Obiero v Rex (Criminal Appeal No. 87 of 1949) [1949] EACA 36 (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. (Kenva)

#### ROBERT OWITI OBIERO. Appellant (Original Accused)

# REX. Respondent (Original Prosecutor) Criminal Appeal No. 87 of 1949

(Appeal from decision of H. M. Supreme Court of Kenya—Thacker, J.)

Provocation—Sections 202 and 203, Penal Code.

The appellant killed his former mistress by inflicting four blows on her head with a panga having suspected her of making away with a considerable sum of money and the deceased having slapped and spat at the accused.

Held (5-7-49).—The mode of resentment adopted by the person provoked must bear some proper and reasonable relationship to the sort of provocation given; in the present case the conduct on the part of the deceased could not justify the violent assault made upon her so as to reduce the offence to manslaughter.

Appellant absent, unrepresented.

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

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—In this case the appellant was convicted of the murder of a woman who had formerly been his mistress, and whom he suspected of having made away with a considerable sum of money which had been entrusted to her for safe custody.

The learned trial Judge accepted his version of the circumstances which led him to attack her with a panga and the only question that arises in this appeal is whether those circumstances amounted in law to provocation sufficient under sections 202 and 203 of the Penal Code to reduce the appellant's crime from murder to manslaughter. From the judgment it is evident that the learned trial Judge fully directed himself on this point, and he has given his reasons why he felt bound to come to the conclusion that they did not. With that conclusion we also are in agreement. Since the amendment to section 203 of the Kenya Penal Code by Ordinance 55 of 1948 it is certainly the law that in considering the effect of provocation upon a person who kills another, the mode of resentment adopted by the person provoked must bear proper and reasonable relationship to the sort of provocation that has been given. In this case, although the appellant might justifiably have been angered by the deceased's refusal to discuss the question of the money coupled with her action in both slapping his face and spitting at him, that conduct on the part of the deceased cannot justify or excuse the violent assault he made upon her with his panga. The learned trial Judge asked the assessors whether they considered that that kind of conduct by an ex-mistress would cause the average African of the appellant's type and age to retaliate upon the woman in the way he did and they were all of the opinion that it would not. One of the assessors thought that the average African might have taken a thin stick in order to chastise the woman but he was of the opinion that in using a sharp cutting instrument like a panga the appellant went far beyond what the situation called for. In such cases as these it is not always easy to draw an exact line between what may or may not amount to provocation as a defence, but in the circumstances of this case we are left in no doubt at all that the learned trial Judge has come to the proper conclusion.

The appeal is dismissed.