[1939] EACA 117
The court held that the defence of belief in witchcraft as a justification for murder has consistently been rejected, except in cases where the accused is put in such fear of immediate danger to his own life that grave and sudden provocation is established. In this case, the appellant's belief that the deceased was...
Source-derived case information.
- Citation
- [1939] EACA 117
- Parties
- Appellant: Kimutai Arap Mursoi; Respondent: Rex
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Craiminal Appeal No. 60 OF 1939
- Procedural Posture
- Criminal Appeal / Appeal Dismissed
- Outcome
- appeal_dismissed
- Judges
- Dalton, C.J(Tanganyika), Sheridan, (C.J. Kenya), Whitley CJ
- Legal Topics
- Murder, Provocation, Witchcraft Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimutai Arap Mursoi
Appellant
Rex
Respondent
Procedural Posture
Criminal Appeal / Appeal Dismissed
Legal Issues
- 1 Whether belief in witchcraft constitutes a valid defence to a charge of murder.
- 2 Whether the accused was put in such fear of immediate danger to his own life as to amount to grave and sudden provocation.
Ratio Decidendi
The court held that the defence of belief in witchcraft as a justification for murder has consistently been rejected, except in cases where the accused is put in such fear of immediate danger to his own life that grave and sudden provocation is established. In this case, the appellant's belief that the deceased was a wizard who had laid a spell on his child did not meet the threshold for grave and sudden provocation. Therefore, the conviction for murder was upheld and the appeal dismissed.
Court Disposition
appeal_dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
16 paragraphs
## COURT OF APPEAL FOR EASTERN AFRICA
BEFORE SIR JOSEPH SHERIDAN, C. J. (KENYA), WHITLEY, C. J. (UGANDA). AND SIR LLEWELYN DALTON, C. J. (TANGANYIKA)
## REX, Respondent
versus
## KIMUTAI ARAP MURSOI, Appellant
## CRIMINAL APPEAL No. 60 OF 1939 .
(Appeal from conviction by H. M. Supreme Court of Kenya)
Criminal law-Murder-Provocation-Witchcraft.
Appellant appealed, from a conviction of murder. The defence was that the appellant believed that the deceased was a wizard and that he had laid a spell on the appellant's child.
Held (10-5-39).—That in murder cases a defence that the deceased had bewitched or threatened to bewitch the accused has always been 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.
Appellant, absent, unrepresented.
Aubrey, Crown Counsel, for the Crown.
JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).— A belief in witchcraft has frequently been put forward as a defence in murder cases before this Court and has, as was laid down in the case of Rex v. Kumwaka wa Mulumbi and Others (14 K. L. R. 137) as frequently been rejected. The exceptional circumstances in which a belief in witchcraft may be taken into consideration are to be found at page 139 of the Judgment where it is stated: -
"The plea has frequently been 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."
The element of witchcraft in this case as in the last appeal before us will doubtless receive consideration by the Governor in Council.
The appeal is dismissed.