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Rex v Mursoi (Craiminal Appeal No. 60 OF 1939) [1939] EACA 117 (1 January 1939)
- Citation
- [1939] EACA 117
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Dalton, C.J(Tanganyika), Sheridan, (C.J. Kenya), Whitley CJ
- Case number
- Craiminal Appeal No. 60 OF 1939
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Dalton, C.J(Tanganyika), Sheridan, (C.J. Kenya), Whitley CJ
- Case number
- Craiminal Appeal No. 60 OF 1939
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the defence of belief in witchcraft as a justification for murder has consistently been rejected, except in cases where the accused is put in such fear of immediate danger to his own life that grave and sudden provocation is established. In this case, the appellant's belief that the deceased was a wizard who had laid a spell on his child did not meet the threshold for grave and sudden provocation. Therefore, the conviction for murder was upheld and the appeal dismissed.
Court disposition
appeal_dismissed
Orders
- The appeal is dismissed.
02
Material facts
Parties
Kimutai Arap Mursoi
AppellantRex
Respondent Counsel: Aubrey, Crown Counsel03
Procedural history
Posture
Criminal Appeal / Appeal Dismissed
04
Questions and positions
Legal issues
- 01
Whether belief in witchcraft constitutes a valid defence to a charge of murder.
- 02
Whether the accused was put in such fear of immediate danger to his own life as to amount to grave and sudden provocation.
Party arguments
- Applicant
- The appellant contended that he believed the deceased was a wizard who had laid a spell on his child, and this belief motivated his actions.
- Respondent
- The Crown argued that belief in witchcraft has consistently been rejected as a defence in murder cases, except where the accused was put in fear of immediate danger to his own life, amounting to grave and sudden provocation.
05
Court’s reasoning
Legal principles
- 01
Rex v. Kumwaka wa Mulumbi and Others (14 K.L.R. 137)
Belief in witchcraft is not a defence to murder unless the accused is put in such fear of immediate danger to his own life that grave and sudden provocation is proved.
- 02
Court of Appeal for Eastern Africa judgment
The defence of grave and sudden provocation requires immediate threat to the accused's life.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the defence of belief in witchcraft as a justification for murder has consistently been rejected, except in cases where the accused is put in such fear of immediate danger to his own life that grave and sudden provocation is established. In this case, the appellant's belief that the deceased was a wizard who had laid a spell on his child did not meet the threshold for grave and sudden provocation. Therefore, the conviction for murder was upheld and the appeal dismissed.
Obiter and limits
- The element of witchcraft in this case may receive consideration by the Governor in Council.
Court disposition
appeal_dismissed
- The appeal is dismissed.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
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.
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