JUDGMENT OF THE COURT
The appeal before us brings into focus a vexing, yet an important issue to a significantly large part of the population of this country. It is this: Does the belief in witchcraft avail to an accused person the defence of provocation, and if so, under what circumstances?
There is a long line of authorities, which we do not propose to review at any length, to illustrate the vexing nature of the issue both pre- and post the colonial era. These include, amongst others: R. v. Kumwaka Wa Mulumbi and others, 14 KLR 137; R v. Kimutai arap Mursoi, 6 EACA 117; R v. Mawala bin Nyangweza, 7 EACA 62; R. v. Sitakimatata s/o Kimwage, 8 EACA 57; R. v. Fabiano Kinene s/o Mukye and others, (1941) EACA 96; Wero v. R [1983] KLR 549; and Chivatsi and Another v. R. [1990] KLR 529.
The position taken by the courts in the earlier decisions was typically exemplified in the Kumwaka case (supra) which was decided on 26th March, 1932. There, a group of 70 Kamba “natives” genuinely believed tha…