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Court of AppealPartially AllowedCriminal Appeal (not separately numbered in the judgment)· [2021] KECA 329 (KLR)

RWB v Republic (Criminal Appeal 57 of 2017) [2021] KECA 329 (KLR)

Court of Appeal of Kenya
17 December 2021
3,479 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 ruled that a mentally ill offender found insane at the time of an offence must be sent for treatment, not imprisoned for 50 years.

What this practically means

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Executive summary

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The Court of Appeal (P. O. Kiage, J. Mohammed and Mumbi Ngugi, JJA) heard a first appeal by RWB against his conviction and sentence of 50 years imprisonment for manslaughter imposed by the High Court at Kitale (J. R. Karanja J.). The evidence showed that on 18th June 2011, at Perekera farm in Trans Nzoia County, the appellant, a herdsboy armed with a panga, attacked the deceased, a six-year-old girl, her mother and the family's house help, inflicting injuries from which the deceased died. A psychiatric report found the appellant to have suffered from schizophrenia around the time of the offence, and the trial judge expressly found that he could not comprehend the consequences of his actions and lacked malice aforethought, yet convicted him of manslaughter. Holding that the correct statutory route on such a finding is a special finding under section 166(1) of the Criminal Procedure Code, the Court quashed the manslaughter conviction and set aside the 50-year sentence. The Court applied the McNaughten Rules as codified in section 12 of the Penal Code, found the appellant insane at the time of the offence, and made a special finding that he is guilty but insane. Endorsing the High Court's decision in Republic v S O M and this Court's decision in Mwachia Wakesho, it called for reform of section 166, holding that mentally ill persons require treatment not punishment, and directed the Registrar to forward the judgment to the Attorney General. The appellant was committed to Mathari Mental Hospital for treatment, with biennial court reports, until the Psychiatrist in charge is satisfied he may be discharged.

Key legal issues

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01

Whether the trial court, having found the appellant mentally sick at the time of the offence, erred in convicting him of manslaughter instead of making a special finding of guilty but insane

Holding

Yes. Having found the appellant mentally sick and lacking the necessary malice aforethought for murder, the learned judge should have invoked section 166(1) of the Criminal Procedure Code and made a special finding of guilty of the act charged but insane, not convicted of manslaughter.

Reasoning

The trial court expressly found that the appellant had a history of schizophrenia and could not comprehend the consequences of his actions or distinguish right from wrong, and therefore lacked malice aforethought. That finding triggered section 166(1) of the Criminal Procedure Code, which requires the court to make a special finding that the accused was guilty of the act or omission charged but was insane. Convicting on the lesser offence of manslaughter was a misdirection and the conviction was quashed.

p. 5
02

Whether the McNaughten Rules, as codified in section 12 of the Penal Code, apply to assess criminal responsibility for insanity

Holding

Yes. Insanity is a defence where, at the time of the act, the accused was labouring under such a defect of reason from a disease of the mind as not to know the nature and quality of the act, or not to know that it was wrong; these rules are codified in section 12 of the Penal Code.

Reasoning

The court traced the McNaughten Rules from the 1843 trial of Daniel McNaughten, as expounded in its earlier decision in Leonard Mwangemi Munyasia v Republic, and noted their codification in section 12 of the Penal Code. The court applied that standard to the medical and psychiatric evidence, including the report of Dr. Judy Kamau and the history of schizophrenia, and concluded that the appellant was insane at the time of the offence.

p. 4
03

Whether section 166 of the Criminal Procedure Code, vesting in the President the discretion over the disposition of persons found guilty but insane, is appropriate

Holding

The court endorsed the view that section 166 is a legal paradox, takes away judicial discretion over sentence, and is in dire need of reform, directing that a copy of the judgment be sent to the Attorney General.

Reasoning

The court aligned itself with the High Court's holding in Republic v S O M (Majanja J.), which declared section 166 unconstitutional to the extent that it vests discretionary power over the disposition of persons found guilty but insane in the President, and with this Court's decision in Mwachia Wakesho v Republic calling for reforms. It held that mentally ill persons require treatment not punishment and that indeterminate incarceration negates their dignity, while nonetheless applying section 166 in this case by committing the appellant to Mathari Mental Hospital.

p. 6

Legal principles established

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  • A first appellate court must subject the whole evidence to a fresh and exhaustive re-examination and re-evaluation so as to arrive at its own independent conclusions on the appellant's guilt or otherwise.
  • Where a trial court finds that an accused did the act charged but was insane at the time, the court must make a special finding under section 166(1) of the Criminal Procedure Code; convicting instead of an alternative offence such as manslaughter is a misdirection.
  • Under the codified McNaughten Rules (section 12 of the Penal Code), a person is not criminally responsible for an act or omission if at the time of doing it, through disease of the mind, he is incapable of understanding what he is doing or of knowing that he ought not to do it.
  • The test of insanity is strictly at the time when the offence was committed and no other.
  • Persons who are mentally ill require treatment not punishment; their indeterminate incarceration negates their dignity and should not be countenanced, and the provisions of section 166 of the Criminal Procedure Code are paradoxical and in dire need of reform.

Court orders

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  1. 1.The appellant's conviction for manslaughter is quashed
  2. 2.The sentence of 50 years imprisonment is set aside
  3. 3.A special finding that the appellant is guilty but insane
  4. 4.The appellant is immediately committed to a mental institution, namely Mathari Mental Hospital, for treatment until the Psychiatrist in charge is satisfied he is well enough to be discharged
  5. 5.The Hospital is directed to prepare and file in Court periodic reports on the appellant's condition at intervals of two (2) years until he is discharged
  6. 6.The Registrar of the Court is directed to send a copy of the judgment for the attention of the Attorney General

Authorities

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Legislation

  • Penal Code, Chapter 63 of the Laws of KenyaSection 12
  • Penal Code, Chapter 63 of the Laws of KenyaSection 202(1)
  • Criminal Procedure Code, Chapter 75 of the Laws of KenyaSection 162(1)
  • Criminal Procedure Code, Chapter 75 of the Laws of KenyaSection 166(1)
  • Criminal Procedure Code, Chapter 75 of the Laws of KenyaSection 166(2)
  • Court of Appeal RulesRule 29(1)
  • Constitution of KenyaArticle 50(2)
  • Constitution of KenyaArticle 160

Cases cited (9)

  • Okeno vs. Republic
    [1972] EA 32
  • Pandya vs. Republic
    [1957] 570
  • Leonard Mwangemi Munyasia vs Republic
    [2015] eKLR
  • Nyawa Mwajowa vs Republic
    [2016] eKLR
  • GW vs Republic
    [2014] eKLR
  • Julius Wariomba Githua vs Republic
    [2008] eKLR
  • CNM vs Republic
    [1985] eKLR
  • Republic vs S O M
    [2018] eKLR
  • Mwachia Wakesho vs Republic
    Mombasa Criminal Appeal No. 8 of 2016
On appeal from
High Court at Kitale
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1) cited), the appellant having been convicted and sentenced by the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "RWB v Republic (Criminal Appeal 57 of 2017) [2021] KECA 329 (KLR)", Case Analysis (2021). Criminal Appeal (not separately numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/329/eng@2021-12-17

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