[1943] EACA 13

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and MARK WILSON, Ag. C. J. (Tanganyika)

## REX, Respondent (Original Prosecutor),

(1) KELEMENTI MAGANGA s/o OCHIENG, (2) ZADOKI OMOITI s/o OKECHI, Appellants (Original Accused Nos. 1 and 2)

Consolidated Appeals Nos. 160 and 161 of 1942

Appeals from decision of H. M. High Court of Uganda

· Criminal Law—Murder—Sufficiency of evidence—Witchcraft—Provocation.

The facts in so far as they are material to the points on which the case is reported appear from the judgment.

Held (29-1-43).—(1) That the evidence supported the conviction of the second accused.

(2) That the evidence supported the finding that the first accused was associated with the second accused in the assault on the deceased and that the first accused was therefore equally responsible with the second accused for the death of the deceased.

(3) That upon the evidence there was a reasonable doubt whether both the accused. did not receive grave and sudden provocation and they must therefore be given the benefit of that doubt.

R. v. Fabiano and others, 8 E. A. C. A. 96 referred to.

Convictions of murder quashed and sentences of death set aside.

Convictions of manslaughter substituted and each accused sentenced to imprisonment for life.

## Appellants absent, unrepresented.

Stacey, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by Sir JOSEPH SHERIDAN, C. J.)—There are three matters for consideration in this appeal: (1) whether the evidence supports the conviction of the second accused Zadoki, (2) whether if it does the evidence supports the finding that the first accused Kelementi was associated with the second accused Zadoki in the assault on the deceased and if so was he equally responsible with Zadoki for Amengartu's death, (3) was there provocation?

It would seem that the learned trial Judge in convicting the accused relied on the evidence of the deceased's son Yokana. In his judgment he said: "Yokana, who is about twenty years of age, stated that on this particular night he was sleeping in a house in the compound of Zadoki. He was awakened by a noise. He went out and saw the two accused beating and strangling his father, who was lying on the ground. He asked Zadoki what they were doing; Zadoki replied, 'I have caught your father at sorcery, we are beating him'. He further said he had found Amengartu walking naked at his house. Zadoki then stabbed Amengartu with a spear. Both the accused then carried the body to Amengartu's house". And again "Yokana's evidence is open to certain criticisms. It is strange that Zadoki should choose to perform his homicide in the presence of an audience, that audience consisting of two children of the deceased and a daughter and relation of his own. It is strange also that Yokana did not make any alarm and that after what he saw he went quietly back to bed. In spite of these objections I find myself in agreement with the Assessors; I have no doubt that his evidence is substantially true. I feel myself fortified in this conviction by the fact that on the arrest of Zadoki a spear with found concealed in the thatch of his house". If Yokana's evidence is believed it establishes that one or both of the accused caused Amengartu's death. The assessors as well as the Judge believed his evidence to be true. Notwithstanding the contradictory evidence of the girl Adikiri and the fact that two other witnesses (girls) went back on what they said before the Magistrate, can this Court say that the Judge was wrong in acting on Yokana's evidence especially when he addressed his mind to these drawbacks in the Crown case. We do not think so. The evidence of Yokana certainly implicates Zadoki in the killing and fixes him as the person who fatally speared the deceased.

The next question is whether the accused Kelementi was criminally responsible with Zadoki for Amengartu's death. The learned Judge found that he was, and accepting the evidence of Yokana we consider that his finding is a reasonable one. To quote from the judgment: "The evidence shows that in conjunction with Zadoki he was assaulting the deceased while the latter was lying on the ground. Later, after the deceased had been speared he assisted Zadoki in conveying Amengartu to his house. Not only did he refrain from any act to prevent Zadoki from using his spear, but after the spear had been used he showed no sign of repugnance or horror at what had been done. From these facts it is a fair inference that when he was assaulting the deceased he was doing an act for the purpose of enabling or aiding Zadoki to cause the death of Amengartu. This brings him under Section 21 (b) of the Penal Code and makes him guilty of whatever offence Zadoki may be found to have committed".

Finally there is the issue of provocation. As to this our view is that there is at least a doubt in favour of the accused for the following reasons: The evidence lends credence to Amengartu's having been engaged in some act of witchcraft in Zadoki's compound when he was seized by the accused. Yokana's evidence is that Zadoki said he had caught the deceased in an act of sorcery. Anticipating a criticism that the accused have not said so in their defence, we would suggest that this may be due to their reluctance to prejudice their main defence that they had nothing to do with an assault on the deceased. The facts of the case are in some respects not unlike those in Rex v. Fabiano and Others, 8 E. A. C. A. 96, where this Court found that there was provocation within the meaning of Section 199 of the Penal Code. In the present case we have it that some time during the night on which he met his death the deceased left the bed which he shared in his hut with his son Okutuyi. Later he was seen by the witness Yokana in Zadoki's compound. As we have already pointed out Yokana stated that on this particular night he was sleeping in a house in the compound of Zadoki; he was awakened by a noise; he went out and saw the two accused beating and strangling his father, who was lying on the ground. He asked Zadoki what they were doing; Zadoki replied: "I have caught your father at sorcery, we are beating him", and added that he had found Amengartu walking naked at his house. Zadoki then stabbed. Amengartu with a spear. Both the accused then carried the body to Amengartu's house.

There is evidence also by his own sons Yokana and Okutuyi that Amengartu was commonly regarded as a wizard and that as such his company was shunned by his neighbours.

Giving the accused the benefit of the doubt on the issue of provocation, we quash the convictions and sentences for murder and find the accused guilty of manslaughter and sentence them to imprisonment for life.