Musungu v Reginam (Criminal Appeal No. 72 of 1955) [1955] EACA 339 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and BRIGGS, Justice of Appeal

FESTO SHIRABU s/o MUSUNGU, Appellant (Original Accused)

## υ.

REGINAM, Respondent Criminal Appeal No. 72 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, Hooper, J.)

Provocation—Proof of—Murder—Manslaughter—Acceptance of plea of guilty of manslaughter on charge of murder—Penal Code, section 203.

The appellant was convicted of murder.

In the course of his judgment the trial Judge stated: "By section 203, for for the defence of provocation, which may reduce murder to manslaughter, to apply, it must be proved that the act which causes death is done (1) in the heat of passion, caused by (2) sudden provocation; and (3) before there is time for the passion to cool. These facts must be strictly proved."

Section 203, Penal Code provides: "When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only."

When charged the appellant had offered to plead guilty to manslaughter and and Crown counsel was willing to accept this plea; but the court refused to do so.

Held (18-4-55).—(1) Facts relied on as provocation do not have to be "strictly proved". It is only necessary that there should be such evidence as to raise a reasonable probability that they exist. If this is the effect of the evidence, the onus lying upon the prosecution is not discharged and murder is not proved.

(2) There is nothing in Chacha s/o Wamburu v. R. to suggest that a trial Judge should insist on proceeding with a charge of murder, where there is a reasonable possibility that the offence is only manslaughter.

Appeal allowed. Conviction and sentence for murder set aside. Conviction for manslaughter substituted. Appellant sentenced to five years' imprisonment with hard labour. Cases referred to: Mancini v. D. P. P., 28 C. A. R. 65; Holmes v. D. P. P., (1946) A. C.

Sansi C, Sansi C, Sansi C, Sansi C, Sansi C, Sansi C, Sansi C, Sansi C, Sansi C, Sansi C, Sansi C, Sansi C, Sansi C, Sansi C, Ceylon V, Perera, (1953) 2 W. L. R. Chacha s/o Wamburu v R., 20 E. A. C. A.

Mackie-Robertson, for appellant.

Brookes, for respondent.

JUDGMENT (prepared by Briggs, J. A.).—This was an appeal from a conviction of murder by the Supreme Court of Kenya sitting at Kisumu on 2nd February, 1955. When charged, the appellant offered to plead guilty of manslaughter and Crown counsel was willing to accept this plea; but the court refused to do so. On appeal, Crown counsel did not support the conviction of murder, and asked us to substitute a conviction of manslaughter on the ground that the learned trial Judge had misdirected himself on the issue of provocation. The appellant did not ask for an acquittal. We did as suggested, and sentenced the appellant to five years' imprisonment with hard labour. We now give our reasons.

The provocation relied on was that the appellant had found his wife in the act of adultery and had thereupon killed her paramour. The adultery itself

was admitted, but the learned trial Judge found against the accused on various surrounding facts which were in issue. In particular he found (1) that the appellant had not been an actual eye-witness of the adultery, (2) that some delay had taken place which suggested deliberation, and (3) that the nature of the assault showed an intention to kill. In view of quotations made by the learned Judge from Mancini's case and Holmes's case, we think it very possible that the learned Judge may have misunderstood the effect in law in this country of the first and third of these findings. On both these point we refer to Kwaku Mensah v. R. (1946) A. C. 83, A. G., Ceylon v. Perera (1953) 2 W. L. R. 238, and the judgment of this Court in Chacha s/o Wamburu, Criminal Appeal No. 208 of 1953 (20 E. A. C. A. 339). It is not, however, necessary to examine these matters in detail, since the case was decided not on them, but on the following:

In the course of his judgment the learned Judge said: -

"By section 203, for the defence of provocation, which may reduce murder to manslaughter, to apply, it must be proved that the act which causes death is done—

$(1)$ in the heat of passion, caused by

- (2) sudden provocation; and - (3) before there is time for the passion to cool.

These facts must be strictly proved."

Observe the words "strictly proved". Later he said,

"No doubt the accused's wife had treated the accused shamefully, and he was himself a much injured person; but for the accused to be able to avail himself of the defence of provocation, the provocation must be strictly proved. It has not been proved to my satisfaction in this case."

These passages appeared to us to be such grave misdirections on the law relating to provocation that the conviction could not possibly stand.

It is no doubt common practice to talk of a person accused of murder "raising the defence of provocation". But the phrase has its dangers. It may obscure the law, as recently restated by the Privy Council in Chan Kau v. Reg. (1955) 2 W. L. R. 192, following and explaining Woolmington v. D. P. P. (1935) A. C. 462. The true view, as stated by Lord Tucker at p. 194, is that: $-$

"... in cases where the evidence discloses a possible defence of selfdefence the onus remains throughout upon the prosecution to establish that the accused is guilty of the crime of murder and the onus is never upon the accused to establish this defence any more than it is for him to establish provocation or any other defence apart from that of insanity. Since the decisions of the House of Lords in Woolmington v. Director of Public Prosecutions and Mancini v. Director of Public Prosecutions, it is clear that the rule with regard to the onus of proof in cases of murder and manslaughter is of general application and permits of no exception save only in the case of insanity, which is not strictly a defence."

So far from it being necessary that the facts relied on as provocation should be "strictly proved", it is only necessary that there should be such evidence of them as to raise a reasonable probability that they may exist—not even a balance of probability. If this is the effect of the evidence, the onus lying on the prosecution. is not discharged and murder is not proved.

We would refer again to *Chacha's case* on the situation arising where on a charge of murder the Crown desires to accept a plea of guilty of manslaughter. Nothing which we said in that judgment should be interpreted as suggesting that the trial Judge should insist on proceeding with the charge of murder, where there is a reasonable possibility that the offence was only manslaughter.