[1939] EACA 90

# COURT OF APPEAL FOR EASTERN AFRICA

## BEFORE SIR JOSEPH SHERIDAN, C. J. (KENYA), WHITLEY, C. J. (UGANDA) AND SIR LLEWELYN DALTON, C. J. (TANGANYIKA)

## REX, Respondent (Original Prosecutor)

versus

### NGUNJIRI s/o MUGI, Appellant (Original Accused) CRIMINAL APPEAL No. 209 OF 1938

#### (Appeal from conviction by H. M. Supreme Court of Kenya)

Criminal law—Murder—Proof of killing—Identification of corpus. *delicti*—Circumstantial evidence.

Appellant appealed from a conviction of murder of one K. The appellant and K. were the sole occupants of two huts in a lonely position on a farm. The huts were burnt down on 2-5-38 during the night after which $K$ , was not seen alive although he had been in good health and no reason was known as to why he should wish to leave the farm. Next morning appellant was seen to have placed branches of thorn on the dung hill near the site of the huts. On 22-6-38 a skeleton of a man who, according to the medical evidence, had been dead for about four to five weeks was found buried in' the dung hill and wrapped round as to the trunk with sacking and bound with wire. With the skeleton was found a necklace, portion of a belt and some other beads, similar to those worn by K. The skeleton corresponded with that of $K$ , in that it was of a small man with very small feet having a full set of teeth. The cause of death was not apparent but the bones had not been burnt. Appellant had the possession of K.'s property and used part of it to pay his own debt. Appellant had made false statements to the cause of K.'s disappearance and as explanation of his disposal of K.'s property.

Held (9-2-39).—That the evidence was sufficient to justify the conviction.

Rex v. Nash (6 C. A. R. 225), Rex v. Robertson (9 C. A. R. 189), Rex v. Davidson (25 C. A. R. 21), Emperor v. Kallam Lanayana (56 Madras 231) and Rex v. Yego (4 E. A. C. A. 25) applied.

Ross for the appellant.

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

JUDGMENT (delivered by Sir Llewelyn Dalton, C. J.): The accused has been convicted of the murder of one Kanyuku on or about 3rd May last. For the purposes of his appeal to this Court from that conviction, Counsel has been assigned to him, and we have had the benefit of hearing a lengthy and detailed argument on his behalf from Mr. Ross in the course of which everything that could be said on behalf of the appellant has been said. That argument may be divided into two portions (1) relating to the identity of the human remains found in the manure heap on Mr. Roberts' farm on 22nd June; and (2) assuming that those remains are those of the man Kanyuku there is no conclusive evidence as to how he came by his death, and if so, the charge of murder has not been established.

To deal with the first question, that of the identity of the remains, it has been conclusively proved that on the night of 2nd May the accused and deceased were the sole occupants of the two huts on the farm, which during the night were burnt out. They were in a. lonely position and the nearest human habitation to the huts was the house of Mr. Roberts, half a mile away. Kanyuku was a native herd in Mr. Roberts' employment, and was in occupation of these two huts during the absence of the owner of the huts, one Theuri, a dairy boy on the farm who was away on leave since January. As there is another witness of this name this Theuri will be called Theuri No. 1 for convenience. The accused whose age is stated to be about 20 or 21 years was not employed on the farm but was staying with Kanyuku, his stepfather. Accused's mother Wanjiro, who says she had lived with Kanyuku many years, had come with Kanyuku when he moved in to the huts when Theuri went on leave in January, but she left her husband some considerable time before Kanyuku's disappearance. There appears to have been some quarrel between her and Kanyuku as a result of which she says she ran away. with her children.

Another occupant of the huts living with his stepfather at the time, but absent on the night of 2nd May, was the second witness Theuri, a boy, another son of Wanjiro and brother of accused. He had left to visit a young boy friend on a neighbouring farm, where he slept, returning next morning to find Kanyuku's huts burnt, and accused there alone. $\mathcal{L}^{\frac{1}{2}}$

Kanyuku was last seen by Mr. Roberts on the evening of 2nd May. He asked for no leave and never told his master he was going away. Next morning he failed to turn up and on inquiries from accused, the latter informed Mr. Roberts that Kanyuku had gone to look for his wife. The burning of the two huts he explained by stating that hyenas came worrying around the boma and he was throwing coals of fire at them when he noticed both huts were on fire. These explanations appear to have satisfied Mr. Roberts. Accused continued on the farm for a week doing Kanyuku's work, at the end of which time he was told to return to his former employer who had not signed him off.

Kanyuku was also seen on 2nd May by Wambule, a milker on the farm to whom he was well known. When he last saw him Kanyuku was quite well, and he does not appear to have even suggested to this witness that he was leaving the farm.

Next morning, 3rd May, the boy Theuri returned from his visit and found accused alone at the burnt huts. He says he found accused pulling a thorn branch out of the boma fence. He also saw. that some branches had been placed on a dung heap just outside the fence, which branches were not there when he left the huts the day before. In reply to his question put to accused as to where Kanyuku was, accused merely replied "Did he not follow you last night", and the boy says he has not seen Kanyuku since then. It may be stated here that the boy states that accused and Kanyuku were friendly and did not quarrel. i i i

Meanwhile no one seems to have been anxious or made any inquiries as to the whereabouts of Kanyuku, or to have tested the truth of accused's statement to Mr. Roberts or Wambule that Kanyuku had gone to look for his wife.

On 14th June Theuri No. 1 returned to the farm from leave and found huts burned and Kanyuku gone. He says he searched round about the site of his huts including the dung heap. He appears to have had some suspicions as the result of finding thorn bushes on the heap and ashes with a piece of burnt shuka apparently near by. In the dung heap he found human remains and at once informed his master Mr. Roberts who came to the spot and saw a skull in the manure heap. The latter made a report to the police and on 22nd June in the presence of the Assistant Superintendent of Police, Nyeri, the dung heap was excavated. Human remains were then found, including a trunk and skull wrapped round with a piece of sacking and held together by wire. There were particles of flesh, very decomposed, adhering to the bones. With the remains were a khaki shirt, a string of green beads (Exhibit 5), a portion of a belt including the buckle and some more beads (Exhibit 6). The post mortem examination was held at the farm the same day by the Sub-assistant Surgeon, Nyeri. He describes the remains as the complete skeleton of a man, who had been dead in his opinion from 4 to 5 weeks. As the body was found in dung heap he says he would expect it to decompose in that time, although he admitted it was difficult to fix this time with any certainty. He found the string of green beads round the neck. The feet were small for the average native considering the size of the skeleton. He found no injuries on the bones or skull and was unable to give the cause of death. No soft tissues were left on the body, but the bones had not been burned.

The bead necklace (Exhibit 5) Mr. Roberts says Kanyuku wore every day, although he admitted the beads were common things. Wambule, who knew Kanyuku well, purported to identify the remains as those of Kanyuku from the following circumstances; he knew the beads (Exhibit 5) round the neck of the skeleton, and the other beads and portion of belt (Exhibit 6) found with the remains. He also said Kanyuku had a complete set of teeth. The beads are no doubt common beads, but the witness was sure they and the belt were Kanyuku's. Wanjiro, Kanyuku's wife and accused's mother, who had lived with Kanyuku many years also identified the green beads and the belt as belonging to him. Theuri No. 1 gave evidence to the same effect about these exhibits and as he used to work with Kanyuku he had every opportunity of seeing them frequently and knowing other details of which he speaks namely the very small feet of the man and also the fact that he had a full set of teeth. The Sub-assistant Surgeon remarks on the small size of the feet of the deceased person.

We have then these facts deposed to in evidence on the question of identity. Kanyuku was last seen alive and well on 2nd May and he disappeared during the night of that day. He has never been seen since and it is not suggested that he had any reason to disappear or to leave his work and relatives and friends. Remains of a human being were found buried in a dung heap just outside the fence round the huts where he lived on 22nd June. The medical evidence was quite consistent with the man whose remains were there found having died at the time Kanyuku disappeared. No other natives lived within half a mile of the place. Round the neck of the skeleton was found a string of green beads exactly similar to a string worn by Kanyuku. Three witnesses who knew him well were prepared to state they were Kanyuku's beads. Other beads and remains of a belt were found with the remains which were similarly identified. The skeleton according to the medical evidence had small feet, having regard to the other proportions of the skeleton. There is evidence that Kanyuku's feet were very short, and also that he had a full set of teeth. The medical evidence does not give, as it might well have done, the probable height of the person found buried, but the witness Theuri No. 1 states that Kanyuku was very short and that this was one of the circumstances which helped him to identify the remains as those of Kanyuku. In all these circumstances we are satisfied the learned trial Judge had ample evidence before him to support his finding that the remains found were those of Kanyuku and therefore the identity of the human remains is established.

The second question which arises for decision is admittedly a more difficult one. It is not suggested for the appellant that the learned trial Judge has in any way misdirected himself on the law applicable, but Mr. Ross has strenuously urged that on the facts here, particularly having regard to the medical evidence to the effect that, so far as an examination of the remains showed, Kanyuku may equally well have died from natural causes as from violence, the learned Judge was on the evidence before him not entitled to come to the conclusion that Kanyuku met his death at the hands of the accused. He argued that the case was one of considerable doubt, and that the position was correctly summed up by the third assessor (the other two assessors having expressed the opinion that accused was guilty of murder) that he could not say for certain that accused had committed murder.

The law applicable is correctly set out in the judgment of the trial Judge, where he cited the material paragraphs from Wills on Circumstantial Evidence 7th Edition, page 357. In a trial for murder where circumstantial evidence is relied on, that evidence must lead to the inevitable conclusion that the death was the act or contrivance of the accused, and if there is an alternative which can with any reasonable probability account for the death this excludes the certainty which is required to justify a verdict of guilty: $\text{Re}x$ v. Daniel (1 E. A. C. A. 154). The degree of certainty required in criminal trials is that degree of certainty with which one has to be satisfied in the most serious transactions of life, for as pointed out by Pollock, C. B. in Regina v. Exall & Ors. (176 E. R. at page 854) no higher degree of certainty is ordinarily attainable in human affairs. Each case must of course depend upon its own facts.

In Rex v. Nash (6 C. A. P. 225) a woman was convicted of the murder of her illegitimate child aged 5 years and 9 months. It was urged on appeal on her behalf amongst other things that there was not sufficient evidence of unlawful killing. The body of the child was found in a well in April, 1908. The medical evidence failed to show whether death was natural or violent, or whether it occurred before or after the body got into the well. The child was last seen alive in June, 1907, some ten months before. On that occasion the mother left with the child who was in perfect health passing near the well where the body was found, saying she was going to a house in a neighbouring town. When she returned she said she had left the child at that house, and had packed up the child's clothes and sent them to the same place. These statements by her were untrue. The judgment of the Court of Appeal continues:-

"She had an object in getting rid of the child, and if it had been lost or met with an accidental death she had every interest in saying so at once. It is said there is no evidence of violent death but we cannot accept that Mr. Goddard cannot have meant that there must be proof from the body itself of a violent death. His argument means that on the whole evidence the possibility is left so open that it was not safe to leave it to the jury. But the facts which were proved called for an explanation and beyond the admittedly untrue statements none was forthcoming. . . In view of the facts that the child left home well, and was afterwards found dead, that the appellant was last seen with it and made untrue statements about it, this is not a case which could have been withdrawn from a jury."

#### The appeal was therefore dismissed.

In the case of Rex v. Robertson (9 C. A. R. 189) the accused was convicted of murdering his child of 2 years and 3 months. Unfortunately however in this case as accused's counsel on appeal pointed out, it was bound to come out in evidence that accused was also charged with the murder of his other two children, twins of nine months. The three bodies were found under the floor of a room in his house. The medical evidence does not appear to have established the cause of death, but it was stated that the condition of the bodies was consistent with their having been smothered or suffocated in some way or other. The evidence showed that the accused's wife was in the infirmary and that he had tried to get his children into a workhouse without success. When last seen alive the children were well and accused gave false explanations as to their whereabouts. It was urged on his behalf that the burying alone could not be said to establish a case of murder but the Court of Appeal after setting out all facts said: -

"It is argued that these facts do not amount to evidence on which a jury could convict. It could be argued that on these facts no other verdict was possible. The only possible suggestion is a series of coincidences. The jury are reasonable men and we have to exercise our common sense and must take into account what inferences reasonable men would draw from the evidence."

The appeal was dismissed.

In Rex v. Davidson (25 C. A. R. 21) the accused was convicted of the murder of his son whose body had not been found. Accused prior to trial had made several confessions to the effect that he had murdered the boy and disposed of the body but at the trial he retracted these confessions and gave evidence that he had found the dead body of the boy in the canal. Apart from the prisoner's statements there was no direct evidence that the boy was dead, but it was held that the evidence was sufficient to justify a conviction. The Court of Appeal pointed out that all accused's conduct was inconsistent with the view that the boy had come by his death in a way not involving guilt upon the part of the accused.

In Kallam Lanayana v. King Emperor (56 Madras 231) the appellant a boy was convicted of murdering a girl. There was there ample medical evidence to show the girl had met a violent death, but the case is relevant here in so far as it was held that under section 114 of the Indian Evidence Act the Court is entitled if it appears reasonable in all the circumstances of the case, to draw an inference that an accused person committed a murder or took part in its commission from the fact that he is found in possession of property proved to have been in possession of the murdered person at the time of the murder and that he fails to give any explanation of his possession of the property which can reasonably be accepted. This same conclusion was come to in Rex v. Yego (4 E. A. C. A. 25).

Applying the law laid down in these various authorities to the facts of the case before the Court one arrives at the following conclusion.

It is established by the evidence as has already been pointed out, that on 2nd May Kanyuku was apparently well and in good health. That night he and accused were alone in their huts. During the night those huts were burnt down. The circumstances in which they came to be burnt will probably never be satisfactorily established. Theuri No. 1, who built the huts states he was never troubled by hyenas there. During that night Kanyuku, the evidence without doubt leads one to conclude, met his death, and was secretly buried by the accused. The disappearance of Kanyuku on the night of 2nd May and the evidence of the boy Theuri as to the acts of the accused in placing thorn bushes on the dung heap when he came back to the huts next morning, and the subsequent finding of the body of Kanyuku under them, is only consistent with that conclusion. The various explanations of accused to the boy Theuri, to Mr. Roberts and to Wambule to explain the disappearance of Kanyuku are all false, and were of course false to the knowledge of accused.

When he died Kanyuku was the owner of some eight or twelve sheep and goats, seven of which he had purchased from a man named Kaita. On this latter purchase Kanyuku still owed Kaita Sh. 4. The evidence establishes that after Kanyuku's death, the accused, taking possession of his sheep and goats, left with Kaita a calabash, jumper, and spear (Exhibits 4, 8 and 7) identified as Kanyuku's property as security for this debt. There can also on the evidence be no doubt that the accused owed a native named Wahomi a sum of money in connexion with a case arising out of the association of accused with Wahomi's daughter. Since the preliminary inquiry Wahomi has died but the learned trial Judge is satisfied on the evidence before him that accused left with Wahomi six of Kanyuku's sheep to settle this debt. Accused has given more than one explanation of his disposal of the deceased's property, but his last explanation that he left the sheep with Wahomi until Kanyuku's return is obviously false since he knew that Kanyuku was dead. The conclusion is that he appropriated Kanyuku's sheep to pay this liability. He also gave a jumper (Exhibit 4) belonging to Kanyuku to the boy Theuri.

Mr. Ross has urged that all this evidence may establish that the accused was a thief in stealing Kanyuku's property and was also a liar in saying that Kanyuku had gone away to look for his wife and also given him instructions as to the disposal of his goats. He has argued that it has not been shown that he killed Kanyuku. We have given very careful attention to this portion of his argument but have come to the conclusion that the trial Judge, correctly applying the law cited by him, was entitled upon the evidence to come to the conclusion that Kanyuku met his death at the hands of accused. All the facts of the case he says inevitably led to the conclusion that the accused in some way killed the deceased in order to possess himself of the deceased's sheep, that he then buried the body beneath the mound putting branches upon it to keep off hyenas, that he then gave false explanations of deceased's disappearance, and having committed the crime took possession of the deceased's property and paid his debt to Wahomi. We find it impossible to say that conclusion is not justified by the evidence and the appeal must therefore be dismissed.