R. v. Nyadundo Crim. Case 215-M-70; 10/2/71; Mnzavas Ag. J.

R. v. Nyadundo Crim. Case 215-M-70; 10/2/71; Mnzavas Ag. J.

The accused was charged with murder. On 25/2/70 he funds his wife (the deceased) committing adultery with one Dominico. He then gave her a severe beating which resulted in her death. There was evidence that the accused knew before the 25/2/70 that the deceased had bee having an amorous association with Dominico and that it is because of this prior knowledge that the accused on 25/2/70 suspected that the deceased was about to repeat her adulterous association with Dominico that the decided to follow the movements of the deceased and Dominico that morning.

Held: (1) “There can be no doubt that the accused was provoked by what he saw; but the question was whether the provocation was such as to reduce the charge of murder to that of manslaughter. [Referring to R. v. Sungura s/o Ngolilo (1946) 13 E. A. C. A. 110] The question of provocation depends upon the question as to whether the act was done in the heat of passion caused by sudden provocation (as defined in section 202 of the Penal Code) and before there was time for the passion to cool. The evidence in this case in that the accused, for a long time, knew that the deceased was

            Committing adultery with Dominico ……….. This being the position, his finding Dominico with the deceased on the material day cannot be said to be sudden provocation within the definition of section 202 of the Penal Code.” (2) “The accused did not intend to kill his wife because (a) he could have used the panga he had with him but instead he used small sticks; (b) the doctor was of the opinion that only moderate force was used in beating the deceased; (c) the small sticks used are not weapons one would normally associate with an intention to kill or cause grievous harm (see R. v. KIBLA ARAP SEREM (1940) E. A. C. A. 73 and YOWERI DAMULIRA v. R. (1956) 23 E. A. C. A. 501) where it was said that “where death is caused by the use of a non-lethal weapon the inference of malice aforethought is much less readily drawn that where a lethal weapon is used.” (3) Accused not guilty of murder but guilty of manslaughter; 9 years imprisonment. Editorial Note; But see [1971] H. C. D. 280