[1932] EACA 27

## COURT OF APPEAL FOR EASTERN AFRICA:

Before SIR CHARLES GRIFFIN, C. J. (Uganda), SHERIDAN, C. J. (Tanganyika), and LAW, J. (Uganda).

## REX

$. (Respondent)$

$\eta$ .

## KUMWAKA WA MULUMBI & 69 others $(Appellants)$ .

## Cr. Apps. 31 to $100/1932$ .

Kenya Colony Order-in-Council, 1921, Article 7-Native custom -Witchcraft-Punishment according to native custom not permissible—Evidence of death—Court not restricted to expert evidence alone—Mens rea.

*Held* (26-3-32):—That the evidence justified the finding that deceased<br>died as the result of the beating. That Crown was not obliged to<br>prove intention to kill. That native belief in witchcraft does not<br>justify deviation witch.

The seventy appellants were tried in the Supreme Court before the Chief Justice (Sir Jacob Barth) for the offence of murder. They all admitted that they inflicted corporal punishment on deceased as the result of which she died. A formal plea of not guilty was entered, and on the evidence they were found guilty and sentence of death was passed on those of the accused who were, in the opinion of the Court of the age of sixteen or over-sixty in number. The remainder were found to be under the age of sixteen and sentenced to be detained during the Governor's pleasure. From the conviction and sentence they appealed to the Court of Appeal. The principal grounds of appeal were that the trial Judge ought to have accepted the evidence of accused No. 1 that there was no mens rea, that there was no evidence of combination or conspiracy to administer corporal punishment, nor of concerted action, nor as to the cause of death; and that homicide was excusable, or, alternatively, that the crime was committed under such provocation that it did not amount to murder, but to manslaughter, having regard to Article 7 of the Kenya Colony Order-in-Council, 1921.

Turton for Attorney General of Kenya. Black for Appellants.

Black relied on grounds of appeal.

Turton.-1913, E. A. L. R., Vol. V, p. 50.

Req. v. Parnell and others (1881), 14 Cox. 505.

Black.—There was genuine and real belief in powers of the witch and fear as to result of her spell.

SIR CHARLES GRIFFIN, C. J.-In this case the seventy appellants were found guilty of having murdered a woman, sixty were sentenced to death and ten, juveniles, were ordered to be detained during the Governor's pleasure. The killing was effected by the beating of the woman with thin sticks. All the accused admit having participated in the beating.

The deceased woman was believed to have been a witch. and it is part of the case for the Crown that the accused genuinely believed her to be a witch and to have bewitched the wife of the first accused, so as to make her ill and unable to speak.

The first accused summoned the rest of the accused and brought them to the vicinity of the hut in which was his wife. the woman believed to have been bewitched. Next, the witch, the deceased, was seized and brought to the sick woman's hut and ordered to remove the spell. The accused allege that she removed half of the spell during the night. Early in the morning the witch was detected running away. All the accused ran after her and beat her with the thin sticks referred to above. As a result of the beating the witch was killed. Some comment was passed by counsel for the appellants that the proof of her death was unsatisfactory. On perusing the evidence we entertain no doubt that she died, and died as a result of the beatings administered. The accused themselves all admit the beating and killing and none has sought to place the blame on the rest or to exculpate himself. Accused 1 was undoubtedly the ringleader.

It was argued before us that there was no intention to kill the deceased. It was no part of the case for the Crown that there was any intention to kill, nor was the judgment of the learned Chief Justice founded on intention to kill. Section 186 of the Penal Code defines murder as follows:-

"Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder."

The relevant part of section 189 which defines malice aforethought is as follows:-

"Malice aforethought shall be deemed to be established by evidence proving-

(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, . . . although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

The learned Chief Justice states in his judgment as follows:-

"The issue to be decided is whether or not the facts proved amount to murder. I am of opinion that they do. It seems to me obvious that if 70 men and lads combine to

beat a woman although with thin sticks, they must have the knowledge that their actions would probably cause death or at least grievous harm to the woman."

With that opinion we are in entire agreement.

Counsel for the appellants directed our attention to the case of Reg. v. Rose, 15 Cox, C. C., p. 540.

It suffices to give the head-note to the case:-

" Under circumstances which might have induced the belief that a man was cutting the throat of his wife, their son shot and killed his father. On the trial of the son for $m$ urder:—

Held: that if the accused had reasonable grounds for believing and honestly believed that his act was necessary for the defence of his mother, the homicide was excusable."

The important words are that "the act was necessary" and we are therefore unable to appreciate the relevance of Reg. $v$ . Rose to the facts of the present case, where the killing was in no way necessary.

The belief in witchcraft is, of course, widespread and is deeply ingrained in the native character. It is also widely known, and as appears from the evidence in this case the fact was present to the mind of the first accused, that Government does not tolerate the killing of witches. The plea has been frequently put forward in murder cases that the deceased had bewitched or threatened to bewitch the accused, and that plea has been consistently rejected except in cases where the accused has been put in such fear of immediate danger to his own life that the defence of grave and sudden provocation has been held proved. For Courts to adopt any other attitude to such cases, would be to encourage the belief that an aggrieved party may take the law into his own hands, and no belief could well be more mischievous or fraught with greater danger to public peace and tranquility.

The appeals are dismissed.

Note.—Article 7 of the Kenya Colony Order-in-Council, 1921. is as follows:

"In all cases, civil and criminal, to which natives are parties, every Court: $(a)$ shall be guided by native law so far as it is applicable and is not repugnant to justice and morality or inconsistent with any Order-in-Council or Ordinance, or any Regulation or Rule made under any Order-in-Council or Ordinance; and $(b)$ shall decide all such cases according to substantial justice without undue regard to technicalites or procedure and without undue delay."