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Republic V Charles Gachanja [2001] EKLR | ||
| Criminal Case 37 of 1997 | 05 Jun 2001 | |
Alex George Aluri Etyang
High Court at Nairobi (Milimani Law Courts)
Republic v Charles Gachanja
Republic v Charles Gachanja [2001] eKLR
Republic v Charles Gachanja
High Court, at Nairobi June 5, 2001
Etyang J
Criminal Case No 37 of 1997
Assessors – opinion of assessors - basis of assessor’s findings.
Criminal Law – murder – defences – provocation and self defence – when the defences may apply.
Criminal Law - murder - ingredients of the offence - standard of proof.
The accused was charged with murder contrary to section 203 as read with section 204 of the Penal Code (cap 63). The accused admitted that he had caused the death of the deceased. He nevertheless raised the defences of self defence and provocation.
Held:
1. It is a cardinal principle of law that the burden to prove the guilt of an accused person lies on the prosecution. An accused person assumes no burden to prove his innocence. Any defence or explanation put forward by an accused is only to be considered on a balance of probabilities.
2. The standard of proof placed on the prosecution to prove the guilt of an accused person is proof beyond reasonable doubt.
3. There are three essential ingredients of the offence of murder, which the prosecution must prove beyond reasonable doubt;
a) death of a person;
b) that the accused caused the death through an unlawful act; and
c) that the accused had malice aforethought.
4. In law self defence is an absolute defence to a criminal charge. It absolves an accused from criminal liability for, where self defence is available to an accused, he is deemed to have acted within the permitted legal limits to repel any attack against him, he is deemed to have acted reasonably and have used necessary and permitted force.
5. Provocation includes any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.
6. It is not every kind of provocation that will reduce murder to manslaughter. To have that effect, the provocation must be such as temporarily to deprive the person provoked of the power of self control, as the result of which he commits the act which causes death. An usually excitable or pugnacious person is not entitled to rely on provocation which would not have led an ordinary person to act as he did.
7. Assessors must always base their opinions only on evidence which is adduced in court and canvassed by the parties.
Accused person convicted of manslaughter.
Cases
1. Palmer v R [1971] 1 All ER 1077; 55 Cr App R 223
2. Mungai v Republic [1984] KLR 85; [1982 – 88] 1 KAR 611
3. Mancini v Director of Public Prosecutions [1941] 3 All ER 272; [1942] 1 AC 1
Statutes
1. Penal Code (cap 63) sections 202(1); 203; 204; 205; 208(1); 257
2. Evidence Act (cap 80) section 107
Advocates
Mr Njanja for the Accused
Miss Wanjama (State Counsel) for the Republic
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