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THE CATHOLIC UNIVERSITY OF EASTERN AFRICA

DEPARTMENT OF LAW

FACULTY OF LAW

CRIMINAL LAW II

QUESTION:
DISCUSS THE OFFENCE OF ROBBERY AND EXTORTION.

NAME: REG.NO:

ANN MBUGUA 1014778

DIANA NYAMANGA 1015223

JULLIET WANJIRU 10144687

SHEILA RASHID 1014898

STEVE MWANIKI 1014923

SUBMITTED TO: MR. NYABERI

PRESENTED BY: GROUP 17


ROBBERY.

This is an offence under the unlawful taking and use of property. The definition of robbery as per
the Laws of Kenya Cap 63 Penal Code Chapter XXVIII on robbery and extortion, sec 295
is:

Any person who steals anything, and, at or immediately before or immediately after the
time of stealing it, uses or threatens to use actual violence to any person or property in
order to obtain or retain the thing stolen or to prevent or overcome resistance to its being
stolen or retained, is guilty of the felony termed robbery.

In this definition robbery is being described as a felony asserting the seriousness of the crime. A
felony can be defined as a crime sufficiently serious to be punishable by death or a term in state
or federal prison as distinguished from a misdemeanor, which is only punishable by confinement
in a county/local jail and/or a fine1.

In the offence of robbery under section 296(2) the basic ingredients are:

The involvement of more than two persons during the offence or

The use of or the threat of force immediately before, during or immediately after the
robbery.

The force is used to effect the robbery or to suppress resistance by the victim or prevent
recovery of the items robbed off.

Gathuri Njuguna v R [1965] EALR 58


The accused had stolen property from a house into which he had broken into and he was
apprehended while running away and used force to retain the stolen property. It was held in this
case that this did not amount to robbery.

1
Retrieved from www.dictionary.law.com/Default.aspx at 22:00pm on Thursday 17th June
2010.
Section 8 of the Theft Act defines robbery:

A person is guilty of robbery, if he steals and immediately before or at the time of doing so,
and in order to do so, he uses force on any person or puts or seeks to put any person in fear
of being then and there subjected to force. A person guilty of robbery, or of an assault with
intent to rob, shall on conviction on indictment be liable to imprisonment for life."Fear
must be at the time of the act or immediately preceding it.2

According to the Penal Code3 the types of robbery are located in s296, s.297 and s298 and the
First Schedule in the Criminal procedure Code4 gives their respective penalties. They are:

As per s.296 (1) which provides for simple robbery, where one may be arrested
with/without warrant and imprisoned for 14years.

THE MENS REA

The mens rea in the offence of robbery is having the intent to obtain or retain the thing stolen or
prevent or overcome resistance to its being stolen or retained. The defendant must have the Mens
Rea of theft i.e. dishonesty and intention to permanently deprive.

Obviously robbery requires at least intent to steal. But it seems to require more than this. It could
be argued that if B intends to steal, it will be robbery if in fact there is some use of force, or in
fact he puts someone in fear, whether he intends to do so or not. But it seems clear that B
must use or threaten force in order to steal and a merely accidental use of force would not be
done in order to steal.

2
Gifis S.H., Law Dictionary. 2nd Edition. Barrons Educational Series, Inc. New York, U.S.A.
(1984)
3
Laws of Kenya Cap 63
4

Laws of Kenya Cap 75


THE ACTUS REUS
This can be seen in the following acts:

Theft
Immediately before or at the time of stealing.
Use of force or threat of force.
On any person
Use or threat of force in order to steal.

Theft

Robbery is theft aggravated by the threat or use of force. The elements of theft must be
established if a conviction for robbery is to be obtained. Thus for example, a person who
forces another to hand over money, believing that he has a legal right to it; he is not guilty
of theft:

R v Robinson [1977] Crim LR 173

R ran a clothing club. He was charged (with others) with robbing and assaulting I, who with his
wife was a contributor to the club. Is wife owed 7 pounds. It was the prosecution case that R and
2 others had approached him in the street late at night, R, brandishing a knife and that a fight
ensued during the course of which a 5 pound note fell from Is pocket. R had snatched the note
and asked if I had any more many as he was still owed 2 pounds. Rs defense to robbery, reduced
by the jury to theft, was that I gave him the money and he had received it willingly as repayment
of the debt and that it was not dishonestly appropriated. R appealed on the ground of misdirection
to the jury that an honest belief by the defendant that he was entitled in law to get his money in a
particular way was necessary before he could avail himself under section 2(1) (a) of the Theft
Act 1968.

Held, allowing the appeal, that the law as laid down in Skivington [1968] QB 166 had not been
altered by section 2 (1) (a) of the Theft Act 1968 and that it was necessary for a defendant to
show that he had an honest belief not only that he was entitled to take it in the way that he did.
Corcoran v Anderton [1980] 71 Cr App R 104

Two youths, the defendant and his co-accused, saw a woman in the street and agreed together to
steal her handbag. The co-accused hit her in the back and tugged at her bag to release it, while the
defendant participated. She released her bag, screamed and fell to the ground. The two youths ran
away empty-handed and the woman recovered her bag, neither youth having had the sole control
of the bag at any time. The defendant was later convicted of robbery under section 8 on the Theft
Act 1968; which provided that a person was guilty of robbery if he stole, using force. The
defendant appealed against conviction on the ground that neither he nor the co-accused had sole
control of the boy at any time.

Held.

Dismissing the appeal, that an appropriation took place at the moment when the youths, acting
with an intention to deprive the woman of the bag, snatched from her grasp so that she no longer
had physical control of it. In doing so, each accused was trying to exclude the woman from her
exclusive claim to the bag and was trying to treat the bag as his, such an action was an unlawful
assumption of the rights of the owner and accordingly the justices properly convicted the
defendant.

Immediately before or at the time of stealing


The offence of theft is complete as soon as the appropriation has taken place. On a strict
interpretation of the statute, use of force to escape with stolen property would fall outside the
ambit of the offence. However the courts have adopted a pragmatic approach and have treated the
appropriation as a continuing act.

R v Hale [1978] 68 Cr App R 415

D and E entered V's house and while D was upstairs stealing a jewelry box, E was downstairs
tying up V. The Court of Appeal refused to quash their convictions for robbery though the
appropriation of the jewelry box might have been completed before the force was used. The court
said the appropriation should be regarded as a continuing act and it was open to the jury on these
facts to conclude that it continued while V was tied up.
R v Lockley [1995] Crim LR 656

Force or the threat of the use of force.

The required level of force used for robbery is a question for the jury to decide. The jury are
given no guidance as to the meaning of force. The court of appeal has been unwilling to interfere
with juries findings even where the level of force is minimal:

R v Dawson and James [1976] 64 Cr. App R 150


There is no requirement that the force is directly applied to a person.

R v Clouden [1987] Crim LR 56

The appellant was seen to follow a woman who was carrying a shopping basket in her left hand.
He approached her from behind and wrenched the basket down and out of her grasp with both
hands and ran off with it. He was charged in two counts with robbery and theft respectively and
convicted on the first count of robbery. He appealed on the grounds

That there was insufficient evidence of resistance to the snatching of the bag to constitute force
on the person under section 8 of the Theft Act 1968; and

That the learned judges direction to the jury on the requirement of force on the person was
inadequate and confused.

Held
Dismissing the appeal, the old cases distinguished between force on the actual person and force
on property, which in fact causes force on the person but, following Dawson and James [1976] 64
Cr. App R 170, the court should direct attention to the words of the statute without referring to the
old authorities. The old distinctions have gone. Whether the defendant used force on any other
person in order to steal is an issue that should be left to the jury. The judges direction to the jury
was adequate. He told the jury quite clearly at the outset what the statutory definition was,
although thereafter he merely used the word force and did not use the expression on the person
In order to steal
There should be use or threat of force in order to steal. Thus the use of gratuitous violence at the
time of stealing but not used in order to steal is strictly speaking outside the boundaries of the
offence of robbery.

ROBBERY WITH VIOLENCE.

Part (2) deals with robbery with violence where one is armed with any dangerous or
offensive weapon or/and uses personal violence against the victim immediately before or
immediately after the time of the robbery, one may be arrested with/without warrant and
the penalty is death.

The offence is provided for in sec296 (2) of the Penal Code. In the case of Juma v- Republic5
the Court of Appeal ruled and in its judgment stated;

We wish to point out that in charging a person under s296 (2) of the Penal Code, the
prosecution must be extremely careful as the consequence of a conviction is serious.
Care must be taken in dealing with drafting of charges as it is the life of an individual
that is at stake.

For robbery to amount to robbery with violence, one of the elements listed in the section 296(2)
of the Penal Code must be present. Therefore, injury to the victim is not the only element of the
offence.

The elements of the offence.

In the case of Ajode v Republic6 cited in the case of Johana v Republic(Cr.Appeal No.116 of
1995, unreported.) where it was held that:

In order to appreciate properly as to what acts constitutes an offence under section296


(2), one must consider the subsection in conjunction with section 295 of the Penal Code.

5
(2003) EA 471
6
(2004) 2 KLR
The essential ingredients for robbery with violence under section 295 are use of threat to
use actual violence against any person or property at or immediately before or after and
further in the act of stealingthe three sets of circumstances that will constitute robbery
with violence are7:

i. If the offender is armed with any dangerous or offensive weaponry.

ii. If he is in the company of one or more persons or

iii. If at or immediately before or immediately after the time of the robbery uses any
violence to any person.

The Kenyan position on this offence is that, if one was to commit robbery at or immediately after
the time of robbery, wounds, beats, strikes or uses any violence to the victim is liable to be
punished under section 296(2) of the Penal Code. However, if one commits robbery in the
company with more than one person(s), the situation would remain the same even if the offender
is not armed with any dangerous or offensive weapon or instrument8.

The three elements that constitute the offence of robbery with violence are laid down in section
296(2) of the Penal Code are exclusively independent-this means that if a charge discloses the
existence of any, the court must convict the accused under the aforesaid subsection. In Muthike v
Republic9 it was held that:

there has been no violence used in the robbery but, section 296(2) of the Penal Code
envisages that when robbery is committed by more than one person of the ingredients of
the offence of robbery with violence under that subsection is satisfied. Reduction of the
charge of that of simple robbery by the court was a misdirection.

Firstly, in the case of Muiruri and two others v Republic10, it was held that the appellants
respective convictions under simple robbery, and that there was more than one attacker, despite

7
These are lifted from section296 (2) of the Penal code.
8
Nyamweya P.G., 1008579, the Offence of Robbery with violence as provided for in
section296 (2) of the Penal Code, Towards A proper Interpretation of the offence. 2010.
9
(2005) 1 KLR CA
10
(2002) 1 KLR
not being armed, he was criminally liable under the offence of violence with robbery. The spirit
of this section is to cater for violence. Hence it would not be necessary to show that the victim
was injured in the attack. And, the fact that one or more persons were involved in the attack the
victim becomes apprehensive of violence because of joint actions of the offenders11.

Secondly, the accused has to be armed with weaponry of a dangerous or offensive nature. It is
clear that if the intention of the offender to scare or cause fear in the victim or injury is material
for there to be robbery with violence. For example, if an offender draws a knife at a blind person,
where the offender is unaware of his disability, this still amounts to robbery with violence even if
the threat of the weapon is not achieved. However, as held in Kimemia v Republic12it is not
defined in the Penal Code as to what amounts to a dangerous weapon. Hence, its left open to
misinterpretation. But, in the case of Mwaura and others v Republic13 where the High Court in
dealing with whether a panga, iron bar, a wheel spanner, a king shaft, screw driver, a stone and a
stone were dangerous or offensive weapons for the purposes of the offence of preparation to
commit a felony under section 308(1) of the Penal Code held:

in our view dangerous or offensive weapon means any articles made or adopted or any
article intended for causing injury to the persons found with them for use in causing injury
to that person.

In the case of Kingori v Republic14where the High Court held:

all the essential ingredients of the offence under section 296(2) of the Penal Code were
met. The robbers were two; the appellant had an iron bar while his colleague had a sword.
These weapons were produced as exhibits at trial. Also, the robbers used violence on the
prosecution witness one and injured him.

11
Nyamweya P.G., 1008579, the Offence of Robbery with violence as provided for in
section296 (2) of the Penal Code, towards A proper Interpretation of the offence. 2010.
12
(2004) 1 EA 99
13
(1973) EA 373
14
(2003) KLR
Keeping in mind that when the person accused is being charged with possession of a weapon, it
ought to be used to achieve its purpose. As held in the case of Kemboi v Republic15 where it was
found that the assailant had a knife in his pocket the whole time during the attack, but the victim
did not see it. The court held that, it must follow that the victim had knowledge or at least an
inkling that there was some such weapon which the assailant intended or attempted to use. And,
the court held that the accused could not be charged with the offence under section296 (2) of the
Penal Code, but section 296(1).

Thirdly, the next ingredient is if at or immediately before or immediately after the time of the
robbery uses any violence to any person. This illustrates the spirit of the violence in section296
(2), which is the core distinction between the offence of simple robbery and aggravated robbery.16
In Oluoch v Republic17 it was held that it was not the degree of violence that differentiates the
offence of simple robbery with that of robbery with violence. The difference is in the elements as
provided for in section 296(2) of the Penal Code.

Courts must be satisfied of the identity of the person in the dock as being the actual offender. This
is because of the circumstances in which the offence mostly occurs. This makes identification of
the accused key in any trial of the offence. Identification of suspects is purely a matter of
evidence. In the case of Dzombo Chai v Republic18, the court held that:

the evidence of identification and recognition of an accused should be tested with the
greatest care and should be water-tight to justify a conviction. It is also recognized that there
is a possibility of witness to be mistaken. Further, although the evidence of recognition is
more satisfactory, more assuring and more reliable than the identification of a stranger, such
evidence should only be credible but should also be free from any possibility of error before it
can be relied on to implicate an accused person.

15
(2001) 1 EA
16
Nyamweya P.G., 1008579, the Offence of Robbery with violence as provided for in
section296(2) of the Penal Code, Towards A proper Interpretation of the offence. 2010.
17
(1985) KLR 549
18
(2006) Cr.Appeal no.256
The need for the court to ensure that identification of a suspect is water tight, some guidelines
that were set forth in the case of Republic v Turnbull19 in order to assist courts in deciding cases,
which depend wholly or substantially on the correctness of a disputed evidence of identification
of a suspect. Lord Widgery C.J held that:

First whenever a case against the accused depends wholly or substantially on the
correctness of one or more identifications of the accused which the defence alleges to be
mistaken, the judge should warn the jury of special need of caution before convicting
the accused in reliance on the correctness of the identification(s). In addition he should
instruct them as to the reasons for the need of this warning and should make some
reference to the possibility that a mistaken witness can be a convincing one and that a
number of such witnesses can all be mistaken. Provided that this is done in clear terms
the judge need not use any particular form of words.

Second, the judge should direct the jury to examine closely the circumstances in
which identification in each witness came to be made. How long did the witness have the
accused in observation? Was the observation impeded in any wayhad the witness seen
the accused before? If occasionally, had he special reason to remember the accused. How
much time had elapsed between the original observation and the subsequent
identification by the police? Was there any material discrepancy between the
description of the accused given to the police and the witness when first seen by then
and his actual appearance?

To conclude, the case of Wamunga v Republic20it was held that, where the only evidence
against a defendant is identification, a trial court is enjoined to examine such evidence carefully
and to be satisfied on the circumstances for identification were favorable and free from the
possibility of error before it can safely make it the basis of a conviction. This case elaborates the
guidelines set out in the Turnbull case (supra),

The court has considered the evidence on recordthe first accused was among those
who robbed the complainant. This is because when the offence was committed there was

19
(1976) All England Law Reports 549
20
(1989) KLR 424
light in the shop. There was light from a solar panel. The accused was with the
prosecution one witness a long time outside the shop. The robbery took some time as they
demanded money. All that time there was light from the two sources above. It is true that
the first accused was known to the complainant before and he had a distinct mark in that
he was missing one tooth.

ATTEMPTS

An attempt is defined in the Penal Code section 388(1)21 as, 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.

Where a person is charged with attempt to commit an offence, the evidence falls short of proving
that he committed Actus Reus of the offence although it must show that he had the mens rea
(intent to commit the offence. For example, in robbery he must have the intent to obtain or retain
the thing stolen or prevent or overcome resistance to its being stolen or retained. ) for the offence.
The Actus Reus of attempt requires something that goes beyond mere preparation and must be an
act, which is immediately connected with the intended offence. The Actus Reus of robbery is the
accused person takes a step towards commission of the act of the specific crime and the doing of
such an act cannot be reasonably be regarded as having any other purpose than to commit that act
of robbery.

However a problem arises whereby it is difficult to draw the line between mere preparation and
actual attempt. In the case of Mussa s/o Saidi v R22 Spry J. said, the act must be of such
character as to be incompatible with any other reasonable explanation, that is, the intention to
commit the alleged offence.

21
Chapter XL Laws of Kenya Cap 63
22
Modern approach to Criminal Law p.279
As per s.297 (1) - which provides for attempted robbery, where one may be arrested with/without
a warrant and imprisoned for seven years.

In the case of Samuel Mwangi Kagunda V Republic 23the appellant and a co-accused were
charged with the offence of attempted robbery on a third count. However the victim and a witness
saw that they were in a group, hence fulfilling on of the conditions necessary for one to be
charged with attempted robbery with violence as per section 297(1) of the Penal Code.

Part (2) deals with attempted robbery with violence where one may be arrested with/without a
warrant and the penalty is death.

In the case of Peter Odhiambo Owino V Republic24, Following his conviction and sentence upon
trial for the offence of attempted robbery with violence contrary to section 297 (2) of the Penal Code,
Peter Odhiambo Owino, the appellant, appealed against the conviction and sentence to the superior
court. That court, after it heard his appeal, dismissed it on the basis that the appellant was arrested in
the vicinity of the alleged crime, that he was chased by eye witnesses who caught him without loosing
sight of him, and there was ample light which facilitated his identification as having been a member
of the gang which broke into a certain store with a view to stealing various assorted items which were
stored therein. The appellant was dissatisfied and hence this appeal. However, that court did not fully
analyze the evidence, for if it had so done, it would have come to the conclusion that there is
variance between the particulars of the charge and the evidence. we are not satisfied the evidence
discloses the offence of attempted robbery with violence contrary to section 297(2) of the Penal
Code. Accordingly we quash the appellants conviction for that offence and set aside the sentence of
death passed against him.

Lastly, section389 of the Penal Code Cap63, which states that, any person who attempts to
commit a felony or a misdemeanor is guilty of an offence and is liable, if no other punishment is
provided, to one-half of such punishment as may be provided for the offence attempted, but so
that if that offence is one punishable by death or life imprisonment he shall not be liable to
imprisonment for a term exceeding seven years.

23
[2009] eKLR

24
[2010] eKLR
As per s.298 (1) which provides for assault with intent to steal where one may be
arrested with/without a warrant and imprisoned for five years.

DEFENCES TO THE OFFENCE OF ROBBERY

Defence of claim of right


This is where a person holds an honest belief of legal entitlement. The belief does not need to be
reasonable; however, the reasonableness of a belief may become a relevant factor when
determining if it was in fact held.

R v Lawrence (1997) 1 VR

Authorization from owner


If the individual accused was given permission to obtain the item supposedly stolen

State of mind
If the individual was mentally unsound or if there was any issue regarding his or her mental
health at the time of the robberies, it could be argued that they were acting due to those mental
issues and not as a criminal willfully disobeying the law.

Mistaken identity
Individuals who claim to have witnessed the robbery could easily be mistaken about the identity
of the suspect. This is especially where the witness is the only proof.
Defence of impossibility
It would be raised where it is not possible for that person to have committed that alleged offence.

Defence of lack of intent


It would be raised if the accused had no intent, or if the prosecution is unable to prove the intent.

WHY IS THE OFFENCE OF ROBBERY PROVIDED FOR?


It is punished because it jeopardizes the public security generally and the integrity of public
communication systems. The robber induces a greater sense of fear in the public than the ordinary
thief. The robber displays a greater ruthlessness that enables him callously and openly to use
violence or terror to induce his victims to submit to the taking of property. The risk to life and
limb involved in the robbers traditional reliance upon weapons to induce fear in his victim adds
to societys abhorrence of this type of crime.

CONSTITUTIONAL AND STATUTORY PROVISIONS RELATED TO ROBBERY IN


GENERAL.

First, the current Constitution of Kenya in the Bill of Rights section25, it talks about the right to
life and that he should not be deprived of his life intentionally save in an execution of the
sentence of the court in respect of a criminal offence under the Law of Kenya of which he has
been convicted. Robbery being a criminal offence, which is catered for in the Penal Code, is
relevant in this case. Especially in the case of robbery with violence and attempted robbery with
violence where the burden of proving that the accused was the offender is high because of the
deadly penalty meted out.
Second in section 72(3) (b)26 the states that, upon reasonable suspicion of his having
committed, or being about to commit, a criminal offence, and who is not released, shall be
brought before a court as soon as is reasonably practicable, and where he is not brought before a
25
Section 70(1)
26
Constitution of Kenya
court within twenty-four hours of his arrest or from the commencement of his detention, or
within fourteen days of his arrest.

Third, with regard to property, section75.(1) of the Kenyan Constitution states that, No
property of any description shall be compulsorily taken possession of, and no interest in or right
over property of any description shall be compulsorily acquired. Hence, making it wrong to
rob or attempt to steal their property, which rightfully belongs to them.

Next, section 397of the Penal Code caters for the people who are accessories after the fact of a
felony. Any person who becomes an accessory after the fact to a felony is guilty of an offence
and is liable, if no other punishment is available to imprisonment for three years. The offence of
robbery is a felony hence if one is an accessory to the fact of robbery he will be deemed to have
committed a crime.

CURRENT DEVELOPMENTS AND RECOMMENDATIONS RELATED TO THE


OFFENCE OF ROBBERY.

Under Kenyan law, offences of murder, treason and robbery with violence, including attempted
robbery with violence, carry a mandatory death sentence the National Commission seeks to
demonstrate the urgent need for the abolition of the death penalty from Kenyas statutes. This is
because the death penalty is a violation of the fundamental right to life.27
Inasmuch as I would like to sympathize with the National Commission, I cannot. The offence of
robbery with violence is itself a serious offence for doesnt it too violate the victims right to life,
a peaceful co-existence to enjoy his property in whatever way he chooses without violating other
peoples rights? There are some are incorrigible psychopaths who require brutal poetic justice.28

27
Retrieved from http://www.knchr.org/dmdocuments/PositionPaperonDeath.pdf at $:54pm on Sunday
4th of July 2010.

28
A members commentary.
As regards the offence of violence with robbery, the following recommendations have been
established29:

The elements of the offence of robbery with violence are exclusively independent. where
one is disclosed in a charge, it is enough to sustain a conviction under the aforesaid
section. The court should insist on the existence of all three for the offence to be
established.

Where the element of an offender being armed with a dangerous weapon or offensive
instrument was alleged, the court has to be satisfied that:

i. The weapon or instrument was offensive or dangerous respectively;

ii. The charge sheet specifically stated that the weapon or instrument was offensive
or dangerous;

iii. The weapon or instrument was used to achieve its purpose in the robbery.

Care must be taken in dealing with evidence of identification of offenders where the
offence of robbery with violence is alleged because of the serious nature of the offence
and its penalty. Also because since most of these robberies happen at night it might be of
great importance for the victim to be sure he saw the assailant in enough light.

EXTORTION.

29
Nyamweya P.G., 1008579, the Offence of Robbery with violence as provided for in
section296(2) of the Penal Code, Towards A proper Interpretation of the offence. 2010.
Extortio est crimen quandom quis colore officii extorquet quod non est debitum, vel supra
debitum, vel ante tempus quod est debitum-. Extortion is a crime when anyone under color of
office extorts that which is not due, or more than is due, or before the time when it is due.30

Under the Common Law, extortion is a misdemeanor consisting of an unlawful taking of money
by a government officer. It is an oppressive misuse of the power with which the law clothes a
public officer.31

Most jurisdictions have statutes governing extortion that broaden the common-law definition.
The definition of extortion as per the Laws of Kenya Cap 63 Penal Code Chapter XXVIII on
robbery and extortion, sec 299 is

Any person who, with intent to extort or gain anything from any person, and
knowing the contents of the writing, causes any person to receive any writing
demanding anything from any person without reasonable or probable cause, and
containing threats of any injury or detriment of any kind to be caused to any person,
either by the offender or any other person, if the demand is not complied with, is
guilty of a felony and is liable to imprisonment for fourteen years.

Under such statutes, any person who takes money or property from another by means of illegal
compulsion may be guilty of the offence. When used in this sense, extortion is synonymous with
blackmail, which is extortion by a private person. In addition, under some statutes a corporation
may be liable for extortion.

In the case of George Wamae v R32 , he was charged with extortion contrary to section 300(1) of
the Penal Code. He extracted Kshs.5000 from George Ireri threatening to accuse him of dealing
with illegal firearms. However, his convictions were set aside on the basis that the evidence that
led to his conviction was as a result of a single person who had no corroborating evidence.

30
Retrieved from http://legal-dictionary.thefreedictionary.com/extortion at 3:30pm on 21st
June 2010.
31
Retrieved from http://legal-dictionary.thefreedictionary.com/extortion at 3:30pm on 21st
June 2010
32
(2006) eKLR
ELEMENTS.

MENS REA.

With intent to extort or gain anything from any person, and knowing the contents of the
writing, causes any person to receive any writing demanding anything from any person
without reasonable or probable cause, and containing threats of any injury or detriment of
any kind to be caused to any person, either by the offender or any other person, if the
demand is not complied with.

Its the intent (Statutes may contain words such as "willful" or "purposeful" in order to indicate
the intent element) of the accused threatening, to do all these actions with the purpose of causing
the victim to fear an immediate danger if one does not comply with some specific action.

ACTUS REUS.

Under the common law and many statutes, intent to take money or property to which one is not
lawfully entitled must exist at the time of the threat in order to establish extortion. When this is
so, someone who mistakenly believes he or she is entitled to the money or property cannot be
guilty of extortion. Some statutes, however, provide that any unauthorized taking of money by an
officer constitutes extortion. Under these statutes, a person may be held strictly liable for the act,
and intent need not be proven to establish the crime.

Extortion statutes require that a threat must be made to the person or property of the victim there
are various threats, which constitute extortion namely:

1. Threats to harm the victim's friends or relatives may also be included. It is not
necessary for a threat to involve physical injury.
2. It may be sufficient to threaten to accuse another person of a crime or to expose a
secret that would result in public embarrassment or ridicule. The threat does not
have to relate to an unlawful act. For example, extortion may be carried out by a
threat to tell the victim's spouse that the victim is having an illicit sexual affair with
another.
3. Threats to harm the victim's business.

4. Those to either testify against the victim or withhold testimony necessary to his or
her defense or claim in an administrative proceeding or a lawsuit.

5. Threat to harm another person in his or her career or reputation is extortion.

One can demand for property with menaces or demand for property by written threats. In the case
of Vaz v R33 this is whereby an employee found out that his employer in whose ginnery he
worked would take the tops off the cotton bags and replace them with others stating that they had
come from a different place. He demanded 20000/= through their agent so that he would not tell
their secret and restore the evidence hed collected against them. They took him to court and he
was charged and convicted of demanding money with menaces with intent to steal. Windham
C.J stated that the following apply to a charge of demanding property with menaces:

i. The threats or menaces can either be explicit or implicit, so that an ordinary reasonable
man would read the menace into the demand.
ii. While the menace should be calculated to produce in the person menaced considered a
reasonable person some degree of fear and alarm so as to unsettle his mind, it is not
necessary to show that it unsettled his mind.

iii. In the case of an unsuccessful menace the test is whether if it had been successful and the
money had been obtained, it would have been obtained under such circumstances that it
would have been stolen, with particular attention to the question whether it had been taken
fraudulently and without right of claim of right.

The salient differences between demanding property by written threats and demanding
property with menaces are:

a. The former offence requires writing while the latter requires one to demand with menaces.

33
(1961) EA 320
b. The former offence allows the defence of reasonable and probable cause for the demand.
Whether there is reasonable and probable cause for the demand is a question of fact. In
Thorne v- Motor Trade Association34 the protection of lawful trade interests was held
reasonable cause for the demand of a payment of a fine as an alternative to being placed
on the top list of a trade association in accordance with the associations rules.

c. The former requires proof of intent to extort or gain anything whilst the latter requires
proof of intent to steal any valuable thing. Intent to steal means one of the fraudulent
interests in theft. Intent to extort appears to mean the taking of money without color of
right where none is due, or where it is not yet due.

d. Demanding property with menaces requires proof of menaces. When one is demanding
property by menaces the propositions that will apply were stated by Windham J35,

1) The threats or menaces need not be uttered explicitly; it is sufficient if veiled


(implicit.)

2) While the menace must be calculated to produce in the person menaced


considered to be an ordinary reasonable man some fear and alarm would
come up and unsettle his mind.

3) Whether or not the menacing was successful or unsuccessful it should be


obtained in a manner, which it is said to have been stolen.

Reasonable and probable cause is not a defence to a charge of demanding property with menaces;
but, honest claim of right is.

APPLICATION.

Extortion by Public Officers

The essence of extortion by a public officer is the oppressive use of official position to obtain a
fee. The officer falsely claims authority to take that to which he or she is not lawfully entitled.
34
(1937) AC 797
35
Vaz v- R (1961) EA 320 at 323
This is known as acting under color of office. For example, a highway department officer who
collects money from a tax delinquent automobile owner in excess of the authorized amount on
the pretense of collecting a fine is extorting money under color of office. The victim, although
consenting to payment, is not doing so voluntarily but is yielding to official authority36.

There are four basic ways in which a public officer commits extortion37.

The officer might demand a fee not allowed by law and accept it under the guise of
performing an official duty.
He or she might take a fee greater than that allowed by law. In this case the victim must at
least believe that he or she is under an obligation to pay some amount.

The officer may receive a fee before it is due. The crime is committed regardless of
whether the sum taken is likely to become due in the future. It is not criminal, however,
for an officer to collect a fee before it is due if the person paying so requests.

Finally, extortion may be committed by the officer's taking a fee for services that are not
performed. The service refrained from must be one within the official capacity of the
officer in order to constitute extortion.

A good example was in the case of Nakuru Mololine Services Ltd v Leonard Njoroge
Mwangi & 4 others38 the applicants were seeking to restrain the defendants from using the
plaintiffs stickers on the matatu vehicles or from using the designated booking office area
allocated to the plaintiff by the Municipal Council. However, the respondent is alleging
extortion of money by the applicant contrary to Minister's notice. It was held that as per the
case of Hepatulla v Noor Mohamed39, no court ought to enforce an illegal contract where the
illegality is brought to its notice and if the person invoking the aid of the court is himself

36
Retrieved from http://legal-dictionary.thefreedictionary.com/extortion at 3:30pm on 21st
June 2010.
37
Retrieved from http://legal-dictionary.thefreedictionary.com/extortion at 3:30pm on 21st
June 2010.
38
(2005)eKLR
39
(1984) KLR 580
implicated in the illegality. The plaintiffs suit was dismissed with costs and the matatu
drivers were allowed to park their vehicles at designated areas without being charged extra
levies.

RELATED CRIMES.

As a crime of theft, extortion is closely related to Robbery, Kidnapping and False Pretenses.

Robbery differs from extortion in that the property is taken against the will and without the
consent of the victim, unlike extortion, where the victim consents, although unwillingly, to
surrender money or property. Another distinguishing factor is that the nature of the threat for
robbery is limited to immediate physical harm to the victim or his or her home. Extortion, on the
other hand, encompasses a greater variety of threats40.

False pretences is another crime that is similar to extortion. The main difference is that in the case
of false pretenses, the property is obtained by a lie rather than a threat. In the case of R v Button41
the accused, who was a good runner, personated a moderate runner in two instances of a handicap
race and after being given long head starts he won both. The question was whether hed entered
the races with intent to win or it was for lark or merely to keep himself fit for training. It was held
that he had attempted to obtain goods by false pretences.

Kidnapping is an offence related to extortion in that the kidnappers terrorize the family of the
person that they have kidnapped in order to obtain large sums of money. They constantly have the
family of the kidnapped person under constant fear of the murder of their loved ones and hence,
they comply with the wishes of the captors.

40
Retrieved from http://legal-dictionary.thefreedictionary.com/extortion at 3:30pm on 21st
June 2010.

41
(1900) 2 QB 597
DEFENCES.

A person who acts under an honest claim of right (an honest belief that he or she has a right to the
money or property taken) may allege this factor as an Affirmative Defense to an extortion
charge. What constitutes a valid claim of right defense may vary from one jurisdiction to another.
For example, M, a department store manager, accuses C, a customer, of stealing certain
merchandise. M threatens to have C arrested for Larceny unless C compensates M for the full
value of the item. In some jurisdictions it is only necessary for M to prove that he or she had an
honest belief that C took the merchandise in order for M to avoid an extortion conviction. Other
jurisdictions apply a stricter test, under which M's belief must be based upon circumstances that
would cause a reasonable person to believe that C took the item. Another, more stringent, test
requires that C in fact owe the money to M. Finally, some states entirely reject the claim of right
defense on the theory that M's threat is an improper means of collecting a debt.42

In the case of R v- Benhard the complainant who was a married man agreed to pay his mistress
20 pounds a month for one year. He failed to maintain these payments and the mistress threatened
to announce their love affair by means of a newspaper advertisement if he failed to pay. The court
of criminal appeal quashed her conviction for demanding money with menaces and held that the
woman had a defence if she believed that she had an honest claim.

PUNISHMENT.

Extortion is generally punished by a fine or imprisonment, or both. When a public officer


commits the offense, the penalty may include Forfeiture of office. Under some statutes, the
victim of extortion may bring a civil action and recover pecuniary damages43.

RELEVANCE TO SOCIETY.

42
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June 2010.

43
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June 2010.
Extortion is also a federal offense when it interferes with interstate commerce. It is punishable by
a fine, imprisonment, or both. Another federal statute makes it a crime to engage in extortionate
credit transactions.44 One of the measures that have been taken in Kenya to enable the
apprehension of suspected extortionists is to have each and every person register their sim cards
with their respective service providers. This enables the mobile service provide to have easier
access to its customers contacts just in case the force requires them to trace a

CONCLUSION

The offence of extortion covers a broad range of activity. Extortion is not only committed by
gangsters using guns to collect drug debts, but may be committed by threatening to report an
employees misconduct to their employer, or a persons misfortunes to the press. Threats need not
themselves be unlawful to support a conviction for extortion. Extortion may be committed by
threatening lawful, although unreasonable, combined with a demand. However, the burden is on
the Crown to prove, beyond a reasonable doubt, that the threat was unreasonable in the
circumstances. Therefore, when the accused is requesting the victim to comply with a legitimate
legal duty, only clearly unreasonable threats will attract criminal liability45.

44
Retrieved from http://legal-dictionary.thefreedictionary.com/extortion at 3:30pm on 21st
June 2010.

45
Retrieved from http://www.legaltree.ca/node/554 at 4:00pm 22nd June 2010

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