(a)
when done or offered to an ordinary person
(b)
when done or offered in the presence of an ordinary
person to another person
(i)
who is under his immediate care, or
(ii)
to whom he stands in a conjugal, felial or fraternal or in the relation of master and servant. To deprive
him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person
by whom the act or insult is done or offered.
2.
When such act or insult is done or offered by one person
(a)
to another or
(b)
to the presence of another to a person
(I)
who is under the immediate care of that other;
or
(ii)
to whom that other stands in any such relation
as
aforesaid, the former is said to give to that provocation for/an assault
3.
A lawful act is not provocation to any person for assault
4.
An act which a person does in consequence or incitement
given
by another person in order to induce him to do the act and
thereby to furnish an excuse for committing an assault is not a provocation to that other person for an assault.
5.
An arrest which is unlawful is not necessarily provocation
for an
Assault but it may be evidence of provocation to a person
who knows of the illegality.”
To constitute provocation in the legal sense the wrongful act or insult must be of such a nature as to be capable of depriving an
ordinary person of his power of self-control and to induce him to commit the assault to the person who did or offered the act or
insult. The wrongful act or insult may be done directly to the person who commits the assault or in his presence to any of the persons
who stand to him in the relation in section 188 (1) (b) (I) and (ii) above.
For the defence of provocation to succeed the assault must be done in heat of passion before the accused has had time to cool down.
See Ikuku alias maina Nyaga vs Republic [1965] EA 496.
The law in this regard was summarised by the Supreme Court in Sowedi Oasire vs Uganda Supreme Court Cr. Appeal \No. 28 of 1989 where their Lordships held that for a charge of murder to be reduced to manslaughter on a plea of provocation –
(a)
The death must be ceased in the heat of passion before there is time for the passion to cool down.
(b)
The provocation must be sudden.
The standard for judging of the act or insult on which the plea Is advanced is capable of causing provocation in the legal sense is
that of an ordinary man.”
It is our duty as the first appellate court to re-appraise the evidence and come to our own conclusion. See Rule 30 (1) (a) of the Judicature (Court of Appeal) Rules. We have, of course, to bear in mind that we did not have the opportunity to see and hear the witnesses as they testified. See Selle and Another vs. Associated Motor Boat Co. [1968] EA 123, Pandya vs. R. [1957] EA 336, Ruwala vs R [1957] EA 570, and Kifamunte Henry vs Uganda Criminal Appeal No. 10 of 1997 (Supreme Court).
The learned trial judge considered the defence of provocation and held that it was not available to the appellant. He found that
there was no immediate action, which provoked the appellant. The trial judge considered the fact that the appellant had in his charge
and caution statement stated that on the fateful day he had found a man committing adultery with the deceased. During the trial the
appellant testified on oath that he had found the two sitting together inside the house. The judge concluded and, rightly so in our
view, that the appellant had abandoned the first set of facts as contained in the charge and caution statement. His defence was that
he found the deceased sitting in her house with a man whom he knew had made her pregnant. The change of statements indicates to us
that the appellant was telling lies to court. Soon after the incident had happened and when the events must have been fresh in his
mind, he told a different story from what he testified in court on oath.
It is pertinent to note that none of the prosecution witnesses and especially the doctor who performed the post-mortem examination
on the body of the deceased testified that she was pregnant. We are of the considered opinion that even if the deceased had actually
been pregnant and the appellant found her in the company of her lover that would not amount to legal provocation. Knowledge of an
adulterous affair of one’s spouse has been held not to amount to provocation when one is charged with murder. See Yafesi Nabende and Others vs R. (1948) 15 EACA 71. In that case the appellant was charged with murder of his wife’s lover. It was established in evidence that he had prior knowledge
of their adulterous association. He was privy to the plot to catch them together. The Court of Appeal for Eastern Africa held that
the defence of provocation by sudden knowledge was not available to the appellant.
In his judgement the learned trial judge considered the issue of provocation and stated thus: -
“The issue to decide is whether the knowledge that somebody had made one’s wife pregnant is capable of throwing such a person
into a sudden passion as to momentarily deprive him of self control. The issue to consider with the above issue is whether that previous
knowledge afforded a sufficient cooling period between the time of such knowledge and the assault.
Knowledge of a previous adultery ordinarily would disentitle a husband from pleading provocation without any other intervening insult
or unlawful act. The plea of provocation would therefore, not be available to an accused who assaults a paramour of his wife many
weeks after hearing that he had committed adultery with his wife. However, knowledge by a husband that his wife and her paramour
had committed adultery makes the plea of provocation available to the husband if he finds his wife and her paramour in the act of
adultery. See Yakoyadi Lakora s/o Omeri v R [1960] EA 323.
In the instant case the accused claimed that the person he found in the house with his wife had made his wife pregnant. It was also
his evidence that he found the two conversing. Even if it is true that the accused came to know that the man he found in the house
with his wife has made her pregnant. I find he had ample time for his passion to cool down from the time he knew of the pregnancy
and when he assaulted the deceased. At the time of assault there was no new wrongful act or insult which constituted provocation
in the legal sense. For the above reason the defence of provocation is not available to the accused.”
The learned trial judge correctly stated the law and properly applied it to the evidence before him. We cannot fault him. The argument
by the appellant’s counsel that the police should have investigated and found out the truth of the appellant’s story
that he found the deceased and her lover inside the house because the appellant told the police at the earliest opportunity is not
tenable. Counsel’s argument, with due respect, would apply in a case where the accused raises a defence of alibi and not provocation.
Additionally, there was other evidence on record, which showed that the appellant had a prior intention to kill the deceased and was not provoked when he stabbed the deceased. Three prosecution
witnesses namely, Akwee Kutancio, PW1, Okello Benson, PW2, and Bungo Levison, PW3, testified that during the night of 11/3/2000,
the appellant went to the deceased’s house and stabbed her in the abdomen. The deceased told all of them that it was the appellant
who had stabbed her with a knife. The three witnesses also testified that the relationship between the appellant and the deceased
was not good. On the 9/10/1999 the appellant unsuccessfully attempted to spear the deceased. The deceased reported that incident.
PW2 found the appellant with the spear and together with others took him to Erute sub-county headquarters. However, he escaped from
there.
Grounds 1 and 2 fail for lack of merit.
On the alternative ground appellant’s counsel did not say much apart from praying this court to evaluate the evidence and sentence
the appellant to 10 years imprisonment. Mr. Waninde did not agree.
The death sentence was passed against the appellant on 8/5/2002. This was before Constitutional Court pronounced itself on the mandatory
death sentence. Following the Supreme Court decision in Philip Zahura vs. Uganda Criminal Appeal No.16 of 2004 we have taken into account all the mitigating factors. We have found no mitigating factors deserving reduction of the sentence. We
are of the considered view that this was a brutal murder. The appellant had even previously attempted to murder the deceased. The
ground on mitigation of sentence that was imposed on the appellant also fails.
In the result the whole appeal against conviction and sentence is dismissed.
Dated at Kampala this 21st day of May 2007.
