Hassan v. R. Crim. App. 889-M-70; 28/4/71; Mnzavas Ag. J.

 

Hassan v. R. Crim. App. 889-M-70; 28/4/71; Mnzavas Ag. J.

The appellant was convicted of robbery with violence c/s 286 of the Penal Code and sentenced to 3 years imprisonment and 32 strokes of corporal punishment. The evidence showed that on Hadija (a woman) was “married” according to Kuria custom to another woman, Gaudensia. In accordance with custom Hadija chose the appellant, a male, to perform the formers sexual duties. All three parties lived in the same house. The case for the prosecution was that the appellant made an unprovoked attack on the complainant with a club and a knife robbing him of his trousers shoes and Shs. 80/-. The appellant’s defence was that he found the complainant in an act of adultery with Gaudensia. The testimony of Gaudensia under cross examination by the appellant “tended to support the appellant’s story.”

            Held: (1) “I have consulted a Kuria elder who says that a man chosen by a woman – husband as the only person to carnally satisfy the woman husband’ wife has, under Kuria customary law every right to be provoked if he finds another man having sexual intercourse with the wife. He indeed said that the chosen man can institute a civil case claiming compensation for adultery. This being the customary law of the Wakuria, the appellant must have been provoked when he saw the complainant committing adultery with Gaudensia. His assaulting the complainant was therefore because of the provocative act of the complainant. His snatching of the complainant’s trousers and shoes cannot in the circumstances of this case be said to be robbery with violence.” (2) “Provocation no matter how strong cannot in law justify an assault although the nature of the provocative at can be a mitigating factor so far as sentences concerned …. The appellant should have been charged with assault causing actual bodily harm c/s 241 and not with robbery with violence. Section 181(2) of the criminal Procedure Code says; “Where a person is charged with a offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it.” Assault causing actual bodily harm c/s 241 of the Penal Code is certainly a minor offence compared to robbery with violence. c/s 286 of the Penal Code. The former carries a maximum penalty of 5 years imprisonment whereas the latter is a 14 years felony. The conviction for robbery is quashed and the sentence is accordingly set aside …. The appellant is convicted of assault causing bodily harm c/s 241 of the Penal Code and …. Sentenced to 6 months imprisonment.”