Rex v Lameloji (Criminal Appeal 179/1934.) [1935] EACA 75 (1 January 1935)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before Sir JOSEPH SHERIDAN, J. (C. J. Kenya), ABRAHAMS, C. J. (Tanganyika) and Law, C. J. (Zanzibar).

REX. Respondent (Original Prosecutor)

## KERUGE OLE LAMELOJI, Appellant (Original Accused). Criminal Appeal 179/1934.

- Penal Code (Kenya), sections 185, 186, 189 $(a)$ , $(b)$ and $(c)$ Murder and Manslaughter-Malice aforethought-Intent to do grievous harm—Intent to commit a felony. - Held (15-2-35).-That where the accused, in the course of committing a theft, threw a heavy stone at the deceased which fractured his skull and caused his death, his offence amounted to murder because his intention must be presumed to have been to do grievous harm (sec. 189 (a) (b), and also because the act was done in the course or in furtherance of a felony involving violence. (Kimno Arap Kipturji v. Rex (1934 1 E. A. L. R. 188) followed.)

Appellant absent and unrepresented.

Wallace for Crown.

JUDGMENT.—The appellant and a companion who was acquitted, set out on a stock-thieving expedition. The evidence establishes that the appellant threw two stones "at the people in the boma" to quote from his statement made before the Magistrate, which was produced in evidence before the Supreme Court. One of the stones struck one of the occupants of the boma and killed him and the learned Judge found and in our opinion found correctly that the act amounted to murder as the appellant's intention must be presumed to have been the causing of grievous harm. But we would go further and say that inasmuch as the unlawful act of throwing the stone which resulted in death was done in the course or in the furtherance of robbery, a felony involving violence, teh case is one of murder for that reason alone (vide Rex v. Betts and Ridley (22 Cr. App. Rep. 148) and Rex v. Kimno arap Kipturji (1934) $1$ E. A. L. R. 188).

The appeal is dismissed.