Rex v Bulakale (Criminal Appeal No. 29 of 1945) [1945] EACA 9 (1 January 1945)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), MARK WILSON, Acting C. J. (Tanganyika) and BARTLEY, J. (Kenya)

#### REX, Respondent (Original Prosecutor)

#### v.

# JUMA BULAKALE s/o BABIGAMBA, Appellant (Original Accused) Criminal Appeal No. 29 of 1945

### (Appeal from decision of H. M. High Court of Uganda)

Criminal Law—Murder—Provocation—Manslaughter.

The appellant received several blows, more or less of a severe nature, from the deceased and in retaliation speared the deceased to death. He was convicted of murder and appealed.

Held (29-1-45).—That although the immediate retaliation by the accused was disproportionate to the provocation it was clearly attributable to the assault by the deceased and it occurred while the accused in the heat of passion was deprived of his self control.

Appeal allowed. Conviction for manslaughter substituted.

Appellant absent, unrepresented.

$\cdot\colon$

Phillips, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.—The accused tells such a probable story that we consider it should prevail against the improbable account of the affair given by the Crown witnesses. It seems to us more than strange that the Crown witnesses should insist that they did not see any blow struck by the deceased when it is the case that the accused was struck what must have been a severe blow on his finger, which was still bleeding when seen shortly afterwards by the chief Gabrieli. There is also the evidence of the accused that he was struck on the leg, and this is confirmed by the evidence of Gabrieli, who said he saw a little blood on his leg. This injury, the accused said, was caused by one of those attacking him in concert with the deceased and there is also evidence by the accused that he apprehended further blows from the deceased, who was armed with a long stick. The finger injury alone must have caused a good deal of pain.

On the evidence, the finding of the first assessor that the offence was manslaughter is, in our opinion, the reasonable view to take of the case. The retaliation by the accused by throwing his spear and fatally injuring the deceased was immediate. It was no doubt disproportionate to the provocation, but it was clearly attributable to the assault by the deceased and the retaliation occurred, in our opinion, while the accused, in the heat of passion, was deprived of his selfcontrol, judging him as an ordinary person of the community to which he belongs. We alter the conviction to one for manslaughter and mark our sense of the seriousness of the case by imposing a sentence of ten years hard labour.