[1955] EACA 349

### COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and HOLMES, J. (Kenya)

# (1) MSENGI s/o MKUMBO and (2) SHABANI s/o MKUMBO, Appellants (Original Accused Nos. 1 and 5)

v.

## REGINAM, Respondent

#### Criminal Appeals Nos. 171 and 172 of 1955

(Appeal from the decision of H. M. High Court of Tanganyika, Crawshaw, J.)

Murder—Malice aforethought—Joint accused—Common intention to steal—Both accused armed with sticks—Penal Code, section 200 $(c)$ .

The two appellants, and others, went to a maize shamba to break and remove maize cobs. They were armed with sticks. They were surprised by the deceased. The second appellant threw a stick, a not very heavy one, at the deceased and thereby caused his death. Both the appellants were convicted of murder.

Section 200 (c) of the Penal Code provides: "Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: $-(c)$ an intent to commit a felony".

Held (30-6-55).—The two accused persons being in the shamba with the intent to commit the felony of theft, their both being armed with sticks showed that they were prepared to offer violence in pursuit of their common intention, and as death resulted from the act<br>of one of them, the element of malice aforethought necessary to constitute murder had, having regard to section $200(c)$ of the Penal Code, been established against both the accused.

Appeals dismissed.

Appellants absent, unrepresented.

#### Ballard for respondent.

JUDGMENT (delivered by Nihill (President)).—These two appellants whose appeals we have consolidated were tried with three other accused persons, who were acquitted, on a charge of murder before the High Court of Tanganyika.

There can be no doubt that on the evidence which the learned trial Judge accepted these two appellants were in a small party of men who went to a maize shamba at night for the purpose of breaking and removing maize cobs. The party were surprised whilst doing this by the deceased, who was one of the night watchmen employed on the estate. One of the intruding party, who the learned Judge found was the second appellant, threw a stick at the watchman which hit him in the throat. The watchman died a few hours later and the cause of death was proved to have resulted from a fracture of the hyoid bone. The stick which caused the trouble is an exhibit in the case, and is not a particularly heavy one, but the medical witness gave it as his opinion that if thrown within a few paces of the body, as it must have been, it could have caused the fracture. It is unfortunate for the appellants that the blow from the stick caused a fatal injury because it was probably about one chance in a thousand that it should do so, or at least cause the particular injury that it did. Under the circumstances of this case, however, as revealed by the evidence, there could be no doubt that in law both the appellants have been properly convicted of murder. Both of them were in the shamba with the intent to commit the felony of theft and both of them were

armed with sticks which showed that they were prepared to offer violence in pursuit of that common intention. As death has resulted from the act of violence<br>of one of them, the element of malice aforethought necessary to constitute murder has been established against both (section 200 (c) of the Penal Code). $\cdot$

Both appeals are accordingly dismissed.