Wakilii

Kiondu v Reginam (Criminal Appeal No. 87 of 1956)

East African Court of Appeal · [1956] EACA 87 · 1950 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for murder by Supreme Court of Kenya sitting in Emergency Assize
Decision
Conviction for murder upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the test for determining whether assistance given to a murderer after the crime makes the assister an accessory after the fact depends on motive, not intention. The words 'in order to' in s.397 of the Kenya Penal Code refer to purpose or motive. Where witnesses assisted in burying a body solely from fear of the murderers or fear of prosecution, without any wish to help the murderers escape punishment, they were not accessories after the fact and not accomplices. The trial judge's finding on motive was a question of fact on which the appellate court would not interfere.

Outcome

Conviction for murder upheld

Facts

The appellant was convicted of murder. Two prosecution witnesses, Kiuni (the deceased's father) and Githundururu, assisted in burying the body of the deceased in secrecy in a manner unlikely to be discovered. Neither reported the crime to authorities. The burial occurred in the presence of some of the murderers, who were members of Mau Mau and had killed the deceased for loyalist activities. Both witnesses testified they acted from fear of Mau Mau and denied any wish to assist the murderers. The trial judge found they were not assisting persons guilty of an offence to escape punishment and therefore were not accessories after the fact or accomplices. The appeal challenged whether the trial judge's direction on corroboration was correct.

Issues

  1. Whether witnesses who assisted in burying the body of a murdered person in secrecy, acting from fear of the murderers, were accessories after the fact and therefore accomplices whose evidence required corroboration.
  2. Whether the test for determining accessory after the fact status under Kenya Penal Code s.397 turns on intention or motive.

Orders

  • Appeal dismissed.

Rules and key headnotes

Accessory After the Fact — Test for Determining Status — Motive versus Intention
The question whether assistance given to a murderer after the crime makes the assister an accessory after the fact depends on the motive with which the assistance is given, not on intention.
Accessory After the Fact — Interpretation of 'In Order To' — Kenya Penal Code s.397
The words 'in order to enable him to escape punishment' in s.397 of the Kenya Penal Code refer to purpose or motive rather than technical intention, and are more directly apt to express motive than intention.
Accessory After the Fact — Assistance Given from Fear — Not Accessory
Where witnesses assist in concealing evidence of a crime solely from fear of the perpetrators or fear of prosecution themselves, without any wish to help the perpetrators escape punishment, they are not accessories after the fact and not accomplices.
Accomplice Evidence — Corroboration — Who is an Accomplice
The motive with which assistance is given to a criminal after the commission of a crime is a question of fact for the trial judge's determination, and an appellate court will hesitate to differ from the trial judge's finding on this question.

Legislation cited (1)

  • Kenya Penal Code s.397

Cases cited (11)

  • R v Lee (1834) 6 C & P 536
  • R v Chapple (1840) 9 C & P 355
  • R v Butterfield (1843) 1 Cox CC 39
  • R v Hansill (1849) 3 Cox CC 597
  • R v Levy (1912) 1 KB 158
  • R v Jones (1949) 1 KB 194
  • Nkau Majara v R (1954) AC 235
  • Davies v Director of Public Prosecutions (1954) AC 378
  • R v Saidi Nsubuga (8 EACA 81)
  • R v Dabholkar (11 EACA 102)
  • R v Paskazia (21 EACA 359)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kiondu v Reginam (Criminal Appeal No. 87 of 1956) [1950] EACA 526 (1 January 1950)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.