Wakilii

Wamerio and Another v Reginam (Criminal Appeals Nos. 318 and 319 of 1955)

East African Court of Appeal · [1955] EACA 356 · 1955 Appeal Allowed — Conviction Quashed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from convictions for murder by the Supreme Court of Kenya sitting in Emergency Assize
Decision
Convictions for murder quashed; convictions for consorting upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

For section 23 of the Penal Code to apply, it must be shown that the accused shared with the actual perpetrators a common intention to pursue a specific unlawful purpose which led to the commission of the offence charged. A general common intention to carry out unlawful purposes, even if these might include or lead to murder, is insufficient. The two female appellants, who were members of a terrorist gang but took no part in the killing of two boys and were expressly excluded from the decision to kill them, could not be convicted of murder under section 23.

Outcome

Convictions for murder quashed; convictions for consorting upheld

Facts

The two appellants were members of an armed Mau Mau terrorist gang of approximately fourteen to sixteen persons, including four women. On 20 April 1955, while the gang was lying in a hideout in Kiambu District, two boys stumbled upon them while shooting birds with an airgun. The male members of the gang promptly surrounded and killed the boys. The four women, including the appellants, took no part in the capture or killing; they were told by the men to move away and did so. They did not witness the actual killing though they were near enough to hear the screams. After the killing, the gang split into groups. When captured, the first appellant was carrying the boys' airgun and the second appellant was carrying a simi. All twelve accused were convicted of murder at trial. The trial judge held that proof of membership in a terrorist gang and presence at the killing was sufficient under section 23 of the Penal Code to render all members guilty of murder.

Issues

  1. Whether section 23 of the Penal Code applies to render persons guilty of murder when they are members of a terrorist gang present at a killing but did not participate in the actual killing and were not party to a specific common intention to commit that murder.

Orders

  • Appeals allowed.
  • Appellants' convictions for murder quashed.
  • Appeals from convictions for consorting dismissed.

Rules and key headnotes

Common Intention — Section 23 Penal Code — Requirements for Application
For section 23 of the Penal Code to apply, it must be shown that an accused person shared with the actual perpetrators of the crime a specific unlawful purpose which led to the commission of the offence charged.
Common Intention — General versus Specific Unlawful Purpose
A general common intention to carry out unlawful purposes, even if these purposes might include or lead to murder, is insufficient to justify the application of section 23 of the Penal Code. There must be a common intention to pursue a specific unlawful purpose which led to the commission of the offence charged.
Common Intention — Membership in Terrorist Gang — Presence at Crime Scene
Mere membership in a terrorist gang and presence at the scene when an offence is committed, without participation in the actual commission of the offence and without sharing a specific common intention to commit that offence, does not render a person guilty of the offence under section 23 of the Penal Code.
Common Intention — Formation and Development
Common intention generally implies a pre-arranged plan, but does not rule out the possibility of a common intention developing in the course of events though it might not have been present to start with.

Legislation cited (3)

  • Penal Code s.23
  • Penal Code s.22
  • Emergency Regulations 1952 reg.8c(1)

Cases cited (1)

  • Wanjiru w/o Thairu v Reginam (Criminal Appeal No. 141 of 1955)

Full judgment

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

Wamerio and Another v Reginam (Criminal Appeals Nos. 318 and 319 of 1955) [1955] EACA 356 (1 January 1955)
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.