Legure v Rex (Cr.A. 58/1934.) [1937] EACA 157 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J. (Uganda), Ag. President, LUCIE-SMITH, Ag. C. J. (Kenya), and WEBB, J. (both of Kenya).

MBERU OLE LEGURE (Appellant) (Original Accused) $\cdot \cdot \cdot v_{\cdot} \cdot \cdot$

## REX (Respondent) (Original Prosecutor). Cr. A. $58/1934$ .

Provocation—Penal Code of Kenya, section 192—Whether charge of murder should be reduced to manslaughter-Statement of law as regards provocation-No evidence that accused provoked deceased to assault him with intention of taking advantage of that assault to kill or wound deceased.

Held (29-6-34).-That there was no evidence that the accused provoked the deceased to assault him with the intention of taking advantage of that assault to kill or wound the deceased. It is only where there is evidence of express malice that the accused cannot claim the excuse of provocation. Conviction for murder altered to one of manslaughter. (Statements of law in Stephen's Digest (art. 245) and Archbold (28th edition), page 893 approved.

Appeal from Supreme Court of Kenya.

Malik for appellant.

Bruce (Solicitor-General, Kenya) for Crown.

Malik.—Appellant killed another Masai. Deceased struck him and gave provocation. No evidence that the blow on appellant's forehead was given afterwards. Question of custom does not arise: As to provocation, p. 901, Archbold, 28th Edition. Cause of death. Riamo says that death took place a month after the wound. Deceased was being treated by his wife. She put her hand into the wound. Archbold, p. 888.

Bruce.—Two points to deal with. $(1)$ Provocation. $(2)$ Cause of death. Who struck the first blow? Opinion of the assessors. Old man not likely to strike a young man. Provocation, 4th paragraph, section 192, Penal Code. Accused was in the wrong and was determined to get the woman away. Provocation in any event would not justify the use of the spear rather than the rungu. Cause of death. Common knowledge or skill.

Malik.—Provocation. Section 192, para, 3 or 4 not applicable. Accused had no intention of procuring an assault on himself, not unusual for people to carry spears.

JUDGMENT.—The appellant applies for leave to appeal from his conviction and sentence for the murder of Morimi ole Langui, and the only ground of appeal is that the appellant received such provocation as should reduce his crime to manslaughter.

It appears that the appellant loved Kariundu, one of the wives of the deceased, and had made, or wished to make some arrangement by which the deceased would divorce here. On the day of the assault the accused came to the deceased's hut with Kariundu's brother and another man and had some talk with the deceased; later, after they had gone, the deceased, his wife, Genoge, and his daughter, Riano, went out to collect firewood, and it was while they were so engaged that the accused came up and inflicted upon the deceased the wound from which he died. No one actually saw the assault, but when Riano came up, after the deceased had been wounded, she saw that the accused had a wound on his forehead which was bleeding. The accused said that when he began to speak to the deceased and told him that he intended to go to the Government about their dispute, the deceased struck him on the forehead wth a piece of firewood, and he thereupon struck the deceased with a rungu. He suggested that the spear wound must have been received by the deceased accidentally, but in his application for leave to appeal he admits that he struck the deceased with both weapons.

The assessors did not accept the story told by the accused, two of them saying that "No old man will strike a young man". As to this Genoge said that the deceased was not very old and was strong.

The learned Judge said "It" (the wound on the accused's forehead) "may have been given to him after he had struck the deceased. But assuming that he did receive this blow before he attacked the deceased, then, if this provocation was sought or voluntarily provoked by the accused himself, it is of no avail", and he concludes, "Therefore if the accused's account of the beginning of the fight is accepted it does not in these circumstances show the provocation necessary to reduce the offence to manslaughter."

In our opinion the learned Judge stated the law in too unqualified terms. The law is thus stated in Stephen's Digest (Art. 245): "Homicide... is not murder, but manslaughter if the act... is done in the heat of passion, caused by provocation . . . unless the provocation was sought or voluntarily provoked by the offender as an excuse for killing or doing bodily harm." In other words, it is only where there is evidence of express malice that the accused cannot claim the excuse of provocation-Sec Archbold, 28th Edition, p. 893.

Here there was no evidence that the accused provoked the deceased to assault him with the intention of taking advantage of that assault to kill or wound the deceased and such evidence as there is does not suggest any quarrel in the earlier part of the day, when the accused was at the hut of the deceased.

In all the circumstances we are of opinion that the conviction for murder should be quashed and the accused convicted of manslaughter and sentenced to ten years' imprisonment with hard labour.