Battery In The Criminal Context In Kenya

What is battery?

Battery is the criminal offence whereby one party makes unlawful physical contact with another party with the intention to cause harm. This offence has not been mentioned in the Kenyan Penal Code. The closest reference to battery in the Penal Code is under section 251 which states:

“Any person who commits an assault occasioning actual bodily harm is guilty of a       misdemeanour and is liable to imprisonment or five years.”

Under common law the offence of battery was considered a misdemeanor but there are special circumstances where this offence would be considered as a felony. Such circumstances would include aggravated battery whereby there is use of a weapon for example.

Elements of the offence of battery

The prosecution in this case would have to prove the following elements beyond reasonable doubt;

1. Unlawful/Unauthorized application of force

The force need not be severe, even minimal application of force or contact will satisfy the requirement. Also, the victim must not have consented to the act, such consent negates this element.

2. The act must be done to another person

3. The act must result in harmful or offensive contact.

This requirement may be substituted with the statement; actual bodily harm

In the case of R V Miller, (case of rape during separation that was covered by marital consent) the court charged the defendant with assault and battery defining actual bodily harm as; “any hurt or injury calculated to interfere with health or comfort of the victim”

4. The mens rea required is intention or recklessness

Some examples of cases involving battery are

R v Woolin [1998] which defined intent in criminal law

R v Venna [1975] stated recklessness is sufficient when coupled with the actus reus of physical contact to bring about liability

Assaults on persons protecting a wreck

Section 252 of the Penal Code states that:

“Any person who assaults and strikes or wounds any magistrate, officer or other person lawfully            authorized in or on account of the execution of his duty in or concerning the preservation of any vessel in distress, or of any vessel or goods or effects wrecked, stranded or cast on shore, or lying under water, is guilty of a misdemeanour and is liable to imprisonment for seven years.”

Assaulting, Resisting and Obstructing a Police Officer

Assault on a police officer, or APO, is a criminal offense that can be charged as either a misdemeanor or felony, depending on the severity of the offense. However there are certain requirements:

1)      Officer must be on duty

S 253(a) of the Penal Code states that it is a serious offence to assault a police officer who is executing his duty. Section253 (b) goes ahead to state that it is an offence to resist a lawful arrest. These sections cover persons acting in aid of policemen. They however do not apply to officers off duty

Some examples of cases stating about a police officer on duty are:

Rex v Wakaba s/o Waithaka

Rex v Nganga s/o Kanja and another

2)      Knowledge that Officer is on Duty is irrelevant

In the case of assault on a policeman while on duty, the fact that the person committing the act did not know that they were policemen and were executing their duty is immaterial. Assaulting a police officer is a crime and if done the person cannot escape criminal liability just because they did not know the assaulted is a police officer in the course of duty (Section 253 b)

In the case of Waera s/o Madoya and others V Republic, a police constable and police driver in normal clothes were accompanied by two civilians and they entered the house belonging to one of the appellants looking for a stolen bicycle and they found it and when they found it they saw a radio which they were also interested in. The appellant became suspicious and raised an alarm since he thought the police were masquerading as a police party. Other appellants came and attacked the police. The constable escaped, others were tied up and taken to a police post. The appellants were later arrested for assaulting police and convicted. The conviction was quashed since the appellants honestly believed the police were masquerading as a police party for unlawful purposes

Therefore if there are honest reasonable grounds to believe that the person assaulted was not a police, the person cannot be convicted due to the defence of mistake of fact

OBSTRUCTING A POLICE OFFICER

THE DEFINITION

Obstruction is the act of taking action in order to prevent something from happening.

Section 253 (b) of the Penal Code: it is an offence to obstruct a police officer in the due execution of his duties

Section 108 of the Kenya Defence Forces Act states that it is an offence to obstruct a police officer

The following are seen as examples of obstruction;

·         Resisting arrest

·         Running and hiding from a law enforcement officer.

The crime of obstruction can be a felony or misdemeanor. It depends on the severity of the actions of the person being arrested.

 ELEMENTS OF OBSTRUCTION

The defendant intentionally resisted or obstructed a law enforcement officer. However, the person need not have intended the result or harm.

The defendant acted violently toward the officer or threatened to act violently e.g. striking or pushing

The law enforcement officer was lawfully discharging his official duties e.g. investigating a crime or making a traffic stop

THE OFFICER MUST BE EXECUTING DUTY

The offence of obstruction is only established if the officer was in the process of executing the duties.

Some cases are:

Marijani v Uganda (1967) EA 111 ( sir Udo Udoma CJ)

Lai v Republic (1970) EA 257

Isaac s/o Reuben v The Queen (1953-57) 2 TLR

DEFENCES TO THE OFFENCE

Some defences to the offence are:

·         Self-defense. If the arresting officer acts violently and is no justified in doing so, the arrestee may protect himself and resist arrest

·         Unlawful arrest. This is an arrest that is not authorized by law, such as an arrest without a warrant or probable cause.

RESISTING ARREST       

Definition

Resisting arrest occurs when a person interferes with a law enforcement officer’s attempt to perform a lawful arrest.

Who can be said to resist arrest?

Section 253(b) Penal code any person who assaults, resists or wilfully obstructs any police officer in due execution of his duty, or any person acting in aid of that officer.

What does resisting arrest constitute?

It includes the following acts:

·         Fleeing a police officer while being arrested

·         Threatening a police officer while being arrested

·         Physically struggling to get out from being arrested

·         Attacking a police officer while being arrested

Lui v Republic

The appellant refused to leave the dock when ordered to do so by the court. He resisted removal and created a disturbance which interrupted court business. He was convicted of other things including resisting arrest.

On appeal the conviction relating to resisting arrest was quashed.

It was held that the appellant was at the material time in custody, and he had been remanded in custody. He did not seek to escape from custody, all he did was refuse to leave the court and force had to be used to remove him while in custody from one place to another. His conduct could not be described as resisting arrest.

Paulo s/o Busondo and another v Reginam

Where an accused person is charged with acts intended to prevent arrest he may be convicted of the offence of willfully obstructing a police officer in execution of his duty.

Reason : The cognate element between the two offences is the intention to resist lawful arrest and the latter is a minor offence of the former.

Note

Section 21(2) Criminal Procedure Code states that if a suspect resists arrest ,the police officer may use all means necessary to effect the arrest.

 If one is not forcibly resisting arrest, the force used by the police to arrest the suspect will be different with when arresting a suspect trying to evade arrest.

Reasonable force is measured against the kind of resistance that a person is demonstrating against the police. 
By Llb 2013 intake students at Riara University