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Court of AppealDismissedCriminal Appeal No. 122 of 1991

Joshua Matata Ndonye v Republic [2001] KECA 47 (KLR)

Court of Appeal
16 March 2001
1,487 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that claiming you were too drunk to know what you were doing is a hard defence to win—you must actually raise and prove it.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Kwach, Shah and O'Kubasu, JJ.A.) dismissed the appellant's appeal against his conviction for murder and sentence of death imposed by the High Court at Machakos (Justice Torgbor) on 26th April 1991 in H.C.CR.C. No. 2 of 1989. The appellant was charged on six counts of murder contrary to sections 203 and 204 of the Penal Code; he killed five of his own children and his mother in a single night after an altercation with his wife over being served dinner 'like a bwana'. He did not deny the killings, raising instead the defences of intoxication and insanity by reason of intoxication under section 13(2) of the Penal Code, claiming in an unsworn statement that he had consumed large quantities of muratina and did not recall going home. The Court of Appeal endorsed the trial judge's self-direction and his reliance on Kongoro s/o Mrisho v R and Cheminingwa vs Republic, reiterating the distinction between a plea of insanity by reason of intoxication, where the burden rests on the accused, and a plea of mere incapacity to form specific intent, where no such onus lies on the accused. On the facts, the appellant never asserted he was drunk, and his wife's evidence that he was not drunk when he overpowered her was rightly accepted. The conviction was held proper and the appeal was dismissed in its entirety.

Questions the Court framed

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

  1. 1.Whether the defence of intoxication under section 13(2) of the Penal Code was available to the accused on the evidence
  2. 2.Whether the accused was insane, temporarily or otherwise, by reason of intoxication at the time of the killings
  3. 3.Whether the accused's conviction for the murder of Ndonye Matata was proper

Key legal issues

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01

Defence of intoxication under section 13(2) of the Penal Code

Holding

The defence failed because the accused never said he was drunk, and his wife's unchallenged evidence was that he was not drunk when he returned home and overpowered her.

Reasoning

Section 13(2) of the Penal Code makes intoxication a defence where the accused did not know his act was wrong or was temporarily insane by reason of intoxication. The court endorsed the Kongoro/Cheminingwa distinction: the burden of proving insanity by reason of intoxication rests on the accused, but the onus cannot be laid on the accused where the plea is mere incapacity to form specific intent. On the facts, the accused never claimed drunkenness, and Beatrice testified he was not drunk and could not otherwise have overpowered her. The trial judge was right to accept her evidence.

p. 2
02

Defence of insanity

Holding

The trial judge correctly rejected the defence of insanity, there being nothing to suggest the accused was insane through drink at the time of the offence.

Reasoning

The trial judge reviewed the prosecution and defence evidence and concluded that nothing suggested the accused was insane through drink when he killed the deceased. Considering the manner of killing - smashing the deceased's head - the weapon used and the fact that the accused was not very drunk, the judge found the accused was capable of and did form the intention to kill. The Court of Appeal agreed entirely with this direction and conclusion, finding the conviction proper.

p. 3

Legal principles established

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  • Where the plea is merely that the accused was by reason of intoxication incapable of forming the specific intention required for the offence, the trial court misdirects itself if it lays the onus of establishing this upon the accused; but where a defence of insanity by reason of intoxication is set up, the burden rests on the accused to demonstrate at least the probability of what he seeks to prove.
  • An accused who claims intoxication must expressly assert that he was drunk; the court will not infer drunkenness merely from evidence of alcohol consumption, especially where an eyewitness testifies the accused was not drunk.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The conviction for murder and the sentence of death imposed by the High Court are upheld

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Machakos
H.C.CR.C. No. 2 of 1989
Jurisdiction invoked
First appellate jurisdiction over a conviction and sentence of the High Court (murder trial on information)

Relief refused

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Setting aside of the conviction for murder and the death sentence on the basis of intoxication or insanity

The evidence, including that of the wife Beatrice, showed the accused was not drunk and the trial judge correctly rejected the defences of insanity and intoxication

p. 3

Costs

No costs order is recorded in the judgment (criminal appeal; no order as to costs made)

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.

It is of course correct that if the accused seeks to set up a defence of insanity by reaso n of intoxication, the burden of establishing that defence rests upon him in that he must at least demonstrate the probability of what he seeks to prove.
p. 2Burden of proof where insanity by reason of intoxication is pleaded
But if the plea is merely that the accused was by reason of intoxication incapable of forming the specific intention required to constitute the offence charged, it is a misdirection if the trial court lays the onus of establishing this upon the accused.
p. 2No onus on accused where plea is incapacity to form specific intent
We are satisfied that the accused's conviction for murder was proper. Accordingly, the appeal must fail and it is dismissed.
p. 3Disposition - appeal dismissed and conviction affirmed

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, "Joshua Matata Ndonye v Republic [2001] KECA 47 (KLR)", Case Analysis (2001). Criminal Appeal No. 122 of 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/47/eng@2001-03-16

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