Rex v Kaiwaula (Criminal Appeal No. 46 of 1947) [1947] EACA 25 (1 January 1947)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR G. GRAHAM PAUL, C. J. (Tanganyika), EDWARDS. C. J. (Uganda) and PEARSON, J. (Uganda)

REX, Respondent (Original Prosecutor)

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LUDOVIKO ALIAS KAJWAULA s/o BAGENZI, Appellant (Original Accused) Criminal Appeal No. 46 of 1947

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

Criminal Law—Murder—Provocation—S. 202 P. C. Tanganyika—Manslaughter.

Hearing the appellant beating his wife, four men, of whom the deceased was one, went to his house to investigate. While they were discussing the matter the appellant pushed the deceased and caused him to fall down. Deceased got up and struck the appellant on the head with a cane. Whereupon the appellant picked up a knife and stabbed the deceased once only, killing him.

The appellant was convicted of murder and appealed.

Held (28-4-47).—That notwithstanding the initial "pushing" of the deceased by the appellant<br>the facts fully established "provocation" within the meaning of S. 202 of the Tanganyika Penal Code.

Conviction for murder quashed and conviction for manslaughter substituted. A sentence of seven years' I. H. L. imposed.

## Appellant absent, unrepresented.

Windsor-Aubrey, Solicitor General (Uganda), for the Crown.

JUDGMENT (delivered by EDWARDS, C. J.).—This is an appeal from a judgment of the High Court of Tanganyika Territory convicting the appellant of murder and sentencing him to death.

The sole question for us to consider is whether the conviction should not have been for manslaughter. The learned trial Judge in his judgment said "The accused had been sorely tried. He had had a pretty trying time before his temper snapped". Nevertheless, the Judge considered that the facts showed no provocation in law.

A scrutiny of the record shows that two of the prosecution witnesses very definitely said that the accused stabbed the deceased immediately after the deceased had struck him (the accused) with a stick. The witness Yosia said "The deceased hit the accused once with his cane. Thereupon the accused stabbed Athanase in the right side with a knife", while the witness Tarazia said "Deceased rose and hit accused on the left side of the head with a cane. Then accused hit deceased with a knife". We do not ignore the fact that the accused himself had pushed the deceased before the deceased hit the accused with a cane, nor the fact that the deceased fell down as a result of the push.

The medical evidence showed that the deceased had received only one stab wound in the abdomen from which he died.

We think that the prosecution evidence fully established the presence of "provocation" within the meaning of section 202 Penal Code of Tanganyika, notwithstanding the initial "pushing" by the accused.

The medical evidence is that the accused had a scalp-deep wound one and a half inches long on the right side of the head behind the right ear and two superficial bruises one inch long in the right side of the neck, and we think that the deceased's act in striking the accused with a stick and causing such injuries was a wrongful act likely to deprive the appellant of self-control.

For these reasons we quash the conviction for murder and substitute therefor a conviction for manslaughter and sentence the appellant to seven years' imprisonment with hard labour.