Rex v Cherono and Another (Consolidated Cr. Apps. 43 and 44/1933.) [1933] EACA 19 (1 January 1933)

# COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J. (Uganda), SIR JOSEPH SHERIDAN, C. J. (Tanganyika), and JOHNSON, Ag. C. J. (Zanzibar).

## $REX$ (Respondent)

#### 11.

## CHEBIEGON ARAP CHERONO and KEPTILIT ARAP MUNYAKEN (Appellants).

### Consolidated Cr. Apps. 43 and 44/1933.

- Malice aforethought, section 189, Penal Code-Act arising from intention to commit felony—Definition of murder, section 186, Penal Code. - $Held$ (20-6-33).—That where three persons set out armed with lethal<br>weapons with the common intention of stealing goats, and one of<br>them in order to fulfill their purpose kills the custodian of the goats, all are liable to be convicted of murder.

Doran, Crown Counsel, for Crown.

The grounds of appeal were: -

- (1) That neither of the appellants actually committed the murder; and - (2) That the actual murder was committed by one Chepsang, who absconded and has not yet been brought to trial.

Crown not called upon.

JUDGMENT.-The appellants and a fellow tribesman named Chepsang set out to steal goats. They found a flock in charge of an elderly Kikuyu, named Ndono, who was accompanied by two Kikuvu lads. The appellants were each armed with a spear, a sime and a rungu. One of them threw a stone at Ndono, obviously. to intimidate him. Ndono, however, stood his ground and flung a piece of wood at his assailants. According to one of the boys, the appellants retaliated by flinging simes and rungus at Ndono, and one of them thrust a spear at him, inflicting a wound in the buttocks which ultimately proved fatal. After this stab, Ndono cut one of the appellants with a panga. When Ndono succumbed to his wound, the appellants and Chepsang carried out their. original intention and stole some of the goats. Chepsang down to this day has successfully evaded arrest.

The learned Chief Justice of Kenya, who tried this case, has expressed his opinion in these terms: "The obvious conclusion is that they murdered to acquire goats by theft." And further on in his judgment he says: "The accused are clearly shown to have had the felonious intention of stealing goats, and did in fact steal them. It is probably true that the deceased was wounded by the absconding Chepsang. That fact, however, does not affect the accused's guilt. There was a criminal intention to commit a felony, and in the course of committing it the deceased was killed while endeavouring to protect his property."

As the learned Chief Justice has found that neither of the appellants actually inflicted the fatal wound, it is necessary that the evidence in the case should demonstrate beyond reasonable doubt that the three adventurers set out either with the actually formed intention to murder or with the intention of committing a felony in the prosecution of which it was probable that the victim of that act would suffer violence from one of the weapons carried. It would appear from the evidence that the appellants and their confederate did not open the attack by using their dangerous weapons as they might have done had they intended to murder. It is a fair inference that they hoped, if they did not expect, that three men armed with dangerous weapons would intimidate a fourth man, and thus save them the trouble of inflicting violence upon him. Section 189 of the Penal Code lays it down that malice aforethought is established when death is caused when an intent to commit a felony is evidenced, and we take this to mean for the purpose of this case on the strength of English decisions, and notably in the case of the Director of Public Prosecutions v. Beard (1920), A. C. p. 479, when the felony involves the employment of violence against the person killed. In this case the conduct of the appellants subsequent to the stone-throwing is certainly indicative of a common intention to use violence with their weapons for the purpose of effecting the theft, and, what is more, violence to the extreme if necessary, or at any rate up to the point of the infliction of dangerous wounds, which is the probable consequence of the use of such weapons as they were carrying against the person of a man standing his ground. Chepsang appears to us to have committed murder and the appellants are equally guilty under section 22 of the Penal Code.

We dismiss the appeals.