Mayanga v. R. Crim. App. 252-M-70; 10/7/70; Mnzavas, Ag. J.

Mayanga v. R. Crim. App. 252-M-70; 10/7/70; Mnzavas, Ag. J.

The appellant, lawfully married to one Amina, was convicted of assault causing actual bodily harm c/s 241 Penal Code and sentenced to 9 months imprisonment. On 1.3.70 the appellant came home at 9. a. m. and found Amina missing. He started looking for her in the vicinity carrying with him a stick. As he was approached a bush near his house he saw Amina with one Mereka, the complainant, in flagrante delicto in the bush. The complainant tried to run away but accused caught him and struck him with the stick he was carrying and thereby causing him to suffer a wound 3” X ¼ X ¾ on his left paratal region and contusion on the left shoulder and left knee. The appellant also assaulted Amina with the stick and as a result she sustained abrasions on hr left buttock thigh and right foot.

            Held: (1) “As it was held in Fidel Nyembe v. R. [1966] H.C.D. 34 provocation cannot justify an assault, although the provocation act can be taken as a mitigating factor in so far as sentence is concerned”. (2) “In the present case the appellant found the complainant in the act of adultery with his wife; this was an affront of so grievous a nature as to entitle the court to excise leniency in sentencing the accused. In my view, and as agreed by the State Attorney, the sentence of 9 months imprisonment, in a case of this nature, is manifestly excessive. The sentence is accordingly reduced to such term of imprisonment as would result in the immediate release of the appellant”. (3) Appeal against sentence allowed.