Rex v Otieno and Others (Criminal Appeals Nos. 250, 251 and 252 of 1946) [1947] EACA 22 (1 January 1947)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J.

(Tanganyika) and THACKER, J. (Kenya)

REX, Respondent (Original Prosecutor)

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(1) OTIENO s/o OKECH, (2) MDIGO s/o OUNGO, (3) AYOO s/o OUMA.

Appellants (Original Accused Nos. 1, 2 and 3)

Criminal Appeals Nos. 250, 251 and 252 of 1946

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

Criminal law—Murder—Common design—S. 23 P. C. Kenya.

Having stolen a large variety of articles including a loaded revolver from a dwelling on the mainland, O. M. and A. were returning to Mombasa Island with their loot in the early hours of the morning when they were intercepted by two police constables in ambush at Nyali bridge. At first they refused to stop, but eventually did so on being pursued by the police constables. O. M. and A. then held a short conversation together and immediately after A. produced a revolver and fired a shot at one police constable which missed him and a second at the other police constable which killed him. O. M. and A. were convicted of murder and appealed.

Held (13-2-47).-That the common intent of all three appellants to kill the policeman was rightly inferred by the learned trial Judge from their association, their discussion and the act of one of them immediately after the discussion in firing a shot at each policeman.

Appeals dismissed.

Case referred to: Rex v. Betts & Ridley (1930) 22 Cr. App. R. 148.

Appellants present, unrepresented.

Todd, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The three accused, Otieno, Mdigo and Ayoo were convicted by the Supreme Court sitting at Mombasa of the murder of a police constable and sentenced to death. They have appealed to this Court from that decision and their appeals have been consolidated. It is convenient to consider the case of Ayoo first, for he it was who fatally shot the constable.

The only possible defence in his case is that at the critical time he was by reason of his intoxicated state incapable of forming an intent to kill or commit grievous harm and did not form such intent. That defence was duly considered by the learned Judge and rejected and there is no reason why we should interfere. We dismiss Ayoo's appeal.

The case against Otieno and Mdigo is that although they fired no shot they were so associated with the act of Ayoo as to be equally liable in law for the murder by reason of the doctrine of common intent. The relevant section of the Penal Code is: $-$

"When 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.

All three accused had been engaged in a thieving expedition some few hours before the murder and it was while returning from the scene of the theft by the Nyali bridge with their ill-gotten spoils that they encountered the deceased policeman and police constable Kashuru, who were on ambush duty at the other end of Nyali bridge. They were challenged by the policemen and after vainly endeavouring to shake them off and so be allowed to proceed with their bundles they held a discussion as to what they should do. Their common intent to kill the policeman was inferred by the learned Judge from their association, their discussion and the act of Ayoo immediately after the discussion in firing one shot at Kashuru which missed and another at Reuben with fatal results. The only important question

in the appeals of Otieno and Mdigo is whether that inference of fact drawn by the learned Judge was reasonably justified by the evidence.

It is of importance to note that when the three accused set out on their felonious enterprise they were not armed. In fact the revolver with which the policeman was shot was part of the stolen property and there was no question of using it on anyone until after the interception of the accused by the police on their return journey. The case is distinguishable from the case of *Betts and* Ridley (1930), 22 Cr. App. R. 148, where the decision related to homicide committed by striking on the head a person whom it was designed to rob. In the present case it would have been easier to infer a common intent had the accused set out on their felonious enterprise, one of them being armed with a revolver to the knowledge of the others and a person had been shot by one of the party in the course of the felony or in making away with the stolen property. But may it not be said that the facts of this case are not radically different from those in such a case? Here it has been proved that three men who had successfully carried out an extensive thieving raid by night and had got away safely with the property, including an effective and valuable revolver, and who had crossed the bridge at an unusual hour in order to avoid detection were held up by two policemen. The possession of the loaded revolver by one of the party was known to the others. They were confronted with what was exactly the situation they were anxious to avoid "at all costs". When challenged and asked to lay down their bundles for inspection they refused and the policemen persisting in their demand a hurried consultation was held and immediately afterwards two shots were fired at the policemen by the third member of the party. At no stage did the other two dissociate themselves from the third member and there is nothing to suggest that in their consultation they were attempting to dissuade the third man from violent action. The evidence points the other way—that those two were speaking forcibly and that the third man was silent. And the third man fired immediately the conversation ended and while the other two were present. The conversation was conducted in the appellants' own language, Jaluo, which was not understood by the policeman. This failure to dissociate on the part of Otieno and Mdigo in the circumstances seems presumptive that the firing of the revolver represented the common mind of all three to get away with their bundles to safety and also (and this is a major consideration) to ensure that they were not arrested for an offence which would have entailed the certainty of a long term of imprisonment. It would not be an exaggeration todescribe the appellants at the time they were stopped by the police as desperate men confronted with a desperate situation calling for a desperate remedy. We have given the most anxious consideration to the evidence and the written arguments submitted to us on behalf of the appellants and in the result find it impossible to hold that the learned Judge drew an unreasonable inference on the question of common intent. The anxiety with which the learned Judge considered the question of common intent is illustrated in such passages as at p. 31 "To Court. When we crossed the bridge we each were carrying the stolen property and we wanted to get the property home. I did get my property home and sold it. Had the policeman not been killed I couldn't have got home" (evidence of Otieno).

This means that Otieno is of opinion that the shooting of the constable was necessary for the common purpose which was to get safely away with their loot. There is nothing to suggest that he was not of that opinion at the time of the discussion as to what should be done with the policemen. Is there anything to suggest that Otieno's expressed view was not that of the other two?

There was clearly a fixed determination on the part of all to save themselves and their property from arrest and detention. One of the party, as we have said, to the knowledge of the others had the effective means of ensuring both and that means was employed, the learned Judge finding that this was the common intention of all three.

The appeals are dismissed.