[1955] EACA 331

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and BRIGGS, Justice of Appeal

OBAR s/o NYARONGO, Appellant (Original Accused)

$\mathbf{v}$

## REGINAM, Respondent

Criminal Appeal No. 1031 of 1954

(Appeal from the decision of H. M. Supreme Court of Kenya, MacDuff, J.)

Murder—Manslaughter—Provocation—Burden of proof—Accused insulted by deceased—Penal Code, section 204.

The appellant was convicted of the murder of X. He had stabbed X because he was incensed by a remark made by him at a dance, viz. "I am X, I am Yardi". There was evidence to suggest that this remark contained an innuendo meant to be insulting to, and found to be highly provoking by, the appellant.

The trial Judge did not direct the assessors and himself on the possibility that the word "Yardi" contained an insulting innuendo.

$Held$ (9-3-55)—As in cases of murder and manslaughter the onus of proof is always upon the prosecution, it never being on the accused to establish provocation or any other defence apart from insanily, which is not strictly a defence, there being, in the instant<br>case evidence of the possibility of provocation which had not been considered and dealt with, the prosecution had not discharged the onus of proving that the accused's action in stabbing the deceased was murder and murder alone.

If the trial Judge had directed the assessors and himself on the possibility of the term "yardi" containing an insulting innuendo and they had nevertheless come to the conclusion that in all the circumstances, the insult was not of a character likely to deprive an ordinary person of the power of self-control, the conviction of murder could not have been challenged.

Appeal allowed. Conviction for murder quashed. Conviction for manslaughter sub-stituted.

Cases referred to: Chan Kau v. R., (1955) 2 W. L. R. 192; Woolmington v. D. P. P., (1935) A. C. 462; Mancini v. D. P. P., 28 C. A. R. 65.

Appellant present, unrepresented.

Havers for respondent.

JUDGMENT (read by Nihill (President)).—The appellant was convicted of<br>murder by the Supreme Court of Kenya sitting at Kisumu. He has not been represented by counsel but we have read arguments in respect of the appeal filed by an advocate on his behalf. The one issue in this case is whether the appellant was properly convicted of murder or might have been convicted of the lesser offence of manslaughter. The case has given us considerable difficulty because, in the absence of a full note of the summing up, we cannot be sure of the precise form in which the learned trial Judge directed the assessors on the issue of provocation, neither is this apparent from the judgment. In other respects the trial seems to have been an unsatisfactory one because, as will appear hereafter, it is clear that the witnesses were not examined with the thoroughness they should have been either by Crown counsel or the assigned counsel for the defence. The case was by no means a simple one, so that we note with some surprise that neither counsel appeared to think it necessary to address the court at the conclusion of the case for the defence. As we have already informed the appellant, after a great deal of deliberation, we have come to the conclusion that his conviction of murder should not be allowed to stand, and we have substituted therefor a conviction of manslaughter. We now give our reasons for so doing.

There can be no doubt at all that the appellant stabbed the deceased because he was incensed by a remark made by the deceased in the presence of many people at a public dance which took place on 16th July, 1954. The appellant was arrested on 19th July but, apparently, he was not formally charged with murder until 23rd August. We say "apparently" because, according to<br>the evidence of an African police officer, as recorded by the learned Judge, his statement may have been taken on the day of his arrest. Yet on the statement itself as put in as exhibit 1, the date and time of the recording of the statement is given as 23rd August, 1954, at 3 a.m. This discrepancy between the police officer's evidence and the date on the exhibit seems to have escaped the attention of everybody, including the trial Judge. As it happened, in this case, probably nothing much turned on this but the point is not without importance since the weight given to such statements as showing consistency often depends largely upon the degree of spontaneity disclosed. We have already remarked that this was not a very satisfactory trial and here is one example, since we are left in doubt as to whether or not the appellant did mention his mother at the very first opportunity. In this statement the appellant admitted that he had stabbed the deceased at the dance and gave a reason why he had become angered with him. He said that the deceased had mentioned the name of his mother in a way considered insulting according to Jaluo custom. Unfortunately for the appellant, he did not stick to his story at his trial but tried to maintain that the deceased had waylaid and attacked him on the way home after he had left the dance, and that in stabbing the deceased he did so by accident when he was trying to defend himself. It is evident from the judgment that this lying defence left a great impression on the trial Judge, who has recorded that he did not believe one word of the accused's evidence. We take this to mean that not only did he reject the appellant's story as to where and how the stabbing occurred but that he has also rejected that the deceased ever made any slighting reference to the appellant's mother at all. This, in fact, is not an unreasonable finding, because the prosecution witnesses present at the dance at the time of the stabbing all maintained that the appellant's mother was never mentioned.

Now, it is also clear from the judgment that the learned Judge did direct himself and the assessors as to whether the issue of provocation was open to the appellant as a possible defence. Where we think he failed was in realising that apart from any story put up by the appellant there were certain signposts in the prosecution evidence itself, which suggested the possibility of provocation. These are not reviewed at all in the judgment or in the very short note made by the Judge of what he said to the assessors. We think we must assume that neither he nor the assessors ever addressed their minds to them.

No doubt the learned Judge considered that the expression used by the deceased: "I am Kworo, I am Yardi" could not be said to constitute an insult to the appellant, and therefore the provisions of section 204 of the Kenya Penal Code could not possibly apply to it. He has overlooked, however, that there are passages in the evidence of the prosecution witnesses themselves which at least suggest that the expression "I am Yardi" contained an innuendo which was meant to be insulting to the appellant and would have been understood by him as an insult. The witness Okumu (P. W.3) said in chief that the accused, at the mention of "Yardi", got up and said "Nyaseko, I will kill you if you mention this word Yardi", and in cross-examination he explained why the appellant did not like the term "Yardi". He said that some time before the deceased had left a gunny sack while grazing and that the appellant's brother had stolen it, and that this had led to the original quarrel between the deceased and the appellant. The witness Naftali (P. W.4) also deposed to the fact that after the deceased had first used the expression "I am Yardi" the appellant had asked him if he was still mentioning these names and if he had forgotten the trouble over them at the

*boma* of James. The examination of all the witnesses in this case was so perfunctory that it is not easy to discover the precise implication of the expression "Yardi". According to the first prosecution witness it meant a suit or dresslength. The appellant in his evidence said that the deceased had said that he was supplying his mother with yardi. The prosecution evidence negatived any direct reference to the appellant's mother by the deceased but we certainly think that there is enough in the prosecution evidence to establish that the expression "Yardi" did carry with it some kind of innuendo which the appellant found highly provoking. As we have said, this aspect of the evidence appears to have been entirely overlooked by the learned Judge who, having found the appellant to be a liar, seemed to conclude that that was the end of the provocation issue.

We think it apt here to cite a passage from the recent Privy Council case of Chan Kau v. the Queen, 1955 2 W. L. R. 192. This was an appeal from a conviction of murder entered by the Supreme Court of Hong Kong where their lordships held that the defence of provocation was wrongly withdrawn from the jury and that there was misdirection with regard to the defence of self-defence. At page 194 Lord Tucker said this: $-$

"In the cases where the evidence discloses a possible defence of selfdefence the onus remains throughout upon the prosecution to establish that the accused is guilty of the crime of murder and the onus is never upon the accused to establish this defence any more than it is for him to establish provocation or any other defence apart from that of insanity. Since the decisions of the House of Lords in Woolmington v. Director of Public Prosecutions and Mancini v. Director of Public Prosecutions, it is clear that the rule with regard to the onus of proof in cases of murder and manslaughter is of general application and permits of no exceptions save only in the case of insanity, which is not strictly a defence."

In the instant case we consider that the evidence did disclose the possibility of provocation and that until this was considered and disposed of it could not be said that the Crown had discharged the onus of proving that the appellant's action in stabbing the deceased was murder, and murder alone. Had the learned Judge directed the assessors and himself on the possibility that the term "Yardi" contained an insulting innuendo and they and he had nevertheless come to the conclusion that in all the circumstances the insult was not of a character likely to deprive an ordinary person of the power of self-control, the conviction of murder could not have been challenged. As it is, however, the point was not considered either by the Judge or the assessors, and we cannot say with certainty that if it had been considered that the opinion of the assessors might not have been different, and that on that opinion the Judge might not have come to a different conclusion. It is for these reasons that we have felt constrained to allow this appeal and to substitute a conviction of manslaughter. The sentence of death is set aside and the appellant will serve a term of imprisonment for ten years with hard labour.