Rex v Theodori (Criminal Appeal No. 201 of 1945) [1945] EACA 29 (1 January 1945)

## COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

### REX, Respondent (Original Prosecutor)

## **THEODORI s/o JENGU, Appellant (Original Accused)**

## Criminal Appeal No. 201 of 1945

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

Criminal Law-Murder-Provocation-Sections 191 and 192, Tanganyika Penal Code.

The appellant was convicted of the murder of his wife by striking her several times with an axe. The appellant alleged that during a beer party at their house his wife annoyed him and subsequently vulgarly abused him and tried to hit him with firebrands. Whereupon he picked up an axe, believing it to be a stick, and inflicted upon his wife fatal injuries. The learned trial Judge rejected the appellant's version of the incident and accepted instead the evidence of an eye witness to the effect that the deceased had neither insulted nor attempted to strike the appellant. The learned trial Judge further held that even assuming the appellant's version to be correct it did not constitute legal provocation.

The appellant appealed.

Held $(11-9-45)$ .—(1) That the slight provocation alleged by the appellant was not such as would deprive a man of his class of his self-control and accordingly did not constitute<br>legal provocation as defined in sections 191 and 192 P. C.

(2) That the fact of using an axe and using it several times in retaliation for a wrongful act or insult does not necessarily deprive an accused person of the benefit of the provocation sections of the Code.

(3) That the weapon used and any disproportion between the retaliation and the provocation are only relevant in deciding whether at the crucial time the accused was in fact acting through deprivation of self-control and not merely actuated by motives of revenge.

Appeal dismissed.

Rex v. Hussein s/o Mohamed 9 E. A. C. A. 52, Rex v. Juma Mafabi approved.

#### Appellant absent, unrepresented.

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

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—There is no doubt, on the evidence, that the accused killed his wife by striking her with an axe several times. He admitted having struck her several times with the axe, but said he thought he was using a stick. This not uncommon and unconvincing defence was very properly rejected by the learned Acting Chief Justice and the assessors. The defence of legal provocation was also raised and rejected, the evidence of a witness Piusi that the deceased had not used insulting language or tried to hit him with a firebrand being believed in preference to the accused's allegation that he had been insulted and assaulted. This being the case, it would be unreasonable for this Court to take a different view. It is of interest to note what the accused's reaction to the alleged abuse and threat to hit him with a firebrand was. According to his statement before the High Court, he said: -

"When my wife returned she began to use filthy words to me, saying: 'Mboro yako' (Your penis), also 'tumbo yako kubwa na wengu yako kubwa' (Your belly and your spleen are big), also 'wewe mwanamume gani?' (What sort of a man are you?), also 'Nina weza kukuacha; nichukuliwe na mtu mwingine' (I can leave you so that I may be taken by another man). I replied: 'My wife, leave off speaking thus'. She said: 'Don't you say I am your wife; I have told you that I will leave you so that I may be married by another man'. She then took a firebrand and wanted to hit me. I caught it and took it from her and threw it down. She took another. I asked her to sit down and stop fighting and bring the pombe that we might drink."

This does not indicate that he was deprived of his self-control by the alleged abuse or the attempt to hit him. On the Subject of provocation, the learned Acting Chief Justice said: $\overline{\phantom{a}}$

"But even if the accused were believed implicitly as to the provocation given him by the deceased woman it would still, in my view of the law, be impossible to find that he suffered adequate provocation to justify his employment of such fatal violence as he used. Both assessors were emphatic that what Paula is alleged by the accused to have said and done ought to have been ignored or at the most visited with a rebuke and a slapping. They did not think, and I agree with them, that such vulgar abuse and attempted assault by a woman, even if established by the evidence, would justify her husband retaliating with an axe and smashing her head open. In this connexion I am taking into account the recent decision of the East African Court of Appeal in Rex v. Juma Mafabi (decided in February, 1945; but not yet reported), which explained and discussed the previous decisions of the Court in Rex v. Frank Mwale (3 E. A. C. A. 102) and Rex v. Hussein Mohamed (9 E. A. C. A. 52)."

The first assessor, in answer to a question put by the Court, gave the opinion:-

"If the woman used the filthy words of abuse and the expressions about having to get another husband, and even if she raised a firebrand to strike him, it would not, according to our custom, justify him in striking her with an axe or such a weapon. He would be a bit angry, it is true, and would probably slap his wife and rebuke her for such words and actions, but would not be justified in killing her or using a dangerous weapon on her."

If the learned Acting Chief Justice and the assessor meant that the vulgar abuse and attempted assault were not such as to be likely to deprive the accused of his self-control, judging him as an ordinary person of the community to which he belongs, we have no quarrel with what is stated in the quoted passages. But if it is meant to convey that the fact of using an axe and using it several times in retaliating for a wrongful act or insult, must deprive an accused person of the benefit of the provocation section, we do not agree. When a person charged with murder has been found to be suffering from legal provocation as defined in sections 191 and 192 of the Penal Code and remains so suffering at the time he retaliates, the manner of his retaliation, whether with an axe or other lethal weapon, and the number of blows struck, will not of themselves deprive the accused of the benefit of the provocation sections. The instrument used in retaliation and the manner of its use are factors which may, of course, be considered in arriving at a conclusion as to whether the act of killing was the result of being deprived of the power of self-control by the provocation as defined, or whether it was an act of vengeance. It is sufficient for our purpose if we quote the following two passages from Rex v. Hussein $s/o$ Mohamed, 9 E. A. C. A. 52 at p. 55, the effect of which, when read together, should be easily understood: -

"We have to interpret and apply our provocation sections as they stand and, in so far as the question of murder or manslaughter is concerned. leaving out of account for the moment any question of the appropriate sentence, any disproportion between retaliation and provocation can only be relevant in that it may tend to throw some light on whether at the crucial time the accused was in fact acting through deprivation of selfcontrol and not merely actuated by motives of revenge."

"When once legal provocation, as defined in our Code, has been established and death is caused in the heat of passion whilst the accused is deprived of self control by that provocation, the offence is manslaughter and not murder and that irrespective of whether a lethal weapon is used or whether it is used several times, or whether the retaliation is disproportionate to the provocation. The presence of one or more of these factors is, of course, a matter to be taken most carefully into account when considering the question of sentence, but will not of itself necessarily rule out the defence of provocation."

Juma Mafabi's case aptly illustrates the interpretation to be put upon the provocation sections with regard to the point under consideration, for in that case the retaliation was definitely disproportionate to the provocation, yet this Court altered the conviction from murder to manslaughter.

In the present case it is clear that the slight provocation alleged by the appellant did not deprive the appellant of his self-control, and accordingly one of the necessary ingredients of the defence of legal provocation, as defined in sections 191 and 192, is missing and that defence being thus not established, the appellant was rightly found guilty of murder.

The appeal is dismissed.