Rex v Kakyebuka (Criminal Appeal No. 91 of 1945) [1945] EACA 23 (1 January 1945)

# COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR JOHN GRAY, C. J. (Zanzibar) and PEARSON, J. (Uganda)

## REX, Respondent (Original Prosecutor)

# KAKYEBUKA s/o NYAGARA, Appellant (Original Accused) Criminal Appeal No. 91 of 1945

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

Criminal Law—Murder—Provocation—Killing of another by mistake—Manslaughter—Uganda Penal Code, Sections 11, 198, 199.

The appellant, whilst in a transport of passion caused by grave and sudden provocation, killed the deceased in the mistaken belief that she was one of the persons who had provoked him.

He was convicted of murder and appealed.

*Held* (1-5-45).—That if $\vec{A}$ , intending to attack B in such circumstances as would have made the killing of B manslaughter, by mistake kills C, the killing of C is manslaughter.

Appeal allowed, conviction altered to one of manslaughter.

East-Pleas of the Crown I. 231.

Rex v. Gross (1913) 23 Cox C. C. 455 referred to.

Appellant present, unrepresented.

Dreschfield, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by SIR JOHN GRAY, C. J.).—The facts in this case may be taken from the following passage in the judgment of the learned trial Judge: —

"There is a conflict of evidence as to the circumstances. I think that the evidence of the accused's wife, Maria, and of her mother, Katagirwa, is open to doubt, and that they are both concealing the facts which led up to this homicide. I therefore accept the explanation given by the accused.

"He said he had been to work this day and on his return in the evening he found that his wife had not prepared food. On his remonstrating with her she showed no intention of preparing food for him. He then went and joined a beer party. After he had finished drinking he went to his house, followed by his wife and his mother and his wife's two sisters, Kabalunzi and Karufu. His wife started to quarrel with him and struck him with a cane. He retaliated and then the other three females took the wife's part and started to beat him. He managed to get outside the house, they followed him, knocked him down and beat him again. He got away and went to his house and got his spear. He was quite candid and said his intention was to kill his wife. The four females ran away, pursued by him. Kabalunzi took refuge in the kitchen; the accused thought that it was his wife who had done so and thrust his spear through the wall at her, with the fatal result already described."

On this evidence the assessors gave their opinions that the appellant was guilty of manslaughter. In finding the appellant guilty of murder, the learned trial Judge said: $\rightarrow$

"I assume that if the victim had been his wife he would have been guilty of manslaughter only. He has been quite open in Court in admitting that he was not in any way incensed with Kabalunzi. He even went so far as to imply that her part in the affair was mainly that of a peacemaker. In general, I find myself unable to apply to such a mistake as that made by the accused either of the epithets 'honest' or 'reasonable'. In particular, I regard the actual mistake as entirely unreasonable. He gave as a ground for his mistake that he heard the voice of his wife somewhere in the neighbourhood of the kitchen, and this led him to the belief that she was inside. He took no trouble to verify his belief, based as it was on such slight grounds. and recklessly struck through the wall at whoever chanced to be inside. All that he had to do was to go to the door and look inside. I do not find that section 11 of the Penal Code can be applied in his favour."

Section 11 of the Penal Code, which deals with the criminal responsibility of a person doing an act "under an honest and reasonable, but mistaken, belief in any state of things" must be read in conjunction with sections 198 and 199 of the same Code. Section 198 declares to be manslaughter the unlawful killing by one person of another "in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool". Section 199 defines provocation as "any unlawful act or insult of such a nature as to be likely when done to an ordinary person ... to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered".

Reading these three sections together, we are of opinion that in determining whether an accused person, who mistakenly kills one person intending to kill another, is guilty of murder or manslaughter, regard must be had to the circumstances in which the accused person was placed at the time. In particular, regard must be had as to whether the mistake arose owing to the fact that at the time the accused was suffering from provocation sufficient to deprive an ordinary person of the power of self-control and by reason of such provocation was acting in the heat of passion and before there was time for such passion to cool. It is well established that if A, intending to attack B in such circumstances as would have made the killing of B murder, by mistake kills C, the killing of C is murder. By parity of reasoning, it would appear to follow that if A attacks B after receiving such provocation from B as would have reduced the crime to. manslaughter if $B$ had been killed the crime would be equally manslaughter if $A$ killed $C$ mistakenly believing him to be $B$ .

#### East—Pleas of the Crown—I. 231, says: $-$

"If the blow intended against one, and lighting upon another, arose from a sudden transport of passion, on reasonable provocation, which in case the one had died by it, would have reduced the offence to manslaughter, the fact will admit the same alleviation if the other should happen to fall by it."

## In Rex v. Gross (1913) 23 Cox C. C. 455, Darling, J., said: —

"If the husband (sc. of the prisoner) had been killed, owing to the provocation which it is said was given by the blows, I should have to tell the jury that, if they believed that those blows were given and the provocation following upon them was such as to upset the ordinary balance of the prisoner's mind, the law has long allowed that such provocation as that reduces the crime from murder to manslaughter and I should, therefore, say that, the provocation operating upon the mind of the prisoner and reducing the killing to manslaughter, it would equally be manslaughter,

whether the person who gave the provocation was killed or some other person was killed. The reason of the distinction is that the ordinary balance of the mind of the accused was so upset. As is often said, the law, in leniency and in mercy, does not hold a person to the full consequences of an action committed in such circumstances."

In our opinion, similar reasoning applies to the present case. The appellant, whilst in a transport of passion caused by grave and sudden provocation, killed the deceased in the mistaken belief that she was one of the persons who had given that provocation.

We accordingly alter the conviction to one of manslaughter and the sentence to one of five years imprisonment with hard labour.

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