Nderekeba and Mbogo v. R. Court of Appeal Crim. App. 64-D-70; July, 1970; Spry, V.P.; Law and Lutta, J.J.A.
The two appellants were charge with murder, convicted and sentenced to death. The deceased, Masurube, had a house on the land of his father, the second appellant, Mbogo. Mbogo wanted him to vacate the property and brought a case against him in the local court. They attended the court one day, but the case was not heard. After leaving the court, Mbogo with another of his sons Nderekeba, the first appellant, went to the market and drank pombe. The deceased also drank pombe, but not in their company. All three would appear to have been under the influence of alcohol. On the way home, the deceased met his daughter Ndayavungwa, who had been cultivating. They continued together and met Mbogo. He was unarmed, as was the deceased. A quarrel developed between them an they began struggling. Nderekeba arrived and struck the deceases twice on the head with a rungu. There was some discrepancy in the evidence. One of the discrepancies between the medical evidence and the evidence of the prosecution witnesses. According to the doctor who performed a post-mortem examination, the deceased sustained two injuries, either of which could have caused his death. One was a deep cut wound on the head caused by a sharp weapon and the other a fracture of the skull. The fracture of the skull is consistent with a blow from a rungu, but not one of the prosecution witnesses speaks of any sharp weapon having been used by anyone. On the other hand, Nderekeba said in his evidence that the wife of the deceases struck him (Nderekeba) with a hoe and then tried to strike him again but missed and accidentally struck her husband on the left side of the head. The appellants’ counsel submitted that, Nderekeba came in answer to a call for help and found his father struggling with his brother, who was a bigger and stronger man; that his was not merely enough to constitute provocation but was enough to invoke the principle of self-defence: that a person is as entitled to kill to save, the life of his father as he would be to save his own life.
Held: (1) (a) [Regarding the defence of self-defence “As a general proposition, we would be disposed to agree but we do not think this argument is valid in the circumstances. It might have been different had the deceased been threatening Mbogo with a lethal weapon. As it was, both were unarmed. It should have been possible for Nderekeba to have separated the struggling men with
a minimum of force. We think the force actually used was clearly grossly excessive. (b) “We have considered Nderekeba’s position also in the light of the medical evidence. The learned judge found as a fact that it was the injury caused by club that had caused death. With respect, the evidence did not justify that finding. We think the evidence would have justified a finding that Nderekeba struck a blow or blows when the deceased was alive and that blow or blows would, on the medical evidence, have resulted in death, whether, or not the deceased had also sustained the cut wound. In these circumstances, we think Nderekeba was guilty of manslaughter.” (2) [As regards the case against Mbogo]. “The learned judge found that he had intentionally aided Nderekeba in assaulting the deceased and that he must have known that the use of the rungu would either kill the deceased or cause him grievous bodily harm. He based this finding on certain pieces of evidence. The first of these was a statement by the ten cell leader that when it was learned that the case could not be heard that day, Mbogo had made a remark suggesting that the deceased and himself should fight the matter out with spears. We think this is relevant evidence, as indicating a willingness to resort to force, but we think the weight to be attached to it is small, because when dispute flared up, Mbogo not only had no spear with him but was, b all accounts, unarmed. Secondly, the judge accepted the evidence of the deceased’s daughter that Mbogo lay in wait for the deceased when he returned from market and then attacked him without any provocation. With respect, this is a serious misdirection. The daughter never said that Mbogo lay in wait; what she said was that they found him sitting under a tree – a very different matter. Also, she never said that Mbogo attacked the deceased; what she said was that he threatened him. Thirdly, the judge accepted that Mbogo not merely called to Nderekeba for assistance but specifically asked him to bring a rungu. He was entitled to reach this finding, because it is based on the evidence of the daughter of the deceased, but he made no comment on the fact, which is surely significant, that the widow of he deceased was present and heard Mbogo calling for Nderekeba, but made no mention of any request for a rungu. Finally, the judge drew an inference from the fact that Mbogo was said to have driven back the peopled who wished to separate the fighters. With respect, think this is inferring for too much. If Mbogo had intended to ambush the deceased, it is surprising that he had no weapon. There is evidence that he abused and threatened the deceased, and it will be remembered that both were in drink, but none that he attacked him. When he was overpowered by the deceased, a more powerful man, he called in Nderekeba for help and he may have asked him to bring club. There is nothing here to suggest any premeditated plan, indeed the indication are all to the contrary. The only basis, then on which the conviction of Mbogo could be sustained is that he failed to dissociate himself for what Nderekebia was doing and, on the contrary, tried to prevent interference. We think it would be carrying the doctrine of common intention much too far to hold that it applies here, when Mbogo had called for help and in the course of a brief drunken brawl incidentally rendered Nderekeba some assistance. There is nothing, however, to show
That Mbogo had any reason to anticipate the violence with which Nderekeba struck the deceased and it will be remembered that the assault by Nderekeba was not a sustained beating but two blows struck quickly. We are not satisfied that the evidence shows Mbogo to have been quality of any offence. (3) Accordingly, we allow the appeals of both appellants quash their convictions of murder and set aside the sentences of death passed on them. In the case of Nderekeba, we substitute a conviction of manslaughter and imposed a sentence of five years’ imprisonment. In the case of Mbogo, we substitute an acquittal.” (4) Appeals allowed.
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