At the end of the class you should tell

-What are the elements of criminal liability are

-What actus rea and men’s rea entail
-Case law applicability

ELEMENTS OF CRIME
Consists of an outline of the elements which determine criminal liability and the rules relating to
proof of those elements.
Liability for an offence requires that the defendant’s outward conduct satisfies the requirements of
that offence and that the defendant has the requisite legally blameworthy state of mind.
It is what must be proved in order to secure a conviction, although it may be that the accused may
have a defence which will enable him/her to avoid conviction. The general rule is that a person is
not criminally liable for an offence unless it is established by concrete evidence that he committed
the offence or omitted to act voluntarily and with a blameworthy mind. This cardinal principle of
criminal law is embodied in the maxim actus non facit reum,nisi mens sit rea.
In Haughton v Smith,('[1975] AC 476 at 491) Lord Hailsham LC stated that ‘the phrase means
“an act does not make a man guilty of a crime, unless his mind is also guilty” ’. He continued: ‘It
is thus not the actus which is reus [ie guilty] but the man and his mind respectively . . . it is as well
to record this as it has frequently led to confusion’ See also Uganda vs Nikolla (1966 EA 435 Sir
Udo Udoma CJ).
The maxim constitutes two aspects:
i) the outward conduct which must be proved against the accused (which is customarily known as
the actus reus,
ii) secondly, the state of mind which the accused must be proved to have had at the time of the
relevant conduct (customarily known as the mens rea).
The two should coincide in most crimes for the accused to be found guilty. See eg Mkirani v
Republic (Criminal Appeal E010 of 2021) [2021] KEHC 377 (KLR) (17 December 2021) para 28
(Judgment) the judge held that “prosecution must show that there has been an assault, and that the
assault has resulted in actual bodily harm. There must be an intention to assault (mens rea) and the
assault must have taken place (actus reus). The offence is committed when a person intentionally
or recklessly assaults another, thereby causing Actual Bodily Harm”.
Some criticism has been levelled at the actus rea and men’s rea definitions with proposals that they
be referred to as ‘prohibited conduct” and ‘state of mind’. However, the terms largely continue
being used.
The maxim has also been criticized on the basis that men’s rea is not always required for criminal
liability. In some offences, an accused can be found guilty even where they lacked the intention to
commit an offence eg under strict liability crimes.

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- However, for most crimes and most courts, the general position is that the commission of the
actus reus is not in itself criminal but only becomes so if committed with the requisite men’s rea.
As a general rule, imposing punishment is only justified when D was at fault. The requirement of
men’s rea seeks to give effect to just punishment.
-The requirement that an actus reus must always be proved is even more important than the
requirement of men’s rea. Evil intentions only become sufficiently dangerous to society to merit
punishment when the person has gone a considerable distance towards carrying them out.
As J Stephen stated “ all mankind would be criminals and most of their lives would be passed in
trying and punishing each other for offences which could never be proved.” Stephen History of
the Criminal Law Vol II (1883), 78. In Emma d/o Mwaluko vs R 1976 LRT 197, the court held that
no matter how harmful or reckless an act may be ,it is not an offence unless the law has forbidden
it.

ACTUS REA
Actus reus can be summarized as meaning an act (a deed, or sometimes an omission or commission
or state of affairs) or in some cases the occurrence of an event in which the accused is involved
indicated in the definition of the offence charged: Not just the criminal act but all the external
elements of an offence. The term actus reus covers all the physical aspects of a crime including
physical events that result from omissions when there is a duty to act.
Conduct is wider since it covers not only an act but an omission. Some acts don’t include an actus
rea.
It may include;
i) any consequences of that act, and
ii) any surrounding circumstances (other than references to the mens rea' required on the part of
the accused
iii) the result of the act or omission,
iv)and any excuse or defence indicated by that definition.
-In order to determine criminal liability, it is necessary to refer to the definition of the offence
charged in order to ascertain the precise nature of the prohibited conduct. The actus reus is every
part of the definition of an offence other than references to the mens rea required or to any excuse.
-Note ,an omission to act or the mere existence of a state of affairs may sometimes be used to find
the accused guilty with no actual act necessary.
Eg whether an article is an offensive weapon under the Penal Code may depend on whether the
accused intends to use it to cause injury.
The Actus reus of an offence.’ May by itself be insufficient to prove liability sometimes. The
definitions of offences often specify surrounding circumstances, such as time or place, which are
essential to render the act criminal.

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Sometimes the definition requires a consequence to result from the act, such as the consequence
of the unlawful death of another human being in murder, as an essential element in making it
criminal. Sec 202/ 203 PC
Actus rea constitute of (Acts, omissions and states of affairs)
(A) Acts/Commission
An act (ie doing something) is the most common basis of criminal liability. It is the commission
ordeed or the result of active human conduct, an act or the doing part of the offence. Sec 43
,43A,96,101,121, Sec 81 of the Narcotics Drugs and Psychotropic (Control)Act. Se c92 PC
Affray Any person who takes part in a fight in a public place is guilty of a misdemeanour; Sec
108(1)(a) knowingly gives false testimony (perjury)
-The nature of the requisite act varies from offence to _ offence.
The definitions of some offences indicate the requisite act precisely, eg in rape an act of vaginal,
anal or oral penetration by a penis is required; and in causing death by dangerous driving, an act
of driving(sec 46 Traffic Act).; eg Treason under Sec 40(1) b) of Kenya , involves not just plotting
to maim or injure or cause death to the president but the suspect expresses, utters or declares any
such compassings, imaginations, inventions, devices or intentions by publishing any printing or
writing or by any overt act or deed, For instance the prohibited conduct in the crime of burglary
under sec 304 of the PC is breaking and entering any building, tent or vessel used as a human
dwelling with intent to commit a felony therein; or (b) having committed a felony in any such
building, tent or vessel, breaks out thereof
-However in others , the act is not specified precisely eg obstruction of a police officer
In R v Larsonneur (1933) 24 Cr App R 74

The defendant, a French woman, was deported against her will, from Ireland to England, by the
Irish authorities. Upon her arrival she was immediately charged with the offence of 'being' an
illegal alien. Her conviction was upheld despite the fact that she had not voluntarily come to
England. The men’s rea was not considered onnly the conduct was considered.
See R v Deller [1952]
Principle: No actus reus, no crime.
Note that Commission includes permitting something forbidden to be done. Eg allowing a child
below 18 years to drive.

B. Omissions as Actus rea

- An omission to act (ie failure to do something) is a less common basis of criminal liability than
a positive act. Historically, the criminal law has been concerned mainly with prohibiting (and
punishing) positive actions (what has been done) rather than with imposing duties to act (and
punishing failure to do so).
-Currently, it is increasingly including the ‘failure to act.’

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Based on common law, an omission to act will usually suffice for criminal liability in two cases:
i) Where the definition of an offence is expressed in terms which refer to an omission;
ii) Where the accused was under a legal duty or obligation to act and omitted to fulfil that duty.
The distinction between an act and an omission may not be clear in some offences.

Where the definition of an offence refers to an omission

An omission to act can give rise to liability where there is the offence of willful neglect for a
person with responsibility for it, eg neglect of a child in a manner likely to cause it unnecessary
suffering or injury to health,° the offence of dishonestly retaining a wrongful credit,’ and the
offence of failing to disclose information which might materially assist in preventing an act of
terrorism.* eg sec 42(b) of the PC OF Kenya, it is crime where a person fails to disclose
information to the police , AG or magistrate knowing that a person intends to commit treason.

-If the accused was under a duty to act, which is recognized by the criminal law, and fails to fulfil
it.’ then they may be found guilty by omission. Words used for the crime include abandoning,
failing, neglecting, omitting.
EG Sec 244 f the PC provides that Any person who unlawfully does any act, or omits to do any
act which it is his duty to do, by which act or omission harm is caused to any person, is guilty of a
misdemeanour. Sentence 6 months.
Other offences of omission include the offence of failing to report a motor accident under Traffic
Act;
QUESTION; Is a stranger who stands by and watches a child drown in a shallow pool when he
could easily rescue the child guilty?
ANSWER; He commits no offence, because he is not under a legal duty to rescue the child.
If it is a pool worker employed who fails to save the drowning child? He is guilty based on owing
a duty under contract.

When does a duty to act arise

Duties to act are recognized by the criminal law may arise under Statute, but more commonly they
arise under the common law. The common law has developed particularly in this respect in relation
to a duty to act to protect another from physical harm. The focus is on omission that causes harm
especially where one had a duty or obligation.
The duty to protect another from physical harm can arise:
I) under a contract;
ii)through the holding of a public office;
iii)through parenthood (and possibly other close relationships); or

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iv) through the voluntary undertaking of care for someone unable to care for himself. Eg a mental
patient or minor

i) Omission to act while under a contract

A duty to act to protect another from harm can arise under a contract, where
the failure to fulfil that duty is likely to endanger life,or health. A duty
recognized by the criminal law which arises under a contract can be owed to third
parties to it to whom the contractual obligation is not owed.
Sec 216-219 deal with the legal duties .

Eg Sec 217 of the PC

It is the duty of every person who as master or mistress has contracted to provide
necessary food, clothing or lodging for any servant or apprentice under the age of
sixteen years to provide the same; and he or she shall be deemed to have caused any
consequences which adversely affect the life or health of the servant or apprentice by
reason of any omission to perform that duty.

Example 1 In Pittwood,( (1902) 19 TLR 37 a level-crossing keeper, failed in breach of

his contract of employment to close the gate when a train was approaching with the
result that someone was killed on the crossing. D was convicted of manslaughter after
Wright J had held that a person might incur criminal liability from failure to perform a
duty arising out of a contract and that that duty could be owed to road users even though
the contractual obligation was only owed to the railway company.

Example 2; The duty of a doctor to care for a patient is owed under a contract with the
patient or the medical insurance company in the case of a private patient,
or under a contract with the relevant body.

ii) An omission of a person under a duty to act to protect another from harm if he
holds a public office which requires him to do so.

For example, in Curtis, it was held that a local authority officer whose duty under
Victorian poor law was to administer welfare for the poor could have been convicted
of manslaughter when he had failed to provide medical assistance for a destitute person
if his omission caused the death of that person.
In Dytham, [1979]. QB 722, CA. "’ a uniformed police officer failed to intervene when
he saw a man being kicked to death some 30 yards away, it was held that he could be
convicted of the common law offence of misconduct in a public office.

Eg KDF ACT sec 96 (b) An offence if one fails to take proper care of any animal or
bird of which the person has the charge and which is used in the public service; or

iii) A parent is under a duty to his or her child to protect it from harm. Consequently,
a parent who fails to feed his or her child, or who fails to get medical attention for

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 the child, with the result that the child dies can be convicted of murder or manslaughter,
depending on his or her state of mind.' Childrens Act of 2022 Sec 16(7) ‘Any parent
or guardian who willfully neglects, fails or refuses to present his or her child in need of
health care to a health care facility for purposes of treatment commits an offence and
shall, on conviction, be liable to a fine not exceeding fifty thousand shillings or, in
default, to imprisonment for a term not exceeding thirty days’.
CASES; Tabitha Nyaguthie v Republic [2016] eKLR, Criminal Appeal 50 of 2016 –A child was a
Person with diasbility and the mother locked him in the house for long periods, he soiled himself
and fed on his own faeces...........found guilty of child neglect to s. 127(1) of the Children Act and
was convicted under s. 215 of the CPC to serve three years imprisonment.
Miriam Arot Meli v Republic [2021] eKLR, no 77 of 2019 - Miriam Arot Meli was charged with
the offence of Child neglect contrary to Section 127 (1) (a) of the Children Act. The particulars of
the offence were that on 27th May 2019 at Kachibora Trading Centre, Trans Nzoia County, being
the mother of EKM, a child aged 13 years, EKM, a child aged 11 years and VCM, a child aged 9
years, the Appellant abandoned and refused to provide basic needs to them.
IV) A person who voluntarily undertakes the care of another who is unable to care for
himself owes a duty to that person to protect him from harm. The undertaking of care may be
done by some express (or overt) act, as in Nicholls,’ (1874) 13 Cox CC 75.) where the accused
received into her home her young grandchild after the death of the child’s mother. On an indictment
for manslaughter by neglect, Brett J directed the jury that, if a person chooses to undertake the care
of a person who is helpless either from infancy, mental illness or other infirmity, he is bound to
execute that responsibility and, if (with the necessary mens rea) he allows him to die, he is guilty
of manslaughter.
The Court of Appeal’s decision in Stone and Dobinson” [1977] QB 354, CA. shows that a
voluntary undertaking of care may be implied from an accused’s conduct generally towards the
victim. D1’s sister came to live with D1 and his partner D2 in 1972. At the time she was able to
look after herself but later, being morbidly anxious about putting on weight, she denied herself
proper meals and by July 1975 became unable or unwilling to leave her bed. D1 and D2 made
ineffectual efforts to get a doctor and D2 undertook the task of trying to wash the sister and of
taking such food to her as she required, but they made no effort to contact the social services or
similar agencies. The sister was found dead in bed in an emaciated and filthy condition in August
1975. The Court of Appeal dismissed appeals by D1 and D2 against convictions for manslaughter.
On the question of whether D 1 and D2 had been under a duty to care for the sister, it was held that
there was evidence on which the jury could conclude that , by mid-July 1975 when the sister had
become helplessly infirm, D1 and D2 were under a legal duty to summon help or care for her
themselves. The evidence was that D1 and D2 were aware of the sister’s poor condition and had
attempted to get a doctor, and in D1’s case, the victim was his sister and occupied a room in his
house and in D2’s case, she had tried to wash her and provide food. From this the undertaking of
a duty of care could be inferred.
In R v Instan 1983 1 QB The defendant lived with her aunt who was 73yrs old. The aunt was
healthy until shortly before her death. During the last 12days of her life, she had gangrene in her
leg and could not fend for herself, move about nor summon help. Only the defendant knew of this

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condition. She appeared not to have given her aunt any food nor did she seek medical or nursing
aid, she was charged with manslaughter and convicted.
Lord Coleridge CJ “We are all of the opinion that this conviction must be affirmed. It would not
be correct to say that every moral obligation involves a legal duty, but every legal duty is founded
on a moral obligation. A legal common lawyer duty is nothing else than the enforcing by law of
that which is a moral obligation without legal enforcement. There can be no question that in this
case, there was a clear duty of the def to impart to the deceased so much as was necessary to sustain
life of the food which she from time to time took in, and which was paid for by the deceased’s own
money for the purpose of maintenance of herself and the def. There was therefore a common law
duty imposed upon the def which she did not discharge. The failure of the def to discharge her
legal duty at least accelerated the death of the deceased, if it did not actually cause it.

In Gibbins and Proctor (1918) 82 JP 287, CCA (The partner of the father failed to feed his
children with fatal consequences and with mens rea for murder, She was held guilty of murder
since, by taking money to buy food, she had assumed a duty towards the child).
See P O T v Republic [2015] eKLR, Criminal Appeal no 14 - This appellant was charged with the
Offence of Child Neglect contrary to Section 127 (1)(a) of the Children Act No.8/2007. The
particulars were that on diverse dates between the month of December 2013 and 14th day of
October 2014 at about 11.00 hours at [particulars withheld] Sublocation in Kisumu West District
of the Kisumu County, being a guardian of a child aged 15 years willfully neglected the said child
an act that caused suffering to his health. The child was suffering from some tumour on his face
and the appellant, his father instead of taking him for conventional treatment took him to some
herbalist and when it failed he resorted to prayers.
On appeal the 40 months custodial sentence against the appellant was set aside. Judge held ‘I do
reckon that the 6 months period he has served in jail has taught him a lesson and to be responsible
parent.’
Sec 216 of the PC; It is the duty of every person having charge of another who is unable by reason
of age, sickness, unsoundness of mind, detention or any other cause to withdraw himself from such
charge, and who is unable to provide himself with the necessaries of life, whether the charge is
undertaken under a contract or is imposed by law, or arises by reason of any act, whether lawful
or unlawful, of the person who has such charge, to provide for that other person the necessaries of
life; and he shall be deemed to have caused any consequences which adversely affect the life or
health of the other person by reason of any omission to perform that duty.
When does a duty to act come to an end?
A duty to act to protect another ends when, the relationship giving rise to it ends.
In addition, a mentally competent adult can release someone who owes him a duty, either before
or at the time that the duty would otherwise require action, even if it is contrary to his best
interests.”
e.g a mentally competent adult can refuse all food (eg in the case of a hunger-striking prisoner)
those caring for him must respect his wishes, whether his reasons are rational or irrational.”

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-The right of a mentally competent adult to self-determination prevails over any countervailing
interest of the State.
-Likewise, a mentally competent adult can refuse medical treatment. A doctor who carries out
treatment in such circumstances commits a battery, or a more serious offence against the person,”
depending on what harm, if any, is caused by the treatment (Re T [1993] Fam 95; Airedale NHS
Trust v Bland [1993] AC 789 just as someone who force-fed a hunger-striker or the like.
3. State of affairs as Actus rea
Besides acts and omissions some crimes do not require any act or omission which involves the
accused but merely the existence of the requisite state of affairs. It involves mostly being in;
(a) possession of something,
(b) being present in a prohibited place or event or
Eg sec 59 0f the PC ; Any person who is present at, and consents to the administering of, any oath,
or engagement in the nature of an oath, purporting to bind the person who takes it to commit any
offence punishable with death (Life imprisonment); sec 61 also talks of presence at an oath taking
ceremony for commission of other offences. Presence in this case is sufficient actus
( c) being in a certain state e.g it is an offence to be in charge of a vehicle on a road or other public
place when unfit to drive through drink or drugs.
Under the Alcoholic Drinks and Control act, No. 4 of 2010, Sec 33 (1). Any person
found by a police officer to be drunk and incapable or drunk and disorderly in or near a street,
road, licensed premises, shop, hotel or other public place may be arrested without warrant .Fine
not more than 500 sh or 3 months or both.;
Under sec 42(1) of the Traffic Act ; Any person who, when driving or attempting to
drive, or when in charge of a motor vehicle on a road or other public place, is under the influence
of drink or a drug to such an extent as to be incapable of having proper control of the vehicle, shall
be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings or to
imprisonment for a term not exceeding two years or to both.

i) Being in possession
It requires that one be in possession of
a)something prohibited, eg in Kadenge v R,1975 EA 244 the accused was charged with
being in possession of charms contrary to sec 5 of the Witchcraft Act
(b) possession of it for illegal purposes, such as cannabis sativa e.g sec 3 of Narcotic
Drugs and Psychotropic Substances (Control) Act (4 of 1994) any person who has in
his possession any narcotic drug or psychotropic substance shall be guilty of an offence.
c)being in possession for purposes of committing an offence or
d)possession of stolen or suspected to be stolen property Sec322, 323 of PC possession
of stolen property as evidence of guilt
e) possession without required permit, licence; An offence to possess a firearm without
a firearm permit. In Abdullahi Salat Adan v Republic [2021] eKLR, the accused was

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 found guilty of Being in possession of a Firearm without a license contrary to Section
4A (1)(a) of the Firearms Act 2012
Possession by itself becomes the main ingredient to be proven.
ii)Custody and control
In Lokempen Loberua vs R Nrb CACRA 7 of 1984, the offence of stock theft which requires
possession, it was held that the prosecution had to prove that the accused was in exclusive control
of the item as to establish possession. Since the cattle were in a different location, it was found that
the accused lacked exclusive control over the cattle and was not in control of the person who had
them. He merely led them to the place.
-If the actual possession is in the custody of someone else other than the accused, the accused may
be guilty of constructive possession. In John Vs R 1969 EA 136 it was held that to establish
constructive possession, it should be proven that the accused had control over his co accused or
the person who had actual possession of the item.
Sec 4 of the PC defines to ‘be in possession of” or “have in possession” as including not only
having in one’s own personal possession, but also knowingly having anything in the actual
possession or custody of any other person, or having anything in any place (whether belonging to
or occupied by oneself or not) for the use or benefit of oneself or of any other person;
ie. Means if there are more than one person with the knowledge of the possession , they are all
deemed guilty. Knowledge is the men’s rea, possession the actus rea.
It is a defence to possession to indicate that it was lawful, or it was planted on the accused.
d) Circumstances as part of actus rea
The circumstances under which a crime is committed or omitted forms part of the actus rea. E.g in
Rape cases, there has to be sexual intercourse with a lack of consent as the circumstance.(Sec 3
of SOA) For defilement it is the carnal knowledge of a minor which is the circumstance under Sec
8 of the Sexual Offences Act).For burglary, it is that the person breaks in at night and is a trespasser
not authorized which are the circumstances.
e) Consequences as part of actus rea
Some offences require a result for the offence to be complete. For murder under 202 and 203 of
the PC, the result or consequence must be death or unlawful killing.
f) Causation
The offence must be linked to the accused. The harm caused through omission or commission
should be linked to the accused for him to be found guilty. There can be several causes of harm.
The dominant factor or event that caused the harm must be identified and linked to the accused.
Where the harm would not have happened ‘but for’ that event or act. This an innocent person my
cause harm unknowingly and be held liable.
Causation is important where;
i) No physical involvement or participation of accused

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 ii) Indirect participation by accused
iii) Where another person has intervened
iv) Where the victim’s conduct affected the result
v) Where there is contributory negligence of the victim

Causation aligns with;

 No criminal liability unless the whole actus reus is satisfied.
A person who had the mens rea for an offence cannot be convicted of that offence if he has not
committed its actus reus.For murder, the person should have caused the death.
I)Factual causation
But for the defendants’ action that consequence would not have occurred.
E.G. D stabs P who is later stabbed by X. P dies from the effect of both wounds. Or D stabs P who
receives emergency treatment in hospital from which he dies.
In these two cases, the death would not have occurred, when and as it did, but for D’s
conduct, which is therefore a factual cause.
In White ([1910] 2 KB 124, CCA. ) for instance, D put potassium cyanide in his mother’s drink,
intending to kill her. Shortly afterwards the mother was found dead with the glass, partly full,
beside her. The medical evidence was that she had died from a heart attack, and not from poisoning,
and that the quantity of potassium cyanide administered was insufficient to cause her death. White
was acquitted of murder (but convicted of attempted murder) because, although the intended
consequence -death - had occurred, it had not been caused by his conduct and thus an element of
the actus reus of murder was missing.
In Republic v Fredrick Mbindyo Mulei [2021] eKLR the accused was charged with murder,.The
witnesses did not see the actual killing but the evidence proved that he helped dispose of the body.
The High Court acquitted him of murder but found him guilty of being an accessory after the
murder. In effect the actus rea of murder and the causation was not proved.
- In Duncan Mugesi Masera v Republic [2019] eKLR the appellant submitted that the prosecution
did not establish that it was the act of the appellant that caused the death of the deceased; that while
the stabbing incident was alleged to have taken place on 15th July 2010, the deceased died on 2nd
September 2010, 47 days later, and there was no connection between the two events; that between
15th July 2010 and 2nd September 2010 the deceased moved hospitals and no evidence was led
regarding his condition during hospitalization; that there is therefore reasonable doubt as to
whether there were intervening circumstances that would have caused the death. The case of
Gichunge vs. Republic [1972] E. A. 546 was cited. The Ct of Appeal dismissed the appeal, finding
that the stab wound was the cause of death.
 In some instances the suspect caused the harm but another person intervened and appeared
to be the more immediate and direct cause of the harm. This is referred to as a break in the
chain of causation. This is the principle of NOVUS ACTUS INTERVENIENS. In Gichunge
vs R (EA ) a murder charge was substituted with grievious harm on the basis that the

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 possibility of death was likely caused by an intervening circumstance with no proof that
the accused caused it.
II) Legal causation
Legal Causation - Substantial cause does not mean principal or predominant, it merely means that
the defendant’s contribution to the consequence must be more than a minute or negligible
contribution.
e.g. in R V Adams ( 1957) Crim LR 365 – in a case where a doctor administered drugs, which
would shorten life, in order to ease severe pain. Devlin J said that “ if life were cut short by weeks
or months it was just as much murder as if it were cut short by years. But that does not mean that
the doctor aiding the sick or dying has to calculate in minute or hours, or perhaps in days or weeks,
the effect on the patient’s life of the medicines which he administers. If the first purpose of
medicine – the restoration of life – can no longer be achieved, there is still much for the doctor to
do, and he is entitled to do all that is proper and necessary to relieve pain and suffering even if
measure he takes may incidentally shorten life” PS. Shortening of life by weeks or months and
by minutes and hours is that the former involves a more than negligible acceleration of death
whereas the latter does not. The possible equation of shortening life by days or weeks with
shortening it by minutes or hours would seem to be generous and is of doubtful validity. Such a
shortening would seem to be a more than negligible acceleration of death, particularly where it is
by weeks. Even with a liberal application, a defence based on causation for doctors in the present
situation has a very limited scope.
iii) Vic ms Contributory Negligence
Unless it is so gross as to prevent the defendant’s act being a substantial cause, the contributory
negligence of the victim is no defence
e.g. in Longbottom (1849) 13 JP 270 the victim who was deaf was walking in the middle of the
highway and was run over by D who was driving too fast. It was held that D could be convicted
of manslaughter notwithstanding any contributory negligence on the part of the victim and walking
as he had done.
In Abdi Kadir Mohammed & another v John Wakaba Mwangi [2009] eKLR - For the father to
have allowed him to attend the show on his own despite his tender years, there is no doubt that the
deceased, whom the respondent described as a clever boy did possess the necessary capacity to be
aware of danger and the need to take precautions for his own safety. I am of the considered view
that 10% would be the reasonable contribution on his part.
iv) Victim’s neglect of treatment or maltreatment of self
If following the defendant’s act, the victim neglects or maltreats himself, this does not prevent his
subsequent death being legally attributable to the defendant if the defendant’s act is a substantial
and operation cause of death.
E.g. in R v Wall (1802) 28 State Tr 51 – the governor of a colony was held guilty of the murder of
a soldier whom he had sentenced to an illegal flogging, although it was argued that the victim
might not have died if he had refrained from drinking spirits while in hospital in consequence of
the blows he had received. MacDonald LCB directed the jury that “there was no apology for the
man if he puts another in so dangerous and hazardous a situation by his treatment of him, that some
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degree of unskillfulness and mistaken treatment of himself may possibly accelerate the fatal
catastrophe”
e.g. in R V Holland (1957) Crim LR 702 – D deliberately inflicted some wounds on the deceased.
One of these caused blood poisoning in a finger, and the deceased was advised to have it
amputated. Had he done so, his surgeon stated, his life would probably have been saved. However
lock jaw set in and death ensued. The jury were directed that it made no difference whether the
wound was instantly mortal of its own nature, or became the cause of death only by reason of the
deceased’s not having adopted the best mode of treatment. A verdict of guilty of murder was
returned.
V) When a victim dies or injures himself in trying to escape
E.g. in R v Roberts (1972) 56 Cr App Rep 95 CA – The accused had tried to remove the coat of a
girl in a moving car, indicating that that he meant to take liberties with her against her will. The
girl jumped out of the car and was injured. D appealed against the conviction for assault
occasioning bodily harm on the ground that the jury was not directed to consider whether he
foresaw that she would jump and suffer injury. The Court of Appeal rejected this saying that the
only issue was one of causation, the question of whether the victim’s actions were the natural result
of D’s conduct. Although this test has been described as being applied on the basis of what a
reasonable person “in the defendant’s shoes would have foreseen”, that reasonable person is not
endowed with the defendant’s age and sex or any other characteristic.
The case of Majoram (2000) Crim LR 372, CA explains in detail why an objective rather a
subjective test is necessary – namely that one co-defendant would be found not guilty because he
did not foresee the victim’s reaction while another doing exactly the same would be found guilty
because he foresaw the victim’s reaction – due to different victims.
vi) Causation when there is a Pre-existing condition in the victim
The existence of a medical condition which rendered V more susceptible to death or injury, for
example haemophilia, does not prevent legal attribution of that consequence to D. D must take his
victim as he finds him.
In Hayward, 1908) 21 Cox CC 692 ; The Accused arrived home in a state of agitation, saying that
he was ‘going to give his wife something’ when she came home. On her arrival there was an
altercation and the wife ran into the road, closely pursued by D who was making violent threats
towards her. The wife fell down in the road and was found to be dead when she was picked up.
The medical evidence was that the wife was in good health apart from a persistent thymus gland,
but that in this condition death might result from a combination of fright and physical exertion.
The jury were directed that the wife’s susceptibility to death, whether D knew of it or not, was
irrelevant if they were satisfied that her death was accelerated by his threats of violence.
b. pre-existing condition also applied to the whole person and to mental conditions and to victim’s
religion
E.g. Blaue (1975) 3ALL ER 446, CA – the deceased girl, who had been stabbed by D was a
Jehovah’s Witness and consequently refused to have a blood transfusion which was required before
surgery and which might have saved her life.

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vii) Intervening acts by the victim or a third party
-where although the required consequence would not have occurred without the defendant’s act,
an intervening act by the victim or a third party contributed to it.
viii) Where the defendant’s act is an immediate/substantial cause makes the accused liable
E.g. in R v Malcherek: Steel (1981) 2 All ER 422, CA – both defendants injured their victims
severely(brain damage) and were put on life support machines. The machines were turned off after
doctors diagnosed brain stem death, (although they had not carried out all the relevant tests) and
the victims died soon after.
The defendants were convicted of murder. On the question of which part the switching off played
towards the death, the Court of Appeal said that that was immaterial and even if the switching off
had been the actual cause of death, because the defendant’s actions were a substantial and operating
cause of death.
Eg In the case of Ricarda Njoki Wahome Vs Attorney General & 2 Others (2015) eKLR, the court
stated as follows: -
“A doctor can be held guilty of medical negligence when he falls short of the standard of reasonable
medical care and not because in a matter of opinion, he made an error of judgment. For negligence
to arise there must have been a breach of duty and the breach of duty must have been the direct or
proximate cause of the loss, injury or damage. By proximate is meant a cause which is a natural
and continuous chain un broken by any intervening event, produces injury and without which
injury would not have occurred. The breach of duty is one equal to the level of a reasonable and
competent health worker. The plaintiff in her case must prove the following in order to show
deviation on the part of the second and third defendants.
1) That it was a usual and normal practice
2) That a health worker has not adopted that practice
3) That the health worker instead adopted a practice that no professional or ordinary skilled person
would have taken.”
-Where the defendant’s act is not the immediate cause of the required circumstances but
nevertheless contributes to it, by providing the setting for an intervening act by someone else which
is the immediate cause of the consequence the situation is as follows “the free deliberate and
informed intervention of a second person, who intends to exploit the situation created by the first
but is not acting in concert with him, is normally held to relieve the first actor of criminal
responsibility”.
Under Hart and Honore’s principle, an intervening act by the victim or a third party which is the
immediate cause of the consequence breaks the chain of causation from the defendant’s act if it is
free, deliberate and informed. If however this act is not free (duress or self defence), or deliberate
(may be instinctive or blind panic – bee sting) or informed (does not appreciate due to mistake or
youth or mental incapacity), the chain of causation is not broken.
E.g. in Pagett (1983) 76 Cr App Rep 279, CA – the D in order to resist arrest held a girl in front of
him as a shield and fired at armed policemen who fired back instinctively and killed the girl.
Dismissing the appeal against a conviction for manslaughter, the CA held that if a reasonable act
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of self-defense or in the execution of duty, by a third party against an act by a defendant cause the
death of the victim, the causal link between the defendant’s act and the victim’s death is not broken.
The policemen’s instinctive act of firing back was neither free nor a deliberate one.
ix) Intervening medical treatment
E.g. in R V Smith (1959) 2 QB 35 a person who had been stabbed by D in a barrack room brawl
was twice dropped on the way to hospital and when he got there he was given treatment which
was thoroughly bad and might have affected his chances of recovery. He died some two hours
after being stabbed. The Courts Martial Appeal Court held that these events did not break the
chain of causation between the stabbing and the death. “It seems to this court that if at the time of
death, the original wound is still an operating cause and a substantial cause, then the death can
properly be said to be the result of the wound, albeit that some other cause of death is also
operating. Only if it can be said that the original wound is merely the setting in which another
cause operates, can it be said that the death did not result from the wound. Only if the second cause
is so overwhelming as to make the original would merely a part of the history, can it be said that
the death does not flow from the wound.
E.g. in R V Jordan (1956) 40 Cr App Rep 152 CCA – the defendant stabbed the deceased. However
the defendant was thereafter given terrmycin after he had shown he was intolerant to it and as a
result he died.
However in R V Chesire (1991) 3 All ER 670 – in an argument in a fish and chips shop, D shot P
in the leg and stomach, seriously wounding him. After an operation, P developed respiratory
problems and a tracheotomy tube was inserted to assist his breathing. P died in hospital over two
months after the shooting, the immediate cause of death was the narrowing of the wind pipe where
the tracheotomy tube was inserted, such a condition being a rare but not unknown complication
arising out of a tracheotomy. P had complained of further breathing difficulties and suffered a
chest infection after the tracheotomy. At the trial there was evidence that P’s wounds no longer
threatened his life at the time of his death and his death was caused by the negligence of the hospital
staff in failing to diagnose and treat P’s respiratory condition. Court held that that complication
was a direct consequence of D’s acts which remained a significant cause of death. In addition they
stated that the chain of causation would not be broken unless the negligent treatment was so
independent of the defendant’s conduct that in itself, so potent so as to render the contribution to
death of the defendant’s conduct insignificant.
x) Contribution by a third party
The defendants conduct need not be the sole/main cause and even through a third party has
substantial contribution to someone’s death, the death can be legally attributed to the defendant if
his act is also a substantial cause.
E.g. in Benge (1865) 4 F & F 504 – D a foreman Platelayer, misread the timetable so that the track
was up when the train arrived. D had placed a signalman with a flag up the line but only half as
far as he should have been sent under the company’s rules and the engine driver who was not
keeping a very sharp lookout, did not see the signal in time to stop. The resulting accident cause
several deaths. If the signalman had gone the proper distance and the driver had been keeping a
proper look out, there would not have been an accident, but D was convicted of manslaughter after
the judge had ruled that if his conduct was a substantial cause of the accident, it was irrelevant that

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the actions of the other had contributed to it. In a case like these, the other railway men could also
be convicted of homicide in relation to the same death if their contribution was also substantial,
and this would be possible whether or not there were acting in combination.

g) Voluntariness
A person is criminally liable for an offence only if it voluntarily done. Willed bodily movement,
so that if A pushes B against C and causes C to fall over, we attribute
the pushing of C to A, not to B. If the person was not in control of their body or mind at the material
time they cannot be said to have acted voluntarily. The leading case Bratty vs AG of Northern
Ireland, 1963 AC 386 Lord Denning held that no act is punishable if it is done involuntarily. These
include a person sleep walking; an involuntary spasm; muscle reflex without control of the mind;
convulsion or a person who is not conscious of what they are doing. That is why for instance
intoxication (sec 13(2) of the PC) or insanity (sec 12 PC) is a defence but only if the effect was to
cause the person not to know what they were doing. 9.
In sec 9(1); a person is not criminally responsible for an act or omission which occurs
independently of the exercise of his will, or for an event which occurs by accident.

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