Joshua s/o Sonko v. Rep. Crim. App 88-D-71; E.A.C.A. 24/10/71; Duffus, P. Lutta and Mustafa JJ.A

 

Joshua s/o Sonko v. Rep. Crim. App 88-D-71; E.A.C.A. 24/10/71; Duffus, P. Lutta and Mustafa JJ.A

The appellant was convicted of murder, but as he was found to be under 18 years of age, he was sentenced to be detained at the President’s pleasure. He alleged that he and the deceased had gone fishing in a  canoe.  f At the river bank they met one W. while in the middle of the river they came across a hippo, and both the accused and the deceased became frightened and fell into the river. The accused managed to swim ashore. The accused went and told W of the incident. He alleged that W thereupon decided that the deceased should be killed and his property taken. The accused led W to where the deceased was, and W was alleged to have told the accused that if he, the accused,

 Did not kill the deceased, W would kill the accused. W then handed a panga to the accused who then cut the deceased several times with the panga after which W and the accused went to the deceased’s house and shared his property. In the course of his defence, the accused’s counsel invoked the provisions of section 17 of the Penal Code. This provides inter alia – a person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done only because during the whole of the time it is being done part of the offender instantly to kill him or to do him grievous bodily harm if he refuses. The trial judge found that the alleged threat by W to kill the accused was not present all the time, and that once the panga was handed to the accused b W, the threat had ceased to exist, as the accused was then in a position to withstand W’s attempt to put his alleged threat into effect. The accused had therefore killed the deceased after the threat had ceased to exist, and therefore could not invoke the provisions of section 17 of the Penal Code in his defence. The trial judge also said that the section is only available to an offender who is jointly charged with another or others.

            Held: (1) “The two or more offenders referred to in section 17 need not be jointly charged with an accused person, they could be abettors of the offence and indeed could be persons who had absconded and could not be traced or had died. The word “offenders” is not synonymous with “co-accused”. However, this misdirection had not in any way prejudiced the appellant or occasioned any injustice as the trial judge had rightly found that the alleged threat by Yeromino to kill the appellant had ceased to exist before the appellant cut and killed the deceased.” (2) Appeal dismissed.