(PW2) and Atim (PW3) and the admission of the accused that the deceased died and he
dumped her body by the roadside proves this ingredient beyond reasonable doubt.
Homicide, unless accidental or authorized by law is always unlawful. See Gusambizi s/o
Wesonge Versus Rep. (1948) 15 EACA 65. The Prosecution contends that this was a homicide
while the defence argues that this was a suicide. The resolution of this issue is so intertwined
with the issue of participation that I propose to deal with both issues at ago. If I find that the
accused shot the deceased, then that will be homicide which is unlawful. If I find that the
deceased shot herself, then that is not homicide. I will resolve this when dealing with the
issue of participation.
The next ingredient for consideration is whether there was malice aforethought. Citing the
case of R. Versus Tubere s/o Ochieng (1945) EACA 63. Ms. Jane Kajuga the learned
Principal State Attorney, asked the Court to consider the weapon used, the part of the body
targeted, the degree of injury and the conduct of the accused before and after the act. It was
her submission that a gun was used and the bullet went through the head injuring her
seriously and she bled to death. The gun is a lethal weapon and the shot through the head was
intended to cause death. Finally, that the accused's utterances that his child shall "grow on
milk" demonstrated his intent to cause death. In reply, Mr. Duncan Ondimu, learned Counsel
for accused argued at length about the conduct of the accused before, during and after the
incident. He submitted that there was no serious quarrel that would cause the accused to kill
the deceased and that once the deceased was injured, the accused acted responsibly by taking
her to hospital and when he became aware she was dead, he did not hide the body but put it in
an open place where the Police would find it and due to the fact that the accused got
confused, he took time to recover before reporting to the police and was not in hiding. That
he kept communicating with fellow police officers like PW14 before he finally handed in
himself. I understood this submission to be made from the point of view that the deceased
shot herself so the accused did not act suspiciously before, during and after the incident.
In Criminal Law, malice aforethought is deemed to be established from evidence of
circumstances of the intention to cause the death of any person or of the knowledge that the
act or omission causing death will probably cause the death of some person see S. 191 PCA.
To establish these circumstances, the Court examines the nature of the weapon used. If it is a
deadly weapon, the intention to cause or knowledge that death would occur is deemed to be
Further, the body part targeted and the nature of injuries caused is material for consideration
in this regard. If a vulnerable part of the body is targeted with intensity, then the intention to
cause death is inferred. The conduct of the accused is also material if he/she acts suspiciously
or becomes restless or disappears and goes into hiding after the act.
See Mugao & Another Versus Rep. (1972) EA 545 and Okuja Versus Rep. (1973) EA
In this case, there is no doubt that the deceased died of a bullet wound inflicted through her
left eye tearing through the brain leading to excessive bleeding and death. A gun is a lethal
weapon and the head which was targeted would lead to instant death because the head has a
vulnerable organ like the brain that controls all other parts of the body.
Whoever aimed the gun that fired that shot intended to cause death or had knowledge that the