Rex v Katani (Criminal Appeal No. 227 of 1945) [1945] EACA 36 (1 January 1945)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya), Sir G. Graham Paul, C. J. (Tanganyika) and SIR NORMAN WHITLEY, C. J. (Uganda)

## REX, Respondent. (Original Prosecutor)

## KATANI s/o KABWIKA, Appellant (Original Accused)

Criminal Appeal No. 227 of 1945

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

Criminal Law—Murder—Provocation.

The deceased unlawfully slapped the appellant's face twice, whereupon the appellant stabbed the deceased in the back with a knife with great force, from which the deceased died. The appellant was convicted of murder and appealed.

Held (15-11-45).—That in the absence of any evidence whatever to the effect that an ordinary person of the community to which the appellant belonged would be more likely than<br>any other ordinary person of any other community to be deprived of his self-control and induced to assault the deceased by the latter's wrongful act in slapping the appellant's face, the facts of this case did not constitute legal provocation.

Appeal dismissed.

Appellant absent, unrepresented.

Kingsley, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The appellant in this case was convicted of murder of one Mboniko and sentenced to death by the High Court of Tanganyika, at Mwanza on 10th September, 1945. From that conviction he has appealed to this Court.

There is no material dispute as to the facts of the case, although there was no actual eye-witness to the killing of Mboniko. It is admitted by the appellant that the deceased, who was a mine askari employed at the mine where the accused worked, encountered the appellant while he (the appellant) was cutting firewood near a mine beacon. Only the appellant's accounts of the encounter are available and they come to this: that he stabbed Mboniko for the reason that Mboniko slapped his face twice. The medical and other evidence is that the deceased was fatally stabbed in the back by the appellant with a knife, which had been driven in with such force that it was with difficulty withdrawn. The deceased was completely unarmed; he had not even a stick. The face of the appellant, examined soon after the incident, showed no mark of the slapping.

Upon these facts the appellant asks this Court to hold that there was provocation sufficient in law to reduce his crime from murder to manslaughter. There was no evidence whatever to the effect that an ordinary person of the community to which the appellant belonged would be more likely than any other ordinary person of any other community to be deprived of his self-control and induced to assault the deceased by the wrongful act of the deceased in slapping his face. The native assessors were not at all satisfactory on this point and really would not deal with it. The whole thing was left to the trial Judge to decide as a purely general question,

In the absence of any evidence whatever of anything special about the case of the appellant as an ordinary member of the community to which he belongs the success of this appeal would mean that this Court establishes the absolutely general proposition that anyone slapped twice on the face by a completely unarmedman can draw a knife and kill the unarmed man without any fear of it being considered to be murder. This we are not prepared to do. Each case has to be considered on its own particular facts, and on the facts proved in the present case we agree with the learned trial Judge that provocation in law has not been established. We consider that the very careful judgment of the learned and experienced trial Judge is absolutely right and the appeal is accordingly dismissed.