1. Whether the Constitutional Court had jurisdiction to decide a matter which concerned the mere application of accepted legal principles and purely factual disputes between the parties.
2. Whether an accused person had to be present when the fatal injury was inflicted in order for criminal liability to ensue on the basis of a common purpose.
3. What were the circumstances under which special leave to appeal would be granted by the Supreme Court of Appeal?
4. Whether the state produced sufficient evidence to justify a guilty finding beyond reasonable doubt.
5. Whether the doctrine of common purpose was properly applied by the lower court.
6. Whether the application of the doctrine of common purpose was a constitutional matter.

1. For special leave to be granted by the Supreme Court of Appeal, an applicant had to show more than the presence of reasonable prospects of success; there had to be some additional factor, such as the public importance of the matter that warranted granting special leave. Mere incorrect findings of fact by a full court would not constitute special circumstances. Constitutional issues would.
2. The applicants sought leave to appeal to the instant Court and for the first time contended that the appeal raised a constitutional issue. That was an application in which they sought leave to appeal against the dismissal of their appeal to the Full Court and their application for special leave to appeal to the Supreme Court of Appeal. The applicants had to show that the matter was a constitutional matter or that it raised an arguable point of law of general public importance, in order for the instant Court’s jurisdiction to be engaged.
3. The right to be presumed innocent was not implicated when all that was being challenged was a factual evaluation made by a lower court. The applicants argued that the lower courts incorrectly held that their guilt had been proven beyond a reasonable doubt. The commission of a crime of a sufficiently serious nature constituted just cause for imprisonment. It was impossible to determine whether the commission of the crime occurred without engaging in a factual enquiry.
4. The applicants camouflaged their application as a constitutional matter based on their assertion that the common purpose doctrine had been incorrectly applied and unconstitutionally developed by the lower courts. That matter was neither grounded on the interpretation of the common purpose doctrine, nor its development. It was purely factual and did not raise any important constitutional issues which attracted the jurisdiction of the instant Court. The attempt to couch the matter as one which raised constitutional issues could not be sustained.
5. The instant Court did not have the benefit of scrutinising all the evidence and statements made by the various witnesses. Should it embark on such an enquiry, it would mean that the distinction drawn in the Constitution between the jurisdiction of the instant Court and that of the Supreme Court of Appeal would be illusory.
6. The applicants had failed to identify a constitutional issue which would clothe the instant Court with jurisdiction. Even on the instant Court’s extended jurisdiction, the matter failed to raise a point of law of general public importance which the Court ought to consider. The applicants had failed to demonstrate that the Court had jurisdiction as contemplated in section 167(3)(b) of the Constitution.

Application for leave to appeal dismissed.

Per Froneman J (Madlanga J and Cachalia AJ, Concurring):

7. The jurisdiction was not engaged and leave to appeal should not be granted.
8. The first judgment accepted the finding of the Full Court that the assault was a continuous act as one of fact, while the second judgment considered it to be a legal issue. The finding was one of fact and a finding by a judicial official that a number of acts of assault constituted a continuous assault for the purposes of application of the doctrine of common purpose did not turn it into a new legal doctrine. On the assumption that it did, as the second judgment held, there had to be clarity on whether it was an independent legal issue that conferred jurisdiction on the instant Court or whether it merely underlay the broader assertion that misapplication of the common purpose doctrine raised a constitutional issue that conferred jurisdiction on the instant Court.
9. The second judgment chastised the first for a wrong analysis of the High Court’s findings because it did not accord with the record. It also criticized it for other supposed errors of the Full Court’s judgment. The disagreement illustrated the fundamental difficulty of the case, namely that in the end it revolved around facts, not legal or constitutional issues. The full record of the evidence was not before the instant court. In its absence it was difficult to understand how the first judgment’s analysis of the facts could be attacked on the basis that it did not accord with the record. And if the instant court needed the full record to determine for itself what the correct factual findings should be, it would be deciding it on a basis eschewed by the South African jurisprudence.
10. The instant Court had repeatedly held that in criminal matters it would not entertain a challenge on the basis only that it was wrong on the facts and that the mere misapplication of an accepted common law rule by a High Court or the Supreme Court of Appeal did not ordinarily raise a constitutional matter.
11. The mere misapplication of an accepted common law rule by a high court or the Supreme Court of Appeal did not ordinarily raise a constitutional matter. The instant court did not have jurisdiction. Refusal to grant leave for want of jurisdiction was justified.
12. Where there was a prior agreement between parties to a common purpose there needed not be presence or participation by each when the fatal assault was administered. Where no prior agreement was established presence at or before the fatal blow was necessary. Where the time of the fatal blow could not be established then a finding of murder could not follow, at most a finding of attempted murder or some other form of assault.
13. The fourth judgment found analogous grounds for the criminal jurisdiction in the pervasive infusion of constitutional values into the wrongfulness enquiry in the law of delict. But there was little scope for the development of the common law in criminal law in the same manner as in the law of delict. Courts could not create new crimes. That was primarily the function of the legislature. The same went for the development of new defences relevant to the wrongfulness element of crimes on the basis of the legal convictions of the community.
14. If there was no factual finding on when and where the fatal injury was inflicted and that the finding of a continuous act was untenable, the result would have been that the Full Court misapplied the fact that an accused had to be present when the fatal injury was inflicted in order for criminal liability to ensue on the basis of a common purpose holding that where the time of the fatal blow could not be established then a finding of murder could not follow, at most a finding of attempted murder or some other form of assault. The Full Court did not purport to develop the law on common purpose and even if it did attempt to do that, it would have been ineffective in the face of binding Supreme Court of Appeal authority. In the absence of that the instant Court would not have jurisdiction.
15. The fourth judgment also held that the common purpose doctrine was based on public policy. The misapplication of the common purpose doctrine also engaged the instant Court’s jurisdiction. But if that link existed, it applied to a significant portion of criminal law norms and principles. An example would be the mala in se (evil in themselves) crimes like rape, robbery, theft, murder and kidnapping. Besides the fact that the law had criminalised them, by their very nature they were anathema to those values that were held dearest by the society. Societal norms or the legal convictions of the community dictated that they be outlawed. It was societal norms and values that grounded the concept of justification for the exclusion of criminal liability.
16. The fourth judgment’s reasoning had to have the result that the misapplication of a large body of criminal law principles engaged the instant Court’s jurisdiction. There could be no principled basis for setting apart and giving a special place to the doctrine of common purpose. In turn, that result had to lead to the conclusion that any challenge to, for example, a murder conviction raised a constitutional issue on the mere basis that it implicated public policy. That, regardless of whether the real dispute was a contestation of factual findings. It would be so because, that went to the application of the Constitution itself. And as that had to be true of a substantial number of criminal law principles, it thus undermined the very distinction that between constitutional and purely factual matters.
17. There was no difference in principle between a finding of fact in relation to who shot a deceased or the existence of an alibi that would flow from the wrong application of a different criminal law principle, from a factual finding flowing from the wrong application of the common purpose doctrine.
18. In maintaining the proper distinction between cases that the instant Court should and should not hear, the court had to recognise the need for a certain amount of judicial trust; it had to trust that the system of appeals all the way up to the Supreme Court of Appeal would ordinarily return the correct result. It should be wary that so-called misapplication cases should not undermine that trust.
19. The instant Court did not have the full record of evidence before it, only the Trial Court’s and Full Court’s assessment of that evidence. That was also invariably the case in almost all applications for leave to appeal that went before it. If it were to change jurisdictional tack it would, in order to properly assess the reasonable prospects of success in cases of alleged fair trial infringements, in many cases had to call for the full record. It would become a final court of appeal on fact too. That should not be.
20. The applicants had had the full benefit of the judicial appellate structure. They sought to extend it. There were no any material irregularities in the conduct of their trial or in the judgments of the Trial Court and the Full Court. So even if the true limiting factor for granting leave was not jurisdictional, but in the interests of justice, there was no compelling reason to grant leave.
21. There should have been a caution against allowing the appeal and changing the conviction on the material before the court. The full record was not before it and there was disagreement about the true import of the Trial Court and Full Court’s judgments. If the second judgment was accepted, the issue of when the fatal injury was inflicted became crucial. In all the circumstances, it would have been more prudent to refer the matter back to a re-hearing of the appeal by a differently constituted Full Court. Leave should not be granted.

Per Theron J (Jafta J, Dlodlo and Petse AJJ Dissenting):

1. The application of the doctrine of common purpose was a constitutional issue and therefore the instant Court had jurisdiction to entertain the matter before it.
2. If a constitutional issue was raised, the instant Court would grant leave to appeal if it was in the interests of justice to do so. The factors to be considered included whether the matter raised only factual issues, had reasonable prospects of success and was of broader importance beyond the parties.
3. The application involved the alleged violation of the applicants’ right to a fair trial and deprivation of freedom and liberty, potentially without just cause. The instant Court had a duty to ensure that the doctrine of common purpose was not applied in a manner that violated constitutional rights. The doctrine of common purpose was a set of rules of the common law that regulated joint criminal liability. Superior Courts were protectors of the common law. The interests of justice dictated that leave to appeal should be granted.
4. The finding of the High Court that the 2^nd applicant was among those who marched the deceased from stage one to stage two had to be read with the evidence of the second applicant to the effect that he had witnessed the assault on the deceased on 2^nd avenue. Even assuming that the second applicant had seen the deceased being assaulted, there was no evidence that he was at scene one when he witnessed that. He would have seen that from a distance.
5. The first judgment repeatedly stated that the High Court made certain factual findings which were confirmed by the Full Court. Unfortunately, it did not set out the factual findings it referred to. The judgments of the two courts made contradictory findings. The High Court found that the two scenes were separate assaults and the applicants shared a common purpose to murder the deceased. The Full Court treated the assault at the two scenes as a continuous act (assault) and found that all the persons who assaulted the deceased that night shared a common purpose to murder him. The two courts had different reasons for their respective conclusions.
6. If two or more people, having a common purpose to commit a crime, acted together in order to achieve that purpose, then the conduct of each of them in execution of that purpose was imputed to the others. The operation of the doctrine did not require each participant to know or foresee in detail the exact way in which the unlawful results were brought about. The state was not required to prove the causal connection between the acts of each participant and the consequence, for example murder.
7. One of the justifications for the doctrine of common purpose was crime control. As a matter of policy, the conduct of each perpetrator was imputed (attributed) to all the others. Simultaneously, the doctrine of common purpose assisted at the practical level where the causal links between the specific conduct of an accused and the outcome were murky. The doctrine of common purpose was often invoked in the context of consequence crimes in order to overcome the prosecutorial problems of proving the normal causal connection between the conduct of each and every participant and the unlawful consequence.
8. A common purpose would arise either by prior conspiracy (agreement) to commit the crime in question or by conduct (spontaneous association). That would be a unilateral act of association. That form of association was commonly found in cases of mob violence.
9. The instant case did not concern the first form of common purpose, but only the second. For conduct to constitute active association, the accused had to have been present at the scene where the assault was being committed. Secondly, the accused had to have been aware of the assault on the deceased. Thirdly, the accused had to have intended to make common cause with those who were perpetrating the assault. Fourthly, the accused had to have manifested a sharing of a common purpose with the perpetrators of the assault by performing some act of association with the conduct of the others. Fifthly, the accused had to have had the requisite mens rea (intent).
10. The applicants had to have intended that the deceased be killed, or they had to have foreseen the possibility of him being killed and performed an act of association with recklessness as to whether or not death was to ensue. The most relevant was the requirement that the applicants had to have been present at the time when the fatal blow was inflicted for them to be guilty of murder.
11. Like the High Court, the Full Court was alive to the fact that the assault upon the deceased had occurred at two distinct places. The Full Court concluded that the assault at the first scene and the assault at the second scene formed part of one continuous act, finding that the persons who assaulted the deceased that night did so with a common purpose to murder him.
12. There were strong indications that the assaults, though committed with the same motive, constituted two separate assaults. The time period and a break in between two periods of assault militated against a finding of continuity whilst continuing conduct over a period of time would favour such a finding. The break in assaulting the victim as he was taken from scene one to scene two, combined with the absence of evidence of the applicants’ presence at scene one, and the evidence that different people were involved in the assault at the two scenes, pointed toward the two instances of assault being separate occurrences.
13. The Full Court acknowledged that it was confronted with an assault that had been perpetrated by different groups of people, at different places and at different times. The Full Court had regard both to the entire assault upon the deceased that evening, by various persons, and the deceased’s resultant death. By taking a quantum leap, the Full Court held that the applicants must have foreseen the possibility of the death of the deceased and performed an act of association with recklessness as to whether or not death was to ensue. That was not a continuous act. Even if it were a continuous act, it would have been necessary for the state to prove that the applicants were present where the fatal blow was administered unless it was shown that they were present throughout the continuous act.
14. Once it was accepted that the applicants were not present throughout, it became critical to establish where the fatal blow was administered because a requirement of the doctrine of common purpose was that the applicants had to have been present when the fatal blow was struck. The Full Court would have had to satisfy itself that the applicants were present at the stage when the fatal blow was inflicted upon the deceased if it was to uphold their conviction on the basis of the doctrine of common purpose. The Full Court failed to satisfy itself that each applicant had shared a common purpose with the person who had inflicted the fatal injury upon the deceased. It was obliged to do so before it could convict each applicant of murder on the basis of the doctrine of common purpose.
15. The Full Court failed to determine the active association of each applicant in the murder of the deceased. The requirement of active association served to curb too wide a liability. Where the state relied on common purpose, it was required to prove beyond reasonable doubt that each accused had the requisite mens reaconcerning the unlawful outcome at the time the offence was committed.
16. The first judgment seemed to acknowledge that an accused had to be present when the fatal injury was inflicted in order for criminal liability to ensue on the basis of a common purpose. It had not been established that the applicants were present when the fatal blow was administered. On the reasoning of the first judgment, the applicants should not have been convicted of murder on the basis of common purpose. That should be the end of the matter. The appeal had to succeed and the conviction of the applicants for murder had to be set aside.
17. The applicants were, however, not without blame. The factual findings of the lower courts had established that the applicants participated in the assault upon the deceased. It was a severe and brutal assault and their participation mirrored that. That was borne out by the evidence that the deceased had, more than once, screamed out in pain. At the end of the assault he was groaning. The factual findings of the lower courts regarding the applicants’ participation were sufficient to convict them of assault with intent to do grievous bodily harm. That as a competent verdict on a charge of murder and justified in the circumstance of the matter.
18. Since the High Court and the Full Court could only have properly concluded that the applicants were guilty of assault with intent to do grievous bodily harm, the applicants needed to be sentenced afresh.
19. If the instant Court was to decide on an appropriate sentence in respect of the conviction of assault with intent to do grievous bodily harm, it would be acting as a court of first and last instance. The instant Court had on numerous occasions expressed itself on the undesirability of a court sitting as a court of first and last instance.
20. It was not ordinarily in the interests of justice for a court to sit as a court of first and last instance, in which matters were decided without there being any possibility of appealing against the decision given. Decisions were more likely to be correct if more than one court had been required to consider the issues raised. In such circumstances the losing party had an opportunity of challenging the reasoning on which the first judgment was based, and of reconsidering and refining arguments previously raised in the light of such judgment.
21. The instant Court would be depriving the applicants of an opportunity to appeal if it was to determine an appropriate sentence. It was in the interests of justice that the matter be remitted to the High Court for the imposition of sentence.

Relevance to Kenyan situation

Section 20 of the Penal Code provides for the persons deemed to have taken part in committing an offence and who are guilty of the offence, and would be charged with actually committing it being the person who actually does the act or makes the omission which constitutes the offence; Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; Every person who aids or abets another person in committing the offence; Any person who counsels or procures any other person to commit the offence; and in the last mentioned case he may be charged either with committing the offence or with counseling or procuring its commission.

Section 21 of the Penal Code, Cap 63 Laws of Kenya provides that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

Section 10 of the Evidence Act, Cap 80 Laws of Kenya provides that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

The Supreme Court Kenya is the Highest Court on land and it has both original and appellate jurisdiction, as well as the jurisdiction to give advisory opinions.

It has appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation.

Appeals can only be as a matter of right, where the case involves interpretation or application of the Constitution or a matter certified by the Supreme Court or the Court of Appeal as one that involves a matter of general public importance. The Supreme Court may review a certification by the Court of Appeal and either affirm, vary or overturn it.

Njoroge vs. Republic, [1983] KLR 197

If several persons combine for an unlawful purpose and one of them in the prosecution of it kills a man, it is murder in all who are present whether they actually aided or abetted or not provided that the death was caused by the act of someone of the party in the course of his endeavors to effect the common object of the assembly.

The case will be influential in amending Kenyan jurisprudence in that if a person gets to a scene of crime after the commission of a crime, he or she should not be held criminally liable in association with the others if he or she was just a witness and not in agreement with the commission of the crime.