[1950] EACA 526

### 526

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SINCLAIR (Vice-President), BRIGGS and BACON, Justices of Appeal

### GATHITU s/o KIONDU, Appellant (Original Accused)

#### ν.

# REGINAM, Respondent

### Criminal Appeal No. 87 of 1956

# (Appeal from the decision of H. M. Supreme Court of Kenya sitting in Emergency Assize, Templeton, Acting J.)

Murder—Assistance after crime—Whether assister is an accessory—Kenya Penal Code, section 397.

The appellant had been convicted of murder and two of the witnesses for the prosecution had assisted in burying the body of the deceased in secrecy and had not reported the crime to the police. They claimed that they had acted from fear of the murderers who were members of Mau Mau and denied that they had any wish to help the murders. The trial Judge had found that these witnesses "were not assisting persons who were, to their knowlede, guilty of an offence, to escape punishment", and so were not accessories after the fact and not accomplices.

Held (19-5-56).—The question whether assistance given to a murderer after the crime makes the assister an accessory after the fact depends not on intention but on the motive with<br>which the assistance is given and the trial Judge's direction was correct. The motive was a question of fact for the trial Judge's decision on which the Court would hesitate to differ from him.

Appeal dismissed.

Cases referred to: R. v. Lee, (1834) 6 C. & P. 536; R. v. Chapple, (1840) 9 C. & P. 355; R. v. Butterfield, (1843) 1 Cox C. C. 39; R. v. Hansill, (1849) 3 Cox C. C. 597; R. v. Levy, (1912) 1 K. B. 158; R. v. $E. A. C. A. 359.$

Appellant in person.

#### Brockes for respondent.

JUDGMENT (prepared by BRIGGS, J. A.).—On this appeal from a conviction of<br>murder by the Supreme Court of Kenya we reserved judgment in order to consider the question of corroboration. Much of the evidence was that of accomplices, but the learned trial Judge found that their evidence was corroborated in certain respects by the evidence of four witnesses who were not accomplices. As regards two of these, named Njoki and Wanguyi, the learned Judge found that they did not know of the plot to murder the deceased, and that they went to the scene of the crime, and so witnessed its commission, on orders from one of those who later took active part in it. The learned Judge was entitled to accept this evidence if he thought fit, and it must be accepted that these two women were not accomplices. The other two witnesses, Kiuni and Githundururu, both assisted in burying the body of the murdered man in secrecy and in such a way that it was unlikely to be found. Kiuni was the deceased's father. Neither of them reported the crime to the authorities. The burial took place in the presence of some of the murderers, who were Mau Mau and had

killed the deceased for loyalist activities. Both witnesses said they had acted from fear of *Mau Mau*. They denied expressly or by implication any wish to assist the murderers. On these facts the learned trial Judge found that they "were not assisting persons who were, to their knowledge, guilty of an offence, to escape punishment", and so were not accessories after the fact and not accomplices. Since the appellant was not represented we wished to take time to consider whether this direction was correct.

The case seems to turn on the words "in order to enable him to escape punishment" in section 397 of the Penal Code, the question being whether these words refer to intention or to motive. The concealment of the body of a person murdered must so inevitably assist the murderer to escape punishment that the witnesses in question must in our view be presumed to have intended that result. If the wording of the section were "with intent to enable ...", there could be no doubt that these witnesses would have been accessories after the fact. But the words "in order to" are more directly apt to express purpose or motive than a technical conception such as intention. Some passages in older cases certainly suggest that intention is the test in English law. R. v. Lee, (1834) 6 C. & P. 536, and R. v. Chapple, (1840) 9 C. & P. 355, are perhaps equivocal. R. v. Butterfield. (1843) 1 Cox C. C. 39, rather suggests that motive is the test; but in $R$ . $\nu$ . Hansill. (1849) 3 Cox C. C. 597, Erle, J., said: "There must be such a receiving as tends to assist the felon". This clearly refers to intention. The more recent cases, however, seem plainly to be on the side of motive. In R. v. Levy, (1912) 1 K. B. 158, the Common Sarjeant had directed the jury to consider whether the accused's acts were "for the purpose of assisting him to escape conviction". The Court of Criminal Appeal referred to the words "in order to hinder ..." in *Hawkins*' Pleas of the Crown, Bk. 2, ch. 29, section 25, and held that the direction was correct. In R. v. Jones, (1949) 1 K. B. 194, it was held that, where the appellant had made a number of untrue and evasive statements concerning articles received by his wife with knowledge that they were stolen property, it was essential that the jury be directed "to consider whether his evasions and untruths may not have been due to his anxiety to avoid arrest quite apart from any consideration of his of his wife and her position", and also that "it was essential... that the Judge should specify the act or acts alleged to have been done by the appellant for the purpose of assisting his wife to escape conviction, and, further, to direct them specifically that if the motive in the mind of the appellant was merely to avoid his own arrest, that would not be sufficient to bring him within the purview of the charge". The case of Nkau Majara v. R., (1954) A. C. 235, though it deals with Roman-Dutch law, is of interest as showing that purpose or motive is the test under that system also. We are satisfied that that is the law of Kenya. If the witnesses who helped to bury the body acted only out of fear of the murderers or other Mau Mau, or out of fear that they themselves might be prosecuted for or in connexion with the murders, they were not accessories after the fact and not participes criminis within the rule in Davies v. D. P. P., (1954) A. C. 378. As to their motive, that was a matter of fact for the decision of the learned trial Judge, and we should hesitate to differ from him.

We were referred to three decisions of this Court, R. v. Saidi Nsubuga, 8 E. A. C. A. 81, R. v. Dabholkar, 11 E. A. C. A. 102, and R. v. Paskazia, 21 E. A. C. A. 359. These cases, and in particular the last of them, appear to support the view which we adopt. They do not require further discussion. We are of opinion that the directions of the learned trial Judge were correct. The appeal is dismissed.