[1947] EACA 39

## COURT OF APPEAL FOR EASTERN AFRICA

# Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and $\overline{E}$ DWARDS, C. J. (Uganda)

### **REX, Respondent (Original Prosecutor)**

#### $\mathbf{v}$

## (1) AKOPE s/o KARUON, (2) KODERO s/o NGASIKUO, Appellants (Original Accused)

### Criminal Appeals Nos. 115 and 116 of 1947

# (Appeals from decision of H. M. Supreme Court of Kenya)

Criminal law—Provocation—Witchcraft—Manslaughter.

The appellants murdered their victim in the honest belief that he was responsible, by reason of witchcraft, for the death of the father of the first appellant, who was also the uncle of the second appellant.

Held (7-8-47).-(1) That this belief could not reduce the crime to one of manslaughter as they had believed that their relative was being bewitched for some days past. There was therefore no sudden shock which might have deprived them of their self-control.

(2) That in any case such belief, to constitute a defence, must be founded on some physical and not metaphysical act.

Rex v. Fabiano Kinene sio Mukye and others 8 E. A. C. A. 96; Rex v. Musomi 2 E. A. C. A. 91; Rex v. Kajuma sio Mbake 12 E. A. C. A. 105 approved; Rex v. Okurutumu 5 E. A. C. A. III criticized.

### Kelly for the appellants.

#### Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by NIHILL, C. J.).-In these two appeals which we have consolidated the appellants were convicted by the Supreme Court of Kenya for the murder of one Emeto. There is no dispute as regards the facts of the killing. The first appellant has from the first admitted that he killed Emeto because, as he says, he knew that he was responsible for the death of his father by witchcraft. The evidence for the prosecution disclosed that the first appellant was seen shortly after the death of his father battering the face and chest of the deceased with a heavy mallet as he lay on the ground whilst the second appellant held his legs. The second appellant, although he made some attempt in the Magistrate's Court to maintain that he was trying to separate the deceased from the first appellant, admitted in the evidence he gave at his trial that he approved of the attack by the first appellant and thought it was a proper thing to do "because of what Emeto had done in bewitching his uncle". On the evidence as a whole the learned trial Judge was clearly right in finding that the appellants shared a common intention to kill Emeto and that both were equally guilty of the homicide. The only question that arises for our consideration is whether an element of legal provocation emerges from the fact sufficient to reduce the appellants' crime from murder to manslaughter.

Counsel for the appellants has argued strenuously that such provocation was present in that both appellants were under an honest and reasonable, although no doubt mistaken, belief that their relative had just met his death by witchcraft on account of the machination of the deceased, and that they killed him in consequence before they had time for their passions to cool. It may be remembered here that there is some doubt on the evidence as to precisely how long a period elapsed after the appellants knew of the deceased's death before the attack took place. Certainly it was not a question of "moments or seconds" (Rex v. Musomi 2 E. A. C. A. 91) and there is some indication that some considerable time may have elapsed. However, we think it safer to assume in the appellants' favour that it was a very short time after, and certainly whilst both appellants were still labouring under the shock and grief caused by the news that their close relative had died. The learned trial Judge found that both appellants killed Emeto because they genuinely believed that he had caused the death of the deceased by witchcraft and we accept that finding. The learned trial Judge also addressed his mind as to whether those facts constituted legal provocation and came to the conclusion on the authority of Rex v. Fabiano Kinene s/o Mukve and others 8 E. A. C. A. 96 that they did not—counsel for the appellant has invited us to say that the learned trial Judge was wrong—

- (a) because it was established that both appellants were acting on an honest $(a)$ and reasonable belief that their relative had been killed by the witchcraft of the deceased: - (b) that this belief amounted to a belief that the deceased had committed an offence against provisions of the Witchcraft Ordinance, 1925 (Ordinance No. 23 of 1925), that this therefore constituted a wrongful act, and that by section 11 of the Kenya Penal Code a mistaken belief, honestly and reasonably held, must be taken as if a real state of things, as believed, existed: - (c) that this wrongful act of the deceased's was of such a nature as to deprive an ordinary person of the class to which the appellants belonged of their power of self-control.

We will consider the last of these propositions first because on the circumstances of the case it is one that cannot be answered in the appellants' favour. Sections 202 and 203 of the Kenya Penal Code, which sets out the law with regard to provocation, stipulates two things, first that provocation must be sudden and secondly that the wrongful act or insult constituting the provocation if done to another person standing in a conjugal, parental, filial, or fraternal relation to the person provoked, be done in the presence of that person.

It may be urged that this statement of law runs counter to the decision of this Court in the case of Rex v. Okurutumu 5 E. A. C. A. III where, according to the rubric, it was held "that in order to establish provocation in law it is not essential that the acts constituting the provocation should have been done in the presence of the accused person". As a statement of the law we must respectfully point out that prima facie this ruling appears quite inconsistent with the wording of either section 203 of the Kenya Penal Code or section 199 of the Uganda Penal Code (which are identical), and we doubt whether this Court could have expressed itself in the way it is reported to have done had it had before it the decision of the Privy Council in Wallace Johnson v. The King (1940) 1 A. E. R. 241, where it was laid down that in the interpretation of a Colonial Criminal Code regard must be had to the precise words of the enactment and its provisions must be construed free from any glosses or interpolations derived from any expositions, however authoritative, of the law of England or of Scotland. We appreciate that the facts in the Okurutumu case (supra) were such that the Court might well have come to the conclusion that the act of provocation was done in the constructive presence of the accused, and we are for the reason far from saying that the decision of the Court on the facts of that case was wrong. The rubric is, however, definitely misleading and should not be regarded as an accurate statement of the law.

It is, however, on the test as to the suddenness of the provocation said to have been given to the appellants that we think their appeal must fail. It is abundantly clear from the evidence that they believed for some days that the deceased was bewitching their relative. According to the evidence given by the first appellant in the Magistrate's Court his father told him six days before his death that he was being killed by Emeto. Yet Emeto continued to visit the sick man without molestation and was with him on the night he died with the knowledge of both appellants. No doubt the actual death of his father caused shock and grief to the first appellant as well as to the second appellant, but can it be said that the knowledge or belief that Emeto was responsible came to the appellants with so great and sudden a shock on their realizing that their relative was dead so as to

deprive them of self-control? On the contrary, we are bound to conclude from the evidence that the appellants killed the deceased in revenge for a course of conduct of which they had been aware for some days and that by so doing, to quote the wording used in Rex v. Fabiano (supra at p. 99), they were "merely constituting themselves executioners". Counsel for the appellants, in his argument, relied greatly on the case of Rex v. Musomi 2 E. A. C. A. 91, but we think that the facts in that case are clearly distinguishable from those now before us. In the Musomi case it was held that the accused killed his sister because he had formed an honest and *reasonable*, although mistaken, belief that she had administered poison to his child, a belief which to his mind became a certainty as soon as his child died. Under those circumstances this Court found manslaughter only on the evidence that within "moments or seconds" of his child's death he killed his sister. It must be observed that this case was not strictly a witchcraft case at all, and the Court were able to hold that the appellant honestly and reasonably believed that the deceased had committed a physical act by the administration of poison to his child. The Court was able to say that his belief was reasonable because another child of his had previously died suddenly after being given medicine by his sister. Even if we could hold that the provocation alleged to have been given to the appellants in this case was sufficiently sudden to afford them protection we could not find that the belief they shared that Emeto had killed their relative was both honest and reasonable. At the conclusion of the judgment of the Court in Rex y. Kajuma s o Mbake 12 E. A. C. A. 105 occurs the following passage with which we respectfully agree: -

"Our view is that in order to reduce the act of killing from murder to manslaughter because of a belief in witchcraft the case must come within the principle laid down in *Fabiano's case*. A mere belief, founded on something metaphysical as opposed to something physical, that a person is causing the death of another by supernatural means, however honest that belief may be, has not so far as we are aware been regarded by this Court as a mitigating circumstance in law, though it is a matter which we believe is always considered by the Executive".

The principle enunciated in Rex v. Fabiano seems to us clear enough. In that case the person put to death did a physical act, in the presence of the accused. namely crawling naked in a compound at night, upon which the appellants in that case formed the belief that he was a wizard and immediately attacked him, and this Court held that on the facts proved, namely that the deceased was in the actual presence of the accused performing some act which they did genuinely believe, and which an ordinary person of the community to which the accused belonged would genuinely believe, to be an act of witchcraft, the defence of grave and sudden provocation was open to them. To extend this principle, as we have been asked to do in this case, to mere metaphysical belief, would be not only to do violence to the law as laid down by this Court, but would be clearly contrary to public policy. A mere belief that witchcraft has been or is being exercised may be an honest belief in an accused person's mind, but when that belief is founded on nothing but the suspicions of the person holding that belief it cannot be said to be both honest and reasonable. To hold otherwise would be to supply a secure refuge for every scoundrel with homicidal tendencies.

We think we have said enough to show that this appeal must fail $(a)$ because the provocation, if any, was not sudden provocation within the meaning of section 203 of the Kenya Penal Code and $(b)$ even assuming that the appellants had killed immediately on their forming their belief that Emeto was exercising witchcraft, that could not have availed them to reduce their crime from murder to manslaughter, without evidence that their belief was founded on some physical act by Emeto in the presence of the accused upon which they could reasonably found their belief.

In dismissing both appeals, we conclude by observing that in all cases such as this we are aware that the element of witchcraft as a mitigating circumstance is always fully taken into account by the Governor in Council.