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Kethibogile v The State (Court of Appeal No. 20 of 1989) [1989] BWCA 13; [1989] B.L.R. 67 (CA) (4 December 1989)

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appellant was guilty of manslaughter oniy. This necessarily involves a
finding that the Appellant caused the death of the deceased. "In
the heat of passion caused by sudden provocation" and "before there
         (was) time for his passion to cool". I agree with- that finding.
Apparently the relationship between the Appellant and his father
had been bad prior to the day of the death of the deceased. On that
day the Appellant arrived to find that a house which he had been
building for his mother was in flames. Inside wer the Appellant's
passport and bonus certificates and also P400 which were all consumed.
The Appellant's sister told him that his father was responsible for
o the fire. When he confronted his father the latter said "you will
see today I have fixed you up".
In a rage he struck his father with his fist in his mouth and when he fell down proceeded to stamp on his chest three times. The medical evidence shows that the cause of death of the deceased, who was fifty years old, was the blow to the face which caused a subdural haemorrhage. The post-mortem report shows fractures to certain vertibrae, damage to the lung and a number of abrasions on the upper part of the body.
When he had inflicted the blow which was to cause death and jumped upon the chest of the deceased the Appellant was prevented from continuing his attack and went into a nearby, yard. He later (the period which elapsed is not clear) and picked up a piece of wood in order to inflict further injury. He also tried to drag the deceased toward the house in order to throw him into the still-burning fire. He was prevented from doing so.
The question then is.how to approach the matter of sentence. Barrington-Jones J. was of opinion that the-whole incident justified

the infliction of a heavy punishment. He referred to the act of
the appellant'as "vicious and mindless". He placed emphasis upon
the absence of any" expression of remorse. He suggested that when
the Appellant returned to the place where his father was lying
his passion must have cooled and that his attempt to throw his
father into the burning house was "pure revenge". He refers
to "callous disregard" for the fate of the deceased.
It may be correct not to confine attention strictly to
occurrences before the deceased received the blow on his mouth
which caused his -death.' The whole event should be looked at
o and its degree of turpitude adjudged. Thus the return to the
body of his father (who at that stage may or may not have been
dead) and the attempt to attack it with a stick and to drag it to
the fire cannot be ignored. It is all part of one incident and, in my
view, there is nothing to indicate that there had been any cooling
off at the time when the Appellant returned to the body, picked up
a piece of wood and tried to throw his father's body into the fire.
The time span of the whole event is difficult to assess but there is
no evidence to show that the second set of events was so spaced from
first that it must be assumed that the mental condition of the
Appellant had altered to the extent that he was.at that stage
revenging himself upon the body of his father and no longer
activated by pure feelings of rage. The Appellant's acts are fully
convicted with this;"
I do not think that expressions of remorse either by the Appellan
or Counsel on his behalf were really call-ed for. The offence was not
of a kind which the Appellant was likely to -commit again so that

expressions of regret were not a relevant consideration in order to find that the Appellant was likely to repeat the offence. .It..is therefore not necessary to consider Counsel's statement from the bar ' that she was effectively .prevented from completing her-plea in mitigation which would have included some expression of request as to the events which had occurred.
It was urged upon us that the learned Judge wrongly placed too much emphasis upon the fact that the deceased was the Appellant's father. He did seem to give weight to this consideration, but I am by no means sure that it is a factor which sould have been entirely ignored. In the present case, however, where the relationship between father and son had been bad and where the father had taunted his son by saying that he had now been "fixed up", I cannot think that the fact that the relationship was father and son could justify the very strong words which the learned Judge employed in considering the conduct of the Appellant.
In the circumstances I am of the view that the learned Judge misjudged the moral blameworthiness of the Appellant by not finding that his conduct was probably, throughout the events, the result of his uncontrobable rage at what he thought his father had done and what his father had said and overemphasing the absence of expressions of regret and the father and son relationship. I think that the sentence is excessive to a degree which warrants inference by this Court.
The appeal is allowed. The sentence is set aside and a sentence of six years dating from the date when the Appellant was taken into custody substituted.

DATED AT LOBATSE THIS 4th 'DECEMBER, 1989

I agree
B. A. DOYLE, JA.

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