Gaboye v Rex (Criminal Appeal No. 91 of 1949) [1949] EACA 37 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and BOURKE, J. (Kenya)

GABOYE s/o PARMAT, Appellant (Original Accused) $\pmb{\nu}.$

> REX, Respondent (Original Prosecutor) Criminal Appeal No. 91 of 1949

(Appeal from decision of H. M. High Court of Tanganyika—Sinclair, J.)

Murder—Provocation—Section 202, Tanganyika Penal Code.

The appellant's half-brother Kameri had been rendered unconscious by a blow delivered by the deceased. The appellant asked Kameri whose face was covered with blood who had beaten him and Kameri replied it was the deceased. The appellant thereupon went to the deceased's but and delivered on his head a fatal blow with a knobkerrie fracturing his skull.

Held (6-7-49).—That although the sight of his brother's bleeding head must have angered the appellant, there was no provocation within section 202 of the Tanganyika Penal Code as the wrongful act was not done in the presence of the appellant.

Rex v. Kirangi, 7 E. A. C. A. 69 and Okurutumu s/o Ongiro v. Rex 5 E. A. C. A 111 and Wallace Johnson $v$ . R. (1940), A. C. 231.

Appellant absent, unrepresented.

Holland, Crown Counsel (Kenya), for the Respondent.

JUDGMENT.—The appellant was convicted of murder in the High Court of Tanganyika. Two issues are raised in the Memorandum of Appeal both of which are pertinent.

- (a) Although the assault by the deceased on the appellant's brother was not committed in the actual presence of the appellant is not the defence by legal provocation still open to him? - (b) Did the learned trial Judge err in disregarding the opinion's of the assessors who found that the appellant was so drunk as to be incapable of forming a murderous intent?

As regards the first point the evidence as accepted by the learned trial Judge discloses the following circumstances. At a beer party an altercation broke out between the deceased and the appellant's half-brother Kameri. Both of them left the house and a little later Kameri was rendered unconscious by a blow delivered at him by the deceased. On recovering consciousness he returned to the house where the beer party had taken place and where the appellant still was. As he entered, the appellant noticed that his face was covered with blood and asked him who had beaten him. Kameri named the deceased. Soon after the appellant, armed with a knobkerrie, went to the deceased's hut which was in the same homestead and finding him inside the hut, delivered him a blow on the head with the knobkerrie which caused a fracture of the skull from which he subsequently died.

On these facts the learned Judge held that although the sight of his brother's bleeding head must have angered the appellant, because the deceased's wrongful act against his brother was not done in the appellant's presence, there was no provocation to the appellant within the meaning of section 202 of the Tanganyika Penal Code. In the case of R. v. Kirangi VII E. A. C. A. 69 on somewhat similar facts this Court held that there could be no question of legal provocation within the meaning of the section, and the court distinguished the earlier case of Okurutumu $s/o$ Ongiro v. R. V E. A. C. A. 111 on the ground that in that case the accused acting under the influence of an honest and genuine belief that a wrongful act was being done in his presence to his nephew the accused then and there retaliated. In the present case the words used in the section "or in the presence of an ordinary person to another person ... to whom he stands in a conjugal, parental, filial or fraternal relation" cannot possibly be stretched to cover the circumstances obtaining. Here, the appellant acted on a report he received from his brother, he then took a weapon and sought out the deceased who he found sitting in his own hut. It was no momentary act of uncontrolled passion on seeing his brother bleeding from a head wound, but a retaliatory act of revenge. The learned trial Judge therefore applied the law correctly in holding that the defence of legal provocation did not arise. We are of course aware that there are English decisions where the defence of provocation has availed in cases where the act which caused the provocation was not done in the accused person's presence, but in view of the definite wording used in section 202, which admits of no ambiguity, it would be a violation of the principle enunciated in Wallace Johnson v. The King if we attempted to put a gloss on them. Having said this, however, we would add, that we can conceive circumstances in which the act might be done in such immediate proximity to the person accused, as to make the doctrine of "constructive" presence possibly applicable, but this case is certainly not one of them.

On the second issue there was certainly evidence that there had been a good deal of beer drinking and it seems a safe inference to assume that the appellant was not a completely sober man at the time. Nevertheless again we think that the learned Judge justifiably came to a conclusion contrary to the opinions. expressed by the assessors. The appellant was not so drunk that he was unable to interrogate his brother and find out the name of his assailant. He was able, both to take in this information and to walk or run, armed with a suitable weapon to the deceased's hut. These actions were not those of a man whose mind was so bemused by drink as not to know what he was doing or to form the specific intent to do at least grievous harm to the deceased. The appellant in his statutory statement before the magistrate in the lower court to which he adhered at his trial stated that he did not mean to hurt the appellant seriously and because of it the lowness of the roof of the hut he could not in fact have done so. The learned trial Judge however who saw the weapon which he describes as a knobkerrie "with a very heavy knob" was left in no doubt that a blow on the head with such a weapon delivered with force would undoubtedly be likely to cause death or grievous harm. From the medical evidence it is quite evident that despite the lowness of the roof such a degree of force must have been used as there was a depressed fracture of the skull and a piece of the skull bone was found driven deeply into the brain substance. This is a case where no doubt the appellant's desire to revenge the wrong done to his brother was influenced by the drink he had taken but it is impossible for us to say that on the evidence as a whole the learned Judge was wrong in holding that the appellant was not so drunk as to be incapable of forming a specific intent, namely to do at least grievous harm to the deceased.

The appeal is dismissed.