Wakilii

Rex v Shimanyolay and Another (Cr. Apps. Nos. 70 and 71 of 1938)

East African Court of Appeal · [1938] EACA 135 · 1938 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from convictions for murder by H.M. Supreme Court of Kenya
Decision
Second appellant acquitted; first appellant's conviction for murder upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the second appellant's appeal and set aside his conviction on the ground that the trial judge improperly relied on depositions of Crown witnesses whose trial evidence contradicted those depositions. The Court dismissed the first appellant's appeal, holding that he was guilty of murder either as the person who directly caused death by gunshot or, if death resulted from panga blows struck by another, under the doctrine of common intention pursuant to section 22 of the Penal Code. The Court found that when the first appellant shot the forest guard after being caught poaching, and the second person then struck the injured guard with a panga, a common intention to cause death or grievous harm was formed and the first appellant was responsible for the resulting death.

Outcome

Second appellant acquitted; first appellant's conviction for murder upheld

Facts

The appellants were convicted of murdering a forest guard. Only parts of the deceased's body were recovered days after death. Medical evidence was inconclusive as to whether death was caused by gunshot or otherwise. The first appellant confessed to a magistrate that he killed a buck in the forest and when caught by the forest guard, fired his gun at him causing him to collapse. He stated that the second appellant then took the guard's panga and struck him twice on the neck, after which he died. They hid the body in the bushes. The second appellant's conviction rested on the first appellant's confession and depositions of two Crown witnesses whose trial evidence contradicted their depositions. The trial judge treated these witnesses as hostile and allowed cross-examination, but relied on their depositions as corroboration.

Issues

  1. Whether the conviction of the second appellant should stand where it rested on inadmissible evidence in the form of depositions contradicted by trial testimony.
  2. Whether the first appellant was guilty of murder where the cause of death was uncertain as between a gunshot wound and panga blows.
  3. Whether the doctrine of common intention applied to render the first appellant guilty of murder even if the actual cause of death was panga blows struck by another person.

Orders

  • Appeal of Legidio s/o Lasala (second appellant) allowed.
  • Conviction of Legidio s/o Lasala set aside.
  • Legidio s/o Lasala acquitted.
  • Appeal of Paulo s/o Shimanyolay (first appellant) dismissed.
  • Conviction of Paulo s/o Shimanyolay for murder upheld.

Rules and key headnotes

Evidence — Depositions — Use at trial — Contradiction by trial testimony
Where Crown witnesses give evidence at trial that contradicts their depositions, the depositions are not evidence and should be excluded from consideration by the trial court.
Criminal Law — Murder — Common intention — Section 22 Penal Code
Where two persons are jointly engaged in an unlawful activity and one shoots a person in authority to avoid arrest, and the other immediately strikes the injured person with a weapon, a common intention to cause death or grievous harm may be inferred from their actions and surrounding circumstances, rendering both guilty of murder regardless of which act actually caused death.
Criminal Law — Common intention — Formation and inference
A common intention to prosecute an unlawful purpose may be formed at any time prior to the commission of an offence and may be inferred from all the surrounding circumstances, including the actions of the parties and the context in which those actions occurred.
Criminal Law — Murder — Cause of death — Uncertainty
Where an accused person shoots a victim causing serious injury and another person then strikes the victim with a weapon, the accused is guilty of murder under the doctrine of common intention even if it cannot be established with certainty whether death resulted from the gunshot wound or the subsequent blows.

Legislation cited (1)

  • Penal Code (Kenya) s.22

Cases cited (1)

  • Rex v Mohamed bin Ali (Criminal Appeals Nos. 132 and 133 of 1935)

Full judgment

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

Rex v Shimanyolay and Another (Cr. Apps. Nos. 70 and 71 of 1938) [1938] EACA 135 (1 January 1938)
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.