[1946] EACA 24

### COURT OF APPEAL FOR EASTERN AFRICA

#### Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman WhitLey, C. J. (Uganda). and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

### REX, Respondent

$\mathbf{v}$

# (1) KINGORO WA CAKUHA, (2) KAGIRI WA THUMBI, Appellants Criminal Appeals Nos. 294 and 297 of 1945

## (Appeal from decision of H. M. Supreme Court of Kenya)

Criminal Law—Murder—Aiding and abetting—Common design—Ss. 22 (c) and $23$ P. C.

Four Nandis of which the deceased was one trespassed on a farm to cut sticks for a Ngoma. Each carried a panga for cutting the sticks. The appellants, who were employed on the farm, decided to take the Nandis to their employer. On the way the Nandis were told that they would be beaten whereupon they ran away in different directions. The appellants, with others, chased and beat<br>the deceased with sticks and were present when he was killed. Death, however, was due to strangulation and there was no evidence who actually strangled the deceased. The appellants were convicted of murder and appealed.

*Held* $(31-1-46)$ .—(1) There was no evidence that the appellants aided or abetted the killer in the strangulation of the deceased, mere presence without participation being insufficient to constitute them principals in the murder.

(2) Killing by strangulation is not a probable consequence of the prosecution of the purpose to beat up with sticks.

Appeal allowed. Conviction altered to assault occasioning actual bodily harm.

Appellants present, unrepresented.

Phillips, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—The facts as found by the learned trial Judge were shortly as follows: —

Four Nandis trespassed on Major Ridley's farm to cut sticks for a Ngoma. Each carried a panga for cutting the sticks. Kingori (accused No. 1) and Kagiri (No. 2) were both employed by Major Ridley. They decided to take the Nandis before their master as trespassers. On the way the four Nandis were told that they would be beaten whereupon they ran away in different directions. The two accused, with others, chased and beat the deceased Nandi with sticks and both were "in at the death", but death was due to strangulation and not to any beating. We consider those findings of fact are amply justified by the evidence and also that the learned Judge rightly rejected the contention put forward by the appellants that they were acting in self defence.

It seems to us clear that whoever caused the death of the deceased Nandi by strangling him is guilty of murder. There is no evidence as to who actually committed the act of strangulation but it is established and indeed admitted that the two appellants took part in the assault with sticks during or just after which the deceased was strangled. The learned trial Judge rightly directed himself that in these circumstances the two appellants could not be convicted of murder unless the case can be brought within the provisions of section 22 or section 23 of the Penal Code. He held that both of the appellants aided and abetted the person who actually strangled and that the doctrine of common intention applied,

The medical evidence establishes that the beating with sticks did not cause such injuries as would have resulted in death. All who took part in the beating must of course be guilty of assault causing bodily harm, but if one of them of his own initiative and without any prearrangement killed the common victim by strangulation the others could only be held to be jointly responsible with him for the killing if they aided and abetted the killer in the strangulation within the meaning of section 22 $(c)$ or, if they were acting in prosecution of a common purpose, within section 23. In this respect our Code would seem to be completely in accord with the dictates of sound common sense. If two persons, A and B, agree together to inflict a sound beating upon $C$ who has offended them and, in the course of their joint assault, A seeing a knife handy picks it up and cuts the throat of C, it would clearly be grossly unfair to hold B, who had never contemplated anything more serious than a beating, equally responsible with A for the killing unless there is clear evidence that B actively associated himself with the use of the knife, for example, by counselling A to use it, or by holding the victim whilst A cut his throat.

Section 22 (c) reads: $\rightarrow$

"When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to $sav-$

(c) every person who aids or abets another person in committing the $(c)$ offence."

The offence under consideration in the present case is the killing by strangulation by an unidentified member of the assaulting party. That the two appellants were present is established by the evidence, but mere presence without participation is not sufficient. They certainly assented to and enthusiastically took part in the beating with sticks, but we can find no evidence whatsoever that either of them had any prior knowlegge of or in any way connived at or assisted in the act of strangulation. Accordingly we hold that the case against them does not fall within Section 22 $(c)$ .

Section 23 reads as follows: —

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

Applying this section to the facts of the present case there is no doubt that the two appellants, with others, did form a common intention to prosecute an unlawful purpose in conjunction with one another, namely to beat up the Nandis, and that in the prosecution of such purpose the offence of murder by strangulation was committed by one member of the party, but we cannot agree that killing by strangulation was an offence of such a nature that its commission was a probable consequence of the prosecution of the purpose to beat up with sticks so as to make all the members of the party equally guilty of the offence of murder within the meaning of this section.

It follows that in our opinion the convictions for murder cannot stand. The appeals are accordingly allowed and we quash the convictions for murder and substitute therefor convictions under Section 245 for assault occasioning actual bodily harm. We sentence each appellant to two years' imprisonment with hard labour.