R. v. Alex and seven others Crim. Case 101-A-70; 10/4/71; Kwikima Ag. J.

 R. v. Alex and seven others Crim. Case 101-A-70; 10/4/71; Kwikima Ag. J.

The eight accused persons were originally charged with murder and subsequently called upon to answer a charged of manslaughter. They were alleged to have participated in the beating of a suspected thief. The trial judge convicted seven of them for manslaughter. He examined the law governing common intent.

            Held: (1) “The East Africa Court of Appeal described common intent in the case of Okute Kaliebi and Onor. v. Rex 1941 (8) EACA 78 as follows: “In our opinion the fact that two people have the same intention does not necessarily mean that they have a common intention, for, the circumstances may be such as to show that each has acted independently of the other. Where several persons together beat another, then though each may have a different reason, and though some may join in the beating later than others it is plaint that all have what the law calls common intention, which does not necessarily cannote any previously concerted agreement between them.” “We must not be taken to lay it down as a universal rule that there can be no common intention unless the first assailants had reason to anticipate that others would or might come and continue the assault, if the proper inference from the evidence was that the first party approved of and associated themselves with the action of the new-comer, that might will be taken to indicate he existence of common intention …. If it were established that the members of tribe A

had a practice of beating any member of tribe B whom they found in their lands then indeed there would be such common intention as might make those who first beat member of tribe B responsible in law if that beating combined with a second beating by other members of tribe A caused his death.” That appears to me to be the best definition I have come across. I have searched for more definitions but they all refer to this and the other case the facts of which are on all fours with the present, and it is the case of R. v. Tabulayenka and other 1943 (10) EACA 51. In that case the deceased was beaten to death after being suspected of stealing. He was discovered sitting near the door of a hut at night. The alarm was sounded and several persons cam rushing to the spot and at once proceeded to kick and punch the deceased till he died of multiple injuries. Here the court took time to define common intention again. “There being no suggestion that the violence used was necessary to should have been any concerted agreement between the accused prior to the attack on the so called thief. Their common intention may be inferred from their presence, their actions and the omission of any of them to dissociate himself from the assault.” Mr., Gossain relied on the judgment of Reide J, reported in [1962] E. A. 766. In that case one of the accused was acquitted of murder because she struck a blow and retreated, leaving the others beating the deceased. Reide J, went as far as to suggest that common intent can only be inferred where the victim is attacked by all members of the crowd “simultaneously”. That case is different from this one here since in this case all the accused stayed long at the scene and their purpose could not have been other that to punish the thieves in the customary way of their tribe. For this reason I feel bound to acquit Aloys Paulo of the charge as his purpose and intention may have been to take the deceased to justice as he himself alleges. I convict Aloys of simple assault which he has been proved to have committed. As for the rest of the accused the only reason why they beat the deceased without even stopping others from doing so after his condition had become critical was because they commonly intended punish him. As such they were particeps criminals and I have no hesitation in finding them quality of manslaughter as charged.