MURDER: PROVOCATION & CRIMES OF PASSION
CHAPTER 1
Every human being has a limit of tolerance to pain, humiliation, upset and stress. An impulse or a reaction is always instantaneous and can result in dire effects such as causing death.
It is no surprise that accused persons in a murder trial use “provocation”; the most common defence in crimes of passion. Whereas some reactions are spontaneous and unplanned, others are not. They tend to be planned and or pre-meditated.
In this article, we shall briefly examine the aspects of the doctrine of provocation. Thereafter, we shall attempt to determine whether it is an absolute defence to murder (to warrant an acquittal) whilst we discuss various decided cases on the same.
MURDER
What is murder?
Murder is defined under Section 203 as read with section 204 of the Penal Code as “…..Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” Malice aforethought was defined in the case; NZUKI VS REPUBLIC [1993] KLR 171 where the Court of Appeal held that before an act can be murder it must be aimed at someone and in addition it must be an act committed with the following intentions….
- Intention to cause death
- Intention to cause grievous bodily harm
- Where accused knows that there is a risk that death or grievous bodily harm will ensue from his acts and commits them without lawful excuse. It doesn’t matter whether the accused desires those to ensue or not. The mere fact that the accused conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder
N.B: The prescribed punishment for murder under the Penal Code Cap 63 Laws of Kenya is the death sentence. However, the Supreme Court decision in Francis Karioko Muruatetu & another v Republic [2017] declared the death sentence unconstitutional. Currently, an Attorney General constituted Taskforce is tasked at reviewing the mandatory death sentence.
PROVOCATION
What is provocation?
Section 208 of the Penal Code defines provocation to mean, “any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.
Simply put, provocation occurs when:-
- Person A acts in a way (either by words or action or a combination of both) towards Person B such as to cause him to feel humiliated, upset, belittled or arouse anger that would cause him/her to lose self-control and assault Person A; or
- Person A acts in a way (either by words or action or a combination of both) to Person C (who is a family/relative, worker, friend/certain close relationship to Person B) in the presence of Person B that would cause him/her to lose self-control, Person B can be said to have been provoked.
Is provocation an absolute defence to warrant an acquittal?
The fact that you were provoked by someone and caused death to them, does it automatically acquit you of the consequent murder charge? Section 207 of the penal code provides that “when a person unlawfully kills another…..in the heat of passion caused by sudden provocation.…the person is guilty of manslaughter only.
NB: According to section 204, a person found guilty of Manslaughter is liable to imprisonment for life. However, on mitigation, the accused (now convict) can be sentenced to a shorter term.
In Joseph Kimanzi Munywoki v Republic, the court of appeal allowed the appellant’s defence of provocation on grounds of adultery and the death sentence was set aside/ reduced to fifteen (15) years.
ELEMENTS OF PROVOCATION
Wrongful act/insult
This is the act that provoked the accused’s emotions causing him/her to act in a certain way. It is worth noting that incitement given by another person in order to induce him to do the act, and thereby to furnish an excuse for committing that crime does not amount to provocation.
The incident can be immediate or gradual (continuing for a period) of time. See Joseph Kimanzi Munywoki v Republic, where the appellant’s counsel in the trial court put forward a defence of accumulative provocation contending that the appellant’s provocation reached only a fever pitch on the material day but the appellant had been wronged and humiliated over a very long period of time.
Loss of Self-Control
This is to mean that the accused must have acted at the heat of the moment and had no time to cool off.
In Republic v Martin Kinyua Nancy [2016] the court highlighted as follows,
NB: (this is an extract from the Judgment)
“In this case, the accused was carrying on with his day to day duties at the hotel serving customers when the deceased came and demanded to be served. He had no patience to wait and moved to where the accused was and slapped him. The act of the deceased annoyed the accused who used the knife he was holding and stabbed the deceased. The accused did not move from his working table to procure the weapon. He used what was in his hands to hit the deceased. Although the deceased was not armed with any weapon, his action must have been prompted the accused to act at the spur of the moment and used what he was holding to stab the deceased. From the facts of this case, the deceased was the aggressor and this demonstrates that the accused acted in the heat of passion. The evidence on record does not support any premeditation on the part of the accused. During the moment which followed, after the slap, the accused acted suddenly and had no time to ponder over his action in order to assess its consequences. I am of the considered view that the defence of provocation is supported by the evidence on record. The accused has shown that he acted on the heat of passion on being attacked by the deceased. In view of the foregoing, I find that the charge of murder cannot be sustained against the accused. I find the accused guilty of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and convict him accordingly.”
The ‘cooling-off period’ is believed to have been the time where the accused could reflect about the consequences of any action he would undertake. If there is sufficient time to cool-off, it is deemed that you were aware of the consequences of your action and therefore brings the issue of premeditation.
CRIMINAL APPEAL NO 84 OF 1986 Inthithio v Republic[1988] eKLR the court in dismissing the defence of provocation opined as follows, …” The appellant however accosted the deceased thirty minutes after his wife was insulted in his absence. It could not therefore be said that the appellant hit the deceased whilst he was deprived of self-control by grave provocation and in the heat of passion…… Admittedly the words which the deceased used in these particular circumstances are more than vulgar abuse and would amount to legal provocation in terms of section 208(1) of the Penal Code. On the evidence, the wife of the appellant was not insulted in his presence so as to deprive him of the power of self-control and to induce him to commit an assault.
The Ordinary Person/Reasonable Man Test
Another element is to ascertain whether the provocation was capable of causing an ‘ordinary person’ to lose self-control and act in a certain manner. The question is “In similar circumstances, could an ordinary man have acted the same way as the accused did?”
Tarsisio Weino Letwamba v Republic [1994] eKLR the court opined as follows, “In arriving at this conclusion we have considered the issue of the degree of provocation which is a relevant factor in considering whether the heat of passion in an accused person, regarding him from the standard of the ordinary man, had had time to cool or whether the provocation would still be operating on his mind so as to deprive him of the power of self-control. The appellant, though hailing from the Samburu pastoral tribe, was an educated man by all standards and was a subject of a disciplined force. It is difficult to imagine lesser provocation than that of the appellant witnessing the sale of less palatable and juicy piece of meat to a young man. The defence of legal provocation was certainly not available to the appellant.”
Degree of reaction (”retaliation”)
This is basically the amount of force, energy that could said to be proportional to what an ordinary man would do in the circumstances. The amount of reaction should be reasonable to the provocation the test though subjective.
In the case EI S/O KABAYA VS REPUBLIC [1961] EA the court held: – “In consideration whether the defence of provocation was sufficient to reduce the offence to manslaughter it is material to consider the degree of retaliation as represented by the number of blows and the lethal nature of the weapon used.”
In the case of Mancini v Director of Public prosecutions 1964 CR A page, it was held by the House of Lords that to reduce an offence of murder to manslaughter it is necessary to take into account the instrument with which the homicide was effected.
“in applying the test it is of particular importance……to take into account the instrument with which the homicide was effected, for to retort, on the heat of passion induced by a simple blow is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.”
In Peterson Muthee Muranga v Republic [2017] The court highlighted the case of DANIEL MUTHEE VS REPUBLIC Criminal Appeal No. 218 of 2005 (UR), BOSIRE, O’KUBASU and ONYANGO OTIENO JJA., while considering what constitutes malice aforethought in the case and observed as follows:
“When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206(b) of the Penal Code.”
CONCLUSION
In light of the above, the defence of Provocation cannot guarantee an acquittal to a murder charge. However, it does well to mitigate the sentence to be meted. Ideally, it partly may succeed in reducing the sentence. The case laws as discussed above provide practical examples of the courts opinion in murder charges in which provocation feature as a defence. Indeed, reflex decisions/reactions have dire consequences especially in law. Whenever one fails to exercise self restrain, it is imperative to seek assistance from a specialist in mental and psychological health in order to get help on how to manage such.
By Mwangi Emmanuel – Managing Partner
