Quence of the attack upon deceased and the attackers

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quence of the attack upon deceased and the attackers acted with a common purpose, accused is liable for the death even though he may not himself have struck the fatal blow. (2) Although the defence of provocation was not raised by accused, the burden was on the prosecution to prove malice aforethought and negative a defence of provocation. (3) It is reasonable to assume that the crowd included relatives of the woman assaulted. If so, not only is accused liable for the probable consequences of the common intention which he shared but he would also be entitled to the benefit of any diminution of responsibility of the others pro- vided by law. Thus, accused has sustained his onus of raising a reasonable doubt as to the existence of provocation. Accused convicted of manslaughter. 391. R. v. Mulengela s/o Bahombe, Crim. Sass. 95-Bukoba-67, Mustafa J. Complainant was abducted in Tanzania and taken to Burundi, where he alleges that accused tried to murder him. Accused argued that since the purported at- tempted murder took place in Burundi, a Tanzanian court had no jurisdiction to hear the case. Ruled: The case is cognizable under Tanzanian law because the alleged attempted murder was part of a transaction which began in Tanzania. [P.C. s. 7.] 392. Pius M. Mkonya v. R., (PC) Crim. App. 747-M-67, 4/10/67 Cross J. Accused was convicted on a charge which in a single count stated that he had made and sold native liquor without a licence. Liquor was found on the premises of the accused and in a nearby open-air bar. There was evidence that servants of the accused had carried liquor from his premises to the bar and had sold it there. Held: (1) Section 49(2) of the Native Liquor Ordinance, which deals with the vicarious liability of licence for acts of his servant or agent relates only to of- fences committed on licensed premises. (2) The evidence was sufficient to con- vict accused of selling native liquor without a licence.[Native Liquor Ordinance, s. 50.] (3) The making and selling of native liquor without a
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licence are separate offences and should not have both been charged in a single count. However, the irregularity did not occasion a failure of justice. Conviction upheld 393. R. v. Belan s/o Samson, Crim. Rev. 42-M-67, 21/9/67, Mustafa J. Accused was acquitted of housebreaking. The court, noting that accused owed money in connexion with an earlier court (1967) H.C.D. - 115 – Order in another case, ordered that several exhibits belonging to accused be sold and the proceeds be paid to a former employee, in whose favor the earlier compensation order ran. Held : “…….(T)he order of compensation …. In respect of another case is a nullity.” Order quashed. 394. Kipung’etich Arap Korir v. R., Crim. App. 646-M-67, 27/9/67, Cross J. Accused was convicted of cattle theft after proceedings which had been ad- journed 16 times for lack of an interpreter. Finally although the accused ‘s lan- guage was recorded as Kipsigis, an Mnandi interpreter was chosen to translate the testimony, which was evidently given in Kiswahili. The record further indi-
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  • Fall '17
  • Dean Majamba

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