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Court of AppealDismissedNot stated in the judgment (Criminal Appeal, Court of Appeal at Nakuru)

WC v Republic (Criminal Appeal 78 of 2018) [2023] KECA 597 (KLR)

Court of Appeal of Kenya
26 May 2023
FSF. SichaleFOF. OchiengLAL. Achode
3,343 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a person found 'guilty but insane' of murder is a patient needing care, not a prisoner serving a sentence.

What this practically means

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Executive summary

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The appellant, WC, was charged in the High Court at Eldoret with two counts of murder contrary to section 203 of the Penal Code arising from the panga deaths of two children in Baringo on February 20, 2007. He was found unfit to plead at first and plea was only taken on July 10, 2013, after psychiatric certification of fitness. The prosecution evidence established that the appellant inflicted the fatal cut wounds. The trial court, however, found that malice aforethought was not proved because the appellant suffered from schizophrenia, and guided by section 12 of the Penal Code and section 166(1) of the Criminal Procedure Code, made a special finding that the appellant was guilty of the act but insane at the time, directing that he be held at the President's pleasure under section 166(2). On appeal, the appellant argued that he should have been found not guilty and set at liberty since neither malice aforethought nor criminal responsibility was established. The State, relying on the M'Naghten rule, contended the appellant was in charge of his faculties and urged a substitution of the special finding with a conviction. The Court of Appeal framed three issues: proof of malice aforethought, whether the appellant could be convicted of murder, and whether the section 166 special finding amounts to a sentence. The Court found the appellant was schizophrenic when he committed the offence, so malice aforethought was absent. Applying PIM v Republic, KCK v Republic and Felstead v Rex, it held that a special finding under section 166 is neither a conviction nor a sentence but is treated as an acquittal, and detention at the President's pleasure is preventive, not punitive, the detainee being a patient rather than a prisoner. The trial Judge's decision was affirmed and the appeal was dismissed. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether malice aforethought was proved against the appellant
  2. 2.Whether the appellant could be convicted of murder within the meaning of Section 203 of the Penal Code
  3. 3.Whether the special finding under Section 166 of the Criminal Procedure Code amounts to a sentence

Key legal issues

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01

Whether malice aforethought was proved against the appellant

Holding

Malice aforethought was not proved; the appellant suffered from schizophrenia which impaired his mental faculties, so he lacked the mens rea for murder

Reasoning

The Court found overwhelming evidence from prosecution witnesses, corroborated by medical evidence from PW7 and the psychiatrist, that the appellant suffered from schizophrenia. Under Section 11 of the Penal Code, soundness of mind is presumed until the contrary is proved, and here the contrary was conclusively shown. The trial Judge was therefore correct to find the appellant incapable of understanding what he was doing when he killed the deceased.

p. 4
02

Whether the special finding of 'guilty but insane' under Section 166 of the Criminal Procedure Code is a conviction or a sentence

Holding

The special finding is neither a conviction nor a sentence; it is treated as an acquittal because an essential element of murder is absent

Reasoning

Relying on PIM v Republic, KCK v Republic and Felstead v Rex, the Court held that the word 'guilty' in Section 166(1) merely confirms that the accused did the act charged, without the mental state for murder. The M'Naghten Rule, codified in Section 12 of the Penal Code, excuses criminal responsibility where disease of the mind renders the accused incapable of understanding his acts. Insanity is an illness requiring treatment, not punishment; a person detained at the President's pleasure is a patient, not a prisoner.

p. 6
03

Whether the appeal challenging the conviction and detention at the President's pleasure had merit

Holding

The appeal had no substance and was dismissed; the trial court's special finding was proper

Reasoning

Although the appellant argued that he should have been set at liberty since malice aforethought was not proved, the Court agreed with the trial Judge's finding that there was no malice aforethought and that the special finding under Section 166 was properly made. Since the special finding is not a conviction and detention at the President's pleasure is preventive rather than punitive, there was no basis to interfere with the decision below.

p. 6

Legal principles established

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  • A special finding under Section 166 of the Criminal Procedure Code is neither a conviction nor a sentence; it is in effect an acquittal, and detention at the President's pleasure is preventive detention of a patient, not punishment
  • A conviction for murder under Section 203 of the Penal Code cannot stand where malice aforethought (mens rea) is absent; both actus reus and mens rea must be proved

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Orders accordingly (no other orders made)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

FS
majority
FO
majority
LA
majority
On appeal from
High Court of Kenya at Eldoret
Not stated in the judgment
Jurisdiction invoked
First appellate appeal to the Court of Appeal against the High Court's special finding under section 166 of the Criminal Procedure Code (the judgment does not cite the specific appellate provision)

Relief refused

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The appellant's prayer to be found not guilty and set at liberty

The Court found the special finding of guilty but insane was proper, as malice aforethought was not proved but the act was committed; the special finding is neither a conviction nor a sentence and detention at the President's pleasure is preventive, not punitive

p. 6

Costs

No costs order was made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the end, we find no substance in the appeal and the said appeal is accordingly dismissed. Orders accordingly.
p. 6Final orders - dismissal of the appeal
We therefore find that the special finding under Section 166 is neither a conviction nor a sentence.
p. 6Nature of a special finding of guilty but insane
The special finding is then treated as an acquittal because one essential element for the commission of the offence of murder contrary to section 203 is absent.
p. 6Effect of absence of malice aforethought
It is trite that an act constituting an offence of murder does not make a person guilty unless the mind is also guilty.
p. 6Actus reus and mens rea in murder
Section 11 of the Penal Code presumes every person to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
p. 4Presumption of soundness of mind

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, "WC v Republic (Criminal Appeal 78 of 2018) [2023] KECA 597 (KLR)", Case Analysis (2023). Not stated in the judgment (Criminal Appeal, Court of Appeal at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/597/eng@2023-05-26

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