Rex v Rubiya (Criminal Appeal No. 256 of 1946) [1947] EACA 20 (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) $\mathbf{v}^{\top}$

## **RUBIA s/o WAIYU, Appellant (Original Accused)**

Criminal Appeal No. 256 of 1946

## (Appeal from decision of H. M. Supreme Court of Kenya)

Criminal Law—Manslaughter—Sentence.

The appellant killed a lone policeman by striking him savagely and repeatedly with a heavy stick. The learned trial Judge found that there existed a reasonable doubt on the issue of provocation and giving the appellant the benefit of it convicted him of manslaughter and sentenced him to seven years' hard labour.

The appellant appealed and the Court of Appeal considered the propriety of enhancing the sentence.

Held (6-2-47).-That having regard to the determined and savage nature of the attack and to the fact that the deceased was a lone policeman on official inquiry and other circumstances the sentence should be enhanced.

Appeal dismissed.

The sentence enhanced to twelve years' H. L.

**Chanan Singh for the appellant.**

Todd, Crown Counsel (Kenya) for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—Having had the advantage of hearing Counsel for the Crown and the accused we are satisfied that the accused was rightly convicted. The learned Judge, as he was entitled to do, believed the evidence of Wamboi and her son Ndungu. The former's evidence placed the accused and the deceased constable together just before the constable met his death going in the direction of the forest where the body or what remained of it was subsequently found. That it was the body of the constable was abundantly proved, as also that he met a violent death. In the very careful judgment the learned Judge has not omitted the consideration of any material particular and there is no suggestion of a misdirection or a failure to weigh the evidence. He was particularly alive to the fact that the witness Ndungu had made a previous statement to a Magistrate differing in some particulars from his evidence, but he still believed Ndungu's evidence, and found correctly that Ndungu was not an accomplice. It is to be borne in mind that both in his statement and his evidence Ndungu implicated the accused. The very fact of Wamboi giving evidence of the accused being in the company of the constable at the time of which she spoke is a circumstance corroborative of Ndungu's evidence. We dismiss the appeal from the conviction. As to sentence, the learned Judge considered as in the case of $Rex$ v. Mwandamere s/o Sefula. 13 K. L. R. 58, that there existed a reasonable doubt on the issue of provocation and gave the accused the benefit of it and sentenced him to seven years' hard labour. Accepting the finding of legal provocation as we must, we have considered the propriety of enhancing the sentence. After hearing the accused, when called on to show cause, and his Counsel, we consider that the sentence should be enhanced. The learned Judge said "I accept that it was with the stick exhibit Q that the accused repeatedly struck the deceased" and earlier in his judgment he said "If Ndungu is telling the truth as to what followed I think there can be no doubt that Kiinge Kiatha met his death as a result of injuries sustained through the savage attack with a heavy stick as described by the witness in evidence". So the attack on the police constable was a determined and savage one. Taking this into consideration and the fact that the deceased was a lone police officer sent out on some official inquiry, the exact nature of which has not transpired, and that we are living in times when scant respect is shown for law and order we enhance the sentence to 12 years hard labour.