[1945] EACA 20

# COURT OF APPEAL FOR EASTERN AFRICA

### Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR JOHN GRAY, C. J. (Zanzibar) and MANNING, J. (Uganda)

### REX, Respondent (Original Prosecutor)

v.

## CHERUYAT ARAP KENDUIWA, Appellant (Original Accused)

#### Criminal Appeal No. 93 of 1945

### (Appeal from decision of H. M. Supreme Court of Kenya)

### Criminal Law—Murder—Provocation—Manslaughter.

The appellant appealed from his conviction of murder. It would appear that the learned trial Judge found that the deceased had used provocative words amounting to insuli towards the appellant, but that since the appellant retaliated by using a knife more than once he could not avail himself of the defence of legal provocation.

Held $(25-4-45)$ —(1) The learned trial Judge misdirected himself on the question of legal provocation.

(2) In deciding the question of legal provocation the Court should ascertain whether the insult was of such a nature as would deprive a man of the accused's class of his self-control and whether he was in fact deprived of his self-control at the time he inflicted the fatal injuries.

(3) In determining whether an accused person was deprived of his self-control or not the fact that a knife was used and the number of times it was used must be taken into consideration.

(4) The repeated use of a knife is not in itself conclusive against an accused person on the issue of provocation especially when it is ready to hand.

Appeal allowed, conviction for manslaughter substituted.

Rex v. Hussein s/o Mohamed, 9 E. A. C. A. 52; Rex v. Juma Mafabi s/o Wabisani. Cr. App. $20/45$ cited with approval.

#### Appellant absent, unrepresented.

#### Hobson, Crown Counsel (Uganda); for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The killing is proved and admitted in this case, and the case is either murder or manslaughter. As to this we have been embarrassed by the short judgment from which it would appear that the learned trial Judge was under a misapprehension as to the law relating to legal provocation as defined in the Penal Code. So far as we can infer, on the acceptance of the accused's account of what led up to the killing, he considered that the words used by the deceased were provocative and amounted to an insult, but that while this would have justified retaliation, the fact that he used a knife and used it more than once, so to speak, put the accused out of court on the legal provocation issue. This would be an incorrect understanding of the law. What the learned Judge should have asked himself inter alia was whether the insult was of such a nature as was calculated to deprive a man of the accused's class of his self-control, and was he deprived of his self-control at the time he inflicted the fatal injuries. In determining whether he was deprived of his self-control at the material time, the facts that a knife was used and the number of times it was used should have been taken into consideration, but the existence of such facts are not in themselves conclusive against the accused on the issue of provocation, particularly so when, as is to be presumed, the knife was ready to hand. From what the assessors said in their opinions, it would also appear that the use of the knife concluded the question "Was it murder or manslaughter?" against the accused. Referring to the headnote in Rex v. Hussein s/o Mohamed, 9 E. A. C. A. 52, par. 4, one finds it stated "That any disproportion between retaliation and provocation can only be relevant in so far as the conviction is concerned in that it may tend to throw some light on whether at the crucial time the accused was in fact acting through deprivation of self-control and not merely actuated by motives of revenge." And in the case of Rex v. Juma

Mafabi s/o Wabisani, Cr. A. 20/45 (shortly to be reported) in which Hussein's case was approved, the law was similarly stated. In that case there had been legal provocation and the retaliation was disproportionate to the provocation. Nevertheless this Court substituted a finding of manslaughter for that of murder. The question under consideration is one of law, viz. whether there was a misdirection on the question of legal provocation. It appears to us clear that there was. Had there been a correct direction we are unable to say that the decision must in reason have been the same. Accordingly, we substitute a finding of manslaughter for that of murder and, as we have said in other cases, we mark our disapproval of the excessive violence of the fatal assault by sentencing the accused to imprisonment for life with hard labour. In conclusion, we desire to say that the accused was fortunate in having his version of the affair accepted in preference to that of the woman which appears in the evidence of Inspector Stevenson at p. 7 of the typescript.