Welesi Kwandai s/o Maleke v. R., Crim. Sess. 43-A-68, -/-/-, Platt J.

Welesi Kwandai s/o Maleke v. R., Crim. Sess. 43-A-68, -/-/-, Platt J.

A quarrel broke out between two groups at a village celebration, at which there had been much drinking and spirited dancing. The deceased intervened in the quarrel, and attempted to separate the two groups. While he was doing this, the accused was alleged to have come and hit him one blow on the forehead with a moderately weighted stick. The deceased fell down, and shortly afterwards died as a result of this injury. There was no evidence of provocation, or of motive or premeditation.

Held: “I directed the assessors in conformity with the views expressed in YOWERI DAMULIRA v. R. (1956) 23 E.A.C.A. 501 where at page 502 it was observed: “When death is caused by use of a non lethal weapon and inference of malice is much leas readily drawn then when a lethal weapon is used.” Here, as in that case, the stick was not a lethal weapon being less so even than the stock in Xoweri’s case. But whereas in Yoweri’s case the accused could not know exactly where the blows were falling, here the accused could. Each case must depend upon its own merits and in my opinion a broad view of the circumstances is proper. Here there were high spirited young men dancing in groups. There had been a festivity and a good deal of drinking. There was no motive or grudge which is known to have inspired the accused to strike at the deceased. It seems to me that it was either an intemperate and irrational act due to drink and the general excitement, or an act possibly with intent to get in a blow at the deceased who was intermeddling with the group. There is no evidence that the blow was struck with great force, although there was a lacerated wound. In my view there remains a doubt whether malice aforethought had really been formed in the accused’s mind. Accused acquitted of murder and convicted of manslaughter.