Rex v Mohamedali (Criminal Appeal No. 100 of 1945) [1945] EACA 50 (1 January 1945)

### APPELLATE CRIMINAL

#### BEFORE LUCIE-SMITH, AG. C. J., AND HORNE, J.

# REX, Respondent

# $\mathbf{v}$ .

# MOHAMEDALI, Appellant Criminal Appeal No. 100 of 1945

Criminal law—Malicious injury to property—Kenya Penal Code Section 332/1 "Wilfully".

The appellant appealed against his conviction of wilfully and unlawfully damaging a motor car contrary to s. 332 (1) of the Penal Code. The appellant struck at a person in a motor car and in so doing damaged the car. The appeal turned on the meaning of the word "wilfully".

Held (20-6-45).—That "wifully" means "deliberately and intentionally not by accident or inadvertence" and that although the accused achieved a result that he did not intend, he nevertheless achieved it in circumstances which show that he was reckless as to that result and that to act recklessly is to act wilfully.

Appeal dismissed.

Trivedi for the Appellant.

### Todd, Crown Counsel, for the Crown.

JUDGMENT.—We do not consider that the authority quoted by the learned advocate for the appellant is applicable to this case. Our section 332 (1) Penal Code is different to sections 51 and 52 of the Malicious Damage Act, 1861. The two necessary ingredients to the offence under our Code are "wilfulness" and "unlawfulness"—"wilfully" has been described as meaning "deliberately and intentionally not by accident or inadvertence". Although the accused achieved a result that he did not intend, he achieved it in circumstances which show that he was reckless as to that result and to act recklessly is to act wilfully.

In this case both the ingredients have been proved. We dismiss the appeal.