BRATTY V ATTORNEY GENERAL FOR NORTHERN IRELAND[1963] AC 386

FACTS
The appellant (B) was convicted of the murder of an 18-year-old girl. In his statement to the
police, he said that he had been overcome with a “terrible feeling” and a “sort of blackness”
during the event. At trial, B relied upon the defence of automatism as a result of psychomotor
epilepsy but the trial judge dismissed this defence and did not submit it to the jury.

ISSUES
On Appeal to the House of Lords, B argued that the trial judge was wrong to dismiss the
automatism defence. It was argued that the burden of proof was on the Crown to prove that;

(i) the acts were conscious and voluntary beyond reasonable doubt;

(ii) there was a body of evidence indicating the act was not voluntary or consciously done and

(iii) this body of evidence should have been left to the jury. The Crown submitted, inter alia, that
where the defence of automatism is based on an internal factor then the onus upon the accused is
the same as on a plea of insanity.

HELD
The trial judge was only under a duty to leave the issue of automatism to the jury where the
defence had left a proper evidentiary foundation for doing so. The trial judge in this case was
right to not leave the defence to the jury as the only cause alleged for the act in question was an
internal factor i.e. a defect of reason from disease of the mind. Furthermore, as B was deemed to
have been sane and reasonable at the time of the killing, he could not be said to lack intent and,
therefore, there was no question of a reduced manslaughter charge.
D.P.P. v.SHAW(1962)A.C.220

FACTS
The appellant published a 'ladies directory' which listed contact details of prostitutes, the services
they offered and nude pictures. He would charge the prostitutes a fee for inclusion and sell the
directory for a fee. He was convicted of conspiracy to corrupt public morals, living on the
earnings of prostitution and an offence under the Obscene Publications Act 1959. The appellant
appealed on the grounds that no such offence of conspiracy to corrupt public morals existed.

HELD
The appeal was dismissed. The House of Lords in effect created a new crime.

Viscount Simonds:

"In the sphere of criminal law I entertain no doubt that there remains in the Courts of Law a
residual power to enforce the supreme and fundamental purpose of the law, to conserve not only
the safety and order but also the moral welfare of the State, and that it is their duty to guard it
against attacks which may be the more insidious because they are novel and unprepared for. That
is the broad head (call it public policy if you wish) within which the present indictment falls. It
matters little what label is given to the offending act. To one of your Lordships it may appear an
affront to public decency, to another considering that it may succeed in its obvious intention of
provoking libidinous desires, it will seem a corruption of public morals. Yet others may deem it
aptly described as the creation of a public mischief or the undermining of moral conduct. The
same act will not in all ages be regarded in the same way. The law must be related to the
changing standards of life, not yielding to every shifting impulse of the popular will but having
regard to fundamental
assessments of human values and the purposes of society."
Lord Reid dissenting:

"Even if there is still a vestigial power of this kind it ought not, in my view, to be used unless
there appears to be general agreement that the offence to which it is applied ought to be criminal
if committed by an individual. Notoriously there are wide differences of opinion today as to how
far the law ought to punish immoral acts which are not done in the face of the public. Some think
that the law already goes too far, some that it does not go far enough. Parliament is the proper
place, and I am firmly of opinion the only proper place, to settle that. When there is sufficient
support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to
tread it is not for the courts to rush in."

KNULLER v DPP [1973] AC 435

FACTS
The defendant was the director of a company, which published regular magazines for
distribution. Inside the magazines, there was a page that had columns to advertise homosexual
practices. It was concluded that this information encouraged males to meet up and engage in
homosexual activity. The defendant was convicted for conspiracy to corrupt public morals.

ISSUE
The defendant appealed his conviction for conspiracy to corrupt public morals. This was on the
issue of whether there was an offence of conspiracy to corrupt public morals recognized by the
law of England and if he could be convicted of such an offence.
HELD
The appeal was dismissed and the conviction was upheld. The law does recognise conspiracy to
corrupt public morals as an offence, as this was created by Shaw v DPPand this was to be
followed. This case established that the courts has a duty to protect society’s morals and can
enforce their own decisions. Lord Reid commented that he did not agree with the Shaw v
DPPverdict and he had dissented in that case, but he also did not wish to reconsider this decision
now. He stated that while decisions are not always binding on other courts, there is a need for
certainty in the law that means not every disagreeable decision should be reversed. The courts
now have no power to create new criminal offences and can only be created by Parliament

SHERRAS V DE RUTZEN(1895)1QB918

FACTS
The defendant was convicted of selling alcohol to a police officer whilst on duty under to s.16(2)
Licensing Act 1872. It was customary for police officers to wear an armlet whilst on duty but
this constable had removed his. The appellant therefore believed he was off duty. The statute was
silent as to the question of whether knowledge was required for the offence. He was convicted
and appealed contending that knowledge that the officer was on duty was a requirement of the
offence.

HELD
The appeal was allowed and his conviction was quashed.

Wright J:
"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of
the act, is an essential ingredient in every offence; but that presumption is liable to be displaced
either by the words of the statute creating the offence or by the subject-matter with which it deals
. . .It is plain that if guilty knowledge is not necessary, no care on the part of the publican could
save him from a conviction under section 16, subsection (2), since it would be as easy for the
constable to deny that he was on duty when asked, or to produce a forged permission from his
superior officer, as to remove his armlet before entering the public house. I am, therefore, of
opinion that this conviction ought to be quashed."

R v WINDLE[1952] 2 QB 82

FACTS
The appellant (W) was convicted of murdering his wife. His wife had regularly spoke of
committing suicide and doctors suggested that she was certifiably insane. Upon arrest, W said to
the police: “I suppose they will hang me for this?”

ISSUE
On appeal, it was contended that W had been suffering from a form of insanity called folie à
deux which was communicated to him by his wife as a result of his constant attendance to her,
his weak character and her dominating character. Accordingly, the plea of guilty but insane
should have been available to the jury. The key question was whether the M’Naghten rules
regarding insanity (see R v M'Naghten 8 E.R. 718)could be applied in a case of communicated
insanity where the accused was not suffering from a specific delusion. Counsel for the W
suggested that that the use of the word “wrong” as applied in McNaughten did not mean contrary
to law but morally wrong. Accordingly, if W believed that what he was doing was beneficial,
despite knowing it was illegal, then he should be excused.
HELD
The Court observed that it must not consider whether an act is morally right or wrong but only
whether it is lawful or unlawful. The M’Naghten rules applied to all cases of insanity, whatever
the nature of insanity or disease of the mind. In the rules, the word “wrong” means contrary to
law. In the present case, W was clearly aware that what he was doing was contrary to law.
Therefore, the judge was correct to deny the plea of insanity from the jury.

ALFRED BAZILA V R(PC) Crim. App. 381-M-68, 30/5/68, Mustafa J.

FACTS
Accused, a messenger employed by the Bukoba District Council, was in charge of
prisoners held at a Primary Court. He let two prisoners out of their cells and ordered
them to wash his clothes while he went for a walk. The prisoners escaped, and accused
was charged under section 117 (1) of the Penal Code which applies to “any person who
aids a prisoner in escaping or attempting to escape from lawful custody ……”

HELD
“(T)he word ‘aid’ would import .. an element of positive assistance and/or an intention
of helping the prisoners to escape. The evidence led only establishes that [accused] was
extremely negligence and careless.” Conviction quashed.
MCHELENGWAJINGI S/O MASALA V. R., Crim. App. 279-M-68, 19/6/68, Seaton J.

FACTS
The four accused were convicted of rape. [P.C. s. 130]. There was evidence that the
accused and the complainant had been drinking together and that all of them were drunk.
At about midnight, one of the accused carried complainant away. Complainant testified
that the first and second - 142 – (1968)H.C.D. Accused then had intercourse with her by
force. She stated that the third and fourth accused later had intercourse with her but that
she was too tired and drunk by that time to resist. Another prosecution witness saw the
third accused having intercourse with complainant, and a torn piece of her clothing was
later found near the scene. The first and third accused admitted having had intercourse
with complainant but stated that she had consented. The second and fourth accused denied
having had intercourse with her.

HELD
(1) There was no corroboration for complainant’s testimony that the second and fourth
accused had had intercourse with her.

(2) There may be authority supporting a conviction for rape when the complainant is
too drunk to resist. [Citing R. v. Complain (1845) 1 Cox C.C. 220]. However, in the
present case, there is no corroboration of complainant’s testimony that the intercourse
with the first and third accused was without her consent. Neither the torn clothing nor
the fact that she was drunk would necessarily negative the fact of her consent.

(3) The trial magistrate also failed to consider the possibility that because of their
drunkenness the accused had no intention to commit rape and mistakenly believed that
complainant had consented. Convictions quashed.
R V. ALLY MOHAMED, Crim Rev. 8-A-68, 6/2/68, Seaton J

FACTS
Accused, aged 7,8 and 10 years, respectively, were convicted of indecent assault upon a
6-year-old boy, put on probation and ordered to pay compensation of Shs. 10/- each to
the complainant. The Magistrate did not appear to have asked the accused to show cause
why they should not be convicted, or to have cross-examined the witnesses against the
accused, as is provided for by the Children and Young Persons Ordinance [Cap. 13, ss.
9, 12]. Nor did he direct himself as to the presumptions of incapacity of children under
12 years of age laid down in section 15 of the Penal Code.

HELD
“The omission to comply with the procedural formalities is serious but even more is the
failure of the learned magistrate to direct himself regarding the presumed incapacity.”
Convictions quashed, sentences set aside.

R. V. THOMAS S/O MFAUME. Crim. Rev. 4-D-67; 6/1/67; Mustafa, J.

FACTS
Accused, 10 years of age, kindled a fire to warm himself while grazing cattle. The fire
spread and burned the complainant ’house. Accused was convicted of negligently doing
an act with fire or omitting to take precautions against the danger of fire, and
compensation of Shs. 2,540/- was awarded. (P.C. s. 16)

HELD
(1) P. C. s. 15 provides that a person under the age of 7 years is not responsible for
any act or omission, and that a person under the age of 12 years is not criminally
responsible unless at the time of the act, he had the capacity to know that he should not
commit the act. The burden is on the prosecution to show that the accused had known
that he should not kindle the fire.

(2) A father, ordered to pay compensation for the act of his child, must be given the
opportunity to be heard in opposition to the order.

MZEE S/O SELEMANI v. R., Crim. App. 244-D-68, 21/6/68, Georges C. J.

FACTS
Accused, a Divisional Executive Officer, was convicted of wrongful confinement [P.C. s.
253] and abuse of office [P.C. s. 96]. Complainant went to accused ’s house to seek a
permit to hold an ngoma. When accused replied that no such permits were available,
complainant apologized for bothering him. At this point accused rebuked complainant for
interrupting a “bwana mkubwa” and ordered a clerk to arrest complainant. No warrant for
the arrest was issued. Complainant was charged with an offence contrary to section 124
of the Penal Code and was released on bail after being detained for short period. This
charge against complainant was later dropped. Accused argued that because he was an
ex officio justice of the peace, he was immune from prosecution as a judicial officer
under section 16 of the Penal Code and section 60 of the Magistrates' Courts

HELD
(1) The immunity of judicial officers extends only to those actions taken by the officer
in the performance of a judicial function. [Citing Saudi Bakari Kionywaki v. R., Crim.
App. 714-D-67, High Court Digest, Vo, I, case No. 443].
(2) Although the issuance of a warrant of arrest has been held to be a judicial function
[Citing Saudi Bakari Kionywaki v. R., supra], the arrest of a person without warrant for
an offence allegedly committed within the officer’s view does not constitute a judicial
function. In the first case, the officer is to make an impartial evaluation of the grounds
justifying the warrant; in the second case he is exercising a function similar to that of
countless police officers. Therefore, there was no immunity and the conviction for
wrongful confinement was proper.

(3) Penal Code section 124 provides for the disobedience of a lawful order, and since
no order has been made by accused which could be disobeyed, the arrest of complainant
was unlawful.

(4) Penal Code section 96 provides that any officer “who …. Does or directs to be
done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of
another, is guilty of a misdemeanor.” Accused knew that the arrest was wrongful, and the
arrest was arbitrary and prejudicial to complainant. Sentence on first count reduced from
nine months to three months; appeal otherwise dismissed.

SAUDI BAKARI KIONYWAKIN V. R., Crim. App. 714-D-67, 6/11/67, Biron J.

FACTS
Accused was convicted of wrongful confinement. [P.C. s. 253]. He was a divisional
executive officer in charge of self help scheme. In his capacity as a justice of the peace,
he issued a warrant for the arrest of complainant on a charge of obstructing the project
contrary to Penal Code section 89C (1) after the complainant had refused to participate
in the project. Accused accompanied a special constable who arrested and handcuffed the
complainant. He and the constable fled when the complainant’s uncle threatened them
with a spear, but the handcuffs were not removed for some twenty hours.
HELD
(1) The substantive element of an offence under Penal Code section 89C(1) is dissuading
others from participating in a self-help scheme, and the mere refusal to take part does
not constitute an offence under that section. Therefore the arrest of complainant was
unlawful.

(2) Section 60(1) of the Magistrates’ Courts Act provides that “No….. justice shall be
liable to be sued in any court for any act done or ordered to be done by him in the
exercise of his functions ….. as a justice, whether or not such act is within the limits
of his or the court’s jurisdiction, if ….. he believed in good faith that he had jurisdiction
to do such act or make such order.” Although this section applies specifically to
immunity from civil process or liability, a fortiori such a person is immune from
criminal liability for such an act.

(3) ‘Judicial functions’ (functions of a justice) are defined as all acts emanating from,
and appropriate to, the duties of the office of a judge, and includes the issuing of a
warrant of arrest. [Citing Calder v. Halket, 18 Eng. Rep. 293; Ratanlal and Thakore, The
Law of Crimes, 14th Edn., p. 148]

(4) The trial court erred in failing to consider whether accused believed in good faith that
he was acting within his jurisdiction. The Court stated, obiter: (1) Section 16 of the
Penal Code, which provides that “(A) Judicial officer is not criminally responsible for
anything done ….by him in the exercise of his judicial functions, although the act done
is in exercise of his judicial functions, although the act done is in excess of his judicial
authority, ……” applies not only to persons Exercising a regular judicial office, but
extends to any person whose duty it is to adjudicate upon the rights, or punish the
misconduct, of any given person, whatever form the proceedings may take and however
informal they may be . The criterion is the nature of the act rather than the status of
the actor. [Citing Tozer v. Child, 119 Engl. Rep. 1286, KBD, and Ashby v. White, cited
therein; Ratanlal and Thakore, op. cit., at p. 147.] (2) This section apparently is much
broader than section 77 of the Indian Penal Code, in that it extends not just to judges
but of all judicial officers and does not require that they act in good faith. The court
stated that the generality of the immunity was “a matter for the legislature to concern
itself with”, and declined to rest its decision on this section.

SHENE KIMBOKA v. R., Crim. App. 157-D-67, -/-/67, Duff J.

FACTS
The five accused were convicted on two counts of robbery, one count of malicious
damage to property. A taxi driver had taken a passenger to a certain hamlet, where he
waited while the passenger went to his house for money to pay the fare. When the
passenger returned, a group of persons, including the five accused, had gathered about
the car. They questioned the driver and passenger, indicating that they suspected them of
being thieves. Dissatisfied, they set upon the pair; during the struggle, the two men were
injured and property and money were stolen from them. It is not clear that any of the
five accused stole any of the valuables.

HELD
(1) Clearly, the accused participated in the assault. Conviction entered accordingly.

(2) However, although the accused “shared a common intention to prosecute an unlawful
purpose, namely, the beating of so-called thieves,” it is not clear that they themselves
committed any robbery directly, nor is it clear that “all of the accused shared the
intention to steal.” Absent such proof, the conviction for robbery must fail.
R vFLATTERY(1877) 2 QBD 410

FACTS
The defendant, John Flattery (JF) posed as a medical doctor and surgeon. The complainant, a
young woman aged 19, consulted JF with respect to an illness she was suffering, accompanied
by her mother. JF advised that surgery was required. Under the pretence of performing surgery,
JF had sexual intercourse with the complainant. The crown brought proceedings against JF under
Statute 13 Edw. 1, c. 34, charging him with rape.

ISSUE
The issue was whether submission to sexual intercourse amounted to consent. The complainant
had submitted to JF’s advances, but only on the belief that he was treating her for her seizures.
Submission did not amount to consent by law where that consent had been obtained by fraud.
There was no consent given to JF to have intercourse with the complainant, only to treat her
medically.

HELD
The complainant submitted to the intercourse on a false pretence and was therefore unlawful.
Mellor J. relied on the case of R v Case 19 L. J. (Mag. C.) 174, agreeing with and quoting Wilde,
C.J. that ,
“she consented to one thing, he did another materially different, on which she had been
prevented by his fraud from exercising her judgment and will.” (paragraph 414)

Mellor referred to the Statute 13 Edw. 1, c. 34 which defined rape to be sexual intercourse that
had not been “assented [to] before nor after”. Mellor concluded that submission may be
considered as consent, but not where consent was only given for some other action or thing and
not sexual intercourse. The appeal was dismissed and the conviction stayed.

R v WILLIAMS [1923] 1 KB 340

The defendant was a singing coach. He told one of his pupils that he was performing an act to
open her air passages to improve her singing. In fact he was having sexual intercourse with her.

ISSUE
Did the pupil freely consented to sexual intercourse ?

HELD
It was held that her consent was vitiated by fraud as to the nature and quality of the act.

MTUNDU CHILE AND OTHERS V. .R [1970] H.C.D 304

FACTS
The three appellants were convicted of burglary, stealing and rape and sentenced to a
total of three years and twenty four strokes each. According to evidence given by a
woman and her daughter, the appellants broke into their house, stole some articles and
demanded to have sexual intercourse with the daughter who was in an advanced state of
pregnancy. The mother, fearing for the life of her daughter, offered herself instead,
whereupon each of the appellants had sexual intercourse with her in turn. All the
appellants set up defences of alibi.

HELD
(1) “The appellants were well known to the women who had ample opportunity of
recognizing them. There was no reason to doubt the credibility of the women and
therefore the learned magistrate was justified in finding that the appellants broke into the
house, stole therefrom and had sexual intercourse with the older woman.

(2) “On the issue whether in the circumstances consent to sexual intercourse was given,
“I know of no specific case to the point. “The judge then set out s. 130 of the Penal
Code where under the accused were charged and convicted and then continued

(3) “The two women were alone in the house, which is apparently isolated. They were
threatened with death by three men armed with knives if they tried to raise the alarm.
Although the mother consented, in fact volunteered herself as a substitute for her
daughter, such consent is, to my mind, vitiated by her fears for her daughter’s health,
and it is not irrelevant to not that the section above set out expressly states that if the
consent is obtained ‘by fea of bodily harm’, the act would still constitute rape. The
mother, apart from her maternal affection was under a duty to protect her daughter,
therefore I fully agree, with respect, with the learned magistrate that the acts of the three
accused constituted rape on the part of each. The conviction for rape is therefore duly
upheld.”

(4) “The rape in this instant case was, considerably aggravated by the fact that the three
accused were prepared to have sexual intercourse with the daughter, which, in her
condition, as is commonly believed, would have been extremely dangerous to her health;
then, when the mother offered herself in order to save her daughter, they each in turn
had inter course with this elderly lady, whose age is given as about fifty. The sentence
imposed on the conviction for rape is accordingly set aside, and there is (1970) H.C.D.
-296 – substituted therefore a sentence of imprisonment for two years, to run
consecutively with the other sentences, making an aggregate of imprisonment to be served
of four years.

(5) Appeal dismissed.

R.v. SALIM ABDALLA[1970]H.C.D.38.

FACTS
The accused was charged with indecent assault, contrary to section 135(1) of the Penal
Code and was instead convicted of rape, contrary to section 131 of the Penal Code.
Evidence was adduced by the complainant that while she was asleep one night, she was
suddenly awakened by finding someone lying on top of her, and she then believed she
had been sexually assaulted as she found seminal fluid on her vagina and her thighs.

HELD
(1) “Rape carried a sentence of life imprisonment, whereas indecent assault carries a
maximum of only fourteen years’ imprisonment. Rape is certainly not a minor offence to
indecent assault. Section 181 (1) of the Criminal Procedure Code allowed a cognate and
minor offence to be substituted in certain cases
The provisions of section 185(1) of the Criminal Procedure Code allow a person charged
with rape to be convicted of indecent assault, but not the reverse.”

(2) “Even on the evidence adduced, there does not appear to have been rape. There was
no evidence of penetration. In the circumstances, I substitute a conviction for indecent
assault against the accused, as originally charged, and set aside the conviction for rape.”
MOHAMED KIBWANA V R.[1968]H.C.D.186

FACTS
Accused ’s only possible defence to a murder charge was that shortly before the killing
he heard deceased say to someone else that he (deceased) had signed a paper
authorizing the police to beat accused.

HELD
“As a general rule … spoken words alone cannot be the basis for provocation… but
variations of (the rule) may arise by virtue of the application of section 200 of the Penal
Code in special instances among particular communities. Where spoken words are
accepted in customary view as constituting provocation, the words must be of so
devastating a character, of such overbearing force, as to shatter the self-control of a
normal person of that community.” Accused was convicted of murder and sentenced to
suffer death by hanging.

LAMECK V. R.[1972]H.C.D.207

FACTS
The accused Lameck Kiteka is charged with murdering his wife by stabbing her with a knife in
the chest penetrating right into her heart. Both is a free and voluntary statement to a justice of the
peace and in an unsworn statement from the dock, the accused has admitted having stabbed his
wife and so caused her death, and from the nature and location of the injuries inflicted, together
with the rebuttable presumption that a man intends the natural and probable consequences of his
acts, the only reasonable acceptable conclusion is that, at the moment when he stabbed her the
accused probably intended to kill his wife or he at least intended to cause her grievous bodily
harm.

No question of self – defence arises in this case but the defence has argued that at the time the
accused inflicted the fatal blow he was drunk.

The defence also brought forward a defence of provocation. From the evidence there can be no
doubt that the accused was under the influence of alcohol when he fatally stabbed the deceased.

But the evidence clearly shows that the accused was not under such intoxication as to excuse
him from criminal liability.

Coming to the defence of provocation the defence argument is that notwithstanding that the
accused killed the deceased with malice aforethought; he did so while acting under grave and
sudden provocation, in the heat of passion, and while deprived of his self control.

It is common ground in this case that the marriage between the Accused and the deceased was
not altogether a very happy one. From the evidence it can be said with some certainty that of
the two deceased shared greater blame for their domestic misunderstandings. More than two
times she left the matrimonial home and went to live with neighbours or with her mother.
When she left the matrimonial home and went to live with her mother the accused followed her
and persuaded her to return to him. She became violent and assaulted the accused. She was
charged with assault and was convicted and imprisoned for six months.

Apart from the above previous misunderstandings the only evidence of what happened, and how
and why the accused came to kill his wife, is his own long extrajudicial statement, corroborated
by his very brief unsworn statement from the dock. I may say at once that this extra-judicial
statement, has, to my mind a ring of truth and attempts to conceal nothing.
In it the accused, after relating to the antecedent history which I have already referred to above,
he told the justice of the peace how he experienced domestic quarrels with the deceased, how on
the fateful night he came back home at about midnight and how he was served with cold stiff-
porridge by his wife. He related to the Justice of the Peace that the asked the deceased to prepare
fresh ugali for him as the one she had given him was already very cold. To this request the
deceased is said to have told the accused that she was not going to cook fresh ugali for him and
told the accused to cook himself or find another person to cook for him. After saying this the
deceased left the house and went to one, Jackson’s house where she forced the door open and
got in. The accused followed her and, according to his extra judicial statement, got into the house
of Jackson and held the deceased by her arm and asked her to follow him home. As he was
doing so the deceased violently pushed him and he hit his head against the wall and was
injured. It was at this juncture that the accused pulled his knife and stabbed the deceased once in
her chest. After summing up to the assessors all of them were of the opinion that the refusal by
the deceased to cook “Ugali” for the accused could not under Nyiramba customs amount to
provocation and they found the accused guilty of murder as charge. I tend to agree with the
gentlemen assessors that the refusal by the deceased to cook food for the accused could not, by
itself, amount to legal provocation. But in my view whether an act can be said to constitute
sufficiently grave and sudden provocation for the purposes of section 210 and 202 of the Penal
Code should always be considered in the light of antecedent aggravating circumstances over a
period, if such exist, so that a culminating “last straw” may be considered as provocation
sufficiently grave, which might not have been so considered if it has been the first act of its
kind.

So here the deceased’s refusal to cook for her husband her running away from the house to
Jackson’s house and her pushing the accused and thereby causing him to suffer injury on his
head being the last of many such wrongful acts were in my view sufficiently grave and sudden
provocation to a wronged husband in the accused’s walk of life to make him lose his self control
and attack her. Clearly this is not a very easy case to decide and it is with great reluctance that I
have decided to differ with the unanimous opinion of the assessors. I however have doubts as to
whether the facts warrant a conviction of murder. I at least entertain reasonable doubt. The
accused is entitled to the benefit of that doubt. I therefore hold that the accused killed the
deceased with malice aforethought but while acting under such grave and sudden provocation as
to reduce his offence from murder to manslaughter. I find him guilty of the lesser offence of
manslaughter c/s 195 of the Penal Code, and I accordingly convict him. [Accused sentenced to
12 years’ imprisonment.].

Johari Ismail.R.[1974]L.R.T.23

REPUBLICv.JOHALIISMAILIHIGHCOURTCRIM.SESS.72-DSM-72,MFALILA,AG.J.

1)Provocation is a statutory defence created under 8S.201 and 202 ofthePenalCode.

2)When provocation is raised as a defence to the charge of murder:

a)The provocative act pleaded must be a wrongful act or aninsuIt.

b)The provocative act must be of such gravity as would deprive a reasonable man of his power
of self-control.

c)The murder must be done in the heat of passion.

d) The means of retaliation adopted must be proportionate to the degree of provocation

committed.

3)Making an allowance for the "last straw' doctrine of cumulative provocation there was no
wrongful act or insult and the accused's passion had time to cool.
R.v. JUMA LEGEZA[1969]H.C.D.244

FACTS
Accused was told his wife was having an adulterous association with another man. He
questioned her after having taken drink, slapping her several times. When she confessed,
he beat her with stick, told her to go and followed her to her supposed lover’s house
where he took away her clothes and left her naked on the bed. The accused later
returned and found her dead due to head injuries suffered during the beating. His
attempts to revive her with buckets of water failed. He reported the matter, and
confessed his actions to the elders subsequently the matter, and confessed his actions to
the elders subsequently to the Administrative Secretary.

HELD
“I am obliged to defence counsel for his reference to the case of Manyeri s/o Mukonko
v. R., (1954) 21 E.A.C.A 274 where it was held that the sudden discovery of a wife’s
adultery even if not by finding her in flagrante delicto may in Tanganyika in law be
sufficient provocation to reduce an intentional killing to manslaughter. I have no doubt
that that case reflects well established law.” (Also citing: Russell on Crime, p. 584;

YOVAN V. UGANDA [1970] 1 EA 405

FACTS
The appellant suspected the deceased, his step-mother, of having killed his children by
witchcraft or poison. On his blaming her, she replied that he would die before he could bury his
children. He then cut her about the head causing her death. It appeared from the statement
made by him that he armed himself intending to kill her for killing his children. The trial judge
rejected the defence of provocation and sentenced the appellant to death.

HELD
(i) a threat to cause the death of the accused may amount to provocation, depending on the
circumstances ( Eria Galikuwa v. R. (1) considered);

(ii) provocation must be judged by the standard of an ordinary person of the community to
which the accused belongs ( Chacha s/o Wamburu v. R . (2) followed);

(iii)the heat of passion required by s. 188 refers not only to a state of anger but to any
emotional state caused by the provocation and which is such as to deprive an ordinary person
of self-control;

(iv)the judge’s finding that there was no legal provocation was correct on the facts.

Appeal dismissed.

JUMA MASUDI V. R .[1968]H.C.D109

FACTS
Accused, posing as a police officer, induced complainant to place Shs. 360/- in his
custody by saying that it was the subject of a police investigation. Accused then
disappeared. He was subsequently convicted, inter alia, of obtaining money by false
pretences. [P. C. s. 302].

HELD
“It is clear that the complainant had no intention of parting with his money
(permanently) ….(Q)uite clearly these facts support a charge of theft and not of obtaining
by false pretences.” Conviction under P.C. s. 265 substituted.