SPRY J .A.
 The appellant, Iko Lukoya, was convicted of the murder of one Paulo
Localamoi and sentenced to death. He appealed to this Court. We heard his
appeal on the 7th March, 1968, when we allowed the appeal, quashed the
conviction and set aside the sentence of death, substituted a conviction of
manslaughter and imposed a sentence of six years' imprisonment. We now give
 It appears that on the evening of 21st November, 1966, a meeting was
held in the compound of one Alfonsio Odwar, at which more than ten persons
were present, including the appellant and one Jekeria Oderi. A path runs
through the compound, and while the meeting was going on, a stranger was
observed passing along the path in the direction of the homes of the
appellant and Jekeria. He is said to have been carrying a light cane, less
than two feet long. By this time, the appellant had left the meeting.
Jekeria spoke to the stranger but received no reply. Jekeria and Alfonsio
followed the stranger, who began to run and Jekeria then raised an alarm.
Some cattle belonging to Jekeria had been stolen that day and he thought the
stranger might be the thief. According to the witnesses, it seems that
neither Jekeria nor Alfonsio had any weapon. Other people from the meeting
followed. It seems to have been dark, although the evidence on this is
contradictory, and there was probably a good deal of confusion. Much of the
evidence is unsatisfactory and witnesses seem to have described what they
thought must have happened rather than what they had actually seen.
 The next fact that was established is that one Nason Yongo, who had also
been at the meeting, arrived at a point about thirty yards from the
compound, where he found the stranger lying on the ground "covered with
blood" and Jekeria Alfonsio and the appellant near him, the appellant having
a spear in his hand. He asked the appellant who had speared the stranger and
the appellant replied "I speared him". Shortly afterwards, another witness,
Olebe Tope, met the appellant about twenty yards away, when the appellant
said that he had killed a man. The witness did not see the appellant
carrying anything at that stage. In the meanwhile, the stranger had sprung
up and ran away. He was chased by the people present but escaped. It appears
that he was found alive next morning, though there is no evidence when or
where. He was taken to a dispensary, where he died at about 6.30.p.m. Before
he died, he made two statements to a police officer, one on the way to, and
one at, the dispensary; the latter was recorded by the police officer. The
deceased spoke in the Digo language, which was not known to the police
officer and the deceased's brother Tobielo Localamoi, acted as interpreter.
The appellant made various statements. At the time of his arrest, he said
that an alarm was sounded, there were cries of "thief", and he ran there and
speared a man. Later, he made a cautioned statement in which he said:
"I admit the charge. I killed him. I was coming from local dance when I
heard an alarm and went there to answer it, there I found many people
chasing a person who was said to be a thief and I speared him."
 He also took a party of police officers to a house where a spear was
found. At the trial, the appellant made a lengthy unsworn statement. Much of
it tallied with what has already been related. Part, however was new. He
said that he left his house on hearing the alarm, carrying a spear and two
hoes. Passing the house of a neighbor he was told that people were chasing a
thief. There he met a man running and called on him to stop. Instead, the
man threw a spear at him but missed. He picked up the spear and, as the man
rushed towards him, thrust it at him. He said that he did not know what part
of the body he struck. The man then ran away. He concluded by saying that he
told the people who had answered the alarm that the man had nearly killed
 The learned judge summed up fully to the assessors and particularly drew
their attention to the possibilities of self-defence and provocation raised
by the appellant's unsworn statement. One of the two assessors disbelieved
that statement, rejected both self defence and provocation and advised that
the appellant should be found guilty of murder. The other thought he should
be given the benefit of the doubt and found guilty of manslaughter only.
 The learned judge reviewed the evidence in a long and careful judgment.
He found that the evidence established beyond doubt that the deceased had
died as the result of being speared by the appellant. He held that the
appellant's unsworn statement was "a tissue of lies" and for this reason he
rejected the defence of provocation. In arriving at that conclusion, the
learned judge was clearly influenced first, by the evidence that the
deceased had not been carrying a spear and, secondly, by the contents of the
dying declarations. It was unfortunate that the learned judge apparently
overlooked the fact that the evidence of both dying declarations was given
by a person who was unable to understand the words spoken by the deceased
and had therefore to employ an interpreter. That interpreter was called as a
witness to give evidence of identification but no questions were put to him
regarding the dying declarations or his interpretation. The result of this
unfortunate oversight is that the evidence regarding the dying declarations
must be wholly rejected as being hearsay. (R.v.Gutosi s/o Wamaga1e, (1947)
14 E.A.C.A. 117; R. v. Abusolome Nankome, (1947) 14 E.A.C.A.119).
 Mr. Pandit, for the appellant, submitted that the medical evidence left
a doubt whether it was the appellant who had inflicted the fatal wound. The
evidence showed that the deceased died at 6.30.p.m. on 22nd November. The
doctor said that the injuries from which the deceased died had been
inflicted "up to ten hours" before death. If this was correct, the injuries
had been inflicted not earlier than 8.30.a.m. on 22nd November, which was
long after the appellant was alleged to have speared the deceased. With
respect, we are not persuaded by this argument. We think the doctor may have
under-estimated the interval of time between the infliction of the injuries
and death. The appellant himself said to two witnesses that he had killed
the stranger, and he was seen, with his spear, near the deceased who was
lying on the ground "covered with blood".
 We do not think there can be any doubt that the injuries the deceased
had then sustained were those from which he died. It will be recalled that
after the stabbing, the deceased escaped from his pursuers and it must be
inferred that the people who eventually found him and took him to the
dispensary were sympathetic towards him. The only question of real substance
is whether malice afore thought was proved. Mr. Pandit argued that there
must have been some provocation; otherwise the fact of the killing would
have been incredible. There, we cannot agree.
 The wanton killing of a suspected thief is all too common in East
Africa. The difficulty as we see it lies in the lack of evidence as to what
happened immediately before and at the moment of the killing. There is only
the appellant's unsworn statement, which the learned judge did not believe.
It is a curious and unexplained fact that neither Alfonsio nor Jekeria was
called as a witness, although on the face of the evidence they must have
known what happened. The appellant was not one of those who pursued the
deceased from Alfonsio’s compound. We know that the killing occurred at
night,that the appellant was answering an alarm, and that he stabbed the
deceased, but we do not know the circumstances of their meeting. The burden
was on the prosecution to prove malice aforethought and that burden has not
been discharged. As that burden has not been discharged the conviction of
murder cannot stand.
 On the other hand, we were in no doubt that it was the appellant who
killed the deceased and that the killing was unlawful. We therefore
substituted a conviction of manslaughter.