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MagistrateDismissedNot stated in the judgment· [2022] KEMC 31 (KLR)

Director of Public Prosecution v Chakanda & another (Criminal Case E333 of 2021) [2022] KEMC 31 (KLR)

Resident Magistrate's Court at Kwale
2 June 2022
KKKiongo Kagenyo
3,120 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kwale court acquitted two men of witchcraft accusations, ruling that privately telling someone you believe they bewitched a relative, and peacefully asking for help, is not a crime.

What this practically means

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Executive summary

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Two accused persons, Mongo Chakanda Lukeman (1st accused) and Sheshe Chakanda (2nd accused), were charged jointly with accusing another person to be a witch contrary to section 6 of the Witchcraft Act Cap 67, the particulars being that on 11th September 2021 at Kideri village, Kinango subcounty within Kwale county, they jointly accused Mulicheni Mwanzije Mumba of being a witch. The prosecution called five witnesses, including the complainant, her husband, two minors, and the investigating officer. The evidence was that the ailing sister of the accused persons named the complainant as responsible for her suffering, and the 1st accused, through a phone call relayed by the 2nd accused, told the complainant their sibling had named her as a witch and warned of dire consequences if she died; the 2nd accused asked the complainant to accompany him to the school where the sibling had fainted. Both accused, unrepresented, gave sworn evidence denying any accusation, explaining they peaceably sought the complainant's help. The court framed a single issue: whether the accused's conduct amounted to accusing another to be a witch. Applying ordinary dictionary meanings of 'accuse', it held the offence requires communication of an accusation about one person to another. The accused only communicated their belief to the complainant herself and did not broadcast it; punishing belief in information received and peaceable seeking of help would be unjust. Relying on Chivatsi Dzombo Chivatsi & another v Republic, the court contextualized the accuseds' belief in witchcraft. The date discrepancy was treated as a curable error. The case was dismissed, each accused acquitted under section 215 of the Criminal Procedure Code, discharged from cash bail, and the bail refunded.

Key legal issues

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01

Whether the accused persons' conduct amounted to accusing the complainant of being a witch under section 6 of the Witchcraft Act

Holding

The court held that the accused did not accuse the complainant of witchcraft; they merely held a belief, communicated it only to the complainant herself, and peaceably sought her help, which falls outside the scope of section 6.

Reasoning

The court took the ordinary meaning of 'accuse' from dictionary definitions and held the offence requires a communication by one person to another about a third person. The accused only told the complainant of their belief, did not broadcast it publicly, and sought her help peaceably. Punishing belief in information given by another, followed by peaceable recourse to the cited person, would be unjust and would damage societal openness and interdependence.

p. 5
02

Whether the discrepancy in the date of the offence (9th November 2021 as testified versus 11th September 2021 in the charge) was fatal

Holding

The discrepancy was treated as a curable error of transposition under the de minimis doctrine and section 382 of the Criminal Procedure Code, since the time of the offence was not contested.

Reasoning

The complainant testified the incident occurred on 9th November 2021 while the charge stated 11th September 2021. As the time of the offence was not contested and the dates appear to be a transposition of day and month, the court applied de minimis non curat lex and found the error did not occasion injustice, hence curable under section 382 of the Criminal Procedure Code.

p. 5

Legal principles established

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  • For conduct to amount to the offence of accusing another to be a witch under section 6 of the Witchcraft Act, there must be a communication of the accusation by one person to another about a third person; a private belief held and peaceably communicated only to the person cited, seeking help, does not amount to an accusation.
  • A minor discrepancy in the date of the offence, where the time of the offence is not contested, is a curable error of transposition under section 382 of the Criminal Procedure Code.

Court orders

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  1. 1.The case against the two accused persons is dismissed and each is acquitted under Section 215 of the Criminal Procedure Code
  2. 2.The two accused persons, who were on a cash bail of Ksh. 10,000/= each, are discharged forthwith
  3. 3.The respective cash bail shall be refunded to the depositors

Authorities

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Legislation

  • Witchcraft Act Cap 67 Laws of Kenyasection 6
  • Evidence Actsection 107
  • Criminal Procedure Codesection 210
  • Criminal Procedure Codesection 211
  • Criminal Procedure Codesection 215
  • Criminal Procedure Codesection 382
  • Constitution of KenyaArticle 50(2)(i)

Cases cited (1)

  • Chivatsi Dzombo Chivatsi & another v Republic
    [1990] eKLR
Jurisdiction invoked
Criminal jurisdiction under section 6 of the Witchcraft Act Cap 67 Laws of Kenya and the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Director of Public Prosecution v Chakanda & another (Criminal Case E333 of 2021) [2022] KEMC 31 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/31/eng@2022-06-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.