[1939] EACA 76

## COURT OF APPEAL FOR EASTERN AFRICA

## BEFORE SIR JOSEPH SHERIDAN, C. J. (KENYA), WHITLEY, C. J. (UGANDA) AND SIR LLEWELYN DALTON, C. J. (TANGANYIKA)

## REX, Respondent (Original Prosecutor)

versus

## WANUSU S/O MWANJIA, Appellant (Original Accused) CRIMINAL APPEAL NO. 211 OF 1938

(Appeal from conviction by H. M. Supreme Court of Kenya)

Criminal law—Murder—Manslaughter—Provocation.

Appellant appealed from a conviction of the murder of Maua one of his wives. Appellant suspecting improper relations to exist between his wives and one K. secretly hid himself in a tree and spied K. and the deceased in flagrante delicto in a shamba. Appellant descended from the tree and went up to the lovers who ran away. Appellant caught the deceased and took her to the place where his other wife was working. Appellant and his two wives then proceeded to another shamba and there both wives were taxed with infidelity. Deceased said nothing in answer to this charge and tried to run away but appellant caught her and brought her back and struck her with the flat of his knife and told her to begin her story. She said nothing but ran away again and in running fell. Appellant coming after her stabbed her several times and left her there. Later he returned to his hut and found there the dead body of the deceased.

Held (6-2-39).—That the killing was manslaughter only. Emperor v. Balku I. L. R. 1938 All. 789) approved and applied. (Conviction of murder reduced to one of manslaughter.)

The Court of Appeal differing from the learned trial Judge and the assessors accepted the facts to be as stated in the evidence of the appellant which was as follows:-

"I told both my wives that I was going to have a shave. I went away. I did this because I knew Kiberenge used to live with my wives. I went and climbed a tree. While in the tree, I saw Murunga going to the shamba. After that I saw Maua going out. She went to Kiberenge's hut. She stayed there about six minutes. Then I saw her come out. Kiberenge followed her. They went near my father's maize where they stood for a short time. Maua then lay down. Kiberenge got on top of her. When I saw this I came down the tree and went to where they were. Kiberenge ran away. I chased him and noticed Maua running away. I caught Maua and took her to where Murunga was working. I called Murunga and told her to accompany me. My wives followed me. I went off to the main shamba. We stood under some small trees. I said to them 'Are you my wives?' They said 'Yes'. 'Then why are you in the habit of laying with Kiberenge.' Murunga said 'Wait and I'll tell you how we lay with Kiberenge'. I said 'Let Maua start because I have just seen her laying with Kiberenge. Then I told Maua to start her story. She said nothing. I again told her to proceed and again she said nothing. She then ran away. I caught her and brought

her back. I struck her on the left arm with the flat of the knife and told her to begin her story. She said nothing but ran away again. I followed her. She fell. I lost my head and struck her<br>with the knife. I don't know how often I struck her. I left her there. I looked round for Murunga but did not see her so followed her. My head was bad at the time. I searched for Murunga but did not find her. It got dark and I returned to my hut where I found the dead body of Maua. She was dead.

I heard Murunga's evidence. I did not go to her in the shamba before I went with Maua. I laid a trap for Maua and her lover. I saw my brother that afternoon. I asked him to shave my head but he said he was busy. If my brother had not been busy I would have had my head shaved."

Archer for the appellant.

Dennison, Crown Counsel, for the Crown.

JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).-We have had the advantage of an extremely able analysis of the evidence in this case by Mr. Archer which has completely convinced us that the only reasonable account of what happened is that given by the appellant himself. This account was rejected by the learned trial Judge and the assessors, the former holding that the theory of an elaborate trap seemed to him to be exploded by the appellant's admission that had his brother not been busy he would have had his head shaved as he had told his wife he was going to do. This admission was in answer to a question put to him by the Court and whether it be true or false it does not in our opinion explode the story of the appellant that he had recourse to espionage for the purpose of discovering whether the suspicions aroused in his mind as to the fidelity of his younger wife were well-founded or not. If his suspicions had been aroused it was but natural that he should put his wives off their guard by telling them that he was going away on some such errand as he stated whether truly or falsely and even if he stupidly and falsely were to have told the Court that his reason for not having his head shaved was that his brother was busy there remains the evidence of his senior wife Murunga that he told her he was going away for that purpose, evidence confirmatory of what he himself said all along and that is the important point. His wives whom he suspected would have reason to believe that he was absent and engaged for some time. Unless the story of the appellant be accepted then there seems to be left no motive explanatory of the fury by which he was obsessed according to Murunga and the words he used to Murunga "Murunga do you know I have just seen Maua lying with my brother Kiberenge. I am going to kill Maua then I shall kill you and then myself", surely must have been uttered as a result of something that had aroused his anger coming to his knowledge. Then why if he had wished to invent an excuse for his act as Mr. Archer put it should he have told a story so complete in details as evidenced by his having climbed a tree which it is to be clearly inferred from the police evidence commanded a view of where he said he saw his young wife and Kiberenge? He could, and it would have been more natural to expect that he would, have contented himself with saying that he had seen the culprits in the maize. Crown Counsel on the probability of the story being put to him

fairly conceded the point and sought to uphold the conviction on the ground that the provocation suffered by the appellant was not sudden and so did not amount to legal provocation.

To turn then to whether what he saw from the tree caused him sudden provocation for Crown Counsel does not dispute that it would have caused grave provocation and we agree. The evidence does not warrant our drawing any inference more than that when he climbed the tree his suspicions had previously been aroused as to the relations between his wife and Kiberenge and that he wished to have them confirmed or allayed. There is no suggestion of his having armed himself for the purpose of attack before he went into the tree and that distinguishes the position in this case from the facts in cases quoted to us. The fair inference is that when he saw from the tree the parties in flagrante delicto he suddenly lost his self-control and immediately pursued them capturing his wife. The question then is whether he continued to be deprived of his self-control as a result of the provocation until such time as he had fatally injured his wife. It is quite clear that the interval of time that elapsed between the time he lost his self-control and fatally stabbed her was not long and judging him by the standard of the class to which he belongs it is reasonable to believe that during this interval of time he continued to be swayed by passion. If there be any doubt on the point he must have the benefit of it. The view taken in *Emperor v. Balku* (I. L. R. 1938 All. 789) and with which we agree applies in the present case. It refers to the question of interval of time and the headnote reads as follows: -

"The accused and his wife's sister's husband, Budhu, were sleeping on the same charpai in the verandah, and the accused wife was sleeping in the adjoining room. Some time in the night Budhu got up and went into the room and bolted the door behind him. The accused also got up and peeping through a chink in the door saw Budhu and the accused's wife having sexual intercourse. The accused returned to his charpai and lay. down on it. After some time Budhu came out of the room and lay down on the charpai by the side of the accused. After a short time, when Budhu began dozing, the accused stabbed him several times with a knife and killed him. There was no evidence that the accused had to go anywhere to search for the knife, which, apparently, was with him: Held that the case came within exception one to section 300 of the Indian Penal Code, notwithstanding the interval of time between the seeing of the act of adultery and the killing of Budhu, and the accused having acted under grave and sudden provocation the offence committed was one under section 304 and not under section 302 of the Indian Penal Code."

We allow the appeal and alter the finding to one of manslaughter and sentence the appellant to five years hard labour.

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