Rex v Kyeyune and Others (Criminal Appeals Nos. 134, 135, 136, 137 and 138 of 1941) [1941] EACA 84 (1 January 1941)

## COURT OF APPEAL FOR EASTERN AFRICA

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

REX, Respondent

## ν.

## (1) MIKAERI KYEYUNE, (2) MISAIRI MUKASA, (3) BENWA KIBEBWE, (4) KALOLI KIZITO, (5) ASANASIYO MUKASA, Appellants

## Criminal Appeals Nos. 134, 135, 136, 137 and 138 of 1941

Appeal from decision of H. M. High Court of Uganda

Criminal Law-Murder-Death resulting from severe beating with sticks-Malice aforethought-Intent to cause grievous harm-Common intent-Uganda Penal Code, section 22.

Appellants and others set upon the deceased, whom they believed to be a thief or a person addicted to thieving, with the common intention of giving him an unmerciful beating and beat him with sticks so that he died soon afterwards. The trial Judge found that those concerned in the beating were actuated by a common intent to cause grievous harm.

Held (27-10-41).—That the appellants were each guilty of murder.

Appellants absent unrepresented.

Kingsley, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—We have carefully examined the evidence in this case and we are fully aware of the difficulty of such. cases where a number of people set upon an individual and with sticks and/or fists or whatever may be to hand beat him. The learned trial Judge who obviously had in mind that the conviction of all five accused depended on the applicability of section 22 of the Penal Code to the facts came to the conclusion-and the assessors agreed with him—that the five accused were guilty of murder. Section 22 provides: -

"Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

The evidence supports the view that a person was caught who was regarded whether rightly or wrongly as a thief and that a number of persons set upon him with the common intention of giving him an unmerciful beating which they did with the result that the victim died soon after. The medical evidence was that the body bore testimony to the beating having been such that the doctor had never seen a worse beating. It seems to us, and the learned Judge and assessors so found, that any person identified as having taken part in the beating must be regarded as linked by a common intention within the meaning of the section quoted making him responsible for the death and so responsible for the crime of murder. All five accused are shown to have played some part in the terrible beating with its terrible consequences. It is but reasonable to hold that those who took part in the beating must be taken to have had the knowledge that grievous harm at least was a probable consequence. We cannot say in these circumstances that the findings of fact or law of the learned judge were wrong. As to whether there should be any discrimination made between the accused as to the respective degrees of responsibility or as to whether the capital sentences should be commuted that is a matter for consideration in another quarter. The appeals are dismissed.