Wakilii

Kipturji v Rex (Cr.A. 138-1934.)

East African Court of Appeal · [1937] EACA 188 · 1937 Conviction Quashed (Murder to Manslaughter) AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from murder conviction
Decision
Appellant convicted of manslaughter and sentenced to five years imprisonment with hard labour

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that there is no authority in English decisions for the proposition that any felonious act done as an end in itself without intention to cause death or grievous harm necessarily imports malice aforethought. Section 189(c) of the Penal Code applies to unlawful acts done in the course of or furtherance of a felony, not to felonies that are ends in themselves. A man is liable only for the natural and probable consequences of his act. The conviction was altered from murder to manslaughter.

Outcome

Appellant convicted of manslaughter and sentenced to five years imprisonment with hard labour

Facts

The appellant intruded in a private conversation between the deceased and two other men. He was twice told to go away. On the second occasion, he picked up the deceased's spear and with an underhand movement stabbed him in the thigh. The deceased bled to death rapidly, evidently because the femoral artery was pierced. The trial judge found that the appellant did not intend to kill the deceased or inflict grievous harm, but did intend to commit the felony of unlawful wounding under section 217 of the Penal Code. On that basis, the trial judge found malice aforethought established under section 189(c) and convicted the appellant of murder.

Issues

  1. Whether the trial judge properly interpreted section 189(c) of the Penal Code in finding that an intent to commit the felony of unlawful wounding established malice aforethought for murder.
  2. Whether any felonious act done as an end in itself and without any intention to cause death or grievous harm imports of necessity malice aforethought.

Orders

  • Conviction altered from murder to manslaughter.
  • Sentence of five years imprisonment with hard labour imposed.

Rules and key headnotes

Murder and Manslaughter — Malice Aforethought — Intent to Commit a Felony
There is no authority in English decisions for holding that any felonious act done as an end in itself and without any intention to cause death or grievous harm imports of necessity malice aforethought.
Murder and Manslaughter — Constructive Murder — Natural and Probable Consequences
The question nowadays is whether the felony was likely or unlikely to cause death, and a man is liable only for the natural and probable consequences of his tortious act. What is a natural and probable result depends on the nature of the act and not upon its being felonious, and is what would have appeared to the prisoner its natural and probable result.
Penal Code — Section 189(c) — Intent to Commit a Felony
Section 189(c) of the Penal Code, which deems malice aforethought established by evidence proving an intent to commit a felony, applies to unlawful acts done in the course of or furtherance of a felony, not to felonies that are ends in themselves without homicidal intent.
Murder and Manslaughter — Constructive Murder — Doctrine Narrowed
The tendency of modern decisions is to narrow rather than extend the doctrine of constructive murder. The old rule propounded by Foster that whenever death is caused, even unintentionally, by a felony, the crime is murder, cannot be taken as correct at the present day in its full extent.

Legislation cited (6)

  • Penal Code (Kenya) s.185
  • Penal Code (Kenya) s.186
  • Penal Code (Kenya) s.187
  • Penal Code (Kenya) s.189(c)
  • Penal Code (Kenya) s.217
  • Penal Code s.4

Cases cited (4)

  • Regina v Horsey (1862) 3 F. & F. 287
  • Rex v Beard (1920) 14 Cr. App. Rep. 158
  • Rex v Betts and Ridley (1930) 22 Cr. App. Rep. 148
  • Rex v Greenwood (1857) 7 Cox 404

Full judgment

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

Kipturji v Rex (Cr.A. 138-1934.) [1937] EACA 188 (1 January 1937)
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.