P I M v Republic

Court of Appeal, at Nairobi

May 13, 1982

Madan, Miller & Potter JJA

Criminal Appeal No 91 of 1981

Criminal Practice & Procedure - appeal against special finding - special finding of guilty of the act charged but insane under Section 166(1) of the Criminal Procedure Code - appeal against special finding on the ground that neither prosecution nor accused submitted as to insanity - whether a consequential order of detention upon special finding is a sentence of imprisonment - definition of sentence.

Appeal - appeals from a special finding - jurisdiction to hear appeals from a special finding under Section 379 of the Criminal Procedure Code - whether a special finding is a conviction and sentence of imprisonment within the meaning of Section 379.

Judgment - declaratory judgment - meaning of - circumstances calling for - reference for a declaratory judgment by the Attorney General as per Section 379(5) on points of law of exceptional public importance.

The appellant was charged with murder and pleaded not guilty to the charge. At no time during the trial did he raise the defence of insanity and neither did the prosecution submit that the appellant was insane. The High Court made a special finding under Section 166(1) of the Criminal Procedure Code that the accused was guilty of the act but insane when he did it.

The appellant sought an appeal against this special finding on the ground that neither the prosecution nor the defence raised the issue of insanity and that he ought to have been found guilty of manslaughter by reason of his state of intoxication as submitted at trial. The question as to whether the Court of Appeal had jurisdiction to hear appeals against a special finding arose.

The Attorney General filed a certificate under Section 379(2) of the Criminal Procedure Code (Cap 75) for a declaratory judgment on two points of law of exceptional public importance that arose in this case. The points were as follows:

a) Does an appeal lie against a special finding under Section 166 of the Criminal Procedure Code by the High Court of guilty of the act charged but insane?
 b) Is a special finding a conviction or an acquittal for the purposes of Section 379 of the Criminal Procedure Code?
c) If neither the accused nor the prosecution raise a plea of insanity, is the trial judge entitled to make a special finding of insanity?
d) Is the consequential order of detention a sentence?

Held:
On Appeal

1. A special finding under Section 166(1) of the Criminal Procedure Code (Cap 75) is not a conviction and sentence of imprisonment within the meaning of Section 379 of the Criminal Procedure Code (Cap 75).
2. No appeal lies from the High Court to the Court of Appeal in respect of a special finding under Section 166(1) of the Criminal Procedure Code (Cap 75).
3. This appeal is struck out as being incompetent.
   On the Declaratory Judgment
4. The jurisdiction of the Court of Appeal to hear appeals from criminal trials in the High Court is derived exclusively from Section 379 of the Criminal Procedure Code.
5. A special finding of guilty but insane is not a conviction but an acquittal.
6. A presidential order of detention of a person in respect of whom a special finding is made is not punitive but preventive and that is because it is detention for safe custody for an indefinite period.
7. The practice in Kenya is that evidence of the state of mind of the accused should be called by the defence. Legal insanity should be proved by the evidence given at trial and this case is a good example of the dangers of departing from this practice.
8.  (Obiter Potter JA) There should have been a defence of diminished responsibility not amounting to insanity as defined in the Penal Code (Cap 63) reducing murder to manslaughter but since no such defence was advanced, the court should have found the accused guilty of murder since there was no dispute as to the fact that he killed his daughter.
9. (Obiter Potter JA) “This case amply illustrates the dangers of departing from the practice laid down in Muswi s/o Musela v Reg (1956) 23 EACA 622. If the appeal had been competent we would have ordered a retrial.”

Cases

1. Felstead v Rex [1914] AC 534 Approved
2. Rex v Ireland [1910] 1 KB 654 Approved
3. Republic v Saidi Kabila Kiunga [1963] EA 1 Reversed 4. Muswi s/o Musela v Reg (1956) 23 EACA 622 Approved
4. R v Casey 32 Cr Appeal R 91 Referred
5. R v Abramovitich 7 Cr App R 145 Referred
6. R v Smith 8 Cr App R 72 Referred

Texts

1. TRF Butler, M Garsia (Ed), Archbold: Pleading, Evidence and Practice in Criminal Cases, Sweet & Maxwell: London, 33rd Edn (1954) p 20 2. J Smith, B Hogan, Criminal Law, Butterworths: London, 4th Edn (1978) p 176

Statutes

1. Criminal Procedure Code (Cap 75) Sections 166(1), (2), (3), (4), (6); 379, 379(5)
2. Trial of Lunatics Act 1883, Section 2(1) [UK]
3. Criminal Appeal Act 1907 [UK]
4. Criminal Procedure (Insanity) Act 1964 [UK]
5. Homicide Act 1957 [UK]
6. Penal Code (Cap 63) Section 12

Advocates

1. Mr Hayanga for Appellant
2. Mr Mugo for Respondent