through apprehension of immediate injury to him or some other person or property.
Aggravated Robbery
According to section 286 TPC, robbery is aggravated if the offender:
 Is armed with any dangerous offensive weapon or instrument.
 Is in company with one or more person(s)
 Or at or immediately before or immediately after the time of stealing:
He wounds, beats, strikes or uses any other personal violence to any person.
Offensive weapon is either;
1) An article made or adopted for use or suitable for causing injury to the person
better known as an offensive weapon parses. E.g. revolves, Knuckledusters,
rifles, spear, bow and arrow, sword, matchet, club etc.
135
Criminal Law
2) An article intended by the person having it with him such use-better known as
“an offensive weapon sub medo. Offensive weapon sub medo are improvised
instruments for use against the person. A razor for instance, is primarily meant
for shaving but if brandished in a street brawl. it becomes an offensive
weapon sub medo. In some circumstances, a stone might become an offensive
weapon sub medo.
Demanding Property With Menaces

According to section 292TPC, a person is guilty of the offence who:
I) With intent to steal
II) Any valuable
III) Demands it
IV) From any person
V) With menaces of force.
The salient differences between demanding property by written threats and demanding
property with menaces are:
 The former offence requires writing, it is not so in the later.
 The former offence allows the defense of reasonable cause for the
demand. Whether there is reasonable and probable cause is a question of
fact.
 The former requires proof of intent to extort or gain anything, whilst the
latter requires proof of intent to steal any valuable thing.
 Demanding property with menace requires proof of menaces, which
include:
 Threats to injure a person.
 Threats to injure a property.
 Threats to disclose improper behavior.
VAZ V. R. (1961) E.A. 320, the appellant a poor man, discovered in the course of his
employment that there was an established practice authorized by his employers, removing
136
Criminal Law
tops of bales of cotton originating from a certain ginners and replacing them with tops
marked to indicate that they originated from another ginnery. He collected all the
evidence necessary to expose this practice. Having done so he demanded 20,000/= from
his employers through their agents for keeping silent and restoring evidence that he had
collected. He was charged with and convicted of demanding money with menaces with
intent to steal.
“…The menaces or threats need not be uttered explicitly; it is sufficient if the menace,
through veiled, is implicitly in the circumstances in which the money is demanded, so
that an ordinary reasonable man would read the menace into the demand. whilst the
menace must be calculated to (i.e. be of such a nature as to be likely to ) produced in the
person menaced considered as an ordinary reasonable man, some degree of fear and
alarm such as would unsettle his mind, it is not necessary to show that it did in fact
induce such fear or alarm in him. In the event of menace proving unsuccessful, the test is
whether, if it had been successful and the money been obtained in such a circumstances
that it could properly be said to have been stolen; with particular attention to the
questions whether it had been taken fraudulently and without claim of right…”
Honest claim of right is defective to a charge of demanding money with menaces with
intent to steal. In the case of R. V. BERNARD (1938) 2 K.B 264, the complainant a
married man agreed to pay his Hungarian mistress twenty pounds a month for one year.
He failed to maintain these payments and the woman threatened to expose him to his wife
and the public by means of an announcement in a newspaper unless he paid her forthwith
money for eight months. She stated in evidence that she had taken the advice of a
Hungarian Lawyer. In fact the woman has no legal claim to the money, she was charged
for demanding money with menaces.
“…The woman had a defense if she honestly thought that she had a claim, even though
she was wrong in so thinking…”
Burglary and House Breaking
137
Criminal Law
House Breaking
Breaking is defined under section 293 of the Penal Code, that is:
a) A person who breaks any part whether external or internal of a building or
opens by unlocking, puling, pushing, lifting, or any other means whatsoever
any door, window, shutter, cellar flap or other thing intended to cover or close
an opening in a building or an opening giving passage from one party of the
building to another is deemed to break the building.
b) A person obtains entrance into a building by means of any threat of artifice for
that purpose or by collusion with any person in the building, or who enters a
chimney or other aperture of the building permanently left open for any
necessary purpose, but not intended to be ordinarily used as means of
entrance, deemed to have broken and entered the building.
A person is deemed to enter a building as soon as any part of his body or any part of
any instrument used by him is within the building.
Thus to open a locked door with a key, or push it open or to pull or lift a latch of any
door or window and so open it, constitutes breaking of the building. Indeed if one
pushes open a door that is closed but not locked, he is said to break the building.
What Constitute House Breaking

In order to obtain a conviction, the prosecution must prove that:
 The accused broke the building, tent or vessel,
 Having so broken he entered there to,
 The building, tent or vessel is used as a human dwelling.
 He did so with intent to commit an offence.
That there was breaking:

It is necessary to prove that the door, window or other aperture was closed before the
breaking. In LENDELITO s/o LAIDOSOLI V. R. (1972) No. 169, the appellant was
138
Criminal Law
convicted of burglary, stealing and unlawful wounding c/ss. 294,265 and 228(1), Penal
Code and was sentenced to two years’ imprisonment, six months imprisonment and a fine
of Tshs. 200/= respectively. The facts are that PW3 was a tenant of the appellant and he
left without paying rent and rented another house. On the 10 th May, 1971 the appellant
asked for his rent. PW 3 did not pay and the appellant told him that he would see the
consequences in the evening. At about 10.30 that evening PW 3 had gone out and PW1
heard a bang on his door and saw people coming from his room; the appellant was
standing near the door and attacked PW 1 when the raised an alarm. He sustained a
lacerated wound on his head. On return PW 3 found two suitcases and bed sheets
missing.
“….With reference to the charge of burglary, PW 3 did not say that he left his door
closed when he went out nor did any of the witnesses’ see it closed. PW 1 came to the
conclusion that there was a breaking into the room in question because he heard a bang
on the door. This was not conclusive evidence of breaking for the purposes of the offence
charged….”
That the accused entered the building:

There must be evidence to prove that having broken the building, vessel or tent, the
accused entered the same.
In the case of SAID s/o ALLY V. R. (1973) H.C.D. No. 66, the appellant was charged
with burglary c/s 294(1) of the Penal Code but he was convicted of attempting to commit
the offence. The complainant was awakened by noises downstairs in the small hours of
the material night. As he climbed down the stairs he heard someone running away from
the house. On flashing torch he found that the door glass had been broken. He called in
the police and took photographs of finger impressions. The appellant was later arrested
on suspicion and according to the report submitted by the fingerprint expert, the
impression found on the piece of glass were identical with the appellant’s fingerprint. On
appeal the Judge said,
139
Criminal Law
“…I am in agreement with the trial court that the facts didn’t constitute the offence
charged as there had been entering. Having regard to the time the offence was committed
there was an irresistible conclusion that the appellant was attempting to break into the
house in order to commit a felony and I have no reason to differ from the finding of the
lower court that the appellant attempted to commit the offence of burglary…”
To constitute the offence of burglary c/s 294 (1) PC there must be entering. What then
constitute “entering”? A person is deemed to enter a building as soon as any part of his
body or part of instrument used by him is within the building. If for instance, the accused
forces open a window and then pushes his hand or a stick through the window into the
building, he is said to have entered the building because part of his body i.e. his hand or
the instrument held by him that is, the stick, is within the building. If he pushes the stick
into the building, it is immaterial that the whole of his body remained outside the
building. The least degree of entering with any part of the body or instrument used by
him will suffice.
In another case of PAUL V. R. (1971) H.C.D. No. 135, the appellant was charged with
two other men for burglary and stealing c/ss 294(1) and 265 of the Penal Code and was
convicted on once pair of the charges. In respect of the charge against the first accused
the magistrate held that fishing out clothes out of a broken window did not constitute
“entering”.
i) “It is pointed out for the benefit of the magistrate that breaking the
ii) Window during the might and pole-fishing the clothes through the broken
window constitute the offences of burglary and stealing. It is sufficient to
quote a passage from Arch bold, 35th edition, paragraph 1805. “There must
be an entering, as well as a breaking, to constitute burglary; although we have
seen that the entry need not be on the same night as the breaking….the least
degree of entry, however, with any part of the body, or with any instrument
held in the hand, is sufficient; as, for instance, after breaking the door or
140
Criminal Law
window, etc., to step over the threshold, to put a hand or a finger or a hook or
other in a window to draw a out goods. Appeal dismissed.
If a person enters a building through a chimney or other aperture of the building

permanently left open for any necessary purpose but not intended to be ordinarily use as a
means of entrance or he obtains entrance into the building by means of ant threat or
artifice used for that purpose or by collusion with any person in the building, he is
deemed to have broken and entered the building-S. 293 TPC.
In the case of PETER MUSA V. R. 1973 L.R.T. No. 68, the appellant was convicted for
entering and stealing. There was evidence that the appellant could only have entered
either by undoing the padlock on the door or by jumping over the wall into the
complainant’s room as there was evidence that the house had no ceiling board. It was
held that;
“…If the appellant employed the first method he “actually” broke into the room. If he
used the later method he “Constructively” broke into the room, and of course the fact
that he was already legally in another part of the house is immaterial…”
This case of Peter Mussa has realistically taken into account the prevailing conditions in
our society and hence, held that an opening between the top of wall and the roof was “by
actual necessary permanently left open”
That It Was Used As A Human Dwelling

The third element of the offence of house breaking is that the building, tent or vessel,
which the accused broke, was used as a human dwelling. Section 5 PC defines a
“dwelling house” to include any building or structure or part of building or structure
which is for the time being kept by the owner or occupier for the residence therein of
himself, his family or servants or any of them, and it is immaterial that it is from time to
time uninhabited. A building or structure adjacent to or occupied with a dwelling house is
deemed to be part of the dwelling house if there is communication between that building
141
Criminal Law
or structure and the dwelling house, either immediate or by means of a covered and
enclosed passage leading from the one to the another the important thing to remember is
that the building or structure should be used or kept for dwelling by the owner or
occupier or by his family or servants. If the building or structure has been abandoned as
result of the owner having shifted to some other places such building or structure will not
strictly speaking come within the definition of “dwelling house”.
That the breaking was with intent to commit an offence:

It is not enough to prove that the accused broke and entered a building, tent, or vessel
used as a human dwelling. The prosecution must go further and prove that the accused
did so with intent to commit an offence.
In the case of R. V. NTIBILANTI [1972] H.C.D. No. 106, the accused was medically
certified as having twelve years old was charged and convicted of house breaking under
section 294(1) TPC and given a conditional discharge. The charge didn’t specify the
offence that the accused intended to commit.
“…Time and time again this court has stressed that a charge of house breaking should
specify that felony that was intended. It is cardinal principle that a complaint should be
couched in with which sufficiently inform the accused of the nature of the offence with
which he stand charged…”
Proceedings declared a nullity but retrial not ordered conviction quashed and the order of
conditional discharge set aside.
Burglary
The offence of burglary is provided under section 294TPC. The only difference between
the offence of house breaking and that of burglary is that burglary refers to a breaking
and entering into a dwelling house at night with intent to commit an offence. In simple
142
Criminal Law
term burglary house breaking at night. Moreover, house breaking is punishable with
fourteen (14) years imprisonment whereas burglary is twenty years imprisonment.
What must be remembered with regard to a charge of burglary is that the charge must
allege that the offence was committed at night, and evidence must be adduced to prove
that the offence was in fact committed at night.
Night time is defined under section 5PC.

In R. V.DAMAS [1961] E.A, the respondent was convicted by the District Court on two
counts of house breaking and stealing respectively. On appeal the High Court quashed the
conviction of house breaking holding in effect that the offence of burglary and house
breaking under section 294 TPC whereas distinct offences, one being committed only at
night the other only during the day and once there was no evidence of the time of the day
or night where the premises were broken and entered was bad in law.
i) Under section 294 PC burglary is not completely different offence from but an
aggravated form of housebreaking which carries an enhances sentences if the
additional element, commission in the night is both charged in the count and
proved at the trial.
ii) If the additional element is either not charged or if so charged, is not proved,
the offence is nevertheless housebreaking, no matter what time it may be
committed. Conviction and Sentence restored.
Entering A Dwelling House With Intent To Commit An Offence

According to Section 295 TPC
 Entering must be through an opening normally for ingress.
 That entrance/opening should not be locked or closed.
The elements of this offence are similar to those of housebreaking except that it does not
include the element of breaking.
143
Criminal Law
If however, the accused has a free access to the building by the nature of his duties or by
virtue of his close relationship with the occupier, it is not easy to prove that he entered the
building with intent to commit an offence.
In the case of PASKALE STEPHENO V. R. (1968) H.C.D. No. 196, the accused, a
servant of the complainant, was convicted, interalia of entering a dwelling house with
intent to commit an offence namely stealing. On appeal:
“…Since the accused had free access to the house of his employer, it could not be
inferred from the theft of goods alone that the accused entered the house with intent to
commit a felony…”
The conviction for entering a dwelling house with intent to commit a felony was quashed,
and that of stealing was upheld.
Breaking Into A Building And Committing An Offence

In order to obtain conviction for this offence then according to section 296 TPC the
prosecution must be able to prove:
 That there was a breaking of building by the accused.
 That the building was s schoolhouse, garage, office, or counting house, shop stole
etc.
 That he entered the building and
 That he committed an offence there in.
In MASEMU BUTILI V. R. (1971) H.C.D. No. 81, the accused broke a garage door but
before he could enter the building he was frightened away. He was convicted under
section 296(1) TPC
To establish the offence under this section the prosecution must prove:
a) The commission of the felony therein it does not seem that a garage was
within the specified types of building.
b) A breaking and entering, and
144
Criminal Law
c) Into one of the building specified in the statute. Moreover there was neither an
entering of the building nor a commission of a felony therein.
That it is not enough to prove merely that the accuse broke and entered one of the
structures aforesaid. You must go further and prove that having broken and entered the
building; he actually committed a felony therein. If at the time of arrest the accused had
already broken and entered the building but had not yet committed any felony therein, he
may in a proper case be charged with breaking into building with intent to commit an
offence therein.
A mistake often by the prosecutors in respect of the offence of breaking into a building
and committing an offence therein is that they prefer two counts in respect of the same
offence. That is wrong.
Breaking Into A Building With Intent To Commit An Offence

The elements of this offence are the same as those breaking into a building and
committing an offence therein. This offence is provided under section 297 TPC.
In MUNICO V. R. (1972) H.C.D. No. 34, the accused was charged and convicted of
shop-breaking c/s 297 and c/s 265 T.P.C. On appeal:
“….Section 297 applies to a situation where there has been a breaking into one of the
specified structures with intent to commit a felony but the intended felony has not, in fact,
been committed. The should have been charged with the offence of breaking into a
building and committing a felony therein under section 296 TPC which section
comprises both the breaking with intent and the actual commission of the felony
intended.….”
Person Found Armed etc With Intent To Commit An Offence
145
Criminal Law
The difficult in proving any of these offences lies in proving the intent to commit a
particular offence. This of course, will depend on the circumstances in which the accused
was found;
 That the accused was a strange to the place.
 That the instrumental or weapon was not such that a person could carry if he was
going about a lawful business.
 That he was found squatting near the premises.
 That he attempted to escape when discovered.
All these may show that the accused was there for some unlawful purpose, and, in a
proper case, that he was there with intent to commit an offence.
For the prosecutor to prove that the accused had the intention of breaking into or entering
some particular building under section 298 TPC proof of a general intent to break into a
house is apparently insufficient.
In R. V. BAILEY (1853) 6 COX.CC 241, It was held that “unlawful possession of

implements of house breaking is sufficiently dangerous to society, although it may be
unaccompanied with any immediate act of committing a felony.
Criminal Trespass
For the purpose of conviction according to section 299 TPC the prosecution must prove:
1) That the property in question belonged to another.
2) That the accused’s entry in or upon such a property was unlawful in the sense that
it was without the consent of the owner or without some other lawful excuse.
3) That the intention of the accused in doing so was to commit an offence or to
intimidate, insult or annoy the person in possession of such a property.
If it is shown that the accused reasonably believed the property to be his own, that will be
a good defense. Equally a charge of criminal trespass will not lie, where the accused
enters the premises or remains there with the consent of the owner, or where he does so
upon other lawful authorization.
146
Criminal Law
In the case of SAID JUMA V. R. (1968) H.C.D. No. 158, the accused was convicted of
criminal trespass on the land of complainant, but the conviction was quashed on appeal to
the District Court on the ground that the land did not belong to either party.
“…When in a case of criminal trespass, dispute arises as to the ownership of the land,
the court should not proceed with the criminal charge and should advice the complainant
to bring a civil action to determine the question of ownership…”
In another case of PAUL KAJUNA V. R. (1967) H.C.D. No. 318, the accused was
convicted of criminal trespass despite the defense that he thought the land belonged to
him. The land upon which the accused trespassed had been the subject of previous
litigation, in which the accused had been claimed ownership of the land and lost.
“…In view of earlier adjudication of ownership, it can’t be argued by accused that in

good faith believed the land to his…”
Malicious Damage to Property

The word malice in common acceptance means ill will against a person, but in its legal
sense, it means a wrongful act done intentionally and without just cause or excuse.
According to section 326 TPC a man act maliciously when he willful and without lawful
excuse does that act which he knows will injure another person or his property. The term
“maliciously” denotes wicked, perverse and incorrigible disposition. It means and
implies an intention to do an act, which is wrongful to the detriment of another.
When an assault takes place which damage property worn by or in possession of the
complainant, such damage is incidental to the assault rather than a separate offence.
See the case of LEO PIGANGOMA V. R. (1967) H.C.D. No. 131, Plaintiff borrowed
Tshs. 200/- in October, 1964, putting up a shamba leld under Nyarubanja tenure as
security. Repayment was originally due in October, 1965, which due date was extended
by mutual consent to March, 1966. Plaintiff had not sought to prevent him from living on
147
Criminal Law
or using the shamba. Defendant refused the tendered repayment, preferring title to the
shamba (the redemption period having expired), whereupon plaintiff filed this action
seeking an order requiring defendant to accept repayment of the loan.
“….The district magistrate found that defendant was trying by devious means to obtain
the piece of land. The judgment of the District Court was upheld and defendant was
ordered to accept repayment of the Tshs. 200/- thus extinguishing any and all claim he
had to the shamba….”
Arson
According to section 319 TPC, arson is the willful setting fire to any building, structure
or any vessel whatever, either complete or not or to any stack of cultivated vegetable fuel,
or to a mine, or the working, fitting or appliances of a mine.
to constitute arson:
 The accused set fire to any of the thing aforesaid.
 He did so willfully and unlawfully
That He Did So Willfully

It must be shown that the act was willful. It must be shown that it was by the conscious
act of the accused. Burning a house through negligence or accident is not arson.
In the case of SIXTUS AMIN V. R. (1967) H.C.D. No. 6, the accused set fire and burnt
the complainant’s house. The court held that where the evidence establish an accused
careless or negligent conduct but doesn’t establish willful and unlawful behaviour as
here arson conviction can’t stand.
That He Did So Unlawfully

It must be shown that he had no lawful excuse for doing so. In other words, it must be
shown that he acted with an evil mind or maliciously. But where a person sets fire in his
own house without endangering life or adjacent buildings such act is not parse unlawful.
But there may be circumstances in which a person who sets fire to his own house could
be guilty of arson. It all depends on the circumstances of the case.
148
Criminal Law
In MWAKARIFU V. R. (1967) H.C.D. No. 185, the accused set fire to his house in order
to end relationship with his wife. The court held that it would have been unlawfully for
him to set fire to his own property if a person was in the premises or other buildings
belonging to other people were endangered.
Setting Fire To Crops And Growing Plants

The main elements of this offence according to section 321 TPC are:
 That the act was both willful and unlawfully.
 That the crops, grass, tress, etc was under cultivation or was cultivated.
 Mere accident or negligence will not suffice.
Injuring Animals
According to section 325 TPC, the act of the accused must be willful and unlawful. The
damage must not be incidental to another offence. It is important also to note what
animals are capable of being stolen under section 257TPC.
False Pretences
False pretence is defined under section 301 TPC. The law concerning to false pretences
prior to 1980 did not apply to future representations. According to section 301 prior to
1980 if a person made a representation either by words, writing or conduct of a matter of
fact either past or present which in fact is false, and which the person making it knows it
to be false or does not believe it to be true is a false pretence.
Since the definition under section 301 PC didn’t include future instances, the East
African Courts were reluctant to apply future representation to constitute the offence of
false pretences.
In the case of ESMAIL V. R. [1965] EA 1, the court of Appeal ventured to say that if a
man gives a check on May 1 st post date to June 1st there would be necessarily be a false
representation on May 1st that the drawer on that date had power and authority to draw
the sum endorsed on the check. However the appellant was convicted on the ground that
149
Criminal Law
the check he handled over was due to be paid the next day morning, this he made to the
existing fact, because he represented it after banking hours and he knew perfectly well
that the representation was false.
the case which the courts in East Africa used to reach such decision was that of R. V.
BARNAD (1837) C & P 784, where it was said that: in the case of post dated check
there is no representation that the drawer then and there had available funds, but the
drawer does represent that he has power and authority to draw on the bank concerned.
In the case of BURROWS (1869) 20 LT 499, it was held that where a man obtained
goods by falsely pretending that he intended to pay for them that evening, he is not guilty
of an offence. So this being the trend, the courts in Tanzania found it difficult to handle
the mushrooming cases involving checks of future promises.
In 1980 by virtue of Act No. 14/80 the words past or present were removed from the
definition. The relevant section now reads:
Any representation made by words, writing or conduct of a matter of fact or of intention

which representation is false and the person making it knows to be false or does not
believe it to be true is false pretence.
From the above definition, false pretence may be made by words, writing or conduct. The
words, conduct or writing must be capable of conveying the false meaning and must have
been intended to convey such a meaning . E.g. where A tells B that he has been sent by C
to collect 10.000/= from B while A knows what he is saying is false, this is false
pretence.
In the case of JUMANNE RAMADHANI V. R. [1992] T.L.R. 40, the accused was
collecting money for Mwenge festivals from Asians. He pretended that he was sent by
150
Criminal Law
the government while he knew perfectly well to be false he was convicted of false
pretence.
The pretence must relate to matter of fact and not to a statement of opinion. So if a seller
of say soft drinks in untrue praises of MIRINDA say “It is as good as a FANTA” that is
an opinion and not a fact.
Proving false pretence
The prosecution must be able to establish that:
1) There was representation by words, writing or conduct by the accused person.
2) Such representation was about a matter of fact or intention.
3) The accused person or the person who made such a representation knew that it
was false or did not believe it to be true.
Promise as to performance of future service must be coupled with present fact in order to
amount to false pretences. It will be noted that a phrase “…a matter of fact…” In section
301 for the purpose of obtaining by false pretences must be PRESENT and PAST but
not FUTURE. Thus if representation refers to a future it must be coupled with a present
fact which is false in order to be false pretence.
Example: a person who is childless asks another person to give him Tshs. 100.000 on the
pretax that he will ask his twelve years old daughter to marry that other person’s son.
When she attains eighteen years.
Explanation: this will amount to false pretence because the false statement (that he has a
daughter) will negative the future (promise of marriage).
Obtaining Goods by False Pretences

This offence is established under section 302 of the Penal Code. This section should be
read together with section 301 of the Penal Code. To constitute this offence the accused
must:
1) Make a false pretence.
2) With intent to defraud.
151
Criminal Law
3) Obtained from that other person something capable of being stolen.

4) Induces that other person to deliver to another person something capable of
being stolen.
In YUSUFU OMARI & ANOTHER V. R. [1964] E.A. 162, the court stated that the
offence under section 302 is committed;
1) By a person who by false pretence and with intent to defraud, obtains from any
other person anything capable of being stolen.
2) By a person who in similar circumstances induces any other person to deliver to
any other person any such thing.
Obtaining by false pretences to some extent has been confused with stealing: In
MANSUKU MOHAN MANJI V. R. (1968) H.C.D. No. 51, the accused altered a check
so that it read 400/=. He was convicted of stealing government property. The court held
that “this is a case of obtaining money by false pretences, not of theft”
For The Offence To Be Committed The Possession Must Not Be Custodial, Should
Be Ownership or Possession With Authority To Pass Ownership or Title
In TOM ABRAHAM SALAMA MADHARA V. R. (1968) H.C.D. No. 75, the accused
Area Secretary went to one SHABANI, a Divisional Executive Officer, who was storing
at his house two elephant tusks which had been shot by a Game Warden in the course of
his duties. Accused, who was an Area Secretary, brought two smaller tusks to
SHABANI’s house and told him that he had been authorized by the Game Officer to
exchange them for the larger ones. The exchange was effected.
“…The court held that the possession of the tusks by SHABANI was merely custodial,
therefore, the taking of them by accused constituted theft and not obtaining by false
pretences…”
152
Criminal Law
In order for the offence to be committed, the complainant is duty bound to show
that he was made to part with the goods as a result of the accused’s false pretence
that operated on him at the time.
In AUGUSTINO BROWN CHANAFI V. R. (1968) H.C.D. No. 73, the accused was
convicted of forgery and obtaining from the complainant upon a note which he
represented to be a valid interim insurance cover note, evidently with the intention of
using part of the money to obtain a genuine insurance cover for the complainant’s
vehicle.
“…It was held that evidence supports a finding of “intent to defraud.”…
In the case of HUSSEIN T. KABEKE AND ANOTHER V. R. [1980] T.L.R. 267, the
court of Appeal held that in making payment by check the necessary ingredient of false
pretence under section 302 is established if at the time of issuing a check on reasonable
grounds of business the check reaches his bank of payment.
For the offence to be committed the complainant must intend to part with
ownership of the thing or else it will be mere theft. Here voluntary transfer of
possession from one person to another is necessary.
The word “deliver” as it appears under section 302 refers voluntary transfer of
possession from one person to another. That means that the aspects of voluntariness on
the part of the complainant have a role to play in order to effect the offence of obtaining
goods by false pretence.
In the case of SAFIAN SHABANI V. R. (1968) H.C.D. No. 281, the accused was
convicted of stealing postal matters. The facts were that the accused obtained 30/= by
presenting a stolen post office saving book.
153
Criminal Law
“…The High Court held that the money was not stolen but was obtained by false
pretences since the post master voluntarily paid the money thinking that the accused was
the owner of the saving book…”
In PAULO KULOLA V. R. (1968) H.C.D. No. 332, Accused met two persons in a bus
station, and convinced them that they should hide the money they were carrying, last it be
taken by customs officials. He persuaded them to give him Tshs. 20/- and 50/-
respectively, whereupon he purchased envelopes in which he suggested he would put the
money. He instead put paper in the envelopes and proceeded to show them how to hide
the envelopes on their persons. Accused was convicted of obtaining money by false
pretences.
“…The High Court held that since the victims at no time intended to part with more than
the temporary possession of their money, the offence committed was not obtaining money
by false pretences, but larceny by trick…”
In ISSA NTAKA V. R. (1968) H.C.D. No. 374, it was stated that the most intelligent
distinction between larceny by trick and obtaining by false pretences is that in the former
the person parting with the property intends to part with the possession only, not with the
property, while in the later, he intended to part with both.
Obtaining Credit by False Pretences

According to section 305 TPC, the prosecution must prove:
1) The incurring of date or liability.
2) By false pretences.
3) An intent to defraud.
E.g. when a man goes to a pub and orders a drink and then fails to pay the offence
committed is obtaining credit by false pretences.
154
Criminal Law
In T.C.HARBY V. (1968) H.C.D. No. 156, the accused was convicted on four (4) counts
of obtaining credit by false pretences c/s 305(1) T.P.C. 1) appellant had his private
automobile repaired on two occasions. 3) Had chartered an airplane on another occasion.
4) Had purchased to bottles of perfumes. In all cases signing invoices made out to his
employer-the New Arusha Hotel. He had no authority from the hotel.
In order to obtain a conviction under section 305(1), three elements of the offence must
be proved:
1) The incurring of a debt or liability.
2) By false pretences.
3) An Intent to defraud.
Cheating
This offence is created under section 304T PC. The offence of cheating is committed
where:
1) Any person who by means of any fraudulent trick or device obtains from any
other person anything capable of being stolen.
2) Any person by means of any fraudulent trick or device induces any other person
to deliver to any person anything capable of being stolen.
3) Any person by means of any fraudulent trick or device induces any person to pay
or deliver to any person anything capable of being stolen or to pay or deliver to
any person any money or goods or any greater sum of money or greater quantity
of goods than he would have paid or delivered but for such trick or device.
To establish this offence the prosecution must prove:

 That the accused used a fraudulent trick or device.
 That as a result of that trick or device he obtained something capable of being
stolen from someone.
There are however some difficult in drawing a distinction between this offence of
cheating and other offences like obtaining goods by false pretences. Cheating is
perpetrated by trick or device while obtaining goods by false pretences depends on false
155
Criminal Law
statement of existing fact. It is apparent that the words, which appear in the offence of
cheating which in fact differentiate this offence from obtaining goods by false pretences,
are fraudulent trick or device. In false pretence, inducement is perpetrated by the strength
of false representation by words, writing or conduct. In cheating, inducement is
perpetrated by a trick or device.
All the same, case law has shown that it is not easy to tell the difference between the
offences of cheating and obtaining goods by false pretences.
In the case of PAULO MWANJITI V. R. (1967) H.C.D. No. 187, the accused was
convicted on two counts of robbery posing as a police officer, he relieved two persons of
Tshs. 304/10 after “arresting” them. He took the money as “bail” and told them to
appear at the local police station the next day.
“…Conviction quashed because robbery as defined in the Penal Code section 285
involves stealing plus the use of threats or violence by the accused. Here the evidence
disclosed not use or threat of violence, so the conviction of robbery could not be
maintained. The evidence was, however, sufficient to support a charge of cheating
contrary to section 304 of the Penal Code…”
This case shows how this offence is delicate. Here the accused is posed as a police officer
and induced the complainants to give him the money a thing which is capable of being
stolen.
In another case of ALI SIMBA V. R. (1968) H.C.D. No. 240, the accused was convicted
of cheating. He had persuaded complainant to write out a receipt in a book produced by
accused, gave a copy to complainant, and then ran away with the book containing the
duplicate.
“…The accused may have enabled himself to put complainant in some difficulty, at a
later date, by producing the receipt showing a payment by him to complainant. However,
156
Criminal Law
the receipt book was his own, and there was no showing that by his trick he had obtained
anything capable of being stolen…”
In MOHAMED SALUM MZALAMO V. R. (1969) H.C.D. No. 127, the accused sold a
tin of sand to the complainant pretending to be sugar, a layer of sugar having been spread
over the sand inside.
“…The facts disclosed the offence of cheating…”
In another case of JOHN JOSEPH V. R. (1969) No. 171, the court was confronted with
problem of putting a demarcation line between obtaining by false pretences and cheating.
In this case the appellant had sealed a tin of water on top of it spread some groundnuts
oil. He convinced the complainant it was groundnuts oil and that he was in a problem. In
fact he demanded Tshs. 30 whereas a tin of groundnuts oil was Tshs. 60. He was arrested
by police detectives who have been watching the game. He was convicted of cheating.
On appeal Platt. J. (as then he was) said the following:
“…In the instance case the appellant said his tin contained groundnuts oil. It appeared
from the facts that some groundnuts oil was on the top of the tin that was stated to be the
content was true. While the manufacture of the tin with water in it might be seen as a
trick or device, never the less it can hardly be doubted that it was the appellant’s
statement that was the main deception, no doubt in deed to some extent by the stare of the
tin. Had the appellant merely produced the tin, that would not have been sufficient to
deceive the complainant…”
The court was inclined to the view that where money is obtained on the strength of
statement as to the contents or quality of some objects, it is the false statement
concerning the content of the thing is immaterial. For this reason, the court preferred to
base the appellant’s conviction on section 302 PC.
157
Criminal Law
The judge in reaching his decision added: “But in saying so I accept that it might be that
either section can be employed according to circumstances of the particular case. Even
in the present case the distinction is narrow indeed”.
Another case is BLASIUS V. R. [1973] E.A. 510 or 1973 L.R.T. No. 85; in this case the
appellant was convicted of cheating. It was alleged that he had fish to sell. On receiving
943/= he entered a building and disappeared. On appeal:
The charge should have been one of obtaining money by false pretences. The High Court
however noted that there were no material differences between obtaining money by false
pretences and cheating. MFALILA, A.g. J. (As then was)
“…The appellant, if he did obtained this money by falsely pretending that he had fish to
sell. In saying so, he did not use any trick strategies or device. He simply made a false
statement of an existing fact. The charge under section 304 PC in these circumstances
was therefore misconceive…”
Forgery
Forgery is the making of a false document with intent to defraud or deceive-section 333
TPC. A person is guilt of the offence if he makes a false instrument, and for this purpose
instrument is defined as;
1) Any document, whether of formal or informal character.
2) Any stamp used or sold by the post office.
3) Any disc, tape, sound track or other device on or in which information is recorded
or stated by mechanical, electrical or other means.
An instrument will normally be written on any material and the writings may consist in
letter, figures, or any other symbols used for conveying information.
The essence of forgery is the making of a false document intending that it be used to
induce a reasonable person to accept and act upon the message containing in it as if it
were contained in a genuine document.
158
Criminal Law
A document usually contains messages of two distinct kinds.

1) A message about the document itself=such as the message that the document is a
check or a bill.
2) A message to be found in the words of the document that is to be accepted and
acted upon=such as the message that a banker is to pay a specified sum or that
property is to be distributed in a particular way.
According to section 334 TPC, the term document does not include a trademark or any
sign used in connection with articles of commerce, though they may be written or printed.
In the case of SMITH V. R. (1858) Dear & B 566D where Smith sold baking powder in
wrappers substantially resembled the wrappers of one George Borowick, a well- known
manufacturer of baking powder. It was held that the wrappers were not forgeries since
they were not document. The wrappers conveyed only one message that they were
George Borowick wrappers and conveyed no further message concerning the genuine of
the document. There was no message that the wrappers were to be accepted and acted
upon.
To constitute an instrument for the purpose of forgery the document must do more than
merely conveying information. It must be of such a nature that the information contained
in it as a document is intended to be acted upon and thereby affected the rights or
interests of some person(s).
A document will be considered forged if (Section 335 PC)

o It purports to have been made in the form in which it is made by a person who in
fact did not make it in that form.
o It purports to have been made in the form in which it is made in the authority of a
person who did not in fact authorize its making in that form.
o It purports to have been made in terms in which it is made by a person who did
not in fact made it in those terms.
159
Criminal Law
o It purports to have made on the authority of a person who didn’t in fact authorize
its making in those terms.
o It purports to have been altered in any respect by a person who didn’t in fact alter
it in that respect.
o It purports to have been altered on the authority of a person who didn’t in fact
authorize the alteration in that respect.
o It purports to have been made or altered on a date on which or at a place at which
or otherwise in circumstances in which it was not in fact made or altered.
o It purports to have been made or altered by an existing person but he did not in
fact exist.
False
The document must not only tell a lie, it must also tell a lie about itself. Telling a lie
doesn’t become a forgery because it is reduced into writing, it is a document, which must
be false and mere the information. In its ordinary application the distinction is easy
enough to grasp. If an applicant for job falsely states his qualifications the letter is not
forgery but if he writes a reference which purports to come from his employer the
reference is forgery.
In the case of HOPKINS & COLLINS (1957) 41 CR. APP. R. 231, Hopkins was a
secretary and Collins a treasure of a football supporters club, received monies raised by
member who made disbursement on behalf of the club. Over a period of time:
i) Entered in the books amounts less than they were paid.
ii) Entered amount in excess of what was paid out.
iii) Altered certain entries.
“…It is clear that the accounts were in accurate, but keep in accurate account is not
forgery. To be false they must tell a lie about themselves. As far as (i) and (ii) are
concerned, the accounts merely told a lie by purporting to be accurate accounts of
Hopkins and Collins while they were inaccurate account…”
160
Criminal Law
As for alterations, a document is not false merely because it has been altered, the
alteration is forgery only if it purports to be made or authorized by one who made or
authorized it. This is so long as the alterations were made or authorized by Hopkins and
Collins they were forgery. Suppose however that only Hopkins, the secretary had been
acting dishonestly and suppose further that Collins, the treasure authorized to keep the
accounts, if Hopkins without Collins’ authority altered entries so that the alteration
appeared to have been made or authorized by Collins, the account would by forgery.
In the case of GEORGE WALTER AND OTHERS V. R. [1980] T.L.R. 313, the first and
second accuseds were both employed by Oyster Bay Hotel, the former as a storekeeper
and the latter as the cook. The third accused was a fishmonger. Who used to supply the
hotel with fish. On the 18th December 1976, General Manager, whilst looking out of a
window of his room in the hotel, noticed that the accused were taking a ling time in
weighing a basket of lobsters brought by the third accused. The weighing was taking
place outside the store, which was visible from his point of observation. He went to the
spot to investigate and found that the weighing of the lobsters shown on the scale was
eight and a half kilos, whereas a receipt voucher, so termed by the witness written and
signed by the first accused and countersigned by the second accused gave the weight of
the lobsters as twenty five kilos. The lobster were weighed only eight and a half kilos. By
the time the lobsters were weighed again, the third accused had already taken the receipt
voucher to the cashier and was told to come for money on the morrow.
The magistrate convicted the first and second accused of the first count and acquitted
them of the second. The third accused was convicted of the second count and acquitted of
the first count.
“………First count was forgery, Second count was false pretences…..”
The issue raised on appeal was whether the making or signing of the false voucher
constituted forgery?
“…Forgery is the false making of an instrument purporting to be that which is not, it is
not the making of an instrument which purports to be what it really is, but which contains
false statement. Telling s lie does not become forgery, because it is reduced into writing.
161
Criminal Law
A false document will only constitute forgery unless it tells a lie about itself. The voucher
although containing a false statement, that the lobsters weighed 25kg. When in fact they
weighed only 18 kg; the making of the voucher doesn’t constitute forgery…”
In ZAKAYO PWERE V. R. [1981] T.L.R. 182, the appellant was working for the Mbeya
Co-operative Union and was assigned the duties of accountant to the Distribution
Department of that Union. When the transporters carried good for Union his duty was to
process payment to such transporters. In this connection he would prepare a payment
voucher in the name of the particular transporters which voucher must be supported by
such document as an invoice and goods received note. In doing this job the appellant was
assisted by one MICHAEL MAJALIWA (PW8) and accountant clerk who worked
directly under him. After the payment voucher was prepared, the appellant submitted it
for authorization to the Distribution Manager one YUSUF LASENGA. After
authorization the appellant makes out checks payable to the particular transporters.
Signatories of the checks were Chief Accountant, the General Manager and the Regional
Co-operative Officer. The check after signed is returned to the appellant who hands it to
the particular transporter.
During December 1973 both PW8 and PW9 were away on leave and so the appellant
performed their duties as well as that of his own. However when PW8 and PW9 resumed
work in January 1974 the appellant declined to hand over to them their respective duties.
He locked up the books in his drawers thus making it impossible, for instance, for PW8 to
prepare vouchers. The drawers were broken and a day or two later the appellant
disappeared from his office and never come back.
The investigation revealed that six checks of varying amounts were issued in favour of
transporters by the name of A.A.ALLY. The seventh check was drawn in favour of
another transporters one H.N.SHAH but endorsed in favour of A.A.ALLY. H. N.
SHAH denied to have endorsed the check in favour of the said A.A.ALLY or to have
received the check at all.
162
Criminal Law
The union had dully paid all the seven checks amounting to 25, 907/= to A.A.ALLY but
no one, even the appellant knew who this A.A.ALLY was. Some of the checks were
written by the appellant and some by DAMAS who was employed temporarily to assist
the appellant when PW8 and PW9 were away.
Police searched the bank and found a bank account belonging to one ABDU ALLY was
opened on 26.10.73. The account holder has two addresses: P.o. Box 154, Mbeya and P.
o. Box 243 Musoma. All the checks mentioned above were deposited in this account
except one for Tshs. 2,955/= which was made payable to the distribution department
because the department took it in exchange for hand cash. There were also withdraws
from this account on drivers date. The police went to search the appellant’s house. The
appellant was absent according to his wife; he was on safari to Musoma.
In the course of the search, the police came to locked cupboard and the wife said that she
didn’t have the key to it. The police decided to force it open. In it they found among other
things, a bank pass book in the name of ABDUL ANTHONY ALLY of box 254 Mbeya
and some money to the tune of 800/=. The entries and withdraws in the passbook
correspond with those found in the account of ABDUL ANTHONY ALLY at the bank. In
December 1973, the appellant bought a motorcycle for Tshs. 7,007/50 and paid off by
three installments only in a matter of just one week, telling the dealer that he got a loan
from the union (His gross salary was 840/- p.m.)
Two of these installments corresponds the withdrawals as shown in the bank account and
the bank passbook of A.A.ALLY. Thus on 11.12.73 both the account and bank passbook
show a withdrawal of Tshs. 1000/= as initial deposits for his motorcycle. On 17.12.73
there was a withdrawal of Tshs. 4,000/= while the appellant on the same day paid 3,400/=
as the second installment for the motorcycle. The final installment made on 18.12. 73 for
Tshs. 2,070/= and this was the money from the distribution department for Tshs. 2,955/=
on 17.12.734. On appeal:
163
Criminal Law
“…Once it is established that the passbook was found in the appellant’s possession, it
follows that it was the appellant who was operating the bank account in the name of
A.A.ALLY using the passbook…”
That is the only reasonable conclusion to be drawn because otherwise it is not apparent
for what purpose he was keeping that book. Indeed this conclusion is supported by the
fact that withdrawals on 11.12.73 and 17.1.2.73 as shown in the passbook corresponds
with the date on which the appellant paid installments for the purchase of his motorcycle.
“…Once it is established that the appellant was operating the bank account in the name
of A.A.ALLY it matters not whether he was using his own hand or some one else’s hand
to do the writing…”
Since the appellant cashed or deposited the checks into the account (A.A.ALLY)
operated by himself then he must know those checks and the relevant payment vouchers
were processed until the check eventually reached him. He was himself one of the
persons concerned with the processing of payments in the distribution department, and in
such a circumstances it is, in my opinion, impossible to see how the checks could find
their way into his possession without himself knowing how they were processed.
“…The writing on the payment vouchers and the checks relating to a fictitious were
forgeries. The act of taking and receiving monies under the fictitious name amounted to
theft. To constitute forgery the hand of Jacob must purport to be the hand of Essau…”
Document
For the purpose of the law of forgery, a document is a writing in any form, or any
material, which communicates to some person (s) a human statement whether of fact or
fiction.-S. 334 TPC
In the case of WACHIRA V. R. [1957] E.A. 808, the accused in order to make it appear
that he had come by a bicycle lawfully, altered a cash sale receipt from a cycle mart. He
164
Criminal Law
erased a pencil entry on the receipt referring to cycle bell and wrote in ink a non-existent
sale of the bicycle in its place.
The cash receipt was held to be a false document.
Where a man authorized to fill in a blank check for e certain amount intentionally fills in
an amount in excess of that amount authorized, he makes a false document.
similarly, where a person puts a false date for execution of a document, and the date is
material, he ,makes a false document.
In the case of NAURANG SINGH S/O HUKAM SINGH V. R [1957] E.A. 443, the
appellant with intent to defraud forged a judicial document. The written statement of
Defense (WSD) was supposed to be filled on 22nd march 1957 or it would be out of time.
The WSD was not filed on March 22 but the appellant took it to the general office of the
court early on the morning of 23rd March and then in the absence of the clerks stamped
the document 22nd March 1957 with the official stamp of the court and left the document
lying on the table of the court clerk. He later informed the advocate of the plaintiff that
the WSD had been filed on 22nd March.
“…The application of the official date stamp to a WSD is an alteration which had if,
been authorized would have the effect of indicating that the WSD had been dully
delivered at the court to a person authorized to accept it on the date shown by the stamp.
Therefore the document with the official stamp upon it was a false document…”
But in the case of an illiterate, who is unable to write, he can’t be said to sign a document
merely because he impresses his thumbprint thereon. It is necessary to show that such
impression was intended to affect or signify the authenticity of the document.
In the case of MAGAZI V. R. (1971) H.C.D. No. 399, the appellant was a revenue
collector employed by a District Council. One of his duties was to receive local rates. He
was issued with receipt books, all for 1969 local rate. Each receipt had a space for
inserting the receipt numbers on which local rate for the previous two years had been
paid. He collected sums from taxpayers for both 1968 and 1969. He issued receipts
165
Criminal Law
inserting a receipt number in respect of 1969. He also inserted on the receipts, a receipt
number for 1968 which was intended to give the impression to the authorities that the tax
for 1968 had been collected and handed in some time before and receipts had been
issued. The receipt numbers for 1968 were false in that the receipts corresponding to
those numbers had been issued to persons other that the complainants. He pocketed the
money.
“…Conviction of forgery could not stand except that of fraudulently false accounting…”
Writing is not forgery where it merely contains statements, which are false, but only
when it falsely purports to be itself what it is not. In RAMADHANI ATHUMANI V. R
(1968) H.C.D. No. 110, where a village executive officer retained a receipt book
unlawfully and used to collect the money and pocketed.
“…That the receipt, which he issued, were unequivocally, what the purported to be,
therefore they were not false document…”
In EDWARD MPOZI V. R. (1968) H.C.D. No. 438, the accused was convicted of
forgery as a clerk with the East African Posts and Telecommunications Administration
in Arusha. He failed properly account for a number of telegrams. In some cases, he had
altered duplicate receipts, so that they showed a lesser charge than that shown in the
original; in others, he had made false entries in summary sheets to indicate that he had
received less money than he had. On appeal:
1) Merely to tell a lie in writing is not forgery. The writing must tell a lie about
itself, must purports to be something which it is not.”
2) The alteration of duplicate receipts was forgery, for the duplicates receipts
purported to show that a different transaction had taken place.
3) However, the making of false entries in the summary sheets, purporting to show
that accused had received less money than he had actually received, was not
166
Criminal Law
forgery as defined in section 333 of the Penal Code, but fraudulent false
accounting contrary to section 317.
CASES ON CRIMINAL LAW

INTRODUCTION
Knuller L.T.D. V. DPP [1973] AC 435
Shaw V. DPP [1962] AC 220
Gwao Bin Kilimo V. Isunda Bin Ifuti 1 T.L.R. (R) 403
GENARAL PRINCIPLES OF CRIMINAL RESPONSIBILITY

VOLUNTARINESS
Bratty V. AG For N. Ireland [1963] AC 286
Hill V. Baxter [1958] 1 All RR 193
R. V. Charlson [1955] 1W.L.R. 317
Queen V. Instan (1893) 1 QB 450
INTENTION
Anthony Mhikwa V. R [1968] HCD No. 460
Brazila V. R [1968] HCD No. 309
Golden V. R [1972] No. 36
D. M. Patel V. R [1969] HCD No. 60
Agnes Doris Liundi V. R. [1980] T.L.R. 46
NEGLIGENCE
R. V. Chepe Kalangali (1973) LRT No. 77
MENS REA
Sheraz V. De Raitzen [1895] 1 QB 918
Lim Chin Aik V. R. [1963] A.C. 160
167
Criminal Law
MOTIVE
Salau Dean V. R [1966] EA 272
R. V. Windle [195]) 2 KB 526
Queen V. Senior [1899] 1 Q.B. 283
VICARIOUS LIABILITY
The Manager, Buthan Saw Mills V. R (1968) HCD No. 395
Hamad Abdallah V. R [1964] E.A 270
STRICTLY LIABILITY
Joseph Harkworth V. R (1970) HCD No. 271
CORPORATE LIABILITY
Smithfield Butchery LTD V. R. (1946) 2 K.R.L. 81
Noore V. I. Brester LTD (1944) 2 KB 15
GENERAL RULES OF CRIMINAL RESPONSIBILITY

IGNORANCE OF LAW
Maulid V. R [1971] HC D No. 346
R V. Bailey 1800 R & R 1
Musa & others V. R. [1970] E.A. 42
BONA FIDE CLAIM OF RIGHT

Yusuph Hussein V. R. [1969] H.C.D. No. 36
Mohamed Hassan V. R [1969] HCD No. 71
Lenderito Laidosoli V. R [1972] HCD NO. 169
Salim Ibrahim V. R [1971] HCD No. 481
Oyat V. R. [1967] E.A. 827
Salim Mbegu V. R. [1981] T.L.R. 38
MISTAKE OF FACT
168
Criminal Law
R. V. Selesman Hassan [1969] H.C.D. No. 250

R. V. Sultan Maginga [1969] HCD No. 33
R. V. Kajuna (1945) 12 E.A.C.A. 104
Mchelengwa Njungi Mayala V. R. [1968] H.C.D. No. 370
INSANITY
R. V. M’naghten (1843) 10 Col. And F. 200 (T.A.C.)
R. V. Thomson Msumali [1969] H.C.D. No. 26
Hilda Abel V. R [1993] TLR 246
R. V. S. Nyinge Siwatu [1959] E.AC.A 974.
R. V. S. Saidi Mwamwindi [1972] HCD No. 212
R. V. S. Wingle [1952] 2 Q.B. 826
R. V. S. Kemp [1957] 1 Q.B. 299
Muswi Musule V. R. [1956] 23 E.A.C.A. 622
R. V. Magata Kachahakana [1957]E.A. 330
R. V. Kibiegon Arap Bargutwa [1939] 6 E.A.C.A. 142
Agens . Doris Liundi V. R. [1980] T.L.R. 479
INTOXICATION
D.P.P. Beard [1920] A.C. 479
R. V. Rotief [1941] E.A.C.A. 137
Kinuthia Kamau V. R. [1950] 17 E.A.C.A. 137
R. V. Nyode Wopera [1948] 15 E.A.C.A. 145
R. V. Michael Chibinga’at [1983] T.L.R. 441
R. V. Stanslaus Saron Meresi [1969] HCD No. 32
Mahokoya Buzora V. R. 1976 L.R.T. No. 16
IMMATURITY
R. V. F.C. 2 N.R.L.R. 185
R. V. Ally Mohamed [1968] H.C.D. No. 146
R. V. Thomas Mfaume [1967] H.C.D. No. 18
169
Criminal Law
R. V. Ngado Mwakalinga [1967] H.C.D. No. 300
JUDICIAL PRIVILEGE
Mzee Seleman V. R. [1968] H.C.D. No. 364
Oddo Fungameza Moots [1969] H.C.D. No. 252
Said Bakari Kionywaki V. R. [1967] H.C.D. No. 443
COMPULSION
Josiah V. R [1972] EA 157
DEFENCE OF PERSON
Seleman Ussi V. R [1963] E.A. 443
R. V. Nyakabo (1970) H.C.D. No. 344
Daudi Sabaya V. R. [1995] T.L.R. 148
Salum Abdallah Kihonyile V. R [1995] T.L.R. 349
Clayway V. R. [1992] T.L.R. 72
Moses Mungasian Laiza @ Chichi V. R. [1994] T.L.R. 222
Ilapala Ibrahim V. R. 20 E.A.C.A. 300
Amina V. R. (1972) H.C.D. No. 117
John Nyamhanga Bisare V. R [1980] T.L.R. 6
Said Abdallah [1967] HCD No. 266
Uganda V. Muherwa [1972] H.C.D. E.A. 466
Marwa Robi V. R [1959] E.A. 660
Mohamed Ally V. R. [1969] H.C.D. No. 54
R V. Mohamed Ndewa & Others [1970] H.C.D. No. 211
NECESSITY
R. V. Dudley & Stephens (1884) 14 Q.B.D. 273
R. V. Abasi Mohamed (1969) H.C.D. No. 14 Q.B.D. 273
R. V. Bourne (1938) All E.R. 615
US V. Holmes 1842 Fed. Case. 360
170
Criminal Law
PARTIES TO OFFENCES
Damiano Petro & Jackson Abraham V. R [1980] T.L.R. 260
Deorge Walter & Two Others V. R. [1980] T.L.R. 313
COMMON INTENTION
Mathias Mhenyi & Others V. R [1980] T.L.R. 290
Msengi Mkumbo V. R. [1955] E.A.C.A. 500
Shene Kimboka (1968) H.A.C. No. 52
Jackson Mwakatoka & Two Others V. R. [1990] T.L.R. 17
Jumanne Salum Pazi V. R. [1981] T.L.R. 246
Tabulayenka Kirya V. R. [1943] 10 E.A.C.A. 51
Mughuria Bwana & Others V. R. [1943] 10 E.A.C.A. 105
COUNSELING
R. V. Biguli s/o Lwemara [1947] E.A.C.A. 115
Choitram V. R. [1952] 26 K.L.R. 93
Accessory After the Fact
Andrea Nicodemo V. R. (1969) H.C.D. No. 25
ATTEMPTS AND CONSPIRACIES

R.V.Robison [1915] 2 K.B. 342
Ambokile Mwamalongo V. R. (1967) H.C.D. No. 275
Christopher Ngambilo V. (1967) H.C.D. No. 388
R. V. Rukundo Kamaro (1968) H.C.D. No. 48
Mulira V. R. E.AC.A. 223
Omari V. R. [1971] H.C.D. No. 362
R. V. Andrew Avarity 1973 L.R.T. No. 92
Haruna Ibrahim (1967) H.C.D. No. 76
Edward Michael V. R. [1948] 1 T.L.R 308
Said V. R. [1963] E.A. 454
171
Criminal Law
R. V. Rino & Others [1892] Cox 17 C.C. 491

R. V. Mley Kinyamali (1967) H.C.D. No. 342
R. V. Lubumbe 5 N.R.L.R. 210
Gamaiyo Maku V. R. (1968) H.C.D. No. 228
R. V. Karia 16 E.A.C.A. 116
Ogodia & Erima V. Uganda [1967] E.A. 137
Abdallah Amidu Kumbuka V. R. [1980] T.L.R. 289
Francis Mwenda V. R. [1980] 86
READ ALSO:
Saleha Seleman V. R. (1972) H.C.D. No. 23
Wanjiro Wamoire V. R. [1955] E.A.C.A. 521
R. V. Otieno Okech [1947] 14 E.A.C.A. 68
Mkabane Maheto Masakura V. R. [1959] 598
Njoroge V. R. [1969] E.A. 17
OFFENCES AGAINST THE MORALITY

Kabulungu Juma V. R. [1991] T.L.R. 154
R. V. Chapman [1959] 1 Q.B. 100
R. V. O’brien [1974] 3All E.R 663
Fundi Omari Madege [1970] H.C.D. No. 304
Mtundu Chile & Other V. R. [1970] H.C.D. No. 304
R. V. Williams [1923] 1 K.B. 340
Njugura Wangurimu V. R. 20 E.A.C.A. 196
Abbas Ramadhani V. R. [1969] H.C.D. No. 226
Amiri Ahmed V. R. [1968] H.C.D. NO. 329
Mwanahamisi Abdallah V. R. [1983] T.L.R. 265
Shiku Salehe V. R. [1987] T.L.R 193
Thomas Emmanuel V. R. [1996] T.L.R. 373
Andrea Mugasa Magoiga V. R. 1979 L.R.T. No. 29
Shabani Hamisi V. R. 1973 L.R.T. No. 1
172
Criminal Law
R. V. Abdu (1971) H.C.D. No. 223

Wilson V. Commonwealth [1942]
Ally Athuman V. R. [1991] T.L.R. 59
R. V. Amiri Ali [1969] H.C.D. No. 41
OFFENCES AGAINST THE PERSON

Hassan V. R. (1971) H.C.D. No. 274
Musa V. R. [1967] E.A. 573
R. V. Stephano Alois (1972) H.C.D. No. 199
R. V. Njarura Ndugo 11 E.A.C.A. 59
Mwita Nyamhanga V. R. [1992] T.L.R. 118
Wilson Nyamhanga V. R. [1984] T.L.R. 340
Herman Nyigo V. R. [1984] 178
Thabo Meli V. R [1954] 1 W.L.R. 228
R. V. Ojambo Nambio (1944) 11 E.A.C.A. 97
R. V. Mpukuta (1954) 4 N.R.L.R. 377
R. V. Katunzi (1946) 13 E.A.C.A. 154
R. V. Okute Kalebi 8 E.A.C.A. 78
R. V. Pitts (1842) Car & M. 281
R. V. Agumagu Eguruto (1945) 2 E.A.C.A. 42
R. V. Mubila 1955 (1) S.A. 31
R.V. Holland (1842) 2 Mood & R. 351
R. V. Mohamed Nite. 1974 L.R.T No. 36
Solomon Ulaya V. R. [1972] H.C.D. No. 233
R.V. Tirugumrwa Byatimba [1943] 10 E.A.C.A. 44
Sentali Lemendwa V. R. [1952] 20 E.A. C.A. 230
Manazo Mandundu & Another V. R [1990] T.L.R 92
R. V. Amani Zephania Kimweli (1970) H.C.D. No. 50
Sigh V. R. [1962]E.A. 13
Bedder V. R. [1954] 2 All ER 801
Yovan V. Uganda [1970] E.A. 405
173
Criminal Law
R. V. Mohamudu Kibwana (1968) H.C.D. No.186

Benjamin Mwansi V. R. [1992] T.L.T 85
Eria Galikuwa V. R. [1951] 18 E.A.C.A. 175
R. V. Kumwaka wa Kulumbi 14 KLR 137
John Nduguru Rudowik [1991] TLR 102
Gabriel V. R. (1971) H.C.D. No. 299
R. V. Ally Saidi Kiubatyo [1990] T.L.R. 137
R. V. Juma Legeza (1969) H.C.D. No. 244
R.V. Shilinde Mathew [1970] H.C.D. No. 143
Chacha Wambura V. R. (1953) 20 E.A.C.A. 339
Kalume Wa Tuin (1954) 21 E.A.C.A. 201
R. V. Kulambalimbali 1974 L.R.T No. 41
R. V. Magata Kachehakana [1957] E.A. 330
Lucas Timba V. R. 1975 L.R.T No. 8
Fabiano Kinene V. R. 8 E.A.C.A. P6
Kajuna Mbake V. R. (1945) 12 E.A.C.A. 104
R. V. Ngomboi Bwanyigeta 1973 L.R.T. No. 90
Vicent Sowo Mapunda V. R [1992] T.L.R.200
Juma Zuberi [1984] T.L.R. 249
Damian Ferdinand V. R. (1969) H.C.D. No. 34
Lawrence Mkabayi V. R (1969) H.C.D. No. 389
R. V. Simon [1972] H.C.D. No. 50
R. V. Atupelye Lwindiko (1967) H.C.D. No. 245
Mtono Luigo V. R. (1936) 3 E.A.C.A. 28
R. V. Mwagambos Gishogi 8 E.A.C.A. 28
R. V. Evelyne Mathias (1969) H.C.D. No. 245
Sukumaindo Mwanakosi V. R [1958] E.A. 776
Shaban Rashidi V. R. [1991] T.L.R. 259
R.V. Johari Ismail 1974 L.R.T. No. 23
R. V. Ester Ikumboka (1969) H.C.D. No. 447
174
Criminal Law
PROPERTY OFFENCES
R. V. Ndesario [1969] E.A. 267
Kyewawula V. Uganda [1974] E.A. 293
R. V. Daniel Kambegwa (1968) H.C.D. No. 333
Seleman Tilwizayo V. R. [1983] T.L.R. 402
D.P.P. V. Henry Rwegashamira 1973 L.R.T. No. 15
Ally Iddi V. R. (1969) H.C.D. No. 263
Yusufu Salim (1969) H.C.D. No. 264
George Buyombe V. R. (1968) H.C.D. No. 373
Mazengo Ngala V. R. (1969) H.C.D. No. 156
Samweli Msirangala V. R. [1981] T.L.R. 319
R.V. Burns [1958] E.A. 143
Lawrence Maliki V. R 1973 L.R.T. No. 12
Lexicon Oduntu V. R. (1970) H.C.D. No. 32
Kisese Mbugha V. Zainabu Swalehe [1991] T.L.R 90
Christian Mbunda V. R. [1983] T.L.R. 340
AGGRAVATED THEFTS
Rajabu Mbaruku V. R. [1962] E.A. 669
Yesaya Gweseko V. R. [1970] E.A. 667
Donald William Ibrahim V. R. (1972) H.C.D. No. 59
Rashidi V. R. [1972] E.A 438
Mikidadi Abdallah V. R. (1970) H.C.D. No. 225
DOCTRINE OF RECENT POSSESSION

Michael Mhuto V. R. 1975. L.R.T. No. 18
Saidi Mkuyu V. R. (1972) H.C.D. No. 41
D.P.P. V. Joachim Komba [1983] T.L.R. 213
Seif Ally V. R. 1976. L.R.T. No. 55
Naftali s/o Ngalya V. R. 1976 L.R.T. No. 45
William Maziku V. R. (1969) H.C.D. No. 174
175
Criminal Law
James Malawi V. R (1969) H.C.D. No. 172

Ibrahim Ramadhani V. R. (1969) H.C.D. No. 218
Manazo Mandundu & Another. V. R [1990] T.L.R. 92
RECEIVING AND RETAINING STOLEN PROPERTY OR UNLAWFULLY

OBTAINED
Mopuyani Ole Ndotoo V. R. (1970) H.C.D. No. 74
Masweda Adiga V. R. [1992] T.L.R. 140
Mwagwi Njoroge V. R. [1963] E.A. 624
Iddi Waziri V. R. [1961] E.A. 146
Saidi Kigozi V. R. [1958] E.A. 1
CONVEYING OR BEING IN POSSESSION OF SUSPECTED STOLEN

PROPERTY
Njoroge V. R. [1965] E.A. 585
R. V. Njuguna 2 K.L.R. 50
Bakari V. R. [1963] E.A. 466
Kiondo Hamisi V. R. (1963) E.A. 209
George Lerai V. R (1921-1952) 1 T.L.R. (R) 366
Ally Ramadhani V. R. (1968) H.C.D. No. 430.
ROBBERY
Nuru Ayubu V. R. (1968) H.C.D. No. 279
Mkwepu V. R. 2 T.L.R. (R) 108
Miderege Bemeye (1968) H.C.D. No. 74
Gathuri Njuguna V. R. [1965] E.A. 583
Sayala Seliani V. R (1968) H.C.D. No. 243
Michael Joseph V. R. [1992] T.L.R. 278
Jackson Simoni Manitu V. R. [1981] T.L.R. 38
176
Criminal Law
177

Criminal Law Notes-1-1-1

Uploaded by

Copyright:

Criminal Law Notes-1-1-1

Uploaded by

Document Information

Original Title

Copyright

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Criminal Law Notes-1-1-1

Uploaded by

Copyright:

Criminal Law

Criminal Law and Social Science New York, 1933, at p. 2.

2. What is Criminal Law?

3. Crime and Morality.

Sources of Criminal Law

3. Common Law of England, Doctrine of Equity and Statute of General

Tanganyika, so far as circumstances admit, shall be exercised in conformity with the

Piracy on the High Seas:

i) Primitive Mode of Production

ii) Slave Mode of Production

iii) Feudal Mode of Production

The main functions of criminal law were;

iv) Capitalist Mode of Production

v) Socialist Mode of Production

GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY

Proof of Actus Reus

Actus Reus and will

Actus Reus as “State of Affairs”

a) By a particular class of person E.g. a repudiated thief.

Actus Reus and Causation

, Actus Reus Specific Elements

Conduct (which is the central feature of the crime)

The material circumstances are

Mens Rea and Voluntariness

 Regarding the intention of the legislature,

 Regarding the problem of proving mens rea;

What is the justification for this rule?

Exceptions to this general rule:

Limitations on Liability of Corporation

 A corporation can only be convicted of offences, which are punishable by fine,

General rules of criminal responsibility

Bonafide Claim of Right

A good example of a bonafide claim of right is the case of MOHAMED HASSAN V. R

“…A mere belief founded on metaphysical as opposed to something physical, that a

Every person is presumed to be sane, and to possess a sufficient degree of reason to be

In NYINGE SUWATU V. R (1959) E.A.C.A. 974, the appellant killed an inspector of

What does disease affecting the mind mean?

“…Through such incomprehensible acts are not in themselves sufficient to establish

He was convicted of manslaughter, sentence to imprisonment and not a special finding of

“…Insanity whether produced by drunkenness or otherwise is defense to the crime

In the case of R. V. MICHAEL CHIBING’ATI [1983] T.L.R. 441, At or about 8 p.m.

Compulsion and Coercion

Defense of Person or Property

Therefore if the defense of person is reasonable, in the circumstances a person may be

“…The plea of self-defence cannot by any stretch of imagination be applicable to the

In MOSES MUNGASIANI LAIZER ALIAS CHICHI V. REPUBLIC [1994] T.L.R.

A similar observation was made in the case of R. V. MOHAMED MDOE AND

However in defense of property like defense of person, it must be a question of fact in

“…Where it is a case of protecting one man’s life or another’s at the expenses of an

In larceny cases, economic necessity is frequently invoked in mitigation of punishment,

Parties to Offenders in England

I. An accessory Before the Fact

II. Principal Offenders In The First Degree

III. Principal Offenders In The Second Degree

IV. Accessory After The Fact.

Parties To Offences In Tanzania

Illustration of section 22 TPC.

Whilst D keeps watch outside B shoots and Kills X.

From the above illustration

II. Common Intention By Joint Offenders

 Such commission must be a probable consequence of the prosecution of their

In another case of MUGHUIRA BWAYA AND ANOTHER V. R (1943) 10 E.A.C.A.

“…Clearly, the accused participated in the assault. Conviction entered accordingly,