PMI v Republic; Attorney-General's Reference No 1 of 1982
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal lies to the Court of Appeal from a special finding under section 166 of the Criminal Procedure Code of guilty of the act charged but insane, and whether such a special finding is a conviction or an acquittal for the purposes of section 379
- 2.Whether, the accused not having raised the defence of insanity under section 12 of the Penal Code at the trial, the trial judge was entitled to make a special finding of insanity, or whether it is exclusively for the accused to raise the defence
Key legal issues
#Whether a special finding under section 166(1) of the Criminal Procedure Code is a conviction or an acquittal
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.
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.
Whether the trial judge could raise and find insanity sua sponte where the accused did not raise the defence
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.
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.
Competence of the appeal itself
The appeal was incompetent because the appellant had not been convicted within the meaning of section 379; it was struck out.
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.
Legal principles established
#- 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
#- 1.The appeal is struck out as incompetent
- 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.Declared that a special finding under section 166 is not a conviction but an acquittal
- 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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the judgment of the court on the Attorney-General's reference, answering both certified questions.
Judgment Of The Court On The Attorney-General's Reference Potter JAp. 2
- 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
- Consolidated with
- Attorney-General's Reference No 1 of 1982
Relief refused
#The Attorney-General's invitation to state that the appellant should have been convicted of murder
The trial was unsatisfactory, so the court could not say what the verdict would have been after a properly conducted trial
Costs
No costs order is recorded in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, in our judgment, no appeal to the Court of Appeal from the High Court lies under section 379 of the Criminal Procedure Code in respect of a special finding under section 166 of the Code, and a special finding is not a conviction, but is an acquittal.
Having, with the assistance of Mr Hayanga for the appellant and Mr Mugo for the respondent, came to the same conclusion, we strike out this appeal as incompetent.
in the law of Kenya, as in the law of England, the verdict upon a criminal charge must be a conviction or an acquittal, and there is nothing in between.
This case amply illustrates the dangers of departing from the practice laid down in Muswi’s case (cited above). If an appeal had been competent we would have ordered a retrial.
It is clear that the judge did not properly direct himself or the assessors as to the law of insanity or as to whether there was any evidence of it, or as to whether the issue was properly before them.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.