[1943] EACA 34

## 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 (Original Prosecutor)

ν.

(1) MUGHUIRA s/o BWAYA, (2) IRUNDE s/o MISAI, (3) KOLO s/o KIJANGA, (4) CHURI s/o MEMBA, (5) ULIKU s/o NTAPAI, (6) KISALU s/o MAJUNGO, (7) SUNU s/o KINGI, (8) SULE s/o KINGI, (9) MNDULU s/o MAKIYA, Appellants (Original Accused Nos. 1–9).

Criminal Appeals Nos. 123, 124, 125, 126, 127, 128, 129, 130 and 131 of 1943 (Consolidated)

Appeals from decision of H. M. High Court of Tanganyika

Criminal Law—Murder—Burglary—Common intention—Section 22 Penal Code.

The nine appellants having formed the common intention, during a period of famine, of burgling a house, carried out this plan. During the burglary, one of the appellants, who alone was armed, speared and killed the owner of the burgled house, who on being aroused had fired an arrow at the party, grazing the head of one of them. The appellants denied any intention to murder. The nine appellants were convicted of murder.

- *Held* (18-8-43).—Even although only one member of a party—i.e. the first appellant—which had formed the intention of committing burglary, was armed, the enterprise of burglary was unlawful, and resistance by the owner of the premises burgled was a probable consequence and the overcoming of such resistance by violence if necessary by the burglars would probably be resorted to were sufficient factors to bring all the accused within the doctrine of common intention, thus making them equally responsible in law for the act of the first accused. - R. v. Chebiegon and another, 15 K. L. R. 100 followed. Ruben's case, 2 Cr. A. R. 163 referred to.

Appeals dismissed.

Appellants absent, unrepresented.

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

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The learned Judge and the assessors—the latter in unmistakable language—found that a party of nine men, the first of them carrying a spear, set out on a six hours' *safari* to burgle a dwelling-house and that they were all guilty of the murder of the householder, who met his death at the hands of the first accused. The common intention of burglary is admitted by all the accused, but any intention to murder is disclaimed. The enterprise took place during a period of famine and the evidence is that all the accused remained in the vicinity of the premises until they were virtually stripped bare of the goods therein. On the arrival of the party and at the outset of the burglary, the owner of the house, who had been in bed in the same room as his wife and who was aroused by the noise of people moving in or near the house, fired an arrow, slightly wounding one of the burglars. This is borne out by the Statutory Statement of the first accused, which was adopted by his coaccused. His statement reads as follows: -

"It is true that we went to burgle Amasi's house. When we arrived we sat a little while outside to listen. Then four of us, myself and Churi (fourth accused) and Uliku (fifth accused) and Mndulu (ninth accused), climbed over the roof and entered the yard. The others waited behind the house. Then we first went into the man's sleeping quarters: we found no one there. Then we sat outside the wall of Amasi's room. While we were sitting there an arrow was fired and just grazed Churi's head in passing. (Slight mark on head of sixth accused—exhibited.) It was fired from inside the house near the door. Then I heard the voice of an old man, the deceased, and following it I found a gap in the wall large enough to permit of my spear being jabbed through it. I jabbed and withdrew it once only. I could not say whether it. struck anyone at the time or not.

I) $\overline{a}$

Then everything was quiet again. Then we all went round behind the house and broke through the wall. We entered the house. We then broke a hole in the front wall also to get more light. Then we cleared out what we wanted and went off by the way we had come in.

We went stealing because of hunger owing to famine. We did not see the deceased or know that anyone had been killed, because we went straight into the grain store. We did not enter the outer rooms."

From this it is clear that the owner showed resistance to the burglary, a most natural reaction particularly in times of famine, when one's property assumes an added value. And it will be observed that the reaction of the burglars was to stand their ground until their burglarious enterprise had been carried through to a successful conclusion. Perceiving that the owner was showing resistance the first accused jabbed his spear through a gap in the wall, killing him. The finding of the learned Judge and the assessors that he was guilty of murder is in our opinion a reasonable one. The question then is whether the remaining accused are equally guilty on the ground that they were identified with the first accused's act by the doctrine of common intention as defined in section 22 of the Penal Code.

It is convenient here to refer to the definite opinions of the assessors, which read as follows: —

"Ist Assessor.—Each accused has done wrong. He left with the others on a six-hour safari. They were a warlike party. When the deceased saw them, he tried to defend himself and fired his arrows. Such people when the owner resists usually run away—I know my people. These people did not run away when resisted. Why not? Because they meant to achieve their purpose—they had the intention to kill the owner of this property if he resisted. All are equally guilty."

"2nd Assessor.—The first accused convened the party, but they all went along with a common intention, and I find all are equally guilty of murder."

On the evidence adduced at the trial we do not consider ourselves justified in taking a contrary view. Their view cannot be termed an unreasonable one. While only one of the party was armed with a spear, and even allowing that it is usual to carry spears in that part of Tanganyika when travelling at night, as a protection against wild animals, resistance to the burglary by the owner may be regarded as a probable consequence, and the overcoming of such resistance by violence if necessary by the burglars may be regarded as the burglars' contemplated reaction to the owner's resistance. In Rex v. Chebiegon and another, 15 K. L. R. 100, it was held by this Court: "That where three persons set out armed with lethal weapons with the common intention of stealing goats and one of them, in order to fulfil their purpose, kills the custodian of the goats, all are liable to be convicted of murder". We realize that in the present case only one of the party was armed, but the points against the accused, namely that the enterprise was unlawful, resistance by the owner was to be expected, the overcoming of such resistance by violence, if necessary would probably be resorted to are sufficient to bring all the accused within the doctrine of common intention, thus making them equally responsible in law for the act of the first accused. As was said in Ruben's case, 2 Cr. A. R. 163: "Though this is so in law, possibly, in the circumstances, those who have power which this Court has not, may consider any steps which may rightly be taken in this case".

The appeals are dismissed.