Amraphael Mbogholi-Msagha, Pauline Nyamweya, Stephen Gatembu Kairu
Wakesho v Republic (Criminal Appeal 8 of 2016)  KECA 223 (KLR) (3 December 2021) (Judgment)
The distinction between not guilty for reason of insanity and guilty but insane.
The appellant, Mwachia Wakesho, was charged and convicted of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. Aggrieved by the conviction, the appellant filed the instant appeal on grounds that the trial court had erred in failing to properly consider the appellants mental state and that the accused was provoked. The accused also challenged his conviction on grounds that the conviction was based solely on circumstantial evidence. It was the appellant's position that the evidentiary burden had not been proved to sustain a guilty conviction
- What was the threshold that the prosecution had to meet to sustain a conviction based on circumstantial evidence?
- Whether under the circumstances, the offence of murder was proved to the required standard.
- What were the factors the court needed to consider when determining the defense of provocation?
- What were the factors that the court needed to consider when determining the defense of temporary insanity?
- Whether for purposes of a finding that an accused person was guilty but insane, the imposition of an indeterminate sentence at the discretion of the President was unconstitutional.
- Whether a finding of not guilty for reason of insanity was legally sound than a finding of guilty but insane in light of the requirements of criminal responsibility and culpability.
- Whether to submit an accused person that was insane to a trial whose nature and effect an accused person did not understand or appreciate, and be convicted as guilty but insane was unfair.
Relevant provisions of the law
Criminal Procedure Code (Cap 75)
Section 166 - Defence of lunacy adduced at trial
(1) Where an act or omission is charged against a person as an offence, and it is given in evidence on the trial of that person for that offence that he was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission.
(2) When a special finding is so made, the court shall report the case for the order of the President, and shall meanwhile order the accused to be kept in custody in such place and in such manner as the court shall direct.
(3) The President may order the person to be detained in a mental hospital, prison or other suitable place of safe custody.
(4) The officer in charge of a mental hospital, prison or other place in which a person is detained by an order of the President under subsection (3) shall make a report in writing to the Minister for the consideration of the President in respect of the condition, history and circumstances of the person so detained, at the expiration of a period of three years from the date of the Presidents order and thereafter at the expiration of each period of two years from the date of the last report.
(5) On consideration of the report, the President may order that the person so detained be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit.
(6) Notwithstanding the subsections (4) and (5), a person or persons thereunto empowered by the President may, at any time after a person has been detained by order of the President under subsection (3), make a special report to the Minister for transmission to the President, on the condition, history and circumstances of the person so detained, and the President, on consideration of the report, may order that the person be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit.
(7) The President may at any time order that a person detained by order of the President under subsection (3) be transferred from a mental hospital to a prison or from a mental hospital, or from any place in which he is detained or remains under supervision to either a prison or a mental hospital.
- Being the first appeal, the first appellate court was required to subject the evidence before the trial court to fresh and exhaustive examination, weigh it and draw its own conclusions bearing in mind that the trial court had the advantage, which the first appellate court did not have, of hearing and seeing the witnesses.
- Section 203 of the Penal Code under which the appellant was charged provided that, any person who with malice aforethought caused death of another person by unlawful act or omission was guilty of murder. To sustain a charge under that provision, the prosecution had to prove, beyond reasonable doubt, the fact and cause of death of the deceased person; that the death of the deceased was a result of an unlawful act or omission on the part of the accused person; that such unlawful act or omission was committed with malice aforethought.
- To sustain a conviction against an accused person based on circumstantial evidence, such evidence had to exclude co-existing circumstances which would weaken or destroy the inference of guilt. The evidence had to point to the accused as having committed the offence he stood convicted of and to no other person. In order to justify circumstantial evidence, the inference of guilt, the inculpatory facts had to be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt. Circumstantial evidence could be a basis of a conviction only if there were no other existing circumstances weakening the chain of circumstances relied on. The burden of proving facts which justified the drawing of that inference from the facts to the exclusion of any other reasonable hypothesis of innocence was on the prosecution. That burden always remained with the prosecution and never shifted to the accused.
- Under section 208(1) of the Penal Code, provocation meant and included, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who was under his immediate care, or to whom he stood in a conjugal, parental, filial or fraternal relation, or in the relation of master-servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult was done or offered. Provocation was some act, or series of acts done (or words spoken) which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not the master of his or her mind.
- For the defence of provocation to be maintained, it had to be demonstrated that the accused person was actually provoked so as to lose self-control and that a reasonable person in similar circumstances would have been so provoked. It was a question of fact that the trial court had to determine based on the evidence before it whether an accused person was provoked to lose self-control.
- The appellant in his defence stated that he was staying in the same house with the deceased; that he got dizzy; and that he beat her. He did not at all suggest or assert that he may have been provoked. Therefore, there was no evidence at all based on which the trial court would have concluded that there was provocation.
- Throughout the trial, the appellants mental state was a recurring theme. When the appellant physically appeared before the instant court for the hearing of the appeal, the court, having seen the appellant, noted that it was evident that the appellant was of an unstable mind and ordered that he be escorted to Port Reitz Mental Hospital Mombasa for mental examination and for a report to be filed in court. During the virtual hearing of the appeal on September 27, 2021, the appellant appeared virtually before the court from prison, and it was manifest, that the appellant did not have the presence of mind.
- Despite the intimation in the two medical reports produced at the trial court that the appellant was fit to plead and follow proceedings, the testimony of the police officers who visited the scene immediately after the incident, considered alongside the conduct of the appellant immediately after the incident as well as the observations by the trial court during the trial, indicated mental sickness on the part of the appellant. The trial court acknowledged that while sentencing the appellant when he stated that he, had the opportunity of observing the demeanour of the accused person and he did not appear mentally stable but expressed that that was a matter for the Board of Prerogative of mercy as there was no evidence to find the accused guilty but insane.
- Provisions that followed required the officer in charge of the place where such a person was detained to make a report with respect to the condition and circumstances of the person detained to the minister for consideration by the President after three years and thereafter periodically every two years, and on consideration of such report, the President may order the person detained to be discharged or otherwise dealt with subject to such conditions as to him remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person and of the public.
- The critical point at which the mental state of the accused person was relevant for purposes of the defence of insanity was at the time of the commission of the act complained of. If the appellant was suffering from a disease which affected his mind and made him incapable of understanding what he was doing or knowing that what he was doing was wrong at the time of the commission of the offence of murder, then he was not responsible for his actions.
- Insanity was a defence if, at the time of the commission of the act, the accused person 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 he was doing; or, if he did know it, that he did not know he was doing what was wrong. In such circumstances, the accused person would not be entitled to an acquittal but under section 167(1)(b) of the Criminal Procedure Code, he would be convicted and ordered to be detained during the Presidents pleasure because insanity was an illness (mental illness) requiring treatment rather than punishment.
- Insanity would only be a defence if it was proved that at the time of the commission of the offence charged, the accused person, by reason of unsoundness of mind, was either incapable of knowing the nature of the act he was charged with or was incapable of knowing that it was wrong or contrary to law. The test was strictly on the time when the offence was committed and no other. Yet it would be virtually impossible to lead direct evidence of the exact mental condition of the accused person at the time of the commission of the crime.
- When the evidence at the trial court was considered alongside the testimony of the other witnesses as to the appellants state of mind as well as the trial courts own observation of the appellant during the trial, the presumption, under section 11 of the Penal Code, that the appellant was of sound mind at the time in question was rebutted.
- Although the defence of insanity did not appear to have been expressly raised, it was, as already mentioned, a recurring theme throughout the trial and the trial court ought, to have specifically inquired into it before convicting the appellant. Had it done so, and as borne out by the probation report that came late in the day, the appellants mental history would have been established. To inquire specifically into the question of insanity, not only in situations where such defence was raised but also where, as here, it became apparent to the court from the accused persons history or antecedent that insanity could be an issue.
- The court would not normally interfere with a finding of fact by the trial court unless it was based on no evidence, or was based on a misapprehension of the evidence, or the court was shown demonstrably to have acted on wrong principles in reaching the findings that it did. The preponderance of evidence showed that the appellant suffered from a mental disorder. Where it emerged from the evidence that the defence of insanity was in issue, (and the standard in that regard was on a balance of probabilities) the prosecution was required to disprove it. The trial court ought to have made a special finding of guilty but insane.
- Judicial opinion was divided on the constitutionality of some of the provisions of section 166 of the Criminal Procedure Code. It was a matter on which the state of the law was unsatisfactory and in dire need of reform and the Attorney General should have taken immediate steps to initiate reforms.
- Reforms were needed to the provisions of section 166 of the Criminal Procedure Code in two respects.
- It was a legal paradox to find a person guilty but insane, in light of the requirements of criminal responsibility and culpability, which required that for a person to be criminally liable, it had to be established beyond reasonable doubt that he or she committed the offence or omitted to act voluntarily and with a blameworthy mind. A finding of not guilty for reason of insanity would be more legally sound in circumstances where an accused person was suffering from a defect of reason caused by a disease of the mind at the time of the commission of an offence. The court should have been granted discretion to impose appropriate measures to suit the circumstances of each case, upon a finding of not guilty for reason of insanity.
- the subs-stratum of the provisions as regards the right to a fair trial in criminal cases in article 50(2) of the Constitution was that an accused person should have been fully informed, understood and thereby effectively participated in a criminal trial. To go through the motions of a trial whose nature and effect an accused person did not from the outset understand or appreciate, and be convicted on the basis of such a trial as was provided for in section 166 of the Criminal Procedure Act, was manifestly unfair in light of Kenyas current constitutional dispensation.