Assault In The Criminal Context in Kenya

Q. What is Assault?

A. assault is defined as the intentional application of force to another directly or indirectly. This definition is drawn from common law.

The penal code on the other hand under Section 250, defines assault as the unlawful and intentional display of force against another person in such a way as to create a reasonable belief in the mind of the other person that the force is about to be used against him.

From the definition provided for under Section 250, one could draw the elements of assault as;

i)                    Display of force

ii)                  Intention to use that force e.g pointing a gun at someone

iii)                Reasonable apprehension of fear

The above elements were reiterated in the case of Rex v Peter Mburugu which held that; to constitute an assault, there must be circumstances denoting at the time an intention coupled with a perfect ability of using actual violence against the person threatened.

Assault is classified as a misdemeanor that is a crime punishable by a fine but in this case of assault, the punishment is a maximum of a year’s imprisonment.

In the tort of trespass against the person, assault and battery are two different things unlike in  criminal law where assault constitutes both assault and battery. Battery is when force is applied to the complainant whereas assault is when the battery is actually threatened.

NB: It was held in the case of Rex v Mbuthia s/o Kaguru, that mere words do not constitute an assault. It only becomes relevant where the words accompany the act intending to use force on another. This can be picked from the case of Rex V Gaturo s/o Njau.

In the case of Ahmed bin Rashid V Rex, it was held that gestures or preparations to constitute an assault must cause immediate apprehension and that the apprehension must not follow the commission of the act towards the person to whom the gestures are directed.

When it comes to defenses, provocation cannot be used to discharge a defendant or appellant from an assault or battery case. The proper defense would be to that the assault was lawful since a lawful assault is not a crime. This may be the case in situations involving, voluntary sexual intercourse, lawful sports, surgical operations and whatnot.

In the case of Menezes V Republic, the appellant mistakenly believed the complainant who they had an altercation was assaulting him with a knife. It was then held that it was reasonable for an unarmed person to knock down an attacker with a knife.

LIST OF OTHER CASES

R v Meade and Belt (1823)

R v Ireland (1997)

R v Constanza (1997)

Tuberville v Savage (1669)

Stevens v Myers (1830)

Thomas v Num (1985)

By Llb 2017 Candidates Riara University