[1940] EACA 24

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya), Whitley, C. J. (Uganda) and LUCIE-SMITH, J. (Kenya)

## REX, Respondent

## KIRANGI s/o BUGANGARI, Appellant Criminal Appeal No. 167 of 1940

(Appeal from the decision of H. M. High Court of Tanganyika)

Criminal Law-Murder-Provocation-Tanganyika Penal Code, section 192-Whether act not performed in the presence of accused may be provocative in law.

Appellant appealed from a conviction of murder on the following facts. Appellant's brother Mushikila was killed in a quarrel by one Lukubalugosa. Appellant was not present at the quarrel or the killing of Mushikila but on hearing of it he proceeded to the place where Lukubalugosa was held bound and under arrest by the chief and the appellant then clubbed Lukubalugosa to death in spite of the remonstrances and efforts to prevent him on the part of the tribal police who had Lukubalugosa in custody.

Held (12-11-40).—That the appellant had not acted under legal provocation.

R. v. Okurutumu $s/o$ Ongiro (5 E. A. C. A. 111) distinguished and explained. Appeal dismissed.

Appellant absent, unrepresented.

Spurling, Crown Counsel (Kenya) for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The only question for decision in this case is that of provocation and that question was in our opinion correctly decided by the learned trial Judge. Where as in this case the appellant received news that his brother had been killed and thereupon proceeded to where his slayer was already in custody and slew him there can be no question of legal provocation within the meaning of section 192 of the Penal Code. Reference was made in the judgment to the case of Okurutumu s/o Ongiro\* (Cr. App. 116/38), the facts of which the learned Judge was able to distinguish from those in the present case. The headnote in that case is we think misleading. Further the case must be considered in relation to its particular facts and not as an authority for a proposition that a wrongful act or insult when done but not in the presence of an ordinary person to another person who is under his immediate care or to whom he stands (as in this case) in a fraternal relation may constitute legal provocation. To hold this we agree would be contrary to the express provisions of section 192 P. C. Okurutumu's case can be explained on the ground that acting under the influence of an honest and genuine belief that a wrongful act was being done in his presence to his nephew Matayo, Okurutumu the uncle there and then retaliated. The appeal is dismissed.

> \*5 E. A. C. A. 111. $\sim$