Marii v Republic [1985] KECA 102 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that when mental illness is in play, judges must consider insanity before convicting, substituting a special verdict.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial judge adequately directed himself and the assessors on the three possibilities arising from evidence of mental disease: insanity, sanity, or sanity with diminished appreciation of the consequences of the act
- 2.Whether, on the evidence including the assessors' opinions and the psychiatric evidence, a special verdict of guilty but insane under section 166(1) of the Criminal Procedure Code should be entered
Key legal issues
#Defence of insanity under section 166(1) of the Criminal Procedure Code
A court trying an accused who raises insanity must make a special finding of guilty but insane if satisfied the accused did the act but was insane at the time; failure to consider this possibility is a misdirection or non-direction vitiating a manslaughter verdict
Section 166(1) requires a special finding where the evidence shows the accused did the act but was insane at the time. The defence of insanity was implicitly raised in final address and supported by Dr Fazal's evidence of acute psychosis and by the strange behaviour in May 1983. The trial judge never referred to section 166(1) nor set out the three possibilities from Ellis v Republic. The assessors' opinions that something was wrong with the appellant's brain made insanity the more reasonable conclusion on a balance of probability.
Burden and standard of proof of insanity
The accused bears the burden of proving insanity, but on a balance of probability, not beyond reasonable doubt
Following Ellis v Republic, sanity is presumed until the contrary is shown, so the burden rests on the accused; but it is not as heavy as the prosecution's burden and is discharged on a balance of probability, judging whether it is more likely that mental disease prevented the accused from knowing what he was doing or that it was wrong. Whether insanity is proved is a matter of fact for the judge and assessors in Kenya.
Duty of the trial judge in summing up and recording directions to assessors
The trial judge should record his summing up to assessors and deal with all essential points, so that the appellate court can detect any failure of justice
Relying on Upar v Uganda, the court noted that failure to record the summing up may be an oversight but the practice is desirable, especially where the judge omits an essential point in his judgment. In the present case the judge merely noted that he had summed up, leaving the appellate court unable to tell whether the three possibilities were ever put, and the judgment itself did not show that they were.
Role of assessors' opinions
Assessors give oral opinions, not verdicts, and where the accused's mental state is in doubt those opinions are of special importance
The court corrected the trial judge's description of the assessors' findings as 'a verdict', citing section 322(1) of the Criminal Procedure Code. All three assessors opined that the appellant was not guilty of murder and that something was wrong with his brain, citing his history of acute psychosis and his strange behaviour. Those opinions, together with the psychiatric evidence, made insanity the more reasonable conclusion.
Effect of a special verdict of guilty but insane
On a special verdict under section 166(1), the court reports the case to the President under section 166(2) and orders detention pending those orders
Having substituted the special verdict, the court invoked section 166(2) of the Criminal Procedure Code, which requires the case to be reported for the orders of His Excellency the President. Meanwhile the appellant was to be detained in Kamiti Prison, where further specialist treatment in custody could be arranged. The state counsel agreed with this conclusion.
Legal principles established
#- Where the defence of insanity is raised, the burden of proving insanity rests on the accused on a balance of probability, a lesser burden than that resting on the prosecution
- A trial court must consider and set out the three possibilities - insanity, sanity, or a sane accused who by reason of illness did not appreciate the full consequences of his act - before reaching a verdict of murder or manslaughter
- Assessors in Kenya give opinions rather than verdicts, and their opinions must be recorded and given special importance where the state of the accused's mind is in doubt
Court orders
#- 1.Conviction for manslaughter contrary to section 205 of the Penal Code set aside
- 2.Sentence of 12 years' imprisonment set aside
- 3.Special verdict substituted that the appellant is guilty of the act charged but was insane when he did it, in accordance with section 166(1) of the Criminal Procedure Code
- 4.Case to be reported for the orders of His Excellency the President under section 166(2) of the Criminal Procedure Code
- 5.Appellant to be detained in Kamiti Prison, where such further specialist treatment in custody as is necessary may be arranged
- 6.Appeal allowed to that extent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- First appellate jurisdiction over a High Court conviction (Criminal Appeal No 116 of 1985)
Relief refused
#Outright acquittal
The court found the appellant did the act charged and therefore entered a special verdict of guilty but insane rather than an acquittal
Costs
No order as to costs (criminal appeal; the judgment makes no costs order).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of the apparent misdirection’s or nondirections, we set aside the appellant’s conviction for manslaughter contrary to section/s 205 of the Penal Code and the sentence of 12 years’ imprisonment, and substitute therefore a special verdict that while the appellant is guilty of the act charged he was insane when he did it, in accordance to section 166(1) of Criminal Procedure Code.
Consequently, by virtue of section 166(2) of the Code, the court will report the case for the orders of H E the President and meanwhile order the appellant to be detained in Kamiti Prison, at which prison such further specialist treatment in custody as is necessary may be arranged. The appeal will be allowed to this extent.
where an accused raises the defence of insanity, the burden of proving insanity rests with the accused, because a man is presumed to be sane and accountable for his actions until the contrary is shown
it is to be decided on the balance of probability, whether it seems more likely that due to mental disease the accused did not know what he was doing at the material time, or that what he was doing was wrong
(We would like to note here that the assessors give opinions orally rather than verdicts – vide section 322(1) of the Criminal Procedure Code.) Their opinions were of special importance.
A reference to this point in the notes of his summing up, would assist the appeal court, if there had been a failure of justice.
Issues in the judgment
#The judgment describes the assessors as returning findings of manslaughter ('each one returned a finding of manslaughter') yet elsewhere corrects this, stating assessors give opinions rather than verdicts; the description of the assessors' role is internally inconsistent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marii v Republic [1985] KECA 102 (KLR)", Case Analysis (1985). Criminal Appeal No 116 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/102/eng@1985-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.