[1943] EACA 10

# COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and LUCIE-SMITH, J. (Kenya)

# REX, Respondent (Original Prosecutor) v

# TIRUGURWA bin BYANTIMBA, Appellant (Original Accused)

## Criminal Appeal No. 153 of 1942

### Appeal from decision of H. M. High Court of Tanganyika

# Murder—Arson—Intoxication—Specific intention to cause death or grievous harm—Section 189 Penal Code—Malice aforethought.

# The facts sufficiently appear from the judgment.

Held (25-1-43).—That if a person is found to have burnt a hut and to have formed the intention of doing so, with the knowledge or having reasonable ground for believing that a human being is asleep within he must be held to have burnt the house with malice aforethought within the meaning of Section 189 of the Penal Code in the sense that having that knowledge or grounds for belief, he must at least be taken to have known that his act in burning the hut will probably cause death or grievous harm, and that if death results he is guilty of murder.

#### R. v. Kimno arap Kipturji 1 E. A. C. A. 188 referred to.

#### Appellant absent, unrepresented.

### Stacey, Crown Council (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—There is sufficient evidence, that of the accused's father and the accused's wife, married to him by native custom, that the accused set the deceased's hut on fire with the result that the deceased was burnt to death. The body of the deceased was very badly burnt, but was recognizable as that of Kazomba, a cousin of the accused. The learned trial Judge accepted the evidence as to the recognition of the body as that of Kazomba. The accused had been at the deceased's hut some hours previously to the hut having been set on fire, and according to his own evidence parted from the deceased in company with a man named Kifwete after the deceased had said "It is two days now that I have been drinking like this and I want to go to bed; if you people wish to stay here and sleep you can do so. If you wish to go home you may go now". This evidence is very important for it shows that the accused had the best of reasons for believing that Kazomba had retired for the night. If it be proved, as is the case, that later the same night the accused set fire to the hut, thereby causing Kazomba's death, in the absence of any other circumstance, there is a prima facie case of murder against him. The only other circumstance in the case is that the accused was to some extent intoxicated. The question is whether he was intoxicated to such an extent that when he set fire to the hut he was incapable of forming and did not form an intention either to cause death or grievous harm. It is provided by section 189 of the Penal Code, inter alia, that malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: —

"(a) an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not;

(b) knowledge that the act or omission causing death will probably cause the $\frac{1}{2}$ death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;"

It seems to us that the accused must be deemed to come under one or the other of these provisions in setting fire to the hut, once there is clear evidence that. the deceased was in the hut and on the findings of fact by the learned Judge that "the (the accused) was on his own showing able to move about the countryside, able to take leave of his friends, able to return home, able to call for his pipe and his drink of banana juice, able to decide that it was better to rest in the outer room rather than risk being sick over his bed, and so on", and his saying to his father "I will burn your house, if you make any trouble, as I have burned that of Kazomba", there can be no question of his intoxication having rendered him incapable of forming an intention to cause the death of or grievous harm to Kazomba within the meaning of section 189 of the Penal Code. The case to our mind is no different than if he had for instance returned to Kazomba's hut, entered it and struck him with a *sime* or *rungu* so causing his death. Instead of a sime or rungu he adopted the equally effective method of setting the hut on fire. Reference has been made in the judgment to Beard's case, but with respect we do not consider that Beard's case has any application to the facts of this case. In Beard's case, the prisoner was engaged in a crime of violence, rape, and without any intention of causing death or there being any likelihood, as far as he knew, of death resulting, death did result in consequence of his strangling his victim through putting his hand over her mouth and pressing his thumb on her throat so as to overcome the girl's resistance, the act thus being done in furtherance of the crime of rape. The prisoner was held to have committed murder on the ground that although he did not intend to kill nor did he know that death was a likely result, he was engaged in a felony involving violence. In Rex v. Kimno arap Kipturji 1 E. A. C. A. 188 it was held "That there is no authority in the English decisions for holding that any felonious act done as an end in itself and without any intention to cause death or grievous harm imports of necessity malice aforethought".

It was at first submitted by Crown Counsel that merely because the accused was engaged in the felony of arson and that death resulted, the finding had to be murder, but on our referring him to *Kimno's* case he conceded that his submission could not succeed. The following passages from the judgment in Kimno's case will explain the headnote: -

"That sub-head $(c)$ , however, applies to unlawful acts done in the course of or furtherance of a felony is obvious by ordinary interpretation and up-to-date authority. In *Rex v. Beard* (1920) 14 Cr. App. Rep. p. 158, it was held that where a man in a struggle to overcome the resistance of a young girl he desired to ravish, placed his hand over her mouth and pressed his thumb on her throat and strangled her, he was guilty of murder though he had no intention of killing or inflicting any serious injury. The House of Lords, in holding that the homicide was murder said, per Lord Birkenhead, L. C., that the Court of Criminal Appeal was 'of opinion that' the evidence established that the prisoner killed the child by an act of violence done in the course or in the furtherance of the crime of rape, a felony involving violence. The Court held that by the law of England such an act was murder. No attempt has been made in your Lordship's House to displace this view of the Law and there can be no doubt about its soundness! This dictum was employed by the Court of Criminal Appeal in the case of Rex v. Betts and *Ridley* (1930) 22 Cr. App. Rep. 148, where the decision this time related to homicide committed by striking on the head of a person whom it was designed to rob. The Court said, after quoting the above remarks of Lord Birkenhead: 'So here, if the jury had been directed that Betts, while in the act of committing a felonious act of violence against the person as he undoubtedly was, caused death by some act done by him in the course of that felonious act of violence, then he was guilty of murder."

In differentiating thus between fatal acts of violence felonious in themselves but done without homicidal intent and fatal acts of violence done without homicidal intent but in the course of or furtherance of felonies we recognize the difficulties which beset a Court endeavouring to interpret a code which by section 4 thereof is to be interpreted in accordance with the principles of legal interpretation in England, which means in accordance with cases from which it is by no means easy to extract general principles. But we are of the opinion that in coming to the conclusion that we should be justified in affirming this conviction for murder, we are giving proper effect to the wording of section 189 of the Code as the Legislature with the effect of English decisions in mind should be taken to have intended.

The present case may be summed up shortly as follows: —If a person is found to have burnt a hut and to have formed the intention of doing so, with the knowledge or having reasonable ground for believing that a human being is asleep within he must be held to have burnt the house with malice aforethought within the meaning of section 189 of the Penal Code in the sense that having that knowledge or grounds for belief, he must at least be taken to have known that his act in burning the hut will probably cause death or grievous harm, and that if death results he is guilty of murder. The appeal is dismissed.