Kinou s/o Msengi, Crim. App. 565-D-68, 30/10/68, Biron J.

Kinou s/o Msengi, Crim. App. 565-D-68, 30/10/68, Biron J.

Accused was convicted of causing grievous harm c/s 225, Penal Code, and was sentenced to 2 years. The complainant was a self-proclaimed witch who had been requested to create a sick child in the accused ’s family. She warned the family that if they took to child to hospital, the child would die. The child was nevertheless taken to hospital where it died. When the accused and others returned with the body of the child, the woman remarked that now they should appreciate that “she was a qualified witch”, apparently implying that she had caused the child’s death. Accused and 2 others then assaulted her, hitting her with their firsts and a stick, and kicking her. Accused alone was charged and convicted. Appeal from sentence.

            Held: Appeal allowed and sentence reduced so as to result in the immediate discharge of the accused. 1) “Although the complainant’s remarks obviously enraged the child’s relations, and certainly constituted provocation, such provocation is  not only no defence in law but really does not excuse the assault on her. The provocation however is a mitigating factor.” (2) It was “unfortunate that the appellant alone was charged with this defence in the commission

Of which he was the sole participant .. It is much less than fair that the appellant alone should be punished so severely whilst the others who participated in the offence get off seot-free.