RWB v Republic (Criminal Appeal 57 of 2017) [2021] KECA 329 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the McNaughten Rules, as codified in section 12 of the Penal Code, apply to assess criminal responsibility for insanity
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.
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.
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
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.
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.
Legal principles established
#- 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
#- 1.The appellant's conviction for manslaughter is quashed
- 2.The sentence of 50 years imprisonment is set aside
- 3.A special finding that the appellant is guilty but insane
- 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.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.The Registrar of the Court is directed to send a copy of the judgment for the attention of the Attorney General
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mmk v Republic[2023] KECA 1395 (KLR)24 Nov 2023
Cite this brief
#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.