Rex v Mursoi (Craiminal Appeal No. 60 OF 1939) [1939] EACA 117 (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

## 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.