Moving towards a paradigm of corporate criminal responsibility for corporate manslaughter

Abstract

Corporations in Kenya have progressively been seen to commit wrongdoings to the detriment of the overall population or to specific individuals. Due to the fact that Kenyan jurisprudence is not sufficiently developed to control corporate activity with criminal elements, corporations are not sufficiently deterred from committing criminal offences and hence end up escaping criminal liability. This paper discusses the Kenyan context of corporate criminal responsibility and the enforceability of the laws regarding the same. Further, this paper studies the possibility as well as the implications of introducing the concept of corporate manslaughter into Kenyan legislation. The above is done through a comparative analysis between Kenya’s legislation on corporate criminal responsibility and The U.K’s Corporate Manslaughter Act with a view of analysing the lessons Kenya can learn from the U.K. In addition, research on this matter is carried out through an analysis of precedents , journals, relevant articles and relevant legislation relating to the matter in question. The findings of this paper show that the concept of corporate criminality is more effective once the focus shifts to probing the fault of the corporation as a whole. Through a jurisprudential view of the separate legal personality of a corporation, this paper shows that a corporation can itself attract criminal liability and therefore can and should be punished through a mix of sanctions which will suffice to achieve the deterrence and retributive ends of criminal punishment. This paper finally concludes by recommending that Kenya should adopt the realist model in assigning criminal responsibility to corporation itself and create the offence of corporate manslaughter to hold corporations accountable for their actions/omissions that caused the death of others.