Ondimu and Another v Rex (Criminal Appeals Nos. 197 and 198 of 1951) [1952] EACA 239 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and SIR HECTOR HEARNE, C. J. (Kenya)

## (1) ONDIMU s/o ONDIMU and (2) GESIMBA s/o ONDIMU (Appellants)

## v

## REX, Respondent

Criminal Appeals Nos. 197 and 198 of 1951

(Appeal from decision of H. M. Supreme Court of Kenya—Campbell, Ag. J.)

Murder-Verbal incitement-Section 22 Kenya Penal Code.

The second appellant was one of two convicted of murder by the Supreme Court of Kenya. The evidence against the second appellant was that he verbally instigated the first appellant to stab the deceased, by saying "Do not whip him, stab him" whereupon the first appellant stabbed the deceased.

Held (22-1-52).—The verbal instigation was within section 22 of the Kenya Penal Code and the second appellant was rightly convicted as a principal offender. Before convicting on verbal incitement alone the trial Judge must be abundantly satisfied that the words used can bear only one implication.

Appeals dismissed.

Appellants present, unrepresented.

Few, Crown Counsel, for Crown.

JUDGMENT.-The Court resumed the hearing of these consolidated appeals, after receiving a communication from Mr. Malik pursuant to our order of 7th November. As the appellants have already been informed, their appeals must be dismissed.

We are satisfied after reading Mr. A. Q. Malik's letter of 12th November, 1951, and hearing extracts from Crown Counsel's notes taken at the time of the trial that there is no substance in the first appellant's contention that he wished to call his mother as a witness for the defence and was prevented from doing so. Furthermore we have been assured by the Crown that had the mother, in a statement to the Police, given a version of the affair materially different to that given by the other prosecution witnesses, she would either have been called or her statement made available to the defence.

The second point taken by the first appellant in his memorandum of appeal is that the learned Judge did not attach sufficient weight to the fact that he was stabbed as borne out by the prosecution witness Mongina. The evidence of this witness however does not assist the appellant for she deposed to having seen this appellant stab himself as he was running away after his assault on the deceased. So far as this appellant is concerned the learned Judge was bound to reject the suggestion that the death of the deceased was caused accidentally, and the only pertinent issue is the appellant's possibly drunken condition. Here again we agree with the learned Judge that the evidence fell far short in establishing that he was so drunk as not to understand what he was doing.

As regards the second appellant we also cannot say that, on the evidence which the Judge accepted, that he was legally wrong in convicting him, too, of the murder, for on that evidence he verbally instigated the first appellant to stab the deceased. Under section 22 of the Kenya Penal Code one who counsels another to commit an offence may himself be convicted as a principal offender. We add this caveat, however, that we think a trial Judge should, before convicting on verbal incitement alone, be abundantly satisfied that the words used can bear only one implication. In this case the prosecution witnesses impressed the trial Judge as truthful persons and if their evidence is true there can be no doubt that the second appellant encouraged his brother to use a lethal weapon.

We have received a copy of a petition addressed to His Excellency the Governor from the mother of the two appellants. We make no comment on this except to observe that it states that the second appellant was not present at the time of the crime which is what he himself has always maintained. We have no doubt that this petition will be carefully considered in another place along with any other factors which may have come to light since the trial. All we as an appellate Court can say is that there was evidence before the learned Judge which, if believed, rendered the conviction of both appellants inevitable.

Their appeals are dismissed.