Rex v Soto (CRIMINAL APPEAL No. 56 OF 1939) [1939] EACA 122 (1 January 1939)

# COURT OF APPEAL FOR EASTERN AFRICA

## BEFORE SIR JOSEPH SHERIDAN, C. J. (KENYA), WHITLEY, C. J. (UGANDA) AND SIR LLEWELYN DALTON, C. J. (TANGANYIKA)

# REX, Respondent

### versus

# **CHEPTO ARAP SOTO, Appellant**

## CRIMINAL APPEAL NO. 56 OF 1939

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

Criminal Law—Murder—Manslaughter—Provocation—Kenya Penal Code, section 199—Reasonable doubt.

Appellant appealed from a conviction of murder of one Ayabei. The evidence disclosed that the appellant was present with the deceased and others in a hut at a drinking party. A dispute arose between appellant and one Kimatiso both of whom were asked to leave the hut and ultimately the appellant was ejected from the hut and a piece of corrugated iron was placed against the open doorway and held there to prevent the appellant from returning. Appellant then took a spear, poked repeatedly at the sheet iron in the doorway and ultimately speared the deceased as he was crawling or stooping down to go through the doorway. After the killing the appellant's body bore marks of assault and the lobe of one of his ears was torn but it was uncertain whether these injuries were suffered prior to the killing or subsequent thereto, and although they were not caused by the deceased it was not known what particular person or persons inflicted them.

Held $(12-5-39)$ .—That assuming that the appellant was badly assaulted by one or more of the party inside the hut and that he did not know who had torn his ear he would naturally be enraged against the party as a whole and it would seem to be not unreasonable to regard the provocation as<br>flowing from each and all of the party. (Conviction of murder reduced to one of manslaughter.)

Appellant, absent, unrepresented.

#### Aubrey, Crown Counsel, for the Crown.

JUDGMENT (delivered by Whitley, C. J.).—The only question which arises in this appeal is whether there was any provocation which would amount in law to legal provocation and reduce the offence to manslaughter.

The provocation alleged is that accused was violently assaulted and the lobe of his ear torn. When arrested there was ample evidence from the state of the accused's body and ear to show that he had been violently assaulted and it would appear that the learned trial Judge appreciated the possibility that his injuries may have been caused before the killing for he observes in his judgment "It (the ear injury) may have been done, of course, previously by Kimateso. I am satisfied that Ayabei (the deceased) did not and could not have caused this particular injury before he was speared". In view of that it must be assumed in the accused's favour that his ear was injured before he stabbed the deceased. If that injury had been caused by

the deceased we are clearly of the opinion that it would have constituted such provocation as to reduce the offence. But the learned Judge has found that it was not caused by the deceased. He has considered the point with great care and the reasons which he gives are so cogent and well-warranted by the evidence that we see no reason to differ from him. Can we say that in law an assault by another member of the hut (not the deceased) can avail the accused as provocation to excuse to some extent an attack on the deceased. Section 199 of the Penal Code requires that to sustain the defence of provocation the provocation must flow from the person killed but none the less it seems to us that the wording may extend to cover a case such as this. Assuming, as the Judge has found to be possible, that the accused was badly assaulted by one or more of the party inside the hut who wanted to turn him out and that he did not know who had torn his ear, he would naturally be enraged against the party as a whole and it would seem to be not unreasonable to regard the provocation as flowing from each and all of the party. It seems to be a border-line case and we can fully understand the learned Judge taking the view which he did but on the other hand, for the accused to succeed in his defence of provocation, it is only necessary for him to raise a reasonable doubt. We think that there is such a reasonable doubt as to whether there was what amounts to legal provocation. We accordingly alter the conviction to one of manslaughter and sentence the appellant to seven years imprisonment with hard labour.