Benson Mbugua Kariuki v Republic

Court of Appeal, Nyeri 12th, 16th November 1979

Law, Miller & Potter JJ A

Criminal Appeal No 29 of 1978

Criminal law – evidence - burden of proof – onus when defence raises issue such as provocation.

In a criminal case the onus is upon the prosecution to prove the accused guilty, such proof being beyond reasonable doubt; and if the defence raises an issue such as provocation (as in this case), alibi, self-defence or accident, the prosecution must negate that defence beyond reasonable doubt and the accused assumed no onus in respect of any such defence.

Festo Shirabus s/o Musungu v R (1955) 22 EACA 454 and Oloo s/o Gai v R [1960] EA 86 applied.

Appeal

Benson Mbugua Kariuki (“Benson”) appealed to the Court of Appeal (Criminal Appeal No 29 of 1978) against his conviction for the murder of Elsie Muthoni (“Elsie”) and his sentence to death by Cockar J in the High Court, Nyeri, on 23rd May 1978. In delivering the judgment of the Court of Appeal, Law JA stated that Benson and Elsie had been lovers for seven years. Twice within a few days, however, Benson had discovered David Kamau Petterson (“Kamau”) in Elsie’s house late at night. On the second occasion, on 16th March 1977, Benson had arrived at 11.00 pm at Elsie’s house; after about half-an-hour, he drew a revolver (which he always carried on him) and fired five shots: two hit Kamau , and three hit Elsie who died instantaneously. Benson drove away and told a friend that he had found Elsie with a man and had killed her. He surrendered himself, shortly afterwards, to the police. He told the police that after exchanging unpleasant words with Kamau he had lost his temper and fired the shots aimlessly. At his trial for murder he said that he had been convinced that Kamau had been sleeping with his woman and was uncaring and arrogant about it and that he (Benson) had not known what he was doing when he fired the shots. Kamau’s evidence, however, did not support Benson’s assertion of provocation. Benson appealed on the grounds that he should not have been convicted on murder but of manslaughter in view of the sudden and grave provocation to which he had been subjected.

Cases referred to in judgment:

1. Festo Shirabu s/o Musungu v R (1955) 22 EACA 454
2. Oloo s/o Gai v R [1960] EA 86, EACA.

B Georgiadis (instructed by Kaplan & Stratton) for Benson.

JE Gicheru senior State counsel for the Republic.