[1945] EACA 24

## COURT OF APPEAL FOR EASTERN AFRICA

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

REX. Respondent (Original Prosecutor)

#### MURUME s/o NYABOBA, Appellant (Original Accused)

# Criminal Appeal No. 108 of 1945

(Appeal from decision of H. M. Supreme Court of Kenva)

Criminal Law—Manslaughter—Killing a thief in the act of stealing—Provocation.

The appellant had had several thefts of produce from his shamba and one night, hearing the noise of his sugar cane being pulled out, he threw his spear killing the deceased. The appellant was convicted of murder and appealed.

Held (31-7-45).—That on the particular facts of this case the wrongful act of the thief constituted legal provocation reducing the offence to manslaughter.

Appeal allowed. Conviction of murder set aside and conviction of manslaughter substituted.

Rex v. Machage $s/o$ Mwita 2 E. A. C. A. 94 distinguished.

#### Appellant absent, unrepresented.

Todd. Crown Counsel (Kenva), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The facts of this case are in substance as follows: The accused, who had suffered thefts of his produce from time to time, was aroused one night when, in his own words "I found someone in my shamba stealing from me. I killed him. I was very angry. And so at night, when I heard a noise of my sugar cane being pulled and not knowing whether is was a man or a beast, I threw my spear $\ldots$ I really did think that it was a human being". On this version of what occurred it clearly emerges that the person at whom the spear was thrown was committing a wrongful act and it is not unreasonable, on the facts, to infer that the act was such as to deprive a person of the accused's class of his self-control, and that he was so deprived when he threw the spear killing the thief. The case, in short, is one to which, on the facts the local definition of legal provocation in sections 202 and 203, Penal Code, can and should be applied, and accordingly we find the accused guilty of the lesser crime of manslaughter. From the brief reference of the learned Judge to a case tried some years ago at Kisumu it would appear that the facts of that case are distinguishable from those of the present case. We pass, a sentence of only three years hard labour, taking into consideration that, particularly at the present time and for some time past, theft of produce, especially by night, is a most serious offence. We may say that it is very difficult to lay down a hard and fast rule in cases of this kind, nor is it desirable to do so. The facts of each case have to be carefully considered with a view to ascertaining whether the provocation provisions to which we have referred apply.