LGM v Republic (Criminal Appeal 147 of 2019) [2025] KECA 2094 (KLR) (28 November 2025) (Judgment) Neutral citation: [2025] KECA 2094 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NYERI CRIMINAL APPEAL 147 OF 2019 K M'INOTI, S OLE KANTAI & A ALI-ARONI, JJA NOVEMBER 28, 2025 BETWEEN LGM ........................................................................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (Appeal from the judgment of the High Court of Kenya at Nanyuki (Kasango, J.) dated 17th April 2018 in HCCR.C No. 23 OF 2015) JUDGMENT 1. This is a first appeal from the judgment of the High Court of Kenya at Nanyuki (Kasango, J.) dated 17th April 2018. The appellant, LGM was charged before that court with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The information stated that on 24th July 2016 in Laikipia County, the appellant murdered JMN, who was his father. 2. After hearing the case, the High Court concluded as follows: “20. The prosecution has, in this court’s view, proved beyond reasonable doubt that L hit the deceased severally on the head, which injuries caused his death. I have however found in examining the medical reports, and bearing in mind what PW3 said about L, that L was suffering from decease which affected his mind and consequently was incapable of understanding what he was doing when he severally hit his father on the head. (See Republic v. Philemon Chema [2014] eKLR). 21. Consequently I hereby make a special finding that L is guilty of murder as charged but he was insane when he committed that murder. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2094/eng@2025-11-28 1
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22. I hereby direct the Deputy Registrar of this court to report this case for the order of HE the President in accordance with the provisions of section 166 of the Criminal Procedure Code. In the meanwhile LGM shall be kept in custody at Nanyuki G. K. Prison.” 3. The appellant was aggrieved and preferred the present appeal, where he takes issue with the judgment of the High Court for finding him to be of unsound mind and committing him to prison at the order of the President instead of committing him to a mental hospital for treatment. In support of the appeal, the appellant’s learned counsel, Mr. Gikonyo relied on written submissions dated 14th May 2025. Counsel cited the decision of this Court in RWB v. Republic [2021] KECA 329 (KLR) where the Court held that persons who are mentally ill require treatment rather than punishment. 4. Counsel also relied on the decision of this Court in Wakesho v. Republic [2021] KECA 223 (KLR) where the Court found section 166 of the Criminal Procedure Code to be paradoxical and in urgent need of reform. The reasons put forth for reform include the contradiction inherent in finding guilty a person, who by reason of unsoundness of mind, does not have a blameworthy mind; denial of the court of the discretion to impose suitable measures depending on the circumstances of each case; and breach of the right to fair trial when there is doubt whether the accused person fully understands the charge and is able to effectively participate in the proceedings. 5. For those reasons, counsel urge the Court to set aside the order for the appellant to be held at the order of the president and substitute therefor an order directing him to be committed to a mental hospital for treatment. 6. The respondent conceded the appeal in written submissions dated 10th May 2025. At the hearing of the appeal, Mr. Naulikha, learned counsel reiterated that the respondent was conceding the appeal as regards committal of the appellant. 7. We have carefully considered the appeal. The evidence on record indicates that the appellant had a history of mental illness and that indeed, the High Court found that at the material time, he was suffering from a decease which affected his mind and made him incapable of understanding what he was doing when he attacked his father. In those circumstances, the value of locking him up in prison is not readily apparent. 8. The decisions of this Court cited by the appellant’s counsel speak to the judicial disquiet that section 166 of the Criminal Procedure Code has evoked, not limited to its doubtful constitutionality, implications for separation of powers, and relevance in contemporary times. In addition to those decisions, we would add these other cases, namely, SKK v. Republic [2023] KECA 1088 (KLR); MMK v. Republic [2023] KECA 1395 (KLR), and KLA v. Republic [2024] KECA 1176 (KLR). 9. Taking all the foregoing into account, the best order that commends itself to us is to allow this appeal as regards sentence and direct that the appellant shall be taken for treatment in a mental hospital until such time as the psychiatrist in charge shall certify that he is well enough to be discharged, and that he is not a danger to himself or to the society. It is so ordered. DATED AND DELIVERED AT NYERI THIS 28TH DAY OF NOVEMBER, 2025. K. M’INOTI ................................... JUDGE OF APPEAL S. ole KANTAI https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2094/eng@2025-11-28 2
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................................... JUDGE OF APPEAL A. ALI-ARONI ................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2094/eng@2025-11-28 3
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