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Court of AppealOtherCriminal Appeal No 91 of 1981; Attorney-General's Reference No 1 of 1982· [1982] KECA 66 (KLR)

PMI v Republic; Attorney-General's Reference No 1 of 1982

Court of Appeal
13 May 1982
CMC B MadanCMC H E MillerKPK D Potter
3,616 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a special insanity finding is an acquittal, not a conviction, and only the defence can raise insanity at trial.

What this practically means

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Executive summary

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The appellant, PMI, was tried by Nyarangi J in the High Court for the murder of his infant daughter and, although neither party raised insanity, the judge made a special finding under section 166(1) of the Criminal Procedure Code that he did the act charged but was insane, ordering detention accordingly. When the appeal came on for hearing, the court formed the preliminary view that there had been no conviction and adjourned to allow the Attorney-General to refer the point of law for review under section 379(5) of the Code, which he did by certificate of January 7, 1982. At the adjourned hearing counsel for the appellant conceded no appeal lay, and the court struck out the appeal as incompetent. On the reference, the court answered two questions. First, following Felstead v Rex, a special finding under section 166 is an acquittal, not a conviction, and the consequential Presidential detention is preventive safe custody rather than a sentence of imprisonment; accordingly no appeal lies under section 379. Second, applying Muswi s/o Musela v Reg, evidence of the accused's state of mind should as a general rule be called by the defence; the trial judge wrongly admitted psychiatric evidence, misdirected himself and the assessors, and made a special finding unsupported by evidence of legal insanity. The court held the trial unsatisfactory and would have ordered a retrial had an appeal been competent, but declined the Attorney-General's invitation to say the appellant should have been convicted of murder. It also obliquely suggested the need for a defence of diminished responsibility.

Key legal issues

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01

Whether a special finding under section 166(1) of the Criminal Procedure Code is a conviction or an acquittal

Holding

It is an acquittal; the special verdict is one and indivisible, following Felstead v Rex, and the consequential detention is preventive safe custody, not a sentence of imprisonment.

Reasoning

Section 166(1)(a) derives from section 2(1) of the Trial of Lunatics Act 1883. In Felstead v Rex the House of Lords held unanimously that an accused found guilty of the act but insane was not 'a person convicted' and that the special verdict is a verdict of acquittal. The Presidential detention order is indefinite safe custody, not a fixed term of imprisonment, so neither limb of section 379(1) is satisfied.

p. 4
02

Whether the trial judge could raise and find insanity sua sponte where the accused did not raise the defence

Holding

No; as a general rule evidence of the accused's state of mind should be called by the defence, following Muswi s/o Musela v Reg, and the trial judge here misdirected himself.

Reasoning

Section 166 requires insanity to be 'given in evidence on the trial'. Muswi s/o Musela v Reg laid down that evidence of the accused's state of mind should as a general rule be called by the defence, with the prosecution's role limited to making its medical evidence available. The trial judge admitted inadmissible psychiatric evidence, misdirected himself and the assessors, and made a special finding unsupported by evidence of legal insanity.

p. 6
03

Competence of the appeal itself

Holding

The appeal was incompetent because the appellant had not been convicted within the meaning of section 379; it was struck out.

Reasoning

Jurisdiction to hear appeals from High Court criminal trials derives exclusively from section 379, which requires a conviction and a sentence of imprisonment exceeding twelve months. Since a special finding is an acquittal, no appeal lay. Counsel for the appellant conceded this and the court struck out the appeal, giving its reasons in the declaratory judgment on the reference.

p. 2

Legal principles established

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  • A special finding under section 166 of the Criminal Procedure Code that the accused did the act charged but was insane is an acquittal, not a conviction, and no appeal lies to the Court of Appeal under section 379 in respect of it.
  • In Kenyan law a verdict upon a criminal charge must be either a conviction or an acquittal; there is nothing in between.
  • Evidence of the accused's state of mind on the defence of insanity should as a general rule be called by the defence; the prosecution's duty is limited to making its medical evidence available to the defence.
  • The Presidential order of detention following a special finding is preventive, not punitive, being detention for safe custody for an indefinite period rather than imprisonment for a fixed term.

Court orders

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  1. 1.The appeal is struck out as incompetent
  2. 2.Declared that no appeal to the Court of Appeal lies under section 379 of the Criminal Procedure Code in respect of a special finding under section 166 of the Code
  3. 3.Declared that a special finding under section 166 is not a conviction but an acquittal
  4. 4.Held that the trial judge was not entitled to make the special finding of insanity where the defence was not raised and no evidence supported it; the trial was unsatisfactory and a retrial would have been ordered had an appeal been competent
On appeal from
High Court of Kenya at Nairobi
Criminal Case No 78 of 1980
Jurisdiction invoked
Section 379(5) of the Criminal Procedure Code (Attorney-General's reference by certificate); appeal purportedly under section 379

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "PMI v Republic; Attorney-General's Reference No 1 of 1982", Case Analysis (1982). Criminal Appeal No 91 of 1981; Attorney-General's Reference No 1 of 1982. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/66/eng@1982-05-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.