James Onyiego Nyarangi, Alan Robin Winston Hancox, Alister Arthur Kneller
Mungai v Republic
Court of Appeal, at Nairobi December 13, 1984
Kneller, Hancox JJA & Nyarangi Ag JA
Criminal Appeal No 84 of 1984
(Appeal from the High Court at Nairobi, Porter J)
Criminal law – murder - offence of - contrary to - Penal Code (cap 63)section 17 - killing arising from use of force in defence of person or property - whether a sufficient factor in reducing offence to manslaughter.
Criminal law – manslaughter - offence of contrary to - Penal Code (cap 63) section 17 - reducing offence of murder to manslaughter – killing arising from use of force in defence of person or property - whether a sufficient factor to reduce offence of murder to manslaughter.
Evidence - hearsay evidence - dying declaration - admissibility of - appellant charged with murder - appellant alleging sudden and violent attack by deceased - statement of deceased to his brother that he had not fought with appellant - absence of other evidence by which to test evidence of appellant - whether statement of deceased admissible as a dying declaration - Evidence Act (cap 80) section 33(a).
The appellant was charged with murder and after his trial, he was found guilty of the lesser offence of manslaughter on the basis of excessive use of force in defence of a person and on the basis also of provocation. He was sentenced to twenty-one months’ imprisonment. At the trial, there had been no evidence to set against the testimony of the appellant and one Christine, who it was alleged had been attacked by the deceased and who the appellant had been endeavouring to protect, as to what had happened save that the deceased had while in hospital made a statement to his brother in which he emphasized that he had not fought with the appellant. The appellant had shot the deceased in the thigh and the police had left him bleeding and unattended for about 45 minutes before taking him to hospital where, again, there was delay in administering a blood transfusion. The deceased died the following day and the cause of death was certified to be cardiac and respiratory failure due to irreversible shock brought on by excessive bleeding due to bullet wounds. The appellant appealed against his conviction.
1. It is a doctrine recognised in East Africa that the excessive use of force in the defence of the person or property, whether or not there is an element of provocation present, may be sufficient for the court to regard the offence not as murder but as manslaughter-R v Ngolaile s/o Lenjaro (1951) 18 EACA 164; R v Shaushi (1951) 18 EACA 198.
2. While there is no rule that excessive force in defence of the person will in all cases lead to a verdict of manslaughter, there are nevertheless instances where that result is a proper one in the circumstances and on the facts of the case being considered-Palmer v Reginam  1 All ER 1077.
3. The deceased’s statement to his brother in which he emphasized that he had not fought with the appellant was admissible under the Evidence Act (cap 80) section 33(a) as a dying declaration. Nevertheless, the evidence of the appellant and Christine showed that the deceased had attacked both of them.
4. In a moment of unexpected anguish such as, as it was in this case, the sudden and violent attack by one person on another, a person in the situation of the appellant is not in law required to weigh to a nicety the exact measure of the action which it is necessary to take to deter the attack on that other person. The appellant’s actions had not been unreasonable or excessive in the circumstances with which he was faced.
5. The appellant, though not being regularly married to the person who had been attacked, was entitled in law to take reasonable measures to prevent danger to her life and, moreover, he was entitled under the Penal Code section 392 to act to prevent the commission of a felony which was occurring in his presence.
6. (Obiter) A court should select the assessors and should take care not to appear to confirm rather than to select assessors. The trial judge having carried out an inquiry as to the suitability of the persons to be summoned to serve as assessors had not selected the assessors as provided under the Criminal Procedure Code (cap 75) section 297 but had recorded that the assessors “chose themselves”, which was an error.
1. Ilapala s/o Ibrahim v Reginam (1953) 20 EACA 300
2. Selemani s/o Ussi v Republic  EA 442
3. Palmer v Reginam  1 All ER 1077
4. Rex v Ngoilale s/o Lenjaro (1951) 18 EACA 164
5. Julius Matendechere s/o Masakho v Reginam (1956) 23 EACA 443
6. The King v Biggin  14 CAR 87; 1 KB 213; [1918-19] AER 501
7. R v McInnes  3 All ER 295
8. R v Rose  15 Cox CC 540;  2 All ER 536
9. R v Shaushi s/o Miya (1951) 18 EACA 1981
10. Hau s/o Akonaay v R (1954) 21 EACA 276
11. R v Chisam  47 Cr App R 130
12. R v Duffy  1 All ER 62
13. Kaluma v Republic  EA 349
14. R v Shannon The Times 19th April, 1980;  Crim LR 438
15. George Karanja Mwangi v Republic Criminal Appeal No 132 of 1983;  KLR 522
16. Kalume wa Tuku alias Saidi v Regina (1954) 21 EACA 201
1. Butler, T.R.F., Mitchell S.G., (Eds) et al. (1973) Archbold: Criminal Pleading, Evidence and Practice, London: Sweet & Maxwell 38th Edn
2. Hailsham, Lord, et al, (Ed), (1976) Halsbury’s Laws of England, London: Butterworths, 4th Edn para 1179
1. Penal Code (cap 63) sections 17, 207, 208, 208(1), 213(a), 241, 244, 392
2. Evidence Act (cap 80) section 33(a)
3. Criminal Procedure Code (cap 75) sections 297, 382
Mr BN Georgiadis for Appellant
Mr B Chunga for the Republic