Rex v Malik and Majid (Criminal Appeals Nos. 28 and 29 of 1948 (Consolidated)) [1948] EACA 24 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

Before EDWARDS, C. J. (Uganda), PEARSON, J. (Uganda), and AINLEY, J. (Uganda)

REX, Respondent (Original Prosecutor)

## (1) QURBAN MALIK, (2) ABDUL MAJID, Appellants (Original Accused) Criminal Appeals Nos. 28 and 29 of 1948 (Consolidated)

(Appeals from decision of H. M. Supreme Court of Kenya)

Criminal Law—Manslaughter—Chain of causation—Criminal Responsibility— Sentence.

The facts appear sufficiently from the judgment below.

Held (7-5-48).—That although the first appellant did not take part in the assault which caused the injuries which finally resulted in the death of the deceased, and denied all knowledge of it, or that he instigated it, there was sufficient evidence to link him with it so as to justify his conviction of manslaughter.

Appeals dismissed.

## Colonel Baerlein for the Appellants. Hobson, Solicitor-General (Kenya) for the Crown.

JUDGEMENT (delivered by EDWARDS, C. J.).—The appellants were both convicted by the Supreme Court of Kenya of manslaughter, the first appellant being sentenced to seven and the second appellant to fourteen years of<br>imprisonment with hard labour. The first appellant was a contractor for the Aberdare District Council. The operations involved the quarrying of murram and the conveying of it to lorries and its subsequent disposal in heaps along the road. Among his employees was one Butumayo, the deceased.

The points at issue at the trial and in this appeal are whether the two appellants were criminally responsible for a series of beatings inflicted on Butumayo and whether these beatings were the cause of death. There was ample evidence that the second appellant took a major part in a series of beatings which caused considerable injury to the body of deceased and it was not seriously argued before us that this was not so. As regards the first appellant it was argued that he was not responsible for any beating which caused serious injury; but on behalf of both appellants, the first main ground of appeal was that there was a reasonable possibility that the injuries caused by the beatings for which the appellants might be responsible were not the cause of death but that an injury inflicted by one Waveru, for whose acts neither of the appellants was responsible, was the true cause of the septicæmia which, admittedly, resulted in the death of Butumayo. The learned trial Judge in his judgment said: "I would add here that I do not necessarily accept the evidence given by accused No. 2 that the blow which caused the final collapse of the deceased was one given by a man named Waweru and not by any of the accused but, even if that evidence be true, it could not account for the general and widespread bruising of the tissues of the buttocks described by Dr. Lowi and clearly apparent in the Photo. Ex. 2". And again on the issue as to whether the beatings caused the death of Butumayo I am left in no doubt at all by the medical evidence. Dr. Lowi stated in unequivocal terms that, in his opinion, the cause of death was septicamia which arose mainly from the gangrene which resulted from the sores on the buttocks and the condition of the underlying tissues. He stated further

that the sores on the buttocks developed as a result of lying on hard ground with the underlying tissues in a bruised condition and that if the deceased had not received blows on the buttocks he would not have developed sores merely through lying on hard ground. The chain of causation, therefore, between the cause of the septic condition which led to general septicæmia and the beatings is clearly established".

It is unnecessary for us to quote from the medical evidence; but we are satisfied that the evidence given by Dr. Lowi amply supports that finding. We are fully satisfied that the cause of death was the effect of repeated blows and not an isolated assault by Waweru. As it was clearly established that the second appellant was responsible for and personally took part in one very savage beating and in a series of beatings of possibly less gravity his conviction of the crime of manslaughter was inevitable.

With regard to the first appellant a ground of appeal of some substance was forcibly argued by Col. Baerlein. It was argued that there was no evidence which should have been accepted linking the first appellant with those beatings which in fact caused death. It is not seriously disputed that the first appellant took part in or was responsible for a beating on the deceased in the kitchen of his (the first appellant's) house: but the learned Chief Justice of Kenya found that this beating though a sharp one, could have caused no serious physical injury and it is apparent that the beating which took place at the camp immediately subsequent to the assault at the kitchen was the beating which resulted in a large part of the serious injuries to the buttocks and other parts of deceased's body. It is further undisputed that during the four working days which followed this beating other beatings of a severe although less serious nature were inflicted by the second appellant and other employees of the first appellant. We now proceed to consider whether the first appellant is linked with the beating at the camp. It is argued on behalf of the first appellant that he neither knew of nor instigated the beating at the camp and that he did not know of nor take part in any serious assault subsequent to the camp incident. It was argued that the only evidence connecting him with the camp incident was that of one Nderito. His evidence, it was argued, should not have been accepted by any reasonable person. That part of Nderito's evidence which is criticized is a statement by him in the trial Court in answer to a question by the advocate for the 3rd and 4th accused, who at this stage, was dealing with the kitchen incident: "Did you hear him (the first appellant) say anything to these three Africans (the three Africans being the deceased and his two companions in escaping) to which Nderito repled "Yes: I heard him say: 'You will be more beaten when you get to the camp'". It was pointed out and correctly pointed out that neither in his deposition in the Magistrate's Court nor in examination-inchief in the Court of trial did he mention this statement by the first appellant and further that before the Magistrate he gave evidence which could certainly be construed in a contrary sense, that is to say, having referred to the events in the ktichen, he described the deceased and his companions being driven away by the second accused and then said: "I heard nothing mentioned about the three men". The learned trial Judge clearly appreciated the need for extreme caution and in his summing up to the assessors advanced a number of excellent reasonswhy the evidence might be disbelieved; but, in the result, he came to the conclusion that the evidence given by Nderito as to this statement was true. Had the learned Chief Justice of Kenya failed to direct his mind to the necessity for caution we, as an Appellate Court, might have felt compelled to interfere with so important a finding; but we think that the circumstances under which this piece of evidence was elicited can be regarded as some guarantee of its truth and we find it impossible to say that it was incumbent on the trial Court to regard it as untrue. As the learned trial Judge pointed out, the acceptance of this evidence immeasurably strengthened the prosecution case against the first appellant—and fully justifies the conclusion that the first appellant must bear responsibility for the undoubtedly serious beating inflicted at the camp, which beating, in its turn, must have made a considerable contribution to the injuries which led to the death. Not only does this evidence link the appellant with the beating at the camp but it goes far to show that the first and second appellants had formed a plan to give exemplary treatment to the deceased and gives support to the trial Court's finding that the first appellant was aware of and acquiesced in the subsequent beatings at the quarry. But, in any event, the learned Chief Justice of Kenya has not relied solely on the evidence of Nderito as the basis for convicting the first appellant. He drew inferences from the subsequent conduct of the first appellant which he considered pointed to the first appellant's privity in the beating at the camp. The learned Chief Justice of Kenya does not state what subsequent conduct of the first appellant he, in fact, relied on; but it is plain from a perusal of the record of evidence that no one could escape the conclusion that the first appellant knew of and even encouraged exemplary beatings at the quarry. This fact can certainly be relied on as an indication that the first appellant was one of those responsible for bringing about the beating at the camp. There is further evidence of the first appellant's conduct subsequent to the collapse of the deceased which indicates that the first appellant was a party to the callous ill-treatment of the deceased and that he eventually became alarmed at and sought to conceal the results of the ill-treatment, attempts which he would scarcely have made had he not realized his own culpability. We think that we have sufficiently dealt with the substantial grounds of appeal. It remains, however, to deal briefly with several other grounds of appeals.

As to grounds (a) and (b) of para. 2 of the Memo. of Appeal relating to certain alleged misdirections by the learned Chief Justice, we have had difficulty in appreciating the force of the complaints made in those sub-paragraphs. If there has indeed been any misdirection of the kind alleged (of which we are far from satisfied) they were of so trivial a nature as not to vitiate the convictions. As regards ground (c) "The learned trial Judge erred in taking into consideration the defence contention that Waweru administered the blow which caused the deceased to cease work, the fact that this had not happened to Wanyore," we think that, in deciding whether the beatings caused the collapse of the deceased, an admittedly weakly man, it was neither unreasonable nor improper to consider the effect of very similar treatment to a stronger man, and we find no substance in this ground of appeal. For the foregoing reasons we are unable to hold that the learned trial Judge either misdirected himself or reached any wrong conclusions in fact or law in convicting both the appellants of manslaughter. We dismiss the appeals against conviction. Having regard to the fact that the death of Butumayo was directly due to a long continued and systematic course of cruelty for which both the appellants have been held criminally liable, it is impossible for us to say that the sentences passed, although severe, are in any way excessive.

The appeals are dismissed.