JESICA CLEMENT

Mpishi, the housekeeper of Tajiri, persuaded her friend Mkora to help her
steal money ( Intention )from her master’s bedroom safe amounting to
Kshs. 500,000. Mpishi promised she would ensure Mkora Got access to the
safe through the back door which was normally closed. They secured the
services of Mhuni, a taxi driver, who agreed to drop Mkora at Tajiri’s
residence (Aider)and then park outside the back entrance and wait to drive
Mkora away with the money once the mission was accomplished. On the
fateful day at 630pm (Burglary Section 304(2) of Penal Code) Mkora got
in through the back door which Mpishi had left slightly open as agreed. He
had brought Mtoto, his eight-year-old son along, (Section 14(1) of Penal
Code , Children 8yrs & below) whom he carried and placed on top of the
safe to open the lock. Mpishi had given him the code to unlocking the safe.
Mkora read out numbers and the boy punched then into the lock. The safe
sprung open, but when Mkora looked inside, he found it was empty.
Disappointed and confused, he carried his son and rushed to leave the house
through the back door but was accosted by Zed, a security guard. Mpishi
then appeared screaming, “Thief ! ”! Mhuni on seeing this sped away from
the scene. Mkora was taken to the nearby police station with his son and
arrested. The security guard explained that when Mkora broke into the
house, he had been guarding the front gate of the residence. He had earlier
checked the back door and the back gate, which he confirmed had both been
locked. (Actus Reus )He had heard some strange noises coming from the
back, and had gone to check it out. The puzzled guard told the police that
though Mkora had no keys he had managed to access the house though back
gate and back door of the residence which were now wide open.(Actus
Reus ) A week later Mpishi and Mhuni were also arrested.

Discuss the parties’ respective criminal liability with appropriate illustrations.

INTRODUCTION

The parties may or may not be liable for the offence . To establish this we
have to establish liability based on the parties of an offence so that we know
the level of responsibility, the Actus Reus of the offence and the Mens Rea of
the offence.

ISSUES

1. Whether Aiders of commission of crime bear the same criminal

3 Whether there is sufficient Actus Reus and Mens Rea for the offence so as
to establish liability of the parties

4.Whether the inchoate offence of Attempt is present in the fact where Mkora
found the safe Empty

5. .Whether Children of 8 years are criminally responsible for criminal

6. Whether Mpishi’s shouting was a withdrawal from their common purpose

LAW

1.Section 20 of Penal Code on Principal offenders

2. Section 21 of Penal Code on Joint offenders

3. Section 305 (1) (a) ,(b) and (c) of Penal Code on Entering dwelling house
with intent to commit felony

4. Section 21 of Penal Code on Joint Prosecution of common purpose

5.Section 388(1) and (2) of Penal Code on Attempt

6. R vs Bainbridge (1960)

7. Section 14(2) of Penal Code on Immature age

8. R v Whitefield (1984)

ANALYSIS

1.Whether Aiders of commission of a crime bear the same criminal

Section 20 (1) (a) (b) and (c)of Penal Code states that When an offence
is committed ,every person actually does the act or makes the omission
which constitutes the offence ,every person who does or omits to do any act
for the purpose of enabling or aiding another person to commit the offence
and every person who aids or abets another person in committing the
offence is seemed to have taken part in committing the offence and to be
guilty of the offence and may be charged with actually committing the
offence.
In this case:

Mkora broke into the house and used his son to open Tajiri’s safe to
steal money from it which fulfilled subsection (1)(a) of Section 20 of Penal
Code .

Mpishi slightly opened the back door which was normally closed to
ensure Mkora got access to the safe as agreed which fulfilled
subsection (1) (b) and (c) of Section 20 of Penal Code

Mhuni brought his taxi to enable Mkora escape after stealing which
fulfilled subsection (1) (c) of Penal Code

Section 21 of Penal Code states that when two or more persons form a
common intention to prosecute an unlawful purpose in conjunction with one
another ,and in prosecution of such purpose an offence is committed of such
a nature that it’s prosecution was a probable consequences of prosecution of
such purpose, each of them is deemed to have committed the offence

In this case both Mkora, Mpishi and Mhuni had the Common intention of
entering and stealing money from Tajiri’s safe because they agreed ok how
to prosecute it

2.Whether a person who offers property to be used for criminal

In R vs Bainbridge (1960) It was held defendant was a principal offender

In this case Mhuni offered his taxi and offered to come to pick Mkora after he
completes the robbery hence a principal offender

3.Whether there is sufficient Actus Reus and Mens Rea for the
offence of “Entering dwelling house with intent to commit felony
therein”

Section 305 of Penal Code states that any person who enters any
building ,tent or vessel used as a human dwelling with intent to commit
felony therein is guilty of a felony and is liable to imprisonment of five years .
If committed in the night offender is liable to imprisonment for 7 years
We have to prove that Mkora broke and entered Tajiri’s house ,and intent and
commitment of felony and the time at which he did it in order to establish
the offence of Breaking into a building with intent to commit a felony.

Actus Reus Of the offence of Breaking into a dwelling house with intent to
commit a felony which is entering any building, tent or vessel used as
human dwelling .Mkora had no keys but he entered through the back gate
and back door of Tajiri’s compound. He committed it at 6:30pm which was
around night .

Mkora had formed the Mens Rea of the offence of entering dwelling house
with intent to commit felony. By entering he intended to commit the felony of
stealing the money from Tajiri’s safe because he came with his son who
punched the code of the safe and the safe sprung open only to find it empty.
He tried to escape but was accosted by Zed .

4. Whether the Inchoate offence of Attempt is present where Mkora

Section 388(1) and (2) of Penal Code states that when a person
intending to commit an offence behind to put his intention into execution by
means adapted to it’s fulfillment and manifests his intention by some overt
act but doesn’t fulfill his intention to such an extent as to commit the offence
he is deemed to attempt to commit the offence . It is immaterial 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 further prosecution of his intention.

In this case Mkora attempted To commit the stealing . He used his son to
open the safe using the code he gave him to open the safe. It is therefore
immaterial whether he found money in the safe or not ,as far as he put his
intention into execution by entering the house and manifested his intention
by opening the safe . Hence finding the safe Empty is immaterial .

5.Whether a 8 year old child is responsible for criminal offences

Section 14(2) of Penal Code states that A person under the age of 12
years is not criminally responsible for an act or omission unless it is proved
that at the time of doing the act or making the omission he had the capacity
to know that he ought not to do the act or make the omission .
In this case Mkora’s son did not have the capacity to know that he ought not
to do the act of punching the code on Tajiri’s safe because his Father had told
him to hence not criminally responsible.

6.Whether Mpishi’s Shouting was a withdrawal from their common

In R v Whitefield (1984) it was held that mere change of mind which is not
supported by evidence of any action on part of accused will not suffice to
relieve him of criminal responsibility. Accused must take some step to
indicate that he no longer adheres to common intention- usually something
to stop further commission of offence .

In this case Mpishi shouted after Zed had nabbed Mkora which was not a
step to show his withdrawal from their common purpose of stealing .

CONCLUSION

Mpishi , Mkora and Mhuni will be equally liable for the offence of Entering
dwelling house with intent of committing a felony therein which they
committed at night (6:30pm) since they are all principal offenders .