Rex v Gishodi (Criminal Appeal No. 197 of 1940) [1941] EACA 28 (1 January 1941)

# COURT OF APPEAL FOR EASTERN AFRICA

Before Sir NORMAN WHITLEY, C. J. (Uganda), Sir HENRY WEBB, C. J. (Tanganyika) and BARTLEY, J. (Kenya)

### REX, Respondent

#### $\nu$ .

# MWAGAMBO S/O GISHODI, Appellant

### Criminal Appeal No. 197 of 1940

#### Appeal from decision of H. M. Supreme Court of Kenya.

Criminal Law—Murder—Cause of death—Sepsis following wound—Whether wounds or unskilled treatment the cause of death.

Appellant appealed from a conviction of murder. He had inflicted two deep and serious wounds upon the deceased, who died as a result of sepsis from these wounds. The wounds had been stitched by a medical dresser. The medical evidence was to the effect that the wound should have been drained instead of being stitched, but even if it had been drained there would still have been a risk of sepsis setting in.

$Held$ (17-1-41).—That the death was properly held to have been caused by the wounds inflicted by the appellant.

Appeal dismissed.

Appellant in person.

#### Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—Two points are raised by this appeal. The appellant argues firstly that he acted in self defence. His own statement before the magistrate negatives this and the learned Chief Justice who tried the case rightly rejected it. The<sup>4</sup> second point taken by the appellant is that the death was caused not by the wound but the unskilled treatment which the deceased received at the hands of the dresser. The evidence seems to establish that the dresser did what was not unreasonable under the circumstances when stitching up the wound. It does not establish that the stitching caused the sepsis which caused death. The wounds were serious, affecting the lung. The mere fact that a skilled surgeon would have prescribed draining rather than stitching does not in our opinion affect the question of the appellant's liability. The learned Chief Justice carefully considered this point and we think he came to the proper conclusion.

The appeal is dismissed.