[1947] EACA 13

## COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and THACKER, J. (Kenya)

## REX, Respondent (Original Prosecutor)

$\mathbf{v}$

## ANDEREA OWORI s/o YOWANA, Appellant (Original Accused) Criminal Appeal No. 11 of 1947

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

Criminal law-Murder-Unlawful act-Absence of malice aforethought-Manslaughter.

The appellant placed a hand-grenade with the safety-pin out on the top of the wall under the eaves of a house. The grenade exploded and fatally injured a woman who was in the house at the time.

### He was convicted of murder and appealed.

- *Held* (20-1-47).—(1) That it was legitimate to presume that the appellant knew that an explosion would result from what he did but that it was possible that he did not intend to cause grievous bodily harm or death to anyone. - (2) That as the act of the accused in causing an explosion in the eaves of a house was unlawful he was clearly guilty of manslaughter.

Appeal allowed.

Conviction for manslaughter substituted.

### Appellant absent, unrepresented.

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

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The appellant was convicted in the High Court of Uganda at Kampala of the murder of a woman, Akumu $w$ o Mikairi, and sentenced to death. From that conviction he appeals to this Court.

It was abundantly proved at the trial, and indeed not disputed, that the woman Akumu died as the result of a wound in her head caused by a fragment of a hand grenade which exploded at the top of the wall under the eaves of the house in which Akumu was.

The case for the prosecution at the trial was that the appellant, with a knowledge of the properties of the grenade, deliberately placed it on top of the wall under the eaves, with the safety-pin out, and with the intention that it should by exploding cause death or grievous bodily harm to the inmates of the house; that as a result of the explosion Akumu was killed; and that it was therefore the appellant who, of malice aforethought, caused her death by his unlawful<br>act in so placing the grenade in the house. The case for the prosecution was found proved by the High Court and the appellant accordingly was found guilty of the murder of Akumu.

The consideration of this appeal falls naturally into two parts. First, there is the question whether the Court below was right in finding as it did that it was the appellant who placed the grenade in the house. Our consideration of the evidence has satisfied us that no other conclusion was possible. It was undoubtedly the appellant who put the grenade in position, and that part of the case has given us no trouble.

The second question is a more difficult one, as to the degree of criminality involved in this act of the appellant in putting the grenade in position in such a way that it exploded and killed Akumu.

There is no suggestion whatever in the evidence that the appellant had any motive of ill-will towards any of the people of the house, or even that he knew whose house it was, or who were in it, or indeed that he knew there was anyone. in the house at the time. Proof of motive is, of course, unnecessary to the success of the prosecution case, but where no motive is suggested the most careful examination of the appellant's mental attitude and of his knowledge of the properties of the grenade is necessary. There is no evidence that he had ever handled or exploded a grenade before. He was in the $R. A. M. C.$ for some time during the war, but the learned trial Judge-in our opinion quite rightlydecided to attribute no special knowledge to him due to his having been in the Army. That his own hand was shattered by the explosion does suggest that his knowledge of the handling of grenades was dangerously sketchy.

That at the material time the appellant was under the influence of drink is definitely indicated by the evidence. The learned trial Judge found that he was probably under the influence of drink, but that there was no evidence that he "was incapable of forming the intention to kill or injure". We agree with the learned Judge on both these points, and if the killing had been a simple act of violence, for example, by stabbing or hitting with an axe, the case would in our view clearly have been one of murder. But here there is no such simple act of violence, the significance and results of which the appellant even in his drunken state could well understand. Probably it is legitimate to presume that the appellant did know that an explosion would result from what he did, but from a consideration of the facts as a whole we are of opinion that it is possible that the accused may not necessarily have intended to cause grievous bodily harm or death to anyone but may merely have intended some less unfortunate result.

Taking it that the appellant knew that an explosion of some sort would result, it was manifestly unlawful, and he must have realized that it was unlawful, to cause the explosion in the eaves of this house. By that unlawful act as it happened he caused the death of Akumu and he was therefore under the terms of Section 192 of the Uganda Penal Code clearly guilty of manslaughter.

Taking that view of the case we therefore quash the conviction of murder and the sentence of death and substitute a conviction of manslaughter and a sentence of five years' imprisonment with hard labour.

Although we find ourselves unable to agree with the learned Judge's decision we should like to express our appreciation of the anxiously careful way in which the Judge dealt with a most unusual and difficult case.