[1943] EACA 26

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and MARK WILSON, Ag. C. J. (Tanganyika)

REX, Respondent (Original Prosecutor)

v.

PAULO OBITA s/o OGAYA, Appellant (Original Accused) Criminal Appeal No. 36 of 1943

Appeal from decision of H. M. High Court of Uganda

Law-Murder-Provocation-Uganda Penal Code, Section 199-Criminal Benefit of doubt.

The appellant appealed from a conviction of murder. At the trial another accused, Tomasi, was also charged with the murder, but was convicted of manslaughter. The case is reported on the issue of legal provocation, and the facts are sufficiently set out in the judgment.

Held (19-2-43).—That on the evidence the appellant was entitled to the benefit of the doubt and to be held to have acted under grave and sudden provocation.

Conviction for murder quashed and sentence of death set aside. Conviction for manslaughter substituted and sentence of seven years' imprisonment with hard labour passed.

Appellant absent, unrepresented.

**Brown**, Solicitor General (Kenya), for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—The evidence establishes that the appellant and his co-accused Tomasi assaulted the deceased, who died as the result of the combined effect of the injuries which he received. The appellant was convicted of murder and Tomasi of manslaughter. In the case of Tomasi the learned trial Judge found that there was provocation in that great pain must have been caused to him by the deceased twisting his testicles.

Another aspect of the legal defence of provocation, in so far as it might affect the appellant, does not appear to have been raised at the trial and is not made one of the grounds of appeal, but none the less we have to consider it. Section 199 of the Penal Code provides that provocation includes, *inter alia*, any wrongful act of such a nature as to be likely, when done in the presence of an ordinary person to another person to whom he stands in a fraternal relation, to deprive him of the power of self control and to induce him to assault the person by whom the act is done.

Accepting the evidence of the prosecution witnesses, as the learned Judge and the assessors did, Paulo took no part in the assault until he heard his brother Tomasi cry out in agony that he had been caught by the testicles. It was then that he went out to the spot where Tomasi and deceased were struggling and struck the deceased on the jaw with the axe. It is to be observed that he cannot have used the edge of the blade since the jaw was merely dislocated, which suggests the use of the flat part of the wooden handle, and this is in accordance with the medical evidence.

It appears then to us that it might have been urged with considerable force on behalf of the appellant that, although the deceased only seized Tomasi's testicles by way of retaliation or in self defence after Tomasi had broken his ribs, the appellant may, notwithstanding his having heard deceased cry out that Tomasi had broken his ribs, have formed the inference from what he saw that a wrongful act was being committed in his presence against his brother by the deceased. If so, the provocation section might apply. We are of opinion that the evidence as a whole raises a reasonable doubt as to whether his attack on the deceased was not made in the heat of passion under provocation caused by what he genuinely considered to be a wrongful act done to his brother by deceased, which act, namely, twisting his brother's testicles, was likely to deprive the appellant of his self-control and to cause him in his turn to assault the person who was inflicting great pain upon his brother. We consider also that the evidence discloses that the part taken by the appellant in the assault on the deceased was certainly no more culpable than that taken by Tomasi, who was perhaps lucky to be found guilty only of manslaughter.

In all the circumstances we feel that the appellant should be given the benefit of the doubt on the question of provocation and we alter the finding to one of manslaughter and sentence the appellant to seven (7) years' imprisonment with hard labour. Our reason for imposing a lighter sentence than that passed in the case of Tomasi is that in our opinion the appellant had greater excuse for what he did.

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