Rex v Famba (Criminal Appeal No. 18 of 1941) [1941] EACA 42 (1 January 1941)

# COURT OF APPEAL FOR EASTERN AFRICA

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Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and SIR HENRY WEBB, C. J. (Tanganyika)

# REX, Respondent

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#### YOKAYAKIMU WUNYI S/O FAMBA, Appellant

## Criminal Appeal No. 18 of 1941

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

Criminal Law—Murder—Allegation of being a witch doctor not provocation.

Appellant appealed from a conviction of murder. He had killed a woman who had been his lover and who had deserted him for one Besweri, who had died shortly before the time in question. Appellant had gone to the Muluka Chief to ask for the return of the woman. The woman refused to go back to him. The Muluka Chief then, against the appellant's will, ordered the appellant and the woman to be brought under escort before the Gombolola. On the way they quarrelled and the woman called the appellant a witch doctor and said he had been responsible for the death of Besweri. At this the appellant fell upon her and repeatedly stabbed her so that she died.

Held (7-2-41).—That the killing was murder.

Appeal dismissed.

Appellant absent unrepresented.

Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by Sir JOSEPH SHERIDAN, C. J.).—The question for consideration in this appeal is whether when the appellant killed the deceased he was suffering from legal provocation.

The learned Judge in his judgment said, "That the accused inflicted these terrible injuries in a fit of temper I am prepared to admit. But I think the provocation offered falls very far short of that which should cause a person of the accused's intelligence and rank of life to lose his self-control". The appellant was undoubtedly angry at the deceased woman having deserted him and at the time she met her death at the hands of the appellant they were on their way to the Gombolola Chief, to whom they had been sent by the Muluka Chief in charge of Yasoni. The appellant claimed the woman as his wife and complained that she had left him for a man named Besweri, who died shortly before the murder. The woman denied that she was the appellant's wife and the question as to whether she was or not or whether the appellant had reason to believe that she was, was an issue in the case.

The learned Judge found against the appellant on this issue and with this view the assessors agreed. Accepting this finding, the woman's decision to leave the appellant would not assist him in a defence of provocation and in saying this we do not wish to be understood as saying that the position would be altered were she proved to have been his wife. We think it is clear that the appellant did not want to go to the Gombolola and that if he had to go to the Gombolola he wanted to take the woman there himself and not go there in charge of Yasoni. (See Yasoni's evidence.) $\mathbf{Y}$

In his statement to the police he said she started to abuse him, saying, "You have killed my brother Besweri. I hope that you are struck by lightning and killed yourself". He is supported in this statement by the evidence of Yasoni in the following passage: "I told accused I would not allow him to go with the woman, but would take him to the Gombolola. The woman was not prepared to go with accused. Accused did not say anything to me. The woman first refused and then I told accused I would not let him go. After the woman refused she said the bit about accused being a witch doctor and then I told him he could not go with her. Immediately after the accusation of being a witch doctor the accused got angry. The deceased was not angry. Accused was made angry by the remark and threw the deceased to the ground; immediately after I saw the wound in the back being inflicted; the accused struck very hard. The wound was under the arm to the side and the bowel protruded. . . . . I heard the talk at Yoweri's. It was accused who was complaining about the woman's conduct. As a result of this the Chief sent for deceased. Accused wanted the dispute settled and the Chief suggested that the Gombolola was the place to go. Accused agreed to this. It was the woman who abused the accused that started the trouble. After deceased called the accused a witch doctor she suggested going to the Gombolola and accused refused. It was after that that the accused stabbed the deceased."

As showing that the appellant was unwilling to go to the Gombolola we quote the evidence of Yoweri, the Muluka Chief, for it might appear from part of Yasoni's evidence that the appellant was agreeable to going to the Gombolola. "Yasoni was present. Accused agreed to go to the Gombolola. I compelled accused to go to the Gombolola; he was not willing and I made him go. The deceased was willing to go to the Gombolola. Accused wanted me to hand over the woman to him. He did not want to go to the Gombolola as the man who enticed the woman away was dead". And finally Sabakaki, the Muluka Chief of Kasita, who found the appellant sitting down near the woman's dead body, said, "I asked the accused if he had a quarrel with the woman. He said he had. I asked him why he had killed her and he said he killed her because she deserted him and went away and married another man." In this evidence one sees that the source of the appellant's anger was the woman deserting him, and we have already indicated that her doing so could not found a defence of legal provocation. His annoyance must also have been increased by his having been compulsorily sent to the Gombolola in charge of Yasoni. If the appellant had not already been angered by the desertion and his being sent to the Gombolola it is improbable that he would have done what he did on being called a witch doctor and accused of causing Besweri's death.

In view of the finding of the learned Judge and the assessors that the provocation was insufficient, we consider that we cannot rightly come to a different conclusion.

We observe that the learned Judge commented on the fact that a deadly weapon was used repeatedly in a fierce and savage manner. As to this we should like to say that the fact of more blows than one being struck will not of itself render the provisions of section 199 Criminal Procedure Ordinance unavailable to an accused person. It may well be that the additional blows are struck while the accused is still deprived of his self-control as a result of the provocation received and that a proper finding is manslaughter.

The appeal is dismissed.