THE LAW OF MURDER The law of murder is set out in common law.

The legal definition of murder is 'the unlawful killing of a human being, with malice aforethought'. With this in mind, the prosecution can thus aver that the acts or omissions thereof of X, of stabbing Y, to his death amounted to murder as provided for by S. 203 of the Penal Code of the Laws of Kenya. There is however to be noted other conditions need to be met for a competent court of law to confirm a charge of murder. These are the presence of actus reus and mens rea, with these two conditions forming the basis of Xs defense. For this core reason, it would be advisable that the prosecution would consider having a second or alternative charge of manslaughter as stipulated by S. 202 of the Penal Code. The actus reus and mens rea of Murder The actus reus of murder is the unlawful killing of a human being. The mens rea of murder is malice aforethought. However this term is misleading in that it suggests some sort of ill will and pre-planning. Malice aforethought has been interpreted in the courts as meaning intention to kill and intention to cause grievous bodily harm. This was as was held in R v Vickers1 and in R v Cunningham2. The mens rea of murder covers not only direct intent, but also extend to oblique intent where the current test established in R v Woollin3 applies. DEFENSE 1: SELF-DEFENSE In light to the above, then X would need to raise a defense that would lead the court if not to fully find him innocent of the murder charge, to either reduce it to manslaughter or leave reasonable
1 2

R v Vickers [1957] 2 QB 664 R v Cunningham [1982] AC 566 3 R v Woollin [1998] 4 All ER 103, HL

doubt as to lack a conviction. For X to rely on a defense of self-defense he needs to meet the stipulations of S. 17 and S. 241 of the Penal Code. These are; use reasonable force, there be imminent danger that is proportional to the threat at hand and thus blame will still hold and also the common law requirement of having a duty to retreat. Reasonable Force The general principle is that the law allows only reasonable force to be used in the circumstances and, what is reasonable is to be judged in the light of the circumstances as the accused believed them to be (whether reasonably or not). In assessing whether a defendant had used only reasonable force, Lord Morris in Palmer v R4, felt that a jury should be directed to look at the particular facts and circumstances of the case. His Lordship made the following points:

A person who is being attacked should not be expected to "weigh to a nicety the exact measure of his necessary defensive action".

If the court thought that in the heat of the moment the defendant did what he honestly and instinctively thought was necessary then that would be strong evidence that only reasonable defensive action had been taken.

A court will be told that the defense of self-defense will only fail if the prosecution show beyond reasonable doubt that what the accused did was not by way of self-defense.

Notably, in R v Owino5, the Court of Appeal firmly denied that Scarlett is to be interpreted as permitting a subjective test in examining whether force used in self-defense is reasonably

4 5

Palmer v R [1971] AC 814 R v Owino [1995] Crim LR 743

proportionate. The true rule is that a person may use such force as is (objectively) reasonable in the circumstances as he (subjectively) believes them to be. Notably, excessive force is a rather objective matter and his mere failure to use any weapon as opposed to his assailant, Y, could be relied as proof that he didnt use excessive force. Imminence of the Threatened Attack It is not absolutely necessary that the X was attacked first. As Lord Griffith said in Beckford v R6: "A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike." In this case, the imminence of an attack is not in doubt and X can thus raise a defense as to the intended attack using a knife by Y as warranting his defense leading to the death of Y. A Duty to Retreat There is no rule of law that a person attacked is bound to run away if he can. X however needs to demonstrate that at the time he did not want to fight, the best evidence that he was acting reasonably and in good faith in self-defense; but it is no more than that. A person may in some circumstances act without temporizing, disengaging or withdrawing; and he should have a good defense.7 This statement was approved in:

6 7

Beckford v R [1988] AC 130 Smith and Hogan, Criminal Law, 1996, p264

R v Bird8 - where the Court of Appeal quashed the defendant's conviction saying that it was unnecessary to show an unwillingness to fight and there were circumstances where a defendant might reasonably react immediately and without first retreating. It is therefore, a matter for the court to decide as to whether the defendant acted reasonably in standing his ground to defend himself, or whether the reasonable man would have taken the opportunity to run away. To this end, X would need to proof that he was acting as a reasonable man in his deciding to defend himself from the armed assailant. DEFENSE 2: NECESSITY Necessity can also be a complete defense to murder. It is basically a common law defense and operates only when other defenses are not applicable. There are two distinct rationales for the defense of necessity or emergency. As was held in R v Rogers9, X needs to proof that his actions were stimulated by an urgent situation of imminent peril that existed in which honestly believed on reasonable grounds that it is necessary for him to act leading to the death of Y to avoid the threatened danger. Further, he can rely on this defense basing on the aforementioned case as his acts were disproportionate to the threatened danger. The first regards the conduct of the accused as justifiable in so far as it caused less harm than that which it thereby avoided. The second rationale regards the conduct of the accused as excusable due to the grave predicament confronting him or her. The law would be unduly harsh if it demanded more from the accused than could be expected of ordinary people when confronted with similar threats or dangers. A critical look into these two conditions leaves no doubt that X could rely on the defense of necessity to claim that not only was his acts in attempt to cause less harm but also
8 9

R v Bird [1985] 1 WLR 816 R v Rogers (1996) 86 A Crim. R 542 (BC9602574)

that his acts were also excusable as he acted at all times as a reasonable man with no intentions to cause the death of Y. Another form which the common law defense of necessity might take is a plea of impossibility of compliance with the law through no fault of the accused. For X to rely on this defense, he would have to proof that he acted out of necessity. This is in probable light to the fact that the attack by Y would have left him either in a worse of situation than he previously was, in this case hurt, or even death. X was thus necessitated to act in a manner that would defend him from such a precarious situation, and his reasonable actions led to the death of his assailant Y. As to a defense on basis of impossibility of compliance with the law through no fault of the accused, X could claim that he would have failed to comply to rely to the law had he been under obligation not to react to the attack. This is because the attack posed an imminent danger to his life. DEFENSE 3: PROVOCATION As provided for by S. 207 of the Penal Code, X can raise a defense of provocation as he acted on the heat of the person and his acts led to the death of Y. This defense can however only be relied upon if the principles laid down in R v Doughty10 are met. X also needs proof that his acts were as would be expected of a reasonable man as was determined by Lord Diplock in DPP v Camplin.11 Once there is sufficient evidence of provocation to leave to the court, it is the prosecution who bears the burden of proving beyond a reasonable doubt that the defense of provocation has not been established. If the prosecution does not succeed in proving beyond reasonable doubt that the accused was not provoked in accordance with the defense of provocation, the accused will be
10

R v Doughty [1986] DPP v Camplin [1978] HL.

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convicted of manslaughter instead of murder. The maximum statutory penalty for manslaughter is life imprisonment, in contrast to the maximum penalty of penal servitude for life which may be imposed for murder. This would be a preferable defense for X with the fact that the initial threat was posed by Y. The mere attack with a knife by Y was enough to provoke X to react in a manner that the court would find reasonable warranting him to try and defend himself from the attack eventually leading to the death of Y. Conclusion With the facts presented by both sides, there is probable room for either the prosecution or the defense to win the case. The prosecution would win the case against X if they proved that despite their defense, he used excessive force, and as such his defense failing to meet the threshold of being so. However with their being imminent danger, the defense can argue that X did not have the weapon, and as such only used reasonable force and aced like a reasonable man would. He also lacked mens rea and as such could not be guilty of murder and if anything could only be culpable of manslaughter.