Rex v Kimwage (Criminal Appeal No. 88 of 1941) [1941] EACA 57 (1 January 1941)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir JOSEPH SHERIDAN, C. J. (Kenya), Sir NORMAN WHITLEY, C. J. (Uganda) and SIR HENRY WEBB, C. J. (Tanganyika)

REX, Respondent

$\boldsymbol{\nu}$

# SITAKIMATATA S/O KIMWAGE, Appellant

### Criminal Appeal No. 88 of 1941

# Appeal from decision of H. M. High Court of Tanganyika.

Criminal Law—Homicide—Murder—Provocation—Witchcraft—Tanganyika Penal Code, sections 191 and 192.

Appellant appealed from a conviction for murder. It appeared that the deceased told the appellant that he had compassed the death of the appellant's wife by witchcraft and that he would kill the appellant by the same means. Appellant thereupon decided to kill the deceased and carried his intention into effect some hours later in circumstances showing that the killing was an act of planned and premeditated revenge. The trial Judge criticised the passage in Rex y Kumwaka wa Mulumbi and others, 14 K. L. R. 137 at p. 139, which reads: -

"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."

**Held** (6-8-41).—That the passage in the judgment in $Rex$ v. Kimutai should not be taken to mean that there can be any other provocation which will have the effect for reducing a charge of murder to one of manslaughter than that defined in sections 191 and 192 of the Penal Code.

The judgment appealed from was as follows: -

"WILSON, J.—The accused man, Sitakimatata s/o Kimwage, is a member of the Zungwa branch of the Hehe tribe, and is about 50 years of age, but still strong and vigorous in appearance. He is charged under section 186 of the Penal Code with the murder of his brother-in-law, Mtindowasasa s/o Mhanze, by spearing him through the body at dusk on New Year's Day. 1941, as the deceased was leaving the hut of a neighbour of the accused's. where some beer drinking had been going on. Drunkenness is not, however, a relevant element in the case, as the evidence does not suggest that any of the parties was in any degree intoxicated.

The spearing of the deceased was witnessed by two other persons who were with him, and it is not denied by the accused. He admits that he speared the deceased deliberately. He states that after a conversation with the deceased some hours earlier (the subject of which will be referred to later in this: judgment) he formed an intention to kill him. In pursuance of that intention he went back to his house, made his cattle and his children comfortable for the night, and then took his spear and went again to the house where he had left the deceased some hours before. As the deceased emerged with his friends he calmly walked up to him and speared him right through the body without a word, causing almost immediate death.

The defence put forward is that accused acted under provocation. The circumstances of provocation alleged are that at about 4 p.m. accused had had a conversation with deceased at the house near which he was subsequently killed. In that conversation deceased is stated by accused to have admitted that the death of accused's wife some eight days before was due to the exercise of witchcraft by him (deceased). He is further said to have threatened to kill the accused also by the same means. The reason for this alleged fatal exercise of witchcraft powers by deceased is said to have been a family quarrel between him and accused's wife (who was his sister) over the distribution of the dowry received by the woman on the marriage of her daughters.

On the question of fact, as to whether any such conversation ever took place, I am not prepared to find that it did not. The evidence of the prosecution witnesses suggests that it never took place, to their knowledge at any rate. But it is just possible that it may have, and, unless it did take place, it is difficult to understand accused's sudden change of attitude towards the deceased—from friendliness to deadly hostility—within the space of a few hours. As there is a doubt on the point, the accused must be given the benefit of it. It is to be noted from his statement in the lower court that he has consistently put forward this allegation in so far as it concerns an admission by the deceased that he had killed accused's wife. But in the lower court he made no suggestion that deceased had added any threat of harm to himself. That is a new allegation in this Court.

But, even if it be accepted that the accused is telling the exact truth as regards the happening and the subject of this alleged conversation, the question has still to be decided whether it constitutes a good defence. I may say that I am prepared to accept that accused is a person who believes in the potency of witchcraft. His bearing and conversation and general demeanour in Court make it obvious that he is a simple-minded, primitive peasant of a type not intellectually likely to reject the traditional existence and potency of the witch doctor's craft. It is therefore necessary to examine and inquire into the law relating to witchcraft as a possible provocation to homicide.

The law on the subject has been re-stated fairly recently. In $\text{Re}x_{\text{c}}$ yes Kimutai arap Mursoi (1939), 6 E. A. C. A. 117, the Court of Appeal for Eastern Africa observed that 'a belief in witchcraft has frequently been put forward as a defence in murder cases before this Court and has ..... as frequently been rejected'. The Court went on to point out that a statement of 'the exceptional circumstances in which a belief in witchcraft may be taken. into consideration' was to be found in an earlier decision of the Court (Rex v. Kumwaka wa Mulumbi and others, 14 K. L. R. 137 at p. 139). The passage quoted runs: '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 immedaite danger to his own life that the defence of grave and sudden provocation has been held proved'.

The phraseology used in this passage seems to me, with respect, not to be entirely free from obscurity. It is rather difficult to discover from the concluding phrase what standard of fear is required to establish a defence of provocation based on a belief in witchcraft, and the emotion of fear (which does not seem to me to have any place in the English doctrine of provocation) is confused with the emotion of anger, which is. I think, the natural and only product or result of provocation received.

The decision is, however, binding on me in the terms in which it is couched. I take it to mean that if a fancied bewitchment, or a threat of bewitchment, induces in the victim such a degree of fear as to deprive him of self-control and induce him to assault his provoker, then the defence of

provocation arising from a belief in the potency of witchcraft may be regarded as adequately established. In applying this doctrine, however, I apprehend that it is necessary to remember the concurrent rule that provocation must be not only grave but sudden. Perhaps that is the implication to be drawn from the otherwise rather obscure final phrase of the passage quoted above.

The application to the present case of the rule in $\text{Re}x$ v. Kumwaka (supra), read in conjunction with the judgment in *Rex v. Kimutai* (supra), in which it was quoted, would appear to do away with any possibility of successfully establishing in this case the defence of provocation, in so far as it relies on the deceased's alleged confession to the accused of a fatal betwitchment of accused's wife. In *Rex v. Kimutai* a spell was said to have been laid on the accused's child, in the present case on the accused's wife, so the cases would seem to be on all fours. In Rex v. Kimutai the Court of Appeal confirmed the trial court's rejection of the defence of provocation.

As to whether the alleged threat of bewitchment of accused himself put him in 'such fear of immediate danger to his own life' that he can be held to have been gravely and suddenly provoked, I have, after careful consideration, decided that it did not. It was no doubt a grave enough threat, but there is nothing in the circumstances to show that accused's fear of it was such as to rouse in him sudden anger or to cause him to lose his self-control. On the contrary, he appears, according to his own story, to have acted with remarkable calmness and deliberation. He says he there and then decided to kill the deceased, but first he went back to his home to fix up his affairs, to put cattle in the kraal and the fowls on the roost, to see that the children got their evening meal and, most important of all, to arm himself with a proper weapon-a spear-instead of the no doubt not less effective but not equally correct one-a bill-hook-with which he was admittedly armed at the time when he received the alleged provocation from the deceased.

In all this there are, I fear, no signs whatever of sudden provocation. The killing, when it came, after two or three hours and after accused had presumably waited for deceased to come out of the hut where he had left him earlier in the evening, was clearly an act of vengeance, and accused's own evidence is the clearest proof of that.

I must hold therefore that the defence of provocation is not adequately established in this case and, agreeing with the assessors, find the accused guilty of murder and convict him under section 186 of the Penal Code."

### Appellant in person.

#### Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—In law this is a clear case of murder, for even if one were to assume that the accused acted under the influence of provocation, it was not, as the learned trial Judge correctly held, sudden provocation. With regard to the references in the judgment to the case of Kumwaka wa Mulumbi the particular passage criticised which was obiter may not be happily expressed, but it should not be taken to mean that there can be any other provocation which will have the effect of reducing a charge of murder to one of manslaughter than that defined in sections 191 and 192 of the Penal Code.

"191. When a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only."

"192. The term 'provocation' means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered.

When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give the latter provocation for an assault.

A lawful act is not provocation to any person for an assault.

An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.

An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality. For the purposes of this section the expression any ordinary person shall mean an ordinary person of the community to which the accused belongs."

The appeal is dismissed, the element of witchcraft being one for consideration in the proper quarter.