Rex v Rukongo and Another (Criminal Appeals Nos. 87 and 88 of 1940) [1940] EACA 18 (1 January 1940)

# COURT OF APPEAL FOR EASTERN AFRICA

Before WHITLEY, C. J. (Uganda), WEBB, C. J., and WILSON, J. (Tanganyika)

#### REX, Respondent (Original Prosecutor)

## (1) RUKONGO BIN OLENDITO, (2) NAGEYUN BIN OLENDITO, Appellants (Original Accused)

## Criminal Appeals Nos. 87 and 88 of 1940

### (Appeal from decision of H. M. High Court of Tanganyika)

Criminal Law—Manslaughter—Malice aforethought not established—Tanganyika Penal Code, section 189—Death resulting from a beating with thin sticks.

Appellants appealed from convictions of the murder of their sister who died as a result of a beating administered by the appellants with sticks "about the thickness of ones little finger". The beating was very severe but might not have<br>caused death if the deceased had not had an unhealthy heart. The appellants believed themselves to be acting in accordance with native custom in chastising the deceased because she refused to return to her husband.

Held (16-7-40).—That the conviction ought to be reduced to one of manslaughter. Order accordingly.

Appellants absent, unrepresented.

Smith. Crown Counsel, for the Crown.

JUDGMENT (delivered by WEBB, C. J.).—There is no dispute about the facts; the only question is whether the accused, when they beat their sister with rods of ' about the thickness of one's little finger to such an extent that she died from shock and exhaustion, can be said to have known that what they did would probably cause harm endangering her life or such as would seriously injure her health. They are savages and undoubtedly intended only to punish her, and indeed believed themselves to be acting in accordance with their tribal custom. Taking into account the mentality and stage of civilization of the appellants we are not prepared to impute to them in the circumstances the degree of knowledge required by section 189 of the Penal Code to constitute "malice aforethought". Accordingly we quash the convictions and sentences for murder, find the appellants guilty of manslaughter and sentence each of them to ten years imprisonment with hard labour.