Wakilii

Rex v Kisogumwe and Another (Cr. Apps. Nos. 111 and 112 of 1939)

East African Court of Appeal · [1939] EACA 152 · 1939 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from murder convictions in the High Court of Uganda
Decision
Murder convictions quashed; appellants noted as guilty of housebreaking or burglary to be dealt with on such charges

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeals and quashed the murder convictions. The appellants had fled immediately when the alarm was raised, before their co-accused stabbed the deceased. The court held that there was reasonable doubt as to whether the appellants were still aiding and abetting at the crucial time. The principle in Rex v Betts and Ridley should not be extended where such doubt exists. The appellants were not armed with weapons intended for violence and had no intention of being parties to violence.

Outcome

Murder convictions quashed; appellants noted as guilty of housebreaking or burglary to be dealt with on such charges

Facts

The two appellants and a third man, Kaziri, attempted to break into the deceased's house. They dug a hole under the wall using a digging spear. When the deceased interrupted them, the appellants fled. Kaziri fell when the deceased threw a club at him, and Kaziri then stabbed the deceased with the digging spear, causing his death. The deceased, before dying, incorrectly identified the first appellant as his attacker, but Kaziri admitted he was the one who stabbed him. The appellants had run away before the stabbing occurred and only learned of it when Kaziri caught up with them. The trial judge convicted all three of murder under the doctrine of common intention.

Issues

  1. Whether the appellants, who fled before a co-accused stabbed the deceased, could be held liable for murder under the doctrine of common intention.
  2. Whether the appellants were still aiding and abetting at the time the fatal stabbing occurred.

Orders

  • Appeals allowed.
  • Convictions for murder quashed.

Rules and key headnotes

Murder — Common Intention — Aiding and Abetting — Withdrawal from Joint Enterprise
Where accused persons engaged in housebreaking flee immediately upon the alarm being raised, and a co-accused subsequently commits murder, the doctrine of common intention does not render the fleeing accused liable for murder if there is reasonable doubt as to whether they were still aiding and abetting at the time of the killing.
Murder — Common Intention — Distinction from Rex v Betts and Ridley
The principle in Rex v Betts and Ridley, which holds a party liable for murder committed in furtherance of a common design, should not be extended where the accused had already withdrawn from the scene before the fatal act and were not armed with weapons intended for violence.
Dying Declarations — Corroboration — Mistaken Identification
A dying declaration as to the identity of an attacker requires corroboration implicating the accused in some material particular, and a conviction cannot be sustained where the deceased was clearly mistaken in identifying the accused as the perpetrator.

Legislation cited (1)

  • Tanganyika Penal Code s.22

Cases cited (2)

  • Rex v Betts and Ridley (22 Cr. App. Rep. 148)
  • Rex v Chebiegon Arap Cherono (15 K.L.R. 100)

Full judgment

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

Rex v Kisogumwe and Another (Cr. Apps. Nos. 111 and 112 of 1939) [1939] EACA 152 (1 January 1939)
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.