LECTURE 9: THURSDAY 19 TH JANUARY 2012 – 5.30AM-8.30PM – SHERIA HALL INCHOATE OFFENCES Inchoate offences are offences which have begun but not comple ted. Such offences fall in two categories — attempts and conspiracies. These two are offences in their own right, punishable under the provisions of the Penal Code. 1. ATTEMPTS A) DEFINITION An attempt to commit an offence is punishable although the accus ed person has not achieved his objective and the act usreus of a completed offence is not committed. The offence is defined in section 388 of the Penal Code. PENAL CODE 396 CODE PART XL- ATTEMPTS (Attempts Defined) FACTS 388. (1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. (2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. (3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. Interpretation A person is said to intend to commit an offence when he begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but he does not succeed in fulfilling his intention t o such extent as to commit the offence. A person would be charged with attempt to commit an offence where the evidence falls short of proving that he committed the actusreus of the substantive offence, but he had the mensrea for that offence. In 1 but they were stopped by the guar ds before he stole anything. it was held that the accused had tried to force the window of the car.even where the belief is. a beginning to put the intention into execution by means adapted to its fulfilment and a manifestation of the intention by some overt act. He was charged with stealing a sum of money found in his sock. moved off as soon as the police arrived. Applying them principles to the facts of the case. Republic (1972) EA 532 (Madan Ag CJ) It was held that entry on a farm with intent to steal cattle is an overt act sufficiently proximate to the intended offence to constitute an attempt. The appellant had entered a farm after dark with the intent to steal cattle. even though there is no case to answer on the complete offence. The appellant was seen manipulating a coin operated gaming machine with a piece of wire. Republic (1967) EA 808 (Sir John Ainley CJ and Trevelyan J ) It was stated that an accused person can only be convicted of attempting to commit the very offence with which he was charge d. b ut convicted of attempted theft based on the manipulation. R (1962) EA 684 (Rudd Ag CJ and Edmonds J) 2 .He admitted the intent to steal the cattle. the accused may be committed of attempt without being recharged.Ismail bin Farah vs. and had denied falsely tampering w ith the car at all. In the matter the accused smea red a substance believed to be deadly poison on the drinking straw of a person with the intention of killing that person when the latter used the straw shortly thereafter.mistaken and the substance used is not deadly. H e was acquitted of the offence charged. In Keteta vs. In Republic vs. had acted furtively. Raphael s/o Son gareti(1973) LRT 82 (Mnzavas J) It was held that where there is a clear intention to commit an offence and overt acts are done which manifest that intention and start to put it into effect. an attempt has been committed and it matters not whether the means employed were adequate to achieve the end sought. It was further held that where a case has been made out of an attempt t o commit an offence. The Queen KLR 18 3 (Sir Kenneth O’Connor CJ) It was held that the necessary ingredients of an attempt as defined in the Penal Code are: an attention to commit an offence. It was stated in Kigen Arap chemoiwa vs. See Muiruri vs.It was held that amounted to attempted murder. it was s tated in R v Whybrow (1951) 35 Cr App R 141 That it must be proved that the accused had an intention to kill. See Ingangi vs. and amounted to ob taining goods by false pretences. the intention required for an attempt to be committed will be the same as the intention required for the completed offence. or to obtain the prizes. An inference was drawn that he had entered the races with the intent to obtain the prizes. Republic (196 5) EA 572 (Rudd and Harris JJ) It was held that a charge would be bad for uncertainty if it does not state the felonious act that was alleged to have been attempted . and received the prizes on off er. it is preferable to charge him with the comple ted offence instead of an attempt. For attempted murder. For most cases the intention to commit an offence is only capable of being inferred from the facts In R vs Button (l9OO)2 Q 597 The accused was charged with obtaining goods by false pretences. or to keep himself in training. For attempted rape. what sho uld be shown is that the accused intended to grati fy his passions and that he intended to do so at all costs. The case turned on his intention in entering the races — whether he was out to have some fun. notwithstanding any resistance on the part of the woman . R ( 1962) FA 731 (Rudd Ag CJ and Goudie 3) As a general rule. since it is always open to the trial court to convict him of an attempt upon a charge of theft. Gichingiri vs. He was a good runner who personated a moderate runner so that he could enter into two handicap races. In Wandera Reuben Kubanisi vs. and that a mere intention to cause grievous harm would not suffice even though it is sufficient for murder. He was given long starts and won both races. 3 . It would be a misdemeanour in all other cases.That if there is any doubt whether the accused person has completed an offence.An attempt is a felony where it is an attempt to commit an offence punishable by death or imprisonment for fourteen years. See also Chemwa Arap Mugut KLR 187 ( Thomas J and Gamble Ag J). The Queen KLR 183 (Sir Kenneth O’Connor CJ) 4 . In Rex vs. In other words. This difficulty was underlined by Hamilton C J in Rex vs. apparently before he had had the opportunity to commence active operations. See Alley Ali and another vs. The evidence on record did not go beyond the fact that the accused was caught hiding. there must be an act which is immediately and not merely remotely connected with the intended offence. Kanjeri and another EALR 69 (Hamilton Ci and Ehrhardt J) It was held that the removal of the bars of the gate of a cattle boma at night in order to drive off the cattle is an attempt to commit theft. The difficulty is usually in determining where to draw the line between mere preparation and actual attempt. On the facts. On appeal.B) ATTEMPT & PREPARATION A distinction is drawn between attempt and preparation. going beyond t he offence of mere criminal trespass. Omussawa Mukuo. EALR 7 (Hamilton CJ) Where the accused who was caught hiding outside a village fence admitted that he had so concealed himself with the intention of stealing cattle. it was held that hiding to commit theft is merely preparation for the commission of the offence and not an at tempt to commit theft. and was convicted of an attempt to commit theft. Republic (1973) LRT 152 (Mfalila Ag 3) Where it was held that where a person presents forged invoices to the officer responsible for issuing goods on the strength of invoices presented it amounts not to mere preparation but attempt to obtain goods by false pretences. 1n Ismail bin Farah vs. The law requires that the actusreus of attempt go beyond mere preparation. it was said that the accused had not crossed the dividing line between mere preparation fo r the commission of an offence and an attempt to commit that offence. R 1962) BA 781 Rudd Ag CJ and Goudie J) The appellant was convicted. was never completed to a point of actual manufacture of a firearm. The court was of the view that was the accused not discovered he would have succeeded in opening the car door and stealing the items that were in the car. See Rex vs. R (1962) EA 454 The court suggested a test as to what is sufficient actusreus of attempt. His act of attempting to open the car lock was said to be immediately close or near to the offence of stealing the items in the car. in the circumstances.It was stated that in order to constitute an attempt the act must be an act immediately connected with the commission of the offence. His appeal was dismissed. whic h attempt. The court said that the act must be of a character as to be incompatible with any other reasonable explanation. from the point of inception. because of the intervention of the police. Acts remotel y leading towards the commission of the offence are not to be considered as attempts. R (1959) BA 18 The accused was caught whilst attempting to pick the lock of a parked car at night. Garu Ayub (1924) 10 KLR (Pickering J) In Mwandikwa s/a Mutisya vs. when the idea of committing the crime is born. Somewhere along the line it may be said that an attempt has been made to commit the offence. that the accused has passed the stage of mere preparation to that of attempt. In R vs. The appellate found that the work done went far beyond mere preparation and constituted part of an actual attempt to manufacture a firearm. In Mussa s/o Saidi vs. of an attempt to manufacture a firearm. to the advanced stage of the execution of the cr ime and its completion. DhaIla s/o Ismail 20 KLR 59 5 . In Ingangi s/a Gichingiri vs. He was convicted of the offence of attempting to steal the items that were in the car. The commission of an offence has many stages. other than the intention to commit the offence alleged. In Mussa s/o Saidi vs. 6 . connected with the commission of the intended offence. However preparation to commit art offence is punishable in certain cases. In R vs Johnson (1864) Le &Ca 89 The court took the view that it is not necessary for the prosecution to indicate the property intended to be stolen. created under section 77 of the Penal Code.The accused made out false receipts pretending that he had suppli ed mattresses stuffed with kapok. He was convicted of obtaining money by false pretences. He admitted that h e in fact wanted to make a false claim with his insurers. since the thief may only have intended to steal whatever he could find of value. He was acquitted of a charged of an attempt to obtain money by false pretences. According to section 3 88(1) of the Penal Code it is immaterial. tied himself up and had police called. Such as the offences relating to subversive activities. He intended to obtain more money than what he was entitle d to. In R vs. whether he did all that is needed for the commission of the offence. Robinson (1915) 2 KB 342 A jeweller intending to claim against his insurers. that the commission of the offence has become impossible. and not immediately. so long as the accused commits the actusreus. It fell within the realm of preparation to commit that intended offence. It was said that his act was remotely. which was an inferior and less expensive material. pretended that his shop had been broken into. or wh ether he prevented himself or voluntarily refrained from accomplishing the crime. by virtue of section 3 88(2). R (1962) BA 454 It was said that a person may be convicted for getting into an empty car with the intention of stealing its contents. It is also immaterial. In R vs Ring (1892)1 Cox CC 491 It was held a person could be convicted of attempted theft for putting his hand into an empty pocket. while in fact they were stuffed with cotton. or utters any words with a subversive intention.RIOTS. while section 308(2) of the Penal Code targets having an article for use in the course of a burglary.HOUSE BREAKING & SIMILAR OFFENCES (Preparation to commit a felony) 308. is guilty of an offence and is liable to imprisonment for a term not exceeding seven years. theft or cheating is guilty of a felony. where the accused arms himself with dangerous or offensive weapons. and being in a building with intent to commit a felony. with intent to commit a felony. is guilty of a felony. (1) Any person who does or attempts to do. theft or cheating. or (c) in any building whatever by day wi th intent to commit a felony therein. 7 . (1) Any person found armed with any dangerous or offensive weapon in circumstances that indicate that he was so armed with intent to commit any felony is guilty of a fe lony and is liable to imprisonment of not less than seven years and not more than fifteen years.AND OTHER OFFENCES AGAINST PUBLIC TRANQUILITY (Subversive Activities) Interpretation 308 CHAPTER XXIXBURGLARY. Section 308(1) deals with preparations to commit a felo ny. (2) Any person who. or being otherwise disguised. or (b) in any building whatever by night with intent to commit a felony therein. or conspires with any person to do. having taken precautions to conceal his presence. any act with a subversive intention. has with him any article for use in the course of or in connexion with any burglary. Penal Code 77 CODE CHAPTER IXUNLAWFUL ASSEMBLIES. when not at his place of abode. It is an offence under section 391 of the Penal Code for a person to solicit or incite or attempt to procure another person to commit an offence Under that provision orocuration is made in Kenya or elsewhere. Section 3 08(3) of the Penal Code criminalises the acts of bein g disguised with intent to commit a felony. or makes any preparation to do. FACTS 77. and where any person is charged with an offence under this subsection proof that he had with him any article made or adapted for use in committing a burglary. theft or cheating shall be evidence that he had it with him for such use. (3) Any person who is found (a) having his face masked or blackened. Section 308 of the Penal Code criminalises preparations to commit certain offences. is guilty of a misdemeanour. offence for a person to conspire with another to commit a criminal offence. The crime of conspiracy can be rationalised. and which is an offence under the laws in force in the place where it is proposed to be done. criminal law uses conspiracy as a means of preventing group activity. if no other punishment is provided. 394. but the accused persons can only be charged with conspiracy where the completed offence has not been committed. to imprisonment for seven years. by virtue of section 393 of the Penal Code. which is seen generally as posing a particular social danger. and which is an offence under the laws in force in the place where it is proposed to be done. In other words.It is classified as a felony. Firstly. is guilty of a felony and is liable. Any person who conspires with another to commit any felony. See Muiruri vs Republic (1983) KLR 205 (Abdullah J ) CONSPIRACY A) DEFINITION It is an. if the offence intended to be committed is itself a mi sdemeanour. Any person who conspires with another to commit a misdemeanour. or to do any act in any part of the world which if done in Kenya would be a felony. the criminal process treats the preparatory stage as a crime in itself. if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years. if the conspiracy is to commit a felony. but as a misdemeanour. Secondly. then to that lesser punishment. or to do any act in any part of the world which if done in Kenya would be a misdemeanour. This means that it is improper to cha rge conspiracy where the completed offence has been committed. or. by section 394 of the Penal Code. Interpretation 394 CHAPTER XLICONSPIRACIES (Conspiracy to Commit a Misdemeanor) See 8 . Penal Code 393 CODE CHAPTER XLICONSPIRACIES (Conspiracy to Commit Felony) FACTS 393. There is a conspiracy in every case where accused persons are jointly charged. criminal law seeks to punish conspiracy as an inchoate offence. Sir Newnham Worley VP and Briggs JA) See John Moody Lawrence Brown and others vs. R (1957) BA 371 (Sir Newnham Worley P. See Ghulam Rasul and another vs. nor in inciting others to do them. Sir Nenham Worley VP and Briggs JA) The Penal Code does not define conspiracy. whose external or overt act is concert by which mutual consent to a common purpose is exchanged . Intention alone is not sufficient. It was emphasised that the gist of the offence of conspiracy lies not in the doing of the act. See also Raojibhai Girdharbhai Patel and another vs. Briggs JA and Forbes J). or in effecting the purpose for which the conspiracy was formed. R 1963) BA 223 (Sir Ronald Sinclair P. Sir Trevor Gould Ag VP and Newbold JA). it becomes an offence when the two agree to carry it into effect. and the plot itself is an act. nor in inciting others to do them. Agreement is an essential ingredient of the offence. The Queen (1868) LR 33 HL 306 As consisting of an agreement of two or m ore people to do an unlawflul act unlawful means. but in the forming of the scheme or agreement between the parties. Intention alone is not sufficient. and the plot itself is an act.Ghulam Rasul and another vs. or in effecting the purpose for which the conspiracy was formed. In Crofter Hand Woven Harris Tweed Company Ltd vs Veitch (1920) AC 4 35 9 . Reginam536 (Sir Newnham Worley P. Briggs and Bacon JJA) And A bulla Abdul Majid Al-Asnag and others vs. Regina m 229 (Sir Barclay Nihill P. whose external or overt act is concert by which mutual consent to a common purpose is exchange d. Agreement is an essential ingredient of the offence. nor in attempt ing to do them.It was emphasised that the gist of the offence of conspiracy lies not in the doing of the act. it becomes an offence when the two agree to carry it into effect. in Mulcahy vs. It has been defined in caselaw. nor in attempting to do them. but in the forming of the scheme or agreement between the parties. Reginam 2l EACA 229 (Sir Barclay Nihill P. however. is proving the actings of the parties which point towards conspiracy. Sir Newnham Worley VP and Lewis Ag J) 1t was said in Ongodia and Erima vs. Republic (1971) EA 495 (Sir William Duffus P. as stated in R vs. Republic (1971) BA 495 (Sir William D uffus P. The usual way. There are two elements to conspiracy . Rex (1951) 18 EACA 211 (Sir Barclay Nihill P. Spry VP and Lutta JA) 10 . Sir Newnham Worley VP and Lewis Ag J) B) PROOF OF CONSPIRACY A conspiracy may be proved by direct evidence of agreement. See also Stanley Musinga ond others vs. This position was adopted in the Tanzanian case of Mattaka and others vs.Jamnadas l3 BACA 147. Both amount to offences if an agreement is proved. See also Mattaka and others vs. Rex (1951) 18 EACA 211 (Sir Barclay Nihill P. Spry VP and Lutta JA) Where it was stated that conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act unlawfully. espe cially there are documents that can be put in as evidence. Sheridan JJ and Russell Ag J) That conspiracy can be established even whe re the co-conspirators are unknown persons.It was defined as an agreement of two or more persons to effect an unlawful purpose. Unlawful’ refers to both civil wrongs as well as crimes. . whether as the ultimate aim or only as a means to it. Uganda (1967) EA 137 (Bennett .a conspiracy to effect an unlawful purpose and a conspiracy to effect a lawful purpose by unlawful means. See Also Stanley Musinga ond others vs. and the crime is complete if there is such agreement or there are overt acts done in pursuit to prove the fact of the agreement. all the persons involved should be charged together and joined in one c ount. Marion I and Holmes J) Where the court said that the essence of the off ence of conspiracy being an agreement by two or more minds. Reginam (1955) 22 EACA 387 (Sir Barclay Nihill P. The fact that agreement can be inferred from the facts was addressed in Rex vs. Spry VP and Lutta JA) It was stated that since conspiracy involves the participation of two or more persons. Where all the other conspirators are acquitted. Republic (1971) EA 495 (Sir William Duffus P. there being no offence without mutuality. This position was stated in Mulama vs. Motibhai Mangalbhai Patel and another (1935) 2 EACA 76 (Abrahams CJ. the remaining one conspirator must also be acquitted. since the offence cannot be committed where there is no agreement. In Rex vs. done by them in pursuance of an apparent criminal purpose. C) NUMBER OF CONSPIRATORS There must be two or more conspirators. not in themselves unlawful. The Republic (1975) KLR 24 (Trevelyan and Chanan Singh JJ) Where the court said that if on a charge of co nspiracy all the accused but one are acquitted that one has to be acquitted also. one person alone cannot conspire or attempt to conspire. In Mattaka and others vs. One person cannot conspire. In the Tanzanian case of Kabunga s/o Magingi vs. Edwards CJ and Bourke J) Where the court stated that an agreement to conspire may be deduced from any facts which raise the presumption of a common plan. However according to 11 . Law CJ and Webb 3) It was stated that an agreement by two or more persons to do an unlawful act may be interred from evidence of acts.Gokaldas Kanji Karia (1949) 16 EACA 116 (Sir Barclay Nihill CJ. Lord Cohen. Sir Henry Webb CJ and McRoberts J) It was stated that where two or more persons are jointly charged with the commission of an offence and there is no sufficient evidence to convict o ne or more of them of the actual offence charged. It would appear that two or more pers ons do not commit a crime when they merely discuss the possibility of carrying out a crime. D) HUSBAND AND WIFE In law. The accused had been jointly convicted of murder. The appe al was allowed. the court may. CPC 179 CODE Convictions of other offences than those Charged FACTS 179. and the murder conviction replaced with that for conspiracy to murder. and one of the accused is acquitted. E) CONVICTION OF CONSPIRACY AS A COGNATE OFFENCE In Owalu s/o Agelo and another (1942) 9 EACA 87 (Sir Joseph Sheridan CJ. (1) When a person is charged with an offence consisting of several particulars. even if it is sometime in the distant future. it was found that the evidence fell short of establishing the commission of the offence of murder. by virtue of section 179 of the Criminal Procedure Code. Reginam 36 (Sir N/ewnham Worley P. See Also Mulama vs. but there was evidence of a common intent to kill the deceased. The Republic (1975) KL R 24 (Trevelyan and Chanan Singh JJ) And RaojibhaiGirdharbhai Patel and another vs. (1956) 23 EACA 609 (Lord Oaksey. unnamed unknown persons. a husband and wife are incapable of conspiring as they are treated as one in Common Law. The Queen (1957) AC 126. This position is stated in the Tanzanian case of Laila Jhina Mawji and another vs. the remaining conspirator may be convicted upon evidence that others in addition to those named were involved.R vs. On appeal. Anthony (1965) 2 QB 189. there must be an agreement between them that crime will be committed. Lord Tucker. Lord Keith and Lord Somerville of Harrow). Briggs JA and Forbes J). among others. a combination of some only of which constitutes a complete minor Interpretation 12 . even thougo the accused are not charged with the minor offence. convict one or more of them of the minor offence of conspiracy to commit the greater otfence. 1 All ER 440 Where two persons are charge d with conspiring with. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence. and the combination is proved but the remaining particulars are not proved. Gachuhi and Apaloo JJO on charging conspiracy. he may be convicted of the minor offence although he was not charged with it. he may be convicted of the minor offence althou gh he was not charged with it.(When offence proved is included in offence charged) offence. See Kinyanjui vs. 13 . Republic (1988) KLR 716 (Plan.
Report "Criminal Law Gpr 105-Lecture 9 19th Jan 2012"