Wakilii

Rex v Mburugu (Criminal Appeal No. 506 of 1947)

East African Court of Appeal · [1947] EACA 61 · 1947 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from Magistrate's Court conviction for assault
Decision
Conviction for assault upheld; appellant remained in prison under bond to keep the peace

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

To constitute an assault there must be circumstances denoting at the time an intention, coupled with a present ability, of using actual violence against the person threatened. Where the appellant raised a stick, shook it at the Chief and said 'Go back, go back', and the Magistrate found the appellant would have struck the Chief but for intervention or the Chief's departure, the conviction for technical assault was not wrong in law. Appeal dismissed.

Outcome

Conviction for assault upheld; appellant remained in prison under bond to keep the peace

Facts

On 12 August 1947, Chief M'Thurachu held a baraza at Rengai to call people to report for census tickets. The meeting became stormy and the appellant, an educational and religious worker, took a leading part in opposing the Chief. When the Chief decided to leave and walked towards his mule, the appellant raised a stick he was carrying, shook it at the Chief and said 'Go back, go back'. The Magistrate accepted the Chief's evidence that he believed the appellant would have struck him if he had not gone away and if older men had not intervened. The Chief departed without receiving any actual blow. The appellant was convicted of assault contrary to section 244 of the Penal Code and sentenced to imprisonment.

Issues

  1. Whether raising a stick, shaking it at the complainant and saying 'Go back, go back' constitutes an assault contrary to section 244 of the Penal Code.
  2. Whether the sentence imposed was excessive.

Orders

  • Appeal dismissed.

Rules and key headnotes

Criminal Law — Assault — Definition and Elements
To constitute an assault there must be circumstances denoting at the time an intention, coupled with a present ability, of using actual violence against the person threatened.
Criminal Law — Assault — Technical Assault Without Battery
Where a person raises a stick and shakes it at another with threatening words, and the evidence supports a finding that the person had an intention to assault and would have done so but for intervention or the departure of the threatened person, a conviction for technical assault is not wrong in law.
Criminal Law — Assault — Distinction from Mere Threatening Gestures
An exasperated motor driver who shakes his fist at a driver of a passing vehicle does not commit an assault, as there must be present ability to use actual violence at the time of the threatening gesture.

Legislation cited (3)

  • Penal Code s.244
  • Penal Code s.65(1)
  • Penal Code s.33

Cases cited (1)

  • Stephens v Myers (1830) 4 C & P 350

Full judgment

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

Rex v Mburugu (Criminal Appeal No. 506 of 1947) [1947] EACA 61 (1 January 1947)
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.