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Rex v Wandera (Criminal Appeal No - 121 of 1948)

East African Court of Appeal · [1948] EACA 33 · 1948 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction by High Court of Uganda
Decision
Conviction for attempting unlawfully to cause death quashed; conviction for wounding with intent to cause grievous harm upheld with reduced sentence of five years' imprisonment with hard labour

Observed later treatment

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Holding

The Court of Appeal held that conviction under section 208(1) of the Uganda Penal Code for attempting unlawfully to cause death requires proof of a positive intention to kill, not merely an intention to cause grievous harm. The marginal note 'attempt to murder' is misleading and forms no part of the enactment. On the facts, there was considerable doubt whether the appellant used the knife with positive intent to cause death, as he struck out during a scuffle after being seized and beaten by four persons. The conviction under section 208(1) was quashed. However, the conviction for wounding with intent to cause grievous harm under section 220(1) was upheld, with sentence reduced from ten to five years on account of provocation.

Outcome

Conviction for attempting unlawfully to cause death quashed; conviction for wounding with intent to cause grievous harm upheld with reduced sentence of five years' imprisonment with hard labour

Facts

The appellant went to his wife's step-mother's house to fetch her. When she declined to leave, he slapped her. According to the Crown, he then immediately stabbed a woman named Dorosiya in the neck with a knife without provocation. However, evidence showed that after slapping his wife, the appellant was seized by four persons including Dorosiya who began to beat him. During this scuffle, Dorosiya received a stab wound on the right side of her neck which narrowly missed the jugular vein. The appellant denied inflicting the wound, but the trial Judge accepted that he had stabbed Dorosiya during the scuffle that followed his slapping of his wife. Medical evidence showed the appellant also sustained minor injuries.

Issues

  1. Whether the appellant had a positive intention unlawfully to cause death as required for conviction under section 208(1) of the Penal Code.
  2. Whether provocation operates to bar a conviction under section 208(1) of the Penal Code.
  3. What constitutes the distinction between attempting unlawfully to cause death and unlawful wounding with intent to cause grievous harm.
  4. Whether the sentence for unlawful wounding with intent to cause grievous harm should be reduced on account of provocation.

Orders

  • Conviction under section 208(1) quashed and sentence set aside.
  • Conviction under section 220(1) upheld.
  • Sentence under section 220(1) reduced to five years' imprisonment with hard labour to date from conviction.
  • Conviction under section 226(1) stands with original sentence of three years (concurrent).

Rules and key headnotes

Criminal Law — Elements of Offences — Attempting Unlawfully to Cause Death — Requirement of Positive Intent to Kill
On a charge of attempting unlawfully to cause death contrary to section 208(1) of the Penal Code, it is not sufficient to prove that the offence would have been murder if death had ensued; it must be shown that the accused person had a positive intention unlawfully to cause death.
Criminal Law — Attempting Unlawfully to Cause Death — Distinction from Intent to Cause Grievous Harm
An intent merely to cause grievous harm, whilst sufficient to support a conviction for murder if death ensues, is not sufficient to support a conviction under section 208(1) of the Penal Code for attempting unlawfully to cause death, which requires proof of a positive intention unlawfully to cause death.
Criminal Law — Attempting Unlawfully to Cause Death — Effect of Circumstances of Extenuation
Under the Penal Code, unlawfully causing death by an act done with intention to cause death need not necessarily be murder; notwithstanding the positive intention to kill, it may be done in circumstances of extenuation which reduce the offence to manslaughter or infanticide, but if death does not ensue, by reason of the intent to kill, an accused is guilty of an attempt unlawfully to cause death contrary to section 208(1).
Criminal Law — Provocation — Effect on Conviction Under Section 208(1)
The existence of provocation will not operate to bar a conviction under section 208(1) of the Penal Code provided it is proved that the accused had an intent unlawfully to cause death, though provocation is a proper matter to be considered when passing sentence after conviction.
Statutory Interpretation — Marginal Notes — Not Part of Enactment
The marginal note to section 208 of the Penal Code which reads 'Attempt to murder' is misleading and forms no part of the enactment; the section itself deals with 'attempts unlawfully to cause death' and this differs from the law in England on attempted murder.
Criminal Law — Self-Defence — Use of Reasonable Force
Where occupants of a house use excessive force in evicting a trespasser, they are criminally responsible for the excess force under section 229 of the Penal Code, and the accused is entitled to use reasonable force to defend himself against their assault but is criminally responsible for the use of excessive force in the exercise of his right of self-defence.

Legislation cited (8)

  • Uganda Penal Code s.208(1)
  • Uganda Penal Code s.220(1)
  • Uganda Penal Code s.226(1)
  • Uganda Penal Code s.196
  • Uganda Penal Code s.374
  • Uganda Penal Code s.199
  • Uganda Penal Code s.229
  • Offences against the Person Act 1861 ss.11-15

Cases cited (2)

  • R v Gwempazi s/o Mukonzho (1943) 10 EACA 101
  • Claydon v Green (1868) LR 3 CP 64

Full judgment

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Rex v Wandera (Criminal Appeal No - 121 of 1948) [1948] EACA 33 (1 January 1948)
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.