Rex v Kisogumwe and Another (Cr. Apps. Nos. 111 and 112 of 1939) [1939] EACA 152 (1 January 1939)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir JOSEPH SHERIDAN, C. J. (Kenya); WHITLEY, C. J. (Uganda); and SIR CHARLES LAW, C. J. (Zanzibar)

#### REX, Respondent (Original Prosecutor)

## KIMBWI BIN MAINZA, NYOBEGWA BIN KISOGUMWE, Appellants (Original Accused Nos. 2 and 3)

## Cr. Apps. Nos. 111 and 112 of 1939

# (Appeal from decision of H. M. High Court of Uganda)

#### Criminal Law—Murder—Common intention—Conspiracy—Tanganyika Penal Code, section 22.

Held (16-8-39).—That the principle laid down in Rex v. Betts & Ridley goes so far that it ought not to be extended and that it should not be applied where there exists a reasonable doubt as to whether or not the accused was at the crucial time still aiding and abetting. Appeals allowed. Rex $v$ . Betts & Ridley (22 Cr. App. Rep. 148) distinguished.

The facts appear from the judgment.

Appellants absent unrepresented.

Phillips, Crown Counsel, for the Crown.

JUDGMENT (delivered by WHITLEY, C. J.).—This case illustrates in a striking manner the danger of accepting statements by deceased persons as to cause of death without corroboration implicating the accused in some material particular. The two appellants with a third man, Kaziri, who has not appealed, were admittedly engaged in an attempt to break into deceased's house when the deceased interrupted them and they tried to escape. The two appellants got away but Kaziri fell when deceased threw a club at him and he thereupon stabbed the decased with a digging spear causing his death. The deceased, before he died, gave the name of Kimbwi, the first appellant, as the man who had stabbed him but he was clearly mistaken as Kaziri admits that it was he who did it. The deceased's son also stated that it was Kimbwi but he must merely have assumed that from what his father told him.

Kaziri, on his own story, would appear to have been rightly convicted of murder and the learned trial Judge applying section 22 of the Penal Code held that the two appellants had a common intention with him to break in and use violence if necessary and were accordingly equally guilty with him.

Cases of this kind are always extremely difficult.

The leading case in England is Rex v. Betts and Ridley, 22 Cr. App. Rep., 148. The principles laid down in that case are embodied in section 22 of the Penal Code, the application of which was considered in case of Rex v. Chebiegon Arap Cherono, 15 K. L. R., 100. Section 22 is of course the law governing us on the question of

common intention. The present case is clearly distinguishable from the Kenya case in that the appellants were not armed and did not themselves commit any act of violence. They ran away the moment they realized that the inmates were alarmed and knew nothing of the stabbing until Kaziri caught them up and told them what had happened. It differs also from Betts and Ridley in that in that case Ridley was still on guard outside when Betts killed the deceased. Here the appellants had already run away. It seems to us that the principle laid down in Betts and Ridley goes so far that it ought not to be extended and that it should not be applied when there exists a reasonable doubt as to whether or not the accused were still aiding and abetting. Ridley was appreciably more closely linked up with the killing than the appellants are in the present case. On his own confession he was a party to an agreement that the deceased should be robbed and he anticipated that he would at least be pushed down. He expected that violence would be used. Again he was watching outside the house to prevent surprise, which made him a principal in the second degree. As Avory, J. observed in his judgment at page $154:$ —

"It is clear that Ridley was present in that sense, so as to make him a principal in the second degree to this crime of robbery with violence; and although it might be true to say that he had not agreed beforehand that Andrews should be struck on the head in a way likely to cause his death, it is clear upon the authorities that if he was a party to this felonious act of robbery with violence—some violence—and that the other person, the principal in the first degree, in the course of carrying out that common design does an act which causes the death, then the principal in the second degree is equally responsible in law".

Here the fact that the appellants ran away immediately the alarm was raised would suggest that they had no intention of being parties to the exercise of any violence. The case would have been different if the party had gone to the house armed with a gun or a hunting spear. We have seen the weapon with which deceased was stabbed. It is clearly, as the appellants have described it, a digging spear with a thick wooden handle suitable for digging with both hands and it is in evidence that they had actually dug a large hole under the wall of the house. It is thus clearly established that this implement was taken there for the purpose of digging and whilst appreciating. that the distinction may be a fine one we entertain considerable doubt as to whether the learned\_trial Judge was justified in holding that they "broke into a house armed". The appellants are entitled to the benefit of any reasonable doubt. On their own admissions they are guilty of housebreaking of burglary and will no doubt be duly dealt with on some such charge, but we do not think the convictions for murder can be sustained.

We allow the appeals and quash the convictions.