[1955] EACA 356

### COURT, OF, APPEAL FOR EASTERN AFRICA.

# Before SIR, BARCLAY NIHILL (President), SIR, NEWNHAM WORLEY (Vice-President) and SIR OWEN CORRIE, J. (Kenya)

# (1) WANJIRO $d/o$ WAMERIO alias WANJIRO $d/o$ MARIE; (2) WAIMATHA. D/O WAKUMBI, Appellants (Original Accused Nos. 10 and 11)

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#### REGINAM, Respondent

Criminal Appeals Nos. 318 and 319 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya sitting in Emergency Assize, de Lestang, $J$ .)

Common intention—Section 23, Penal Code—Requirement for application of section.

Two boys stumbled upon an armed gang, which included the two appellants, in the bush. The male members of the gang promptly surrounded and killed them. The female members of the gang took no part in the killing which they did not. witness. The entire gang was convicted of murder.

Section 23 of the Penal Code provides: "When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such. a nature that its commission was a probable consequence of such purpose, each. of them is deemed to have committed the offence.'

Held (9-8-55).—For section, 23 of the Penal Code to apply, it must be shown that an accused. person shared with the actual perpetrators of the crime a specific unlawful purpose which.

led to the commission of the offence charged.

Appeals allowed.

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Cases referred to: Wanjiru w/o Thairu. v. R., ante page 456.

Appellants absent, unrepresented.

#### Brookes for respondent.

JUDGMENT (prepared by WORLEY (Vice-President)).—These two appellants. were tried by the Supreme Court of Kenya sitting in Emergency Assize at Nairobi jointly with ten men on an information containing three counts. The first count charged all the accused with murder; the second count charged one of the men with unlawful control of a firearm and the third count charged the remaining: eleven accused with consorting with the unlawfully armed man contrary toregulation $8c$ (1) of the Emergency Regulations, 1952. All the accused persons were convicted on these counts and their appeals have been summarily dismissed excepting only the appeals of these two women against their convictions for murder. These two appellants being under the statutory age were sentenced on both counts to be detained during the Governor's pleasure, so that the successof their appeals from their convictions for murder will have no practical effect. However, we thought it right to set down these two appeals for hearing since their conviction involves an important question as to the application of section 23 of the Penal Code of Kenya to persons who consort with or form part of a Mau Mau terrorist gang.

The facts so far as material are that the gang in question consisted of about fourteen or sixteen persons including four women of whom the appellants were two. The other two women turned Queen's evidence, and were called as Crown-

witnesses at the trial. The gang was armed with one precision rifle and a number of home-made guns. On the morning of 20th April, 1955, the gang was lying up in a hideout in the Kiambu District when two boys, who were out shooting birds with an airgun, stumbled upon them in the bush. The male members of the gang promptly surrounded and killed the boys. The four women took no part in the actual capture and killing of the boys; they were in fact told by the men to move away and did so. They did not, it appears, witness the actual killing though they were near enough to hear the screams of the murdered children. After the killing the gang split up into groups, the two appellants remaining with one of the groups. In fact, the first-named appellant when captured was carrying the airgun which the boys had had while the other appellant was carrying a simi slung from her shoulder.

So far as the two appellants were concerned, the main issue, as the learned trial Judge states, was whether this evidence by itself was sufficient to render them guilty of the murder by the application of the doctrine of common intention or common purpose as prescribed in section 23, which reads:

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

The learned trial Judge thought that proof that all the twelve accused were members of a gang of terrorists and were present when the two boys were killed was by itself sufficient, having regard to section 23, to render them all guilty of murder. His reasons for so holding appear in the following passage of the judgment:

"The Court of Appeal for Eastern Africa has held in *Wanjiru* $w/o$ *Thairu v. Reg.* Cr. A. $141/1955$ , that the mere existence of an armed gang of Mau Mau terrorists is at the present day in Kenya prejudicial to public safety and the maintenance of public order and it is indeed common knowledge that it is the purpose of gangs of terrorists to kill, rob, steal and burn. There can be no doubt that murder is a probable consequence of the prosecution of acts of terrorism by gangs of terrorists. It is therefore clear that when a murder is committed by a gang of terrorists all the members of the gang present at the killing are guilty of murder unless they have dissociated themselves from it. I am satisfied that there was no such dissociation here.... As regards the female accused, I am prepared to accept the evidence that the four women in the gang did not take part in the actual killing but were a short distance away hiding while it was taking place. Nevertheless, I consider that for the reasons already given they are just as guilty of the murder as the rest by virtue of section 23."

In the appeal referred to by the learned Judge the appellant, a woman, had been -convicted of consorting with armed persons contrary to regulation $8c$ (1) of the Emergency Regulations, and the point which this Court had to consider was whether the facts accepted in the trial court disclosed circumstances raising a reasonable presumption that the appellant intended to act or had recently acted with the armed persons in question in a manner prejudicial to public safety or the maintenance of public order. In that case the facts were that the woman had for many months been an active member of the gang which had habitually engaged in terrorist activities and that she assisted the gang by associating with its members and by cooking for them. We accepted the contention of Crown counsel that the mere existence of an armed gang of Mau Mau terrorists is at the present day in Kenya prejudicial to public safety and the maintenance of public order, and that any person consorting with and actively assisting the gang

in its activities is acting in a manner contravening the regulation. In other words, we accepted the proposition that anybody who voluntarily associates with and assists an armed gang can be taken, for the purposes of the presumption, to share with the other members of the gang a general common intention to commit unlawful acts.

We do not wish to appear to resile in the least from that proposition, but in the present case, the learned Judge has taken the matter a step further and has, in effect, held that not only can every person consorting with a gang be held to participate in the general unlawful purpose but also he can be deemed to have committed any offence which is committed in the prosecution of such general unlawful purpose without proof of any common intent to commit a specific unlawful act provided that the offence committed was a probable consequence of the prosecution of the general purpose, and provided further that he is present when the offence is committed and does not dissociate himself from it.

In so far as the men in the gang were concerned, the learned Judge did not have to apply this proposition, because he found that they were all actual participants in the crime and accordingly were guilty as principals under section 22 of the Penal Code. He did, however, apply it in the cases of these two female appellants, and the question which has caused us anxiety is whether he was correct in law in so doing.

"Common intention" generally implies a pre-arranged plan, but this does not rule out the possibility of a common intention developing in the course of events though it might not have been present to start with.

In the instant case, the evidence shows that there was no pre-arranged plan to murder these two boys, nor any pre-arranged plan to prosecute any specific unlawful purpose which might have as a probable consequence the killing of the boys, e.g. a planned attack on the house where they lived. While the gang was resting the only common intention the members had was that of generally pursuing unlawful purposes. It was not until the boys stumbled into the camp and the men decided to kill them that a common intention to commit this specific offence was formed, and from that the women were expressly excluded. How, then, can it be said that they did not dissociate themselves from it? In truth they were never associated with it. They could, of course, have dissociated themselves from the general unlawful purposes of the gang by leaving it, but we do not think that this was what the learned Judge had in mind. When he speaks of members of the gang present at the killing dissociating themselves from it he means, or so we understand him, dissociating themselves from that particular crime, i.e. not sharing the particular common intention. We think, with respect, that there is in the judgment as regards the women a confusion between the general common intention to prosecute unlawful purposes and the particular common intention to commit this specific offence.

It is clear that the women of the gang had no hand in the killing of the boys and we think that it is not sufficient to justify the application of section 23, to show that they shared with the rest of the gang a general common intention to carry out certain unlawful purposes, even if these purposes might include or lead to murder. We think that in order to make the section applicable it must be shown that the accused had shared with the actual perpetrators of the crime a common intention to pursue a specific unlawful purpose which led to the commission of the offence charged. It may well be that these appellants were accessories after the fact, but for the reasons above given, we think that they were wrongly convicted of murder.

These two appeals are therefore allowed and these appellants' convictions for murder are quashed. Their appeals from convictions for consorting have been dismissed.