Patrick Buluma Ondilo v Republic

The Court agreed with the learned judge that it was in order to admit the dying declaration made by the deceased to P describing the rape and attack. The statutory framework for admissibility of dying declarations is Section 33 of the Evidence Act, and the Court found that the circumstances of the deceased's statement, made while in critical condition shortly before her death, fell well within that provision. The declaration was also corroborated by medical evidence of severe head injury.

The Court reconsidered and re-evaluated the facts: the appellant and deceased were lovers; the deceased resisted the appellant's sexual advances, angering him into a spontaneous attack; the appellant thereafter bought medicine, offered to take her to hospital, begged forgiveness and undertook funeral expenses. These facts did not point to a mind actuated with malice, so the murder conviction failed and manslaughter was substituted.

The Court set out the evidence in detail because this was a first appeal, invoking Kinyua v R and Okeno v R. It is not the function of a first appellate court merely to check whether some evidence supported the lower court's findings; it must itself weigh conflicting evidence and make its own findings, while allowing for the trial court's advantage of hearing and seeing the witnesses.

The Court relied on Elphas Fwamba Toili v R, where an appellant who cut his inherited wife with a panga after a quarrel had his murder conviction reduced to manslaughter, the Court of Appeal reasoning that a person acting under provocation suffers a state of anger akin to diminished responsibility until he cools down. That reasoning supported the conclusion that the appellant's spontaneous attack lacked malice.