R. v. Marco Crim. Case 126-M-70, 24/6/70; Kimicha J.

 

R. v. Marco Crim. Case 126-M-70, 24/6/70; Kimicha J.

The accused was charged with murder contrary to section 196 of the Penal Code. A witness for the prosecution testified that the accused’s mother and the deceased had quarrel on the material date. The mother of the accused told the deceased that if she had bewitched her child she would get her with a panga. In reply the deceased asked whether she too (the mother) would die if she killed her. The accused then emerged from behind the house and slashed the deceased with a panga causing her death.

Held: (1) “I disagree with the three accessors that this reply could have amounted to provocation to anybody. I find this reply to be a simple and inoffensive answer to the statement that was made to the deceased. A mere belief in witchcraft does not amount to provocation in law. It was held witchcraft does not amount to provocation in law. It was held in R. v. Petro Wabwire s/o Malomo (1949) 16 E. A. C. A. 131 that “A belief in witchcraft per se will not constitute a circumstance of excuse or mitigation when there is no provocative act. In order to succeed on a plea of legal provocation the  facts proved must establish the victim was performing in the actual presence of the accused some act which the accused did genuinely believe and which an ordinary person of the community to which the accused belongs would genuinely believe to be an act of witchcraft.” There is no evidence in this case that the deceased performed such an act in the presence of the accused or of the accused’s mother.” (2) The accused was found guilty of murder and convicted.