Rex v Ongiro (Cr. App. No. 116 of 1938.) [1938] EACA 111 (1 January 1938)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J.; HAYDEN, J.; and LANE, Ag. J. (all of Kenva).

## REX. Respondent (Original Prosecutor)

OKURUTUMU s/o ONGIRO, Appellant (Original Accused) Cr. App. No. 116 of 1938.

## Appeal from conviction by H. M. High Court of Uganda

Manslaughter-Murder-Provocation-Uganda Penal Code. section 199

Appellant appealed from a conviction of murder of one Aupale, whom he had killed in the following circumstances. Certain facts were conveyed to the appellant who immediately went to a certain spot where he saw his nephew, to whom he was *in loco parentis*, lying on the ground unconscious and Aupale standing there with a stick. No wrongful act had been committed by Aupale in the presence of the appellant who ran into a house close by, fetched his spear and plunged it into Aupale's stomach.

Held (18-7-38).—That in order to establish provocation in law, it is not essential that the acts constituting the provocation should have been done in the presence of the accused person. (R. v Musomi (2 E. A. C. A. 91) considered and applied.) Conviction of murder reduced to one of manslaughter.

Appellant, absent, unrepresented.

Dennison, Crown Counsel (Kenva), for the Crown.

JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—The learned Chief Justice in the course of his summing-up stated, "If accused found his nephew to whom he acted in loco parentis (the father being dead) lying unconscious from a blow given by Aupale and saw Aupale standing over him with a stick that might be provocation under section 199 likely to deprive accused of self-control and induce him to assault Aupale." This passage seems to us to imply that the learned Chief Justice was of the view that there might be a case of provocation even though the actual blow was not struck in the presence of the accused. If we are correct in assuming this to be the meaning we respectfully agree with it. The authorities go to show that if a person occupying the position of the accused in the present case has information conveyed to him and at the time or immediately afterwards sees a state of affairs which gives him reasonable ground for believing in the truth of what he has been told he may be held to have acted while suffering from grave and sudden provocation. We have been referred to a passage at p. 902 of Archbold 28th Ed. reading, "Where a boy after fighting with another ran home bleeding to his father, and the father immediately took a small cudgel, and ran three-quarters of a mile to the place where the other boy was, and struck him the single blow of the stick of which blow the boy afterwards died, this was held to be manslaughter only." In that case there was no question of the blow having been struck in the presence of the father who was seemingly provoked by the story told him by his son confirmed as he considered it to be by the bleeding countenance of his son. In Rex v. Musomi (2 E. A. C. A. 91), the accused had been provoked by an honest and genuine though mistaken belief that the deceased had poisoned his child, though he was not present when anything was being done to the child which would afford grounds for his entertaining such belief. This Court held that the belief was sufficient to reduce the charge to manslaughter. In the present case, the appellant had certain information conveyed to him, as in the case referred to in Archbold, immediately went to the spot where he found his nephew on the ground with the deceased Aupale standing there with a stick, ran into his house close by, fetched his spear and plunged it into Aupale's stomach. On this account we are of the opinion that the appellant acted under an honest and reasonable belief that Aupale had felled his nephew. The evidence reveals that the nephew was lying unconscious and it so happens that the appellant's belief that Aupale was responsible for what the appellant saw when he arrived on the spot was not a mistaken belief different from Musomi's case. These being the facts in so far as it is material to state them, we think that there is at least a reasonable doubt raised that the appellant in spearing Aupale acted under grave and sudden provocation. We alter the conviction to manslaughter and sentence the appellant to $6$ years hard labour.