[1947] EACA 28
The Court held that the appellant's claim of provocation was not legally recognized because the killings of his brothers occurred some time before, were not witnessed by the appellant, and were not committed by the deceased. Therefore, the appellant's act was not justified by provocation under the law. The appeal...
Source-derived case information.
- Citation
- [1947] EACA 28
- Parties
- Appellant: Ebeiyon s/o Lobok; Respondent: Rex
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal No. 92 of 1947
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- Edwards CJ, Graham Paul CJ, Nihill P
- Legal Topics
- Murder, Provocation, Sentencing Recommendations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ebeiyon s/o Lobok
Appellant
Rex
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's act of killing was legally justified by provocation.
- 2 Whether the recommendation for mercy by the trial court was proper to be noted on the record.
Ratio Decidendi
The Court held that the appellant's claim of provocation was not legally recognized because the killings of his brothers occurred some time before, were not witnessed by the appellant, and were not committed by the deceased. Therefore, the appellant's act was not justified by provocation under the law. The appeal was dismissed. Additionally, the Court observed that while the Magistrate's recommendation for mercy was understandable, it was improper to note such recommendations on the public record prior to the Governor's consideration, as this could cause embarrassment and was contrary to the procedure set out in the Criminal Procedure Code.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
10 paragraphs
## COURT OF APPEAL FOR EASTERN AFRICA
# Before Nihill, C. J. (Kenya), Sir G. Graham Paul, C. J. (Tanganyika) and EDWARDS, C. J. (Uganda)
# REX. Respondent (Original Prosecutor)
# EBEIYON s/o LOBOK, Appellant (Original Accused) Criminal Appeal No. 92 of 1947
(Appeal from decision of H. M. Supreme Court of Kenya)
Observations upon the propriety of noting upon the record that the Court recommends that mercy be shown.
### Appellant absent, unrepresented.
## Holland. Crown Counsel (Kenva) for the Crown.
JUDGMENT (delivered by NIHILL, C. J.).—We have considered this appeal on its merits although it was filed out of time. In his memorandum of appeal the appellant frankly admits that he killed the deceased as a reprisal for the killing of his brothers by men of the deceased's tribe. He also states that he was provoked into committing the offence, but it was not provocation of a kind that the law recognizes. The killings of his brothers took place some time before the appellant's attack upon the deceased, not in his presence, and not by the hand of the deceased. The appeal must be dismissed.
This trial was held in the Special District Court for the Northern Frontier District of Kenya and we note that the First Class Magistrate who tried the case and convicted the appellant has noted on the record that the Court recommends that mercy be shown. Whilst we can appreciate the reason that prompted the Magistrate to make and record this observation, we question its propriety. The Judge in every trial which results in the passing of a death sentence has a duty to report thereon to the Governor and to make such recommendations or observations on the case as he may think fit (vide section 329 (1) Kenya Criminal Procedure Code). It is not fitting and might prove embarrassing both to the Court and the Governor for a disclosure to be made to the public by the trial Judge in advance as to the nature of such observations.