Definition

Battery is the criminal offence whereby

one party makes unlawful physical

contact with another party with the

intention to cause harm.

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 agrevated 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/Unauthorised 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. 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

R V Miller; (case of rape during separation that was covered by marital consent) court charged 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

R v Woolin [1998] ; defined intent in criminal

law

R v Venna [1975] ; recklessness is suffient

when coupled with the actus reus of physical

contact to bring about liability

The closest refference to battery in the

Penal Code is under s251;

Any person who commits an assault

occasioning actual bodily harm is guilty

of a misdemeanour and is liable to

imprisonment for five years.

Assaults on persons Protecting

a wreck S252 of the Penal Code ;

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.

1)Officer must be on duty

S 253(a) of the Penal Code it is a

serious offence to assault a police officer

who is executing his duty.

S 253(b) 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

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)

Waera s/o Madoya and others

V Republic

Facts: 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. 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. Constable escaped, others were tied up and taken to a police post. 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

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;

1. Resisting arrest

2. 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

OBSTRUCTIONA. The defendant intentionally resisted or

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

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

C. 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. see

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 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:

I) Fleeing a police officer while being arrested

II) Threatening a police officer while being arrested

III) Physically struggling to get out from being arrested

IV) 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.

Held :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

wilfully 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) CPC 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.