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Court of AppealPartially AllowedCriminal Appeal (not stated in judgment)· [1984] KECA 64 (KLR)

Chemagong v Republic (Criminal Appeal 150 of 1983) [1984] KECA 64 (KLR)

Court of Appeal of Kenya
6 November 1984
AKA.A. KnellerAHA.R.W. HancoxJNJ.O. Nyarangi
1,791 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that epilepsy can amount to legal insanity, quashing a murder conviction and death sentence.

What this practically means

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Executive summary

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The Court of Appeal allowed the appellant's appeal against his conviction of murder and sentence of death imposed by the High Court at Eldoret (Mbaya J) on November 16, 1983. The appellant, a messenger at the Iten Branch of the Agricultural Finance Corporation, attacked the branch manager with a panga hidden on top of the safe, inflicting multiple fatal cut wounds. He raised insanity, claiming to suffer from epilepsy, supported by lay testimony from his mother and wife, an uncle with a similar history of fits, and Dr Okonji's second report diagnosing typical grand-mal epilepsy since childhood and recommending commitment to Mathare Mental Hospital. The trial judge had found the defence not proved, holding that even if the appellant suffered from epilepsy, no fit affected him at the material time. The Court of Appeal, applying the House of Lords decision in R v Sullivan, held that epilepsy causing impaired mental faculties is a disease of the mind under the M'Naghten Rules even if transient or intermittent, provided an evidential foundation is laid and the defence is proved on a balance of probabilities. The court found the trial judge misapprehended the effect of the evidence, held that the appellant was legally insane when he did the act charged, and substituted a special finding under section 166(1) of the Criminal Procedure Code. The case was ordered reported for the President's direction, with the appellant kept in appropriate custody in the meantime.

Key legal issues

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01

Whether epilepsy can constitute a disease of the mind for purposes of the insanity defence

Holding

The court adopted the Sullivan principle that psychomotor epilepsy can be a disease of the mind under the M'Naghten Rules even if its effect is transient or intermittent.

Reasoning

The court considered Dr Okonji's evidence that a person can be legally insane and exhibit violent and bizarre behaviour during an epileptic attack. Relying on the House of Lords decision in R v Sullivan, it held that where a disease impairs the faculties of reason, memory and understanding so that the sufferer does not know the nature of his act or that it was wrong, it is a disease of the mind even if transient. This applies where an accused is in the throes of an epileptic fit at the time of the offence.

p. 3
02

Whether the appellant was legally insane when he killed the deceased

Holding

The court found it established on a balance of probabilities that the appellant was legally insane when he did the act charged, holding that the judge misapprehended the effect of the evidence on epilepsy.

Reasoning

Several witnesses, including the appellant's mother and wife, testified that he suffered from epilepsy with frequent fits; Dr Okonji's second report confirmed typical grand-mal epilepsy since childhood, heavy alcohol and cannabis use, and recommended commitment to Mathare Mental Hospital. Given the frequency of attacks and aggravating factors likely to precipitate one, the court was satisfied the defence was proved on a balance of probabilities, despite the assessors' view that the appellant was guilty.

p. 4
03

Standard of appellate interference with findings of fact

Holding

The court applied the settled principle that interference is warranted only where a finding is based on no evidence, a misapprehension of evidence, or wrong principles, and found such a misapprehension here.

Reasoning

The court restated the classic rule governing first appeals. It then concluded that the preponderance of evidence clearly showed the appellant suffered from epilepsy and was prone to frequent fits, and that the trial judge misapprehended the effect of that evidence and should have held that the appellant suffered from epilepsy as a disease, justifying interference.

p. 4

Legal principles established

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  • Epilepsy, if it impairs the mental faculties of reason, memory and understanding at the time of the offence, constitutes a disease of the mind within the M'Naghten Rules, even if the effect is transient or intermittent.
  • The statement of law in R v Sullivan applies in Kenya where an accused is in the throes of an epileptic fit at the time of the offence, provided a suitable evidential foundation is laid and insanity is established on a balance of probabilities.
  • The burden of proving insanity once raised lies on the accused on a balance of probabilities.
  • An appellate court will not interfere with findings of fact unless based on no evidence, a misapprehension of the evidence, or demonstrably wrong principles.

Court orders

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  1. 1.Appeal allowed to the extent of quashing the conviction of murder
  2. 2.Sentence of death set aside
  3. 3.Substitution of a special finding that the appellant did the act charged but was insane at the time he did it
  4. 4.Case to be reported for the order of His Excellency the President
  5. 5.Appellant to be kept in appropriate custody in the meantime
On appeal from
High Court at Eldoret
not stated in judgment
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence of murder under the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chemagong v Republic (Criminal Appeal 150 of 1983) [1984] KECA 64 (KLR)", Case Analysis (1984). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/64/eng@1984-11-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.