Wakesho v Republic (Criminal Appeal 8 of 2016) [2021] KECA 223 (KLR)

Nobody saw the killing; the case rested on circumstantial evidence. Applying the Koske and Sawe thresholds, the court found PW1's testimony of the deceased's cries, the appellant found silent at the scene, and his own admission that he beat the deceased established a complete chain excluding any other reasonable hypothesis of innocence. The fact and cause of death were not contested, and the post-mortem established blunt head trauma.

Provocation requires both a subjective element (actual loss of self-control) and an objective element (that a reasonable person would have been so provoked). PW1 testified there were no disagreements between the appellant and the deceased, and the appellant himself never suggested he was provoked; he said he beat his mother after taking drugs and getting dizzy. The trial judge therefore had no evidentiary basis to find provocation.

Despite two medical reports finding the appellant fit, the evidence of police officers, the appellant's abnormal conduct at the scene, the probation officer's report of a family history of mental illness, the trial court's own observations, and this Court's observation of the appellant rebutted the presumption of sanity. Once insanity was in issue on a balance of probabilities, the prosecution was required to disprove it, and the judge should have made a special finding under section 166 of the Criminal Procedure Code.

The court noted High Court authority both finding section 167(1) unconstitutional and upholding the executive role under section 166. Counsel did not address the issue, which the court said requires full canvassing. It observed that finding a person guilty but insane is a legal paradox and that trying an accused who cannot understand the trial is manifestly unfair under article 50(2), directing the judgment be sent to the Attorney General for reform.