[1946] EACA 41

# COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and BARTLEY, J. (Kenya)

**REX.** Respondent (Original Prosecutor)

## NYANSIO KATUNZI, Appellant (Original Accused) Criminal Appeal No. 162 of 1946

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

Murder—Unlawful act with malice aforethought—Intervening act of deceased resulting in death.

The appellant set fire to a native hut with the intention of causing either the death of, or grievous harm to, its occupants. Zabalirwa, Kahunga and four helpless children were in the hut at the time. Zabalirwa with the help of Kahunga evacuated the children. Then Zabalirwa under the mistaken impression that one of the children was still in the burning hut re-entered it and sustained injuries from which he died on the following day.

The appellant was convicted of murder and appealed.

Held (6-8-46).—That malice aforethought having been established the fact that the act of Zabalirwa in re-entering the hut intervened between the unlawful act of the appellant and the fatal burning, the result of the unlawful act was in the circumstances no defence to the charge of murder.

Appeal dismissed.

## Appellant absent, unrepresented.

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

JUDGMENT (delivered by BARTLEY, J.).—About cockcrow on the morning<br>of the 15th April while Zabalirwa, his son-in-law Kahunga and four of Zabalirwa's smal; children "who couldn't help themselves" were sleeping in Zabalirwa's hut it was set on fire and as a result Zabalirwa received extensive burns causing shock and toxaemia from which he died the following day. The burns were received when Zabalirwa, having helped Kahunga to evacuate the children, re-entered the burning hut under the mistaken impression that one of the children was still in the hut.

The learned trial Judge dealt very fully in his judgment with the evidence implicating the accused as the person who set fire to the hut. He accepted Kahunga as an honest witness and placed reliance on his evidence of seeing the accused first walking stealthily into some bushes and then running away in the direction of his house which is evidently half a mile to a mile from Zabalirwa's. The learned Judge however felt that this evidence if entirely unsupported by other evidence might leave some doubt. He found the necessary supporting evidence in that of Chief Kerementi, whose evidence, which was believed, established that all the villagers assembled at the fire on the alarm being sounded save the accused and on the Chief going to the accused's house and on being told that the reason for the accused's failure to do his duty by answering the alarm was owing to his bad legs. The Chief examined the legs both of which he found to be bandaged from knee to ankle. The examination revealed that while one of the legs had boils the other leg only showed "fresh scratches as if made that night" and "as if they had been made by thorns". The accused in giving evidence denied that there were any scratches on his legs and alleged that both legs had boils on them. The evidence of 1st Grade Police Constable Nimolodi established that there were some low thorn bushes dotted about near Zabalirwa's hut. The learned Judge also found a motive for the crime in the proceedings taken by the accused against Zabalirwa before Chief Francisco on the 12th February when the Chief ordered Zabalirwa to repay the accused Sh. $3/50$ or to return beer to that value to the accused which order Zabalirwa had made no attempt to obey.

We see no reason to disagree with the finding that the accused set fire to the hut.

With regard to the question as to whether in the circumstances the accused was guilty of murder we also see no reason to disagree with the finding. In setting fire to a native hut made of millet stalks, a hut with only one door and the hut being set fire to close to that door the accused must be held to have intended to cause the death or to cause grievous harm to the six occupants of the hut. He certainly must have had the knowledge that this act would probably cause death or grievous harm to one or other if not all the occupants. The setting fire to the hut did cause the death of Zabalirwa, one of the occupants. It is true that had Zabalirwa not returned into the hut in the mistaken impression that one of his children, was still in the hut he would have escaped injury, but malice aforethought having been established the fact that the act of Zabalirwa in re-entering the hut intervened between the unlawful act of the accused and the fatal burning, the result of the unlawful act is in the circumstances no defence to the charge, as the learned trial Judge properly held. The appeal is dismissed.