[1947] EACA 43
The first appellant's conviction for murder was upheld because the evidence, including his own confession, clearly established that he intentionally set fire to the house, resulting in the victim's death. The second appellant's conviction for murder was quashed because the evidence only showed that he counselled the...
Source-derived case information.
- Citation
- [1947] EACA 43
- Parties
- Respondent: REX; Appellant: Biguli s'o Lwemera; Appellant: Ruswa s/o Kasigwa
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeals Nos. 158 and 159 of 1947
- Procedural Posture
- Criminal Appeal / Appeal From High Court
- Outcome
- First appellant's appeal dismissed; second appellant's conviction quashed and acquitted.
- Judges
- Edwards CJ, Graham Paul CJ, Nihill P
- Legal Topics
- Accessory Before the Fact, Arson, Murder, Counselling Offence, Probable Consequence, Misdirection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
REX
Respondent
Biguli s'o Lwemera
Appellant
Ruswa s/o Kasigwa
Appellant
Procedural Posture
Criminal Appeal / Appeal From High Court
Legal Issues
- 1 Whether the evidence supports the conviction of the first appellant for murder by arson.
- 2 Whether the second appellant's counselling constituted being an accessory before the fact to murder under section 24 of the Tanganyika Penal Code.
- 3 Whether loss of human life was a probable consequence of the arson counselled by the second appellant.
Ratio Decidendi
The first appellant's conviction for murder was upheld because the evidence, including his own confession, clearly established that he intentionally set fire to the house, resulting in the victim's death. The second appellant's conviction for murder was quashed because the evidence only showed that he counselled the first appellant to commit arson, without specifying the circumstances (such as committing the act at night or with occupants inside). Under section 24 of the Tanganyika Penal Code, liability as an accessory before the fact requires that the offence actually committed (murder) be a probable consequence of the counsel given. The court found that loss of human life is not a...
Court Disposition
First appellant's appeal dismissed; second appellant's conviction quashed and acquitted.
Orders
- First appellant's conviction for murder is upheld and his appeal is dismissed.
- Second appellant's conviction for murder is quashed and he is ordered to be set at liberty.
Full Case Text
Judgment text and source record
14 paragraphs
# COURT OF APPEAL FOR EASTERN AFRICA
# Before NIHILL, C. J. (Kenya), SIII G. GRAHAM PAUL, C. J. (Tanganyika) and EDWARDS, C. J. (Uganda)
### REX. Respondent (Original Prosecutor)
#### $\mathbf{v}$
### BIGULI s'o LWEMERA, RUSWA s/o KASIGWA, Appellants (Original Accused)
## Criminal Appeals Nos. 158 and 159 of 1947
# (Appeals from decision of H. M. High Court of Tanganyika)
Criminal law—Accessory—Section 24 Tanganyika Penal Code.
The first appellant was convicted of murder by burning down a house with his victim inside. The second appellant was convicted of being an accessory. before the fact by counselling and procuring the first appellant to carry out the crime.
Appellants absent, unrepresented.
### Lowe, Crown Counsel (Kenva), for the Crown.
JUDGMENT (delivered by NIHILL, C. J.).—We have consolidated these two appeals of the two appellants, who were jointly convicted of murder by the High Court of Tanganyika. As regards the first appellant the evidence, which concluded his own confession that he had set fire to the house of the deceased, amply supports the conviction, and we dismiss his appeal.
The case of the second appeal raises different consideration. The evidence shows that he advised the first appellant to burn the house of the deceased because he possessed the knowledge that it was the deceased's wife who was responsible for the death by witchcraft of some of the first appellant's children. There is no evidence that the counselling of the first appellant went further than an injunction "to burn Sembeba's house", and on this point the learned trial Judge misdirected himself when he held that the evidence established that the second appellant had given this advice in order to destroy Sembeba's wife. We have had to consider therefore whether the mere injunction to commit arson, not necessarily at night, places the second appellant in a position where he can be rightly convicted of murder, because in consequence of the carrying out of the injunction by the first appellant Sembeba lost his life. Under section 24 of the Tanganyika Penal Code, where one person counsels another to commit an offence, the offence actually committed must be a probable consequence of carrying out the counsel. We do not think it could be reasonably held that loss of human life is a probable consequence of arson per se. Everything will depend on the circumstances in which the crime is committed. In this case the first appellant committed the crime at night and without warning to Sembeba and others who were sleeping in the hut, but there is no evidence that those were the circumstances in which the second appellant counselled the first appellant to commit the crime. In our opinion, therefore, he has been wrongly convicted of murder. We quash the conviction and order him to be set at liberty.
Held (18-8-47), -That the circumstances of the case did not show that loss of human life would be the probable consequence of the burning when the second appellant counselled it and he must be acquitted.