Criminal Law 2021 CAT

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Name: Ominde Moses John

REG: L95/3680/2021
Unit: Criminal law
Unit code: LPL110

KENYATTA UNIVERSITY
UNIVERSITY EXAMINATIONS 2021/2022 SEMESTER I
EXAMINATION FOR THE DEGREE OF BACHELOR OF LAWS
SUBJECT: LPL 110 CRIMINAL LAW I CAT 2
TIME ALLOWED: 1 HOURS
INSTRUCTIONS

1. Support your answer with illustrations from relevant case law, statutory
provisions and any other applicable references.
2. Write neatly and legibly
3. Your answer script must bear your student registration number
4. Do not scribble or draft answers on the inner or outer cover pages of your
answer booklets
5. Do not write anything except your registration number on this question paper
question
1. The constitution is the supreme law of the land and that has been viewed
worldwide as the main source of law.
Citing case law and statutory provisions, discuss the various available sources
of
criminal law. [15 Marks]
answers
In Kenya, the sources of criminal law are foundational to the functioning of the
legal system, providing the framework within which criminal conduct is defined,
prosecuted, and punished. The Constitution of Kenya is the supreme law of the
land, and it serves as the primary source of all law, including criminal law.
However, there are several other sources of criminal law that are equally
important, each contributing to the comprehensive legal structure that governs
criminal justice in Kenya. These sources include statutory law, common law,
international law, African customary law, religious law, judicial precedent, and the
principles of equity.
The Constitution of Kenya is the ultimate source of all legal authority within the
country. It is the supreme law, meaning that any law or act that is inconsistent with
the Constitution is deemed invalid. The Constitution not only establishes the
framework for governance but also outlines fundamental rights and freedoms,
many of which directly impact criminal law. For instance, the Bill of Rights in
Chapter Four of the Constitution provides protections against arbitrary detention,
torture, and cruel or inhuman treatment, which are critical in the context of
criminal law. The supremacy of the Constitution is underscored in cases like David
Ndii & Others v. Attorney General, where the High Court emphasized that any
attempt to amend the basic structure of the Constitution would be unconstitutional.
This case highlights the Constitution’s role in safeguarding the integrity of the
legal system, including the criminal justice system.
Statutory law, which consists of Acts of Parliament, is another significant source of
criminal law in Kenya. These statutes define specific criminal offenses, prescribe
penalties, and establish procedures for the prosecution of crimes. The Penal Code
(Cap 63) is one of the most important pieces of legislation in this regard, outlining
a wide range of criminal offenses, including murder, theft, assault, and sexual
offenses. Other statutes, such as the Sexual Offences Act, the Anti-Corruption and
Economic Crimes Act, and the Narcotic Drugs and Psychotropic Substances
(Control) Act, also play crucial roles in addressing specific types of criminal
conduct. The process by which a bill becomes law in Kenya involves its passage
through Parliament, followed by the President’s assent, after which it becomes
binding law. This legislative process ensures that criminal laws are deliberated and
enacted through a democratic process, reflecting the will of the people.
Common law, which is based on judicial precedents and customs, is another key
source of criminal law in Kenya. Section 3 of the Judicature Act explicitly states
that the common law, as it existed in England on August 12, 1897, forms part of
the law of Kenya. This means that judicial decisions made in the UK before this
date continue to influence Kenyan law. For example, principles such as the
presumption of innocence and the requirement for proof beyond a reasonable doubt
in criminal cases are rooted in common law. Common law complements statutory
law by filling gaps where statutes may be silent or ambiguous. It also allows the
law to evolve over time through judicial interpretation, adapting to new
circumstances and societal changes.
International law is increasingly becoming an important source of criminal law in
Kenya, particularly in the context of human rights and international crimes. Section
3 of the Judicature Act provides that international treaties and conventions that
Kenya has ratified form part of the laws of Kenya. This incorporation of
international law is evident in cases such as EG Eric Gitari v. NGO Board, where
the High Court relied on the International Covenant on Civil and Political Rights
(ICCPR) to affirm the rights of the LGBTQ community in Kenya. Similarly,
Kenya's obligations under international treaties such as the Rome Statute, which
established the International Criminal Court (ICC), influence domestic criminal
law, particularly in the prosecution of crimes such as genocide, war crimes, and
crimes against humanity.
African customary law, as recognized under Section 3 of the Judicature Act, also
plays a role in Kenya's legal system, particularly in matters involving civil disputes
where both parties are subject to such laws. However, its application in criminal
law is limited and must conform to the Constitution and statutory laws. Customary
law must not be repugnant to justice and morality or inconsistent with any written
law. In criminal matters, customary practices that conflict with constitutional rights
or statutory provisions are not enforceable. For example, traditional practices that
may condone or excuse harmful acts, such as female genital mutilation, are
overridden by statutory prohibitions under the Prohibition of Female Genital
Mutilation Act.

Judicial precedent, or stare decisis, is a fundamental principle in the common law


system, where decisions made by higher courts are binding on lower courts. This
principle ensures consistency and predictability in the law, as courts are expected
to follow established precedents when ruling on similar cases. In Kenya, judicial
precedent is a critical source of law, with decisions from the Supreme Court, Court
of Appeal, and High Court shaping the interpretation and application of criminal
law. A notable example is the case of Francis Karioko Muruatetu & Another v.
Republic, where the Supreme Court declared the mandatory death sentence
unconstitutional, setting a binding precedent that has since influenced sentencing in
criminal cases across Kenya. This case illustrates how judicial precedent can lead
to significant reforms in criminal law, aligning it with contemporary human rights
standards.
The principles of equity, rooted in fairness and justice, also serve as a source of
law in Kenya. Equity complements the rigid application of statutory and common
law by allowing courts to achieve just outcomes in cases where strict legal rules
may result in unfairness. In criminal law, equity may influence decisions related to
sentencing, bail, or the exercise of judicial discretion in mitigating harsh penalties.
While equity is more commonly associated with civil law, its principles are
nonetheless relevant in ensuring that the criminal justice system remains just and
humane.
In conclusion, the sources of criminal law in Kenya are diverse and interwoven,
providing a comprehensive legal framework that upholds the rule of law, protects
individual rights, and maintains social order. The Constitution stands as the
supreme source of law, guiding the development and application of all other legal
sources, including statutory law, common law, international law, customary law,
religious law, judicial precedent, and equity. Each of these sources plays a crucial
role in shaping the criminal justice system, ensuring that it is both effective in
combating crime and fair in its treatment of individuals. The interplay between
these sources reflects the dynamic nature of the law, as it continually evolves to
meet the needs of society while adhering to fundamental principles of justice and
legality.

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