1.The accused person herein faces the charge of Murder contrary to Section 203 as read together with Section 204 of the Penal Code. Particulars of the offence are that on 24th July 2022, at Mathira Village, Makima Location, Mbeere South Sub-County, within Embu County, the accused person murdered Benedict Nguyo Ndirangu. To this charge, the accused person pleaded not guilty and the plea was entered as such.
2.The prosecution lined up its witnesses and PW2 was Dr. Joseph Thuo, a psychiatrist, who testified on behalf of his colleague Dr. Sheila Shavulimo of Embu Level 5 Hospital. He stated that his colleague carried out a mental assessment on the accused person and concluded that he was fit to stand trial. On cross-examination, the defense counsel asked PW2 whether consent was obtained before carrying out the mental assessment in accordance with the Mental Health Act Cap. 248. PW2 stated that consent was not sought but he would need to cross-check with his colleague who authored the mental assessment report. Defense counsel made an oral application to have the testimony of PW2 struck out of the court’s record because the consent of the accused person was not obtained before the mental assessment was done. The court directed the parties to present their written arguments on the oral application.
3.The accused person, through counsel, submitted that the purpose of mental assessment was to determine mental fitness, criminal responsibility or mental state of the accused at the time of occurrence of the crime. That by practice, this assessment is usually ordered by the court, prosecution or defense within the proceedings. He termed the practice of subjecting accused persons in murder trial to mental assessment as archaic and discriminatory. He relied on Section 11 of the Penal Code which provides that an accused person is presumed to be of sound mind unless the need arises to debut this presumption.
4.It was his argument that the accused person has not pleaded insanity and therefore, in this case, if the court strikes out the mental assessment report, no prejudice will be suffered by the prosecution’s case. Reliance was placed on the case of Republic Vs. Ernerst Ojiambo Mulefu alias Museveni & Another (2015) eKLR and further argued that the consent of the accused person was necessary under the Mental Health Act or in the alternative, by an order of the court in the course of proceedings where the court finds a reason to believe that the accused person is of unsound mind.
5.On its part, the respondent argued that the intention to cause death as provided under Section 203 of the Penal Code necessitates conducting of a mental assessment on an accused person. That the rationale is further provided for under Sections 9, 11 and 12 of the Penal Code and that, it is only in murder cases where mens rea and malice aforethought have to be proved. That Article 50(2)(b) of the Constitution provides for fair trial and that it is paramount that an accused person be of sound mind for a fair trial to be accorded. That the practice of conducting mental assessment to persons accused of murder stems from common law practice and precedence as discussed in the case of Republic Vs. Musya Ngolo Lewis (2021) eKLR. Reliance was placed on the case of Leonard Mwangemi Munyasia v Republic  eKLR and Article 27 of the Constitution for the argument that it is the role of the prosecution to establish that the accused person is mentally sound to stand trial. As regards consent for mental assessment, it cited Section 3B of the Mental Health Act. It submitted that mental assessment is an essential step in ensuring fair trial of the accused person and cited the case of Republic Vs. Musya Ngolo Lewis (2021) eKLR (supra).
6.The issue for determination is whether the mental assessment report should be struck out of the proceedings as the consent of the accused person was not sought before he was examined.
7.The Penal Code presumes all accused persons to be of sound mind until proven otherwise. Section 11 provides:Presumption of sanityEvery person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
8.Section 12 of the Penal Code provides for the defense of insanity which is available for the accused person, so long as it can be proved that he was not of sound mind at the time of committing the crime. This defense can be actualized under Section 111(1) and (2)(c) of the Evidence Act and the onus is on the accused person to prove that he is insane. Section 12 of the Penal Code states:InsanityA person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.
9.In this case, the accused person did not plead insanity at any point before or during the proceedings and if he had done so, the onus would be on him to prove the same. It is also not unusual for a court of law to order for mental assessment to be carried out, even though in this case, no such order was made. In the case of Leonard Mwangemi Munyasia Vs Republic  eKLR (supra) as cited by the respondent, the court may seek the expert opinion of a forensic psychologist. However, these sentiments are also not founded in statute.
10.Both the prosecution and the defense are in agreement that indeed the practice of subjecting the accused person to mental assessment is not founded in statute but in common law. For the purpose of section 206 of the Penal Code, mental assessment of an accused person can be done on the strength of common law. Section 3(c) of the Judicature Act, Cap. 8 of the Laws of Kenya provides for application of common law as follows:…subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date:Provided that the said common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.
11.The court in the case of Republic Vs. Musya Ngolo Lewis (2021) eKLR (supra) labored to explain the roots of this practice in murder cases as etched in common law. The practice began in England when the need arose to ensure fair criminal trials. The Honourable Judge in this case, stated that:
12.The respondent argued that, it is only in murder cases where mens rea has to be established as provided under Section 206 of the Penal Code. Mens rea as defined in the 9th Edition Black’s Law Dictionary means:In other words, it means the intention by the accused person to commit the crime or the state of mind for the offender at the time of committing the offence. The respondent righty argued that the state of mind of the accused person can best be determined through a mental assessment by the relevant professional.
13.I have already stated hereinbefore, that the intention to commit murder, and any other offence for that matter, can rightly be established through application of common law and in the absence of statute to guide the process. It is the prosecution’s duty to prove mens rea under Section 206 of the Penal Code. The prerogative on whether or not an accused person should be subjected to mental assessment cannot be left only to the accused person as a defense, lest the prosecution be denied justice. The accused person is allowed to plead insanity as a defense, but if he pleads insanity after close of the prosecution’s case, the prosecution would never have a chance to rebut such evidence, yet under Section 206, the burden is on the prosecution to prove mens rea in murder cases.
14.The elements of the offence of murder under Section 203 of the Penal Code can only be proved when a mental assessment is carried out, in this case the prosecution has been diligent to secure this factor before the close of its case. Section 9 of the Penal Code rightly provides for:
15.The specific question before me is in regard to consent for mental assessment. In Kenya, the Mental Health Act provides for consent for treatment and not for assessment. I cannot find any provision in the Act to the effect that mental assessment is the equivalent of mental treatment and that an individual should provide consent for mental assessment. In fact, the provisions of the Act envisions a scenario where the subjects are already patients suffering from mental illnesses and are due for treatment. I understand this as the process secondary to mental assessment. Part V and VI of the same Act provides for procedures for voluntary and involuntary admission of patients. Under Section 15A(2) it is the intention of the Act that patients begin treatment for mental illnesses after mental assessment.
16.For the avoidance of any doubt, Section 3B of the Act provides for consent for treatment as follows:3B. Consent to treatment(1)Every health care provider shall, where the person with mental illness has attained the age of majority—(a)inform the person with mental illness, of the right of that person to choose an appropriate form of treatment; and(b)obtain the written consent from that person before administering any treatment.(2)Where the person with mental illness is incapable of making an informed decision on the form of treatment under subsection (1), such consent shall be sought and obtained from —(a)the supporter of the person with mental illness duly appointed under this Act, who shall, when giving consent, comply with the will and preferences of that person; or(b)the representative of the person with mental illness, where a supporter has not been appointed.(3)Every health care provider shall, where a person with mental illness is a minor —(a)inform the guardian of the minor of the right of the guardian to choose an appropriate form of treatment for the minor; and(b)obtain written consent from the guardian before administering any treatment.
17.As to whether the right of the accused person to fair hearing under Article 50(2) and right to non-discrimination under Article 27 of the Constitution have been infringed, I am of the view that mental assessment in fact complements and aids delivery of justice to the accused person and to the state. Nothing stops the prosecution from producing the mental assessment report, on the strength of common law applicable to us and by inference from sections 9, 11, 12 and 206 of the Penal Code.
18.Therefore, I find that the application by the defence to strike out the mental assessment report is not merited and is hereby dismissed.
19.It is so ordered.