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Court of AppealAllowedCriminal Appeal 26 of 2006

DKM v Republic

Court of Appeal
30 April 2010
2,407 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 insanity only needs to be proved on a balance of probabilities, quashing a life sentence and substituting a 'guilty but insane' finding.

What this practically means

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Executive summary

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The appellant, convicted by the High Court at Machakos (Wendoh, J.) of manslaughter and sentenced to life imprisonment for killing his brother by crushing his head with a stone while the deceased slept, appealed against both conviction and sentence. At trial he raised an alibi, which the Court of Appeal held was unavailable since it had not been raised during committal proceedings after an alibi warning. The two assessors advised that the appellant was guilty but insane, but the trial judge found no evidence of unsound mind at the material time, reasoning that a psychiatric examination conducted over six months after the offence could not establish mental illness at the time of the killing. The Court of Appeal held that the trial court misdirected itself on the standard of proof: where insanity is raised or arises from the evidence, it must be established on a balance of probabilities, not beyond reasonable doubt. Applying Republic v Madaha [1973] EA 515, the Court distinguished insanity at the time of the act from unfitness to plead. The appellant's statement under inquiry describing commanding voices, together with Dr. Wazome's psychiatric evidence that he acted under the influence of auditory hallucinations, established on a balance of probabilities that he was suffering from schizophrenia and was incapable of understanding what he was doing or knowing that he ought not to do the act. The Court also affirmed its duty to consider alternative defences emerging from the evidence even where not raised by the accused. The appeal was allowed in full: the conviction was quashed, the sentence set aside, and a special finding substituted under Section 166 of the Criminal Procedure Code that the appellant caused the death but was insane when he did so. The case was reported for the order of the President under Section 166(2), and the appellant, still experiencing visions, was committed to the custody of Mathari Mental Hospital 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 appellant was of unsound mind at the time of the offence so as to warrant a special finding of guilty but insane
  2. 2.Whether the superior court applied the correct standard of proof on the defence of insanity
  3. 3.Whether the court may consider alternative defences of insanity not raised by the accused but emerging from the evidence
  4. 4.Whether the sentence of life imprisonment should stand

Key legal issues

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01

Standard of proof on the defence of insanity

Holding

The superior court erred by failing to apply the balance-of-probabilities standard when assessing whether the appellant was insane at the time of the offence.

Reasoning

The trial court found no evidence of unsound mind at the material time because the psychiatric examination occurred over six months after the offence. The Court of Appeal held this misapprehended the applicable standard: insanity, when raised or arising from the evidence, need only be established on a balance of probabilities, not beyond reasonable doubt. On that standard, the psychiatrist's evidence and the appellant's own statement sufficed.

p. 4
02

Duty to consider unraised alternative defences

Holding

The court must consider defences of insanity emerging from the evidence even where the accused, through counsel, raised an alibi instead.

Reasoning

The appellant raised an alibi, which was unavailable because it was not raised during committal proceedings after an alibi warning. Counsel's failure to appreciate the nature of a special finding led to a futile alibi defence. The Court held it nonetheless had a duty to consider alternative defences emerging from the evidence, and the bizarre circumstances and psychiatric evidence established insanity on a balance of probabilities.

p. 4
03

Distinction between insanity as a defence and unfitness to plead

Holding

The two concepts are distinct and attract different procedures; the appellant was insane at the time of the act though fit to plead by trial.

Reasoning

Relying on Republic v Madaha, the Court distinguished insanity at the time of the act from insanity at trial. The appellant's statement under inquiry describing commanding voices, and Dr. Wazome's opinion that he acted under the influence of hallucinated voices, established that he was incapable of understanding what he was doing or knowing it was wrong when he killed the deceased.

Legal principles established

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  • Where a defence of insanity is raised or arises from the evidence, the standard of proof is on a balance of probabilities and not beyond reasonable doubt.
  • A court has a duty to consider alternative defences which emerge from the evidence even where the accused did not raise them.
  • Insanity at the time of the act and unfitness to plead are distinct concepts; a person may be insane when committing an act yet sane at trial, and vice versa.

Court orders

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  1. 1.Appeal against both conviction and sentence allowed
  2. 2.Conviction of manslaughter quashed
  3. 3.Sentence of life imprisonment set aside
  4. 4.Substituted a special finding under Section 166 of the Criminal Procedure Code that the appellant is guilty of causing the death of his brother but was insane when he caused the death
  5. 5.Case reported for the order of the President under Section 166(2) of the Code
  6. 6.Appellant committed to the custody of Mathari Mental Hospital in the meantime

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. 7 OF 2001
Jurisdiction invoked
First appellate jurisdiction over conviction and sentence under the Criminal Procedure Code (appeal from High Court murder trial)

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.

Accordingly, we allow the appeal against both conviction and sentence, quash the conviction and set aside the sentence.
p. 5Disposition - appeal allowed
We substitute therefor a special finding under Section 166 of the Criminal Procedure Code that the appellant is guilty of causing the death of his deceased brother but was insane when he caused the death.
Special finding of guilty but insane
The standard of proof is on a balance of probabilities and not beyond reasonable doubt.
p. 4Standard of proof on insanity
The case is reported for the order of the President under Section 166 (2) of the Code.
p. 5Reporting for Presidential order
Since the appellant is still seeing visions as he told us at the hearing of the appeal, he is committed to the custody of Mathari Mental Hospital in the meantime.
p. 5Interim custody order

Issues in the judgment

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minor

Trial court's quoted finding contains inconsistent dates for the murder (19.1.00 vs 19.11.00).

minor

Typographical error in the year of Mathari treatment.

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, "DKM v Republic", Case Analysis (2010). Criminal Appeal 26 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/511/eng@2010-04-30

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