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Court of AppealDismissedCriminal Appeal 168 of 2002· [2005] KECA 156 (KLR)

Ramadhan Kombe v Republic [2005] KECA 156 (KLR)

Court of Appeal of Kenya
29 July 2005
Philip Kiptoo TunoiP.K. TunoiEOE.O. O'KubasuWDW.S. Deverell
1,492 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a murder trial can proceed with two assessors and without the murder weapon if no injustice results.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Tunoi, O'Kubasu and Deverell, JJ.A) dismissed an appeal by Ramadhan Kombe against a special finding under section 166 of the Criminal Procedure Code that he was guilty of the murder of his two infant children but was insane when he did the act. The trial before Khaminwa, Commissioner of Assize, followed the savage panga killing of the two children in July 1993 and an attack on their mother, and rested on eyewitness testimony and psychiatric evidence of depression and mental illness. On appeal, counsel for the appellant raised only procedural complaints: first, that the trial was a nullity because fewer than three assessors sat throughout, the third assessor having absented himself from 15 March 2001 without explanation; and secondly, that the panga, the murder weapon, was never produced as an exhibit. The court distinguished Muiruri v Republic [2003] KLR 552, holding that on these facts the two remaining assessors attended continuously and without fail, and that the failure to record reasons for continuing with two assessors caused no prejudice and occasioned no failure of justice. On the weapon, the court held the cause of death was patently obvious, there was no other version of events, and non-production did not prejudice the defence. The court affirmed the special finding as the only possible verdict on the evidence, the mental deficiency being a disease of the mind within the M'Naghten Rules. The appeal was dismissed in its entirety on 29 July 2005.

Key legal issues

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01

Whether a trial conducted with two instead of three assessors is a nullity

Holding

Not a nullity on these facts; the two assessors attended continuously and their opinions were taken, and no prejudice or failure of justice resulted from the absence of a recorded reason for continuing with two assessors.

Reasoning

The court accepted Muiruri v Republic as stating that three assessors are required absent valid reasons and a considered ruling, but distinguished it: there attendance was alternate and sporadic, whereas here the two remaining assessors appeared continuously without fail until giving their opinions. The omission to record reasons caused no prejudice and occasioned no failure of justice.

p. 3
02

Whether non-production of the murder weapon undermines a conviction or special finding

Holding

Non-production of the panga was not fatal; the cause and manner of death were patently obvious and uncontested, and counsel at trial had no questions for the doctor who produced the postmortem reports.

Reasoning

The court held there was no other version of how or by whom the deceased were killed; the weapon was clearly a panga. The failure to recover or produce the weapon did not prejudice the appellant's defence, so the ground was rejected.

p. 3
03

Criminal responsibility where the accused was insane at the time of the act

Holding

The special finding under section 166 of the Criminal Procedure Code was the only possible verdict; the appellant's mental deficiency was a disease of the mind within the M'Naghten Rules.

Reasoning

Psychiatric evidence established depression and mental illness with lapses of control; on a balance of probabilities a disease of the mind impaired the appellant's reason, memory and understanding so that he was incapable of knowing what he was doing or that it was wrong. The appellant did not seriously challenge the special finding on appeal.

p. 3

Legal principles established

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  • Proceeding with a trial before two assessors without a recorded reasoned ruling is not necessarily fatal where the remaining assessors attended continuously and no failure of justice is occasioned; Muiruri v Republic is distinguishable on such facts.
  • Non-recovery or non-production of the murder weapon is not fatal to a prosecution case where the cause of death is otherwise patently established and the defence is not prejudiced.
  • A special finding of guilty but insane under section 166 of the Criminal Procedure Code is the appropriate verdict where the disease of the mind within the M'Naghten Rules is established on a balance of probabilities.

Court orders

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  1. 1.Appeal dismissed

Authorities

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Legislation

  • Criminal Procedure Codesection 166
  • Penal Codesection 12

Cases cited (2)

  • M'Naghten's Case
    [1843] 4 St. Tr (Ns) 847
  • Muiruri v. Republic
    [2003] KLR 552
On appeal from
High Court of Kenya at Mombasa
H.C.CR.C. No. 48 of 1994
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence 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 (22)

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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, "Ramadhan Kombe v Republic [2005] KECA 156 (KLR)", Case Analysis (2005). Criminal Appeal 168 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/156/eng@2005-07-29

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