[1941] EACA 63

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda) and SIR HENRY WEBB, C. J. (Tanganyika)

## REX, Respondent

## ENOK ACHILA and LOMUR S/O LOPUA, Appellants

Criminal Appeals Nos. 84 and 85 of 1941

Appeals from the decision of H. M. Supreme Court of Kenya.

Criminal Law—Murder—Common intent—Malice aforethought.

Appellants and others set upon the deceased and the appellant Lomur was: holding the deceased while others beat him with thin sticks, when the appellant Enok caught hold of the deceased and caused his death by twisting his head and thereby dislocating his neck. Appellants appealed from convictions of murder.

Held (8-8-41).—That appellant Lomur could not be convicted of murder unless it wasestablished not only that he was holding the deceased while the appellant Enok was-<br>twisting the neck but that he was identified with Enok's purpose.

Appeal of the appellant Lomur allowed.

Appellants absent unrepresented. Spurling, Crown Counsel, for the Crown.

JUDGMENT (*delivered by* Sir Joseph Sheridan, C. J.).—These two appeals have: been consolidated.

The evidence supports the findings of the learned Judge that a crowd of people set upon the deceased, Ekipor Akut, without any sudden provocation and beat him up and that he died as a result of injuries inflicted during the assault. It was further held that the particular injury from which Ekipor died was a broken neck caused by the first accused, Enok Achila, "twisting the head until his face was looking backwards" while the second accused, Lomur s/o Lopua. held Ekipor. There is evidence to support the case against the first accused, Enok. but the case of second accused, Lomur, is not, in our opinion, free from doubt. Before he can be found guilty it has to be shown not merely that he was holding. the deceased at the time Enok was twisting the neck but that he was identified. with Enok's purpose. In other words, that he was aware of that purpose and was holding the deceased for the purpose of enabling Enok to carry out the purpose. (Sec. 21 $(b)$ Penal Code.) Why we say that there is a doubt as to Lomur's guilt is that there is evidence, that of Ekiru, that Lomur was holding the deceased "for the . others to beat him". The beating, according to the witnesses Ekiru and Narro, was carried out with thin sticks. The witness Narro also said, "no one helped Enok to twist Ekipor's neck". The twisting of the neck was, so far as the evidence reveals, no part of the common purpose of those beating the deceased and it would appear to have taken place sometime during the beating. We are not prepared to go so far to hold that the common intention of the crowd engaged in the beating of the deceased was to cause his death and consequently we are not prepared to hold that the twisting of the neck by Enok was a probable consequence. of the prosecution of such purpose. There being evidence then to show that prior to Enok's act the second accused was already holding the deceased in order that he should be beaten, it is not reasonably certain that he continued to hold him with the knowledge of what Enok was about to do and for the purpose of enabling: him to do it. The appeal of the first accused, Enok, is dismissed and that of the second accused, Lomur, allowed, and he is directed to be set at liberty. The fact that the Turkana, of which tribe the accused persons are members, are a backward race who have not been under the influence of British administration as long as other tribes, will no doubt receive such consideration as it deserves.