When a witch doctor’s verdict led to bruising court battle in Kitui
By murimi mwangi
| January 21st 2015
When a witchdoctor arrived on the banks of River Mithini in Kitui County on September 13, 1996, he had a daunting task before him.
Three goats had mysteriously vanished from a grazing field and he had been tasked with the duty to “apprehend” the thief.
The ritual, known locally as ‘kyuma’, was attended by members of a grazing group who were still coming to terms with the mysterious disappearance of the goats.
Little did the medicine man know that accusing one of the ritual attendees of being the thief would ignite a strenuous court process lasting four years.
During the ritual, a woman by the name Polina Kavengi – who was herding the goats on the three occasions when each was stolen – was declared the thief.
The declaration must have been music to the ears of the goats’ owner - a woman called Mutongoi Kimanzi – who had reported the losses to the nearby Kitui police station but no action was taken.
Consequently, an irreconcilable ‘beef’ emerged between the two women, culminating in a defamation suit filed before a Kitui Magistrate’s Court.
The seemingly ‘simple’ case filed in 1996 would eventually find its way into the Machakos High Court where it was concluded in 2000.
In the suit, Kavengi was seeking damages over Kimanzi’s alleged slanderous accusations against her – arising from the witch-doctor’s verdict: that she had stolen the goats.
She claimed that the pronouncement had lowered her esteem in the grazing group as other herders lost trust in her.
The two women even hired lawyers to represent them in the suit, where Kavengi sought “general and special damages, costs and interest” against Kimanzi.
But in her defence, Kimanzi said Kavengi had herself agreed to attend the ‘kyuma’ ritual where the witch-doctor’s mystic powers identified her as the thief.
She thus directed the court to dismiss the defamation suit against her, and instead order Kavengi to pay her Sh4,500 for the three missing goats.
After listening to both parties, the Kitui senior resident magistrate who handled the case dismissed the suit arguing that Kavengi had not proved that her name was tarnished.
The magistrate ruled that Kavengi ought to have given evidence proving that she was called a thief in the presence of 10 right thinking members of her society or group.
The magistrate also declined to order compensation to Kimanzi for her missing goats.
But instead of heading back home, the two women dusted their notes and walked to the Machakos High Court where they filed two separate appeals against the magistrate’s verdict.
At the High Court, Kavengi raised nine grounds of appeal while Kimanzi raised two.
The two women then took a backseat in the courtroom and let their lawyers justify their respective cases.
Justice John Mwera, then of the Machakos High Court who handled the appeal, delivered his verdict on October 5, 2000 – four years after the mysterious disappearance of the goats.
The judge upheld the lower court’s verdict that Kavengi had not proved that she had suffered prejudice as a result of the alleged pronouncement of her as a thief.
“To get relief for slander, defamatory remarks must be made and the same published to people who as a result hold the defamed person in less repute than before,” ruled Justice Mwera.
He added: “Indeed, they should even begin to shun and avoid her because of the said defamatory word. There is nothing of the sort here.”
But the judge awarded Kimanzi Sh4,500 as compensation for her missing animals, arguing that it was not in dispute that the goats disappeared while under Kavengi’s care.
However, the judge cautioned that witchcraft-related methods of dispute resolution could not be brought to court “for recording or enforcement as they were not recognised by the law”.
“Polina cannot bring to a civil court a finding by the traditional medicine man that she was a thief and pin the same on Mutongoi since Mutongoi was the complainant before the ‘Kivyu’ administrator,” ruled the judge.
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