Kariwa v Rex (Criminal Appeal Nos. 211, 212, 213, 214 and 215 of 1949) [1949] EACA 49 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

KARIWA s/o LOGWANO and 4 others, Appellants (Original Accused)

REX. Respondent (Original Prosecutor)

Criminal Appeal Nos. 211, 212, 213, 214 and 215 of 1949

(Appeals from decision of H. M. Supreme Court of Kenya—Nageon de Lestang, J. -Confirmation Case: 794/49)

Murder-Trial of five appellants on six counts on one information-Whether allowable under section 135, Criminal Procedure Code-Common intent.

The five appellants were charged with six counts of murder in one information. Held (31-10-49).—(1) It is clear from section 135, Kenya Criminal Procedure Code, that where

several offences are founded upon the same facts or are part of a series of offences of the same or similar character, they may be charged in the same information as separate counts.

(2) The Court has a judicial discretion to order separate trials if it considers an accused may be embarrassed in his defence by reason of being charged with more than one offence.

(3) On the evidence a common intent and purpose of attacking and killing was formed by all the appellants even though the first and fourth appellants did not kill.

Appellants absent, unrepresented.

Southworth, Crown Council (Tanganyika) for Respondent.

JUDGMENT (delivered by $SIR$ G. GRAHAM PAUL, C. J.).—The five appellants charged were jointly with six counts of murder contained in the same information. Generally speaking in murder charges it is desirable that there should not be more than one murder charged in each information. It is clear, however, from the terms of section 135 of the Kenya Criminal Procedure Ordinance that where several offences charged are founded upon the same facts or form, or are a part of, a series of offences of the same or a similar character they may be charged in the same information, each offence appearing as a separate count. The offences charged in this case, as the evidence clearly shows, come within that description. By the same section the trial Court has a discretion, which must of course be exercised judicially, to order separate trials if the Court is of opinion that a person accused may be embarrassed in his defence by reason of being charged with more than one offence in the same information or that for any other reason it is desirable to direct that the person be tried separately for any one or more of the offences charged, the Court may order accordingly. The trial Court in this case decided to try all the counts against all the appellants jointly and we are unable to say that in the circumstances this was not a proper judicial exercise of that discretion. As regards the convictions on the six counts we have carefully considered the record of the evidence and are satisfied that all the appellants were rightly convicted of murder. There can be no doubt on the evidence (including the statements made to the Magistrate by the appellants which we think were rightly received in evidence) that a common intent and purpose of attacking and killing was formed by all the appellants who were members of this raiding party which travelled a long distance together with the deliberate joint intentions and purpose which was duly carried out. Even if the purpose was inspired by Erupe and Losiang who lost their lives in the raid that does not take away from the guilt of the appellants who were active members of this raiding party. That the first and fourth appellants did not themselves acually kill anyone does not save them. They were there, armed and active members of this party in the common purpose of killing.

We find no merit in any of these appeals, which have been consolidated, and all the appeals are dismissed.