Provocation as Defense 1

Provocation as Defense

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University

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Course
 Provocation as Defense 2

Introduction

Kenya is among the Anglophone countries. Therefore, English common law is highly

applicable in the country. In English Common Law, the provocation is a particular defense which

is only available for murder crime as defined under section 3 of the Homicide Act 1957.

Provocation is denoted as a situation in which a person is charged with murder, and there is

evidence from which a court can find a person was provoked by things done and said, which

make such personal loss his self-control and that a judicious man would have conducted himself

as defendant did in the situations1. In this instance, the defendant may be found guilty of

manslaughter and not murder. In the Kenyan law, the provocation is provided for in section 207

of the Kenya Penal code as

The term “provocation” means and includes, except as hereinafter stated, 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.2

The term provocation is defined in section 2008 of the Penal Code as:

1
Fitz-Gibbon, Kate, Homicide Law Reform, Gender and the Provocation Defence: A Comparative

Perspective. (Houndmills, Basingstoke, Hampshire: Palgrave Macmillan, 2014), p.124.

2
The Penal Code (Cap 63), s207.
 Provocation as Defense 3

1. The term “provocation” means and includes, except as hereinafter stated, any

wrongful act or insult of such a nature as to be likely, when done to an ordinary

person or in 3the 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.4

2. When such an act or insult is done or offered by one person to another, or in

the presence of another to a person who is under the immediate care of that

other, or to whom the latter stands in any such relation as aforesaid, the former is

said to give to the latter provocation for an assault.5

3. A lawful act is not provocation to any person for an assault.6

In common law, provocation is perceived as a partial defense to murder. The

successfulness of later minimize the obligation to manslaughter. According to the Kenya Penal

Code, killing on provocation happens when an individual unlawfully kills under the situations

which would constitute murder.7 However, the circumstance to which such will constitute to

murder are established in s208 Cap.63.

Provocation as Defence against Criminal Offences

3
Homicide Act 1957, s3.
4
The Penal Code (Cap 63), s208 (1).
5
The Penal Code (Cap 63), s208 (2).
6
The Penal Code (Cap 63), s207 (3).
7
The Penal Code (Cap 63), s208 (1).
 Provocation as Defense 4

Provocation can be used as a defense against criminal offenses in some ways.

Partial Defence of Murder

One of how such is applied is in partial defense of murder. Evidence of provocation in a

court of law function as a partial defense where it minimise what otherwise would be murder to

manslaughter. Evidence concerning provocation can be regarded as a vital item of evidence on

the issues of whether the defendant made the necessary intent needed for other offenses.

However, in this situation, the defense is applicable only after the murder has been proven. The

evidence of provocation does not disprove the fault or act element of the crime of murder. This

can be demonstrated by the following law cases

The case of OKWANY & ANOTHER VS REPUBLIC [2005] 1 KLR 833, the decision of

the Court of appeal held that there was a provocation in which the accused, the confronted, and

another equipped with a crude weapon (rungu) uprooted crops from a disputed land which were

planted by the defendant.8 From this case, the murder was minimized to manslaughter because

the Court of Appeal found that the case raised an issue of provocation, which was brought forth

by the lawyer of the accused. The Court of Appeal found that the trial judge did not put into

consideration the issues of provocation.9 Therefore, the conviction for murder was not sustained.

Consequently, the plaintiff was found guilty of manslaughter, which was contrary to s202 and

section 205 of the Kenyan Penal Code. The plaintiff was liable to imprisonment for ten years.

In another case Benson Mbugua Kariuki v. Republic [1979] eKLR 29, the Court of

Appeal found that there was enough evidence of provocation of the defendant personally, where

the burden laid upon the prosecution to disprove that provocation and which failed to so.

8
OKWANY & ANOTHER VS REPUBLIC [2005] 1 KLR 833
9
Ibid.
 Provocation as Defense 5

Therefore, the accused used the provocation as a defense. This succeeded, and the Court of

Appeal minimized the murder under Section 203 as read with Section 204 of the Kenyan Penal

Code to manslaughter under Section 202 as read with Section 205.

Regarding the specific circumstance of the Republic v Martin Kinyua Nancy [2016]

eKLR 14, provocation, used as defense, enhanced the benefit of the appellant against criminal

charges, 10 and the information of the murder was reduced to manslaughter under Section 202 as

read with Section 205 of the Penal Code.11 In both cases, the appellant has provoked a reasonable

person for instance, in the case Mbugua Kariuki v. Republic [1979] eKLR 29; the appellant was

provoked by the deceased to the point that the deceased was reluctant to vacate the premises after

raping and robbing the appellant’s wife.12 Even after the appellant ordered the deceased to leave,

He was still reluctant, which provoked the appellant and did not give a room for the appellant to

cool off. This was extremely essence of provocation, which the trial judge failed to consider.

Defense in the form of Heat of Passion

Provocation can be applied as a defense for criminal offenses in the circumstance of the

heat of passion. The heat of passion is a core component to provocation as a defense, in which a

person causes death due to the heat of passion. The accused person must have caused death

because that person was provoked not simply because provocation happened. There should a

presence of a causal relationship between the killing and the provocation, the amount of

temporary as well as sudden loss of self-discipline. This renders the accused of being a subject to

the passion that makes him or her loses a moment of mastering his or her mind. The heat of

10
Republic v Martin Kinyua Nancy [2016] eKLR 14
11
Penal Code (Cap.63), s202, s203, s204, s205
12
Mbugua Kariuki v. Republic [1979] eKLR 29
 Provocation as Defense 6

passion due to provocation has been used in courts of law as a defense mechanism against

felonies. This is well be illustrated in the law case below.

In the case, Republic v Martin Kinyua Nancy [2016] eKLR 14, the defendant person was

doing his daily chores at a hotel by serving the client when the deceased emerged and demanded

to be attended.13 The deceased did not demonstrate patience as the accused was serving other

customers. The deceased move close to the defendant with the aim of being served. Due to lack

of patience to wait, the deceased slapped the accused. His action annoyed the accused who used

the knife he was holding to stab the deceased. The defendant did not move to look for knife

rather he used the knife on his working table and used it a weapon. That is, he applied what he

had at that moment to stab the deceased.14 Despite the fact that the deceased was not equipped

with any weapon, his action irritated the accused and prompted him to stab him immediately. In

this scenario, the deceased was the assaulter, and this revealed that the defendant acted in the

heat of passion and the evidence did not reveal any premeditation on the part of the appellant.

The ruling from this case shows that the trial judge did not consider the heat of passion in his

verdict to convict the accused of murder. 15However, the court found there was enough evidence

on the defense of provocation and the accused acted on the heat of passion of being assaulted by

the deceased. The Court of Appeal did not sustain the verdict of murder under Section 203 as

read with Section 204 rather the learned judge found the appellant of being guilty of

manslaughter Section 202 as read with Section 205 of the Penal Code. 16

13
Republic v Martin Kinyua Nancy [2016] eKLR 14
14
Ibid
15
NJERU VS REPUBLIC [2006] 2 KLR 46.
16
Penal Code (Cap.63), s202, s203, s204, s205
 Provocation as Defense 7

Therefore, the Court of Appeal accepted heat of passion as provocation defense of the

accused and reduced the murder to manslaughter under manslaughter Section 202 as read

with Section 205 of the Penal Code

Provocation Defences against Wrongful Act or Insult

Unlawful assault or a sudden assault is probably to be regarded an insult or wrongful act by

providing proof of provocation. For instance, property destruction before the owner of the

property could also provide evidence of a wrongful act or insult. An insult is considered scornful

utterances, behavior, and injuries intended to harm self-respect. It is a humiliation and insult to

another individual. According to the Section 107 Evidence Act (Cap.80)

1) Whoever desires any court to give judgment as to any legal right or liability dependent

on the existence of facts which he asserts must prove that those facts exist.17

2) When a person is bound to prove the existence of any fact it is said that the burden of

proof lies on that person.18

In such circumstance, the defendant assumes no onus to prove his or her guiltlessness and

any explanation or defense put forward by the defendant is only to be considered on a balance of

possibility.19 Therefore, the standard of evidence brought before the prosecution is to demonstrate

the guilt of the defendant beyond reasonable doubt.20 The provocation defense only stands when

the court regards the proof presented on behalf of the defendant that the defendant’s action that

17
Evidence Act (Cap.80) s107 (1)
18
Evidence Act (Cap.80) s107 (2)
19
Republic v Martin Kinyua Nancy [2016] eKLR 14
20
Wangombe versus R (1980) KLR 119,
 Provocation as Defense 8

led to the death of the deceased was caused by sudden provocation. This has been demonstrated

by the case of REPUBLIC VS. GACHANJA [2001] KLR 428.

Conclusion

Provocation has become a statutory element in Kenya law as demonstrated by Section 207

and Section 208 of Kenyan Penal Code, which defines the term and its applicability. The

provocation has been used successfully by accused people to reduce a murder sentence to a

manslaughter sentence as provided by Section 202 as read with 205 of the Kenya Penal code.

References

Legislations

Homicide Act 1957, s3

The Penal Code (Cap 63), s208 (1)

The Penal Code (Cap 63), s208 (2)

 Provocation as Defense 9

The Penal Code (Cap 63), s207 (3)

Evidence Act (Cap.80) s107 (1)

Evidence Act (Cap.80) s107 (2)

Penal Code (Cap.63), s202, s203, s204, s205

Cases

Republic v Martin Kinyua Nancy [2016] eKLR 14

Mbugua Kariuki v. Republic [1979] eKLR 29

OKWANY & ANOTHER VS REPUBLIC [2005] 1 KLR 833

NJERU VS REPUBLIC [2006] 2 KLR 46

Wangombe versus R (1980) KLR 119

Book

Fitz-Gibbon, Kate, Homicide Law Reform, Gender and the Provocation Defence: A Comparative
Perspective. (Houndmills, Basingstoke, Hampshire: Palgrave Macmillan, 2014)