Bench Bulletin - Issue 12 - Kenya Law Reports
Bench Bulletin - Issue 12 - Kenya Law Reports
Bench Bulletin - Issue 12 - Kenya Law Reports
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KENYA LAW REPORTS<br />
BENCH BULLETIN<br />
FROM THE COURTS — COURT OF APPEAL<br />
Constructive Provocation<br />
Josiah Afuna Angulu v Republic<br />
Criminal Appeal No 277 of 2006<br />
Court of Appeal, at Nakuru<br />
May 28, 2010<br />
PK Tunoi, PN Waki & A. R. M. Visram JJ A<br />
Reported by Monica Achode<br />
Case History<br />
An appeal from a conviction and sentence of the High Court of <strong>Kenya</strong> at Nakuru (Musinga, J) dated 4th April, 2006 in<br />
HCCRC No 44 of 2002<br />
Criminal Practice and Procedure – appeal – first and final appeal – duty as the first appellate<br />
court to reassess and re-evaluate such evidence and to reach its own independent conclusion –<br />
appeal against conviction and death sentence for the offence of murder – main ground that the<br />
case against the appellant was not proved beyond reasonable doubt – claims of contradictory<br />
evidence – whether the prosecution had proved its case beyond reasonable doubt – Penal<br />
Code(Cap 63) section 203 as read with section 204<br />
Criminal Practice and Procedure – constructive provocation – appellant having argued with<br />
one of the witnesses prior to the incident – lack of evidence as to whether the deceased had<br />
been involved in the argument – whether this could be construed as constructive provocation<br />
– whether such provocation could be availed to the appellant<br />
The appellant was convicted in the trial court for the offence of murder contrary to section<br />
203 as read with section 204 of the Penal Code and sentenced to death. It was against this<br />
The Hon. Mr. Justice<br />
A. Visram<br />
that he proffered his first and final appeal basing it on one main ground that the case against him had not been proved<br />
beyond reasonable doubt and he was therefore entitled to acquittal. During the trial it emerged that prior to the incident,<br />
the appellant had engaged in a quarrel with one of the witnesses. It was however not clearly established whether the<br />
deceased had been a part of this. Further, in the submission of evidence against the appellant various inconsistencies<br />
emerged which cast doubt on the prosecution’s evidence.<br />
It was therefore the appellant’s contention that the inconsistencies and contradictions evident in the testimonies<br />
were material enough to discount the entire evidence of those witnesses. The appellant further claimed, with the<br />
State Counsel conceding, that there may well have been a quarrel between the appellant and one of the witnesses<br />
which could have been construed as provocation. However the State Counsel stated that such provocation could not<br />
be availed to the appellant as there had been time for his passion to cool between 8 a.m when the quarrel occurred<br />
and 2 p.m when the deceased was shot.<br />
Held:<br />
1. The evidence may have been short on full consistency in every detail and some of it may not have been fully tested<br />
in cross-examination but there was no doubt, that the appellant was at the scene of the crime and not anywhere else<br />
as purported by him.<br />
2. The doubtful evidence as to whether the deceased was also involved in the quarrel and whether he said anything<br />
before his death, cast a dark shadow on the evidence establishing mens rea. In law the benefit of those doubts went<br />
to the appellant.<br />
3. It was the appellant who shot the arrow which resulted in the deceased’s death. It is an unlawful death and the<br />
appellant was to stand convicted of the lesser offence of manslaughter.<br />
Appeal allowed, conviction quashed, sentence of murder set aside and substituted for the lesser offence of<br />
manslaughter.<br />
44<br />
<strong>Issue</strong> <strong>12</strong>: April-June 2010