Gabriel v. R. E. A. C. A. Crim. App. 4-D-71; 19/5/71; Duffus P. Saidi C. J. and Lutta J. A.

Gabriel v. R. E. A. C. A. Crim. App. 4-D-71; 19/5/71; Duffus P. Saidi C. J. and Lutta J. A.

            The appellant was convicted of the murder of his wife and sentenced to death. He found his wife getting out of the house of the man with whom she was having an affair and

            stabbed her to death. The trial judge found that there was no provocation or insanity because the accused had ‘waited for some time perhaps hours, for the deceased ………. To come out, so that he may attack them,” and that he did not create any terrific scene such as would have displayed insanity. The grounds of appeal were that the judge had misdirected himself on the issues of provocation and insanity.

                        Held: (1) [referring to Tadeo Oyee s/o Duru v. R. [1954] E. A. 407 C. A. and Nyige s/o Suratu v. R. [1959] E. A. 974 C. A.]. “On the evidence we are satisfied that the defence of temporary insanity was not open to the appellant. We see nothing in this case which brings it within the application of the principles in the authorities cited to us by Mr. Lakha.” (2) “The question is whether the appellant’s act was that of a man deprived of his self-control by the sudden knowledge of the deceased’s adultery, so as to negative the intention to kill or to do grievous bodily harm. On the day in question the appellant went to district court and reported that the deceased had run away. He knew then that she had run away with Victor Mbwanda …… He left the district court at 2.00 p. m. to go to his home. He did not find the deceased there. Although there is no evidence as to what time he arrived at Victor Mbwanda’s house, it is not disputed that he stabbed the deceased at 1.00 a. m. He admitted that he did not normally walk about with a knife. In our view there is an irresistible inference that the appellant went to Victor Mbwanda’s house with an intention to kill or inflict grievous bodily harm to the deceased and the defence of provocation by sudden knowledge of the deceased’s adultery is not open to him. (3) Appeal dismissed.