Lameck s/o Kiteka v. R., Crim. Sass. 31-DDM-71, 24/1/72.

 Lameck s/o Kiteka v. R., Crim. Sass. 31-DDM-71, 24/1/72.

            MNZAVAS, J. – 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 rebut able 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 the 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 charge 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 extra-judicial 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 mid-night 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 a 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.].