[1945] EACA 64

### ORIGINAL CRIMINAL

### BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

### REX, Prosecutor

## ν.

# (1) ROSEN s/o KIBOGO,

## (2) MADENGE s/o KIBOGO,

### Accused

### Criminal Case No. 222 of 1944

Criminal law—Manslaughter—Common design—Penal Code section 23—Question reserved for decision of two judges—Criminal Procedure Code section 323.

Two brothers Rosen and Madenge were jointly charged with the murder of one Kangui and were both convicted on their own pleas of manslaughter. It appeared from the depositions that the fatal injury was inflicted by Madenge and the learned trial Judge being in doubt whether on the depositions Rosen could be said to be guilty of manslaughter reserved the following questions for the decisions of a Court consisting of two Judges namely "whether notwithstanding the other accused's plea of guilty to manslaughter and his subsequent conviction, that conviction ought to stand, and further, whether if such conviction should stand, he ought to have sentence passed upon him, and if so, the extent and nature of that sentence".

$Held$ (8-3-45).—(1) That there was ample authority for holding that a common purpose may be proved by the acts of persons at or about the time the offence takes place and that there was material in the depositions to show that Rosen was associated with his brother at the time of the homicide in such a manner as to make him equally responsible in law for it.

(2) That the extent and nature of the sentence was a matter exclusively for the trial Judge.

Editor's Note.-The appeal of Accd. I to the E. A. C. A. against his conviction and sentence was dismissed, the appellate Court holding that there was no substance in the appeal. Vide Cr. A. No. 106 of 1945.

Phillips, Crown Counsel, for the Crown.

Burke for the Accused.

ORDER.—The two accused Rosen and Madenge, brothers, were charged with the murder of Kangui. The Crown Prosecutor having intimated that he was prepared to accept a plea of guilty to manslaughter both accused who were represented by counsel pleaded guilty unequivocally to that charge and were convicted on their pleas. The second accused, Madenge, who on the depositions would appear to have struck the fatal blow was sentenced to ten years' imprisonment with hard labour. There is material in the depositions to show that Rosen was associated with his brother at the time the killing took place in such a manner as to make him equally responsible in law for the killing. The short history of the case is that Madenge had some time previously been caught in adultery with Kangui's wife and that on the occasion of the killing the two brothers who were armed with knives and sticks visited a place where Kangui and his relatives were taking part in a mourning feast. As was to be expected their presence was not welcome and a fight ensued between the Kangui party and the two accused in the course of which Kangui met his death at the hands of Madenge. It seems not unlikely that the first move may have come from the Kangui party and that this led up to Madenge in the course of the fight fatally

stabbing Kangui. It may of course on the other hand be that the two accused were the aggressors. As far as the two accused are concerned the former is the more merciful view and would lay the foundation for the lesser charge of manslaughter based on provocation applicable to the case of each accused. In attacking the Kangui party they would be linked by a common purpose. There is ample authority for holding that a common purpose may be proved by the acts of persons at or about the time a killing takes place; many instances have been before the Court of Appeal for Eastern Africa. Thacker, J., before whom the case came, made the following order: —

"In my opinion although the accused has insisted on pleading guilty to the offence of manslaughter and was consequently convicted upon that plea it is doubtful whether on the depositions he can be said to be guilty of manslaughter. I therefore propose to invoke the provisions of section 323 of the Criminal Procedure Code and to reserve and refer for the decision of a court consisting of two or more Judges of the Supreme Court the question which has arisen in the course of this trial and the determination of which would affect the event of the trial, that is to say, whether, notwithstanding that conviction ought to stand, and further, whether if such conviction should stand, he ought to have sentence passed upon him, and if so, the extent and nature of that sentence. It is ordered accordingly".

Our answer is that we can see no reason why the conviction of Rosen on a charge of manslaughter should not stand and sentence be passed on him accordingly. The extent and nature of the sentence is a matter exclusively for the trial Judge.