Rex v Kibiro (Cr. App. 135/1931.) [1932] EACA 28 (1 January 1932)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR CHARLES GRIFFIN, C. J. (Uganda), THOMAS, J. and LUCIE-SMITH, J. (Kenva).

## **REX**

(Respondent) (Original Prosecutor)

## $\boldsymbol{v}$ .

KINGORI s/o KIBIRO

(Appellant) (Original Accused No. 1).

## Cr. App. 135/1931.

The Penal Code, section 14—Intoxication as ground of defence— Penal Code, section 189—Intention and malice aforethought -Effect of intoxication-Question of fact.

$Held(21-12-31)$ : That intoxication may or may not establish absence of mens rea.

Abbott for Crown.

Malik for Appellant.

Malik relied on the following grounds of appeal: (1) no malice aforethought established; (2) appellant was so drunk that he was incapable of forming intention to kill.

Abbott.—Onus of proof of absence of intention on accused section 14, Penal Code. No part of Crown's duty to prove malice aforethought—section 189 $(b)$ , Penal Code.

The judgment of the Court was delivered by Lucie-Smith, J., in the following terms:-

JUDGMENT.—This is an appeal against conviction and sentence of death passed by the learned Chief Justice of Kenya on 6th November, 1931.

The only real ground of appeal is contained in paragraphs 1 and 2 of the Memorandum of Appeal. The first submission of the appellant is that no "malice aforethought" has been proved, and we were referred to section 189 of the Penal Code. It appears to us that, taking into consideration the facts as found by the learned Chief Justice, malice aforethought under either sub-section $(a)$ or $(b)$ of the section has been amply proved unless we find that section 14 of the Code excuses the appellant.

It appears to us that what section 14 lays down is not that a person being intoxicated is evidence that he is incapable of forming an intention, but that if the Court is satisfied that by reason of intoxication a person is in fact incapable of forming an intention then he will be excused not by reason of such intoxication, but by reason of the absence of intention.

In this case it is perfectly obvious that the appellant though intoxicated was quite capable of forming, and in fact did form, an intention, and carry out that intention-to wit to beat the deceased—over a period of some twelve hours.

The above are the only two real grounds of appeal, the others set out in the memorandum of appeal being practically in common form. $\left\{ -\right\}$

We are of opinion that the learned Chief Justice fully directed his mind to all the relevant matters in this case and that his findings are fully justified by the evidence.

This appeal must be dismissed and the conviction and sentence herein affirmed.