OFFENCES AGAINST THE PERSON

Murder

S. 188 of the PCA provides that any person who, of malice aforethought, causes the
death of another by an unlawful act or omission is guilty of murder. Under S. 189 any
person convicted of murder shall be sentenced to death.

In proof of murder the prosecution must prove that a person;

 Unlawfully caused the death of another

 With malice aforethought
 That the person is actually dead
It must be proved that the person is actually dead and the accused caused death and
with malice aforethought.

Proof of death
In Uganda vs Kassim Obura (1981) HCB 9, the court found that there is always a
need to prove that the deceased is dead. In practice, the body must be found in order to
get a conviction of murder.

See also Kimweri vs Republic (1968) EA 452

There has to be proof that the accused’s act caused the death. This can be got from
circumstantial evidence if direct evidence is absent, and also from dying declarations
and confessions.

Malice Aforethought
Under S. 191, this is deemed to be established by evidence providing an intention to
cause death of any person, whether such person is the person actually killed or not. It
also constitutes knowledge that the act or omission causing death will probably cause
the death of some person, whether such person is actually killed or not.

Malice could be deduced from prior threats to the deceased or shooting a person from
close range. Direct or circumstantial evidence may also be used to prove malice.

In the case of Olenja vs Republic (1973) EA 546, it was held that malice aforethought
is not necessarily established by proof of an intent to commit any felony. He who uses
violent measures in committing a felony involving personal violence is guilty of murder if
death results. Proof of intention was also considered in Tindira v. R (1951) 18 EACA
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180 where two accused intervened in a quarrel over a woman, when drunk. The said
accused struck the deceased fracturing the skull. When the deceased made inquiry of
what was happening, the 1st accused hit him. The deceased was not armed. He died as
a result of the later blow. The issue in court was who had caused the death with malice
aforethought. The court found that there was no hard and fast rule in the use of sticks in
homicide cases. However, the case goes on to give the circumstances from which
intention to kill may be established:

 Weapon used
 The manner of use of the weapon
 The part of the body aimed at

Manslaughter

S. 187 (1) provides that any person who by an unlawful act or omission caused the
death of another person is guilty of manslaughter. A person convicted of manslaughter
is liable to imprisonment for life.

Provocation
S.192 provides for killing on provocation. When a person who unlawfully kills another
under circumstances which, but for the section, would constitute murder, does the act
which caused death in the heat of a passion caused by provocation and before there is
time for the passion to cool, such a person is guilty of manslaughter. Circumstances of
provocation are defined under S. 193.

Causing Death Defined

S. 196 defines what amounts to causing death. A person is deemed to have caused the
death of another even though his/her act is not the immediate or sole cause of death
under the following circumstances:

 If bodily injury is inflicted on a person in consequence of the person has to

undergo surgery which subsequently causes death. However the person is not
liable if the treatment was the immediate cause of death and the treatment was
not employed with common knowledge and skill.

 If he/she inflicts injury to a person which injury would not have caused death if
the injured person had got proper treatment.

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  If by actual or threatened violence he/she causes another to perform an act
which results to the death of a person, which act was merely a means of avoiding
violence.

 If by an act or omission a person hastens the death of another who was suffering
under any disease or injury which could have caused death in any event.

 If his/her act or omission would not have caused death unless accompanied by
an act or omission of the person killed or any other person.

Limitation as to time of death

S. 198 provides that a person is not deemed to have killed another if the death of that
person does not take place within a year and one day of the cause of death.

Attempt to Murder

S.204 provides for attempt to murder. A person who unlawfully attempts to cause the
death of another or with intent to unlawfully to cause the death of another, does any act
or omits to do any act which it is duty to do, which acts are of such a nature as to be
likely to endanger human life is guilty of a felony and is liable to imprisonment for life.

Attempt to murder will be like any other attempt. A person is all out to commit murder
but for an intervening factor. The victim may be gravely injured but does not die. Thus if
a person beats another into a coma which lasts for one month, the person can be
charged with attempt to murder. In the case of R vs. Gwempazi 10 EACA 101, it was
held that it is not sufficient to prove that it would have been a case of murder if death
had ensued. It must be shown that the accused had a positive intention to unlawfully
cause the death.

Assaults
Ss. 235 -238 provide for assaults. Assaulting involves hitting or striking somebody and
such assault may cause actual harm or not. It involves use of force resulting into the
harm of the victim or fear for his/her life or safety.

In R vs Gaturu (1948) 23 KLR 60, it was held that although mere words can never
amount to assault, if they are accompanied by an act indicating an intention to use
violence against the person or another an assault is committed.

Grievous Harm

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S. 219 provides that any person who unlawfully does grievous harm on another is guilty
of a felony and is liable to imprisonment for 7 years. S.2 defines ‘grievous harm’ as any
harm which amounts to a maim or dangerous harm or seriously or permanently injures
health or which is likely so to injure health, or which extends to permanent disfigured or
any permanent or serious injury to any external organ, membrane or sense.

In Wagama and 2 others vs Uganda (1989) KALR 223, it was stated that bruises
however multiple, could not be classified as grievous harm. Even mere loss of a tooth at
the hands of an assailant cannot amount to grievous harm as was held in Uganda vs
Egoru and others (1976) HCB 181.