Wakilii

Rex v Akope and Another (Criminal Appeals Nos. 115 and 116 of 1947)

East African Court of Appeal · [1947] EACA 39 · 1947 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from conviction for murder by the Supreme Court of Kenya
Decision
Appellants' convictions for murder upheld; appeals dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that belief in witchcraft cannot reduce murder to manslaughter where the accused had believed for several days that the deceased was bewitching their relative, as there was no sudden shock depriving them of self-control. The Court further held that to constitute provocation, belief in witchcraft must be founded on some physical act by the deceased in the presence of the accused, not on mere metaphysical belief or suspicion.

Outcome

Appellants' convictions for murder upheld; appeals dismissed

Facts

The appellants killed Emeto by battering him with a heavy mallet while one held his legs. The first appellant admitted killing Emeto because he believed Emeto had caused his father's death by witchcraft. The second appellant, who was the nephew of the deceased father, approved of and participated in the attack for the same reason. The first appellant's father had told him six days before his death that Emeto was bewitching him. Emeto continued to visit the sick man without molestation and was with him on the night he died. Both appellants were convicted of murder by the Supreme Court of Kenya.

Issues

  1. Whether the appellants' honest belief that the deceased had killed their relative by witchcraft constituted legal provocation sufficient to reduce murder to manslaughter.
  2. Whether provocation based on a belief in witchcraft was sufficiently sudden to satisfy the requirements of sections 202 and 203 of the Kenya Penal Code.
  3. Whether a belief in witchcraft founded on metaphysical rather than physical acts can constitute reasonable provocation.

Orders

  • Both appeals dismissed.
  • Convictions for murder upheld.

Rules and key headnotes

Provocation — Suddenness Requirement — Belief in Witchcraft Over Several Days
Where an accused has believed for several days that the deceased was bewitching a relative, the actual death of that relative does not constitute sudden provocation sufficient to reduce murder to manslaughter, as the accused was aware of the alleged conduct for some time and killed in revenge rather than under sudden loss of self-control.
Provocation — Witchcraft — Physical Act Requirement
To constitute legal provocation reducing murder to manslaughter, a belief that the deceased committed witchcraft must be founded on some physical act by the deceased in the presence of the accused, not on mere metaphysical belief or suspicion, however honest that belief may be.
Provocation — Presence Requirement — Sections 202 and 203 Kenya Penal Code
Under sections 202 and 203 of the Kenya Penal Code, where provocation consists of a wrongful act done to another person standing in a conjugal, parental, filial, or fraternal relation to the person provoked, that act must be done in the presence of the person provoked.
Honest and Reasonable Belief — Witchcraft — Reasonableness Standard
A belief that witchcraft has been or is being exercised may be an honest belief, but when that belief is founded on nothing but the suspicions of the person holding that belief, it cannot be said to be both honest and reasonable for the purposes of establishing provocation.

Legislation cited (5)

  • Kenya Penal Code s.202
  • Kenya Penal Code s.203
  • Uganda Penal Code s.199
  • Witchcraft Ordinance 1925 (Ordinance No. 23 of 1925)
  • Kenya Penal Code s.11

Cases cited (5)

  • Rex v Fabiano Kinene s/o Mukye and Others (8 E.A.C.A. 96)
  • Rex v Musomi (2 E.A.C.A. 91)
  • Rex v Kojuina s/o Mbake (12 E.A.C.A. 105)
  • Rex v Okurutumu (5 E.A.C.A. 111)
  • Wallace Johnson v The King ([1940] 1 A.E.R. 241)

Full judgment

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Rex v Akope and Another (Criminal Appeals Nos. 115 and 116 of 1947) [1947] EACA 39 (1 January 1947)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.