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Court of AppealPartially AllowedCriminal Appeal (not stated in judgment)

Chemagong v Republic (Criminal Appeal 150 of 1983) [1984] KECA 64 (KLR)

Court of Appeal of Kenya
6 November 1984
AKA.A. KnellerAHA.R.W. HancoxJNJ.O. Nyarangi
1,791 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 epilepsy can amount to legal insanity, quashing a murder conviction and death sentence.

What this practically means

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Executive summary

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The Court of Appeal allowed the appellant's appeal against his conviction of murder and sentence of death imposed by the High Court at Eldoret (Mbaya J) on November 16, 1983. The appellant, a messenger at the Iten Branch of the Agricultural Finance Corporation, attacked the branch manager with a panga hidden on top of the safe, inflicting multiple fatal cut wounds. He raised insanity, claiming to suffer from epilepsy, supported by lay testimony from his mother and wife, an uncle with a similar history of fits, and Dr Okonji's second report diagnosing typical grand-mal epilepsy since childhood and recommending commitment to Mathare Mental Hospital. The trial judge had found the defence not proved, holding that even if the appellant suffered from epilepsy, no fit affected him at the material time. The Court of Appeal, applying the House of Lords decision in R v Sullivan, held that epilepsy causing impaired mental faculties is a disease of the mind under the M'Naghten Rules even if transient or intermittent, provided an evidential foundation is laid and the defence is proved on a balance of probabilities. The court found the trial judge misapprehended the effect of the evidence, held that the appellant was legally insane when he did the act charged, and substituted a special finding under section 166(1) of the Criminal Procedure Code. The case was ordered reported for the President's direction, with the appellant kept in appropriate custody in the meantime.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial judge misapprehended the evidence on epilepsy and erred in finding the appellant was not suffering from epilepsy as a disease
  2. 2.Whether it was established on a balance of probabilities that the appellant was legally insane at the time he killed the deceased
  3. 3.Whether a special finding of insanity under section 166(1) of the Criminal Procedure Code ought to have been made

Key legal issues

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01

Whether epilepsy can constitute a disease of the mind for purposes of the insanity defence

Holding

The court adopted the Sullivan principle that psychomotor epilepsy can be a disease of the mind under the M'Naghten Rules even if its effect is transient or intermittent.

Reasoning

The court considered Dr Okonji's evidence that a person can be legally insane and exhibit violent and bizarre behaviour during an epileptic attack. Relying on the House of Lords decision in R v Sullivan, it held that where a disease impairs the faculties of reason, memory and understanding so that the sufferer does not know the nature of his act or that it was wrong, it is a disease of the mind even if transient. This applies where an accused is in the throes of an epileptic fit at the time of the offence.

p. 3
02

Whether the appellant was legally insane when he killed the deceased

Holding

The court found it established on a balance of probabilities that the appellant was legally insane when he did the act charged, holding that the judge misapprehended the effect of the evidence on epilepsy.

Reasoning

Several witnesses, including the appellant's mother and wife, testified that he suffered from epilepsy with frequent fits; Dr Okonji's second report confirmed typical grand-mal epilepsy since childhood, heavy alcohol and cannabis use, and recommended commitment to Mathare Mental Hospital. Given the frequency of attacks and aggravating factors likely to precipitate one, the court was satisfied the defence was proved on a balance of probabilities, despite the assessors' view that the appellant was guilty.

p. 4
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Standard of appellate interference with findings of fact

Holding

The court applied the settled principle that interference is warranted only where a finding is based on no evidence, a misapprehension of evidence, or wrong principles, and found such a misapprehension here.

Reasoning

The court restated the classic rule governing first appeals. It then concluded that the preponderance of evidence clearly showed the appellant suffered from epilepsy and was prone to frequent fits, and that the trial judge misapprehended the effect of that evidence and should have held that the appellant suffered from epilepsy as a disease, justifying interference.

p. 4

Legal principles established

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  • Epilepsy, if it impairs the mental faculties of reason, memory and understanding at the time of the offence, constitutes a disease of the mind within the M'Naghten Rules, even if the effect is transient or intermittent.
  • The statement of law in R v Sullivan applies in Kenya where an accused is in the throes of an epileptic fit at the time of the offence, provided a suitable evidential foundation is laid and insanity is established on a balance of probabilities.
  • The burden of proving insanity once raised lies on the accused on a balance of probabilities.
  • An appellate court will not interfere with findings of fact unless based on no evidence, a misapprehension of the evidence, or demonstrably wrong principles.

Court orders

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  1. 1.Appeal allowed to the extent of quashing the conviction of murder
  2. 2.Sentence of death set aside
  3. 3.Substitution of a special finding that the appellant did the act charged but was insane at the time he did it
  4. 4.Case to be reported for the order of His Excellency the President
  5. 5.Appellant to be kept in appropriate custody in the meantime

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AK
majority
AH
majority
JN
majority
On appeal from
High Court at Eldoret
not stated in judgment
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence of murder under the Criminal Procedure Code

Relief refused

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Immediate release of the appellant

The court ordered the appellant kept in custody pending the President's order under the special finding of insanity

p. 4

Costs

No costs order recorded in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We therefore allow the appeal to the extent of quashing the conviction and setting aside the sentence of death and substituting therefor, a special finding that appellant did the act charged but that he was insane at the time he did it.
p. 4Disposition - conviction quashed and special finding of insanity substituted
we accordingly, order that the case be reported for the order of His Excellency, the President, and that meanwhile the appellant shall be kept in appropriate custody.
p. 4Final orders - report for President's order and custody
it was a 'disease of the mind' within the meaning of the Mc'Naghten Rules in Mc'Naghten's Case (1843) 10 C1 & Fin 200, even if the efiect was transient or intermittent.
p. 3Epilepsy as disease of the mind - M'Naghten Rules
the burden of proving an averment of insanity, once raised, lies upon the accused person to show on the balance of probabilities
p. 2Burden and standard of proof for insanity
A court on appeal will not normally interfere with a finding of fact by the trial court whether in a civil or criminal case unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.
p. 4Appellate interference with findings of fact

Issues in the judgment

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minor

The judgment refers to the appellant inconsistently by name: Dr Okonji's report quotes 'Mr Chemagong' but earlier narrative refers to the uncle Sawe Chemagong as a separate person who suffered fits, creating possible confusion in the quoted report text.

minor

The case number of the appeal is not stated anywhere in the judgment copy provided.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chemagong v Republic (Criminal Appeal 150 of 1983) [1984] KECA 64 (KLR)", Case Analysis (1984). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/64/eng@1984-11-06

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