[1935] EACA 91

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, P., WEBB, J., and GAMBLE, Ag. J. (all of Kenya).

## REX, Respondent (Original Prosecutor)

MUSOMI s/o RUTENGERA, Appellant (Original Accused). Criminal Appeal 46/1935.

Criminal Law-Manslaughter-Provocation-Mistake of fact-Tanganyika Penal Code, section 11.

$Held~(22\textrm{-}5\textrm{-}35)\textrm{.}$ That the evidence disclosed that accused (appellant) had an honest and reasonable but mistaken belief that deceased had poisoned his child and that such belief was sufficient to reduce the charge to manslaughter.

Dennison for Crown.

At the trial, evidence was given that Buinda (the deceased) who was a sister of appellant came to live with appellant, his wife and children, about a year before her death. A child of appellant was left in charge of Buinda for a short period while its mother went to draw water. When the mother returned she found the child seriously ill and the child soon afterwards died. Buinda admited having administered medicine to the child. Some time later Buinda again came to live at appellant's house and another child of appellant during the absence of the parents became seriously ill. Buinda when asked by the appellant on his return as to the cause of the child's illness refused to reply. The child died the following day. Appellant admitted that in his anger he stabbed Buinda immediately after the child's death and in his defence stated that when the child died he became certain that it had been given poison.

JUDGMENT.—After hearing Crown Counsel and giving careful consideration to the facts of this case, we are of the opinion that the accused should have been found guilty of manslaughter. The learned Judge found and in our view found correctly that the accused when he killed Buinda had a genuine belief that she had poisoned his child Mtobosi, but we go further and say that there is evidence to show that this belief was not an unreasonable one. The accused and his wife gave evidence that another child of their had died immediatly after being given "medicine" by the deceased Buinda. This in itself throws light on whether there was reason to believe that the second child who died in similar circumstances was not given poison. The question of witchcraft does not enter into the case, for the evidence is that where witchcraft is mentioned the administration

of something physical is meant. As for the view that the accused brooded over the death of the first child during the illness of the second child it is to be remembered that the evidence shows that it was until just before the child died that the accused indicated his intention of killing anyone in the event of the child dying. The fair construction to put upon the evidence is that when he saw that his child was dying he became confirmed in his suspicions that his first child had been poisoned by Buinda. He believed that the second child was there and then being killed as surely as if a lethal weapon were being used. This, as the learned Judge found, was a geniune belief and for the reasons we have stated we do not think it was an unreasonable one. It is clear from the evidence that from the time he conceived the belief until the death of the child when he killed Buinda was probably a matter of moments or seconds. The evidence of Mkwazi binti Miale at p. 10 of the typewritten record supports this view. It reads: "The child was very sick and breathing slowly. I knew the child was dead as I felt it invself. When I went to feel the child the second time I found Then the child was dead. I cried out 'the child is dead'. Musomi said 'If my child will die I will kill someone'. $_{\rm He}$ said that at the time the child was breathing its last". $It$ might indeed be inferred from this evidence that the child was already dead when the accused spoke, but at least it shows that the words were not uttered until the child was breathing its And the witness continues that then followed the sound last. of a knife striking a person's body. At page 11 the evidence of this witness reads: "I heard the blow immediately after the child died". The witness Nyambona binti Lugeni also speaks to the suddenness of the affair. Still another witness Ngala binti Mazulu at page 14 says: "Accused came to examine the child. Then he said: "If my child dies to-day I will stab someone". That was when the child was breathing a little. "Then we heard someone stab someone and someone grunt. Musomi stabbed Buinda". On page 16 the native authority messenger, Mwinyabu bin Mseso, says the accused told him Buinda had bewitched his son and killed him, but then it would appear that in Kikerewe the word used for 'bewitch' would include the administration of a physical poison (vide the statement of the Interpreter on page 19). What the accused says in his defence at page 19 is fully supported by the passages from the evidence we have guoted. It reads: "After a little time I heard Mgala say the child is dead. I went to look at the child. He was breathing his last. When the child died I felt very great sorrow feeling that this woman had poisoned my child. I thought she had given him some poison. I do not know if she had given him something with poison in it, or had given him poison... When I felt bitterness I stabbed her with a knife". The learned Judge says: "The definition of provocation given in section 192 of the Penal Code refers to a wrongful act or insult. These

words do not include an honest and genuine belief in a wrongful act". In our opinion this is not a correct statement of the law: section 11, which provides that a person who does an act under an honest and reasonable mistake of fact, is to be treated as if the facts had been as he believed them to be, is general in its application: if the honest and reasonable mistake were that the person killed was attempting to kill the accused, the latter is to be considered as having acted in self defence, and similarly if, as in the present cas-, the mistake is as to the existence of facts, which, if they did exist, would amount to a wrongful act or insult (within section 192) to the accused or a person to whom he stands in one of the relations mentioned in that section, he should be convicted of manslaughter and not of murder. We alter the conviction to manslaughter and sentence the accused to three years' hard labour.