CRIMINAL LITIGATION

UNDERSTANDING KENYA’S CRIMINAL JUSTICE SYSTEM

Modern criminal law proceeds from five major principles: actus reus (guilty act); mens rea (guilty
mind); concurrence of the actus reus and mens rea; causation; and harm.1
Incidental to these
principles are underlying theories of punishment under which retribution, deterrence,
rehabilitation, incapacitation and reparation are considered to be the aims of the criminal justice
process.
Whereas retribution seeks equal harm to the offender in the society’s name, the notion of general
deterrence posits the idea that everyone must see the consequences of crime while specific
deterrence seeks to ensure that criminals must see the consequences of their actions. The notion of
rehabilitation, for its part, looks to cure offenders and help them re-enter society, while
incapacitation aims at getting the criminal out of the society.
Beyond the above aims of the criminal justice system, the notion of reparation (or restoration) is
critical to the justice process. Here, the process is seen to focus not only on the needs of the victims
in punishing the offenders, but on the communities involved as well. Hence, from the restorative
perspective, while the victims are allowed to take an active role in the process, the offenders are
encouraged to take responsibility for their actions “to repair the harm they have done”.
The juridical basis for restorative justice in Kenya is to be found in the Penal Code which provides
that the courts may promote reconciliation, encourage and facilitate the settlement in an amicable
way of proceedings for common assault, or for any other offence of a personal or private nature
not amounting to a felony, and not aggravated in degree on terms of payment of compensation or
other terms approved by the court and may thereupon order the proceedings to be terminated.2

1
Jerome Hall, General Principles of Criminal Law (1960).
2
Section 176, Penal Code