KOW v Republic (Criminal Appeal 36 of 2020) [2025] KECA 14 (KLR)
The bottom line
#Kenya's Court of Appeal declared unconstitutional the practice of detaining people found insane at the President's pleasure, replacing 'guilty but insane' with 'not guilty by reason of insanity'.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant's incarceration at the pleasure of the President under section 166 of the CPC is unconstitutional
- 2.Whether the proper verdict on a finding of insanity is 'guilty but insane' or 'not guilty by reason of insanity'
- 3.What orders should be made in respect of the appellant's custody, treatment and mental status
Key legal issues
#Constitutionality of detention at the President's pleasure under section 166 of the CPC
Section 166 of the CPC is unconstitutional because it vests judicial sentencing power in the executive, contrary to Article 160 of the Constitution and the right to a fair trial under Article 25.
The court traced High Court and Court of Appeal authority, including Republic v SOM, Wakesho v Republic and PKI v Republic, all expressing dissatisfaction with section 166. Relying on the principle in AOO v Attorney-General that vesting judicial powers on the executive is contrary to the separation of powers, the court held that, just as section 25 of the Penal Code was found unconstitutional, the powers vested under section 166 of the CPC are likewise unconstitutional.
Proper verdict where an accused is insane at the time of the offence
The verdict of 'guilty but insane' is a legal paradox; the proper finding is 'not guilty by reason of insanity', leaving the court to impose appropriate measures for treatment and public safety.
Section 12 of the Penal Code provides that a person is not criminally responsible if, through disease of the mind, he is incapable of understanding what he is doing or knowing he ought not do it. Concurrent findings established the appellant was insane at the time; therefore he lacked mens rea, as counsel for the State conceded. The court substituted a finding of not guilty by reason of insanity and provided for treatment and periodic review.
Distinguishing AOO v Attorney-General
AOO v Attorney-General, which struck down detention at the President's pleasure for minors under section 25(2) of the Penal Code, was distinguishable on its facts but its general principle on separation of powers was adopted.
AOO concerned detention of minors convicted of murder contrary to Article 53(1)(f) protecting children; the appellant was 30 years old at the material time. However, the court agreed with Mativo J's general principle that vesting judicial powers on the executive contravenes the doctrine of separation of powers, and applied it to section 166 of the CPC.
Duty of the first appellate court to consider legality of the orders made by the trial court
The High Court, as a first appellate court, was obliged to reconsider all evidence and legal issues arising, including the legality of section 166 applied by the trial magistrate; its failure was a lapse, but this did not bar the Court of Appeal from addressing the issue.
Although the appellant had not directly raised the constitutionality of section 166 in the first appeal, the trial magistrate had purported to apply section 166 and the High Court had ordered detention at the President's pleasure. Since the second appeal was essentially against the High Court's order, the matter fell within the Court of Appeal's purview notwithstanding the High Court's lapse.
Legal principles established
#- Section 166 of the Criminal Procedure Code, which vests on the President the discretion to determine the sentence and detention of an accused found to have committed an offence while insane, is unconstitutional for contravening the separation of powers and the right to a fair trial.
- A person who, through a disease affecting the mind, is incapable of understanding what he is doing or knowing that he ought not to do the act does not meet the threshold for criminal responsibility under section 12 of the Penal Code and cannot properly be found guilty but insane.
- Where an accused is found insane at the time of commission of the offence, the proper verdict is not guilty by reason of insanity, with the court imposing appropriate measures suited to the circumstances.
Court orders
#- 1.Appeal allowed to the extent of setting aside the order of guilty but insane and substituting an order that the appellant is not guilty by reason of insanity
- 2.The appellant be treated for his mental illness
- 3.The appellant be produced before the trial court within six months for confirmation of his current mental status
- 4.If the appellant is well, an order shall thereafter be made for his release; if still unwell, for his treatment
- 5.The provisions of the Mental Health Act Chapter 248 may be applied subject to a social inquiry report and a supporter or representative being identified
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal against the order of the High Court detaining the appellant at the President's pleasure under section 166 of the Criminal Procedure Code (specific provision not stated in the judgment)
Relief refused
#Challenge to the concurrent findings on conviction that the appellant defiled SW
The appellant did not contest the concurrent findings of the trial court and the High Court that he defiled SW; his grievance was limited to the detention order
Costs
No costs order made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we allow the appeal to the extent of setting aside the order of guilty but insane, and substituting thereto an order, that the appellant is not guilty by reason of insanity
Consequently, we order that the appellant be treated for his mental illness, and he be produced before the trial court within six months for confirmation of his current mental status, and an order shall thereafter be made if he is well, for his release, or if he is still unwell for his treatment
The provisions of the Mental Health Act Chapter 248 may be applied subject to a social inquiry report and a supporter or representative being identified. Those shall be the orders of this Court.
just as the powers vested under section 25 of the Penal Code, the powers vested under section 166 of the CPC is unconstitutional
Sentencing such persons to indeterminate sentences at the pleasure of the President robs the Judiciary of its constitutional role of imposing definite sentences to convicted persons
Issues in the judgment
#The trial magistrate's order is quoted with an apparent transcription error ('refined' for 'referred'), creating ambiguity in the quoted order
In the extract from Wakesho vs Republic, a paragraph is numbered '57' twice, indicating a duplication or misnumbering in the judgment
The treatment labels for Republic v SOM and Republic v S O M overlap: they are described as separate decisions of Majanja J in 2017 and 2018 in the same matter, which could be the same litigation reported twice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KOW v Republic (Criminal Appeal 36 of 2020) [2025] KECA 14 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/14/eng@2025-01-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.