Kitosch’s story has been in the papers. A case rose from it, and a jury was set to go through it from beginning to end, searching for enlightenment; some of the enlightenment will still be found in the old documents.
Kitosch was a young Native in the service of a young white settler of Molo. One Wednesday in June, the settler lent his brown mare to a friend, to ride to the station on. He sent Kitosch there to bring back the mare, and told him not to ride her, but to lead her. But Kitosch jumped on to the mare, and rode her back, and on Saturday the settler, his master, was told of the offence by a man who had seen it. In punishment the settler, on Sunday afternoon, had Kitosch flogged, and afterwards tied up in his store, and here late on Sunday night Kitosch died.
Upon the matter the High Court was set in Nakuru, in the Railway Institute, on the 1st of August.
The Natives who gathered and sat round the Railway Institute, will have been wondering what it was all about. To their mind the case was plain, for Kitosch had died, of that there was no doubt, and, according to Native ideas, a compensation for his death should now be made to his people.
But the idea of justice of Europe varies from that of Africa, and, to the jury of white men, the problem of guilt and innocence at once presented itself. The verdict in the case might be one of murder, of manslaughter, or of grievous hurt. The Judge reminded the jury that the degree of an offence rests upon the intentions of the persons concerned, and not upon the results. What, then, had been the intentions, and the attitude of mind, of the persons concerned in the Kitosch case?
To decide upon the intention and attitude of mind of the settler, the court had him cross-examined for many hours a day. They were trying to make up a picture of what had happened, and brought in all the details that they could lay hands on. It is in this way written down that when the settler called Kitosch, he came, and stood three yards away. This insignificant detail in the report is of great effect. Here they are at the opening of the drama, the white and the black man, at three yards’ distance.
But from now on, as the story advances, the balance of the picture is broken, and the figure of the settler is blurred and grows smaller. It cannot be helped. It becomes only an accessory figure in a great landscape, a pale puny face, it loses its weight, and looks like a figure cut out in paper, and it is blown about, as by a draught, by the unknown freedom to do what it likes.
The settler stated that he began by asking Kitosch who had given him permission to ride the brown mare, and that he repeated this question forty to fifty times; he admitted at the same time that nobody could possibly have given Kitosch any such permission. Here his perdition begins. In England he would not have been able to ask a question forty to fifty times, he would have been stopped, in one way or the other, long before the fortieth time. Here in Africa were people to whom he could shriek the same question fifty times over. In the end Kitosch answered that he was not a thief, and the settler stated that it was as a result of the insolence of the answer that he had the boy flogged.
At this point the report has got a second irrelevant, and effective, detail. It says that during the flogging, two Europeans, who are designated as friends of the settler, came over to see him. They looked on for ten minutes, or a quarter of an hour, and walked away.
After the flogging the settler could not let Kitosch go.
Late in the evening, he tied Kitosch with a rein, and locked him into his store. When the jury asked him why he did so, he gave an answer that he had no sense, he said that he wanted to keep such a boy from running about on the farm. After supper, he went back to the store, and found Kitosch lying unconscious a little way from where he had tied him up, with the reins loosened. He called in his Baganda cook, and with his assistance tied up the boy tighter than before, with his hands fastened to a post at his back, and with his right leg tied to a post in front. He left the store, locking the door, but half an hour later went back there, got hold of his cook and the kitchen Toto, and let them into the store. Then he went to bed, and the next thing he remembered, he said, was that the Toto came from the store, and told him that Kitosch had died.
The jury kept in mind the words that the degree of an offence rests upon the intention, and looked for an intention. They went into a number of detailed questions about the flogging of Kitosch, and about what happened after, and as you read the papers you seem to see them shake their heads.
But what now had been the intention and the attitude of mind of Kitosch? This, when gone into, was found to be a different thing. Kitosch had had an intention, and in the end it came to weigh in the scales of the case. It can be said that by his intention, and his attitude of mind, the African, in his grave, saved the European.
Kitosch had not much opportunity for expressing his intention. He was locked up in the store, his message, therefore, comes very simply, and in a single gesture. The night-watch states that he cried all night. But it was not so, for at one o’clock he talked with the Toto, who was in the store with him. He indicated to the child that he must shout to him, because the flogging had made him deaf. But at one o’clock he asked the Toto to loosen his feet, and explained that in any case he could not run away. When the Toto had done as he asked him, Kitosch said to him that he wanted to die. At four, the child said, he again said that he wanted to die. A little while after, he rocked himself from side to side, cried: “I am dead!” and died.
Three doctors gave evidence in the case.
The District Surgeon, who had done the post mortem examination, pronounced death to be due to the injuries and wounds that he had found on the body. He did not believe that any immediate medical attention could have saved Kitosch’s life.
The two doctors from Nairobi, called in for the defence, were, however, of a different mind.
The flogging in itself, they held, was not sufficient to have caused death. An important factor came into the matter, not to be ignored: that was the will to die. On this point, the first doctor stated, he could speak with authority, for he had been in the country twenty-five years, and knew the Native mind. Many medical men could support him that the wish to die, in a Native, had actually caused death. In the present case the matter was particularly clear, for Kitosch had himself said that he wanted to die. The second doctor bore him up in this point of view.
It was very likely, the doctor now went on, that if Kitosch had not taken this attitude, he would not have died. If, for instance, he had eaten something, he might not have lost courage, for starvation is known to reduce courage. He added that the wound on the lip might not be due to a kick, but might be just a bite by the boy himself, in severe pain.
The doctor, furthermore, did not believe that Kitosch would have made up his mind to die till after nine o’clock, as by that time he seemed to have tried to escape. Neither had he died till after nine o’clock. When he had been caught in the attempt to escape, and had been tied up again, the fact of being a prisoner, the doctor said, might have weighed on his mind.
The two doctors from Nairobi summed up their view of the case. The death of Kitosch, they held, was due to the flogging, to starvation, and to the wish to die, the latter being the subject of special emphasis. The wish to die might, they considered, have been caused by the effects of the flogging.
After the doctors’ evidence, the case turned upon what was called in Court “The wish-to-die theory.” The District Surgeon, who was the only one who had seen Kitosch’s body, rejected the theory, and gave examples of cancer patients of his practice who had wished to die, but all the same had not died. These people, however, were found to have been Europeans.
The Jury in the end gave a verdict of: Guilty of grievous hurt. The same verdict was applied to the Natives accused, but it was considered that as they had acted under the orders of their master, a European, it would be an injustice to imprison them. The Judge imposed a sentence of two years R.I. on the settler, and of one day on each of the Natives.
It seems to you, as you read the case through, a strange, a humiliating fact that the Europeans should not, in Africa, have power to throw the African out of existence. The country is his Native land, and whatever you do to him, when he goes he goes by his own free will, and because he does not want to stay. Who is to take the responsibility for what happens in a house? The man who owns it, who has inherited it.
By this strong sense in him of what is right and decorous, the figure of Kitosch, with his firm will to die, although now removed from us by many years, stands out with a beauty of its own. In it is embodied the fugitiveness of the wild things who are, in the hour of need, conscious of a refuge somewhere in existence; who go when they like; of whom we can never get hold.