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

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.

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.

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.