Rex v Mamure (Cr. App. 177/1932.) [1932] EACA 24 (1 January 1932)

### COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya), LAW, Acting C. J. (Uganda), and THOMAS, J. (Kenya).

## REX

(Respondent) (Original Prosecutor)

# TOYA s/o MAMURE

(Appellant) (Original Accused).

## Cr. App. 177/1932.

Indian Evidence Act, section 122—Admissibility of evidence of wife married by native custom-Defence of provocation.

$\text{Held}$ (29-12-32): -(1) That the evidence of a wife married by native custom is admissible.

(2) That as a general rule no words or gestures, however opprobrious<br>or provoking, can be considered in law to be provocation sufficient<br>to reduce murder to manslaughter if the killing be effected with $-a$ deadly weapon.

The appellant in his appeal submitted, inter alia, that his wife was not a competent or compellable witness, and that the decision of this Court in Rex v. Robin (infra) is bad and should be departed from.

Branigan for Crown.

Appellant, absent, unrepresented.

*Branigan*.—Wife's evidence may be admitted $\quad \ \ \text{if} \quad \ \ \text{the}$ accused to whom she is married consents. Section 122 Evidence Act. Rex v. Lapworthy, 22 C. A. Reports, 87; Rex v. Amkeyo (1917), E. A. L. R. 14; Rex v. Robin (1929), 12 E. A. L. R. 134; Rex v. Mwakio Asani (infra).\* Cf. Rex v. Palmer (1913), 2 K. B. 29.

JUDGMENT.—This is an appeal by Toya s/o Mamure from a conviction on the charge of murdering Toya s/o Makajumbe.

The accused and Kache, the mother of the deceased, were neighbours. The latter kept fowls which annoyed the accused by causing damage to his maize. He had on several occasions told Kache to shut up her fowls.

On the day of the occurrence the fowls had got loose and in consequence the accused and the deceased were abusing one another. Kache found them so engaged and requested them to stop. She says that they fought, but she gives no particulars of any blows. Deceased was in his house and the accused asked him to come out. He refused. The accused then went into his

own house, some twenty paces away, and brought out a bow and arrow. On coming out he fired straightway at the deceased. From the wound thus caused the deceased died. $\mathcal{L} \in \mathbb{R}^3$

Kache says that the deceased had a piece of firewood about eighteen inches long in his hand. There had been no previous dispute between the accused and the deceased; but on this day the accused was excited on account of the hens; and both the accused and the deceased were abusing one another.

The wife of the accused says that one of Kache's fowls was destroying the maize. The accused went and got the bow and arrow, and when she tried to stop him, he pushed her down. The decased was standing at his door with a piece of firewood. but was not threatening the accused.

These are the material facts in the case.

The trial Judge left the following question to the assessors: Did the accused kill the deceased when his passion had been so roused by grave and sudden provocation, which so unbalanced his mind, that he did not know what he was doing.

What explanation he gave to the assessors we do not know, since there is no note.

The first and second assessors answered the question by saying that the accused intentionally killed the deceased. There was nothing to defend. The third assessor said: "he killed without reason."

The trial judge interpreted those statements as being that the three assessors found that the accused deliberately shot at deceased without there being any grave and sudden provocation such as would reduce the offence to one of manslaughter. The trial judge goes on to say that there was no serious risk to the accused from a small piece of burning firewood, and the evidence did not show that the deceased did anything really hostile after coming outside his hut. He further said that the accused had nothing to fear from the deceased who had no weapon either in his hand or in his hut, and the men were up till this quarrel on good terms and were sons of two brothers. He found that the provocation was neither sudden nor grave; and that the act of the accused was one of wanton brutality.

Thus it is seen from the evidence that only words passed between the accused and the deceased. Although it is said that the accused and the deceased fought, there is no evidence of any blow as was the case in Rex v. Lynch, 5 C. P. 817. As a general rule, no words or gestures, however, opprobrious or provoking. will be considered in law to be provocation sufficient to reduce homicide to manslaughter, if the killing be effected with a deadly weapon. Possibly some consideration might be given to the easily excited brain of the native and to the annoyance caused by 'fowls doing damage repeatedly to crops. These are not, however, x. matters which may be considered in this Court since in law be they are not adequate to reduce the charge from murder to manslaughter.

The question raised as to the admissibility of the evidence of the wife of the accused, she being a wife by native custom, has recently been dealt with by the East African Court of Appeal in the unreported case of Mwakio Asani s/o Mwanguku (Criminal Appeal No. 63 of 1930)\* in which the decision given in Rex v. Amkeyo, L. R. 7, E. A. L. R. 14 was followed and approved.

The evidence of the wife was therefore admissible. Even if had been excluded, the evidence for the prosecution would not have been sufficiently affected to enable us to vary the decision at which we have arrived.

The appeal must be dismissed.

\* Now reported at p. 133 of this Volume.