Rex v Nakandu (Criminal Appeal No. 149 of 1948) [1948] EACA 35 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

REX, Respondent (Original Prosecutor)

## SAIDI s/o NAKANDU, Appellant (Original Accused)

## Criminal Appeal No. 149 of 1948

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

Criminal Law—Murder—Refusal of sexual intercourse—Provocation.

The facts are sufficiently clear from the judgment below.

Held (13-8-48).—That whilst the refusal of sexual intercourse per se can never afford a basis for the doctrine of legal provocation, it does not mean that such a refusal, combined with other circumstances, might not constitute an element resulting in a situation which might amount to provocation.

R. v. Paulo Lwevola, 10 E. A. C. A. 63 referred to.

Appeal dismissed.

Appellant absent, unrepresented.

Todd, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—The appellant in this case was convicted in the High Court of Tanganyika of the murder of his wife. So far as the circumstances surrounding the killing are concerned, the facts are not in dispute.

It appears that the appellant had for some time suspected his wife of infidelity and that on the night that he killed her he taxed her with it. She replied evasively and in addition angered the appellant by refusing him sexual intercourse. As the appellant said himself in his statement before the Magistrate: "I killed my wife because she refused to have sexual intercourse with me, and this made me bitter against her. She had been having an affair with a young man called Ayibu, and on two occasions to my knowledge he had given her money to sleep with him".

The only question, therefore, which the learned trial Judge had to determine was whether this refusal of sexual intercourse, coupled with the wife's failure to admit the infidelity which the appellant suspected, provided him with legal provocation for what he did. As is held by this Court in Rex y. Paulo Lwevola, 10 E. A. C. A., page 63: the refusal of sexual intercourse per se can never afford a basis for the doctrine of legal provocation. This does not mean that such a refusal, combined with other circumstances, might not constitute an element resulting in a situation which might amount to provocation.

In the case now before us the only other element present was the fact that the appellant's wife would not candidly admit to the infidelity which the appellant suspected. If she had made an admission, the news that she had been unfaithful to him would not have come as a surprise. The fact that she would not make an admission which would have confirmed the appellant's suspicion cannot, in our view, be considered as grave and sudden provocation even when followed by a refusal of sexual intercourse.

The learned trial Judge therefore correctly determined this question. The appeal is dismissed.

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