‘It is not a con if you have no faith in it’

‘It is not a con if you have no faith in it’

By Shadrack Muyesu

In July 2009, Kasama Kimani visited a traditional herbalist in a desperate attempt to help his ailing daughter. With the help of one Lydia Wanjiku, he visited the healer Felix Irungu Karamba who at that time had pitched tent at a Joska Hotel room in Ngara. Irungu performed some rituals and offered him some herbs which he promised, would cure his daughter. He then transferred some Sh900, 000 to Irungu as payment for services rendered and also as fees to facilitate the acquisition of more herbs.

Despite the performance, Kimani’s daughter got worse – which fact prompted him to refer her to Kijabe Hospital instead where she would be treated. In the meantime, Irungu kept asking for more cash to find more herbs for further rituals. Eventually, he disappeared from Kimani’s life. Kimani reported the matter to the police and Irungu was arrested and charged with cheating contrary to Section 315 of the Penal Code.

Irungu didn’t deny these facts as presented by the Prosecution. In his defence he merely stated that faith was a critical part of his trade and that Kimani could only blame himself when he failed to believe.  

“I administered some rituals and told him that his faith would heal him. I referred him to the Bible and the miracles of Jesus and he was in agreement. I didn’t cheat him as alleged. He approached me and paid me willingly.” 

Had Irungu acted with a fraudulent intent so as to cheat off Kimani or was he (Kimani) merely a victim of circumstance? The Court in ‘R v Felix Irungu Karamba and Anor’  CR 3076 of 2009 had to decide. 

In his final determination, Nyagah sitting in the Chief Magistrate’s Court in Makadara found that no blame could be attached to the accused, as he was merely discharging the services he was asked to. Irungu was acquitted. 

The reasoning

The Court reasoned as follows. 

“Cheating is often defined as acting dishonestly or unfairly in order to gain an advantage over someone or a thing. It is also associated with tricking or swindling. From the evidence so adduced before this Court, it should provide a nexus between the actions of the accused person and his intention to defraud. It should also show that the accused did not have the capabilities or expertise to perform whatever he professed to be doing. To do this, I first have to get an understanding in the role of traditional medicine in combating diseases. 

In a report by the World Health Organization (WHO), it cites that it’s estimated that “about 80% of the population in developing countries depends on traditional medicine for their Primary Health Care needs.” Though in the modern era, developments in the medical field have led to the invention of conventional medicine which is arguably the most prominent form of medicine today, it is not accessible to, or the first choice for, everyone. This is majorly due to African practices and folklore that lays credence to a belief that traditional medicine is the best to cure diseases as told and passed down from their ancestors and therefore, many still rely on traditional medicine even today. 

In an article titled, ‘Traditional African Medicine and its Role in Healing in a Modern World’, the author recognises that in the continent of Africa, traditional (or ancestral) African medicine seems to be much more prevalent compared to conventional, Western medicine. The reason for this is, ‘According to traditional African belief, human beings are made up of various aspects – physical, spiritual, moral, and social. When these parts function together harmoniously, a person will be in good health. On the other hand, if any of these features are out of balance, a person will become physically, or even spiritually, ill. Thus, illness is not viewed as just a physical disorder, but could also be a spiritual, moral, or social disorder. Similarly, the treatment of an ill person involves not only aiding his/her physical being, but may also involve the spiritual, moral, and social components of being as well.’

The accused person is the most sacrosanct person in law and any doubt should be utilised to their benefit. This court adopts the principle that it is better to acquit ten guilty persons than to convict one innocent person

From the above I would draw the above situation in likeness to that of a Christian who goes to church whenever he or she is ill and asks for prayers so as to get better. Drawing from the miracles of Jesus, the Bible in the New Testament is replete with scenes where in not more than one occasion did Jesus heal the sick and other deformities even going ahead to raise the dead to life. It is based on this that most Christians prefer prayer and seeking divine intervention whenever they have diseases based on their faith and belief. Though it is not given that they will be well or healthy again, they still retain that belief. The same is also replicated in the modern medical field where persons suffering from illnesses may go to hospital to get treatment but all the same, it is not guaranteed that they will be well after the treatment or even completely cured though they still have to pay for the services regardless of the outcome. 

In the instant case, the complainant seems to have believed that there was hope in the traditional medicine that were being administered by the 1st accused and that’s why he opted for it at first instance rather than modern conventional medicine. It is also important to note that as soon as the complainant took the daughter to hospital, she soon became well throwing questions as to why he didn’t opt for it in the first place. From the evidence so adduced, it is proper to note that it is the complainant that went out seeking the accused person who was a traditional healer for the purposes of healing his daughter and that the money he paid to the accused person was payment for such services that he offered. Why he sought this rather than any other form of treatment is unknown to this Court? To me, I find that there can be no blame attached to the accused person who was merely discharging the services he was asked to.

Further, it was incumbent on the prosecution to show that the 1st accused person lacked the requisite skills to work on the issue, that he was not a medicine man or traditional herbalist. This was not done and thus leaving the Court in an unclear position on the same rather than the testimony of the 1st accused who stated that he was a traditional herbalist. Further, I find that PW3 the police officer merely stated that the reason the accused person was arrested was after a report had been made that the complainant had paid money for the wellbeing of the daughter but that did not turn to be the case. In my opinion, this alone was not enough to support the charge against the accused persons. It was prudent that they show the steps they took towards investigation of the matter, any wrong doing or fraudulent intent by the accused persons. It appears to me that the arrest was effected by the mere suspicion that the accused persons were not the traditional healers they were alleged to be which cannot form an inference guilt. Further, I find that there is conclusive nexus between the charges and the alleged involvement of the 2nd accused in this matter. If by anything the alleged connection is rather too remote and the same do not conclusively link the 2nd accused person with involvement in the alleged offence. 

As to whether the prosecution has discharged its burden of proof I am guided by the following authorities:

Philip Muiruri v Republic Criminal Appeal No 76 Of 2012, the learned judge referring to the South African case of Ricky Ganda v The State (2012) Zafshc 59,Free State High Court, Bloemfontein, stated thus:

“…the proper approach is to weigh up all of the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weigh so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt.”

The judge in the Philip Muiruri case (above) also referred to the case of R V Lifchus {1997}3 SCR 320 and stated: “A reasonable doubt is not the imaginary and frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived or absence of evidence… Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt.”

It is important to state that the accused person is the most sacrosanct person in law and any doubt should be utilised to the benefit of the accused person. This court adopts the principle that it is better to acquit ten guilty persons than to convict one innocent person. Accordingly, I find that it will be risky to convict the accused persons based on such evidence as they was not conclusively linked with the commission of the offence which is vital in this case. I hereby proceed to acquit him of the charge of cheating contrary to
Section 315 of the Penal Code under Section 215 of the CPC.” (

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