Rex v Kafausa (Cr. App. No. 125 of 1939) [1939] EACA 154 (1 January 1939)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya), WhitLey, C. J. (Uganda), and GAMBLE, J. (Uganda)

REX, Respondent (Original Prosecutor)

## SAMSONI KAFAUSA, Appellant (Original Accused) Cr. App. No. 125 of 1939

(Appeal from decision of H. M. High Court of Uganda) Criminal law—Murder—Manslaughter—Provocation—Whether mere

abuse can amount to provocation.

Appellant appealed from a conviction of murder of a woman, not his wife, with whom he had been cohabiting.

Appellant admitted the killing and stated that during a beer party at which he and the deceased were present he saw the deceased get up and leave the party in response to a signal from another man; that on the appellant leaving the party a little later he found the deceased in the act of sexual intercourse with the other man who ran away at sight of the appellant; that the appellant then told the deceased to put on her clothes and follow him to his home but that she refused to do so and abused him; that the appellant then became angry and struck her twice thereby causing her death. From the other evidence it appeared that the woman had been slashed with a panga.

The trial Judge directed himself and the assessors that abuse in itself is insufficient to reduce a case of murder to one of manslaughter.

*Held* (18-10-39).—(1) (Semble) There may be cases where insulting words used in particular circumstances may constitute legal provocation;

(2) Where the abuse is merely vulgar, abuse not unusual between persons of the class of the appellant and the deceased, such abuse would not ordinarily constitute provocation in law.

Appellant in person.

Aubrey, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—On previous decisions of this Court on the admission of the appellant that the woman was not his wife, even assuming that he had found the woman and Erisa in *flagrante delicto*, the case against him would be murder. and for that reason alone the appeal will be dismissed.

There are two other aspects of the case to which we wish to ' refer. The first is as to whether there was a misdirection by the learned Judge in holding that abuse by itself is insufficient to reduce a case of murder to manslaughter. As regards this we are not prepared to say that there may not be cases when insulting words used in particular circumstances may not constitute legal provocation, r but the evidence of abuse in the present case, the not unusual vulgar abuse that happens between persons of the class of the appellant and the deceased would not ordinarily constitute such provocation.

The second point is that after reading the record it occurs to us that the story told by the appellant does not seem to us an improbable one. These matters are, however, for the consideration of the Executive.

The appeal is dismissed.