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Court of AppealPartially AllowedCriminal Appeal No. 62 of 2014· [2016] KECA 363 (KLR)

D M M v Republic [2016] KECA 363 (KLR)

Court of Appeal
29 July 2016
3,057 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 quashed a murder conviction because the trial court skipped the mandatory legal process for accused persons found mentally unfit to stand trial.

What this practically means

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Executive summary

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The Court of Appeal at Malindi (Makhandia, Ouko and M'Inoti, JJ.A.) allowed the appellant's first appeal against his conviction for the murder of his father and his sentence of 40 years imprisonment imposed by the High Court at Mombasa (Odero, J.). The appellant was found fit to plead and stood through the prosecution case, but became mentally disturbed when due to present his defence; a psychiatrist found him deluded and unfit to stand trial, and he was sent to Port Reitz Hospital for treatment before being tried and convicted on circumstantial evidence. The appellant argued that, having found him incapable of conducting his defence, the trial court was obliged to follow strictly the procedure in section 162 of the Criminal Procedure Code and that its failure rendered the conviction a nullity. The respondent conceded that the sentence was illegal and that section 167 should have been invoked. The Court distinguished section 162 (unsound mind incapable of making defence) from section 167 (accused who does not understand the proceedings), held that the appellant's psychotic condition was not post-conviction, and found the trial court had applied neither procedure. Following Karisa Masha v. Republic and Leonard Mwangemi Munyasia v Republic, the Court held the prescribed procedure must be strictly followed and not short-circuited. It quashed the conviction, set aside the sentence, ordered the appellant's detention at Port Reitz Hospital for continued treatment, and directed transmission of the record to the Cabinet Secretary so the appellant is dealt with under section 162 of the Criminal Procedure Code.

Key legal issues

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01

Compliance with the procedure for accused persons of unsound mind under the Criminal Procedure Code

Holding

The trial court, having found the appellant unfit to stand trial and directed his treatment at Port Reitz, failed to follow the procedure in section 162 of the Criminal Procedure Code, rendering the conviction and sentence flawed

Reasoning

The Court distinguished section 162, which applies where an accused is of unsound mind and incapable of making his defence (requiring postponement of trial, detention in safe custody, and transmission of the record to the Cabinet Secretary for the President's consideration), from section 167, which applies where an accused is not insane but does not understand the proceedings. The medical history showed the appellant's psychotic condition was not post-conviction but would have required handling under section 162. The trial court invoked neither provision properly, and the prescribed procedure must be strictly followed rather than short-circuited.

p. 4
02

Insanity at the time of the offence versus fitness during trial

Holding

There was no evidence of disease of the mind at the time of the offence; the real question was the appellant's state of mind during the trial

Reasoning

The Court agreed with the respondent that there was no evidence the appellant suffered from a disease of the mind when the offence was committed, so insanity as a defence to the act itself did not arise. The issue was the appellant's fitness to stand trial, established by the psychiatrist's finding that he was deluded and unfit during his defence, and by the later Port Reitz report of 30th June 2014 confirming paranoid schizophrenia and unfitness to pursue the appeal. The Court held this condition existed at trial and required the section 162 procedure.

p. 3
03

Duty of a first appellate court

Holding

On a first appeal the Court must conduct a fresh and exhaustive examination of the evidence while deferring to the trial court's credibility findings

Reasoning

The Court restated the standard for first appeals: the appellant is entitled to a fresh and exhaustive examination of the evidence as a whole and to the Court's own judgment, but the appellate court lacks the advantage enjoyed by the trial court on witness credibility and will defer unless no reasonable tribunal could have reached the trial court's conclusion on the evidence.

p. 3

Legal principles established

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  • Where an accused person is of unsound mind and incapable of making his defence, the trial court must strictly follow the procedure prescribed by section 162 of the Criminal Procedure Code; failure to do so renders the resulting conviction and sentence flawed
  • Courts must not short-circuit the statutory procedure under sections 162 and 167 of the Criminal Procedure Code for dealing with mentally unsound accused persons, including the involvement of the Cabinet Secretary and the President
  • The purpose of the provisions governing insane accused persons is to avoid sentencing a person with mental disorder; courts must consider an accused's previous and supervening mental condition

Court orders

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  1. 1.Quashed the appellant's conviction
  2. 2.Set aside the sentence of 40 years imprisonment
  3. 3.Substituted an order for the detention of the appellant at Port Reitz Hospital where he shall continue treatment
  4. 4.Directed the Deputy Registrar to forthwith transmit to the Cabinet Secretary responsible for the Kenya Prison Service a copy of the High Court proceedings and a copy of the judgment, so that the appellant is dealt with under section 162 of the Criminal Procedure Code

Authorities

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Legislation

  • Penal Codesection 203 as read with section 204
  • Criminal Procedure Codesection 162
  • Criminal Procedure Codesection 162(2)
  • Criminal Procedure Codesection 162(4)
  • Criminal Procedure Codesection 162(5)
  • Criminal Procedure Codesection 163(1)
  • Criminal Procedure Codesection 167
  • Criminal Procedure Codesection 167(1)(b)
  • Criminal Procedure Codesection 167(3)
  • Criminal Procedure Codesection 167(4)

Cases cited (3)

  • Karisa Masha v. Republic
    Cr. App. No. 78 of 2014
  • Kiilu & Another v. Republic
    [2005] KLR 174
  • Leonard Mwangemi Munyasia v Republic
    Cr. App. No. 112 of 2014
On appeal from
High Court of Kenya at Mombasa
H.C.CR.C. No. 31 of 2008
Jurisdiction invoked
First appeal under the Criminal Procedure Code ( appellate jurisdiction of the Court of Appeal over a High Court conviction and sentence)

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, "D M M v Republic [2016] KECA 363 (KLR)", Case Analysis (2016). Criminal Appeal No. 62 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/363/eng@2016-07-29

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