[1950] EACA 593

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR RONALD SINCLAIR (Acting President), BRIGGS (Acting Vice-President) and BACON, Justice of Appeal

## NYANYA s/o KWEYU, Appellant (Original Accused)

## REGINAM, Respondent

## Criminal Appeal No. 237 of 1956

(Appeal from the decision of H. M. Supreme Court of Kenya, Hooper, J.) Murder—Intent—Transferred malice and provocation.

The appellant had been convicted of the murder of one Matias by stabbing him with a spear. The incident occurred after a beer party at which the deceased, the appellant and one Maluba were present, and arose out of a quarrel between the appellant and Maluba, the latter accusing the appellant either of making improper advances to, or of having seduced his wife. Maluba was carrying a stick with which he beat the appellant and inflicted injuries of a fairly severe nature on him. The appellant said that he thought Maluba was going to kill him so he ran into his hut to get his spear. On coming out of his hut in the dark he came upon Maluba and Matias talking and, mistaking Matias for Maluba, speared the former and killed him. Maluba ran away and the appellant, realizing his mistake, pursued him and killed him also. The issue on the facts proved, was whether the appellant was guilty of the murder or manslaughter of Matias. The question was not whether the appellant "did not act under provocation when he killed Maluba, but whether he acted under provocation by Maluba when he killed Matias" and on this the learned trial Judge had seriously misdirected himself

Held (12-11-56).—The trial Judge had, in effect, convicted the appellant of the murder of Matias on the footing that when he killed Maluba he was clearly acting out of a feeling of revenge and it was necessary to quash the conviction for murder.

Appeal allowed, conviction for manslaughter substituted.

No cases.

Appellant in person.

Brookes and Charters for respondent.

JUDGMENT (prepared by Bacon, J. A.).—This was an appeal from a conviction by the Supreme Court of Kenya for the murder of one Matias s/o Wangenge. We allowed the appeal, quashed the conviction, set aside the sentence and substituted a conviction for manslaughter and a sentence of two years' imprisonment with hard labour, the sentence to run from the date of the original conviction. We now give our reasons for so doing.

On 14th April, 1956, the day of the homicide, there was a beer party at the home of a neighbour of the appellant. About seven persons attended, including the deceased, the appellant and one Maluba. The appellant is of small stature and no longer young. Maluba was described by one witness as "a big man" and by another as "a very big man... younger and stronger than the accused".

The party inside the house was orderly and uneventful, and the evidence as regards the condition of the participants was that there was no real drunkenness. The appellant himself said that he was not drunk. The party gradually broke up during the late afternoon. At some time between 7 p.m. and 8 p.m., when darkness had almost or entirely fallen, a quarrel sprang up outside the huts between the appellant and Maluba, the former having (apparently at the beer party) accused the latter either of making improper advances to, or of having seduced, his wife. When the quarrel started Maluba was carrying a stick, with which he struck the first blows. Either at that or at a later stage Maluba inflicted injuries on the appellant. The headman of South Wanga Location, who eventually arrested the appellant, said that when he did so the appellant's head was bleeding, his cheeks were swollen and he looked in bad condition. Medical evidence confirmed the injury to his head and also disclosed that his ribs were bruised. The learned trial Judge assessed the appellant's condition in these terms: "There is no doubt that Maluba... inflicted injuries of a fairly severe nature on the accused".

We now quote as follows from the description given at the trial by the appellant of the attacks made on him by Maluba, which description he had given in longer form in an etxra-judicial statement to a magistrate.

"When Maluba waited for me on the way he would have killed me without a reason. I was on my way to my hut. He beat me and I sustained some injuries. I felt pain and fell down. If I had not gone back to Wabuti's place, who helped me, he would have killed me. I thought that as he had beaten me he was satisfied and had gone to his place, but I also found him near my place and he started beating me again. He went on beating me up iv my mut. I saw that he was going to kill me in my hut and so I got my spear in order that he might be frightened and run away."

In his extra-judicial statement the appellant also said that, when he found Maluba waylaying him near his (the appellant's) hut, Maluba had stood up and said "To-day you will realize who I am" and had immediately struck him on the head with the stick.

The rest of the story is as follows. Having taken a spear from his hut the appellant came upon Maluba and Matias, the latter having come out from his hut and started to speak with the former. Mistaking Matias for Maluba in the darkness, the appellant speared Matias and killed him. Maluba at once took to flight, whereupon the appellant pursued him for a short distance and killed him also. It is clear from the evidence as a whole that the reason for the killing of Matias, with the murder of whom the appellant was charged, was indeed the appellant's mistaken belief that it was Maluba into whom he was thrusting his spear. The appellant and Matias were friends. No quarrel between them had occurred. In all three statements made by the appellant—when charged, when before a magistrate and when on trial—he gave that as the only reason, and, although the learned trial Judge omitted to make an express finding on the point, it is clearly to be inferred from his judgment as a whole that he did not disbelieve the appellant's explanation as to how and why Matias came to be killed.

We think, however, with respect to the learned Judge, that the chain of reasoning in the judgment from that point onwards contains misdirections both of law and of fact. While on the one hand the learned Judge seems eventually to have appreciated that the doctrines of transferred malice and transferred provocation should be applied in the instant case, on the other hand there appeared to be confusion of thought in the course of seeking to apply them.

In our view the confusion began at that point in the judgment (the last paragraph on p. 32 of the record) where the question of intent was considered.

After recording that the appellant came out from his hut with the spear and found (without, of course, appreciating their respective identities) Matias and Maluba standing talking to each other, the learned Judge said this: —

"The accused killed Matias there—his body was found at a spot 22 yards away (from Matias's hut) in the direction of Maluba's hut-and then killed Maluba at a spot some 30 yards further on, in the direction of his own hut. The accused clearly knew what he was doing and fully intended to do what he did. I therefore find that the element of intention is proved to have existed in the mind of the accused. There remains the question of provocation which, in view of the double killing in this case, has caused me some misgiving. . . But this question of provocation is complicated by the fact that the accused killed two men that night. Matias and Maluba, and he has been charged with the murder of Matias and not Maluba. . . Even if (the doctrine of transferred provocation) did exist I would hold that on the facts of this case the accused did not act under provocation when he killed Maluba, for he was clearly acting out of a feeling of revenge. He was not acting in self-defence. I do not believe him when he says he thought Maluba would kill him."

In our view that passage alone shows that the learned trial Judge's approach to the only real issue which emerged was affected by a serious misdirection. The issue, on the facts as proved, was whether the appellant was guilty of the murder or of manslaughter of Matias. Granted, as obviously must be granted, that the appellant believed when killing Matias that he was killing Maluba, would the appellant have been able successfully to rely on provocation by Maluba if the mistake had not been made and, instead of killing Matias he had killed Maluba? In other words, the question was not whether the appellant "did not act under provocation when he killed Maluba", but whether he acted under provocation by Maluba when he killed Matias. In effect the learned Judge convicted the appellant of the murder of Matias on the footing that when he killed Maluba "he was clearly acting out of a feeling of revenge". If the appellant had been charged with the murder of Maluba the very pertinent question would have arisen as to whether there was any evidence to justify the finding that he killed him by way of revenge. But, since the charge was one of murdering Matias, the only time at which the appellant's state of mind was relevant was the time at which he speared Matias by mistake. Instead of finding what his state of mind was at that time, the learned Judge based his decision on his state of mind at a later stage. With respect, we think that the following passage from the judgment (which appears very shortly after the one which we have quoted) shows once again and beyond doubt how the issue was confused. We quote from p. 34 of the record, as follows:-

"More over it seems to me that where a man who is indeed, acting under grave and sudden provocation which has caused him to lose control of himself, kills a man by mistake and then discovers his error, the very discovery of this fact must surely be such a shock to him that he would immediately come to his senses and be filled with contrition and remorse for what he had done. But in the instant case nothing of the kind has occurred. The accused saw both the men he killed talking together. He ran his spear thrice into Matias and killed him. He discovered that he had killed the wrong manit seems by reason of the fact that Maluba started running away in the direction of his hut. He then ran after Maluba and killed him in turn. This seems to me to show that the accused, far from labouring under grave and sudden provocation, was in fact both exasperated and disappointed at discovering that he had killed Matias and not Maluba, and determined not to allow Maluba to escape. He meant to have his revenge."

It is clear, in our view, that however "exasperated and disappointed" the appellant may have been on discovering his fatal mistake, and however "far from labouring under grave and sudden provocation" he may have been at that moment—as to which questions we express no opinion—those considerations were entirely irrelevant as regards the degree of the appellant's guilt in respect of the death of Matias.

We refrain from commenting on other aspects of the judgment since in our opinion the matters to which we have referred alone sufficed to necessitate the substitution of a conviction for manslaughter.

As regards the sentence, we thought that this was plainly not a case which called for a severe penalty.