A.THE LAW RELATING TO LUNACY/ INSANITY AND OTHER INCAPACITY IN

RELATION TO CRIMINAL LIABILITY IN KENYA

1. THE LAW RELATING TO LUNANCY/INSANITY IN RELATION TO CRIMINAL

LIABILITY IN KENYA

The general presumption in criminal law is that every person is

sane; or rather that he/she is always in his or her right state of

mind at all times and is therefore expected to know what he or she

is doing. Section 11 of the Penal Code1 therefore states that ‘every

person is presumed to be of sound mind and to have been of sound mind at any time

which comes into question, until the contrary is proved’.

Essentially, this implies that every person has to take

responsibility for his/ her actions either of which the person

performs or omits to do in relation to criminal law. But if any one

alleges that that he/she was not in his/her right state of mind at

the time he performed or omitted to perform a certain duty under law

because of certain reasons, then he has to adduce evidence to

justify his claims to that effect.

There are different circumstances under which a person may be

considered as not being in their right state of mind; sane.

Insanity/lunacy is one of those circumstances.

But what is insanity; or Lunacy for that matter?

This is any mental disorder severe enough that it prevents a person from criminal

or civil liability2. It is imperative to understand that insanity is a legal, not a

medical standard3.

It thus follows that the effect of insanity is that it prevents a

person from criminal liability. This is provided for under section

1 Cap 63 Laws of Kenya2 Blacks’ law dictionary page 8103 ibid

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12 of the penal code which provides that ‘a person is not criminally

responsible for an act or omission if at the time of doing the act or making the

omission he is through any disease affecting his mind incapable of understanding

what he is doing, or of knowing that he ought not to do the act or make the omission;

but a person may be criminally responsible for an act or omission, although his mind

is affected by disease, if such disease does not in fact produce upon his mind one or

other of the effects above mentioned in reference to that act or omission.’

The section above implies that the defence of insanity or lunacy is

not absolute but can be dispensed with if at all evidence is

produced to indicate that the person knew what he was doing or knew

that he ought not to be doing the act or make the omission.

As such, for one to rely on the defence of insanity/lunacy, an

inference of two elements can be deduced from section 12 of the

penal code stated above. These are:

1. He/she must be through a disease affecting his mind or any

other mental disorder;

2. He/she should not be able to understand what he was doing at

the time he is committing the act or omitting to do the act

because of the disease.

If these two elements are lacking, then one is likely to be held

criminally liable.

Generally, sections 11 and 12 of the penal code can be summarised as

follows:

a) There is a rebuttable presumption of law that every person is

sane. The presumption can be rebutted by the accused showing

that at the material time he was insane within the meaning of

law. The standard of proof on the accused is proof on a

balance of probabilities.

b) Insanity is a defence if the accused proves:

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i. That he was suffering from a disease of the mind at the

material time; and

ii. That as a result of such disease he was either

Incapable of understanding what he was doing; or

Incapable of knowing that what he was doing was

wrong.

APPLICABILITY OF THE M’NAGHTEN RULES IN KENYA

In Kenya, like in many other jurisdictions, the defence of insanity

is cast in the language of the M’Naghten rule which asks in

substance, whether the defendant knew what he was doing when he

committed the offence. These formulations have been received in the

criminal law as part of a tradition which makes the notion of

'blame' central to criminal responsibility and which tries to define

a class of persons who fall outside the boundaries of blame.

The M’Naghten rules in English common law established the defence of

insanity and the concept of insanity which defines the extent to

which men accused of crime may be relieved of criminal

responsibility by virtue of mental disease. It is derived from the

rules of the judges formulated as a result of the M’Naghten

acquittal on grounds of insanity after the murder of Sir Robert

Peel's Secretary in 1843.The rules as the opinions of the judges

came to be known, were adopted in judicial practice and codified in

other jurisdictions. They form the law on insanity.

DISEASE OF THE MIND

The M’Naghten Rules state that the accused must prove that at the

material time of committing the act he was labouring under a ‘defect

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of reason’ from disease of the mind. It is clear that the phrase

‘defect of reason’ is not mentioned within section 12. However, the

courts in the case of Oyee s/o Duru v R4 stated that ‘notwithstanding

this omission, in our opinion, a defect in the reasoning faculty of

the accused person is the origin of, and the basic reason for, the

exemption of a person from criminal responsibility, and this applies

no less under Section 12...than in England under the M’Naghten

Rules.’

The Court in following R v Kemp 5 held that the cause of the disease of

the mind is immaterial; its origins may be mental or physical. In

the Kemp case a temporary black out due to arteriosclerosis (a

physical condition) was held to constitute a disease of the mind.

In the case of Chemagong v R 6 the Court of appeal held that an

epileptic fit may amount to a disease of the mind if it has the

effect of impairing the accused person’s mental faculties of reason,

memory and understanding that the accused did not understand the

nature and quality of his act, or if he did, he did not know what he

was doing was wrong.

A disease of the mind which renders a person insane as understood

from a medical point of view does not in itself enable an accused

person escape criminal responsibility. It follows from this

statement that insanity must be within the meaning of the M’Naghten

Rules i.e. insanity in the legal sense. In R v Mandala 7 Spenser

Wilkinson stated that ‘the tests in the M’Naghten Case must be

4 [1959] E.A. 4075 [1957] 1 Q.B. 399; 3 ALL E.R. 2496 [1984] KLR 6137 [1957] R & N 251 (Ny)

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observed, and it is not enough for a medical expert to come to court

and say generally that it is in his opinion the accused is insane.

There must be some evidence of insanity within the meaning of the

rule in the M’Naghten Case.’

So what is the test for insanity/ lunacy from the above analysis of

the law and the M’Naghten rules?

The test is whether the condition the offender is suffering from is

a disease of the mind; that causes defect of reason8.

THE INCAPACITIES

In order for the defence of insanity to stand, the accused must

prove that as a result of the disease of mind, he was incapable of

understanding what he was doing or he was incapable of knowing that what he was doing

was wrong.

It is now settled that the knowledge must refer to knowledge that

the act was legally wrong. In R v Windle the accused gave his wife,

who was very ill, an overdose of aspirins to kill her mercifully. It

was held on appeal that insanity did not lie, as the accused knew it

was contrary to law to do what he did, even though he might have

thought it morally right.

WHAT OF INSANE DELUSIONS?

The M’Naghten Rules state that where the accused is suffering from

an insane delusion, he must be considered in the same position of

responsibility as if the facts with respect to which the delusion

exists were real. For example, an accused has a complete defence if

8 Judge Gikonyo in R V. JWK [2013] eKLR pg 45

by insanity he is deluded into thinking that a man is attacking him

to take his life, and he kills that man.

Although insane delusion is not specifically pleaded in the Penal

Code, it is treated as part of criminal law.9

2. THE LAW RELATING TO OTHER INCAPACITIES IN RELATION TO CRIMINAL

LIABILITY

This section will consider intoxication and immature age and how

they affect criminal liability

Incapacity is lack of physical or mental capabilities; and lack of

ability to have certain legal consequences attach to one’s actions10.

By way of example, the black’s law dictionary provides that a five –

year old has incapacity to make a binding contract. However, I will

address this part from a criminal law perspective in its entirety.

INTOXICATION

The rules relating to intoxication find place in section 13 of the

Penal Code. The general rule is that ‘save as provided in this

section, intoxication shall not constitute a defence to any criminal

charge.’11

However, ‘intoxication shall be a defence to any criminal charge if

by reason thereof the person charged at the time of the act or

omission complained of did not know that such act or omission was

wrong or did not know what he was doing and-

(a) the state of intoxication was caused without his consent by the

malicious or negligent act of another person; or

9 R v Lutabingwa 9 E.A.CA. 5610 Black’s law dictionary page 77511 Section 13 (1) Penal Code Cap 63 Laws of Kenya

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(b) the person charged was by reason of intoxication insane,

temporarily or otherwise, at the time of such act or omission.’12

Moreover, where the defence of intoxication is established as above

and the cause of intoxication was without the accused’s consent; by

either the malicious or negligent act of another person, then the

accused shall be discharged.13

If the accused person was by reason of the intoxication insane, as

provided in (b) above, then the provisions of the Penal Code and the

Criminal Procedure Code relating to insanity shall apply.14

ELABORATION OF RULES RELATING TO INTOXICATION IN CASE LAW

Evidence which merely shows that the accused’s mind was so affected

by drink that he more readily gave way to some violent passion

affords no defence.15

Nor does a man have a defence where he reduces himself to a state of

intoxication to give himself “dutch courage” to commit a crime. A

clear illustration of this point can be found in the case of Attorney

General for Northern Ireland v Gallegher. 16 Gallagher suffered from

psychopathy, a disease of the mind which could be aggravated by

drink to cause him more readily to lose control of himself. When

sober, he formed the intention of killing his wife with a knife. He

purchased a bottle of whisky, and drunk some of it before he killed

his wife with a knife. The House of Lords in restoring Gallagher’s

conviction for murder held that:

12 Section 13 (2) Penal Code Cap 63 Laws of Kenya13 Section 13 (3) Penal Code Cap 63 Laws of Kenya14 ibid15 Lord Birkenhead in D.P.P v Beard [1920] A.C. 47916 [1961] 3 ALL E.R. 299

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i. The defence of insanity could not be made good with the aid of

whisky; and

ii. The defence of intoxication was not available because the

accused had already formed the intent to kill before he took

the whisky.

As in the words of Lord Denning:

“If a man, whilst sane and sober, forms an intention to

kill ... and then gets himself drunk so as to give himself

Dutch courage to do the killing ... he cannot rely on his self

induced drunkenness as a defence to a charge of murder, nor

even as reducing it to manslaughter ... the wickedness of his

mind before he got drunk is enough to condemn him, coupled with

the act which he intended to do and he did so.”

R v Retief 17 gives a useful summary of the law relating to insanity

caused by intoxication.

The authority provides as follows:

“Insanity whether produced by drunkenness or otherwise is a

defence to the crime charged. The law takes no note of the

cause of insanity and if actual insanity in fact supervenes as

the result of alcoholic excess it furnishes as complete an

answer to a criminal charge as insanity so induced by any

other cause. It is immaterial whether the insanity was

permanent or temporary and if a man’s intoxication were such

as to induce insanity so that he did not know the nature of

his act or that his act was wrongful, his act would be

excusable on the ground of insanity and the verdict should be

‘guilty of the act charged and insane when he did the act.’

The burden of proof of insanity is on the accused and the

17 8 E.A.C.A 718

degree of proof required is that required of a plaintiff in a

civil case.”

INTOXICATION AND “MENS REA”

The Penal Code states that ‘intoxication shall be taken into account

for the purpose of determining whether the person charged had formed

any intention, specific or otherwise, in the absence of which he

would not be guilty of the offence.’18

This section is to the effect that the courts shall take into

account intoxication when determining whether the accused had the

mens rea when committing an offence. Whether drunkenness induces in

the accused incapacity to form the mens rea for the offence charged

is a question that the courts will have to determine by inference

from the facts. In the English case of R v Moore19 where a woman

charged with attempted suicide had jumped into a well when “so drunk

as not to know what she was about”. She was acquitted, as on the

facts it was apparent that her drunkenness negatived any intention

to kill herself or to do herself any grievous harm.

Where lack of mens rea is raised by the defence, the onus of proving

mens rea beyond all reasonable doubt rests upon the prosecution.20

Lastly, section 13 (5) of the Penal Code provides that intoxication

includes a state produced by narcotics or drugs. The effect of this

18 Section 13 (4) Penal Code Cap 63 Laws of Kenya19 (1852) 3 C & K 31920 Cheminingwa v R 23 E.A.C.A 451

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section is such that it is does not limit alcohol and narcotics as

the substances that may cause intoxication.

IMMATURE AGE

The general rules in relation to age find place in section 14 of the

Penal Code. They are as follows:

I. There is an irrebuttable presumption of law that a person

under the age of eight years is not criminally responsible for

any act or omission.21

II. There is a rebuttable presumption of law that a person under

the age of the twelve is not criminally responsible for an act

or omission, unless it is proved that at the time of doing the

act or making the omission he had capacity to know that he

ought not to do the act or make the omission.22

III. There is an irrebutable presumption of law that a boy under

twelve years is incapable of having canal knowledge.23

Generally, the court has a duty in cases of doubt to satisfy itself

judicially as to the age of an accused when that affects criminal

responsibility. This is best done at the commencement of the

proceedings and without waiting for evidence on the general issue.24

21 Section 14(1) Penal Code Cap 63 Laws of Kenya 22 Section 14 (2) Penal Code Cap 63 Laws of Kenya23 Section 14 (3) Penal Code Cap 63 Laws of Kenya24 Republic v Kamau [1965] E.A. 548 (K)

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A. IF IN A MURDER TRIAL INSANITY EMERGES AS AN ISSUE, WHO IS

SUPPOSED TO RAISE IT AND WHY?

Insanity mainly arises in two situations:

a) Where the accused pleads insanity as a defence; and

b) Where insanity becomes a procedural bar such that the accused

cannot take a plea and where the insanity makes him incapable

of making his defence.

Each of this situations will be considered in turn to determine who

is supposed to raise it and why.

INSANITY AS A PROCEDURAL BAR

Section 162, 163, 164 and 167 describe the procedure where insanity

becomes a procedural bar.

Before this procedure is described, it is imperative to juxtapose

the right to a fair hearing under the constitution and the

provisions of the criminal procedure code together with other laws

for a better understanding of the same.

THE RIGHT TO A FAIR HEARING IN RELATION TO INSANITY/ LUNACY

Fair hearing as captured under Article 50 of the constitution of

Kenya 2010 is a cardinal principle of the due process and natural

law whose place in the dispensation of justice cannot be overlooked

in any manner. It is a fundamental constitutional right of any

person who has been charged with a criminal offence; including those

who are insane or suffering from other incapacities recognised under

the law. The right to fair trial in criminal proceeding includes the

right to be informed of the charge, to understand those charges, be

able to follow those proceedings and instruct counsel for purposes

of objective legal representation. The question then is, “If a

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person is suffering from a disease of the mind and cannot plead or

understand the proceedings or make his defence, can he be said to

have been accorded a fair hearing in the sense of the Constitution?”

For one to have been accorded a fair hearing, he must have been

informed of the charges, understood the charge, be able to plead to

the charge and even be able to give instructions to his counsel

where one is being represented and of course be able to follow the

proceedings.

How is this made possible under insanity/ Lunacy cases?

THE PROCEDURE FOR DEALING WITH INSANITY/LUNACY CASES

Firstly, section 162 provides for situation where the courts may

inquire as to soundness of the mind of the accused. It states that

‘when in the course of a trial or committal proceedings the court

has reason to believe that the accused is of unsound mind and

consequently incapable of making his defence, it shall inquire into

the fact of unsoundness.’

This section implies that on being informed of the unsound mental

condition of the offender, the court should carry out an inquiry

under section 162(1) of the Criminal Procedure Code to establish

whether the offender is of unsound mind and consequently incapable

of pleading, understanding the proceeding and making his defence.

This is done by calling for thorough medical examination of the

offender25.

Furthermore, if the court is of the opinion that the accused person

is insane and consequently incapable of making his defence, it shall

25 Gikonyo J in R v. JWK [2013] eKLR pg 212

postpone further proceedings in the case.26 Essentially, the

postponement of the proceedings is to make sure that the trial is

not a nullity because of procedural impropriety by the court; hence

the thorough inquiries needed. For instance, if the insane person

does not understand the procedure and the court proceeds with the

trial, the whole trial process may be declared to be a nullity on

appeal. Therefore, if the case is one in which bail may be taken

out, the court may release the accused person on sufficient security

being given that he will be properly taken care of and be prevented

from doing injury to himself or to any other person, and for his

appearance before the court or such officer as the court may appoint

in that behalf.27

But if the case is one in which bail may not be taken out, or if

sufficient security is not given, the court shall order that the

accused be detained in safe custody in such place and manner as it

may think fit, and shall transmit the court record or a certified

copy thereof to the minister for consideration by the President.28

Upon consideration of the record the President may by order under

his hand addressed to the court direct that the accused be detained

in a mental hospital or other suitable place of custody, and the

court shall issue a warrant in accordance with that order; and the

warrant shall be sufficient authority for the detention of the

accused until the President makes further order in the matter or

until the court which found him incapable of making his defence

26 Section 162 (2) Criminal Procedure Code Cap 75 Laws of Kenya27 Section 162 (3) Criminal Procedure Code Cap 75 Laws of Kenya28 Section 162 (4) Criminal Procedure Code Cap 75 Laws of Kenya

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orders him to be brought before it again in the manner provided by

sections 163 and 164.29

In section 162, the court inquires and raises the issue of insanity

and the reason for this is to ensure that the accused person

understands the proceedings and also is capable of making his

defence.

REFUSAL TO PLEAD

In a murder trial, where the accused person refuses to answer

directly to the information, the court will enter a plea of “not

guilty” on behalf of the accused person, and the plea so entered

shall have the same effect as if the accused person had actually

pleaded. The court shall in such circumstances proceed to try

whether the accused person is of sound mind. If he is found to be of

sound mind, the court shall proceed with the trial. If the accused

person is found to be of unsound mind, and consequently incapable of

making his defence, the court shall order the trial to be postponed

and the accused person to be kept in safe custody in such place and

manner as the court thinks fit, and shall report the case for the

order of the President.30

From the above, a refusal by the accused to plead to information in

a murder trial, may lead the court to inquire into the sanity of the

accused. In this case, the court is raising the issue of insanity

and the reason behind it is to ensure that the accused is fit to

stand trial and consequently capable of making his defence .

29 Section 162 (5) Criminal Procedure Code Cap 75 Laws of Kenya30 Section 280 Criminal Procedure Code Cap 75 Laws of Kenya

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ISSUES RELATING TO FITNESS TO PLEAD

The issue of insanity as relates to fitness to plead has received

judicial attention in the case of Kaplolwa s/o Tarino v R31. In this case

the appellant was charged with murder before the Supreme Court of

Kenya. When arraigned, the question of his fitness to plead was

considered and medical evidence was called showing that due to

senility and hardening of the arteries of the brain, the appellant

at the time appeared to be wanting, but be capable of understanding

the nature of the charge in his more lucid moments. The trial judge

found that the appellant was fit to plead and subsequently in his

judgement, held that a cautionary statement made by the appellant

was given months before the trial confirmed the finding that the

accused was fit to plead had been correct. The trial judge convicted

the accused of murder and sentenced him to death. On appeal the

question of the appellant’s fitness to plead was considered. The

Court of Appeal at Nairobi presided over by Sir Kenneth O’Connor,

Briggs and Forbes JA made the following ruling:

i. That since the cautionary statement relied on by the trial

judge was mad more that five months before the trial, it

afforded little, if any evidence of the appellant’s mental

condition at the time of the trial;

ii. That the point for determination for the trial judge was not

whether the appellant was sufficiently sane to appreciate the

charge, but whether at trial he was of unsound mind and

consequently incapable of making his defence; and

iii. That since there was nothing in the evidence to show that the

appellant at the time of his trial was enjoying one of his

more lucid moments, and since the trial judge did not consider

31 [1957] EA 55315

whether he was capable of making his defence the conviction

must be set aside.

Two key points may be derived from this case. Firstly, it matters

not that accused person was sane when he committed the offence. What

is important is his mental state at the time of trial. Insanity at

the time of committing the offence is of little significance in

answering the question of fitness to plead.

Secondly, sanity required for one to be considered fit to plead goes

further than that of merely being able to understand the charge. It

must be sufficient for the accused person to make his defence. If

the accused is of such insanity as to render him incapable of making

a defence, a conviction based on such a trial must be quashed on

appeal.

It is clear from the above case that issues relating to fitness to

plead are raised and considered by the court in order to enable the

accused person not only to understand the charge but also enable him

to make a defence.

It is important to note that where the courts raise the issue of

insanity, the nature of proceedings changes from being adversarial

to inquisitorial thereby making the role of the court partisan as

opposed to that of an impartial referee.

PROCEDURE WHERE THE PERSON OF UNSOUND MIND SUBSEQUENTLY FOUND

CAPABLE OF MAKING DEFENCE

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If the person detained in a mental hospital or other place of

custody under section 162 or section 280 is found by the medical

officer in charge of the hospital or place to be capable of making

his defence, the medical officer shall forthwith forward a

certificate to that effect to the Director of Public Prosecution. 32

The D.P.P shall thereupon inform the court which recorded the

finding concerning that person under section 162 whether it is the

intention of the Republic that proceedings against that person shall

continue or otherwise.33

Subsequently, the court shall order the removal of the person from

the place where he is detained and shall cause him to be brought in

custody before it, and shall either resume trial or discharge the

accused person in respect of the proceedings brought against him and

release him for custody. The discharge and release shall not operate

as a bar to any subsequent proceedings against the accused on

account of the same facts.34

Where the trial resumes, the accused is required to appear before or

be brought before the court, whereupon, if the court considers the

accused to be still incapable of making his defence, it shall act as

if the accused were brought before it for the first time.35

WHAT HAPPENS WHEN AN ACCUSED PERSON DOES NOT UNDERSTAND PROCEEDINGS

IN A MURDER TRIAL

32 Section 163 (1) Criminal Procedure Code Cap 75 Laws of Kenya33 Section 163 (2) Criminal Procedure Code Cap 75 Laws of Kenya34 Section 163 (3) Criminal Procedure Code Cap 75 Laws of Kenya35 Section 164 Criminal Procedure Code Cap 75 Laws of Kenya

17

If the accused, though not insane, cannot be made to understand the

proceedings-

(b) In cases tried by the High Court, the court shall try the case

and at the close thereof shall either acquit the accused person or,

if satisfied that the evidence would justify a conviction, shall

order that the accused person be detained during the President’s

pleasure.36

Thus, the distinction between sections 167 and 162 is that section

167 is restricted to only clear cases where the unsoundness of mind

of the offender is not in issue, only that he cannot be made to

understand the proceedings. Section 162 relates to the entire

proceedings37.

WHERE THE ACCUSED PLEADS INSANITY AS A DEFENCE

When the accused raises the defence of insanity, the burden of proof

is placed upon him and the standard of proof is on a balance of

probabilities. 38 The burden of proof is placed on the defence since

the law presumes sanity of the accused until the contrary is

proven.39

The burden of proving insanity lies on the accused person, where the

accused person is required to prove that he was suffering from a

disease of the mind and that through such disease he was incapable

36 Section 167 (1) (b) Criminal Procedure Code Cap 75 Laws of Kenya37 Gikonyo J. in R v. JWK [2013] eKLR pg 438 R v Mwose w/o Mwiba [1948] 15 EACA 16139 Section 11 Penal Code Cap 63 Laws of Kenya

18

of understanding what he was doing and unable to know that he ought

not to have committed the offence. 40

When a defence of insanity is successfully established section 166

of the CPC states that:

where an act or omission is charged against a person as an

offence and it is given in evidence on the trial of that

person for that offence that he was insane so as not to be

responsible for his acts or omissions at the time when the act

was done or the omission was made, then if it appears to the

court before which the person is tried that he did the act or

made the omission charged but was insane at the time he did or

made it, the court shall make a special finding to the effect

that the accused was guilty of the act or omission charged but

was insane when he did the act or made the omission.

CAN THE PROSECUTION RAISE THE ISSUE OF INSANITY IN A MURDER TRIAL

The Criminal Procedure Code is not clear about this issue. The case

of Mandi s/o Ngoda v R 41 focuses on the mootness. In this case the

accused was charged with murder and at the opening of the trial his

counsel intimated that the accused was prepared to plead guilty to a

charge of manslaughter. The prosecution, however, declined to accept

this plea on the ground that it proposed to establish that the

accused was insane when the alleged offence was committed. Murphy J

held inter alia that it was questionable whether, even if it is

permissible for the prosecution to raise the issue of insanity in

the course of a trial. The judge revisited the English cases of

40 M Bwonwong’a Procedure in Criminal Law Kenya (East Africa Publishers Nairobi

1994 ) p 130- 13141 [1963] EA 153

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Price 42 and Bratty 43 and drew their attention to the fact that the matter

is not fully settled whether the prosecution can lead evidence of

insanity if it is not in reply to such allegations put up by the

defence as would warrant the move to be taken to rebut it.

From the above, it is clear that the CPC is quiet about the

prosecution raising issues concerning insanity. Furthermore, the

role of the prosecution in raising insanity as a defence is not

settled in jurisprudence from courts. However, it is clear that the

prosecution can lead evidence of insanity in reply to such

allegations as put up by the defence.

Thus, in R v.JWK44, court was of the opinion that since it is up to

the prosecution to determine whether an insane person can plead,

then they can raise the issue of insanity on behalf of the accused

person.

B. IS THE POSITION IN CRIMINAL PROCEDURE CODE AND SMITH & HOGAN

CONSONANT OR CONTRADICTORY?

The Kenyan position as reflected in the Criminal Procedure Code is

that “if a person is charged with the offence of murder in

circumstances convincing the trial that he did the act or made the

omission charged but was insane at the time he did or made it the

court is enjoined to make special finding to the effect that the

accused was guilty of the act or the omission charged but was insane

when he did the act or made the omission.”

42 [1962] 3 ALL E.R. 95743 Bratty v Attorney General of Nothern Ireland [1961] 3 WLR 96544 [2013] eKLR

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Section 203 of the Penal Code provides that ‘any person who of

malice aforethought causes death of another person by an unlawful

act or omission is guilty of murder. The ingredients of this offence

are causing death of another person by an unlawful act or omission

(actus reus) and malice aforethought (mens rea)

This means that if the accused successfully establishes a defence of

insanity, in a murder trial, they will be deemed to have caused the

death another person by an unlawful act or omission but will be

lacking malice aforethought i.e. the intention to cause the death of

a person. Therefore, the accused will be guilty of causing death of

another person but insane.

This is the position as reflected in the case of R v Magata s/o

Kachehakana 45 , where the accused was charged with killing his father.

It was proved and admitted that the accused killed his father

because he believed that his father was Satan and had bewitched him.

It was held that when the accused killed his father he did not know

what he was doing and that he did not know that he ought not to have

done the act. The accused was therefore guilty of the act charged

but insane at the time. A special finding if ‘guilty but insane’ was

given.

Furthermore, a special finding of guilty but insane is neither a

conviction nor an acquittal.46

From the above, it is clear that a person is guilty of the offence

of murder if it is established beyond reasonable doubt that they

caused the death of another (actus reus) and had malice

aforethought (mens rea). This is in line with the Latin Maxim ‘an act

does not make a man guilty of a crime unless his mind be also guilty.’ Upon a verdict

45 [1957] 1 EA 33046 R v Saidi Kabila Kiunga [1965] EA 1

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of guilty being entered by the court, the accused is convicted of

the offence.

On the other hand, where the accused is insane at the time of

committing the offence, he is deemed as having not been able to

understand what he was doing or not knowing that what he was doing

is wrong. Therefore, this negates the ingredient of malice

aforethought. The special finding of guilty but insane means that

the accused is only guilty of killing another person but does not

have the intention to do so.

As a special finding that neither convicts nor acquits the accused,

the position in the Criminal Procedure code is in consonance with

the maxim actus non facit nisi mens sit rea. The two statements are

consonant because the physical wrong has to coincide with mind of

the accused. The slight difference is in the wording.

C. When in a murder trial the charge was read over to the accused

and he was asked to answer it, he laughed heartily, absent-

mindedly nodded and then rolled his head from side to side

while making incoherent utterances. Upon the court reading

the charge over to him again in slow motion and asking whether

he understood and had anything to say in response to it, his

answer was:

“I killed the deceased but I did not kill her. She had

wronged me.”

Thereafter the accused sat down and as the court was trying to

digest his aforesaid conduct, the accused dozed off and

started snoring, apparently oblivious of the somber

environment in which the proceedings were taking place.

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i. Describe the procedure for determining his criminal

liability or otherwise.

The procedure to be adopted when the issue of insanity arises in

the course of a criminal trial is provided for in the Criminal

Procedure Code under sections 162-167.

The provisions of the Criminal procedure code require that if in

the course of proceedings or committal, the court finds that an

accused person is of unsound mind thereby incapacitated from

making his defence, it shall inquire into the fact of unsoundness

mind47. Should it come to the conclusion that he is of unsound

mind, it has to postpone further proceedings. Bail may be taken

but on condition that there is enough security. If the offence is

one which the court through its discretion may not give bail, the

court is to order that he be detained in safe custody and make a

report thereof to the Cabinet Secretary for consideration by the

President. On the report made, the president upon its

consideration may order that the accused be detained in a mental

hospital or any other place deemed suitable. The court may issue

a warrant to that effect and such a warrant is enough authority

for detention of the accused until the president makes a further

order on the matter. The court which found the accused incapable

of making his defence may recall him48.

Detention of an accused may also be done where, having been

arraigned upon an information, the accused stands mute of malice.

The court on entering a plea of not guilty and determining mind

is unsound, detains the accused in safe custody and forwards a

report to the President for consideration.49

47 Section 162(1) Criminal Procedure Code Cap 75 Laws of Kenya 48 Section 162(3) Criminal Procedure Code Cap 75 Laws of Kenya49 Section 280 Criminal Procedure Code Cap 75 Laws of Kenya

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Custody in which an accused person is to be detained must be a

mental hospital and his condition must be monitored by a medical

officer in charge. If such an officer is of the opinion that the

accused is in such an improved state of mind as to be able to

make his defence, he is required to forward a certificate to that

effect to the Attorney General50 It is done for the purpose of

enabling the court which had made a finding of unsoundness of

mind to be advised whether the Republic wishes to continue

proceedings against the person or otherwise51. If the State wishes

to resume proceedings, the accused is brought before the court

and trial is resumed subject to whether the court considers the

accused to be still incapable of making his defence, in which

case it will act as if the accused were brought before it for the

first time52.

ii. In case a special finding like the one alluded to at (c)

above is made and any party is aggrieved by it, would

such finding be appealable and, if so, on what legal

basis? If not, why not?

In case of a special finding of insanity, a party aggrieved by it

would be able to appeal. The party would be aggrieved in the matter

on grounds of disputing the verdict of guilty but insane. However,

the presumption of sanity under Section 11 of the Penal Code would

qualify as a reason to appeal. The party aggrieved would place the

burden of proving insanity to the opposing party through appeal.

50 Section 163 (1) Criminal Procedure Code Cap 75 Laws of Kenya51 Section 163 (2) Criminal Procedure Code Cap 75 Laws of Kenya52 Section 164 Criminal Procedure Code Cap 75 Laws of Kenya

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