Rex v Kagari (Criminal Appeal No. 232 of 1948) [1949] EACA 22 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and EDWARDS, C. J. (Uganda)

REX, Respondent (Original Prosecutor)

KAGARI s/o KIMBARA, Appellant (Original Accused)

Criminal Appeal No. 232 of 1948

(Appeal from decision of H. M. High Court of Tanganyika)

Criminal Law-Murder-Provocation-Intimation by wife that she is about to desert her husband—Tanganyika Penal Code, sections 202 and 203.

The facts appear sufficiently from the judgment.

Held (26-1-49).—That an intimation that a wife is about to desert her husband unaccompanied by some wrongful act or insult of a gross nature cannot be said to amount to grave and sudden provocation within the meaning of sections 202 and 203 of the Tanganyika Penal Code.

Appeal dismissed.

Appellant absent, unrepresented.

Todd, Crown Counsel (Kenya) for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL C. J.).—The appellant was convicted of murder of his wife in the High Court of Tanganyika. The learned trial Judge accepted the appellant's version of how he came to kill the deceased and the only question therefore, that arises is whether on the facts so found he has been properly convicted of murder. In a statement made before the committing magistrate to which the appellant adhered at his trial he stated that he had been married to the deceased for two years and lived on good terms with her. He then went on to say the following:

"The day before she was speared at 6 p.m. we quarrelled together. I had staved at home that day and I saw she used the cooking pot of my mother to cook food and I forbade it as she had four pots of her own. Then she abused me badly so I hit her on the head with my hand and she ran away and did not return that night but came back next morning at 9 a.m. I was lying in bed and I heard her opening the box and I caught hold of her arm and asked her what she was doing. She said she wanted to leave. I put the spear on the ground and said she was not to leave the house, so she jumped over the spear in order to leave the house. I got annoyed as this is forbidden so I picked up the spear and stabbed her in the back on the side once only. She fell down with the spear sticking in her and she cried out. I withdrew the spear and tried to spear myself in the stomach as I had killed my wife."

On these facts we have no hesitation in deciding that the learned Judge came to the right conclusion. It has always been held in East Africa that a mere denial of sexual intercourse by a wife to her husband will not per se constitute legal provocation; neither in our view can an intimation that a wife is about to desert her husband unaccompanied by some wrongful act or insult of a gross nature be said to amount to grave and sudden provocation within the meaning of sections 202 and 203 of the Tanganyika Penal Code. In the present case both the assessors were of the opinion that the wife's action was provocative but both also agreed that the appellant's action was out of all proportion to the provocation he received. Neither of them had ever heard of a case where a like action on the part of a wife had resulted in a murderous assault; it is manifest therefore that even in the case of a primitive African the wife's action was not of a character calculated to deprive an ordinary person of self-control. The fact that the appellant committed the act in anger and was apparently immediately repentant will doubtless receive all the consideration due to it in another place.

The appeal is dismissed.