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Court of AppealPartially AllowedCriminal Appeal 91 of 2007· [2010] KECA 236 (KLR)

Johana Kiplangat Matwek v Republic [2010] KECA 236 (KLR)

Court of Appeal of Kenya
28 May 2010
EOE. O. O'KubasuEGE. M. GithinjiDAD. K. S. Aganyanya
2,123 words in judgment
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The bottom line

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Kenya's Court of Appeal replaced a man's murder convictions and death sentences with a 'guilty but insane' finding after finding he was mentally ill when he killed.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nakuru by Johana Kiplangat Matwek against his conviction for three counts of murder and the sentences of death imposed by the High Court (Koome, J.). The appellant, who had come home drunk on the night of 13th March 2001, attacked his wife, cut his father-in-law, killed his two children and was implicated in the death of a third victim; the bodies were found with skulls opened and brain matter removed. After his arrest he underwent psychiatric observation and was only certified fit to plead over a year later. At trial he raised what amounted to insanity caused by intoxication, which the trial judge rejected, and the assessors returned a unanimous verdict of guilty. The appellant, acting through counsel, argued he was insane at the time of the offences. The Court, reaffirming its duty on a first appeal to re-evaluate the evidence, held that the appellant's sporadic, unpremeditated acts were not those of a person in his normal mental state and that he was insane when he committed the murders; the learned judge should have recorded a special verdict of 'guilty but insane' under section 166(1) of the Criminal Procedure Code. The Court also reiterated that where an accused faces multiple capital charges, sentence should be imposed on only one count and the others left in abeyance. It allowed the appeal in part: it quashed the murder convictions, set aside the death sentences, entered a special finding of 'guilty but insane' on the first count, left the sentences on the second and third counts in abeyance, and directed that the appellant be confined at Kamiti Maximum Prison at the President's pleasure under section 166(2).

Key legal issues

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01

Insanity at the time of the offence

Holding

The appellant's sporadic, unpremeditated acts on the night of 13th March 2001 were not those of a person in his normal mental status; he was insane at the time of the murders and the trial judge should have recorded a special verdict of 'guilty but insane' under section 166(1) of the Criminal Procedure Code.

Reasoning

The Court, re-evaluating the evidence as a first appellate court, noted the appellant chased and cut his father-in-law, killed his two children, opened their skulls and consumed brain matter, saying nothing to or about the victims. His unsworn defence was that he did not know what happened. Although he came home drunk, the acts were so sporadic that no reasonable court would believe they were premeditated, warranting the special verdict.

p. 3
02

Multiple capital charges and sentences

Holding

It is preferable for the prosecution to proceed on one capital charge only, and for sentence of death to be imposed on only one count, leaving the other counts and sentences in abeyance; the Court applied this by entering the special finding on the first count and leaving the sentences on the second and third counts in abeyance.

Reasoning

Relying on Muiruri vs R. and prior decisions of the Court, the Court reasoned that a convict cannot be hanged more than once, so there is no utility in imposing death sentences on several counts; common sense dictates that sentences on the other counts, including imprisonment, be left in abeyance.

p. 3
03

Duty of a first appellate court

Holding

As a first appeal, the Court was under a duty to reconsider and re-evaluate the evidence adduced before the superior court, giving due allowance to the fact that it neither saw nor heard the witnesses.

Reasoning

Citing Okeno v. Republic and Selle v. Associated Motor Boat Co., the Court restated the settled role of a first appellate court: to subject the evidence to a fresh evaluation and draw its own conclusions while making allowance for the trial court's advantage of having seen and heard the witnesses.

p. 3

Legal principles established

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  • Where an accused's acts show he was insane at the time of committing murder, the court should record a special verdict of 'guilty but insane' under section 166(1) of the Criminal Procedure Code rather than convict of murder
  • Where an accused is convicted on more than one capital charge, sentence of death should be passed on only one count and the other counts, including any sentence of imprisonment, left in abeyance
  • Where an accused is charged with a number of capital offences it is preferable for the prosecution to proceed on one capital charge only and leave the other capital charges in abeyance, even where the charges appear interlinked
  • On a first appeal the Court of Appeal is under a duty to reconsider and re-evaluate the evidence adduced before the superior court, giving due allowance to the fact that it neither saw nor heard the witnesses testify

Court orders

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  1. 1.Quashed the appellant's conviction for murder contrary to section 203 as read with section 204 of the Penal Code on the three counts
  2. 2.Set aside the sentences of death imposed on the appellant
  3. 3.Entered a special finding of 'guilty but insane' under section 166 of the Criminal Procedure Code on the first count
  4. 4.Ordered that the sentence on the second and third counts remain in abeyance
  5. 5.Reported the case for the order of the President under section 166(2) of the Criminal Procedure Code
  6. 6.Directed that the appellant be confined at Kamiti Maximum Prison at the pleasure of the President
On appeal from
High Court of Kenya at Nakuru
H.C.Cr.C. No. 65 of 2002
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence on a murder charge under the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Johana Kiplangat Matwek v Republic [2010] KECA 236 (KLR)", Case Analysis (2010). Criminal Appeal 91 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/236/eng@2010-05-28

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