Rex v Sitapakwe (Criminal Appeal No. 214 of 1944) [1945] EACA 7 (1 January 1945)

## COURT OF APPEAL FOR EASTERN AFRICA

### Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and MARK WILSON, Acting C. J. (Tanganyika)

### REX, Respondent (Original Prosecutor)

#### v

# SITAPAKWE s/o KILEMBO, Appellant (Original Accused) Criminal Appeal No. 214 of 1944

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

Criminal Law-Murder-Words not amounting to insult not provocation-Tanganyika Criminal Procedure Code, S. 267—Importance of compliance therewith.

The appellant appealed from a conviction of the murder of his wife. The appellant and his wife were not getting on well and the appellant was endeavouring to effect a reconciliation during the course of which his wife is alleged to have made a reference to there being better men at her parent's house who wore shoes.

It was also not clear from the record whether at the close of the Crown case the Court had explained to the appellant his rights under the Criminal Procedure Code, it being recorded merely that his advocate informed the Court that he had "nothing to say".

Held $(15-1-45)$ .—(1) The remarks made by the deceased do not amount to an insult within the meaning of the provocation section and does not consequently constitute legal provocation.

(2) It is all-important that the accused should have his rights explained to him and that the decision arrived at whether to give evidence on oath, make a statement from the dock or say nothing should be his own decision. Appeal dismissed.

#### Appellant absent, unrepresented.

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

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The accused killed his wife with a bill-hook. So much is admitted by the accused himself and there is direct evidence to confirm this. It is clear from the evidence that the accused and his wife were not getting on well. At the time of the killing there was actually pending a suit by the wife against the accused for his having beaten her. The accused was apparently endeavouring to effect a reconciliation just before the killing took place. The defence have relied on the accused's confession of the killing and the circumstances in which it took place. The "high point of medical method" with regard to the treatment of their child referred to by the learned Judge we agree has nothing to do with the case. The question is whether if one accepts the allegation of the accused that his wife made a reference to there being better men at her parent's house who wore shoes, such a remark would let in the doctrine of legal provocation. We do not consider that it would amount to an insult within the meaning of the provocation section. We are accordingly of the opinion that the case proved against the accused was murder.

It is observed that at the close of the Crown case Counsel for the defence said that the accused had "nothing to say". From this it is difficult to say whether<br>the courses open to the accused under S. 267 of the Criminal Procedure Code were explained to and understood by the accused. It would not of course suffice for them to be stated to his advocate unless in turn the advocate explained them to his client and that the latter thereafter elected to say nothing. It is obviously all-important that the accused, who is vitally interested in the matter, should have his rights explained to him and that the decision arrived at, whether to give evidence on oath, make a statement from the dock or say nothing (as in this case) should be his own decision. With these remarks we dismiss the appeal.