Wuthrich v. R., Crim. App. 106-D-70, 7/3/70; Georges C. J.

Wuthrich v. R., Crim. App. 106-D-70, 7/3/70; Georges C. J.

The appellant was charged with causing actual bodily harm c/s 241 of the Penal Code. When the case was first mentioned the appellant stated “It is true but he hit me and I hit him”. This was correctly entered as a plea of not quality. On he new hearing date the prosecution informed the magistrate that the accused wished to change his plea and asked that the charge be read to him again. Thereupon the charge was read over and explained and the appellant is recorded as having said, “Yes, I assaulted him”. This was entered as a plea of guilty. The prosecution alleged that the appellant is recorded as having said, “Yes, I assaulted him”. This was entered as a plea of guilty. The prosecution alleged that he appellant had become annoyed because the complainant had come looking into the bathroom where he was bathing. The appellant pleaded provocation as an excuse for his act.

            Held: (1) “Provocation cannot be a defence to a charge of assault. It can only serve to reduce a charge of murder to one of manslaughter on the basis that it negatives the malice aforethought which must be proved before a charge of murder can be established. In cases of assault, provocation can do no more than serve as a mitigating factor.” (2) The defence drew my attention to the case of Wambura Kirangi v. R. (1968) H.C.D. Case 46. “I have since looked at the judgment itself. In reply to a charge of unlawfully causing grievous harm c/s225 of the Penal Code the appellant replied “I admitted to have wounded the person”. Cross J. held, and I respectfully agree, that this was not an unequivocal plea ….. Not only was the plea not unequivocal in that case but he facts did not establish each ingredient of the offence. That case is clearly distinguishable from the one under consideration.” (3) “ ….. The sentence in this case was a first offender, 27 years of age. This appeared to be a momentary loss of temper due to a slight provocation. A year spent in prison would undoubtedly damage him.” (4) “The appellant has already spent 31/2 weeks in prison. Taking this into account I shall quash the sentence and impose instead a fine of Shs. 150/=, in default 3 weeks imprisonment with compensation in the um of Shs. 500/- to the complainant, in default distress. Otherwise the appeal is dismissed.”