Rex v Mwale (Cr.A. 69/1936.) [1936] EACA 102 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); HALL, C. J. (Uganda); and Law, C. J. (Zanzibar).

## REX Respondent

## $\mathbf{1}$

## FRANK MWALE Appellant (Original Accused). Cr. A. 69/1936.

Criminal Law—Murder—Manslaughter—Provocation.

The facts appear sufficiently in the judgment.

Held (8-8-36). That where a deadly weapon is used the provocation must be great indeed to reduce the offence to that of manslaughter,

Trivedi, for the appellant.

Wallace, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The apellant killed his wife as a result of a savage attack he made on her with a knife; nine wounds were found on the body, three of those being on the head. His motive for killing his wife would appear to have been that he believed that she had deserted him with the connivance of her parents. In his evidence he said that when he met his wife just after the death of their child, he remonstrated with her for her having left him and that thereupon she started to abuse him violently and struck him with a stick causing him to lose his temper and that then he struck her with a knife meaning to hit $h/$ with the flat of the blade. The trial magistrate said, that giving the appellant the benefit of the doubt and accepting that the woman was intending to desert him, it was not sufficient provocation according to native custom to do more than beat her-that it would never justify an attack with a dangerous weapon. In the memorandum of the learned Acting Attorney General which was forwarded to the High Court in accordance with the procedure obtaining in Nyasaland-a procedure which on more than one occasion this Court has characterized as undesirable-it is said, "on behalf of the accused, it is but fair to say that he must have received some provocation, but it cannot be said from the evidence before the Court that it was sufficient to mitigate the offence". It does not appear from the record whether the magistrate considered whether what the appellant said as to his having been insulted and attacked by the woman was true or false, but inasmuch as the assessors make no reference to it in their opinions it would seem as if they did not accept the story. The aggessors gave very full and reasoned opinions and came to the conclusion that the appellant was not justified in attacking his wife as he did. It is a principle that

has been referred to by this Court on different occasions that where a deadly weapon is used the provocation must be great indeed to reduce the offence to one of manslaughter-that the mode of resentment must bear a reasonable proportion to the provocation to reduce the offence to manslaughter. It would be a departure from that principle to hold that this case was one of manslaughter. Other grounds of appeal were put forward mainly concerned with procedure but there was no substance in them.

The appeal is dismissed.