Mwakabuku & Anor. Crim. App. 166-D-71; 8/2/72; Duffus P; Law, Mustafa JJ. A.

 

Mwakabuku & Anor. Crim. App. 166-D-71; 8/2/72; Duffus P; Law, Mustafa JJ. A.

The appellants were brother and step brother to the deceased. On 30^th July, 1970, the appellants quarreled with the deceased and a fight ensued. The second appellant hit the deceased on his head with a club or a stone …….    But this was sufficient to fracture the skull and the deceased died the next day. On the evidence available, the learned Chief Justice held that the appellants had acted jointly with a common intention in terms of section 23 of the Penal Code. The learned Chief Justice accepted that the first appellant beat the deceased with his hands and the second appellant admitted having thrown a stone in anger towards the deceased. In so far as the first appellant was concerned, the issue was whether or not he acted with the second appellant jointly with a common intention as set out in section 23 of the Penal Code. As for the second appellant the issue was whether or not the prosecution had established malice afore thought

            Held: (1) “With respect, we cannot find sufficient evidence to show that the accused acted with a common intention in accordance with section 23 of the Penal Code. What does appear much more likely is that these three brothers quarreled and abused each other; the deceased on one side and the two appellants on the other; but that both appellants acted separately in hitting he deceased so that the second appellant’s use of the stone was an individual act for which he alone should be held responsible”. (2) “The second appellant undoubtedly caused the death of the deceased by an unlawful. Act. The question is whether the prosecution have established malice afore-thought. We are satisfied, for the reasons which were have stated, that it must be accepted that this injury was the result of only one blow given by the throwing of a stone. The stone must, according to the medical evidence, have been thrown with considerable force. We have not seen the stone but it must have been of a fairly substantial nature to cause the injury which was inflicted. This question was not really fully considered at the trial. Having regard to all the facts of this case and that only one blow was struck by the second appellant we feel that it has not been established that the second appellant when throwing the stone, intended to kill or cause grievous harm to the deceased and accordingly it would be unsafe to find that the prosecution had established malice aforethought with that degree of certainty required in a criminal case”. (3) Appeal of first appellant allowed but found guilty of common assault c/s 240 Penal Code and sentenced to 12 months imprisonment. Verdict of murder set aside and substituted verdict of manslaughter and second appellant sentenced to 7 years imprisonment.