[1950] EACA 626

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

## Before SIR RONALD SINCLAIR (Vice-President), Bridgs and BACON, Justices of Appeal

(1) LEKISHON OLE SANG 'ARE alias LAKAMONDO OLE SANG 'ARE, (2) RURETA OLE KISSER alias KARPWALE OLE KISSER, (3) LEKENGE ÖLE KISEMEI alias SUNDI OLE KISEMEI, (4) LABUNY OLE NG'AYAMI, (5) LATAGWES OLE SADERA alias SITOYA OLE MPATINGA OLE SADERA, (6) KAMAKEI OLE LADOMORO OLE ROTIKEN, (7) TEKETI OLE TARURU alias TUNGAR OLE TARURU, Appellants (Original Accused Nes. 1 to $7$ )

v.

## REGINAM, Respondent

## Criminal Appeal No. 268 of 1956

(Appeal from the decision of H. M. Supremen Court of Kenya, Forbes, J.)

Murder—Common intent—Penal Code of Kenya, sections 22 (c), 23 and 202 (a).

The appellants had been convicted of murder by the Supreme Court. The accused, all *moran*, had set out together to obtain a heifer which they wished to present to their laibon in accordance with Masai custom. The owner of the heifer, having originally handed it to them under coercion, had taken it back and the *moran* had decided to recover it. They proceeded to the owner's *boma* armed with swords and spears and raided it just before sunrise. It was clear that whatever their intention was, it was common to them all and was by common consent to be carried out by their joint action. An affray ensued in which the owner of the heifer was struck on the head with a sword, his daughter was knocked unconscious with a club, one of his sons struck on the ear and another son was killed by a sword thrown at him by the first appellant. On this happening the moran called off their attack and withdrew.

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It was submitted for all the appellants that the Court should have given more weight to certain matters of native custom in their relation to the defences of provocaion or self-defence. It was also submitted for all the appellants, other than the first, that no inferences adverse to them should be drawn from their carrying arms, as this was the normal custom of the Masai.

**Held** $(22-12-56)$ .—(1) As far as the first appellant was concerned, on the facts found, no matters of African custom could in any way affect the issue.

(2) In view of the accuseds' own evidence that parties of *moran*, engaged as these were, do not take a full normal armament but only swords and bows without arrows, the evidence for the prosecution, which showed that in this case they had carried a full set of arms, indicated that, whatever might have happened if the heifer had been given up willingly, it was their intention to regain it by any degree of force short of actually causing death.

(3) The appellants had formed "a common intention to prosecute an unlawful purpose in conjunction with one another", that "in the prosecution of such purpose" the offence of murder was committed and, although the trial Judge made no specific finding on the point he must, in view of his other findings, have been satisfied that the murder of the deceased was "a probable consequence of the prosecution of such purpose".

Appeal dismissed.

No cases.

Parry for appellants.

Webber for respondent.

JUDGMENT.-This was an appeal by seven Masai, each of whom had been convicted of murder contrary to section 199 of the Penal Code of Kenya. They are all young men, that is to say of the class of persons known among the Masai as moran, and all of the Ol'Kamaniki age-group. Their conviction was based upon the fact that one Chepkwany ole Kirogu was killed by the first appellant, who threw his sword at him in the following circumstances.

A custom prevails among the Masai whereby from time to time livestock is collected by the *moran* from members of the tribe so that it may be presented to the *laibon*, a tribal authority who is a kind of high priest. In times gone by the owners of livestock were apparently obliged by tribal custom to hand over such tribute whether they wished to or not, and the use of force against recalcitrant members of the tribe was recognized by the Masai as a proper means of achieving that end. Nowadays, however, it appears that even tribal custom frowns on such means, and sanctions this collection of animals only from those who are willing to give.

The seven appellants all belonged to a group of *moran* who were engaged in collecting cattle in the Ololunga area during the period immediately preceding the incident which gave rise to their prosecution for murder. It clearly appeared from the evidence as a whole that there was trouble between that group and one Kepapei ole Liaram (*alias* ole Kirogu), the latter having shown his unwillingness to comply with the *morans'* demand that he should contribute a beast. As the learned trial Judge found, all the *moran* concerned were fully aware of the difficulty which had thus arisen and also of a warning given to their spokesman at a *baraza* held in April, 1956, to the effect that they should not go to Kepapei's boma again if there was a risk of bloodshed.

Kepapei, a Nandi by birth, who long ago settled in Masai country and, having been accepted as a Masai, has lived as one, occupied at the material time, together with his family, a *boma* at a place called Oloipangi, near Ololunga. Some little time before the date of the incident which gave rise to the prosecution of the appellants Kepapei handed over to the *moran* a heifer by way of acceding to their demands for tribute, but it seems that he was coerced into doing so and that he warned the *moran* (some of the appellants) who had come to collect it that they were not to part with it and that he would shortly take it back into his possession. Within a few days the deceased and his brother, Letoya, sons of Kepapei, recovered the heifer and drove it back to their father's *boma* at Oloipangi, Consequently the appellants and five other *moran* banded together and raided Kepapei's *boma* just before sunrise on 27th May, 1956, with the object of once more taking the heifer of which they still desired to make a gift to the *laibon*.

The band of 12, including the seven appellants were armed on that occasion -perhaps not all, but certainly a number of them—with swords and spears, though admittedly it is not the habit of moran to carry spears when peacefully collecting cattle. On that morning in May they reached the immediate vicinity of Kepapei's *boma* together, and from all the proved circumstances it is clearly to be inferred that, whatever their intention was, it was common to them all and was by common consent to be carried out by their joint action. With respect, we entirely agree with the learned trial Judge that the operation as planned and executed was an armed raid, commenced without warning, on the inhabitants of the *boma*. It appears that, on approaching the *boma* the *moran* split into three groups, each with a special task.

An affray ensued, in the course of which Chemuta, one of Kepapei's daughters, was knocked unconscious with a club, Malakwen, one of Kepapei's sons, was struck on the ear, Kepapei himself was struck on the forehead with a sword and Chepkwany, another son of Kepapei, met his death. Chepkwany was engaged, when the raid started, in cutting branches just outside the *boma*, using a

panga for that purpose. Despite a search after the affair had ended the panga was never found. Chepkwany was attacked by one of the *moran* groups. When so attacked he called for his bow and arrows and his young brother Malakwen endeavoured to take them to him. It was in the course of so doing that Malakwen was intercepted and struck with a club. The weapons never reached Chepkwany. It was during that attack on him that the first appellant, one of the group assaulting him, threw his sword at him with such accuracy and force that it penetrated between the ribs to a depth of about eight inches, cutting through the left lung, through the heart and down to the liver.

As soon as the word went round the *moran* that a man had been killed they withdrew from the *boma*, made off without the heifer and reported the incident to the headman concerned.

The two assessors gave their opinions as follows:—

First Assessor: "I am of opinion that the first accused was acting in self-defence. I therefore find the first accused not guilty, I also find the other accused not guilty. I said so because this thing happened according to our Masai custom. If people kill a man they would have no interest in the heifer at all. They cannot take the heifer and exchange it with a bull or take it to laibon. That is why these people reported to the headman, because they had no intention of killing anyone. They could have run into the bush. I think they were acting in self-defence when the deceased was killed."

Second Assessor: "I also find first accused was acting in self-defence. I accordingly find all the accused not guilty. I agree with points First Assessor has mentioned."

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The concluding portion of the learned trial Judge's judgment was this:—

"The evidence, however, is to the effect that the Masai are skilled at throwing swords, and clearly the intent in throwing the sword, or at the least, the natural and probable consequence of throwing the sword was to cause grievous harm. In the circumstances in which I am satisfied the attack was made upon the deceased there could be no element of self-defence on the part of the first accused, or of provocation given by the deceased. I am fully satisfied that the first accused intended to cause grievous harm to the deceased when he threw the sword and accordingly that he is guilty of murder. As regards the remaining six accused, it seems clear on the facts I have found that their common intention was to carry out an armed raid on the *boma* of Kepapei ole Kirogu for the purpose of recovering the heifer, and that they had every intention of offering violence to the inhabitants of the *boma*, particularly if they should encounter resistance. This, in my opinion, constituted unlawful purpose notwithstanding that the moran may have conconsidered that they were entitled to recover the heifer. At the least their action constituted a forcible entry ( $R. v. Wilson$ , 8 T. R. 361) and also appears to have amounted to riot within the meaning of section 76 of the Penal Code. It certainly appears that the *moran* did not intend to cause the death of anyone. The fact of their withdrawal from the scene without the heifer as soon as it was known a person had been killed and their report of the incident to the headman would seem to establish that. On the other hand, apart from the actual act which resulted in the death of the deceased, members of the moran did offer violence of a nature likely to cause grievous harm. The deceased himself had clubs thrown at him. The deceased's brother Letoya was threatened with spears if he tried to emerge from his hut. The boy Malakwen and the girl Chemuta were struck severe blows with clubs, and the deceased's father, Kipapei ole Kirogu, was struck on the forehead with a sword.

Bearing in mind the custom of the Masai to go around armed I do not think that any particular conclusion is to be drawn from the fact that this band were armed with spears and swords but from their actions it seems clear that they had contemplated the use of their arms on this raid in a manner likely to cause grievous harm if not death.

It is, of course, the duty of the prosecution to establish the case against the accused beyond reasonable doubt. Here I am satisfied first, that the accused, Lekishon ole Sang'are killed the deceased in circumstances amounting to murder; secondly that the murder was done in the course of an armed raid carried out by 12 *moran*, including the seven accused, acting in concert, and that it was contemplated by the accused that their weapons might be used in the course of the raid in a manner calculated to cause grievous harm. In these circumstances I am of the opinion that all the members of the moran band are jointly responsible for the death of a person caused by violence used in the course of the raid. The assessors have expressed the opinion that the first accused was acting in self-defence when he struck the blow that killed the deceased. I am quite unable to agree with them. On any view of the evidence, I do not consider that the first accused could be said to have been acting in self-defence. I agree with the assessors that there was not an intent to cause death to any person, but as I have found, there was an intent on the part of the accused to act in a manner likely to cause. grievous harm, and they are therefore responsible for the death of a person caused by the act of one of their number in carrying out their common purpose.

I am unable to accept the opinions of the assessors and I find all the accused guilty of murder as charged".

We make no comment on the assessors' opinions since the learned trial Judge in effect gave his reasons for differing from them.

The case for the appellants fell into two parts, of which the first concerned all the appellants, but more particularly the first appellant, who had himself done the act which resulted in the death of Chepkwany, and the second concerned all appellants other than the first.

The submissions made on behalf of all the appellants were generally that the Court should have given more weight, or a different emphasis, to certain matters of native custom in their relation to the defences of provocation or self-defence which might have been open to the appellants. On examination in relation to the facts of this case, these submissions appeared to be without foundation. It appeared that they could not have any effect, unless on findings of fact quite different from the findings which the learned trial Judge made. For example, if the deceased had, as alleged by the defence, shot an arrow at the first appellant and shot another at the third appellant and hit him in the arm before the moran took any offensive action, there might have been a good defence of provocation or even of self-defence. But the learned trial Judge clearly did not fail to appreciate all this, and no good ground is suggested for rejecting his findings that the deceased and his family were not the aggressors. Indeed, learned counsel for the appellants confessed that he was unable to suggest any ground on which we could properly vary the facts found at first instance. So far as the first appellant is concerned we cannot see that any matters of African custom could an any way affect the issue. We have no doubt that he was guilty of murder.

The second part of the case raises somewhat different issues. It was said first that no inferences adverse to the appellants other than the first should have been drawn from their carrying arms, since this was the normal practice of the Masai. The evidence, however, is that parties of *moran* who go to collect cattle as gifts for

their laibon do not take a full normal armament, but only swords and a bow without arrows. This is the evidence of the accused themselves. But the prosecution evidence, which was accepted, was generally to the effect that this party of *moran* carried a complete set of arms, including spears and arrows, which they would not have had if their intentions had been wholly pacific.

We are therefore satisfied that the learned Judge was right in holding that. whatever might have happened if the heifer had been given back to them willingly, it was their intention to regain it by any necessary degree of force, short of actually causing death. We agree with him that their conduct after the death indicates that they had no express intention to cause death, but we agree also that. having regard to the lethal nature of the weapons they carried, they were clearly prepared to cause grievous hurt if circumstances should in their opinion render that necessary.

In those circumstances, one of them having directly caused the death of Chepkwany, the position of the others must be considered in reference to sections 23 and 202 of the Penal Code, and in reference to the words of the judgment. As regards section 23, it is found that the appellants had formed "a common intention" to prosecute an unlawful purpose in conjunction with one another", and it is also found that "in the prosecution of such purpose" the offence of murder was committed by the first appellant. But the question whether all the appellants should be "deemed to have committed" that offence depends on the further question whether<br>the murder of the deceased "was a probable consequence of the prosecution of such purpose", and on this the judgment is silent. We think it is unfortunate that this lacuna appears, and we have considered carefully whether it is open to us to remedy the omission. Without laying down any rule of principle, we have come to the conclusion, first, that the learned trial Judge must in this case have found an affirmative answer to the question, though he has not so stated in terms, and secondly, that in view of his other findings, which we accept, a negative answer to the question would have been wholly unreasonable, and such as no reasonable judge of fact would have arrived at. On these strict conditions and in the special circumstances we are satisfied that the convictions of murder of the second to seventh appellants inclusive were correct.

As regards section 202 of the Penal Code, we are of opinion that the necessary intention under paragraph $(a)$ , namely an intention to cause grievous harm to some person, was established, although it may have been only a conditional or contingent intention. We think that the apparent belief of the accused, that they were entitled to retake the heifer, would preclude the application of paragraph $(c)$ of the section on the basis of robbery. The other offences committed appear to be no more than misdemeanours. It is, however, necessary for a conviction of murder under section $202(a)$ that the accused should at least have been present, aiding and abetting the person actually causing death. Penal Code, section 22 (c). If the learned trial Judge had expressly found that the appellants other than the first were not merely present, but were aiding and abetting him in the crime of murder of the deceased, we should see no reason to disturb his findings; but he has not in terms so found, and we are of opinion that we ought not to presume that his decision was based on a tacit finding to that effect.

We prefer to rest our decision on common intention within the terms of section 23, and on that basis we are satisfied that the convictions of murder were justified. The appeals of all the appellants were accordingly dismissed.

$G. P. K.$ 2219–600–9/57