[1935] EACA 83

## COURT OF APPEAL FOR EASTERN AFRICA.

## Before SIR JOSEPH SHERIDAN, P., HALL, C. J. (Uganda), and WEBB, J. (Kenya).

## REX, Respondent (Original Prosecutor)

## WELWEL BIN KAMARA AND OTHERS. Appellants (Original Accused). Criminal Appeal 27/1935.

Criminal Law-Murder-Manslaughter-Provocation by fellowtribesman of person killed—Penal Code (Tanganyika) section 192.

At a drinking party at which members of the W. tribe (to which the appellants belong) and of the B. tribe were present, a quarrel was started by one of the B. tribe; in the course of the quarrel the deceased (one of the B. tribe) struck T. (one of the W. tribe), and another of the B. tribe wounded him with a Thereupon the appellants, of whom T. was not one, spear. chased the W. party; they caught and beat the deceased, inflicting wounds from which he died. The appellants were convicted of murder.

Held (16-4-35).—That, section 192 of the Penal Code lays down a precise rule of law by which "provocation" is limited to acts or insults done to the accused himself or persons within the categories mentioned therein. (Decision of the High Court of Tanganyika affirmed).

Appellants absent and unrepresented.

Nihill (S. G. Uganda) for the Crown.

JUDGMENT.—This case has been carefully tried and the law bearing on the question of provocation has been correctly laid down by the learned Judge. So far as the facts are material they are that at a beer drink given by a man named Birhai, a Mbulu, a member of the Barabaig or Mangati tribe stuck his spear in the ground, a gesture of an insulting nature and amounting to a challenge to fight. Thereafter, the beer being finished the guests were asked to leave the house and then the man who had stuck the spear in the ground, Mtandi, a Barabaig, chased the sixth accused Sikai, an Moulu, with a spear. Meantime the deceased, Gidagihando, assaulted Jarmo, a member of the tribe to which the accused belonged. Mtandi returning from chasing Sikai speared Tarmo and what next followed led up to the attack on and the death of Gidagihando. The seven appellants set off after the Wambulu and beat him with sticks in such a manner as to cause his death and to make them guilty

of murder unless they can be said to have been labouring under such provocation as is laid down in section 192 of the Penal Code. As to whether they had such provocation it has to be remembered that they had not received any provocation from the deceased man. The original provocation had been given by Mtandi and that is not sufficient in law to come to their rescue, and such provocation as had been given by the deceased was given to Tarmo who was not one of the accused. The provisions of the section in so far as they are material read as follows:-"The term 'provocation' means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master and servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered.

When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give the latter provocation for an assault." In commenting on the section the learned Judge said: "Section 192-of the Penal Code seems to me to lay down a precise rule of law, when in English law the limits of distinction between the interference of servants and friends and that of a mere stranger are not defined. (Russell on Crimes, 8th Edition, Vol. 1, at p. 680). The most that can be said of Tarmo and the accused is that they are tribesmen. To regard provocation given to a fellow tribesman as provocation coming within the meaning of provocation as defined in section 192 would in my view be doing violence to the language of that section". We are in entire agreement with the learned Judge's interpretation of the law and we are consequently of the opinion that the convictions should stand. No doubt it will be considered in the proper quarter that the tragedy would never have occurred but for the insulting and indefensible action of the Barabaig Mtandi which not unnaturally aroused the anger of the Wambulu against him and his fellow tribesmen.

The appeals are lismissed.