Rex v Mwita (Criminal Appeal 47/1935.) [1935] EACA 94 (1 January 1935)

## COURT OF APPEAL FOR EASTERN AFRICA.

## Before SIR JOSEPH SHERIDAN, P., WEBB, J., and GAMBLE, Ag. J. (all of Kenya).

REX, Respondent (Original Prosecutor)

## MACHAGE s/o MWITA, Appellant (Original Accused). Criminal Appeal 47/1935.

- Criminal Law-Murder-Homicide committed in effecting the arrest of escaping offender-Criminal Procedure Code (Tanganvika) section 20. - $Held$ (22-5-35).—That, as theft is not an offence punishable with death or with imprisonment for life, a person is not entitled to cause the death of a thief in attempting to effect his arrest even though the arrest could not otherwise be effected.

Distinction between English and local law discussed.

Decision in Rex v. Chata bin Kadishi (Cr. App. $131/32$ ) not followed.

Dennison for Crown.

Although the first blow struck by appellant may have been struck at the thief in the heat of the moment, the second blow cannot have been justifiable.

JUDGMENT.—The appellant was found guilty of murder and sentenced to death by Mr. Acting Justice Wilson. In his memorandum of appeal he says: "That I had a good reason for killing the man. He had stolen my sheep and was eating it. He ran away so I struck him with a spear as it is not good to keep a thief alive. I gave him another blow and killed him". The correctness of this statement is borne out by the witness Marwa bin Mwita who said: "I went there and found accused had already stabbed a man with a spear. I saw accused there. I found a person on the ground stabbed with a spear. I saw that he was speared in the back and the spear went through the body and came out of the stomach. He was still alive. I saw the accused spear the man a second time. The man was lying Accused speared him through the chest and it on his back. came out of his back. When he stabbed him a second time, we turned the body over and the spear got broken". The accused in his defence, says he killed the man because he was fond of his sheep and felt bitterness in his heart. The learned Judge found that the accused had stabbed the thief twice and that finding is supported both by the evidence and the memorandum of appeal. The case is clearly one of murder. We respectfully agree with the learned Judge when he says that:

"The accused was entitled to use such force as was necessary to arrest the thief, provided that such force did not result in the death of the thief". He had evidently in his mind the provisions of section 20 of the Criminal Procedure Code which provides:-"(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action; (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest; (3) Nothing in this section shall give a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life." With regard to sub-section (3) theft is not an offence punishable with death or with imprisonment for life and consequently the accused, even if his intention had been to effect the thief's arrest (and the evidence negatives such an intention) would not have been entitled to kill him. In this respect the provisions of the Criminal Procedure Code common to Tanganyika, Kenya and Uganda, follow the Indian law and differ from the English law. According to English law if a private person witnesses a felony and he kills the felon in order to arrest him and shows that he could not have effected the arrest by less drastic means the case is one of justifiable homicide. A review of the English law on the subject will be found in the Law Times of November 25th, 1933. We take this opportunity of referring to the distinction between English and local law for the reason that it would appear that in the unreported case of Rex v. Chata bin Kadishi (Criminal Appeal No. 131/1932, Original Cr. Case No. 73/1932. High Court Tanganyika) the attention of the Court of Appeal was not attracted to the provisions of section 20 of the Criminal Procedure Code. Similarly in the unreported case of $\text{Re}x$ v. Hutton (No. 111/1932, Supreme Court of Kenya) the attention of the learned Judge who found himself bound by the decision in Chata bin Kadishi's case was not attracted to the provisions of the section. In our opinion $R$ . $v$ . Chata bin Kadishi in so far as it purports to decide that a felon may be killed if his arrest cannot otherwise be effected, ought not to be followed. We have little doubt that the reasons actuating the accused in committing the offence, viz. the theft of a sheep from his flock and his finding the thief in the bush in the act of skinning it, will receive due consideration in the proper quarter. The appeal is dismissed.

<sup>\*</sup>Note.-In Rex v. Chata bin Kadishi (Cor. Barth P. and Johnson and Dickinson, JJ.), it was held that:-

<sup>&</sup>quot;Where a felony is committed and the felon fleeth from justice, or a dangerous wound is given, it is the duty of every man to use his best endeavours for preventing an escape; and if in the pursuit the party fleeing is killed, where he cannot be otherwise overtaken, this will be deemed justifiable homicide". Foster's Discourse "of Homicide" at p. 271.