Wakilii

Gaboye v Rex (Criminal Appeal No. 91 of 1949)

East African Court of Appeal · [1949] EACA 37 · 1949 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for murder in the High Court of Tanganyika
Decision
Conviction for murder upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the appeal against a murder conviction. The court held that legal provocation under section 202 of the Tanganyika Penal Code requires the wrongful act to be done in the presence of the accused. Where the appellant acted on a report from his injured brother, armed himself, and sought out the deceased in his hut, this was a retaliatory act of revenge, not a momentary act of uncontrolled passion. The court also held that despite evidence of beer drinking, the appellant was not so intoxicated as to be incapable of forming the specific intent to cause at least grievous harm.

Outcome

Conviction for murder upheld

Facts

At a beer party, an altercation occurred between the deceased and the appellant's half-brother Kameri. Both left the house and the deceased rendered Kameri unconscious with a blow. Kameri returned to the house where the appellant was, his face covered with blood. The appellant asked who had beaten him and Kameri named the deceased. The appellant then armed himself with a knobkerrie, went to the deceased's hut in the same homestead, and delivered a blow to the deceased's head with the knobkerrie. The blow caused a depressed fracture of the skull with a piece of skull bone driven deeply into the brain substance, from which the deceased subsequently died. There was evidence of beer drinking at the party.

Issues

  1. Whether the defence of legal provocation was available to the appellant where the assault by the deceased on the appellant's brother was not committed in the actual presence of the appellant.
  2. Whether the appellant was so intoxicated as to be incapable of forming the specific intent to murder or cause grievous harm.

Orders

  • Appeal dismissed.

Rules and key headnotes

Murder — Provocation — Requirement of Presence
Legal provocation under section 202 of the Tanganyika Penal Code requires that the wrongful act be done in the presence of the accused person or in the presence of an ordinary person to another person to whom he stands in a conjugal, parental, filial or fraternal relation.
Murder — Provocation — Retaliatory Act Distinguished from Momentary Passion
Where an accused person acts on a report received from his injured brother, arms himself with a weapon, and seeks out the deceased whom he finds sitting in his own hut, this constitutes a retaliatory act of revenge rather than a momentary act of uncontrolled passion, and the defence of legal provocation does not arise.
Penal Statutes — Definite Wording — Prohibition Against Glossing
Where a penal statute uses definite wording which admits of no ambiguity, it would be a violation of principle to attempt to put a gloss on the words used, even where English decisions might support a broader interpretation.
Murder — Intoxication — Capacity to Form Specific Intent
An accused person is not so intoxicated as to be incapable of forming the specific intent to murder or cause grievous harm where he is able to interrogate another person, take in information, arm himself with a suitable weapon, and walk or run to the victim's location to deliver a forceful blow.
Assessors' Opinions — Trial Judge's Discretion to Disagree
A trial judge is entitled to reach a conclusion contrary to the opinions expressed by assessors where the evidence justifies such a conclusion.

Legislation cited (1)

  • Tanganyika Penal Code s.202

Cases cited (3)

  • Rex v Kirangi (7 EACA 69)
  • Okurulumu s/o Ongiro v Rex (5 EACA 111)
  • Wallace Johnson v R [1940] AC 231

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Gaboye v Rex (Criminal Appeal No. 91 of 1949) [1949] EACA 37 (1 January 1949)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.