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|Case Number:||Criminal Appeal 50 of 1983|
|Parties:||Julius Lopeyok Wero v Republic|
|Date Delivered:||07 Oct 1983|
|Court:||Court of Appeal at Nakuru|
|Judge(s):||Zakayo Richard Chesoni, Alister Arthur Kneller, Chunilal Bhagwandas Madan|
|Citation:||Julius Lopeyok Wero v Republic  eKLR|
|Parties Profile:||Individual v Government|
Julius Lopeyok Wero v Republic
Court of Appeal, at Nakuru October 7, 1983
Madan, Kneller JJA & Chesoni Ag JA
Criminal Appeal No 50 of 1983
Pleas - plea bargaining - charge of murder - state counsel expressing that state would accept plea of guilty to reduced charge of manslaughter - charge reduced to manslaughter- accused pleading guilty to reduced charge upon advice by advocate - reduced charge explained to accused - court satisfied that accused pleading to all elements of charge – accused convicted - whether conviction safe.
Criminal law - provocation - defence of - nature of the defence – accused pleading provocation - accused acting in heat of passion - whether grave and sudden provocation an issue of fact - accused killing person he believed to practice witchcraft on his children - no act of witchcraft performed on accused or person under his care and in his presence - accused’s customary belief that wizards should be put to death – whether accused was provoked - whether accused’s customary belief a defence.
Sentencing - severity of sentence - plea of guilty to manslaughter – case bordering between murder and insanity - killing inspired by customary belief - plea of guilty taken into account on sentencing - accused first offender and in remand for fourteen months - sentence of eight years’ imprisonment - whether sentence proper.
The appellant was charged with murder but he was convicted of manslaughter and sentenced to eight years’ imprisonment after he pleaded guilty to the reduced charge. On his appeal, he admitted that he had pleaded guilty but claimed that the evidence of the prosecution had been fabricated. The facts, which the appellant admitted in full, were that he had had a quarrel with the deceased during which he struck him (the deceased) with a walking stick. About an hour later, he and his co-accused went to the deceased’s home from where they dragged him away and threw him in a lake. A post-mortem revealed that the deceased had died of fractures on his headbones. The state counsel informed the court that the appellants were Pokots and their belief that the deceased had occult powers which he used to harm their children was provocation in law and their advocates pleaded leniency, adding that the appellant thought it was right to kill a wizard.
1. Where an accused person upon the advice of his advocate offers a plea of guilty to a charge of manslaughter which the Republic has said it will accept and which the trial judge considers appropriate for reducing the charge of murder to one of manslaughter, and the judge carefully explains it to the accused and proceeds to convict him after being satisfied that he was pleading guilty to all its elements, such a conviction is safe.
2. Where a person accused of killing another raises the defence of provocation, it is a question of fact whether the accused, in all the circumstances of the particular case, was acting in the heat of passion caused by grave and sudden provocation when he killed that person. There was no act of witchcraft against the appellant or a person under his immediate care performed in his presence so as to anger him to such an extent as to deprive him of his power of self-control and to induce him to assault the person allegedly doing the witchcraft.
3. The sentence of eight years’ imprisonment for manslaughter where the case was on the borderline between murder and manslaughter was legal, appropriate and not manifestly excessive.
1. Republic v Fabiano Kinene s/o Mukye and Others (1941) 8 EACA 96
2. R v Atma Singh (1964) 9 EACA 69
No statute referred to.
|Case Outcome:||Appeal dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE COURT OF APPEAL
(CORAM: MADAN, KNELLER JJA & CHESONI Ag JA)
CRIMINAL APPEAL NO 50 OF 1983
JULIUS LOPEYOK WERO ……..……………… APPELLANT
Julius Lopeyok Wero, the appellant, was convicted of manslaughter and sentenced to eight years’ imprisonment on December 9, 1981 by the High Court at Nakuru (Mead J) and he appeals against this conviction and sentence.
So far as the conviction is concerned, he admits in his memorandum of appeal that he pleaded guilty to the charge but he then claims the evidence for the Republic at the trial was fabricated. Today he has again admitted he pleaded guilty.
The truth is that he was advised by his advocate to offer this plea which the state counsel said the Republic would accept and which the learned trial judge must have thought was appropriate for he reduced the charge from murder to manslaughter and then with some care had it explained to the appellant and when satisfied he was pleading guilty to all its elements proceeded to convict him of it so the conviction is safe.
The facts which the appellant admitted in full were these. The appellant quarrelled with Lebei Wero Tongokwang at 6 pm on October 1, 1980 at Komolion Centre which is in Korosi Location in Baringo District and hit him with a walking stick. The local chieftain intervened and Lebei went home. About an hour later the appellant and his co-accused, Angolol Baring Wero Lukwao, arrived outside Lebei's house and asked him to come out and see them but he refused so they marched in and hauled him out.
The appellant said to Lebei:
"The quarrel between you and me has grown worse" and Lukwao said:
"You have been disturbing us for a long time. It is time you went into the lake."
And then they dragged Lebei away and he was not seen alive again. This was before the eyes of his young daughter Kitilit and son Kapieki.
The next morning the appellant and Lukwao were overheard in the market by Pastor Lode of the Pentecostal Assemblies of God saying they had taken the old man the night before and thrown him in the water because he had troubled them a great deal by casting spells on their children and those of many others.
Lebei’s children told the chief about this when they met him at the trading center at 7.00 am the next day and they took him to the shores of Lake Baringo where their father’s corpse was floating.
A post-mortem revealed Lebei died of injury to his brain caused by a fracture to his frontal and left temple bones in his head.
The appellant and Lukwao were examined by a doctor and they were found to be injured, aged about twenty eight and twenty five.
When they were charged with the murder of Lebei and cautioned they elected to reply and the appellant denied killing Lebei adding that Lukwao did and Lukwao denied he was responsible and said the appellant killed him.
The appellant and Lukwao were first offenders and in remand for fourteen months before trial. The state counsel in his outline of the facts informed the court that the appellants were Pokot and their belief that Lebei had occult powers and used them to harm their children, a provocation in law.
Their advocates pleaded for leniency from the court adding that the appellant thought it right for him to kill a wizard and Lukwao believed he was protecting his children.
The judge declared a severe custodial sentence was merited because it was on the border line between murder and manslaughter. He took into account their pleas of guilty.
It is a question of facts whether an accused in all the circumstances of the particular case was acting in the heat of the passion caused by grave and sudden provocation when he killed someone and the plea is that the victim performed an act of witch craft against him or another person under his immediate care in his presence so that he was angered to such an extent as to be deprived of his power of self-control and induced to assault the person doing the act of witchcraft. R v Fabiano Kinene s/o Mukye and Others (1941) 8 EACA 96. Here, the appellant had no such act performed in his presence so he was fortunate that his plea was not rejected.
The allegation that the appellant was merely following a Pokot custom in doing to death someone believed to possess and practice such powers was rightly disregarded for it is a barbarous custom and, if it exists, a heavy sentence for such acts is all the more necessary. R v Atma Singh (1964) 9 EACA (CA-K).
The sentence for this appellant in the circumstances was legal, appropriate and not manifestly excessive.
Accordingly, the appeal is dismissed.
Dated and Delivered at Nakuru this 7th October, 1983
JUDGE OF APPEAL
JUDGE OF APPEAL
Ag JUDGE OF APPEAL