Wakilii

Lekishon and Others v Reginam (Criminal Appeal No. 268 of 1956)

East African Court of Appeal · [1950] EACA 626 · 1950 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for murder by the Supreme Court of Kenya
Decision
All seven appellants' convictions for murder upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the appeal and upheld the murder convictions of all seven appellants. The first appellant was guilty of murder for throwing a sword that killed the deceased. The remaining six appellants were convicted on the basis of common intention under section 23 of the Penal Code, the court finding that they had formed a common intention to prosecute an unlawful purpose (an armed raid to recover a heifer by force), and that the murder was a probable consequence of that purpose. The court rejected defences based on provocation, self-defence, and Masai custom, finding that the appellants were the aggressors in an armed raid commenced without warning.

Outcome

All seven appellants' convictions for murder upheld

Facts

Seven Masai moran were convicted of murder. They had set out to obtain a heifer to present to their laibon in accordance with Masai custom. The owner, Kepapei, had originally handed over the heifer under coercion but warned he would take it back. When Kepapei's sons recovered the heifer, the appellants and five other moran raided Kepapei's boma just before sunrise on 27 May 1956, armed with swords and spears. During the raid, Kepapei's daughter was knocked unconscious, one son was struck on the ear, Kepapei was struck on the forehead with a sword, and another son, Chepkwany, was killed when the first appellant threw his sword at him, penetrating eight inches deep through his lung, heart, and liver. Upon learning of the death, the moran withdrew without the heifer and reported the incident to the headman.

Issues

  1. Whether the trial court should have given more weight to matters of native custom in relation to the defences of provocation or self-defence.
  2. Whether adverse inferences should be drawn from the appellants carrying arms, given that this was normal Masai custom.
  3. Whether the appellants other than the first were properly convicted of murder under section 23 of the Penal Code on the basis of common intention.
  4. Whether the murder of the deceased was a probable consequence of the prosecution of the unlawful purpose.
  5. Whether the conviction could be sustained under section 202(a) of the Penal Code on the basis of intention to cause grievous harm.

Orders

  • Appeals of all appellants dismissed.
  • Convictions for murder upheld.

Rules and key headnotes

Murder — Common Intention — Section 23 of Penal Code
Where multiple accused 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, all are deemed to have committed that offence if it was a probable consequence of the prosecution of such purpose.
Murder — Intention to Cause Grievous Harm — Section 202(a) of Penal Code
An intention to cause grievous harm sufficient to support a murder conviction under section 202(a) may be established even where it is only a conditional or contingent intention, provided the accused were at least present aiding and abetting the person actually causing death.
Self-Defence and Provocation — Burden on Prosecution
Where the trial court finds that the accused were the aggressors in an armed raid commenced without warning, and that the deceased and his family were not the aggressors, no defence of provocation or self-defence can succeed regardless of matters of native custom.
Inference from Carrying Arms — Intention
Where the evidence establishes that parties engaged in a particular activity do not normally carry a full armament, but the accused carried a complete set of lethal weapons including spears and arrows, an adverse inference may be drawn that they intended to use force beyond what would be necessary for a peaceful purpose.
Murder — Probable Consequence — Appellate Review
Where a trial judge makes findings that necessarily imply an affirmative answer to a required element of the offence but does not state it in terms, an appellate court may supply the omission if satisfied that the judge must have found it and that a negative answer would have been wholly unreasonable in light of the other findings.

Legislation cited (5)

  • Penal Code of Kenya s.22(c)
  • Penal Code of Kenya s.23
  • Penal Code of Kenya s.76
  • Penal Code of Kenya s.199
  • Penal Code of Kenya s.202(a)

Cases cited (1)

  • R v Wilson (8 T.R. 361)

Full judgment

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Lekishon and Others v Reginam (Criminal Appeal No. 268 of 1956) [1950] EACA 626 (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.