Joseph Mokwa v Republic

Court of Appeal, Kisumu

11th June 1979

Madan, Miller & Potter JJ A

Criminal Appeal No 46 of 1978

Criminal law – evidence – burden of proof - excessive force used in self defence – onus on prosecution to establish excessive force – onus not discharged.

Where self defence is successfully raised as a defence to a charge of murder, a verdict of manslaughter on the ground that excessive force was used in self defence is only open to the Court if the prosecution discharged the onus of showing that the accused had time for reflection and that he could have counted and aimed the blows which he inflicted.

Palmer v R (1971) 55 Cr App Rep 223 disapproved.

Appeal

Joseph Mokwa appealed to the Court of Appeal (Criminal Appeal No 46 of 1978) against the sentence imposed on his conviction by Cotran J in the High Court, Kisii, on 20th September 1978 for manslaughter. The facts are set out in the judgment of the court.

Cases referred to in judgment:

1. Manzi Mengi v R [1964] EA 289, EACA.
2. Palmer v R (1971) AC 814, [1971] 2 WLR 831, [1971] 1 All ER 1077, 55 Cr App Rep 223, PC.

The appellant was not represented

B Chunga for the Republic