[1938] EACA 113

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya); WHITLEY, C. J. (Uganda); and KNIGHT-BRUCE, Ag. C. J. (Tanganyika)

REX. Respondent (Original Prosecutor)

ALI s/o LUGULULA, Appellant (Original Accused) Cr. App. No. 73 of 1938.

Appeal from conviction by H. M. High Court of Tanganyika

Murder—Manslaughter—Provocation.

Appellant killed his mistress whom he alleged he had found in flagrante delicto with another man. The further facts appear in the judgment of the lower Court which is included in the report.

Held (21-7-38).—That assuming that the appellant had discovered the deceased and the other man in flagrante delicto that fact could not be considered as provocation in law since the appellant was not regularly married to the<br>deceased according to native law or any other law. The killing was murder.

The appellant appealed from a conviction of murder under the judgment following: -

McRoberts, J.—In this case the accused, Ali $s/o$ Lugulula, is charged under sec. 186 of the Penal Code, with the murder of his paramour. Lemi binti Mazika at Gegeshi in the Kahama District on or about the 26th January last.

The facts are not disputed and the prisoner admits, in evidence given upon oath in this Court, that he killed her as alleged.

The most complete account of what actually happened is provided by the accused and I will set this out.

It seems that three days before the killing which is the subject of this charge the accused went to his brother Kasule in order to ask him to enlist the help of the family spirits in his labour recruiting ventures. Kasule apparently shared with his own wife a single hut and in this the prisoner and the woman Lemi took up their abodes This woman, though referred to as the "wife" was not, in also. actual fact, the wife of the accused for he had not married her according to native custom or in any other way, nor had he paid any dowry for her. She was merely his mistress.

On the day in question the accused and the wife of Kasule, Kabeke, got up at about dawn, or cockcrow, the former for the purpose of easing and washing himself, and the latter for the purpose of taking the prisoner's child, who seems to have been ailing, to the hospital. This left Kasule the brother, and Lemi the mistress, alone in the hut together. How long the prisoner was away it is of course impossible to ascertain with any exactitude but in view of what he had to do it may be reasonable to allow half or perhaps three-quarters of an hour. When he came back he says that he found these two in the act of cohabiting. He immediately went to get his bow but Kasule sprang up and pushed him out of the way and fled in order to get the assistance of his friends in calming down the prisoner;

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and here we must go to the evidence of the other witnesses. When they got back they found the door closed and they called to Ali to come out and, I suppose, to talk things over. He did not respond to this invitation at once but later on he rushed out and fired an arrow at his brother who fled, pursued by the accused. As the<br>former was entering a hut about 200 feet away he shot again and hit him. Then he returned to his brother's hut and went inside and presumably began to attack his woman who rushed out of the place. She did not get far however for she was overtaken and killed by Ali who inflicted twenty-two wounds upon her. These are the facts and I have the following comments to make. In the first place, I do not believe the evidence of Kabeke the widow of Kasule when she says that the night before Ali said that he intended to kill her husband. The accused denies this and I think that he is giving an account of what took place to the best of his own knowledge and belief. Women who lose their husbands in this way are not, in my experience, very satisfactory witnesses in regard to questions which touch them so closely and I shall disregard her evidence as to that incident.

In the second place the assessors do not believe that he actually caught them in flagrante delicto for why, said one of them, would he remain alone for two hours with a guilty wife (without, presumably, doing anything to her)? and why, said the other, should a guilty man go and collect the people? But these two objections can be answered. In the first place a native who has arrived at the stage of social development which has been reached by the accused is likely to look upon a woman as little better than a beast of burden, and possessed of little more character and independence than a cow. She would surrender with little protest to the importunities of a man who had, according to the accused, seduced her before, and there is no doubt that he blamed principally his brother. That is shown, to my mind, by the very fact that he did remain with her for two hours (or thereabouts) alone and that it was only after he had been inflamed by the sight of his brother, by the chase, and by the drawing of blood, that he came back and slaughtered her. The second point is weaker still, for a guilty man is extremely likely to gather round him his friends in order to help him to calm an incensed man whom he had wronged.

I think that the accused, even if he did not find them in the act did, nevertheless, find them in such circumstances as convinced him of their guilt. But however favourably to the prisoner one may read the evidence, it is quite impossible to reduce the crime to anything less than murder. The law is succinctly set out in "Russell on Crimes" 8th Ed. at p. 662.

"Where a man finds another in the act of adultery with his wife and kills him or her, in the first transport of passion, he is only guilty of manslaughter, for the provocation is grievous, such as the law reasonably concludes cannot be borne in the first transport of But killing an adulterer deliberately and upon revenge passion. would be murder. The rule does not apply in the case of a man and woman not being husband and wife though they are living together as such ..." There are two aspects under which the conduct of the prisoner fails to fulfil the requirements of the law as thus stated. He did not kill this woman in "the first transports of passion", he was

alone with her for two hours and did not touch her. Towards her. clearly, no passion was inspired, and it was only after he had worked himself up by the pursuit and shooting of his brother that he came back and killed her. Even if one is prepared to allow, in the case of the brother, that an interval of two hours will still bring the act within the phrase, "first transports of passion" (and that is more than doubtful) still a passion felt towards A is no excuse for killing B. By this time the guilty parties were no longer linked together in the mind of the prisoner if, indeed, they ever had been. Each was a separate entity towards whom he felt a different degree of resentment. Towards the man no doubt an intense thirst for revenge, but towards the woman something much less strong. But the fury inspired by the one cannot be gratified at the expense of the other.

The other point is that these two were not married, even according to the native custom, and that fact takes the prisoner out of the exception. Whether it should be so—whether the strict rules which govern an entirely different, and infinitely more advanced system, should be applied to a society which touches it at no point, and which resembles it in no respect whatsoever, is not a matter which concerns me, however deeply one may feel that it calls for examination and perhaps redress.

In agreement with the assessors, I find the accused, Ali $s/\sigma$ . Lugulula guilty of the murder, under sec. 186 Penal Code, of Lemi binti Mazika.

Appellant, absent, unrepresented.

Dennison, Crown Counsel (Kenya), for the Crown

JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—The appellant had no lawful claim to the woman in this case, not even according to native law so far as we know, because they were not married according to any law. For this reason alone the appeal must fail. Nor are we disposed to disagree with the learned trial Judge by holding on the assumption that sexual intercourse had been detected in flagrante delicto that the provocation was sudden in law. For these reasons while agreeing that the case is one fit for consideration by His Excellency the Governor in Council, we dismiss the appeal.