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

mwakili.com

The Difference Between First-Degree and Second-Degree Murder in Kenya

In Kenya, the distinction between first-degree and second-degree murder is not explicitly defined in the Penal Code. The Penal Code, however, outlines different categories of murder, including murder, manslaughter, and infanticide.

1. Murder

Murder is defined as the unlawful killing of another human being with malice aforethought.

1.1. Malice Aforethought

Malice aforethought is a legal term that refers to the mental state of the accused at the time of the killing. It encompasses the following:

Intention to kill: This is the most straightforward form of malice aforethought. It means that the accused intended to kill the victim.
Intention to cause grievous bodily harm: This means that the accused intended to cause serious harm to the victim, even if they did not intend to kill them.
Recklessness: This means that the accused was aware that their actions could cause death or serious harm, but they went ahead with them anyway.
Constructive malice: This is a more complex form of malice aforethought. It applies in situations where the accused did not intend to kill the victim, but they were committing another serious crime at the time of the killing. For example, if someone is robbing a bank and shoots a security guard in the process, they could be convicted of murder even if they did not intend to kill the guard.

1.2. Sentencing for Murder

The penalty for murder in Kenya is death. However, the death penalty is rarely carried out in practice. In most cases, a person convicted of murder will be sentenced to life imprisonment.

2. Manslaughter

Manslaughter is the unlawful killing of another human being without malice aforethought.

2.1. Types of Manslaughter

There are two main types of manslaughter in Kenya:

Voluntary manslaughter: This occurs when the accused kills the victim in the heat of passion or under provocation. For example, if someone kills their spouse after finding them in bed with another person, they could be convicted of voluntary manslaughter.
Involuntary manslaughter: This occurs when the accused kills the victim through negligence or recklessness. For example, if someone is driving a car recklessly and causes an accident that results in a death, they could be convicted of involuntary manslaughter.

2.2. Sentencing for Manslaughter

The penalty for manslaughter in Kenya is imprisonment for life or for any term not exceeding 30 years.

3. Infanticide

Infanticide is the killing of a child under the age of one year by its mother.

3.1. Conditions for Infanticide

To be convicted of infanticide, the prosecution must prove that the mother was suffering from a mental disturbance caused by childbirth or lactation. This mental disturbance must have impaired her ability to understand the nature of her actions or to control them.

3.2. Sentencing for Infanticide

The penalty for infanticide in Kenya is imprisonment for any term not exceeding 10 years.

4. Conclusion

The Kenyan Penal Code does not explicitly define first-degree and second-degree murder. However, the law distinguishes between murder, manslaughter, and infanticide based on the mental state of the accused at the time of the killing. Murder is the most serious offense, and it carries the penalty of death. Manslaughter is a less serious offense, and it carries a penalty of imprisonment for life or for any term not exceeding 30 years. Infanticide is a specific offense that applies to the killing of a child under the age of one year by its mother. It carries a penalty of imprisonment for any term not exceeding 10 years.

Sources: