Criminal Liability Notes

B.B Bakampa’s Notes: bcaint3@yahoo.
com
Lecture Notes
Criminal Liability
OFFENCES AGAINST THE PERSON
HOMICIDES
Homicide means the killing of another person and it is lawful if carried out in-
(i) Execution or advancement of justice. Under Chapter 4, Art 22 of the Constitution, 1995, no person should be
deprived of his or her life except in execution of a judgment, confirmed as to conviction and sentence by the
Supreme Court.
(ii) In reasonable defence of property and person. Section 15 of the Penal Code Act
(iii) As a result of an accident or misadventure except if there is negligence.

If the homicide is unlawful, the offence may be Murder undersection-188 of the Penal Code Act, Manslaughter
under section 187, Infanticide under section 123 or causing death through reckless acts.
In each case, it is only unlawful homicide if-

a) The deceased dies within a year and a day of the act or omission causing death. Section 198 of the Code
refers.
The original justification for this rule was to avoid the difficulty of tracing the cause of death when there is a long
interval between the infliction of the injury and the death. Leading Criminal law authors now submit that in the
present state of medical science, the rule can only be justified on the ground that one who has injured another
should not remain indefinitely at risk of prosecution for murder. But the rule remains valid both for murder and
manslaughter. In R V Dyson [1908]2 KB 454, the accused inflicted injuries on a child in November 1906 and
again in December 1907. The child died in May, 5 1908. The accused was indicted for manslaughter. The judge
directed the jury that they could find the accused guilty if they considered death to have been caused by the
injuries inflicted in November 1906. The Appeal Court set aside the conviction, holding that “it undoubtedly the
law of the land that no person, can be convicted with manslaughter where the death does not occur within a year
and a day after the injury was inflicted, for in that event, it must be attributed to some other cause.
Time runs not from the date of the accused’s act but from that of the infliction of the injury where these are
different e.g. the accused plants a bomb on January 2, 2000, the bomb goes off on January 2, 2002 and gravely
injures the victim. The accused is guilty with homicide if the victim dies before January 2, 2003.
b) In the case of a child, if it is born in a living state, that is when it has completely proceeded in a living state
from the body of its mother, whether it has breathed or not and whether it has an individual circulation, or not and
whether the naval string is severed or not that is to say, a child to be a victim of murder, the child must be wholly
expelled of the mother’s body and it must be alive. See section 197 of the Penal Code Act. The child, it is
commonly said must have an existence “Independent of the mother”. The tests of individual existence that the
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B.B Bakampa’s Notes: bcaint3@yahoo.com
Courts have accepted are that the child should have an individual circulation and should have breathed after birth.
But Park, J in R.Vs. Brayn 1834 said, “It is not essential that it should have breathed at the time it was
killed as many children are born alive and yet do not breath for sometime after their birth.” This appears to be
more consistent with our section 197.
A question that has not engaged the Court’s mind is the moment at which life ends i.e. is a victim already dead
and therefore incapable of being murdered. Is the victim in a hopeless condition, and only being kept alive by
some apparatus? The current medical view is that the test is one of brain death and that this can be diagnosed
with certainty.
C) The killing must be through an unlawful act.

In Marwa S/o Robi vs. R [1959] EA 660, the appellant had killed the deceased by spearing him when the
deceased had come to collect cattle which he claimed. The appellant had raised the defence of defence of
property which for reasons set out in the judgment failed. The unlawful act was the use of excessive force and the
appellant was convicted of murder. In Olendito vs. R EACA 61, the appellants beat their sister to death using
sticks about the thickness of one’s little finger. She was beaten in accordance with native custom that allowed
chastising women who refused to return to their husbands. They would have been convicted with murder but for
their “mentality and stage of civilization” which the Court found was not in such a state as to have enabled them
to appreciate that what they were doing was unlawful. In Defasi Mugayi vs. R [1965] EA607, the appellants had
been incited by a chief to beat suspected thieves to death. Upholding their conviction for murder, the Court of
Appeal stated that none of the appellants could shelter behind the invitation or order of a chief which they must
have known, was not a lawful order which they were bound to obey and they must have known as much as the
Chief said that he would be responsible and they knew that what they were doing was wrong. In Paul s/o Mabula
Vs.R [1953] 20 EACA 207, the appellant killed his wife as a result of an act intended to kill himself, she
endeavoring to save him from cutting his throat. He alleged that the wound inflicted on his wife was accidental
and therefore there was no malice aforethought. It was held that where as a result of an act by an accused person
intended to kill himself and another is killed, he was properly convicted of murder even if he did not intend to kill
that other person. In RVs. Semimi [1949] ALLE.R 223, while walking with a woman, the appellant passed three
men one of whom made a remark about the woman which the appellant resented. He went back, knocked down
one of the men and in the ensuing scuffle, he killed one of them by stabbing him through the heart with a knife
which he was carrying. Three weeks to the incident, he had showed one Ashley a knife with a blade about 8
inches and said that he would use it if attached by more than one person. On being charged with murder of the
deceased, he pleaded that the killing was by chance- medley and amounted to manslaughter not murder. There
was evidence that he had been restrained by standers and being a pugilist, wretched himself free and drew his
knife. It was held that the doctrine of chance – medley no longer applies in the law of homicide. Appellant was
found guilty of murder, the Court holding that there was not much provocation to justify the use of such deadly
weapon. It was a dreadful and cowardly act of revenge on a man who had assisted the appellant’s first victim and
was prepared to repel an attack on himself.
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For a person, to be convicted of any of the unlawful homicides, there must be proof of a dead body. A
fundamental rule of criminal law and procedure is that no person shall be called to answer an accusation or be
involved in the consequence of guilt without satisfactory proof of the corpus delicti, either by direct evidence or
irresistible ground of presumption. The facts which form the basis of the corpus delicti ought to be proved wether
by direct testimony or by presumptive evidence of the most cogent and irresistible ground or by clear and
unsuspected confession of the party. In the Kimweri case – commenting on the request made by the prosecution to
Court to find that the wife was dead, Court had this to say.
“While death may be proved by circumstantial evidence, without evidence as to the production of the body of the
dead person and without any evidence of the person who saw the body of the dead person and without confession
by a person accused that he caused the death yet the Court asked to find in a murder charge that a person is dead
in a circumstance which we have stated, the evidence on which the Court is asked to infer the death must be such
as to compel the inference of death and must be such as to be inconsistent with any reasonable theory of the
alleged deceased being alive with the result that taken as a whole the evidence leaves no doubt whatsoever that
the person in question is dead. We would give as an example of what we mean the case of a person, on a ship in
the middle of the ocean. Evidence is given that a scream was heard and a splash was heard, but there is no
evidence that any particular person was seen to go overboard. The ship is searched and subsequently a person to
whom evidence is given that that person was a passenger on that ship is found missing. In those circumstances
although there was no evidence of a body, although no one came forward and said that the body of the alleged
deceased was seen and although there was no confession by anyone, nevertheless those circumstances are such as
to compel the inference of death.
Some confession in cases of murder, are not enough to convict a person.

In R vs. Kersey, 21 Cox 690, the charge was murder of an infant and except for medical evidence that the accused
had recently delivered; there was no other evidence but an extra judicial confession. The confession alone was
not considered sufficient evidence that the child had a separate existence from its mother. On these facts, the
accused was convicted with the offence of concealment of birth. Compare the case with that of R vs. Pettagazi 4
WR 19. The accused was convicted of murder. There had been a confession to a police magistrate by Petta and 2
others. At the session, Petta made a statement amounting to homicide altogether. The confession had been made
in the first place to a police officer in consequence of which he had found the grave and a sign of recent
exhumation, but no dead body was found in the grave. In the grave however, there were two pieces of cloth
identified as having been worn by the deceased on his disappearance. The accused was convicted of murder on
the basis of evidence other than his own confession. In R vs. Oufrejezyk [1955] 1 ALL ER 247, the appellant and
one S owned a farm in partnership. Their farming venture was a failure and in need of money. The deceased
wanted to break off his partnership with the appellant. The last occasion when S was seen alive by anyone other
than the appellant was on December 14, 1953 when S took a horse to the local blacksmith to be shod. Thereafter
S disappeared completely and his body was never found. When the appellant was called to give an account of the
disappearance, he told a story of the departure of S which was improbable and was inconsistent with the prior
account given by the appellant to the officer who had gone to the farm on December 18, 1953. The appellant
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wrote contemporary letters explicable only on the footing that he never expected S to return and put forward a
proposition to one “P” which if correct out would have involved S being impersonated. Further, the appellant
endeavored to persuade the blacksmith to say that S had taken the horse to be shod on December 17, 1953.
Minute amounts of the blood of S were found in the walls and ceiling of the kitchen in the house occupied by the
appellant. The appellant was charged with the murder of S. The issue was whether or not there was proof of what
the law calls “corpus delicti” (first a crime has been committed and the man is death and that his death has been
caused by a crime.). It was held that at a trial of a person charged with murder the fact of death leading to one
conclusion is provable by circumstantial evidence not withstanding that neither the body nor any thing of the
body has been found and that the accused has made no confession of any participation in the crime. Before he can
be convicted, the fact of death should be proved by such circumstances as render the commission of the offence
certain and leave no ground for reasonable doubt. The circumstantial evidence should be so cogent and
compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted
for. S had died not of natural death and a corpus delicti had been established. The appellant murdered S. The
short principle established by this case is “On a charge of murder, the corpus delicti may be proved by such
circumstantial evidence as leaves open no other rational hypothesis than murder.” In Kimweri vs. R 1 E.A 452,
the appellant was charged with and convicted of murdering his wife from whom he had been separated and to
whom his petition for divorce had failed. Appellant was ordered to pay maintenance to his wife and in the
meantime, he had a liason with another woman. The appellant’s wife had disappeared from her room on a day on
which the prosecution alleged that the appellant had visited her in Moshi (TZ) and a few days earlier,, the wife’s
father received a letter purporting to come from one Kamau and stating that the appellant’s wife had gone to
Nairobi with Kamau, met an accident and died. No such accident on the contrary had happened. It was held that
although death may be proved by circumstantial evidence, that evidence must be such as to compel the inference
of death and must be such as to be inconsistent with any theory of the alleged deceased being alive, with the result
that taken as a whole, the evidence leaves no doubt whatsoever that the person in question is dead. The
circumstances in the present case raised considerable suspicion that the wife was dead but did not compel
resistibly the inference of death.
In the Kimweri case, there were technical problems in the way the evidence of the relevant circumstances were
proved. E.g. the contents of the Kamau letter were found inadmissible and the source of the letter was doubted.
Court said at Pg 454.
“Earlier we have referred to certain circumstances from which the death is to be presumed, we have said that
even if those circumstances were proved to be the circumstances in existence still we would not consider that they
pointed compellingly and irresistibly to the wife being dead. We would mention that we are satisfied that some if
not all of those circumstances were proved by evidence which was inadmissible. As far as the evidence of the
letter referring to the accident is concerned, what happened was that a Tanzanian witness gave evidence of the
result of inquiries given in Kenya. From these inquiries, he was informed that no such accident had happened and
no such person is dead. That evidence was inadmissible. The result is that the lack of truth of the contents of the
letter of November 18 upon which the prosecution so relied in order to prove the guilt of the appellant had not
been proved. We must also mention that the evidence of making the letter of November 18 which the appellant
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had proved, to be inadmissible evidence. The evidence was that the typewriter expert had compared the letter in
question with a sample handed to him which purported to come from the typewriter to which the appellant have
had access. The prosecution did not call the person who typed that sample. Thus there is no admissible evidence
that the letter was typed on a typewriter to which the appellant have had access. Finally, the letter itself is to say
the least doubtedly admissible. This is a letter which purports to be addressed to the wife’s father. It should have
been produced in evidence by the father or at least he should have been called to say that he received a letter and
that he handed it to somebody else who subsequently produced it”
In RV Abdullah 16 KLR 117, the accused was charged with the murder of the husband of the second accused. It
was proved that L had been missing from the home. The first accused had resided with L and his wife since 1933.
Two brothers of the deceased had made certain inquiries and gave evidence of an inconclusive character of
statements made between the accused to them. L’s certificate was found in his hands. No body or part thereof
could be discovered and there was no confession. It was held that where there is no evidence of corpus delicti and
the confession of the accused, such confession in the absence of evidence of confirmatory circumstances is not
sufficient to satisfy a conviction of murder or manslaughter.
MENS REA OF MURDER

This is traditionally called malice afore thought. This is a technical term with a technical meaning different from
the ordinary or popular meaning of the two words. The phrase, it has been said “is a mere arbitrary symbol for
the malice may have in it nothing really malicious and need never be really afore thought. Thus a parent who
kills a suffering child out of motives of compassion is malicious for this purpose and there is sufficient
aforethought if an intention to kill is formed only a second before the fatal blow is struck. Neither ill will nor
premeditation is necessary.
The meaning of the term is of utmost importance for it is the presence or absence of malice afore thought with
determines whether unlawful killings is murder or manslaughter. In R vs. Cunningham [1957] 2 Q B 396 It was
stated that malice is either an actual intention to do the particular kind of harm or recklessness as to whether such
harm will occur or not. Under Section 191of the PCA; malice now consists of an intention to kill any person
whether such person is the person actually killed or not i.e express malice. It also Comprises of Knowledge that
the act or omission, causing death will probably cause the death of some person whether such person is the person
actually killed or not although such knowledge is accompanied by indifference whether death is caused or not or
by a wish that it may not be. This is what is referred to as implied malice.
The Supreme Court has had opportunity recently to determine the scope of section 191 of the Penal Code Act, in
the celebrated case of Nanyonjo Harriet and Anor vs. Uganda. Crim. Appeal No 24 of 2002, decided in 2007.
The Court speaking through, Mulenga JSC criticized the Court of Appeal for basing a conviction for murder on
unproved evidence suggesting an intention to cause grievous bodily harm. In a characteristically robust
judgment, Mulenga JSC, held that the judicial precedents of DPP vs. Smith [1961] AC 290 and R vs. Tubere
[1945] EACA 63, which held that malice aforethought is defined as an intention to commit an unlawful act to any
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person , foreseeing that death or grievous bodily harm is the natural and probable result were irrelevant to the
instant case because, unlike the UK and Kenya from which the precedents originate, Uganda amended its code in
1970 and removed from the relevant section 186, (now 191) any reference to an “intention to cause grievous
harm” and “knowledge that grievous harm will probably be caused”.
Courts have also been very clear, that in cases of homicide, the intention and knowledge of the accused person at
the time of committing the offence is rarely proved by direct evidence. The Court finds it necessary to deduce the
intention or knowledge from the circumstances surrounding the killing, including the mode of killing, the weapon
used and the part of the body assailed. See Nanyonjo Harriet vs. Uganda and Uganda vs. Dr .Aggrey Kiyingi and
two others.
1. Express malice
This describes an intention to kill. Provided such an intention is proved it matters not whether the person killed is
the one intended or some other person. Thus if robbers lie in wait for A with the intention of killing him, it is still
murder in fact if they kill not A but B. Similarly where a husband gives a poisoned apple to wife and the wife
hands the apple to the child, the further is guilty of murder. Where a person intending to kill himself kills another
it is still murder. See Paul s/Mabula Vs R, where the Court of appeal gave two reasons for this view.
a) Suicide is a felony even though it cannot be prosecuted so that the killing is a killing in the course of
committing a felony entailing violence.
b) It is treated as transferred malice resulting into transferred murder.

If there is a fight with many participants and one man dies, each of the participants will be guilty of murder if it
can be proved that each had the common intention to kill. Common intention may be formed at the outset of the
crime expedition or it may arise spontaneously on the spur of the moment.
The Court of Appeal for East Africa has held that common intention generally implies premeditated plan, but this
does not rule out the possibility of a common intention during the course of events though it might not have been
present to start with. See Wanjiru vs. R Vol. 22 EACA 521. Thus where a gang sets out together to kill and a
person is killed by one member of the gang, all members of the gang are guilty of murder, where three persons set
out armed with lethal weapons with a common intention of stealing goats and one of them in order to fulfill their
purpose kills the custodian of the goats, all are liable to be convicted of murder. See R V Chebigon.
It is murder to kill in the course of a felony but it is uncertain whether a common intention to steal makes a gang
of thieves all responsible for death caused by one its members. What is certain is that there must be at least a
common intention to offer violence in pursuit of the common intention to steal. This common intention to use
violence may be inferred from the fact that a gang is armed with lethal or dangerous weapons even if one of them
is so armed. Where there is an intention to kill that intention can be presumed to continue throughout the course of
the action. See R vs. Ojambo s/o Nambio. The deceased was caught stealing in the appellant’s shamba and tied up
the appellant and beat the deceased so severally that on being untied he fell down and seemed to be dead.
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Appellant believing he was dead removed his body to a swamp. The deceased in fact was alive and died of
asphyxia resulting from the immersion in the muddy water. The immersion in water was so closely connected
with the beating as to constitute one continuous transaction, the cumulative effect of which was to cause death.
Accordingly, appellant’s offence was Murder. It would have been no defense to argue that the immersion in
water was not accompanied by malice aforethought for the beating and the immersion in water together
constituted the malice aforethought. In Thabo Mbeli vs. R [1954] 1 ALL E.R 377, the appellant had a pre-
arranged plan, they took a man to a hut and gave him beer and he became partially intoxicated. Later, they struck
his head and believing him to be dead took his body and rolled it over a cliff with an intention of making the
murder look accidental. In fact at the time, the man was not dead but died a few minutes in exposure during his
unconscious state of mind at the foot of the cliff. The question was whether these accused were guilty of the
offence of murder. Lord Reed held that there were two acts done separately, the first in the hut and another by
placing the body out. While the first was accompanied by malice aforethought, it was not the cause of death. The
second act caused death. It was difficult to separate the two acts which formed a series of acts because the accused
set to do all the acts to achieve a plan. Therefore it is wrong to say that because they were of mistaken belief at
one stage, their purpose thought had been achieved before it was and cannot escape the penalties of law.
2. Implied Malice
It is murder where a person does an act causing death that is intrinsically likely to kill and which he knows is
likely to kill although there is no evidence of express malice. Thus if a person sets fire to a house knowing or
having reasonable grounds for believing that a person is asleep inside, he is guilty of murder for the death, for he
knows that the probable consequence of his act will be to cause death. See Hyam vs. DPP and R. vs. Tirugurwa 10
EACA 44. It is immaterial whether the person against whom the act has been directed is the person actually killed
or whether it is somebody else provided that there was foresight of the consequences of his acts. It is also
immaterial that the accused did not want to cause death.
In Hyman vs. DPP, the appellant set fire to a dwelling house by deliberately pouring about ½ gallons of petrol.
The house contained four persons presumably asleep. She did nothing to alert them of the danger she had put
them in. Her act was that of jealousy against the owner of the house whom she believed to be engaged to a man,
she had temporally discarded. Two girls died due to the fire. Her defence was that she intended to frighten the
lady off the village and she did not intend to cause death or bodily harm. The issue was whether death resulted
from the direct intention to kill or willful doing of an act of which death is a probable consequence. It was held
that the appellant was guilty of murder when she set fire to a house, she should have realized that it was highly
probable that one or more of the inmates would suffer serious bodily harm in consequence of her act not limited
to harm of such nature as to endanger life.
In R vs. Serne, (1887) 16 Cox 331, it was held that a person who sinks a ship at sea of his own does not escape
liability for the drowning of passengers by hoping that they will be picked by a passing vessel. This is because a
man is presumed to know the natural and probable consequences of his acts unless the contrary is proved. In Hull
vs. R 1664, a workman, after shouting, ‘stand clear”, threw down a piece of timber from a house two stories high.
All the workmen, below moved except for one who was killed. It was held that “when a workman flings down a
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stone or piece of timber into the road and kills a man, this may either be misadventure, manslaughter or murder,
according to the circumstances under which the original act was done. If it were in country village where there
are a few passengers and he calls out all people to take care it is a misadventure only but if you were in London or
other popular towns where people are continually passing it is manslaughter, though he gives loud warning and
murder if he knows of their passing and gives no warning at all”
Knowledge that death is likely to result is enough.
In Mongola Vs. R [1963] R and N 291,the appellant abandoned his seven months child in a thicket sufficiently far
from the village so that its cries could not be heard and in such a place that a search would not readily discover it.
In upholding his conviction for murder, the Court applied the principle in R vs. Ward. In this case the judge had
directed a jury that when the prisoner did the acts he must as a reasonable man have contemplated that death or
grievous harm was likely to result. He was guilty of murder. In the case, the appellant as a reasonable man must
have known that death or grievous harm would probably befall a child abandoned in such a remote area.
3. Constructive malice.
There is also constructive malice, which is probably covered under section 191(b). Any reference to intention
inferred from the fact that the accused were taking part in the commission of another crime was equally removed
by the 1970 amendment. The law is not clear, where this type of malice aforethought falls. Nevertheless,
authorities establish that where it is killing in the course of burglary it is immaterial that a minor blow which
caused the deceased’s death was inflicted. In Sentali vs. R (1952) Vol. 20 EACA. 230, the appellant was convicted
of the murder of a woman as a result of violence inflicted on her by the appellant in the furtherance of his
committing a felony in her house. It was held that by virtue of S. 186 (c) of the Penal Code Act, if death is caused
by an unlawful act or omission done in the furtherance of an intention to commit a felony, malice aforethought is
established. Court said.,” in our opinion, the possession, by the appellant of cloth belonging to the deceased
coupled with a broken door and the disorder in the house all lend irresistibly to the conclusion that the
appellant’s purpose in entering the deceased’s house that night was to commit a felony if, then it was with this
felonious intention or purpose of his mind that the appellant offered violence to the deceased, it matters not what
degree of violence was used if the violence did in fact however unexpectedly or unintentionally cause
death……..In Uganda it is sufficiently if death be caused by an unlawful act or omission done in furthermore of
an intention to commit any felony”.
DEFENCES TO MURDER
These are categorized into partial and complete defences. A complete defence is one which if successfully raised
leads to the acquittal of the accused of the offence of murder. A partial defence has the effect of reducing the
offence to manslaughter. Generally the defences to murder include diminished responsibility, under section 194
of the Act, Mistake of fact under section 9, and Intoxication under section. 12, Provocation under sections 192,
and 193 and defence of person and of property under section 15. With the exception of diminished responsibility
and insanity which must be proved by the accused, all other defenses must be disproved by the state. The Court
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must avail the accused any defence that appears on the evidence even if the accused has not specifically raised the
same. See Kiyengo vs. Uganda [2005]2 E.A 106
DIMINISHED RESPONSIBILITY
The British equivalent of S. 194 of our PCA was considered in case of R vs. Byrne [1960] ALL ER The appellant
admitted strangling a girl in a hostel and mutilating her dead body. Medical evidence showed that the killing was
under the influence of his perverted sexual desires. He would suffer from violent sexual desires such that he
would find it difficult to control his desires he would be a normal person when under those sexual desires. At the
time the accused killed the girl he was suffering from perverted sexual desires. It was important to consider
whether the accused was insane in the sense as laid down in the McNaghten case or as a case of psychopathy and
could be properly described by partial insanity. The defence has also been considered in several other cases such
as R vs. Dunbar [1958] 1 QB 1, R vs. Morris [1961] 2 QB 237, R vs. Bathurst [1968] 2 QB 99 and R vs. Walden
[1959] 1W.L.R 1008. The key difference in the application of this defence in Uganda and in the United Kingdom
is that in the latter jurisdiction, the accused is convicted of manslaughter , where as in the former jurisdiction, the
accused is convicted of Murder but with diminished responsibility.
In the Byrne case, the issue in court was whether the accused at the time of killing was suffering from any
abnormality of mind. Court reduced the charge to manslaughter. The Court in passing the Judgment held that
‘Abnormality of mind’, which has to be contrasted with the time honored expression in the McNaghten Rules
‘defect of reason’ means a state of mind so different from that of ordinary human beings that the reasonable man
would term it abnormal. It appears to us to be wide enough to cover the minds activities in all its aspects, not only
the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is
right or wrong, but also the ability to exercise the will power to control physical acts in accordance with the
rational judgment. The expression ‘mental responsibility for his acts’ points to a consideration of the extent to
which the accused’s mind is answerable for his physical acts which must include a consideration of the extent of
his ability to exercise will power to control his physical acts. Whether the accused was at the time of the killing
suffering from any ‘abnormality of kind’ in the broad sense is a question of fact for the jury. On this question
medical evidence is no doubt of importance, but the jury is entitled to take into consideration all the evidence,
including the acts or statements of the accused and his demeanor. They are not bound to accept medical evidence
if there is other material before them which, in their good judgment, conflicts with it and outweighs it. The
aetiology of the abnormality of mind (namely whether it arose from a condition of arrested or retarded
development or any inherent causes, or was induced by disease or injury) does, however, seem to be a matter to
be determined by expert evidence…”
This defence is related to insanity, it applies to murder and it was developed because there are many people who
have mental problems but who cannot satisfy the strict interpretation of insanity. Imbeciles and idiots are not
legally insane and thus fall under this category. In a trial for murder, it is for the accused to show that he/she
comes under S. 194 of the Act and where such a defence is raised successfully, a person shall never the sentenced
to death but is to be convicted of murder but with diminished responsibility meaning the convict will not be
sentenced to death but put in safe custody and dealt with under section 105 of the Trial on Indictment Act. The
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Supreme Court has had opportunity to consider this defence in the case of Rukarekoha vs. Uganda [1999] E.A.
303 where Mulenga, JSC, gave some guidance to the application of the defence and also disapproved some
commentary made on the defence by Collingwood, in his book, Criminal Law of East Africa and effectively
overruled Uganda vs. Kankuratire [1975] HCB134.
INTOXICATION
This is only a defence if it renders the accused incapable of forming the necessary mens rea for murder.
Intoxication can be caused by alcohol or drugs. The Supreme Court recently considered that defence and held in
the case of Kiyengo vs. Uganda [2005] 2 EA, 106 “that in considering the defence of intoxication , the question
was not whether the accused person was or was not capable of forming the intention but rather whether by reason
of the drink taken, he did not form the intention. In this instant case, the Court of Appeal had correctly directed
itself on the question of intoxication in stating that intoxication could become a defence under section 12(4) of the
Penal Code Act and could be taken into account for the purposes of determining whether the accused had formed
an intention to kill. The test to be applied was whether, having regard to the circumstances, including those
related to drinking, it could safely be said that the prosecution had proved beyond reasonable doubt that the
accused had the requisite intent at the material time...”
Evidence which shows that the accused’s mind was so affected by drink that he readily gave way to some violent
acts affords no defense. See DPP vs. Bead [1920] AC 479, nor does an accused have a defence where he got
himself drunk in order to give himself the courage to carry out some purpose. In some cases so far from being a
defence it can be an aggravating factor for sentence. See A.G vs. Gallagher (1961)3 ALL E.R 299
Gallagher suffered from psychopathy, a disease of the mind which could be aggravated by drink to cause him
more readily to lose control of himself. When sober, he formed the intention of killing his wife; he purchased a
bottle of whisky of which he may have drunk some of it before he killed his wife with a knife. The HOL affirmed
Gallagher‘s conviction for murder holding that.
1. The defence of insanity could not be made good with the aid of whisky.
2. The defence of intoxication was not available because the accused had already formed the intention to kill
before he took the whisky.
Lord Denning said;
“A psychopath who goes out intending to kill knowing it is wrong and does kill cannot escape the consequences
by making himself drunk before doing it.”
Total lack of purpose or motive may be ground for Court to infer intoxication negativing mens rea. In Kinuthia
s/o Kamau vs. R 17 EACA 137, the accused without any apparent motive or purpose smashed a window chased a
small boy, struck a person on the arm with a panga threw it at him and then struck the deceased in the back of the
head with a piece of firewood. Throughout, the incidents, there was evidence that the accused fell down and stood
up. He was later found asleep on top of a panga and smelling heavily of alcohol. Conviction for murder was
substituted with manslaughter. This case should be contrasted with R vs. Chirwa Vol.5 NRLR 212 where the
accused returned from a beer party in the early hours of the morning apparently in search of a man whom he
10
alleged to be responsible for a wound on his temple. The accused engaged in an intercalation and fighting first
with one chithembi and then with the deceased who died as a result of kicks by the accused to the face and head.
Court found that the accused at the material time was able to be selective as to those whom he chose to assault
and that he was able to talk to a number of persons without assaulting them. Indeed throughout the period to
which the evidence is related, the prisoner was able to keep his objective of trying to find this man. See also
Ssesawo vs. Uganda [1979] HCB 122 and Illanda vs. R [1960] E.A 780.
INSANITY
In Nyinge Suato vs. R [1959] E.A 974, under delusion that an inspector of police was plotting his death, the
accused killed him. He surrendered to the police and stated that having killed the inspector; I have come here to
be killed because they want my head. The issue was whether the accused did raise the defence of insanity. The
Court decided that the defense of insanity depends on the nature of delusiveness. Thus where the accused say I
have come to be killed indicated that he knew that what he had just done was wrong and was accordingly merely
meeting a justifiable killing.
DEFENCE OF PERSON AND PROPERTY

The killing of another is justifiable where an accused acts without vindictive feelings and believes on reasonable
grounds that a person’s life is in eminent danger and that his action is absolutely necessary for the preservation of
life. So, in R vs. Marlin 5 NRLR 79, a quarrel arose between the accused and his wife. The wife rushed out of the
room saying that she was going to shoot herself. The accused followed his wife and found her in the kitchen with
a short gun in her hand. He thereupon struck her on the jaw, and the wife fell and injured her skull fatally.
Woodman C.J upheld the defense submission that the accused had no case to answer on a charge of manslaughter.
He ruled.
a. The accused had reasonable grounds for believing and honestly believed that the blow was necessary to prevent
the deceased from committing suicide. Therefore his act in striking the blow was excusable.
b. Where a person acting on the spur of the moment commits an assault in order to prevent a crime of violence, he
cannot be held liable merely because it transpires that other alternative methods were in fact open to him provided
his primary motive was a reasonable and honest belief that his action was necessary.
The force used should not be excessive in the circumstances.
In Marwa s/o Robi vs. R [1959] E.A 660, the appellant speared the deceased to death after a cattle dispute. The
deceased claimed some cows and had gone to collect them when he was speared. The deceased had carried a
stick but no force was used against the appellant. The appellant raised the defense of defence of property.
Evidence was not clear that the deceased was legitimate owner of the cows. In dismissing the appellants’ defense,
Court had this to say at pg 663, “… it must be a question of fact in each case whether the degree of force used in
defence of property which caused death was in the particular circumstances of the case, justifiable or if not
11
justifiable whether it was such as to amount only to manslaughter or was so excessive as to constitute the offence
of murder. In the instant case, the trial judge stresses that the appellant was well aware of the existence of a
peaceful method of settling the dispute. All the circumstances must be taken into account including this aspect of
the matter. As we see it, there was no case of an attempt to commit a forcible crime. It was the culmination of a
civil dispute between a father in law and son in law. There is no suggestion that any violence was used or
threatened to the person of the appellant that he believed to be in any danger. No doubt in driving off the cattle,
the deceased was committing a trespass but the means adopted by the appellant to resist the taking of the cattle
seems to us to have been utterly out of proportion to the tort which was being committed. The appellant was not
doubt entitled to use reasonable force to prevent the taking of the cattle and if in good faith he had used more
force than was reasonable and had therefore killed the appellant no doubt the offense would only have amounted
to manslaughter, the force actually used however was a thrust in a spear through the chest which was clearly
calculated to kill. We can see no distinction between such use of lethal weapon like a spear and the use of a
firearm. The weapon and its method of use leave no doubt that intent was to kill and not merely prevent the
removal of the cattle. There can be no justification in law for deliberate homicide in these circumstances and we
have no doubt that subject to the question of provocation, the offence is murder.”
In Ojepan Ignatius vs. Uganda, Criminal Appeal, 25 of 1995, it was held that it is based on common sense that a
man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do
what is reasonably necessary. But everything will depend on the particular facts and circumstances. The appellant
having been drinking Malwa together with the late PC Bahirwe, PC Oumo and others for almost 7 hours in their
police Barracks, he was incapable of forming the necessary intent to constitute the offence of murder. Thus there
was sufficient evidence on record to support the trial Judges’ findings that the appellant was by reason of
intoxication incapable of forming the necessary intent to constitute the offence of murder. Therefore the appellant
was rightly convicted of manslaughter contrary to section 182 of the Penal Code Act.
There is no justification where the force has been withdrawn.

In Yusuf s/o Leso vs. R EACA 249, the appellant was woken up by a noise as someone digging at a wall at the
back of his house, he seized a bill hook and seeing two people running away pursued them. He chased one for 100
yards before catching him and killing him with a bill hook. Court held that there was no ground for interfering
with a conviction for murder. In John Bisset Steinhouse vs. Uganda, the appellant alleged that he and his wife
were in their house at night when students threw stones on the roof of the house. He got hold of his gun loaded it
and went outside. He shouted at students to stop throwing stones which they continued. He then fired three shots
in the direction of the dormitory to frighten away the students. He then went into his car to report the matter to
the police. He alleged that students hit his car with stones. He took hold of his gun and fired again in the
direction of the students. Two shorts landed in the body of the deceased of which he died a few hours after. He
was charged and convicted of manslaughter .Court held that he had not been attacked when he fired the first shot.
When he reloaded that gun, there was absolutely no threat against him from anyone. The whole of his conduct
12
showed a man of the most truculent nature who would fight to kill against any slight attack on him. In the course
of judgment, presiding judge observed that the English law on self-defense is the same as that of Uganda and
stated that, “if a person against whom a forcible and violent felony is being attempted repels force by force and in
so doing kills the attacker, the killing is justified, provided there was a reasonable necessity for the killing or an
honest belief based on reasonable grounds that it was necessary and the violence apprehended from the attacker
is really serious.”
MISTAKE OF FACT
Mistake of fact means there is no mens rea. In H.M Advocate V Fraser (1874), a man dreaming that he was
struggling with a wild beast killed his baby. He was discharged. Apart from a defense of automatism, He was
laboring under a genuine mistake of which assuming that it was true would not have been crime. In Chabijana vs.
R 12 EACA 104, the appellant deliberately killed his father and because he honestly held the opinion that the
father was at that moment killing the appellant’s son by super natural means as surely as if he had seen him in the
act of using a lethal weapon against the son. If this belief was reasonable in law, the appellant could have had a
defence because he would have been acting under a mistake of fact in defence of his own son but Court held that
belief in witchcraft was not a reasonable mistake in law. In R vs. Sultan Maginga, the deceased person, with a
woman was lying in a rice field after sexual intercourse. The sultan was going to guard against wild pigs. He saw
movements of grass and he called to ask whether it was an animal or people. There was no reply and Sultan
threw a spear and killed a human being thinking it was a pig. A Murder charge was not sustained because it was a
case of mistake of fact.
PROVOCATION
A killing that would normally constitute murder done in the heat of passion caused by sudden provocation and
before there is time for the passion to cool amounts to manslaughter under section 192 of the PCA. Provocation
means any unlawful act or insult of such nature as to be likely when done or offered to an ordinary person or in
his presence to the person within specified degree of relationship, as to deprive him of the power of self-control
and to cause him to commit an assault of the kind which the person charged committed upon the person by whom
the act or omission is done.
It is not for the accused to establish provocation as a defence. If there is any evidence of provocation the court
cannot convict him of murder unless satisfied that the prosecution has proved beyond reasonable doubt either that
there was no provocation or if there was provocation that what was done in the assault could not be recognized or
what an ordinary person in the community who had lost control of himself might have done. The reasonable
retaliation is gauged according to circumstances and community of the accused. It must be shown that the killing
was in the heat of passion and there was no time for it to cool. The law in this area has just been restated by the
Court of Appeal in the case of Kato v. Uganda [2002]1 E.A 101.
In R vs. Hope 14 EACA 105, the appellant killed a man under the honest belief that he was responsible for the
death of a relative. It was held that provocation was not available because the appellant had held this belief for
several days before the killing.
13
- Provocation must be sudden

R vs. Jezalani 14 EACA 70, the husband /appellant knew of his wife’s misconduct and unfaithfulness with her
former husband. When the wife told the husband that she wanted to leave him for her former husband, he killed
her. The defence of provocation did not succeed on a charge of murder because the alleged provocative act was
not sudden.
- Provocation should consist of a wrongful act
A lawful act cannot amount to a legal provocation. The following acts have been held wrongful acts which
together with the other elements of defense may amount to legal provocation; the homicide of the accused’s
father , R vs. Wasonga 15 EACA , an attack on0 an accused’s wife, Matendekyera, trespass to property, Marwa’s
case and a verbal insult of a gross nature . In R vs. Mwanyi EACA 40, it was held that to use a panga in a
negligent manner thereby causing harm to the person struck may be wrongful act. For a wrongful act to constitute
legal provocation, it need not be more than a tortious one. As such it is sufficient to constitute legal provocation if
the person, struck honestly and reasonably but mistakenly believes that he is the victim of the wrongful act and in
that belief kills the person who striked him.
Generally, vulgar abuse or refusal of sexual intercourse is not sufficient provocation unless contained with other
circumstances. Accordingly it is a question of fact whether a vulgar abuse or refusal of sexual intercourse will
provide a defense on the charge of murder.
The provocation must be such as to deprive an ordinary person, of the class to which the accused belongs of his
power of self-control. Again this is a question of fact and the test of the reasonable man is so much applicable.
See King V Lesban [1914] 3 KB 116
The provocative act must be done in the presence of the accused. See Gaboyes case 16 EACA 140. The
appellant’s half-brother, K, had been rendered unconscious by the blow delivered by the deceased. The appellant
asked K whose face was covered with blood who had beaten him and K replied it was the deceased. The
appellant thereupon went to the deceased’s hut and delivered on his head a fatal blow fracturing his skull. It was
held that although the sight of his brother’s bleeding must have angered the appellant; there was no provocation
according to section 202 of the TZ Penal Code Act as the wrongful act was not done in the presence of the
appellant.
The provocative act done in the presence of the accused will be a provocative act when it is done either towards
the accused or towards a person to whom the accused stands in specified relationship including master and servant
relationship. The retaliation must bear a reasonable relationship to the provocation. In Obielo vs. R 16 EACA 139,
the appellant killed her former mistress by inflicting four blows on her head with a panga. The woman who was
suspected by the appellant of having made of a considerable sum of money had slapped him and spat at him. It
was held that the appellant was liable for murder as his mode of resentment was out of relation to the provocation.
It has also been held that an accused is not deprived of the defense of provocation if when provoked by A, he
mistakenly or accidentally kills B in attacking A. see Nyanya vs. R 23 EACA 593 and R vs. Alayina [1957] R&N
536, where the accused went after dark in search of her husband. She found him under blanket with a young girl.
14
The accused immediately attacked the girl and in the course of the struggle in the darkness of the hut at night, the
girl’s grandmother who was also in the hut was fatally stabbed her. It was held that there was provocation
sufficient to reduce murder to manslaughter
Where an accused is involved in a fight, the defense of both provocation and self-defense may be open to him or
her.
Legal provocation will operate to reduce Murder to manslaughter even where there has been an intention to kill.
Provocation is only a defense to murder not to any other charge. In the other charges, it may operate to mitigate
sentence. The test in provocation is whether an ordinary member of the accused community would have been
provoked in retaliation in the same manner as the accused did. R vs. Maziku 8 EACA 55, a watchman was baited
by a gang of young men who also called him a term of vulgar abuse. The watch man who was an irritable old
man then threw a spear at the youth killing the deceased. The watch man was convicted of murder. On appeal, the
Court said that the test was not whether an irritable old man would have been deprived of his self-control but
rather an ordinary member of the watchman, class would have been so deprived.
The provocative act must be done in the presence of the accused and there must not be time for the passion to
cool. In Thuku vs. R [1966] E. A 496, the appellant arrived home one night in a drunken state and found his step
father (deceased beating his mother) When the appellant tried to intervene, his step father hit him twice with a
stick and told the appellant not to interfere. The appellant entered into the house and slept for a few hours until he
was awakened by the deceased calling him. Ongoing outside the house, the appellant found his mother dead with
a severe wound on the back of the head and the deceased standing nearby. The appellant removed his mother’s
body in the shed, fetched a panga from the house and chased the deceased about 300 yards. The appellant and the
deceased then exchanged words which apparently made the appellant angrier. Both men started walking back to
where the body lay when the appellant attacked the deceased with the panga and killed him. The Court of Appeal
for E.A held;
1. The events were so continuous as to make the acts of killing the mother so proximate to the appellant as
constructively to have been done in his presence.
2. In considering whether there is time for passion to subside the degree of provocation offered is a relevant
factor.
3. In the instant case, the appellant killed the deceased when he was still acting in the heat of passion without
regaining his self-control. Provocation therefore reduced murder to manslaughter.
WITCHCRAFT AS PROVOCATION
In Galikuwa V R 18 EACA 175, Court laid down the rules inter alia relating to defense of provocation in
witchcraft cases.
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1. The act causing death must be shown to be done in the heat of passion that is to say in anger. Fear of
immediate death is not sufficient.
2. If the facts establish that the deceased was performing some acts in the presence of the accused which he
believed and an ordinary member of his community would generally believe was an act of witchcraft against
him and the accused was so angered as to be deprived of self-control, the defense of grave and sudden
provocation is open to the accused.
3. Belief in witchcraft per se does not constitute a circumstance of excuse of mitigation for killing a person
believed to be a witch or wizard where there is no immediate provocative act.
4. The provocative act must amount to an offence under criminal law.

In the Galikuwa case, a witchdoctor threatened the appellant with death unless he paid him shs1000. Later the
appellant being unable to pay the said sum killed the witch doctor in an honest belief that he was saving his life
from witchcraft. It was held that this was murder. There was no immediate provocative act. “A mere threat to
cause injury to health or even death in the near future cannot be considered as a physical provocative act”
An overt physical act of witchcraft may amount to provocation. In R vs. Fabiano Kinene 8 EACA 96, the
appellants appealed from conviction of murder. The deceased had died from shock resulting from the forcible
insertion into his bowel through the anus of urine bananas by the appellant immediately they had caught him.
Immediately they had caught him crawling about naked in their compound. They believed the deceased was a
wizard who had caused the death with their relatives by witchcraft and had caught him in the act as they thought
of bewitching them and therefore killed him in the way in which the older times was considered proper for the
killing of a wizard. Put the other way, the appellant believed that the witch doctor had caused the death which
many people/ relatives by witchcraft. One night they found the witch doctor crawling naked in the compound and
believed to be in the act of bewitching themselves, they fell upon him and killed him in a gruesome manner
considered fitting for the death of the witch doctor in olden days. The Convictions for murder substituted with
manslaughter because of the deceased’s provocative acts.
The belief that the person is presently causing the death of a relative by supernatural means is not a reasonable
one in law. In R vs. Kajuna 12 EACA 104, the appellant killed his father in the honest belief that he was causing
the death of his child by witchcraft. He had set out on a long journey with the express intention to kill his father. It
was held that this was murder. Similarly in Rauben Bagamuhunda vs. Uganda, Criminal Appeal No 2 of 1987,
it was held that once he found as a fact that the appellant had killed the deceased by burning he had tied him up
and beaten him very badly, the learned Ag. Judge could have convicted the accused of murder. Whereas the
appellant suspected the accused of having bewitched his brother to death, that alone could not sustain the
provocation. In any case the appellant attacked the deceased long after the death of the appellant’s brother so that
there was no provocation within the meaning of the section of the Penal Code.
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In Victory Kigora vs. Republic, E.A.C.A Crim Appeal 161-DSM-75 1977 LRT N.45, the appellant killed the
deceased, his father, by cutting the latter to death with a panga. The deceased was reputed to be a wizard in the
village. The appellant genuinely believed that the deceased, by means of sorcery and witchcraft, had caused the
deaths of the deceased’s own father and those of his sons and daughters. Not long before the killing, according to
the appellant, the deceased had caused the deaths of the deceased’s own father and those of his sons’ and
daughters. Because of his notoriety as a wizard and his evil deeds, the deceased was sent out of the village. After
sometime however, he managed to get permission to return to the village. Not long after his return to the village,
the deceased met the appellant in a pombe shop and the deceased abused the appellant. The appellant tried to
avoid the deceased by leaving the pombe shop, but the deceased followed the appellant and continued to abuse
him. He told the appellant that he was going to kill the appellant and the appellant’s wife in the same way as he
had killed the others, that as he was an old man he was not afraid of death and since he had even killed his own
father, he was sure he would vanquish the appellant. The appellant said that he was so angered by the torrent of
abuse and words that he lost control of himself and in his passion attacked and killed the deceased. It was held;
(i) A belief in witchcraft per se will not constitute circumstances of excuse or mitigation when there is no
provocative act.
(ii) A provocative act is not confined to an act of witchcraft being practiced against the appellant at the material
time.
(iii) A genuine belief by the appellant that the deceased had by witchcraft caused the deaths of his relatives
coupled by words an insults by the deceased against the appellant in such circumstances as to cause any
reasonable person of the appellant’s community and actually causes the appellant sudden and temporary loss of
self-control amount legal provocation.
(iv) When it has been established that legal provocation exists, the fact that a number of wounds have been
inflicted does not prevent the offence from being one of manslaughter.
INFANTICIDE
Under S. 213 of the PCA, where a woman by any willful act or omission causes the death of her child being a
child under the age of 12 months but at the time of the act or omission the balance of her mind was disturbed by
reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of
lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but
for the provisions of this section the offence would have amounted to murder, she commits the felony of
infanticide and may for such offence be dealt with and punished as if she had been guilty of the offence of
manslaughter of the child.
It is only a woman who can be charged under the section or who can raise the defense of infanticide and the child
killed should be the child of that woman offender and affected by the very circumstances in the section i.e. not
having fully recovered from the effect of giving birth or by reason of the effect of lactation. The standard of proof
17
in section 213 is not as high as that required for insanity because the defense of insanity leads to acquittal whereas
infanticide has the effect of reducing the charge of murder to manslaughter. The burden of proof of loss of mind
is upon the offender.
In R vs. Namayanja Vol. 20 EACA 204, the appellant an unmarried girl of about 20 years was convicted of
murder of her newly born child. The appellant had never told her parents with whom she lived of the pregnancy
and neither did they know of it. On 5th February 1952 at about 5:30 p.m. the father on going to the latrine heard a
child crying in the pit under him. He and his wife dug out the new born child still alive who died in hospital at
7:20 a.m. the following day. At her trial, the appellant alleged that she felt unwell on 4th February and worse on
the following day. About 4 p.m. she went to the latrine in order to pass faeces. She did not know she was going
to deliver and whether she had extruded the child or not but that when she was told of the child in the latrine, she
realized that it was hers. It was held that where a newly born child has been abandoned the issue of a homicidal
intent is a matter of inference but the inference must be one beyond any reasonable doubt before a conviction of
murder can be entered. The standard of proof required to show disturbance of the balance of the mind can’t be so
high as in the case of a defence resting on insanity and taking into account the girl’s age, the fact that it was her
first baby, the fact that pregnancy was unknown by the parents, her act of leaving the child without calling for
help was due to panic, fear and despair. She was acquitted and set free.
In R vs. Soanes [1948] ALL E.R 489, a day or two after she had been discharged from the hospital where after a
normal confinement she had given birth to the child, the prisoner killed the baby by fracturing the skull in two
places and threw it into a canal. She had stayed in hospital for a longer time than normally and indeed from first
to last, there was nothing to suggest that she was otherwise than normal and in possession of all her faculties. At
her trial she pleaded guilty to the lesser offence of infanticide which the crown counsel accepted but which the
judge refused on the ground that there was no indication on the deposition that the circumstances existed which
must exist before a verdict of infanticide can be returned. It was held that there was nothing disclosed on the
deposition which would have justified a reduction of the charge of murder to infanticide and accordingly the
appeal was refused, the Court holding that the judge rightly insisted on murder.
MANSLAUGHTER
Under section 187 and 190 PCA, a person who by an unlawful act or omission, causes the death of another person
commits the felony of manslaughter and on conviction is liable to be imprisoned for life meaning that
imprisonment for life is the maximum sentence available and therefore anything less than life imprisonment may
be imposed depending on the circumstances of the case. For the purposes of manslaughter, unlawful omission is
an omission amounting culpable negligence to discharge a duty tending to the preservation of life or health
whether such omission is not accompanied by an intention to cause damage or grievous harm. According to
Smith and Hogan, Criminal Law, manslaughter is a diverse crime, covering all unlawful homicides which are not
murder. A wide variety of types of homicide fall with this category, but it is customary and useful to divide
manslaughter into two main groups which are designated ‘voluntary ‘ and “ involuntary” manslaughter
respectively. The distinction is that in voluntary manslaughter. D may have the malice afore thought of murder,
but the presence of some serious grade of homicide, where these circumstances are present, and then D. may
18
actually intend to kill and do so in pursuance of that intention yet not be guilty of murder. See AG vs. Ceylon
Perera (1953) 1 ALLE R 73, Parker vs. R (1964) AC 1363, (1964) 2 ALLER 6441. Contrast with Holmes vs. DPP
(1946) AC 588 AT 598.
At common law voluntary manslaughter was confined to circumstances of provocation, but under the penal code,
it is voluntary manslaughter in circumstances of a suicide pact. See s. 195.
Involuntary manslaughter includes all varieties of unlawful homicides which are committed without malice afore
thought. There is a vague borderline between manslaughter and accidental death. In Andrews vs. DPP [1937] AC
76 at 581, [1937] 2 ALLER 552 Lord Atkin said.
“Of all crimes, manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many
and so varying conditions. The law recognizes murder on the one hand based mainly, though not exclusively, on
an intention to kill, and manslaughter on the other hand, based mainly, though not exclusively on the absence of
intent to kill, but with the presence of an element of “unlawfulness” which is the elusive factor.
This “elusive factor” is obviously difficult to define: but it would seem to comprise at least two, and perhaps
three, varieties of fault.
(i) An intention to do an act which, whether D knows it or not, is unlawful and dangerous in the sense that it
is likely to cause direct personal injury , though not necessarily serious injury.
(ii) Where D does an act which creates an obvious and serious risk of causing personal injury to another-
a. Not giving thought to the possibility of there being any such risk or
b. Having recognized that there was some risk involved, going on to take it.
(iii) An intention to do an act, or to omit to act where there is a duty to do so being grossly negligent whether
death or serious personal injury is caused.
Manslaughter is generally distinguished from murder by the absence of malice afore thought. Cases establish that
killing will be unlawful amounting to manslaughter if-.
1. There is such provocation as decreases murder to manslaughter.
2. There is excessive use of force in defence of person or property.
3. The unlawful act which causes death is directed against the person of another and involves considerable risk
of injury to that person which no reasonable man would foresee as likely to cause death or grievous bodily
harm.
4. There is an intention or negligent omission to perform a duty recognized by the law of homicide.
5. There is criminal negligence.
It is manslaughter where death results from an unlawful act directed against the person and involving a
considerable risk of injury but where no reasonable man would foresee as likely to cause death or grievous harm.
See R vs. Larkin 1943 Vol. 29 Cr. App 18 and R vs. Church (1965)2 WLR 1220, the Court stressed that proof of
mens rea is essential to manslaughter in regard to dangerous acts against the person. Edmund J. said that for a
19
verdict of manslaughter to follow, the unlawful act must be such as all sober and reasonable people would
inevitably recognize must subject the other person to at least the risk of some harm resulting there from although
not serious harm.
It is manslaughter to intentionally or negligently omit to perform a legal duty tending to the preservation of life or
health so that death results. It is immaterial whether such an omission is or is not accompanied by an intention to
cause death or bodily harm. Indeed Chap. 19 of the PCA imposes duties and responsibilities upon specified
persons aimed at preservation of life and health e.g. the responsibility is imposed on a person who has charge of
one to provide for necessities of life – S. 199.
A duty is imposed on the head of family to provide all necessities of life to children under 18 years (S.200) a duty
is imposed on masters to provide for students under 16 years the necessities (S.201), a duty is imposed on doctors
and other persons doing dangerous acts to exercise reasonable care and skill in performing their duties so as to
preserve life and health (S.203) and a duty is imposed on persons in charge of dangerous things to ensure that they
don’t cause danger. In R vs. Laximidas 1957 R & N 73, the Court said that in a charge of manslaughter by
omission, it is necessary for the prosecution to prove three things.
(i) That the accused owed a duty to the deceased
(ii) That the accused omitted to carry out that duty and that the omission amounted to criminal negligence.
(iii) That the omission caused the death of the deceased and for this purpose, it is sufficient to prove that the
omission hastened the death.
Such persons who have a duty to preserve life of others include:

(i) Persons having charge of another who is unable by reasons of age, sickness, unsoundness of mind, detention or
any other cause to withdraw from such charge.
(ii) Heads of family having charge of children under 14 years
(iii) Employers
(iv) Medical workers and similar persons in relation to their patients.
Persons in charge of dangerous things have a duty to undertake reasonable care and precaution to avoid danger to
life, safety or health. Dangerous things may include machinery and animals.
For purposes of manslaughter, the omission may take a variety of forms. In R vs. Instan (1893) 1 Q B 450, it took
the form of denial of food and nursing during the last days of the life of an elderly relative. However where the
evidence clearly shows an intention to cause death the willful withholding of food would be murder.
The omission may be failure to provide skilled medical care or negligent medical care.
In R vs. Watson (1959) Q B 134,the child of the two accused suffered severe harm from scalding and died three
days later. The parent lived only three doors away from the doctor’s surgery but didn’t send for the doctor until
the child was dead. They were convicted of manslaughter.
In Tipezenji vs. R [1960] R & N 504, the appellant gave birth to a child which was accidentally precipitated into a
pit latrine. Although the appellant knew the baby was alive in the latrine, she did nothing to save the child with
the result that it died. It was held that the accused’s mother had a duty to try and save the life of a child and the
failure to act amounted to manslaughter.
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It was observed that if the mother had willfully abandoned the child with the intention to kill it the charge might
well have been murder although would be infanticide if the balance of her mind was upset by the effects of child
birth.
KIDNAP WITH INTENT TO MURDER

Section 239 up to 243 of the Penal Code Act
Mukombe Moses Bulo Vs Uganda, Criminal Appeal No. 12 of 1995, the appellant was convicted by the High
Court of the offence of kidnapping Sandra Bulo, a baby with intent to murder contrary to section 235(1) and ()2)
of the penal code, and sentenced to fourteen years imprisonment. He appealed against both the conviction and
sentence.
The fact as found by the trail judge were that the appellant was a cousin brother of the complainant, Nakazi
Harriet (PW3). The appellant had an affair with the complainant as a result of which she gave birth to a baby girl
named Sandra Bulo. The appellant rented a house for the complainant at Namumera village where she stayed with
the child for one and a half years while the appellant was maintaining them. After that period, the complainant
returned to her home in Bugerere with the child.
In May 1992, the child fell sick and the complainant took her to the appellant’s home to seek for money for her
treatment. The appellant assaulted her and took away the child Sandra from her. The complainant went and
reported the matter to the R.C.I Chairman who summoned the appellant but the latter refused to go. After the
R.C.I Chairman had gone to the appellant’s home to inquire about the matter, he gave the complainant a letter
referring her to Mukono Police Post. When the complainant returned home she found her father sick at Kayunga
Hospital and she attended to him for five months. Later she sent her brother Moses Nkuki (PW6) to the
appellant’s home to collect the child to attend the last funeral rites of her grandfather. The appellant refused to
hand over the child saying that the complainant was a fool to release the child to him.
After five months, the complainant went to the appellant’s home but did not find the child there. In January 1993,
the appellant told the complainant that he had taken the child to Nsambya Sanyu Babies Home with the child’s
photograph. She was told that the child had never been taken there. She was referred to the Mukono Probation
Officer who summoned the appellant to his office. The appellant came and claimed that he had given the child to
the complainant, which the complainant denied. The probation officer referred the matter to police. The
appellant was arrested for failing to five a satisfactory explanation as the whereabouts of the child Sandra. He
was charged and subsequently tried for the offence of kidnapping with intent to murder. It was held
(i) It is now well established that the offence of kidnapping with intent to murder comprises of two key elements,
namely the prohibited conduct of kidnapping on taking away by force or fraud and the specific intent to cause the
victim to be murdered. [See Ibrahim Bilal Vs. Uganda Criminal Appeal No.5 of 1983 (UCA)]
(ii) As regards the second element of the offence, namely the specific intent, it is also well established that on a
charge of kidnapping with intent to murder, it is necessary for the prosecution to establish that at the time of
kidnapping there was a contemporaneous intent that the victim be murdered or be put in danger of being
murdered. [See Godfrey Tinkamirwa & Another Vs. Cr. App. No.5/88 (sc) (1988 – 1990) H.C.B.5]
21
(iii) That intention can be presumed if the victim has not been seen or heard of within a period of six months or
more. This presumption is provided for under section 235 (2) of the penal code Act.
(iv) Once it is proved that the appellant forcefully took away the child from her mother, and the child has not been
seen or heard of for six months or more, then the appellant is presumed to have had the contemporaneous intent
the child would be murdered or be put in danger of being murdered.
(v) Section 235 (2) of the penal code casts a burden on the appellant to prove that he did not have the
contemporaneous intent that the child would be murdered or be put in danger of being murdered. The appellant
failed to rebut the presumption. On the contrary there was sufficient evidence to prove that the appellant had
guilty knowledge of what happened to the child. This can be evidenced by the fact the appellant lied that he had
taken the child to Nsambya Sanyu Babies Home, and when the child was not found there he claimed that the
mother had taken away the child from his home after a few months.
CAUSATION IN HOMICIDE- Section 196 of the Act

This section is relevant where the accused acts are not the only or immediate cause of the death of the deceased.
In a clear cut case of immediate killing by an act of the accused, this section has no relevancy.
1. Under section 196(a) a person is deemed to have caused death if he inflicts bodily injury on another
person in consequence of which that other person, undergoes surgical or medical treatment which causes
death. It is immaterial whether the treatment was proper or mistaken, if it was employed in good faith
with common knowledge and skill. In R vs. Mwagambo 8 EACA 28, the appellant inflicted two deep and
serious wounds upon the deceased who died as a result of sepsis from those wounds. The wounds had
been stitched by a medical dresser. The medical evidence was to the effect that the wounds should have
been drained instead of being stitched, but even if they had been drained, there would still have been a
risk of sepsis setting in. It was held that what the dresser did wasn’t unreasonable in the circumstances
and didn’t relive the appellant of the responsibility for causing death. However, the person inflicting the
injury is not responsible for the death if the treatment was not employed in good faith or was employed
without common knowledge or skill.
In R vs. Jordan 1956 Criminal App cases 152,the Court quashed a convicted of murder in a charge of
causing death by stabbing after taking the exceptional step of admitting fresh medical evidence which
went to show that death was not caused by the injury but negligent medical treatment. The stab wound
pierced the intestine but this was mainly healed at the time of death. The immediate cause of death was
pneumonia caused by the administration of antibiotic to which the deceased was shown to be intolerant
and intravenous introduction of wholly abnormal quantities of liquid. Both treatments were stated to be
palpably wrong by medical witnesses.
2. A person is responsible for the death of another if he inflicts bodily injury on that other person which
would not have caused death if the injured person had submitted to proper surgical or medical treatment
or had observed proper precaution as to his mode of living.
22
In R vs. Holland 1841, the deceased refused to surrender the injured finger in time for amputation which
caused lockjaw that resulted into his death. The medical evidence was that if the amputation had been
done early, the deceased would probably have survived. The Court directed the Jury that, if the accused
had inflicted the wound son the finger, he was responsible for the death.
3. A person is responsible for a homicide if by action or threatened violence, he causes that other person to
perform an act which causes the death of that other person, such act being a means of avoiding such
violence which in the circumstances would appear natural to the person whose death is so caused.
In R vs. Pitts 1842, the deceased threw himself into a river to avoid acts of intentional violence against
himself by the accused. The deceased drowned and the accused was held guilty of murder.
4. A person is responsible for a death if by any act or omission he hastens the death of a person suffering from any
disease or injury, which apart from such acts or omission would have caused death. In R vs. Enyaju 12 EACA
42, During a tribal dance, T willfully gave the deceased a violent poke on the head with the sharper end of his
heavy dancing stick piercing the skull and causing the deceased’s brain to protrude. The deceased fell to the
ground and almost immediately E, beat him violently on the other side of the head fracturing the skull. The trial
judge specifically found that the deceased was alive at the time of E’s blow. Each injury would inevitably have
caused the deceased’s death. Both T & E were convicted of murder. The case of R vs. Okute 8 EACA 78,
demonstrates the effect of successive but separate beatings causing death. The deceased was first beaten up by
four men and made to dig up some stolen meat. Sometime later as the deceased, in a very weak condition was
being taken to the chief was assaulted by another man X. The deceased died of shock resulting from the
cumulative effect of his injuries. It was held that the four men could not be responsible for causing the deceased’s
death as on the evidence, it was possible that injuries inflicted by them might not have caused death but for the
subsequent assault by X. There was no evidence of any common intent between them and X but X was guilty of
murder for he had with intent to cause grievous harm assaulted one who was already in a very weak state. It was
no defence for X to say that the injuries that he inflicted upon the deceased would not have caused death but for
the prior assault. Generally an assailant must take his victim as he finds him.
5. A person is deemed to have caused death of another if his act or omission would not have caused death unless it
had been accompanied by an act or omission of the person killed or of other persons. This principle also includes
a rule that where A, voluntarily walks into an obvious situation of danger created by an unlawful act of B, B is not
responsible for A’s death, since here, the principle of violent non fit injuria applies (voluntary assumption of risk).
In R vs. Horsey 1862, the accused who had unlawfully set fire to a stockyard in which the deceased was burnt to
death was acquitted of murder because the jury found that the deceased had entered the yard after it was set on
fire. However, in R vs. Katunzi 13 EACA 154, The accused set fire to a hut made of millet stalks with only one
door with the intention to cause death or grievous harm to the occupants Z, K and four helpless children were in
the hut at the time. Z with K’s help evacuated the children. Then Z under the mistaken belief that one of the
23
children was still in the hut re-entered it and sustained burns from which died the next day. Accused was
convicted of murder.
ATTEMPT TO COMMIT MURDER

In Deo Metsnga Vs Uganda 1996 Volume 6 KALR 97 Kania J held that the essential ingredients of offence of
attempted murder are that the assailant intended to maim or disfigure the complainant and that the intention was
to be carried out with the weapon and that the assailant started to execute the said intention. So in this case there
was a shooting at the car and the accused was guilty of attempted murder
In Teopista Tusungire & Amor Vs Uganda HCCC 5/ 96, 1996 Volume 6 KALR 75 It was held that attempt to
commit is an act done with intent to commit that crime, and forming part of a series of acts which would
constitute it’s actual commission if it were not interrupted. Therefore to support the charge of attempted murder
the prosecution must prove the full intent to murder, i.e. with malice aforethought which intent to murder, while
being prosecuted, is interrupted before the death results. In the present case the complainant’s hands and legs
were burnt by the appellant who left her to go with the injuries. It cannot be said that the appellants had formed
the intention to kill the complainant but were interrupted in their effort to do so. Therefore the trial magistrate
was right to find that offence had not been proved.
In order to convict of an attempt it must be shown that the accused intended to consummate the particular crime,
or rather (since knowledge of the law is not required) intended to procure the consequences that in law amounts to
crime. . The requisite mens rea in attempt may be proved circumstantially by the evidence of what the accused
did. It may be that his acts are consonant only with the intention of committing a crime, and if so they will supply
evidence of mens rea. Alternatively, the mens rea may be proved by a confession on the part of the accused, or
other direct statement of intention.
SEXUAL OFFENCES
Key among these offences includes Rape and defilement.
RAPE:
Under section 123 of the PCA, any person who has unlawful canal knowledge of a woman or girl without her
consent or with her consent if the consent is obtained by force, means of threat, intimidation of any kind or by fear
of bodily harm or by means of false representation as to the nature of the act or in case of a married woman by
impersonating her husband commits a felony termed rape and liable to suffer death if convicted (S.124). In
England, this offence is now found in the Sexual offence Act and in its present form codifies the law as laid out in
DPP vs. Morgan (1975) 1 All E R 347.
Unreasonable belief in consent is not a defence to a charge of rape. In England, the phrase “sexual intercourse” is
used in place of the phrase “carnal knowledge”. Neither the phrase “carnal knowledge” as used in Uganda nor
“sexual intercourse” as used in England has been defined for the purposes of this offence but the Sexual Offences
Act provides some guidance as to the meaning of the phrase sexual intercourse.
24
“Where on trial of any offence under this act, it is necessary to prove sexual intercourse (whether natural or
unnatural it shall not be necessary to prove the completion of the intercourse by the emission of seed, but the
intercourse shall be deemed complete upon proof of penetration only”.
The common law rule is that a husband can not commit rape on his wife, as arising out of her marital obligations,
she is deemed to consent to intercourse with her husband so long as they are not separated by an order of Court or
a separation agreement. In R vs. Clark (1949)2 All E. R 448, it was held that presentation of a petition for divorce
but before hearing is not enough. So carnal knowledge shall be unlawful where there has been judicial separation
or a decree nisi, or an injunction against molestation, an undertaking to court not to molest or formal separation
deed with a non-cohabitation clause.
Though a husband has a right to sexual intercourse, he is not entitled to use force or violence in order to exercise
that right. If a he wounds her, he might be charged with wounding, causing bodily harm or common assault. See
R vs. Miller (1954)1 Q B 282 and Shampil Singh (1962) A. C 188
Carnal knowledge means sexual intercourse and to prove rape it is necessary to prove penetration however slight
by the male organ into the vagina. There need be no emission of semen. The absence of consent is the crux of
the matter. The test is “was the act against her will?” see R vs. Camplin 1845, Mulira vs. R 20 EACA 223
Accordingly, prosecution does not have to prove positive dissent but only prove that she did not assent. A
conviction was obtained where the accused had intercourse with a woman whom he had rendered insensible by
giving her liquor in order to excite her or where the accused had intercourse when a woman was asleep. See
Myers (1872) 12 Cox. In Fretcher case, accused had sex with a 13 year old girl with little intellect and
was convicted for rape because Court held that her age and intellect did not enable her give consent. It is rape
where the accused has sexual intercourse with a woman by impersonating the husband. It is also rape for the
accused by fraud deceives a woman to the nature of the transaction. See R vs. Flattery (1877)2 Q B 410, where
accused was convicted where the woman submitted to intercourse with him under the impression that he was
performing a surgical operation. In R vs. Williams (1923) K B 340, a singing master persuaded his pupil that
sexual intercourse would improve her singing voice. It is important that evidence in sex offences, including rape,
be collaborated. Such corroborated evidence may include medical examination concerning nature of semen
within the vagina, pubic hair found in genital area or inside, eye witness, confession by the accused.
See R vs. Kapanda Vol. 2 N R L R, the appellant admitted to a mother and father that he had defiled their
daughter aged 7 years and offered them money, if they would drop the case. Appellant’s admission was held to be
corroboration of the girl’s evidence.
DEFILEMENT
Before 2007, the law on this offence was laid down in section 129 and it was to the effect that any person, who
has unlawful sexual intercourse with a girl under 18 years commits an offence of defilement and liable to suffer
death upon conviction. Consent was no defence to a charge of defilement as the law was concerned with the
protection of the virginity of girls. The Customary marriage law allowed girls to marry at the age 16 but that
25
appears to be in conflict with Article 31 of the Constitution which provides that “Men and Women of the age of
18 years have aright to marry…”
On a charge of defilement, proof of the age of the girl must be beyond reasonable doubt. The parents may state
the date of birth, or produce birth certificate if any was extracted or a baptism card if it took place shortly after
birth or by reference to local events at the time of birth such as war, famine. Since 2007, however, the Penal
Code has been amended and introduced fundamental procedural and substantive changes in the law of defilement.
For example, a boy can also be defiled, so authorities which emphasize sexual intercourse with a girl have been
affected by this amendment.
Evidence in Sexual Offences.

The Courts are alive to the fact that these offences are committed in the dark, that some of the victims, like in
defilement are minors. The following cases demonstrate how the Courts have handled the issues regarding
evidence in sexual offences.
(i) Katumba vs. Uganda [2002] 2 EA 395 SC, an examination was done by a Doctor on a woman who alleged to
have been raped by the accused. The doctor did not give evidence. One other person who responded to the alarm
raised by the complainant said he saw accused between open legs of the complainant. Complainant alleged there
was penetration. Accused was convicted. On appeal, accused argued that an essential ingredient of the offence,
namely penetration had had not been corroborated as required.
It was held that a court was not prevented from convicting a person of a sexual offence on the evidence of the
complainant, if she was believed by the court to be a truthful witness, although the practice in such a case was that
the complainant’s evidence be corroborated, it was generally unsafe to base a conviction on the evidence of a
complainant only, in sexual offences. Corroboration was additional independent evidence which connected the
accused with the crime, confirming some material particular not only the extent that the crime had been
committed, but also that the accused had committed it. Corroboration was therefore in relation to the offence of
rape as a whole and not the ingredient of the penetration only.
(ii) Kibale vs. Uganda (1999) 1 EA 148, In order to prove the commission of the offence of defilement, three
facts, had to be established. Firstly, that there had been penetration of the female sex organ by the male sex
organ. Secondly, that the female was below the age of 18 years, and thirdly, that it was a male person who had
engaged in the sexual intercourse.
In cases of a sexual nature, the court had to warn itself of the danger of acting on the uncorroborated testimony of
a complainant but having done so, it could convict in the absence of corroboration. See Chile & Anor vs. R (1967)
EA 722.
In Mugoya vs. Uganda (1999) 1 EA 202, the Kibale case was cited, Court further held that, the nature of
corroboration required was evidence which confirmed in some material particular not only that the crime had been
committed but also that the accused had committed it.
26
(iii) Nfutumikiza vs. Uganda (1999) 1 EA 220, the slightest penetration sufficed to constitute the offence of
defilement and it was not necessary to prove rupture of victim’s hymen. In this case the medical evidence
showing that the complainant vulva was inflamed and that sperm was present in her vagina was sufficient to
prove the necessary penetration.
See Habyarimana vs. Uganda CA 65 of 1998. The fact that complainant had not given evidence was not fatal
to the conviction. See also Akol vs. Uganda criminal Appeal No 23 of 1992 SC.
(iv) In Remegious Kiwanuka vs. Uganda, Criminal Appeal No. 41 OF 1995, the Supreme Court held that -
1. It is settled law that in sexual offences though corroboration of the prosecution evidence is not essential in law,
it is, in practice always looked for, and it is the established practice to warn the Jury (or assessors) against the
danger of acting upon uncorroborated testimony. This rule of practice applies with the same force even in a case
where there is no dispute that a sexual offence has been committed and the question is one of identity only
[Archbold Criminal Evidence and Practice 39 th Edn, paragraph 28887]
2. A trial Judge should warn the assessors and himself of the danger of acting on the uncorroborated evidence of
the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her
evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless the
appellate court is satisfied that thee has been no failure of justice [See the case of Chila and Another vs.
Republic (19967) EA 722]
3. In the instant case, the complainant was 13 years of age and a pupil in primary six at the material time and 15
years when she gave evidence. Accordingly she was not a child of tender years, when she testified. And so her
evidence did not require corroboration on that score. The appellant was a teacher at the school where the
complainant was a pupil. She knew him well, and the incident took place in broad day light. The conditions
were, therefore, favourable to correct identification. The complainant’s testimony contained a detailed account of
what happened from the time the appellant sent her to buy sugar and how she was ravaged by the appellant in his
house. It was not put to her in cross-examination, nor suggested by the appellant in his unsworn statement, that
she had made up the story or that she had any reason to set him up. The learned trial judge was justified in
accepting the complainant’s evidence as truthful and rejecting the appellant’s defence of alibi as having been
negatived by the complainant’s evidence.
(v) In David Kizito Bogere vs. Uganda, Criminal Appeal No 23 of 1995, the Supreme Court again held-
(a) Penetration had to be sufficiently proved. First, the evidence of the complainant was very clear that the
appellant got hold of her, pressed her against a wall, unzipped his trousers, removed her knickers and inserted his
male organ into her vagina and she felt pain. The act took a short time.
(b) Secondly, after the incident the complainant’s sister Luwede Sufura (PW2) who had been in her company met
the complainant crying and the complainant immediately informed her that she had been raped by the appellant,
who both girls knew very well before the incident.
27
(c) Thirdly, the medical reports proved that there had been penetration. Although the two medical reports differed
on the dates when the hymen had been ruptured, this did not disprove that penetration occurred on 24/3/98 the
date of the incident.
(d) Fourthly, the distressed condition of the girl was noticed by her sister Luwede Sufura (PA2) and her father
Musa Sserwadda (PW3), to whom the two girls reported the incident the same evening. The father and the girls
reported to the police at Kawempe Police Station the same evening. Neither the complainant, nor Luwede (PW2)
were challenged in cross examination that they had made up the allegations against the appellant.
(e) Lastly, the appellant disappeared from his place in Kawempe until he was arrested three months later by Police
Corporal Basega (PW4). In those circumstances set out above the court would hold that penetration, as an
ingredient of the offence of defilement, was proved beyond reasonable doubt and the appellant was properly
convicted.
(vi) In Minani Joseph vs. Uganda Criminal Appeal No 30 of 1995, the Supreme Court held that Corroboration
should be sufficient to afford some sort of independent or unimpeachable evidence to show that the child is
speaking the truth with regard to the particular accused person whom she seeks to implicate. The trial judge
should tell the assessors that the corroboration required is some material evidence tending to connect the accused
with the offence. [See the case of Mdui Mande V.R (1965) E.A. 188] It was a child of 1 ½ years who had not
been seen again. She was incapable of forming her will. Her will is therefore imputed to be the will of the
mother. The accused took away the child from the mother from the evidence in record, the prosecution was
proved beyond reasonable doubt that the seizure and forceful taking away of the child was against the mother’s
will.
28

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B.B Bakampa’s Notes: bcaint3@yahoo.

(iii) As a result of an accident or misadventure except if there is negligence.

In each case, it is only unlawful homicide if-

C) The killing must be through an unlawful act.

Some confession in cases of murder, are not enough to convict a person.

MENS REA OF MURDER

b) It is treated as transferred malice resulting into transferred murder.

DEFENCE OF PERSON AND PROPERTY

There is no justification where the force has been withdrawn.

- Provocation must be sudden

4. The provocative act must amount to an offence under criminal law.

Such persons who have a duty to preserve life of others include:

KIDNAP WITH INTENT TO MURDER

CAUSATION IN HOMICIDE- Section 196 of the Act

ATTEMPT TO COMMIT MURDER

Evidence in Sexual Offences.

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