Ask a lawyer:
What's the difference between first-degree and second-degree murder?

Table of Contents

1. Introduction

2. Murder

3. First-Degree Murder

4. Second-Degree Murder

5. Conclusion

Introduction

This response will delve into the distinction between first-degree and second-degree murder under Kenyan law. It will analyze the relevant provisions of the Penal Code, highlighting the key elements that differentiate these two offenses.

Murder

The legal definition of murder in Kenya is found in Section 203 of the Penal Code. It states that a person commits murder when they unlawfully cause the death of another human being with malice aforethought.

Malice aforethought is a crucial element of murder. It signifies that the accused intended to kill the victim or knew that their actions would likely result in death. This intent can be expressed or implied.

Section 204 of the Penal Code further clarifies the concept of malice aforethought, stating that it exists when:

• The accused intended to cause the death of the victim.

• The accused intended to cause grievous harm to the victim, knowing that such harm was likely to cause death.

• The accused intended to cause grievous harm to the victim, without caring whether death resulted or not.

• The accused acted with reckless indifference to human life.

First-Degree Murder

Section 206 of the Penal Code defines first-degree murder as murder committed in any of the following circumstances:

• Premeditation: The accused planned or intended to kill the victim beforehand. This involves a deliberate and conscious decision to take a life.

• Murder by poison or by means of any other deadly poison or destructive or explosive substance: This category encompasses killings using substances specifically designed to cause death.

• Murder by means of any other means calculated to cause death: This broad category encompasses any method used to kill that is inherently dangerous and intended to cause death.

• Murder committed in the course or furtherance of any robbery, rape, defilement, arson, or any other felony: This provision covers killings that occur during the commission of other serious crimes.

Key Elements of First-Degree Murder:

• Premeditation: The accused planned or intended to kill the victim beforehand.

• Use of Deadly Substances: The accused used poison or other deadly substances to cause death.

• Use of Means Calculated to Cause Death: The accused employed methods inherently dangerous and intended to cause death.

• Murder During Other Felonies: The killing occurred during the commission of other serious crimes.

Second-Degree Murder

Section 205 of the Penal Code defines second-degree murder as murder that is not first-degree murder. This means that it encompasses any murder that does not meet the specific criteria outlined for first-degree murder.

Key Elements of Second-Degree Murder:

• Absence of Premeditation: The accused did not plan or intend to kill the victim beforehand.

• Absence of Deadly Substances: The accused did not use poison or other deadly substances to cause death.

• Absence of Means Calculated to Cause Death: The accused did not employ methods inherently dangerous and intended to cause death.

• Absence of Murder During Other Felonies: The killing did not occur during the commission of other serious crimes.

Conclusion

The distinction between first-degree and second-degree murder in Kenya hinges on the presence or absence of specific aggravating factors. First-degree murder involves premeditation, the use of deadly substances, or the commission of the killing during other serious crimes. Second-degree murder encompasses all other murders that do not meet these criteria. This distinction is crucial for determining the severity of the offense and the potential penalties imposed.