[1949] EACA 36
The court held that although the appellant may have been angered by the deceased's actions, including her refusal to discuss the missing money and her physical and verbal provocation, these actions did not justify or excuse the violent assault with a panga. The court emphasized that the law requires the response to...
Source-derived case information.
- Citation
- [1949] EACA 36
- Parties
- Appellant: Robert Owiti Obiero; Respondent: Rex
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal No. 87 of 1949
- Procedural Posture
- Criminal Appeal / Appeal From Conviction and Sentence
- Outcome
- appeal dismissed
- Judges
- Bourke J, Graham Paul CJ, Nihill P
- Legal Topics
- Murder, Provocation, Sentencing, Homicide
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Owiti Obiero
Appellant
Rex
Respondent
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence
Legal Issues
- 1 Whether the circumstances amounted in law to provocation sufficient to reduce the offence from murder to manslaughter under sections 202 and 203 of the Penal Code.
Ratio Decidendi
The court held that although the appellant may have been angered by the deceased's actions, including her refusal to discuss the missing money and her physical and verbal provocation, these actions did not justify or excuse the violent assault with a panga. The court emphasized that the law requires the response to provocation to be reasonable and proportionate. The assessors unanimously agreed that the average person in the appellant's position would not have retaliated with such violence. Therefore, the circumstances did not amount to legal provocation sufficient to reduce the offence from murder to manslaughter, and the conviction for murder was upheld.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
13 paragraphs
### COURT OF APPEAL FOR EASTERN AFRICA
## Before SIR BARCLAY NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika). and BOURKE, J. (Kenva)
#### ROBERT OWITI OBIERO. Appellant (Original Accused)
# REX. Respondent (Original Prosecutor) Criminal Appeal No. 87 of 1949
(Appeal from decision of H. M. Supreme Court of Kenya—Thacker, J.)
Provocation—Sections 202 and 203, Penal Code.
The appellant killed his former mistress by inflicting four blows on her head with a panga having suspected her of making away with a considerable sum of money and the deceased having slapped and spat at the accused.
Held (5-7-49).—The mode of resentment adopted by the person provoked must bear some proper and reasonable relationship to the sort of provocation given; in the present case the conduct on the part of the deceased could not justify the violent assault made upon her so as to reduce the offence to manslaughter.
Appellant absent, unrepresented.
#### Holland, Crown Counsel (Kenya), for the Respondent
JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—In this case the appellant was convicted of the murder of a woman who had formerly been his mistress, and whom he suspected of having made away with a considerable sum of money which had been entrusted to her for safe custody.
The learned trial Judge accepted his version of the circumstances which led him to attack her with a panga and the only question that arises in this appeal is whether those circumstances amounted in law to provocation sufficient under sections 202 and 203 of the Penal Code to reduce the appellant's crime from murder to manslaughter. From the judgment it is evident that the learned trial Judge fully directed himself on this point, and he has given his reasons why he felt bound to come to the conclusion that they did not. With that conclusion we also are in agreement. Since the amendment to section 203 of the Kenya Penal Code by Ordinance 55 of 1948 it is certainly the law that in considering the effect of provocation upon a person who kills another, the mode of resentment adopted by the person provoked must bear proper and reasonable relationship to the sort of provocation that has been given. In this case, although the appellant might justifiably have been angered by the deceased's refusal to discuss the question of the money coupled with her action in both slapping his face and spitting at him, that conduct on the part of the deceased cannot justify or excuse the violent assault he made upon her with his panga. The learned trial Judge asked the assessors whether they considered that that kind of conduct by an ex-mistress would cause the average African of the appellant's type and age to retaliate upon the woman in the way he did and they were all of the opinion that it would not. One of the assessors thought that the average African might have taken a thin stick in order to chastise the woman but he was of the opinion that in using a sharp cutting instrument like a panga the appellant went far beyond what the situation called for. In such cases as these it is not always easy to draw an exact line between what may or may not amount to provocation as a defence, but in the circumstances of this case we are left in no doubt at all that the learned trial Judge has come to the proper conclusion.
The appeal is dismissed.