[1945] EACA 8

# COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya), MARK WILSON, Acting C. J. (Tanganyika) and BARTLEY, J. (Kenya)

### REX, Respondent (Original Prosecutor)

# (1) TOMASI ENYAJU s/o OGURUTO, (2) ELASU s/o EJURU, appellants (Original Accused)

Criminal Appeals Nos. 15 and 16 of 1945

(Appeal from decision of H. M. High Court of Uganda)

Criminal Law—Murder—Fatal injuries inflicted by each of several persons.

During a native dance T gave the deceased a violent poke on the head with the sharper end of his heavy dancing stick, piercing the skull and causing the brain to protrude. Almost immediately, while the deceased was on the ground but still alive, E beat him violently on the other side of the head fracturing the skull. Each injury was sufficient to cause death. T and E were both convicted of murder. They appealed.

Held (25-1-45).—Every person who inflicts on a living person an inevitably fatal injury with the intention to kill or to cause grievous bodily harm is guilty of murder.

Appeal dismissed.

Appellants absent, unrepresented.

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

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—On a careful consideration of the evidence the learned Chief Justice came to the conclusion that when the accused Elasu assaulted the deceased by beating him with his dancing stick,<br>the deceased, though at the point of death, was not yet dead. If this finding is correct then there can be no doubt that Elasu was rightly found guilty of murder. We have considered carefully the evidence on this point and in the result we cannot say that the finding is an unreasonable one. The medical evidence was that the fracture of the skull caused by Elasu would inevitably have caused deceased's death. The malice aforethought of Elasu appears all the greater when the evidence is that at the time he assaulted the deceased the latter was already suffering from another head injury inflicted by the first accused, Tomasi, which also on the medical evidence must inevitably have caused death even had there never been an assault by Elasu.

The question then is whether Tomasi also can be convicted of murder. In assaulting the deceased his intention clearly was to kill or cause grievous harm; without doubt we think it was the former, and even if there had never been the subsequent assault by Elasu the inevitable result, according to the medical evidence, would have been the death of the deceased. In our opinion, the learned Chief Justice was right in finding this accused guilty of murder for the reasons that in assaulting the deceased he intended to kill or commit grievous harm and, as was found, this assault would have caused death even had there not been a subsequent assault. In short, since each of the accused persons inflicted on a living man an inevitably fatal injury each must be held equally guilty of his death.

This case is to be distinguished from Rex v. Okute and another, 8 E. A. C. A. 78, where there were two separate and independent assaults and the injuries caused in the first assault "might possibly have caused death only by reason of the further injury inflicted subsequently by the second appellant". At p. 79 of the report it is stated: "But the case of the first appellant, as also the cases of Erika, Farasi and Okurie, present a difficult problem. It was not proved that the injuries which they inflicted would, of themselves, have caused the death of the deceased, without the further injury inflicted by the second appellant". In the present case it was proved that the injury caused by the first accused, Tomasi, would have caused death without the further injuries caused by the second accused, Elasu.

During the hearing of the appeal reference was made to the unreported case of Rex v. Mohamed bin Ali, Cr. A. No. 132/35, a case in which a person was killed over a dispute about damage to a tree. Two persons were convicted of murder, it being held that on the application of the doctrine of common intention they were equally responsible. On appeal to this Court the decision of the Supreme Court was reversed, it being held that "no common intention to assault with knives" had been proved against the appellants. The convictions were sought to be upheld by the Crown on the application of this doctrine and on no other ground. The following passage in the judgment of the Court of Appeal will distinguish that case from the present in so far as the ground on which we are deciding the present case, the ground on which the learned Chief Justice decided it, is concerned. It reads: "No doubt a stab in the heart would ordinarily have a fatal result, and that very quickly, but in the absence of expert evidence we cannot hold that the slash in the abdomen did not bring about the death of the victim before she received the second wound". In the present case there was a finding which we have said was not unreasonable, that the victim was still alive when Elasu struck his blow.

We are also of the opinion, as was the learned Chief Justice, that the convictions might have been founded on the application of the doctrine of common intention, and on that aspect of the case we refer to a passage in the judgment of this Court in Rex v. Paulo Shimanyolang and another, 5 E. A. C. A. 135, which is, we think, applicable to the facts of the present case. It is at p. 137 of the report and reads: "It seems to us that the only reasonable inference to be drawn from their actions is that when Paulo shot, Legidio immediately associated himself with and adopted Paulo's unlawful intention, which thereupon became the common intention of both of them". As, however, we are not deciding the appeals on the ground of common intention we need say no more.

We dismiss the appeals.