Rex v Odoch (Criminal Appeal No. 8 of 1947) [1947] EACA 12 (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) v

## TEOFILO ODOCH s/o POMPEO, Appellant (Original Accused) Criminal Appeal No. 8 of 1947

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

Criminal law—Murder—Provocation

The appellant quarrelled with his father and the latter and another son chased him threatening to beat him up. The appellant took his spear and ran some distance away. He drew a line forbidding his father and brother to cross it. When his father crossed the line and before he had struck the appellant the appellant thrust his spear into his father and killed him.

The appellant was convicted of murder. He appealed.

Held (17-1-47).—That the appellant was rightly convicted. Appeal dismissed.

Appellant absent. unrepresented.

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

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—It is admitted and proved that the accused killed his father over a dispute concerning the cutting of sugar cane. The deceased rated his son for cutting the cane and threatened to beat him and the learned Judge was prepared to accept that the deceased with an elder son actually must have chased the accused still threatening to beat him. In short, he found that the father had acted towards the accused in an unlawful and unreasonable manner and with that we agree. Two defences emerged, one of self-defence, the other provocation. On the facts of the case the first defence has no merits and was rightly rejected. The accused was in a position to retreat from the threatened attack and instead of doing so stood his ground armed as he was with a spear. With regard to the defence of provocation the learned Judge said: "It is said that the unlawful attempt of beating by two men following a quarrel and a chase, and coupled with the contemptuous advance over the lines drawn by the accused was sufficient provocation to make a young man of the accused's type and class lose his self-control and assault his assailants. One of the assessors thinks that it would have had that effect. The other assessor appeared at first uncertain on the point. He reached the view finally that it would not make an ordinary man very angry. I myself cannot say that I think that the threat of beating by a father and elder brother under these circumstances, there being ample opportunity for escape, can be regarded as sufficient provocation to throw the average young man of this class into so violent a passion that control would be lost. But however that may be I cannot say that I think the accused in this case was deprived of the powers of self-control, angry though he may have been. The actions which he himself admits performing, the drawing of lines and the issue of warnings, indicate to me that he was possessed of considerable control and that his spearing was a deliberate act rather than an act done in the heat of passion. He maintained control up to the final line as he would have it or the first and only line as Olak has it and I cannot really believe that the act of crossing the line caused a surge of passion which deprived him of that self-control. He would appear to have made up his mind to strike on a given event and strike he did, but as the result I am reasonably certain of a deliberate decision, and not because of lost control." After some consideration we do not feel we should on appeal be justified in disagreeing with that finding, supported as it is by the opinion of one of the assessors. At the same time we venture to attract the notice of the Executive to the unreasonable, indeed unlawful, conduct of the deceased which in a sense was the genesis of the unfortunate tragedy. With these remarks we dismiss the appeal.