The accused was tried for murder c/s 196, Penal Code, On the day before the killing, the accused had collected 6 women and 2 men, all fellow – villagers, to go with him to consult witch-doctors regarding his sister’s sickness. The deceased Boke was a member of the party. She was a woman of about 50 years of age. The group of villagers went first to a witch-doctor named Wanzera, who performed witchcraft ceremonies and then announced the result of his divining was that Boke had bewitched the sister. The next morning, they consulted another witch, a woman named Wakuru, who confirmed, after performing her witchcraft rituals, that Boke was a witch. The group of villagers left for home. On the way, they came to a river, it seemed a likely place to bathe and the whole party did so except the deceased Boke and the accused. Boke said she would not bathe because she wanted to go quickly to the sick person and give her some medicine. The accused told Boke, “Let’s go ahead”, and the two of them went on. Temerange, was the first to finish bathing and followed them. From a distance of about 100 paces behind, Temerange said he saw the accused striking Boke, and then when he caught up with them, he found Boke lying face downwards, dead. The accused in an unsworn statement explained that after leaving their colleagues behind them bathing in the river the deceased said that people told him stupid things saying she had bewitched his sister. She then threatened the accused that if he played with her, she would prepare medicine and he himself would die. Then, the accused said, the deceased abused him in their own language saying words which mean: “Fornicate your own mother. The anus of your mother. The head of your mother”. Further, the accused said, the deceased pushed him, whereupon he hit her with a stick. His intention was not to kill him but only to make her fear him so she would go home with him to give medicine to his sick sister.
Held: (1) “I am inclined to believe that the accused and Boke had a quarrel on the road after they left the group at the river. This would be consistent with the evidence of the prosecution witnesses that there was a happy and
friendly atmosphere amongst the members of the group along the way back home and up to the time the stopped to bather. It seems that they all, including the accused, believed the deceased would give the sick person medicine to make her well. The reason for the accused’s mood to change suddenly into one of violence must have been more than the knowledge that the deceased was witch – he had known this since the day before. I believe that the deceased said or did something there along the road which provoked the accused suddenly to strike her. If the deceased used the words ascribed to her by the accused and pushed him, the insult and the threat to use her witchcraft to kill him plus the physical assault could have provoked him to act suddenly in the heat of passion. The accused said that his intention was only to make the deceased fear him. Whether or not that is so, it appears he was so provoked that he was deprived of the power of self control and induces to assault the deceased …. I am satisfied of the truth of the accused’s story as
to the sudden rousing of his passion, the striking of blows in great fury, then the remorse which made the accused confess his crime to the fellow-villagers who arrived at the scene. I agree with the opinions of both the assessors. I acquit him of the offence of murder and find the accused guilty of manslaughter and convict him accordingly.
(2) Accused sentenced to 5 years imprisonment.
