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Court of AppealDismissedCriminal Appeal No. 245 of 2011· [2016] KECA 129 (KLR)

K C K v Republic [2016] KECA 129 (KLR)

Court of Appeal of Kenya
26 February 2016
3,045 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 confirmed that a 'guilty but insane' verdict is legally an acquittal, so no appeal lies against it.

What this practically means

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Executive summary

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The appellant was convicted in the High Court at Mombasa (Odero, J.) of events arising from an attack on his uncle's wife in April 2006. The trial Judge found the actus reus of murder proved but, on overwhelming evidence of the appellant's mental illness, found he lacked malice aforethought and made a special finding under section 166(1) of the Criminal Procedure Code that the accused was guilty but insane, directing detention at the President's pleasure. On appeal, counsel argued that without malice aforethought the offence disclosed was manslaughter, not murder. The Court of Appeal (Ouko, M'inoti and Odek, JJ.A.) dismissed the appeal in a single judgment of the court. It held that once a trial court finds the accused did the act charged and was insane so as not to be responsible, the only course is a special finding under section 166(1). Following Felstead v Rex and PMI v Rep, the court held that a special finding is neither a conviction nor a sentence but an acquittal, because one essential element of murder, malice aforethought, is absent; the word 'guilty' confirms only causation of the act. The Presidential detention order is preventive, not punitive; the detainee is a patient, not a prisoner. Although BGKM v R had expressed doubt about PMI on the ground that English law had been amended, the court held those amendments did not affect the provision in pari materia with section 166. Accordingly no appeal lies to the Court of Appeal under section 379(1) against a special finding. The judgment binds subordinate courts on the nature of a section 166 special finding.

Key legal issues

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01

Whether the special finding of guilty but insane was proper where the trial Judge found no malice aforethought

Holding

Yes. The special finding confirms only that the accused did the act causing death; the absence of malice aforethought by reason of insanity is precisely why the finding is treated as an acquittal rather than a conviction.

Reasoning

Both actus reus and mens rea must be proved for murder under sections 203 and 204 of the Penal Code. Section 166(1) applies where the accused did the act charged but was insane so as not to be responsible. The word 'guilty' in the special finding confirms only that the accused caused the death, not the mental state. Since one essential element of murder is absent, the finding is an acquittal, and the Judge's approach disclosed no error.

p. 4
02

Whether a special finding under section 166 is a conviction and whether an appeal lies from it

Holding

It is not a conviction but an acquittal, following Felstead v Rex and PMI v Rep; accordingly no appeal lies to the Court of Appeal under section 379(1).

Reasoning

The court traced the law from the Trial of Lunatics Act 1883 through Felstead v Rex, where the House of Lords held the special verdict is one and indivisible and an acquittal. PMI v Rep approved this and held the resulting Presidential detention is preventive, not punitive. The court noted BGKM v R had doubted PMI because English law was amended, but held the English amendments did not affect the provision in pari materia with section 166. Insanity requires treatment, not punishment; a person detained at the President's pleasure is a patient, not a prisoner.

p. 4
03

Whether the evidence supported the insanity defence

Holding

Yes. Medical and lay evidence established unsoundness of mind at the time of the killing, availing the accused of the defence under section 166(1).

Reasoning

Psychiatric evidence from Dr Ongeche and Dr Mwangombe established prior treatment for mental illness at Port Reitz Hospital, flat mood, delusions of persecution, paranoia and impaired cognition. Lay witnesses, including PW2 and PW3, confirmed the appellant was known in the village as mentally imbalanced. Delay in taking plea pending certification of fitness to plead further corroborated the mental condition.

p. 2

Legal principles established

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  • Once a trial court finds as a fact that the accused committed the act charged and was insane so as not to be responsible for his acts, the only course open to it is to make a special finding under section 166(1) of the Criminal Procedure Code.
  • A special finding of guilty but insane under section 166 is neither a conviction nor a sentence but an acquittal, with the consequence that no appeal lies to the Court of Appeal under section 379(1) of the Criminal Procedure Code.
  • A person found to have committed murder while suffering from a disease of the mind rendering him incapable of knowing what he was doing cannot be said to have acted with malice aforethought.

Court orders

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  1. 1.Dismissal of the appeal

Authorities

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Legislation

  • Penal Codesection 203
  • Penal Codesection 204
  • Penal Codesection 9(1)
  • Penal Codesection 11
  • Penal Codesection 12
  • Penal Codesections 13(2)(a)(b), 14 and 16
  • Criminal Procedure Codesection 166(1)
  • Criminal Procedure Codesection 166(2) and (3)
  • Criminal Procedure Codesection 379(1)
  • Criminal Procedure Codesection 379(5) and (6)
  • Trial of Lunatics Act, 1883 (England)section 2(1)
  • Criminal Procedure (Insanity) Act, 1964 (England)
  • Criminal Law (Insanity) Act, 2006 (England)
  • Criminal Law (Insanity) Act, 2010 (England)

Cases cited (4)

  • BGKM v R
    Criminal Appeal No. 243 of 2011
  • BGKM v R
    Cr. Appeal No. 342/2011
  • Felstead v Rex
    (1914) AC 534
  • PMI v Rep
    Criminal Appeal No. 91 of 1981
On appeal from
High Court of Kenya at Mombasa
Criminal Case No. 12 of 2006
Jurisdiction invoked
First appellate criminal appeal under the Criminal Procedure Code; the court considered whether an appeal lies from a special finding under section 166(1)

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, "K C K v Republic [2016] KECA 129 (KLR)", Case Analysis (2016). Criminal Appeal No. 245 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/129/eng@2016-02-26

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