Rex v Ocaya (Criminal Appeal No 24 of 1947) [1947] EACA 16 (1 January 1947)

# COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya), Sir G. Graham Paul, C. J. (Tanganyika), and THACKER, J. (Kenya)

REX, Respondent (Original Prosecutor)

$\mathbf{v}$ .

#### RINO OCAYA s/o OPERE, Appellant (Original Accused)

### Criminal Appeal No 24 of 1947

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

Criminal law—Murder—Provocation—Benefit of the doubt—Manslaughter.

The appellant was annoyed with his wife for not preparing food for himself and their children. When the appellant asked her to prepare food she abused him and immediately afterwards struck him on the point of the heel with a thick stick. The appellant seized the stick and dealt her a terrible blow with it on the side of the head which killed her.

The appellant was convicted of murder and appealed.

Held (23-1-47).—That there must be a reasonable doubt as to whether the accused at the time he fatally struck his wife was not deprived of his self control by being abused and struck by his wife, thus reducing the offence to manslaughter.

Appeal allowed.

Finding of guilty to manslaughter substituted and a sentence of ten years' H. L. imposed.

Appellant absent, unrepresented.

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

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The one question which exercises our minds in this carefully tried case in which the law applicable was correctly stated is whether there is not on the evidence which was accepted by the learned Judge at least a reasonable doubt as to whether the accused at the time he fatally struck his wife was not deprived of his self-control by a blow which he had received from his wife who had immediately before insulted him, using the word "Ming", which is, one of the assessors said, "a strong piece of abuse". In the accused's favour the Judge accepted that the wife had struck the blow which the accused said was a very hard blow and painful. The blow was struck with a millet-pounding stick which is invariably a formidable weapon and one which a woman of the deceased's class would be very accustomed to handle. In his judgment the Judge said: "As to the blow on the heel, I have no doubt it hurt, but though struck with a heavy stick it was struck while the wife was sitting down and it did not land on a particularly tender part of the accused". As to this passage we think it would be a matter of some difficulty to strike the heel of a person standing with such precision as to avoid contacting the tendon Achilles; at least there is some doubt on the point, and we do not think it would be safe to infer that the blow landed exclusively on a part of the accused not particularly tender. When a blow of this nature is coupled with abuse which one of the assessors classed as "a strong piece of abuse" our view is that there must be some doubt as to the accused having been deprived of his self-control, judging him by the standard of the class to which he belongs and, of course, as a sober man of that class. This being so we alter the finding to manslaughter and substitute a sentence of ten years for the capital sentence.