Eleman v Republic (Criminal Appeal 9 of 2018) [2025] KECA 828 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a murder appeal, holding that accused persons must prove insanity at the time of the offence, not just illness in court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial judge erred in failing to uphold the appellant's defence of insanity under section 12 of the Penal Code
- 2.Whether the death sentence imposed on the appellant should be interfered with
Key legal issues
#Whether the appellant proved the defence of insanity under section 12 of the Penal Code
The appeal on conviction fails; the appellant did not discharge the burden of proving insanity at the time of the offence.
Section 11 of the Penal Code presumes every person of sound mind until the contrary is proved, rebuttable on a balance of probabilities. The Mathari report showing fitness to stand trial said nothing about the appellant's mental state at the time of the killing. His prior conduct - persistent persuasion of the deceased, escorting her to work, arming himself with a knife, chasing away intervening students, and reporting to police the same evening - was consistent with a person in control of his faculties. No prior history or treatment for mental illness was tabled.
The probative value of a fitness-to-stand-trial report in an insanity defence
A report confirming fitness to stand trial is of little probative value on the question of the accused's mental state at the time of the offence.
The Mathari Mental Hospital report of 22nd December 2015 merely stated the appellant was fit to stand trial without providing the patient's history, findings on admission, treatment, prognosis or professional opinion. It was casually mentioned in court only to confirm fitness to plead. Its relevance was strictly limited to that finding and could not assist in ascertaining the appellant's mental condition when he killed the deceased.
Whether the death sentence should be disturbed in light of Muruatetu
The death sentence is affirmed; the trial court properly exercised its discretion after considering mitigation and aggravating circumstances.
Muruatetu rendered the death penalty discretionary, not mandatory. In exercising that discretion courts must weigh mitigating factors such as provocation, remorse and cooperation against aggravating circumstances such as brutality, premeditation and use of weapons. The trial judge considered the appellant's mitigation and the manner in which the offence was executed, including the slitting of the deceased's throat, and imposed an appropriate sentence which the Court saw no reason to disturb.
Legal principles established
#- There is a presumption of sanity which the accused must rebut on a balance of probabilities; the burden of proving insanity at the time of the offence lies on the accused.
- Insanity is a defence only if it existed at the time of the commission of the offence; a report of fitness to stand trial does not prove the accused's mental state at the time of the offence.
- The death penalty is lawful and may be imposed in appropriate murder cases; what Muruatetu outlawed is only the mandatory nature of the death penalty.
Court orders
#- 1.The appellant's appeal against both conviction and sentence is dismissed
- 2.The conviction for murder and the death sentence imposed by the High Court are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Naivasha
- Naivasha High Court Criminal Case No. 38 of 2015
- Jurisdiction invoked
- First appellate appeal against conviction and sentence on murder under sections 203 and 204 of the Penal Code (statutory appeal to the Court of Appeal); no constitutional or Article 163(4) basis stated in the judgment.
Relief refused
#Setting aside of the conviction on the ground of insanity
The appellant did not rebut the presumption of sanity on a balance of probabilities; evidence showed he was aware of his actions at the time of the offence
Reduction of the death sentence
The trial court considered the appellant's mitigation and the gravity of the offence; the death penalty remains lawful and discretionary after Muruatetu
Costs
No costs order was made in the judgment; being a criminal appeal, none was recorded.
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.
The upshot of the foregoing is that the appellant's appeal against both conviction and sentence fail and is hereby dismissed.
we agree with the learned judge that the appellant never tabled evidence to rebut the presumption of sanity on a balance of preponderance of evidence. Therefore, his plea of insanity was properly rejected.
The burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by section 12, lies on the accused who claims the benefit of this exemption.
What the Supreme Court outlawed in the Muruatetu case is the mandatory nature of the death penalty.
The critical point at which the mental state of the accused person is relevant for purposes of the defence of insanity is at the time of commission of the act complained of.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eleman v Republic (Criminal Appeal 9 of 2018) [2025] KECA 828 (KLR)", Case Analysis (2025). Not stated in the judgment text (appeal against Naivasha High Court Criminal Case No. 38 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/828/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.