An accused must be present when the fatal injury is inflicted for criminal liability to ensue on the basis of a common purpose
Shane Jacobs and Others V State
Constitutional Court of South Africa
Zondo DCJ, Froneman, Jafta, Khampepe, Madlanga and Theron JJ
Cachalia, Dlodlo, Goliath and Petse AJJ
February 14, 2019
Reported by: Claris Njihia
Constitutional law-constitutional court-jurisdiction-jurisdiction of the constitutional court-matters that can be entertained by the constitutional court- 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 -Constitution of the Republic of South Africa, section 167 (3) (b).
Constitutional law-appeals-leave to appeal-special leave to appeal-grant of special leave to appeal-circumstances under which special leave to appeal may be granted- what were the circumstances under which special leave to appeal would be granted by the Supreme Court of Appeal.
Evidence law-standard of proof- justification of a guilty finding- whether the state produced sufficient evidence to justify a guilty finding beyond reasonable doubt.
Criminal procedure-criminal liability-doctrine of common purpose-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
On December 19, 2010, the second applicant’s daughter accused the deceased of stealing her cellphone. Members of the community came to her aid, confronted the deceased and proceeded with an indiscriminate attack on him in an incident of mob justice (stage one attack).
After inflicting various blows on the deceased at stage one, the assailants marched him to the second applicant’s home, where he was further assaulted by the applicants (stage two attack).
In the High Court, the applicants were charged with the murder in that they, acting in common purpose, unlawfully and intentionally killed the deceased by assaulting him with a chair, clenched fists and booted feet. They pleaded not guilty to the charge. The applicants were found guilty of murder on the basis that they had acted in common purpose. They all had a common desire to cause the death of the deceased and each played a role in the furtherance of that common purpose. The applicants applied for leave to appeal against their conviction and sentence. They were granted leave to appeal against their convictions but leave to appeal against their respective sentences was refused. Their appeal against conviction was consequently dismissed. The applicants then sought to appeal against the decision of the Full Court to the Supreme Court of Appeal. Their application was dismissed on the grounds that there were no special circumstances meriting a further appeal to that Court.
- 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.
- 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.
- What were the circumstances under which special leave to appeal would be granted by the Supreme Court of Appeal?
- Whether the state produced sufficient evidence to justify a guilty finding beyond reasonable doubt.
- Whether the doctrine of common purpose was properly applied by the lower court.
- Whether the application of the doctrine of common purpose was a constitutional matter.
Relevant provisions of law
The constitution of the Republic of South Africa
Section 39(2)-Interpretation of Bill of Rights
(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
Section 167 (3) (b),7 -Constitutional Court
(3) The Constitutional Court—
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court.
(7) A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution
Goliath AJ (Froneman, Khampepe and Madlanga JJ, Cachalia AJ Concurring):
- 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.
- 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.
- 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.
- 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.
- 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.
- 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):
- The jurisdiction was not engaged and leave to appeal should not be granted.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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):
- 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.
- 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.
- 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.
- The finding of the High Court that the 2nd 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 2nd 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.
- 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.
- 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.
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Per Zondo DCJ (Jafta and Theron JJ, Dlodlo and Petse AJ Dissenting):
The applicants sought leave to appeal against a decision of the Full Court which upheld their conviction by the Trial Court of murder solely on the basis of the application of the doctrine of common purpose. The Trial Court sentenced them to long terms of imprisonment. Therefore, whether, for the rest of their lives, society would be entitled to call them murderers and whether or not their right to freedom of movement would be taken away from them for a long time as a result of the conviction depended entirely upon whether the Trial Court and the Full Court correctly applied the doctrine of common purpose. If they applied the doctrine correctly, the applicants were correctly convicted and had to serve their terms of imprisonment. If, however, the doctrine was wrongly applied, they should be acquitted of murder and society would not call them murderers for the rest of their lives.
The application raised a constitutional issue and the proper application of the doctrine of common purpose was a constitutional matter. The doctrine of common purpose was a set of rules of the common law that regulated the attribution of criminal liability to a person who undertook jointly with another person or persons the commission of a crime. Where two or more people agreed to commit a crime or actively associate in a joint unlawful enterprise, each would be responsible for specific criminal conduct committed by one of their number which fell within their common design. Liability arose from their common purpose to commit the crime.
The essence of the doctrine was that if two or more people, having a common purpose to commit a crime, acted together in order to achieve that purpose, the conduct of each of them in the execution of that purpose was imputed to the others. Those requirements were often couched in terms which related to consequence crimes such as murder.
The liability requirements of a joint criminal enterprise fell into two categories. The first arose where there was a prior agreement, express or implied, to commit a common offence. In the second category, no such prior agreement existed or was proved. The liability arose from an active association and participation in a common criminal design with the requisite blameworthy state of mind. The evidence in the application before the court did not prove any such prior pact.
It was common cause that there was no prior agreement. The Court was dealing with the second category of liability requirements. one of the requirements for the application of the doctrine of common purpose in the absence of a prior agreement was that the accused had to have been present at the scene of the commission of the crime. That being the case, if it was not known where the fatal blow was administered, it could not be said that the applicants were present at the scene where the fatal blow was administered. If that was the position, the first requirement of the doctrine of common purpose where there was no prior agreement would not be met and there could, therefore, be no criminal liability or conviction based on the doctrine of common purpose.
The Trial Court and the Full Court incorrectly applied the doctrine of common purpose in the case since it could not be shown and was not shown that the applicants were present at the scene where the fatal attack on the deceased was carried out.
The instant matter concerned the proper application of the doctrine of common purpose. The doctrine of common purpose involved the attribution of criminal liability to a person who undertook jointly with another person or persons to commit a crime, even though only one of the parties to the undertaking would have committed the criminal conduct itself. Its effect was therefore far-reaching, and implicated the constitutional rights of freedom of the person and the right to a fair trial, including the right to be presumed innocent.
If the proper application of legislation enacted to give effect to fundamental rights entrenched in the Constitution was a constitutional matter, the proper application of the provisions of the Constitution was also a constitutional matter. It could not be otherwise. That was not confined to the application of those provisions of the Constitution that related to the bill of rights but extended to all provisions of the Constitution.
Public policy considerations were at the heart of the doctrine of common purpose. Sometime after the hearing of the matter by the instant Court, directions were issued to the parties to deliver written submissions dealing with certain issues. The common law doctrine of common purpose was based on the legal convictions of the community. It was the legal convictions of the community that people who jointly participated in a criminal enterprise should be jointly held liable and punished. In the constitutional dispensation, all laws, whether common law or statutory origin, the court subjected it to the constitutional framework and in case of conflict; they were to be aligned to the Constitution and should therefore raise a constitutional issue.
The substantive test for wrongfulness should never have arisen in either the High Court or the Supreme Court of Appeal. Wrongfulness did not need to be decided on appeal. If the determination of wrongfulness was a constitutional issue, it could only be so because it involved the legal convictions of the community. That meant that the determination of whether an accused was criminally liable on the basis of the doctrine of common purpose had to logically be a constitutional issue since it also involved the legal convictions of the community. Policy considerations settled in the light of section 39(2) gave rise to a constitutional issue.
Just as an inquiry into wrongfulness raised a constitutional issue, an inquiry into criminal liability on the basis of the doctrine of common purpose also raised a constitutional issue as both were based on public policy which was represented by the constitutional values.
If one accepted that the doctrine of common purpose was based on public policy and that public policy was represented by the constitutional values, it had to follow that the application of the doctrine of common purpose entailed the application of the constitutional values. The interpretation, application and upholding of the Constitution were also constitutional matters. The constitutional values were an integral part of the Constitution. Therefore, when one applied them, one was applying the Constitution. The application of the constitutional values was a constitutional matter or issue. Therefore, the instant matter raised a constitutional issue because it raised the application of the constitutional values.
That public policy was at the heart of the doctrine of common purpose was hardly surprising when it was considered that the doctrine of common purpose shared a number of features with the doctrine of vicarious liability which the instant Court had said had a policy-laden character. The principle of vicarious liability dealt with the liability of an employer for the harm-causing conduct of its employee in certain circumstances. The doctrine of common purpose, too, was about holding someone criminally liable for the actus of another person in certain circumstances.
The doctrine of common purpose was based on public policy. The doctrine of vicarious liability was developed by the courts and was applied by them. The doctrine of common purpose was also developed by the courts and was applied by them. In developing both the doctrine of vicarious liability and the doctrine of common purpose the courts sought to give effect to or reflect the legal convictions of the community. The legal convictions of the community were represented by the values that underlay Constitution.
The test used to determine vicarious liability included the question whether there was a sufficiently close connection between the conduct committed by the employee with the business of the employer.
In determining whether an accused person had to be held criminally liable for the actus of another person on the basis of the doctrine of common purpose, an important question that had to be asked, if there was no prior agreement between the accused and the other person, was whether the accused sufficiently associated himself or herself with the conduct of the other person. Those two questions both sought to establish an association or connection of one kind or another between the person sought to be held liable and the person who committed the actus.
In a case involving vicarious liability, a court had to take into account the community’s legal convictions when it decided whether, for example, on a certain set of facts, the employer had to be held vicariously liable for the act or omission of an employee. The same applied to a case involving the doctrine of common purpose. The basic rule was that a person was not responsible or liable for the consequences of the conduct of another person. However, in certain circumstances society deemed it appropriate that someone be held liable for the conduct of another. The court had to bear in mind the constitutional values.
In a case where there was no prior agreement, a court, bearing in mind the values the Constitution sought to promote, would decide whether the case before it was of the kind which in principle should render the accused criminally liable for the conduct of another person on the basis of a common purpose. As the doctrine of common purpose was based on public policy, its proper application by a court included the court bearing in mind the values contained in the Constitution. Therefore, the applicants’ complaint that the lower courts did not apply the doctrine of common purpose correctly required the instant Court to ascertain what the correct application thereof was and, if the doctrine was not correctly applied, went ahead and applied it correctly. Applying it correctly would involve a constitutional issue.
If an accused person challenged his or her conviction on the basis that the court was wrong in concluding that she or he shot the deceased, there was nothing constitutional about that. The issue was purely factual.
If an accused pleaded an alibi to a charge of murder, that was a purely factual issue. There was nothing constitutional about that. The third judgment was, therefore, wrong to say that holding that the proper application of the doctrine of common purpose was a constitutional matter would result in all challenges to murder convictions and other convictions being constitutional matters. If the link between public policy and a matter being a constitutional matter existed, it applied to all other criminal principles and that would undermine the very distinction between constitutional and purely factual matters.
If the doctrine of common purpose was based on public policy or the legal convictions of the community and those were themselves reflected in, or represented by, the values contained in the Constitution, the application of the values contained in the Constitution was the application of the Constitution and the application of the Constitution was a constitutional matter.
It was not appropriate that, when the instant Court considered the question whether a matter raised a constitutional issue and whether it fell within its jurisdiction, it should consider whether holding that the matter fell within its jurisdiction would result in an increase in its workload. That was because a matter either fell within or outside of a court’s jurisdiction. There was no discretion involved in deciding that and a court should not exclude from its jurisdiction a matter that fell within its jurisdiction just because holding that such a matter fell within its jurisdiction would increase the workload of the court.
It was when the court considered the question whether it was in the interests of justice to allow a person to bring a matter directly to it or to appeal directly to it from any other court that it was appropriate to consider a possible increase in the workload of the Court should the Court entertain the matter. That consideration did not belong to the stage of considering whether a matter fell within its jurisdiction.
The characteristics which were to be found in a constitutional matter and in the matter before the instant court were that the doctrine of common purpose was based on public policy or the legal convictions of the community and those referred to the values contained in the Constitution and applying the doctrine meant applying the values of the Constitution.
It was in considering whether it was in the interests of justice for the Court to grant leave to appeal that it should control which matters it entertained and which matters it did not entertain. The fact that the matter fell within the jurisdiction of the Court did not necessarily mean that it had to be entertained. There were many matters including criminal matters which would not be entertained by the instant Court even if they raised a constitutional issue because they did not raise any important principle and because they only raised factual issues or because they had no reasonable prospects of success.
The application did not raise a constitutional issue. The instant Court had jurisdiction. Leave to appeal ought to have been granted.
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,  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.