PARTIES TO AN OFFENCE

 A crime may be committed by one person acting in complete isolation, or it may

be by more than one person.
 Where there are several persons involved, they may play different roles or their
involvement may take various forms.
 There are degrees of participation in the commission of offences.
 This means that participants in the commission are divided into a number o f
classes.
 They are classified as principal or minor offenders, accessories before the fact,
accessories after the fact, aiders, abettors, inciters , counsellors, procurers, among
others.
 The general term used to refer to all the participants in the commiss ion of an
individual crime is accomplices.

1. PRINCIPAL OFFENDERS
 The law on principal offenders is section 20 of the Penal Code.

PENAL CODE FACTS Interpretation

CODE
20 PART V- PARTIES TO 20. (1) When an offence is commi tted, each of the Basically it means
AN OFFENCE following persons is deemed to have taken part in principal offenders
committing the offence and to be guilty of the offence ,
(PRINCIPAL and may be charged with actually committing it, that is
are
OFFENDERS) to say- a) The person who
(a) every person who actually does the act or does the act or
makes the omission which constitutes the omission
offence; b) Anyone who
(b) every person who does or omits to do any
act for the purpose of enabling or aiding
enables or aiding the
another person to commit the offence; offender.
(c) every person who aids or abets another c) Anyone who aids
person in committing the offence; or abets
(d) any person who counsels or procures any
other person to commit the offence;
and in the last-mentioned case he may be charged either
Punishment for
with committing the offence or with counselling or counseling and
procuring its commission. procuring is the
(2) A conviction of counselling or procuring the same as for the
commission of an offence entails the same person who commits
consequences in all respects as a conviction of
committing the offence.
the crime
(3) Any person who procures another to do or
omit to do any act of such a nature that, if he had himself
done the act or made the omission, the act or omission
would have constituted an offence on his part is guilty
of an offence of the same kind, and is liable to
the same punishment, as if he had himself done the act

1
 or made the omission; and he may be charged with
doing the act or making the omission.

 Principal offenders are the primaiy p articipants in the commission of the offence.
 They include the person who actually does the prohibited act or makes the omission
which constitutes the offence, the person who does anything or omits to do any act
with a iew to enable or assist another person commit the offence, the person who
aids or abets another in committing the offence, and the person who counsels or
procures any other person to commit the offence.
 Whoever plays any of these roles is a principal offende r, who ought to be charged
jointly with the persons who actually carry out the prohibited deed.
 They may be charged with the substantive offence a s principal offenders.

 See
Ondimu s/o Ondimu and another vs. Rex (1952) 19 EACA 239 (Sir Barclay Nihill P,
Sir Newnham Worley VP and Sir Hector Hearne CJ)

 See also
Republic vs. Swalehe s/o Maulidi and another (1978) LRT 159 (Mnzavas J)

 They are all liable to the same punishment.

 However, it was stated in
Wanja Kanyoro Kamau vs. Republic (1965) EA 50 1 (Crabbe, Duffus and Spry JJA)
That a passive attitude while a crime is being committed will not ordinarily make a
person a principal offender .

 The Penal Code treats all the principal offenders equally.

 It does not distinguish between principals in the first or second or third degree as
is the case elsewhere.
 In

George Walter and Five others vs. Republic (1977) LRT 27 (Biron J)

It was held that, under the Tanzanian equivalent of section 20 of the Penal Code, an offence
is committed not only by the act or omi ssion of an offender but also by a person, who aids,
abets, counsels or procures the commission of the offence.

 In

Liningushu and others vs. Republic (2005) 1 EA 229 (Shah, OKubasu and Githinji JJA)

The second appellant was the widow of the deceased, she did not actually kill the deceased,
but she was the mastermind of the crime and she is the one who procured the actual
killers.The third appellant was her daughter, who facilitated the killing. Both were

2
held to have been principal offenders and convic ted as such of murder. Their appeals
were dismissed.

 See also

Karani and three others vs. Republic (1991) KLR 622 (Gachuhi, Cockar JJA, and
Omolo Ag JA)

&

Chivatsi and others vs. Republic (2003) 2 EA 395 (Kwach, Omolo and O’Kubasu JJA).

 A person who supplies property with the knowledge that it will be used in a
particular offence is a principal offender.
 In the English case of

R vs. Bainbridge (1960) QB 129, (1959) All ER 200

The accused supplied thieves with oxygen cutting equipment for breakin g into a bank. He
was convicted as a principal. It was argued that he knew that the equipment was going to
be used for some kind of breaking, even if he did not know the particular breaking.

 In

Sita d/o Zatio and two others vs. R (1957) EA 308 (Sir New nham Worley P, Sir Ronald
Sinclair VP and Bacon JA)

The deceased was killed by a person called a ‘lion -man,’ who was brought up to kill. The
keeper of the ‘lion man was convicted as principal offender to murder by supplying the
lion man in exchange of money, while knowing that the ‘lion man’ was to be used to kill
somebody, although he did not know the particular person.

 The court held similarly in

Rex vs. Munduli s/o Chui and others (1948) 15 EACA 47 (Nihill CJ, Sir G Graham Paul
CJ and Thacker J)

Where it was said that where there is evidence that a keeper of a ‘lion man released such
him for money received and handed him over to another person with the knowledge that
the hirer intended the ‘lion man’ should proceed to certain place and there kill a pe rson,
such keeper is a principal offender to the crime of murder.

 See also
Rex vs. Duloo d/o Gidakungu and others (1947) 14 EACA 132 ENihill CJ, Sir G
Graham Paul CJ and Thacker J)

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 2. JOINT OFFENDERS & COMMON INTENTION
a) The Principle
 Common intention and joint offenders is dealt with in section 21 of the
Penal Code, The provision envisages two or more people forming a
common intention to commit a crime together, and the offence is actually
committed, whether by one or more of them.

PENAL CODE FACTS Interpretation

CODE
21 PART V- PARTIES TO 21. When two or more persons form a common Envisions two
AN OFFENCE intention to prosecute an unlawful purpose in people having a
conjunction with one another, and in the prosecution of
such purpose an offence is committed of such a nature
common purpose
(Joint offenders in the that its commission was a probable consequence of the and intention
prosecution of common prosecution of such purpose, each of them is deemed to
purpose) have committed the offence.

 In such circumstances the law treats all those involved as joint offenders,
and each one of them is deemed to have committed the offence.

 See

Njeru s/o.Runyenje vs. Regina EACA 68 (Hearne CJ and Bourke J) and

Amrik Singh s/a Dasonda Singh and another vs. The Queen KLR 262 (Connell J).

 See also

Mwangi s/o Kamweru and others vs. Reginam (1953) 20 EACA 251 (Sir Barclay Nihill
P, Sir Newnham Worley VP and Mahon J)

 It a question of the offenders being brought together by a common

unlawful intention or purpose.
 See

Mwangi s/o Kamweru and others vs. Reginom (1953) 20 EACA 251 (Sir Barclay Nihill
P, Sir Newnham Worley VP and Mahon J)

Mohamed and three others vs. Republic (2005) 1 KLR 722 (Osiemo J)

Uganda vs. Sebyala and others (1969) EA 204 (Goudie J)

B vs. Ngerera s/a Masaga and others (1962) EA 766 (Reide J)

Gitau and another vs. Republic (1967) BA 449 (Sir John Ainley CJ and Rudd J) and

4
Rex vs. Ndundu Mwarachubi and others (1948) 15 EACA 101 (Sir Barclay Nihill CJ,
Edwards CJ and Sir Gray John Gray CJ)

 In

Buzoya and another vs. Republic (1975) BA 215 (Law Ag P . Mustafa Ag VP and
Musoke JA)

It was held that the appellants were incapable of forming a common intention on account
of drunkenness. Their conduct was inconsistent, driven by extreme mental con fusion due
to intoxication.

 In
R vs. Mughuria s/o Bwaya 10 EACA 105
It was said that the common intention to’ use violence may be inferred from the fact that
the gang is armed with lethal or dangerous weapons, even if only one of them is so armed.

 In

Rex is. Shiundu s/o Mbakaya and another 172 (Sir Joseph Sheridan CT and Lucie-
Smith J)
Two boys were convicted of causing malicious damage to property. The evidence showed
that the first accused had caused damage to a passing motor car by throwing a stone at
it. The second accused was present with the first accused and had in his hand a stone
which he intended to throw at the car and would have thrown it had not the first accused
thrown first and hit the car. It was held that the second accused was so assoc iated with
the act of the first accused in throwing the stone at the motor car as to render him
criminally responsible under the doctrine of common intention.

 See

Rex vs. Wakahuwa Kihenya and another 191 (Thacker 3) Circular to Magistrates No.
26 of 1938

 And also

Rex vs. Kelementi Maganga s/o Ochieng and another (1943) 10 EACA 49 (Sir Joseph
Sheridan CJ, Sir Norman Whitley CJ and Mark Wilson Ag CJ).

In

Lekishon ole Sang’are alias Lakamondo ole Sang’are and others vs. Reginam (1956)
22 EACA 626 (Sir Ronald Sinclair VP, Briggs and Bacon JJA)

5
The accused were Maasai morans who raided the homestead of the deceased to collect a
heifer to present to the laibon. Their effort was resisted by the owner of the heifer,
whereupon the morons set upon the family killing one child and injuring several others.
They were convicted of murder. On appeal, the court held that all the morans had formed
a common intention to prosecute an unlawful purpose in conjunction with one another of
forcibly taking a heifer belonging to another, and that in the prosecution of that unlawful
purpose a murder was committed. It was held that the murder was a probable consequence
of the prosecution of the joint intention of the accused.

 See also

Rex vs. Kimbugwe s/o Nyogoli and others (1936) 3 EACA 129 (Sir Joseph Sheridan CJ.
Hearne, Bates and Knight-Bruce JJ),

Njoroge vs. Republic (1983) KLR 197, (1982 -88) 1 KAR 142 (Madan, Potter JJA
and Chesoni Ag JA)

Kongu vs. Republic (1989 ) KLR 437 (Madan, Wambuzi and Law JJA), and

Simon Obara Obegi vs. Republic Kisumu CARA No. 9 of 1996 (Kwach, Tunoi JJA and
Bosire Ag JA).

 See also

R vs.Ngereza s/o Masaga and others (1962) BA 766 (Reide 3)

Karukenya and four others vs. Republic (1987) KLR 458 (Kneller, Hancox JJA and
Chesoni Ag JA)

 And

Mohamed and three others vs. Republic (2005) 1 KLR 722 (Osiemo 3).

 In

Rex vs. Chebiegon arap Cherono and another (1933) 15 KLR 100 (Abrahams CJ, Sir
Joseph Sheridan CJ and Johnson Ag CJ)

It was stated that where three persons set out armed with da ngerous weapons with the
common objective or intention of stealing goats, and one of them kills the custodian of the
goats in the course of the execution of the common purpose, all three of them would be
liable of conviction for murder.

 See also

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 Rex vs. Mughuira s/o Bwaya and others (1943) 10 EACA 105 (Sir Joseph Sheridan CJ,
Sir Norman Whitley CJ and Sir Henry Webb CJ)

 In

Rex vs. Oman s/o Kindamba and another (1942) 9 EACA 77 (Sir Joseph Sheridan CJ,
Sir Norman Whitley CJ and Sir Henry Webb CJ)

It was held that where two persons set out armed with lethal weapons with the common
intention of stealing and one of them in order to fulfil their purpose kills the custodian of
the goods or things sought to be stolen, all are liable to be convicted of murder . In the
case the two accused went to the scene of the crime with the intention of stealing from a
shop, and a watchman to the premises was kill ed in the process of the theft.

 The offence committed in that matter amounts to robbery with violence under the
current, which is defined section 296(2) of the Penal Code.

PENAL CODE FACTS Interpretation

CODE
295 PART XXVIII- 295. Any person who steals anything, and, at or It means if you
296 ROBBERY AND immediately before or immediately after the time of accompany anyone
stealing it, uses or threatens to use actual violence to any
EXTORTION person or property in order to obtain or retain the thing
who is armed the
stolen or to prevent or overcome resistance to its being charges are the same
Definition of Robbery and stolen or retained, is guilty of the felon y termed that of robbery with
Punishment to Robbery robbery. violence.
296. (1) Any person who commits the felony of
robbery is liable to imprisonment for fourteen years.
(2) If the offender is armed with any dangerous or
offensive weapon or instrument, or is in company with
one or more other person or per sons, or if, at or
immediately before or immediately after the time of the
robbery, he wounds, beats, strikes or uses any other
personal violence to any person, he shall be sentenced
to death.

1n

Maina s/o Kimani vs. Reginam (1955) 22 EACA 362 (Sir Barclay Nihill P. Sir
Newnham Worley VP and Briggs JA)

The accused was convicted of being in unlawful possession of a firearm. He did not have
it on his person, but it was carried by a man who accompanied him, and who fired it. The
accused admitted that he was in the company with the armed man and that he knew him
to be carrying a pistol. It was held that he was in joint possession of the pistol, in terms of
the law governing common intention. His appeal was dismissed.

7
  This situation is also called consortin g with the principal offender.

 See also

Suleiman vs. Republic (1987) KLR 219 (Platt, Gachuhi and Apaloo JJA).

 See

Kamau s/o Njoroge and another vs. Reginam (1954) 21 EACA 257 (Sir Barclay Nihill
P, Sir Enoch Jenkins JA and Paget Bourke J)

 And

Shantilal Manibhai Patel vs. Reginam (1955) 22 EACA 425 (Sir Newnham Worley VP,
Sir Enoch Jenkins JA and Briggs JA)

 See

Ndungu s/o Nganga vs. Reginam (1955) 22EACA 402 (Sir Newnham Worley VP, Sir
Enoch Jenkins JA and Briggs JA)

And

Karumi s/o Githui vs. Reginam (1954) 21 EACA 249 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Briggs JA)

 1n

Karani and three others vs. Republic (1991) KLR 622 (Gachu hi, Cockar JJA, and
Omolo Ag JA)

The first and second appellants had not taken part in the actual killing of the deceased.
The first appellant was present at the scene but did not take part in the actual act of killing,
while the second appellant was not even present. Both were, however, found liable. The
first appellant instigated the hiring of the killers by the second appellant, both of them
jointly planned the murder and collected and transported to the scene the weapons that
were to be used in the kil ling. They were found to have had a common intention with the
other appellants, the actual killer, to kill the deceased.

 See also

Republic vs. Mathai and two others (Simpson, Nyarangi and Platt JJ)

Where the court found that the third respondent could not escape criminal responsibility
for the making of an article that was in contempt of court as she was present at some point
when the second respondent, interviewed the first respondent and the article

8
appeared in the magazine under her name. However, h er lesser responsibility for the
crime was considered during sentencing, as she given an unconditional discharge while
the first respondent was committed to jail and the second respondent fined.

 See also

Rex vs. Lulakombo s/o Mikwalo and another (1936) 3 EACA 43 (Sir Joseph Sheridan
CJ, Sir Sidney Abrahams CJ and Hall CJ) and

Chivatsi and others vs. Republic (2003) 2 BA 395 (Kwach, Omolo and O’Kubasu JJA).

 In

Mwangi s/o Nganga vs. Reginam (1954) 21 EACA3O8 (Sir Newnham Worley Ag P, Sir
Enoch Jenkins Ag VP and Briggs JA)

The court declined to find that the suspect who does not have possession of a weapon is
in joint possession with the person in possession, in the opinion of the court to hold
otherwise would be unfair. The accused and two others, o ne of whom escaped, agreed to
burgle a house, the role of the accused being to keep guard of the servants. He did not
take part in the actual stealing, and he did not see his colleagues do so. They stole
ammunition and other items. Ammunition was found in the person of the co-accused.
Nothing was found on the accused. He was convicted jointly with his co -accused, who
was found in actual possession of the ammunition. This conviction was quashed on
appeal.

 In

Msengi s/o Mkumbo and another vs. Reginam (1955 ) 22 EACA 500 (Sir Barclay Nihill
P, Sir Newnham Worley VP and Holmes J)

The court pointed out that the existence of a common intention to steal does not per Se
make all the members of the gang responsible for death caused by one of them in the course
of the execution of their common intention to steal. There must be a common intention to
offer violence in pursuit of the common intention to steal. On the facts, the court found that
the accused persons had a common intent to commit the felony of theft, both were armed
with sticks ready to -offer violence in pursuit of their common intention and death resulted
from that pursuit, which meant that the accused were guilt y of murder.

 See

Rex vs. Paulo s/o Shimanyolay and another (1938) 3 EACA 135 (Sir Joseph Sh eridan
CJ, Whitley CJ and Knight-Bruce Ag CJ)

9
Where the first appellant shot the deceased and when he tried to get up the second
appellant hit him with a panga. Medical evidence as to the cause of death was inconclusive,
and both appellants were convicted on the basis that they had a common intention to cause
injury to the deceased.

 See also

R vs. Ngereza s/o Masaga and others (1962) BA 766 (Reide J).

 In

Augustino Orete and others vs. Uganda (1966) 430 (Sir Charles Newbo ld P, Duffus Ag
VP and Law JA)

The appellate court declined to infer common intentio n to kill or cause grievous harm in
a case where the appellants raided a village with the intention of discovering cattle
thieves and beating them.

 In

Rex vs. Okute s/o Kaliebi and another (1941) 8 EACA 78 (Sir Joseph Sheridan CJ, Sir
Norman Whitley CJ and Sir Henry Webb CJ )

The deceased died due to shock resulting from two independent beatings. The flrst
appellant was in the party which inflicted the first beating while the second appellant
participated in the second beating. There was no evidence of an intent common to the two
appellants, and the court held that since the death was caused by the effect of the second
beating to which the first appellant was not party, he (the first appellant) ought to be
acquitted.

 See also

Dafasi Magayi and others vs. Uganda (1965) BA 667 (Sir Clement de Lestang, Spry and
Law JJA)

 In

Rex vs. Enok Achila and another (1941) 8 EACA 63 (Sir Joseph Sheridan CJ, Sir
Norman Webb Ci and Sir Henry Webb CJ).

The deceased was attacked with sticks by the two appellants and others. The second
appellant held the deceased while others beat him with thin sticks. The first appellant then
came and twisted the deceased’s neck and thereby dislocated it. They were convicted of
murder. On appeal the court held that the second appellant could not be convicted of
murder unless it was established that not only was he holding the deceased while the first

10
appellant was twisting his neck but also that he was identified with the first appe llant’s
purpose. His appeal was allowed, but that of the first appellant was dismissed.

 In

Rex vs. Selemani s/o Ngulu and another (l947 14 EACA 94 (Nihill CI, Sir G’ Graham
Paul Ci and Edwards CJ)

The court was of the view that it is too broad a state ment of the relevant law to say when
people do the felonious act of burglary together and one kills both are liable to be
convicted of murder. In the course of a burglary in the house of the deceased by the accused
who were unarmed, one accused seized the deceased’s own bows and arrows and fired
two arrows at him fatally inflicting injuries. Both were convicted of murder, on the basis
that when people did the felonious act of burglary together and one killed both were liable
to be convicted of murder. This holding was reversed on appeal.

 See also

Republic vs. Nyambura and Four others (2001) KLR 355 (Etyang J)

It was held that in cases where the accused are charged with committing murder jointly
with persons not before the court, it is necessary that the prosecution places the accused
person in the crowd of people which killed the deceased.

b) Premeditated or Spontaneous
 The common intention may be formed at the very outset or beginning, that is
there may be a premeditated joint plan.
 Alternatively, it may arise spontaneously on the spur of the moment.
 See

Mohamed and three others vs. Republic (2005) 1 KLR 722 (Osiemo J).

 In
Wanjiro d/o Wamerio and another vs. Reginam (1955) 22 EACA 521 (Sir Barclay
Nihill P, Sir Newnham Worley VP and Sir Owen Corrie I)

The former Court for Eastern Africa said that common intention generally implies a
premeditated plan, although the common intention can also develop in the course of
events even if it was not present at the beginning. In this case two boys strayed into a Mau
Mau camp in the bush. They were surrounded and killed by members of the gang. The
female members of the group, however, did not participate in the killing, which they did
not even witness. The females challenged their conviction of murder on appeal. It was
held that for the relevant provision on common intention to apply it must be shown that
the accused person shared with the actual perpetrators of the offence not only a general
unlawful purpose, but the specific unlawful purpose which led to the commis sion of the
offence charged.

11
  See also

Joseph Wangangu and another vs. Republic (1977) KLR 223 (Trevelyan and Todd JJ)

 In

Rex vs. Otieno s/o Okech (1947) 14 EACA 68(Sir Joseph Sh eridan CJ, Sir G Graham
Paul CJ and Thacker J)

Three people stole a quantity of articles, including a pistol, from a house. They were
intercepted by two policemen who had laid an ambush. The officers challenged them and
asked to submit the articles for inspection, but they refused. The three men consulted
amongst themselves and shortly thereafter one of them fired at the officers, killing one of
them. At the trial the men who did not have the gun raised the issue of common intention,
arguing that they were not party to the killing of the police officer as they had no intention
to kill anyone. The court found that the two did not dissociate themselves with the actions
of the man who fired the pistol; in fact it was them who were speaking forcibly while the
gun holder remained silent.

c) Inference from Circumstances

 The common intention may be inferred from the circumstances.
 In
Lamambutu s/o Makalya and another vs. R (1958) EA 706 (Sir Kenneth O’Connor P,
Briggs VP and Gould JA)

The court declined to infer common intention purely on the basis that the appellants all
carried sticks and spears. It was observed that it was customary for Africans to carry
sticks and spears and an inference drawn from that was very weak, although each case
depended on the particular circumstances.

 The best example is in the cases of the so-called mob justice.

 See.

Rex vs. Ndundu Mwarachubi and others (1948) 15 EACA 101 (Sir Barclay Nihill CJ,
Edwards CJ and Sir Gray J (John Gray CJ)

 In

Rex vs. Mikaeri Kyeyune and others (1941)8 EACA 84 (Sir Joseph Sheridan CJ, Sir
Henry Webb CJ and Sir Norman Whit ley CJ)

and

Rex vs. Tabulayenka s/o Kirya and three others (1943) 10 EACA 51 (Sir Joseph
Sheridan CJ, Sir Norman Worley CJ and Mark Wilson Ag CJ)

12
The court found that where a mob sets upon a suspected thief and beat him to death, every
person forming the mob would be deemed to have formed a common intention with the
rest to kill the thief, and would be liable for murder. It was stated that it is not necessary
that there should have been any concerted agreement between the arrested persons prior
to the attack on the so-called thief.

 Contast with

R vs. Ngereza s/o Masaga and others (1962) EA 766 (Reide J)

 A similar finding was reached in

R vs. Omenyi s/o Obuka 10 EACA 81

Where a group of people acting on spur beat up and killed a European, driven b y their
tribal superstition that Europeans kidnap and eat Africans.

 In

Rex vs. Otieno s/o Okech (1947) 14 EACA 68(Sir Joseph Sheridan CJ, Sir G Graham
Paul CJ and Thacker J)

The common intent of the appellants to kill the policeman was inferred from th e
association of the appellants, their discussion and the act of one of them immediately
after the discussion in firing a shot at each policeman. The shooting of the policeman was
said to be necessary for the common purpose of the appellants which was to g et safely
away with their loot.

d) Passive Presennce not Sufficient

 In

R vs. Kingoriwa Gakuha 13 EACA 81

It was pointed out by the court that mere presence at the time of the commission of the
offence does not make a person party to the crime without his having participated in some
way.

 See

Zuberi s/o Rashid vs. R (1957) EA 455 (Sir Newnham Worley P, Briggs Ag VP and
Forbes JA)

Where it was said that ‘presence’ is a relative term. In the context of that case, the
appellant was not at the scene of the m urder, but he was within earshot of the murder and

13
intended to return to the scene as soon as the murder was accomplished , which made
him sufficiently present at the commission of the offence for him to be a principal .

 See also

Uganda vs Sebyala and others (1969) LA 204 (Goudie J).

 See

Rex vs. Duloo d/o Gidakungu and others (1947) 14 EACA 132 (Nihill CJ, Sir 0
Graham Paul Ci and Thacke J)

 Being a member of a gang engaged in an unlawful activity or purpose, may make

a, person responsible for the conse quences, unless he disassociates him self from
the common purpose.
 See AIso

Gamunga s/o Gidagurija and another vs. Regina (1952) 19 EACA 253 (Sir Barclay
Nihill P, Sir Newnhm Worley VP and Sir Henry Cox CJ)

Simon Obare Obure and another vs Republic Kisum u CACRA No. 9 o 1996 (Kwach,
Tunoi JJA and Bosire Ag JA) and

Njoroge vs Republic (1983) KLR 197, (1982 -88) 1 KAR 142 (Madan, Potter JJA and
Chesoni Ag JA).

 The law expects that the persons be held j ointly liable where what follows from
the commission of the unlawful act is a probable consequence of that act.

 In

R vs. Kingori wa Gakuha 13 ECA 8l

 And

Rex Vs.Enok Achila and another (1941)8 EACA 63 (Sir Joseph Sheridan CJ, Sir
Norman Whitley CJ and Sir Henry Webb CJ)

It was said that where the cause of death of deceased is not a probable consequence of the
unlawful acts of the accused, the accused would not liable. Acquiescence in the commission
of a crime is not sufficient to constitute one a principal offender.

 In

Abubakar Musa Yakubu vs. Republic Mombasa CACRA No. 85 of 2000 (Gicheru,
Omolo and Lakha JJA)

14
The second appellant was a neighbour of the first appellant. He answered alarm raised
by the first appellant after the latter caught a thief in the act and apprehended him. The
thief was set upon by a mob and beaten to death. There was no evidence connecting the
second appellant with the beating, although he was present at the scene. He was
convicted on the strength section 20 of the Penal Code. On appeal, the Court of Appeal
acquitted him. It was held that mere presence at the scene of the killing of the deceased
does not make section 20 of the Penal Code applicable.

 See also

Komenarapchelal and 43 others (1938) 5 EACA 150 (Sir Joseph Sheridan CJ, Whitley
CJ and McRoberts 1)

Kitchingeri and others vs Rex (1908) 3 EALR 1

and

Rex vs. Kumwakawa Mulumbi l4 KLR 137 (Sir Charles Griffin CJ, Shehdan CS and
Law J).

 The failure to try to prevent the conrnission of the offence or to apprehend the
offenders will also not make a person a principal o ffender in the commission of
the offence.
 In

Zuberi s/o Rashid vs. R (1957) BA 455 (Sir Newnham Worley P. Briggs Ag VP and
Forbes IA)

It was said that it is essential that there should be some participation in the crime either
by actual assistance or by coufflenancing encouraging it. The court made the point that
mere passivity may amount to abetment in special circumstances and result in
conviction as a principal offender. In this case, the accused was convicted jointly with
two men who had killed his wife. The two men had planned to poison her, with the
husband’s acquiescence. Later they informed the husband that since the poison had
failed, they now wanted to kill her. One of them took the husband’s panga from his
hand without asking him, and then pro ceeded with his accomplice to kill the woman.
The husband left the scene as he did not want to be present at the killing. He returned
later to collect his panga, and found the two men dragging his wife’s body into a bush.
On appeal it was held that the hus band had acquiesced in the wife’s murder by
surrendering his panga to them without any resistance, he had aided and abetted them
or at least countenanced their crime. His previous conduct was found to have been of
such character as to induce a reasonable b elief in the minds of the two men that the
husband desired the wife’s death, and that he was willing to encourage them in her
murder. The appeal was dismissed. (Countenancing’ in the context of the case was
gathered from the conduct of the husband which ten ded towards inducing a reasonable
belief in the actual perpetrators of the killing that the husband actively

15
 desired his wife’s death and was willing, short of actual participation, to encourage
and assist them in her murder. He was treated as a principal in the murder as he did
not disassociate himself from the final plan to kill the woman, and therefore he did not
avoid complicity in her murder. )

e) Withdrawal From Common Purpose

 It is possible for one party to withdraw from the common purpose.
 In such cases the issue is whether that excuses the accomplice from criminal
liability.
 It would appear, from the authority in

R s Whitefield (l984) 79 Cr App Rep 36

That a mere change of mind which is not supported by evidence of any action on the part
of the accused, will not suffice to relieve him of responsibility. The accused must take some
step to indicate that he no longer adheres to the common intention — usually something to
stop further commission of the offence.

 See

Rex vs. Tobulayenka s/o Kirya and t hree others (1943) 10 EACA 51 (Sir Joseph
Sheridan CI, Sir Norman Worley CJ and Mark Wilson Ag CJ)

And

Mohamed and three others vs. Republic (2005) 1 KLR 722 (Osiemo ).

 In

Wachira and others vs. The Republic (1979) KL R 293 (Trevelyan, Hancox JJ)

Three people raided a store at day time with intent to steal money. One was armed with a
pistol and ammunition. As they entered the store the person with the pistol told those
inside to lie down, and the deceased resisted, with the result that several people within
the shop were shot. The gang then decided to leave without stealing anything. They were
charged with attempted robbery and convicted. One of the accused stated, in a statement
to the police, that when his accomplice drew the pistol and fired, he did not wait to see
the result, but that he ran back to the getaway car. On appeal the court was not
convinced that the accused who ran to the getaway car had abandoned the common
purpose. In the opinion of the court, he could not be said to have dissociated himself from
the crime as he did not attempt to stop his colleague from using the pistol and the mere
escape to the car did not amount to an abando nment of the joint enterprise.

 See also

16
Njoroge vs. Republic (1983) KLR 197, (1982 -88) 1 KAR 142 (Madan, Potter JJA and
Chesoni Ag IA) and

Mugao and another vs. Republic (1972) PA 543 (Spry Ag P. Law Ag VP and Lutta JA).

 1n

Thiong’o vs. The Republic (1977) KLR 180 (Wa mbuzi P, Law VP and Musoke JA)

Withdrawal from or abandonment of a common criminal purpo se has to be evidenced by

a timely communication to the other party to the common purpose of the intention to
abandon. In the matter the appellant walked away as his colleagues were demanding a
bribe. The court was of the view that the mere walking out of the shop in disgust leaving
the other officer to continue with the demand did not amount to withdrawal by the
appellant from the common venture.

f) Acquital of one of The Offenders

 Where two persons are jointly charged with an offence in the course of a comm on
design and one of them is acquitted, according to the court in

Kioko vs. Republic (1983) KLR 289 (1982 -88) 1 KAR 157 (Madan, Kneller and Hancox
JJA),

The same charge cannot be maintained against the other accused person. In such case a
nolleprosequishould be entered in the case to facilitate the filing of fresh charges based on
fresh information.

 See

Owalu s/o Agelo and another (1942) 9 EACA 87 (Sir Joseph Sheridan CJ, Sir Henry
Webb CJ and McRoberts J).

 See also

Wanja Kanyoro Kamau vs. Republic (1965) EA 501 (Crabbe, Duffus and Spry JJA)

 1n

Njani vs. Republic (1970) PA 260 (Platt J)

It was held that where two persons are charged jointly with one offence, judgement
cannot stand against both of them on a finding that an offence had been com inittad by
each independently. The appel1ants had been jointly charged with and convicted of
housebreaking and stealing. There was evidence that the house was broken into and
mattresses stolen. One appellant admitted stealing the mattresses, while the othe r denied
breaking into the house and stealing mattresses from the house, but admitted stealing the

17
mattresses when he found them elsewhere. It was held that one appellant was guilty of
housebreaking and stealing, while the other appellant was guilty of the ft by finding, and
that the evidence disclosed different offences which meant that no joint offence was proved
and the appellants could not be convicted jointly.

3. AIDERS & ABETTERS

 Aiders and abetters give assistance to the perpetrators, before or at the
commission of the offence.
 They may help with the planning or by giving material support for its execution.
 This is dealt with in section 20(1) (c) of the Penal Code.
 The distinction between the two terms is not clear.
 It would appear that ito aid’ refers t o the giving of help, support or
encouragement; while to abet’ is to incite, instigate or encourage.
 See

Rex vs. ArapKiptalam EALR 102 (Hamilton and Barth JJ)

 The behaviour targeted is any act of assistance in the commission of a crime,

whether in terms of provision of material aid or by encouragement of a general
nature, makes a person an accomplice to the crime.

 See

Rex vs. Kimonier and Five others 159 (Hamilton Ci)

R vs. Coney and others (1882) 8 QBD 534 (Hawkins J)

Zuberi s/o Rashid vs. R (1957) EA 455 (Sir Newnham Worley P, Briggs Ag VP and
Forbes JA)

 1n
Msembe and another vs. Republic (2003) KLR 521 (Mbaluto and Kubo JJ)

It was held that when an offence is committed, every person who does or omits to do any
act for the purpose of enabling or aiding another to commit the offence is deemed to have
taken part in committing the offence and to be guilty of the offence and may be charge d
with actually committing it.

 See also

Njoroge vs. Republic (1983) KLR 197, (1982 -88) 1 KAR 142 (Madan, Potter JJA and
Chesoni Ag JA)

 1n

Rex vs. Kimonier and Five others 159 (Hamilton CJ)

18
The accused were found to have all taken an active part in deciding on the death of the
deceased by suicide and seeing that it was carried out under the immediate impulse of his
relatives. They were convicted of the offence of abetment of suicide.

 See also

Uganda vs. Sebyala and others (1969) EA 204 (Goudie J)

 And

Rex vs. Opiri s/o Meope and another EALR 90 (Sheridan J)

 It will be noted that mere presence at the scene of a crime does not make one an
accomplice to the crime.
 What matters is whether the person present plays any role at all in the crime.
 This was the issue that confronted the court in

Jacinta Njoki Ndirangu vs. Republic Nairobi CACRA No. 262 of 2007 ( Omolo, Bosire
and Aluoch JJA)

Where the appellant had been convicted of murder as an aider or abettor. The appellate
court quashed the conviction on the ground that there was no evidence to show that the
appellant either assisted or encouraged in the commission of the offence.The evidence on
record, and the appellant’s own admission, placed her at the scene of the crime at the
material time, however there was no evidence that she did participate in any way i n the
commission of the crime.

 See

Dracaku s/o Afia and another vs. R (1963) EA 363 (Sir Trevor Gould Ag P, Crawshaw
Ag VP and Newbold JA)

 See

Wanja Kanyoro Kamau vs. Republic (1965) EA 501 (Crabbe, Duffus and Spry JJA)

 If the accused is present as a look -out he would be an accomplice, but if he just

happens by chance to be at the scene then he would be innocent.
 In

Mahendra Maganlal Pandya vs. Regina (1957) TLR 151 (Mahon J)

The appellant was a lookout, who waited outside as the others two hoodlums went inside.
The court treated him as an aider and abettor, who was properly convicted as a principal
together with the other two nho actually went in and did the actual stealing.

19
  Generally there is no duty placed on a person who per chance happen to be at the
scene of a crime to do anything to stop it
 In

R vs CIarkson (1972) 55 Cr App Rep 445

Soldiers charged with aiding and abetting a rape were convicted, but set free on appeal It
was alleged that they were present at a room where rape was taking place, but they took
no action to stop the perpetrator, It was held on appeal that the mere presence at the scene
of the crime was not enough to make a person an aider and abetter .

 In

R vs Coney (1882) 8 QBD 534

It was stated that to constitute one, an aider or abettor some active step must taken by
word, or action with the intent to instigate the principal offender. One of the accused
persons charged with abetment of suicide .

 In

Rex vs. Kimonier and Flve others 159 (Hamilton CJ)

Was acquitted after it was established that he had been called and foll owed to see what
was going forward and took no active part at all. Two other accused were all acqui tted
after it was found that although they desired revenge against the deceased , they did not
instigate his suicide, they were in fact averse to it and did not therefore abet it.

 There are also incidences where the la w imposes a duty to act, and non action -
may amount to aiding and abetting the commission of an offence.
 For example, a husband who is present when his wife is drowning their children
and does nothing will be guilty of aiding and abetting the homicide.
 In cases of this nature liability will depend on the level of control that the accused
has over the actions of the peroetrator .
 In the Scottish case of

Bonar or vs McLeod (1983) Scottish Crime Case Rep 161

A senior police officer who did nothing while one of his juniors assaulted a detained
person was convicted as an accomplice for abetting and aiding the offender. He was said
to have had a duty to intervene.

 A person is said to aid and abet a n offence if he provides positive help in its
commission.
 For liability to attach the accused must have had knowledge of the general nature
of the crime which the other parties intend to commit.

20
  See

Rex vs. Harry Ezekiel and another 120 (CJ and de Lesta ng J) (Circular to Magistrates
No. 7 of 1948)

 1n
Ali Islam vs. Republic (1967) EA 246 (Biron J)

The appellant was an employee of a person who was carrying on the business of selling
radio receivers. He was convicted of the offence of carrying on that bu siness as a dealer
without the relevant licence. On appeal it was held that as an employee he could not be
held to be a dealer, nor be said to be carrying on business; but he could be convicted as a
principal on account of aiding and abetting the commissio n of the offence by his employer.
The recorded evidence showed that the appellant hid radios when he saw licensing officers
approaching, suggesting that he knew that there was no licence in respect of the broadcast
receivers and that it was an offence to s ell such receivers without a licence. He
participated in the commission of the offence with the full knowledge that it was an offence.

 This principle was applied in the case of

DPP (Northern Ireland) vs Maxwell (I978) 1 WLR 1350

Where the accused was a member of an illegal organisation well known for involvement
in violent activities. He drove fellow members to a bar where a bomb was placed. He
resisted a charge of aiding and abetting the crime, saying that he did not know that a bomb
was involved. His argument was dismissed by the court, which held that all what was
needed to prove aiding and abetting was that the accused had knowledge of the general
nature of the crime that the other members intended to commit.

 The court in

Rex vs Katemi and another EALR 79 (Barth J)

Treated police witnesses who procure commission of an offence by means of a police trap
as abetters of the offence committed. The court explained that the problem with this is the
danger of an innocent person being induced to commit an offence which he would not have
committed but for the instigation received at the hands of the police. In the opinion of the
court, the trap often creates the offence. The accused had travelled to Kitui apparently to
ouy goats, but the local police suspect ed them of being slave dealers who were looking
for slaves to buy. The police conceived an idea to trap by sending a messenger to them to
say he had slaves for sale. They produced two women, and the appellants allegedly offered
to buy one of them, whereupo n they were arrested, charged and convicted. On revision
the conviction was quashed, since the commission of the offence was procured by the
police and their agents.

21
  Compare and contrast with

Rex vs. John Charles Rudolf Hopley (1949) 16 EACA 110 (Sir Ba rclay Nihill CJ, Sir G
Graham Paul CJ and Edwards CJ)

A case of a police trap, where it was held that there is a difference in the degree of
criminality between a person who of his own volition commits an offence and one who in
the face of great temptation which he has not himself brought about, succumbs to it.

 According to the court in

Rex vs Harry Ezekiel and another 120 (CJ and de Lestang J) (Circular to Magistrates
No. 7 of 1948)

For an aider or abettor to be convicted as a principal it is necessary that an offence

should have been committed, since they become parties to a crime by assisting another in
the commission of it.

 In

Rex vs. All bin Thani 5 I (Sir Joseph Sheridan and Lucie-Smith J)

It was held that a person cannot be convicted of aiding; abetting or being concerned in the
commission of an offence by reason of an act which takes place afler the offence has been
committed.

4. COUNSELLORS,PROCURERS,INSTIGATORS & INCITERS

 This is dealt with in section 22 of the Penal Code.

PENAL CODE FACTS Interpretation

CODE
22 PART V- PARTIES TO 22. (1) When a person counsels another to commit It does not matter
AN OFFENCE an offence, and an offence is actually committed after whether the offense
such counsel by the person to whom it is given, it is
immaterial whether the offence actually committed is
was done in the way
(Counselling Another to the same as that counselled or a different one, or whether counseled or not.
Commit and Offense) the offence is committed in the way counselled or in a
different way, provided in either case that the facts
constituting the offence actuall y committed are a
probable consequence of carrying out the counsel.

 To counsel is to offer advice or encouragement in the commission of an offence.

A counsellor usually offers advice on the best way of committing a crime.
 To procure is to secure the commission of an offence by obtaining a person for
the purpose of committing the offence. It is also known as solicitation.

22
  See

Dhirajlal Ramji Khetani vs. B (1957) EA 563 (Sir New nham Worley F, Briggs Ag VP
and Forbes JA)

 And

Santokh Singh Kehar vs. Reginam (1955) 22 EACA 430 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Sir Enoch Jenkins JA)

 A person who counsels or procures another to commit an offence is a principal

offender if that offence is actually committed.
 He may be charged either with committing the substantial offence or with
counselling or procuring its commission, and upon conviction he would be liable
to the same penalties as if had committed the substantial o ffence.

 See

Rex vs. Kimonier and five others 159 (Hamilton CJ).

 See also

Rex vs. Lulakomba s/o Mikwalo and another (1936) 3 EACA 43 (Sir Joseph Sheridan
CJ, Sir Sidney Abrahams CJ and HaIl CJ)

D M Patel vs. Rex (1951) 18 EACA 188 (Sir Barclay Nihill P. Sir Nevvnham Worley
VP and Lockhart-Smith JA

Karani and three others vs. Republic (1991) KLR 622 (Gachuhi, Cockar JJA, and
Omolo Ag JA)

with respect to instigation

 When a person counsels another to commit an offence, and an offence is actually

committed by the person counselled, it is immaterial that whether the offence
committed is the same as that counselled or a different one, provided that the facts
constituting the offence actually committed are a probable consequence of carrying
out the counsel.
 In such case the counsellor is deemed to have counselled the other person to
commit the offence actually counseled.
 In

R vs Bernard (1858) I F&F 240

A person, who counselled another to kill a particular person, was convicted as a

principal to murder when the person counselled killed a person other than the one he had

23
been counselled to kill. The counsellor is not excused from criminal liability merely
because the person counselled uses a different means from those suggested, provided that
the means used are the probable consequence of the counsel.

 The former Court of Appeal for Eastern Africa has held in

Rex vs. Biguli s/o Lwemera and another (1947) 14 EACA 115 (Nihill CJ, Sir G Graham
Paul CJ and Edwards CJ)

That to counsel and procure a person to commit the offence of arson is not necessarily to
be guilty of murder if death results. In the opinion of the court it could not be reasonably
held that loss of human life is a probable consequence of arson per se, as everything will
depend on the circumstances of the commission of the offence. The first accused had been
convicted of murder by burning down a house with his victim inside. The second accused
was convicted as an accessory before the fact by counselling and procuring the first
accused to commit the crime. On appeal the conviction of the first accused was upheld,
while that of the second accused was quashed. The evidence showed that the second
accused procured and counselled the first accused to destroy the house of the victim; he
did not counsel her killing.

 In

R vs. Masabo s/o Mwendabantu l3 EACA 172.

A woman was convicted of a charge of counselling and procuring the murder of her
husband. There was evidence that she was in love with the man who actually killed her
husband, that she lived at the material time with the man, and that she had mentioned that
she was looking for some medicine to kill her husband. The trial court inferred from the
evidence that the wife was actively concerned in the murder and must have counselled and
procured her lover to kill him. On appeal it was held that it could not be established from
the inferences that she had beyond reasonable doubt aided, abetted, counselled or
procured her husband’s death, and that this was really a case of mere suspicion.

 See also

Salim Menza Mganga vs. Republic Mombasa CAC No. 16 of 1997 (Kwach, Shah and
Pall JJA)

 In

Konmen Arap Chelal and 43 others (1938) 5 EACA 150 (Sir Joseph Sheridan CJ,
Whitley CJ and McRoberts J)

It was held that though the forty - fourth appellant was not shown to have been present at
the actual killing, he was guilty as he was the one who counselled the death of the deceased
and provided the rope that was used in the killing. Some of the other appellants

24
were acquitted as there was no evidence that they were present at the killing, nor
counselled or procured it, and even if they had been present at the killing and failed to
raise objection, those facts alone would not be sufficient to justify a conviction.

 In

Ramchand Bheeromal Choitram vs. Regina 93 (Heame CJ and Rudd J)

The appellant was convicted of counselling another to give false information to the
police.

 It would appear that inciting another person to commit an offence falls under
counselling, and is therefore governed by section 22 of the Pe nal Code.
 See

Dhirajlal Raniji Khetani vs. R (1957) EA 563 (Sir Newnham Worley F, Briggs Ag VP
and Forbes JA).

 Inciting is also referred to as instigating.

 See also

Rex vs. Katemi and another EALR 79 (Barth J)

And

Njeru s/o Runyenje vs. Regina EACA 68 (Elearne CJ and Bourke J)

 In

Ondimu s/o Ondimu and another vs. Rex (1952) 19 EACA 239 (Sir Barclay Nihill P,
Sir Newnham Worley VP and Sir Hector Heame CJ)

The second accused was jointly convicted of murder with another. The case against the
second accused was that he had verbally instigated the first accused to stab the deceased
by saying ‘Do not whip him, stab him’ upon which the first accused stabbed the deceased.
On appeal the convictions were upheld. It was held that the verbal instigation was within
section 22 of the Penal Code and the second accused had been properly convicted as a
principal offender.

 See also

Kabunga s/o Magingi vs. Reginam (1955) 22 EACA 387 (Sir Barclay Nihill P, Marion J
and Holmes J)

 1n

25
 Abubakar Musa Yakubu vs. Republic Mornbasa CACRA No. 85 of 2000 (Gicheru,
Omolo and Lakha JJA)

The first appellant caught a thief in the act, apprehended him and raised the alarm. A
mob formed and beat the thief to death. The first appellant was charged and convicted of
the murder of the thief on the grounds that he had incited the mob. On appeal, it was held
that raising an alarm does not make one liable for the ultimate acts of a mob. It was
further held that it is not incitement or inte ndment to kill if upon apprehendirg a thie f one
shouted ‘Thief.’

5. ACCESSORIES BEFORE &AFTER THE FACT

 An accessory after the fact is a person who assists the principal offender to evade
justice.
 He could do this by sheltering the offender, enabling him to escape, or by
destroying incriminating material.
 The law on accessories after the fact is section 396 of the Penal Code, which
defines an accessory after the fact to be a person who receives or assists another,
who is to his knowledge, guilty of an offence, to enable him to escape punishment.

PENAL CODE FACTS Interpretation

CODE
396 PART XLII- Assisting someone
ACCESSORY AFTER 396. (1) A person who receives or assists another to escape justice.
who is, to his knowledge, guilty of an offence, in order
THE FACT to enable him to escape puni shment, is said to become
an accessory after the fact to the offence.
(Definition of Accessory (2) A wife does not become an accessory after the
After the Fact) fact to an offence of which her husband is guilty by
receiving or assisting him in order to enable him to
escape punishment; or by rece iving or assisting in her
husband’s presence and by his authority another person
who is guilty of an offence in the commission of which
her husband has taken part, in order to enable that other
person to escape punishment ; nor does a husband
become an accessory after the fact to an offence of
which his wife is guilty by receiving or assisting her in
order to enable her to escape punishment.

 See

Rex vs. Mutono s/a Luigo and another (1936) 3 EACA (Sir Joseph Sherida n CJ,
Dalton CJ and Hearne J)

Where it was said that in the case of an accessory after the fact it is necessary that the
offence should be complete at the time the assistance is given. In cases of murder or

26
manslaughter, one does not become an accessory a fter the offence, even if he receives or
assists the delinquent, unless or until death occurs.

 In

Rex vs. Okuoyo s/o Ocharo and another KLR 25 (Sir Jacob Barth CJ)

The court declined to find that the one of the accused was an accessory after the fact. H e
had assisted the other accused driven st olen cattle, but there was no evidence that he
received or assisted him in order to escape punishment. Ln the opinion of the court there
was no evidence that he was an accessory after the fact, for the basis of the offence is that
the person charged assisted the principal offender escape justice.

 The former Court of Appeal for Eastern Africa in

Paskazia d/o Kabaikye vs. Reginam (1954)21 EACA 359 (Sir Newnham Worley Ag P,
Sir Enoch Jenkins Ag VP and Briggs JA)

Stated that to support a charge of receiving or assisting an offender there must be some
act proved to have been done to assist the felon personally — some active steps taken
with the object of hindering his apprehension, trial or punishment. In this case, t he
accused was charged with the murder of her co -wife, at a time when their husband was
away in jail. Neighbours had heard what was described as a ‘strangled throaty cry’ in
the course of one night from a banana plantation near the house. The following mor ning
when the person who usually looked after the husband’s affairs come to the home and
enquired from the accused about the whereabouts of her co -wife, he was informed that
she had left very early that morning. The co -wife was never seen alive again. Six months
later her skeleton was found in a rubbish pit some ten feet from the house. The cause of
death was not established. The accused was convicted as an accessory after the fact to
her co-wife’s murder, but on appeal it was held that giving false informa tion in answer to
enquiries does not make one an accessory after the fact even if the information deflects
the course of the inquiry from the actual offender.

 It was stated in

Wanja Kanyoro Kamau vs. Republic (1965) EA 501 (Crabbe, Duffus and Spry JJA)

That a passive attitude following the commission of a crime will not ordinarily make a
person an accessory after the fact; neither does the non -reporting of a crime.

 In

Rex vs. Saidi Nsubuga s/o Juma and another (1941) 8 EACA 81 (Sir Joseph Sheridan
CJ, Sir Norman Whitley CJ and Sir Henry Webb CJ)

27
It was said that a person who helps hide a dead body, knowing that the deceased had been
murdered could be an accessory after the fact to the murder, because his act makes it more
difficult for the investiga tors to trace the murderer with the result that the murderer may
escape punishment.

 See also

Rex vs. Ndundu Mwarachubi and others (1948) 15 EACA 101 (Sir Barclay Nihili Ci,
Edwards CJ and Sir John Gray CJ).

 See also

Kambi and three others vs. Republic (1989) KLR 495 (Madan, Law and Potter JJA)

Where it was held that a prosecution witness was an accessory after the fact of murder, as
he hid a blood-stained panga which had been used to kill the victims and that although he
had fore knowledge of the int ended crime and knowledge after its commission, he had
taken no steps to prevent its commission or to give information to the authorities that it
had been committed.

 In

Gathitu s/o Kiondu vs. Reginam23 EACA 526(Sinclair YP, Briggs and Bacon H A)

It was held that a person, who buries a murdered man out of fear for his own life, cannot
be said to have assisted the murderers. It was stated that the question whether assistance
given to a murderer after the crime makes the assister an accessory after the fact depends
not on the intention but on the motive with which the assistance is given.

 In

R vs Lifa s/o Mahega l3 EACA 102

It was stated that failure to report a felony does not make one an accessory after the fact
to that offence.

 However, in the Tanzanian case of

Urari vs.R 1 TLR 368

It was held that a receiver of stolen property may be an accessory after the fact to the
theft.

 In

28
Rex vs. SaidiNsubuga s/o Juma and another (1941) 8 EACA 81 (Sir Joseph Sheridan
CJ, Sir Norman Whitley CJ and Sir Henry Webb CJ)

It was held that an accessory after the fact to murder may be convicted as such even though
no one has been convicted of murder provided that the evidence supports such a
conviction.

 See also

Uganda vs. Kalokole (1972) BA 313 (Saied J)

Where the accused did not participate in the killing, but gave personal assistance to the
actual killer in hiding the body in a swamp. He was acquitted of murder and convicted of
being an accessory after the fact to murder.

 See also

Nkabanemeheto s/o Masakura vs. R (1959) BA 598 (Sir Kenneth O’Connor P, Gould
and Windham JJA)

Where the appellant hid the spear used in the commission of the crime.

 In

Rex vs. Vishawanath Vishnu Dabholkar 102 (Sir Joseph Sheridan CI, Sir No rman
Worley CJ and McRoberts J)

The court held that there may be circumstances in which a conviction for being an
accessory after the fact to an unknown principal felon can be had, but on the facts of the
case there was no evidence upon which the court could find that the appellant ha d
assisted an unknown felon to enable him escape justice.

 This decision was followed in

Rex vs. Yonasani Egalu and others (1942) 9 EACA 65 (Sir Henry Webb CJ, Wilson J
and McRoberts H.

Where it was held that if it sufficiently established that a murder has been committed by
someone, even though that person has not been convicted or even found, then another can
be convicted as an accessory after the fact to that murder, provided that the evidence
supports such a conviction.

 Contrast with

Muriu s/o Wamai and others vs. Reginam (1955) 22 EACA 417 (Sir Barclay Nihill P,
Sir Newnham Worley VP and Sir Enoch Jenkins JA).

29
  1n

Nkabanemeheto s/a Masakura vs. R (1959) EA 598 (Sir Kenneth O’Con nor P, Gould
and Windharn JJA)

It was held that where the convicti on of the principal is subsequently quashed it would be
repugnant to convict the accessory of assisting or receiving the principal, knowing him to
have committed murder, when that person has been held to be not guilty.

 It was, however, held in

Velezi Kashizha s/o Madagede vs. Reginam (1954) 21 EACA 389 (Sir Barclay Nihill P,
Sir Newnham Worley VP and Briggs JA)

That the offence of being an accessory after the fact to murder is minor to, but not
cognate with murder.

 See

R vs. Sumbuso and others (1948) 15 EACA 99

AND

Robert Ndecho and another vs. Rex 171 (Sir Barclay Nihill P. Sir Newnharn Woridy
VP and Lockhart-Smith IA)

 According to the court in

Githae s/a Gathigi vs. B 23 EACA 44O

An accessory after the fact is an accomplice. Where such an accessory after the fact gives
evidence, such evidence must be corroborated.

 See

Davies vs DPP (1954) 1 ALL ER 507

 An accessory after the fact is an accomplice.Where such an accessory after the

fact gives evidence, such evidence must be corroborated as pointed out in.

Singh vs. R (1960) BA 638

 In

30
Rex vs. John s/o Ngona and three others (1944) 11 EACA 119 (Sir Joseph Sheridan
CJ. Sir Norman Whitley CJ and Sir John Gray CJ)

It was stated that the mere fact that a witness is an accessory after the fact does not itself
make him an accomplice in need of corroboration.

 In

Rex vs. Erunasani Sekoni s/o Eria and another (1947) 14 EACA 74 (Sir C Graham
Paul CJ, Pearson and Ainsley JJ)

It was stated that there is no rule of law or practice which requires the ev idence of
accessories after the fact to be corroborated.

 See also

Muriu s/o Wamai and others vs. Reginam ( 1955) 22 EACA 417 (Sir Barclay Nihill P,
Sir Newnham Worley VP and Sir Fnoch Jenkins JA).

 But in

Rex vs. Kinyangabwaru s/a Matasa (1942) 9 EAC A 90 (Sir Joseph Sheridan CJ, Sir
Norman Whitley CJ and Sir Henry Webb CJ)

It was stated that the mere fact of a person being an accessory after the fact of murder or
any other offence cannot of i tself make him an accomplice.

 See also

Rex vs. Nanta s/o Mdimi (1944) Ii EACA 83 (Sir Joseph Sheridan CJ, Sir Norman
Whitley Ci andJohn Gray Ji)

 An accomplice is a person concerned with another in the commission of a crime.

 An accessory after the crime may know nothing whatever of the commission of the
crime, until the offender after f1eein g from justice informs the accessory of the
same while seeking shelter, comfort or assistance.
 In such case, the person informed of the crime by the offender would be an
accessory, but not an accomplice.
 It would appear that the decision in

Kirira vs. Republic (1983) KLR 333 (Sachdeva J)

Is not good law, it was held that if the accused did not know of the offence, in this case a
theft, at the time of its commission until after it had been committed, he was not a principal
offender but an accessory after the fact. The evidence on record showed that the appellant
in that case did not know about the theft in question when it was committed

31
but he joined other persons in the vehicle carrying the money stolen and later got his share
of the loot. It would appear that he did not assist the principal offenders in any way.
Apparently he was an accomplice, but not an accessory after the fact.

 The Penal Code does not provide for accessories before the fact, but such suspects
are persons who offer assistance to the actual perpetrators before the commission
of the offence.
 This could take the form of providing information, counsel or equipment or
facilitation of any sort to them.
 According to

Wanja Kanyoro Karnau vs. Republic (1965) B A 501 (Crabbe, Duffus and Spry JJA)

such persons are principal offenders.

 See

Sita Zatio vs. R (1957) BA 455

 1n

Rex vs. Biguli s/o Lwemera and another 115 Nihil1 CJ, Sir G Graham Paul CJ and
Edwards CJ)

The first appellant had been convicted of m urder by burning down a house with his victim
inside. The second appellant was convicted as an accessory before the fact by counselling
and procuring the first appellant to carry out the crime. The court found that the second
appellant was not an accessory after the fact of murder. He had only advised the first
appellant to bum the deceased’s house because he believed that it was the deceaseds wife
who had caused the death of some of the children of the first appellant by witchcraft. There
was no evidence t hat the counsel had anything to do with causi ng death, but to commit
arson.

 In the English case of

R vs Bainbridge (1960) 1 QB 129 (1959) All ER 200

Tthe suspect supplied thieves vith oxygen cutting equipment for breaking into a bank. It
was held that he was an accessory before the fact if he knew that the equipment was going
to be used for some kind of breaking, even if he did not know what particular breaking.

32
 6. ACCOMPLICES & CONSORTEES
 Criminal association is punishable.
 Complicity and consortrnent refer to those situations where the accused person
associates with the actual perpetrators of an offence in circumstances which give
rise to a presumption that there was common intention o r design to commit an
offence.
 It was said in
Barugahara vs. Uganda (1969) BA 72 (Sir Udo Udoma CJ)

That the daughter of the appellant with whom he had an incestuous relationship was an
accomplice.

 See

James Randika Mango vs. The Queen KLR 280 (Sir Kenneth OConnor CJ and de
Lestang J)

 1t was stated in

Watete vs. Uganda (2000) BA 559 (Oder, Tsekooko, Karoko ra, Mulenga and
Kikonyogo JJSC)

That a person is an accomplice if he participated as a principal or accessory, in the

commission of the offence.

 It was stated in

Rasiklal Jamnadas Davda vs. Republic (1965) BA 201 (Newbold Ag VP, Crabbe and
Spry JJA)

That accomplices fall into two general categories: one, those who have confessed to
participation in the commission of a crime by pleading guilty or by being convicted of it,
and, two, those who have not been br ought to court, but whose participation can be
deduced from evidence tendered in court.It is the evidence of this second category which
should be corroborated.

 In

Kambi and three others vs. Republic (1989) KLR 495 (Madan. Law and Potter JJA)

A witness was found to have been an accomplice, because he had foreknowledge of the
intended crime and he had accepted part of the proceeds of the crime.

 This was echoed in

33
Watete vs. Uganda (2000) BA 559 (Oder, Tsekooko, Karokor a, Mulenga and
Kikonyogo JJSC)

Where it was stated that an accomplice is a person who has participated in the commission
of an offence as a principal or an accessory, and that the clearest case of an accomplice is
where a person confesses to the participation in the offence, or has been convicted of the
offence, either on his own plea of guilty or on the court finding him guilty after trial. The
court may also find a person to be an accomplice from the evidence recorded in court.

 See

Katana and another vs. Republic (1986 -1989) BA 250 (Kneller, Hancox JJA and Platt
Ag JA)

 In

Wanja Kanyoro Kamau vs. Republic (1965) EA 501 (Crabbe , Duffus and Spry JJA)

It was said that while a person who aids and abets the commission of a crime or assists
the guilty person escape punishment is always an accomplice; a person who merely
acquiesces in what is happening or who fails to report a crime is not normally an
accomplice.

 See also

R vs. Lifa (1946) 13 EACA 102.

 In

Zubeiri Rashid vs. R (1957) EA 455

It was said that mere passivity may amount to abetment in special circumstances and
result in conviction as a principal offender.

 Contrast with

Rex vs. Kinyangabwaru s/o Matasa (1942) 9 EACA 90 (Sir Joseph Sheridan CJ, Sir
Norman Whitley Ci and Sir Henry Webb CJ).

 See also

Mohamed Farah Musa alias Shaur vs. Reginain 469 (Sir Newnham Worley F, Sinclair
VP and Briggs JA)

And

34
Rex vs. Munduli s/o Chui and others (1948) 15 EACA (Nihill CI, Sir C Graham Paul
CJ and Thacker J).

 In

Matangule and another vs. Republic (1990 — 1994) EA 318 (Ramadhani, Mnzavas
and Mapigano AJA)

The first appellant escorted the deceased, a twelve year old, blindfolded, to a house where
the second appellant was waiting with other men; then he got out to chase away her
playmates and thereafter made himself unavailabl e, and the girl was later found dead with
her hymen raptured. The court found that the first appellant was complicit in what
happened to the deceased, as he is the one who escorted her to the house where she met
her fate, chased away her mates and convenie ntly made himself scarce. The first appellant,
in the opinion of the court, did not dissociate himself with what he had himself helped to
facilitate, and therefore he was an accomplice of the other appellant .

 In

M’Kanyoro.vs. R (1962) BA 110

It was held that a person who is compelled to do a criminal act is not an accomplice .

 In

Dhirajlal Ramji Khetani vs. R (1957) EA 563 (Sir Newnham Worley P, Briggs Ag VP
and Forbes JA)

The appellant was accused of furnishing a number of witnesses for the prosecuti on with
forged entry permits and a forged re -entry pass for the purpose of immigration
regulations. Evidence was adduced to the effect that these witnesses had each paid
certain sums of money for the documents supplied to them. It was held that these
witnesses were accomplices, as an inference was irresistible that the witnesses must have
contemplated that the documents would only be forthcoming in consequence of some
crime committed by the appellant and the witnesses had in effect instigated and procured
the commission of the forgeries.

 See also

Haji Moledina and another vs. R (1960) EA 678 (Sir AudleyMcKisack CJ)

 In

Kilili vs The Republic (1977) KLR 80 (Trevelyan and Todd JJ)

35
It was held that an agent provocateur may teclmically be an accomplice in the
commission of an offence.

 This position appears in tune with the decision in the old case of

Rex vs. Katemi and another EALR79 (Barth J)

Where the court deprecated the practice of police traps and indicated its disfavour with
convictions for an offence the commission of which is procured by means of a police trap;
and stated that the evidence of police witnesses who abetted the commission of the offence
who in any event are themselves criminally liable for its commission.The court explained
that the reason for caution as being that there is the danger that an innocent person may
be induced to commit an offence which he would not have committed except for the
instigation received at the hands of the police. In the opinion of the court, the trap often
creates the offence.

See also

Habib Kara Vesta and others vs. Rex 191 (Abrahams CJ Ag P, Lucie -Smith Ag CJ and
McDougall Ag CJ).

 The Court of Appeal, however, in

Maina vs. Republic (1976-1985) EA 286 (1-lancox JA, Chesoni and Nyarangi Ag JJA)

Took a different view. It held that an agent provocateur, such as a police informer, whose
motive in instigating an accused person to the commission of the particular offence is
detection of crime and capture of offenders and not perpetration of offences, not t he
transgression of the law, but securing evidence for the enforcement of public justice, and
his activities in aid of fighting against crime are those of an agent of justice, and he is
therefore not an accomplice and corroboration of his evidence is not necessary.

 See also

Josphat Mulwa Mukima vs The Republic (1977) KLR 5 (Law Ag P, Mustaph Ag VP

and Musoke JA)andJohn Raymond Var vs. R (1961) BA 320 (Sir Ralph Windham CJ).

 In

Rex vs. Mulji Bhanji 108 (Nihill CJ, Sir G Graham Paul CJ and Edwards CJ)

It was held that to render a person an accomplice it is necessary to show he was guilty of
the offence charged.Evidence of accomplices who are called as witnesses requires
corroboration, although the court may convict without such corroboration so long as it
has carefully directed its mind to the danger of convicti ng without such corroboration.

36
  See

Joginder Singh vs. Reginam 597 (Sir Ronald. Sinclair Ag P> Bacon A g VP and Lowe
J)

Sheikh Haji Ali and another vs. Rex EALR 109 ( Hamilton and Bonham-Carter JJ)

Kamau vs. Republic (1981) BA 508 (Madan, Law and Miller JJA)

Rex vs. Ndambiawa Wandwu (l937) EACA (Sir Joseph Sheridan CI, Sir Roger Hall
and Dalton CJ)

RaojibhaiGirdharbhai Patel and another vs. Reginam 536 (Sir Newnhain Wor ley P,
Briggs IA and Forbes 1)

Barugahara vs. Uganda (1969) BA 72 (Sir UdoUdoma CJ)

Josphat Mulwa Mukima vs The Republic (1977) KLR 5 (Law Ag P , Mustafa Ag VP

and Musoke JA)

Canisio s/o Walwa vs. Reginam 453 (Sir Nwenham Worley P, Bacon JA and Mahon
Ag CJ)

Kitchingeri and others vs. Rex (1908) 3 EALR 1

Mirza s/o Karma vs. Rex EALR 81 (Hamilton and Bonham Carter JJ)

Rex vs. Manilal lshwerlal Purohit(1952) EACA (Sir Joseph Sheridan Ci, Sir Norman
Whitley CJ and Sir Henry Webb CJ)

 and

Uganda vs. KhimchandKalidas Shah and two others (1966) EA 30 (de Lestang and
Law JIA).

 See also

The Republic vs. Zakaria Shilisia Agweyu( 1980) KLR 62 (Sir James Wicks CJ, Miller
and Potter JJA).

 1n

Lento Mhinila vs. R (1963) EA 9. (Windham CJ)

37
It was held that the nature of corroborati ve esidence is that which implicates the accused
by connecting or tending to connect him with the crime.

 See

Mohamedlsumail vs. Republic (1975) LRT 144 (Bramble J)

 1t was stated in

Rasiklal Jamnadas Davda vs. Republic (1965) EA 201 (Newbold Ag VP, Crabbe and
Spry JJA)

That it is the evidence of accomplices who have not been brought to court, but whose
participation can be deduced from evidence tendered in court that should be corroborated.

 See also

Watete vs. Uganda (2000) BA 559 (Oder, Tsekooko, Karokora, Mulenga and Kikonyogo
JJSC)

 In

Joseph s/o Jeremiah (1954) 21 EACA 279 (Sir Norman Worley Ag P, Sir Eno ch
Jenkins Ag VP and Briggs JA)

It was held that if in a criminal trial the court fails to warn itself of the rule of practice
having the force of law that he may convict on the evidence of an accomplice but that it is
dangerous to do so unless it is corroborated, the conviction will be quashed even if there
is corroboration, unless there has been occasioned no failure of justice.

 See also

Pyaralal Melaram Bassan and another vs. P (1961) BA 521 (Sir Alastair Forbes VP, Sir
Trevor Gould and Crawshaw JJA)

Wachira and others vs. The Republic (1979) KLR 293 (Trevelyan and Hancox JJ)

Patric Mkonji Mtambo vs. Republic Nairobi CACRA No. 170 of 19 88 (Gicheru, Lakha
JJA and Bosire Ag JA)

Muhiru vs. Republic (2006) 1 EA 221 (Omolo, O )

 And

38
 Rex vs. Kipkering Arap Koske and another (1919) 16 EACA 135 (Edwards CI, Sir
John Gray CJ and Ainley I).

 In

Uganda vs. Clement W Nangoye (1975) IICB 252 (Nyamuchoncho 3)

It was held that before the court convicts on the uncorroborated evidence of an accomplice,
the court must consider t he credibility of the witness and the relation of such witness to
the offence and the part played by him in the commission of the offence. It was stated that
it is settled law that an accomplice must be believed first before his testimony can be acted
upon as an exception to the rule.

 See also

Rwebangira vs. Republic (1975) EA 94 (Lugakingira Ag J)

 See also

Wanja Kanyoro Kamau vs. Republic (1965) EA 501 (Crabbe, Duffus and Spry JJA)

Fabiano Obeli and others vs. Uganda (1963) PA 622 (Sir Clement de Lestang, Spry
and Law JJA)

Nguku vs. Republic (1976 1985) EA 387 (1 -Jancox JA, Platt and Gachuhi Ag JJA)

Rex vs. Taibali Mohamedbhai(1943) 10 EACA 60 (Sir Joseph Sheridan CJ, Sir
Norman Worley CJ and Mark Wilson Ag CJ)

 And

Rwebangira vs. Republic (1975) PA 94 (Lugakingira Ag J).

 Contrast with

Rex vs. Ali bin Fazil EALR 55 (Hamilton J)

 Section 89(2) of the Penal Code mak es consorting with a person who is in
possession of a firearm and allied weapons an offence, which makes it an offence
to associate with certain categories of offenders.

PENAL CODE FACTS Interpretation

CODE
89 PART IX- 89. (1) Any person who, without reasonable Makes consorting
UNLAWFULL excuse, carries or has in his possession or under his with some one who
control any firearm or other offensive weapon, or any
ASSEMBLIES AND ammunition, incendiary material or explosive in carries a weapon an

39
 OTHER OFFENCES
(Posession of Fire Arms)
circumstances which rais e a reasonable presumption offence
that the firearm, ammunition, offensive weapon,
incendiary material or explosive is intended to be used
or has recently been used in a manner or for a purpose
prejudicial to public order is guilty of an offence and is
liable to imprisonment for a term of not less than seven
years and not more than fifteen years.
(2) Any person who consorts with, or is found in
the company of, another person who, in contravention
of subsection (1), is carrying or has in his possession or
under his control any firearm or other offensive weapon,
or any ammunition, incendiary material or explosive, in
circumstances which raise a reasonable presumption
that he intends to act or has recently acted with such
other person in a manner or for a purpose prejudicial to
public order, is guilty of an offence and is liable to
imprisonment for a term not exceeding five years.

 In

Gathere s/o Ndegwa vs. Reginam (1954) EACA 220 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Briggs JA).

It was held that it was an essential ingredient of the offence of consorting, defined in the
Emergency Regulations, 1952, that from the circumstances of consortment a reasonable
presumption should arise that the per son consorting intended or was about to act or
recently acted with the person with whom he had consorted in a manner prejudicial to
public safety or preservation of public order. In the other words proof of consortment
entitles the court to presume an inte ntion on the part of the accused to act jointly with his
accomplice or to presume that the accused previously acted jointly with his accomplice.

 See also

Ndungu s/o Nganga vs. Reginam (1955) 22EACA 402 (Sir Newnham Worley VP, Sir
Enoch Jenkins IA and Briggs JA)

Where it was held that if two persons are charged in the sa me count with consorting with
a gunman, and one is acquitted, the other one can be convicted on that count.

 See also

Karumi s/o Githui vs. Reginam (1954) 21 EACA 249 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Briggs JA).

 In

40
Wanjiru d/o Thairu vs. Reginam (1955) 22 EACA 456 (Sir Barclay Nihill P, Sir
Newnham Worley VP and Briggs JA)

The appellant had been convicted of consorting with armed persons contrary tothe
Emergency Regulations, 1952. It was found that she had assisted an armed Mau Mae gang
in its terrorist activities by associating with its members and by cooking for them. An
appeal against conviction was dismissed. It was held that any one actively assisting the
Mau Mau gang in its activities was guilty of consorting.

 In

Gathega s/o Waweru vs. Reginam (1954) 21 EACA 349 (Sir Newnham Worley AgP, Sir
Enoch Jenkins AgVP and Briggs JA)

It was held that knowledge is the mensrea required for consortment, that the accused
knew that the person he was consorting with had possession of ammunition.

 See also

Motemi s/o Kathu and another vs. Reginam (1954) 21 EACA 329 (Sir Newnharn
Worley Ag P, Sir Enoch Jenkins Ag VP and Sir Kenneth O’Connor CJ)

7. VICARIOUS LIABILITY
 The principle of vicarious liability does not apply in criminal law, unless a statu te
expressly provides for it.
 Vicarious Liability is A master is liable for the wrongful acts of his servant.

 See

Muwonge vs. Attorney-General of Uganda (1967) LA 17 (Newbold P, Sir UdoUdoma

CJ and Duffus IA)

Where the government of Uganda was held liable as master for the firing of a shot by a
policeman, which killed the appellant’s fire. It was held that the firing of the shot was
done within the exercise of the policeman’s duty for which the government was liable,
even though it was wanton, unlawful and unjustified.

 This point was made in

Uganda vs Ndyanabo (Wambuzi CJ)

Where it was held that there is no vicarious liability in criminal law without expr ess
provision. The accused had pleaded guilty to selling salt at more than the controlled
price, but stated in mitigation that it was his son who had by mistake overcharged the
salt. The accused was convicted. On revision, the conviction was quashed; the accused
had denied the offence and suggested that it had been committed by someone else.

41
  In

Taj Din vs. Rex 42 KLR (Sir J W Barth CJ and Stephens J)

It was said that apart from statute there is no rule of law w hich makes a person criminally
liable for the acts of his servants. On the facts of the case, the appellant was found not
criminally responsible for the a cts or omissions of the porters.

 In

Rex vs Arap Kipta1am EALR 102 (Hamilton and Barth JJ)

It was held that a man cannot be criminally prosecuted for the action of his wife where
there is no proof of abetment.

 Compare with

Prince Kesi Kagoro vs.R (1958) PA 673 9Sir AudleyMcKisack CJ ).

 See also

Ismail Abdulrehman vs. Reginam (1953) 20 EACA 246 (Sir Barclay Nihil, Sir
Newnharn Worley VP and Mahon J)

 It would appear the principle of vicarious liabilit y applies to cases of strict or

absolute liability.
 In
Rex, through ARP commandant Nakuru vs Alfred Fielding KLR (Sir Joseph Sheridan
and Hayden J)

It was held on the facts of the case that the duty to ensure compliance with the relevant law
was absolute, and the owner of the subject premises was responsible for any contravention
of the regulations even though another person, the actual or true offender, was also
responsible in law.

 See also

Hamed Abdalah vs. Republic (1964) LA 270 (Biron J)

And

George Buwanika and another vs R (1957) LA 279 (Bennett 3).

42