Skip to Content

Colonial Cases

Wagishu murder case, 193


Wagishu murder case

Commission of Inquiry

Source: The Times, 26 August, 193

  The Commission of Inquiry appointed by the government of Kenya is investigating the circumstances of what is known as the Wagishu murder case, in which four natives who were sentenced to death by the Supreme Court in 1928 were retried on the instruction of the Appeal Court and eventually acquitted after spending a year and a half in gaol.
  It may be recalled that the reopening of the case is due to the unremitting labours of the accused's employer, Mr. Oswald Bentley, a settler, at whose farm, near Kitale, the murder occurred.
  Mr. Bentley in a long, detailed statement to the Commission stated that the system of administering justice in vogue in Kenya, and especially the procedure connected therewith, though probably suitable in European cases, was quite unsuitable where the accused are primitive Africans. Both police and Judges should have knowledge of native languages and native mentality, which, Mr. Bentley states, is not the case at present. He alleges that in the case under review the police started on the assumption that the natives were guilty, and therefore, consciously or unconsciously, they excluded evidence in their favour. Thus, says Mr. Bentley, the magistrate's attention was drawn to the fact that bloodstains on a vest of one of the accused were circumstantial evidence of guilt, but no steps were taken to prove that it was human blood, and in fact it was, Mr. Bentley adds, that of an animal.
  Mr. Bentley also alleged that native witnesses were ill-treated and intimidated by the police, especially the wife and child of one of the accused, who were called as witnesses against him. He thought it should be the duty of the police and Judges to assist Africans in disclosing the possible lines of their defence, instead of, as at present, being concerned mainly with the prosecution.
  Mr. Bentley is claiming compensation for the natives and also the refund of his expenses.  The Inquiry is continuing.
  In this connexion an important step was recently taken by the Kenya Government by the introduction of legislation for the purpose of creating Native Tribunals, which are to be given wide judicial powers over native cases. The main purpose is to maintain the prestige of native authorities among their own people. The proposed law provides for the exclusion of advocates from the native courts. This legislation, which is on the lines of similar legislation in Nigeria and Tanganyika, is the greatest step in the direction of indirect rule that has been taken in Kenya for many years and may largely meet Mr. Bentley's contention except in murder cases. Mr. Bentley, who is a former magistrate of the Sudan, proposes special native courts.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School