Rex v Kile (Criminal Appeal No. 57 OF 1939) [1939] EACA 115 (1 January 1939)

## 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

# KIPSURMET ARAP KILE, Appellant CRIMINAL APPEAL No. 57 OF 1939

## (Appeal from conviction by H. M. Supreme Court of Kenya)

#### Murder—Manslaughter—Provocation.

Appellant appealed from a conviction of murder. The evidence disclosed that the deceased with some thirty others came to the appellant, charged him with practising witchcraft and challenged him to submit to a native test by drinking milk with a view to ascertaining whether or not he was a wizard. The appellant refused and retreated into his house whereupon the deceased's companions announced their intention to confine him there until he agreed to submit to the test, and thorn branches were pulled off appellant's house while he was inside and placed near the door. Appellant then charged out of his hut, rendered the deceased unconscious with a blow of a native sword, chased away the rest of the besiegers with a spear and returning speared the deceased to death.

Held (10-5-39).—That the evidence raised at least a reasonable doubt as to whether the appellant had acted under sufficient provocation to reduce the killing to manslaughter. Protector v. Buckner (Sty. 467) applied. Conviction of murder reduced to one of manslaughter.

Appellant, absent, unrepresented.

Aubrey, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).--We have considered the issue of provocation raised in this appeal and come to the conclusion that the evidence at least raises a reasonable doubt on the point, the benefit of which should be given to the appellant. We think that the case of Protector v. Buckner (page 894, Archbold 30th Ed.) which was referred to at the trial and in which it was held that an unwarrantable imprisonment of a man's person was sufficient provocation to make a killing, even with a sword, manslaughter only, is applicable to the facts of this case.

There can be no doubt that the hostile crowd of natives outside the appellant's house were wrong-doers who endeavoured to compel the appellant to submit himself to a native test by drinking milk with a view to ascertaining whether or not he was a wizard. Then on his refusing as he was entitled to do, and retreating to his house they acted in such a way as to give any reasonable person the impression that they meant to confine him there, if not worse, unless he yielded to their demands.

One suspects that the assessors in their definite opinions that the appellant should be hanged were influenced by, and sympathetic with, the views and actions of those who regarded the appellant as a wizard. One of them said that the ordinary native would have gone before the Tribunal. It seems to us that the position should be reversed and that anyone making an allegation of witchcraft against the appellant should go and make it before the Tribunal and not do as was done here, take the law into his own hands.

Our opinion being that the appellant suffered legal provocation we are not prepared to say that he had sufficiently recovered his self-control when he killed Kipchoge, and for the reasons given we find him guilty of manslaughter and sentence him to five years hard labour.