Rex v Ruti (Cr.A. 99/1936.) [1936] EACA 108 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); LAW, C. J. (Zanzibar; and LUCIE-SMITH, J. (Kenya).

## REX Respondent $\overline{v}$ .

## MAYI BIN RUTI, Appellant (Original Accused). Cr. A. 99/1936.

Criminal Law—Murder—Manslaughter—Provocation.

The appellant at a drinking party, possessed himself of the deceased's knife against the wish of the latter; while he was holding it by the blade the deceased caught it by the handle and pulled it away cutting the appellant's hand. Thereupon the appellant speared the deceased.

Held (8-8-36).—That, judging the appellant according to the class of society to which he belonged, the provocation might be regarded in the circumstances as sufficiently grave to reduce the crime to manslaughter.

Appellant, absent unrepresented.

Wallace, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-The appellant undoubtedly speared Mtento causing his death. The learned Judge held that, "if the accused had struck a blow with his fist or a stick and death followed, I under these circumstances would have found him guilty of manslaughter. But in this case in order to revenge what was an accidental assault on his person he seized a spear". The circumstances were that the appellant. who had behaved in an annoying fashion from the beginning, possessed himself of the deceased's knife against the latter's wish. While the appellant was holding it by the blade, the deceased seized it by the handle and pulled it from the appellant cutting his hand and causing a lot of blood to flow in the process. Thereupon the appellant seized his spear and speared the deceased. Whether it was that the deceased intentionally cut the appellant or the appellant honestly and reasonably, but mistakenly, thought that such was his intention, there was provocation. The question whether the provocation was sufficiently grave—for clearly it was sudden-to reduce the crime from murder to manslaughter has exercised our minds. After consideration we are inclined to the view that the case is on the border line and that the provocation, judging the appellant according to the class of society to which he belongs, may be regarded as sufficient to reduce the crime from murder to manslaughter. We accordingly alter the conviction and sentence the appellant to seven years hard labour.