[2015] KECA 382 (KLR)

IN THE COURT OF APPEAL

AT MOMBASA

(CORAM: MAKHANDIA, OUKO & M’INOTI, JJ.A)

CRIMINAL APPEAL NO. 112 OF 2014

BETWEEN

LEONARD MWANGEMI MUNYASIA ……………APPELLANT

AND

REPUBLIC …………….…………………………RESPONDENT

(Being an appeal from the High Court of Kenya at Mombasa (Odero, J.) dated 18th July, 2014

in

HIGH COURT CRIMINAL CASE NO. 16 OF 2011)

************

JUDGMENT OF THE COURT

Although the appellant brings this appeal on six grounds, in our own assessment there is only one point for determination, namely, whether the appellant was, at the time of the commission of the offence of murder, suffering from a disease which affected his mind and made him incapable of understanding what he was doing or knowing that what he was doing was wrong within the McNaughten rules (McNaughten’scase, 1843-10 C & F 200).

If it is shown that indeed he suffered from this condition, then under section 9 as read with section 12 of the Penal Code he could not be held criminally responsible for the murder of Eric Omwenga Mageka, the deceased. We shall consider these two provisions later in this judgment.

The evidence and facts leading to the appellant’s trial in the High Court are fairly straight forward and largely uncontroverted, but as the first appellate court, our duty to evaluate afresh the evidence before the High Court in order to come to our own independent conclusion is not lessened by this fact. See Kinyanjui Vs. R. [2004] 2 KLR 364.

On 27th March, 2011 the appellant entered the Taita Taveta District Headquarters’ compound where the deceased, an administration police officer was on duty, dressed in police uniform and armed with a rifle. He found him and four other officers who were off duty seated on a bench outside the office. After greeting them, the appellant took his position on the bench next to the deceased. Without provocation whatsoever, the appellant drewa knife with which he stabbed the deceased once on the left side of the chest.

The deceased cried out asking, “What is wrong?”, pulled out the knife from his chest and collapsed. The appellant who tried to flee from the scene was pursued and shortly arrested by the deceased person’s colleagues. Upon being searched a panga and a second knife were retrieved from his person.

The deceased was rushed to a nearby hospital and later across the border to Kilimanjaro Medical Centre (KMC) in Moshi-Tanzania, where he died upon arrival. The appellant was thereafter charged with his murder contrary to section 203 as read with section 204 of the Penal Code. The four eye witnesses comprising the deceased person’s fellow administration police officers and one independent witness (PW7- John Kassim Shebeta) were unanimous in their testimonies as to the manner in which the deceased met his death. While the three administration police officers sat with the deceased, PW7 said he was standing only 4 feet from where the rest sat and was facing them. All the witnesses saw the appellant remove the knife, without any provocation, and in a flash stab the deceased. It is that single stab that, according to the doctor, caused massive intrathoracic hemorrhage, cardiac laceration and left lung laceration, leading to the deceased person’s instant death.

The appellant in his defence, however maintained that he never sat on the bench with the police officers; that he did not stab anybody on that day or at all; that he did not know the deceased, neither had he disagreed with him; that he had just taken his expectant wife to Taveta Hospital when the police arrested him on allegation of murder. He however, informed the trial court that he had been suffering from a mental illness for which he was on treatment. To prove this he produced a doctor’s letter.

The trial court, (Odero, J.) in her judgment found that there was overwhelming evidence that the appellant delivered the fatal stab, the incident having taken place in broad daylight and in the glare of many witnesses. She further held that in view of the nature of injuries suffered by the deceased and the fact that the appellant was armed with two knives and a panga, malice aforethought was proved, namely, that the appellant intended to cause the deceased person’s death or do grievous harm to him.

Regarding the defence of insanity alluded to by the appellant, the learned Judge held as follows:-

“In defence accused claims that he is a mental patient and has been on medication. However, there is nothing to suggest that the accused was suffering mental illness at the time of this incident so that his power of reasoning was in any way impaired. I note that psychiatrist’s report dated 25th October, 2013 indicates that accused suffers from bipolar disorder for which he has been under treatment. However the psychiatrist goes on to state of the accused that:

‘He is currently stable both mentally occupationally and socially. He is therefore fit to plead and he is also fit for further service.’

The mere fact that the accused suffers from mental illness does not mean that he was incapable of formulating the mens rea necessary for the offence of murder. Many persons who suffer mental illness are able to function well and live normal lives under medication. This incident occurred in March 2011. The accused is said to have been under treatment since 2010, one full year before the incident. There is nothing to indicate that at the time of this incident, the accused was suffering from a psychotic episode that would have affected his mental capacity to formulate the malice aforethought necessary for murder.

I note that the issue of his mental capacity was not raised at all during the trial. This issue only came up in defence and is clearly an afterthought. I therefore reject this defence. I find that the accused was mentally capable and that he did have the necessary mens rea at the time when he committed this act.”

The underlined three parts in the above passage constitute the basis of this appeal and to which we shall now revert.

The appellant challenges the decision on the ground that there were several pieces of evidence pointing to his mental state; to the effect that he may have been suffering from a mental disorder at the time of the incident. We were invited by the appellant’s counsel, Mr. Tindi to so find and hold that the trial court failed to evaluate the evidence regarding the mental status of the appellant, on the authorities of Grace Nyoroka Vs. R Criminal Appeal No. 246 of 2006, and Julius Wariomba Githua Vs. R Criminal Appeal No. 261 of 2006.

Mr. Monda for the respondent was of the view that although the conviction was proper in view of the overwhelming evidence that the appellant in fact stabbed the deceased, causing his death, the sentence was irregular, particularly in light of the evidence of the appellant’s unstable mental status. In the circumstances, learned counsel suggested that the learned Judge ought to have found that the appellant was guilty but insane.

We approach this appeal as a retrial and shall reconsider the evidence presented before the trial court so as to satisfy ourselves as to the correct outcome. It is a rule of universal application and of criminal responsibility that a man cannot be condemned if it can be proved that at the time of the perpetration of the criminal act he was not master of his mind. To begin with and as a matter of general rule, the law presumes that every person is sane and responsible for his actions at all times including when he is alleged to have committed an offence because sanity is the normal and usual condition of mankind. Section 11 of the Penal Code provides thus;

“11. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.”

The presumption of sanity is, from the above provision, rebuttable, hence the recognition in criminal law, of the defence of insanity. Section 12 of the Penal Code, on the other hand provides for the application of the defence of insanity as follows:

“12. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is, through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.”

Finally on the applicable law, Section 9 to which we have also made reference provides that:-

“9. (1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.”

We reiterate that this is the basis of the generally accepted notion that persons who cannot appreciate the consequences of their actions should not be punished if those actions happen to be criminal acts.

The law on the defence of insanity was refined in 1843 following the trial of Daniel McNaughten, who, operating under the delusion that Sir Robert Peel, Prime Minister, wanted to kill him, set on a mission to kill the Prime Minister first. Executing this intention, McNaughten in an attempt to assassinate the Prime Minister shot his secretary, Edward Drummond and killed him instead. McNaughten’s trial at the old Bailey was high profile attracting two solicitors, four barristers and nine medical experts. Medical evidence in the trial indicated that McNaughten was psychotic, suffering from what would today be described as paranoia and delusion. Consequently, the court acquitted him by reason of insanity. This provoked considerable public furor followed by a debate in the House of Lords culminating with a direction to a panel of Justices of the Queen’s Bench Division presided by Chief Justice of the Common Pleas, Sir Nicholas Tindal to craft new rules on the defence of insanity based on a series of hypothetical questions framed by the House. The principles developed by the panel have come to be known as the McNaughten Rules. That marked the beginning of forensic psychology. Under the rule insanity is a defence if at the time of the commission of the act, the accused person was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. In such circumstances, the accused person will not be entitled to an acquittal but under section 167 (1) (b) of the Criminal Procedure Code he would be convicted and ordered to be detained during the President’s pleasure because insanity is an illness (mental illness) requiring treatment rather than punishment. Such people when so detained are considered patients and not prisoners.

Both section 12 aforesaid and the McNaughten Rules recognize that insanity will only be a defence if it is proved that at the time of the commission of the offence charged, the accused person, by reason of unsoundness of mind, was either incapable of knowing the nature of the act he is charged with or was incapable of knowing that it was wrong or contrary to law. The test is strictly on the time when the offence was committed and no other. Yet it would be virtually impossible to lead direct evidence of the exact mental condition of the accused person at the time of the commission of the crime. Borrowing from a medieval English Judge, Brian CJ in a 1468 case of Greene vs Queen, and who in turn reiterated Cicero who famously remarked that:-

“The thought of man is not triable, for the devil himself knoweth not the intendment of man”,

We are of the view that a court cannot, as the trial Judge in this matter did, assume without considering surrounding circumstances that the suspect was not suffering from mental disorder at the time the offence was committed. Thus it is permissible for the court to rely on evidence from which it can form an opinion regarding the mental status of the accused person at the time when the crime was committed. Such evidence will be based on the immediate preceding or immediate succeeding or even the contemporaneous conduct of the accused person. There is also medical history of the accused person to be considered as the backdrop.

What must be avoided and what this court has warned against in the two decisions relied on by the appellant’s advocate in this appeal, is the likelihood of sentencing to death a person with a mental disorder. Therefore, it is the duty of trial courts, where the defence of insanity is raised or where it becomes apparent to the court from the accused person’s history or antecedent, to inquire specifically into the question. Indeed, it would serve as a good practice, like it is in England, to call evidence based on the opinion of an expert in such cases in terms of Section 48 of Evidence Act to explain the state of mind. It is the duty of both the investigating officer and the defence, to have the accused person subjected to a medical examination to establish whether he suffered from the disease of the mind that affected his mind and made him incapable of understanding his action. In addition, and in order to ascertain the accused person’s state of mind at the time of the offence, the expert opinion of a forensic psychologist, may also be sought. The field of forensic psychology has become a popular field of psychology in Kenya, yet their expertise is hardly sought in criminal trials.

In the famous case of Richard Kaitany Chemagong v. R. Criminal Appeal No. 150 of 1983 the appellant, during his trial made no mention of his mental illness, but upon application by the defence he was examined by a psychiatrist who found that although he was, at the time of examination normal, he had a history of mental illness for which he had been admitted in a mental hospital. For this and other reasons, the court found that the appellant was legally insane. What we are emphasizing here by reiterating what this Court said in Julius Wariomba (supra) in addition to the provisions of Sections 162 and 166 of the Criminal Procedure Code is that it is the duty of the trial court to ensure that the accused person’s mental status at the time he is alleged to have committed the offence is established, if that question becomes relevant.

We noted earlier that the learned Judge made three fundamental findings in the impugned judgment, that:-

there was nothing to suggest that the appellant was suffering from mental illness at the time of the incident.

the mere fact that the appellant suffered from mental illness did not mean he was incapable of formulating the mens rea.

the issue of the appellant’s mental capacity was not raised at all during the trial.

These are serious misdirections as we shall shortly demonstrate. Right from the day the appellant pleaded to the information for the offence of murder up to the time of mitigation the question of his mental status was a live matter. Mr. Abubakar advocate representing the appellant before the trial Judge in applying for the appellant to be admitted to bail after the plea, drew the attention of the Court to the following facts:

“The accused has a mental problem and has been under medication which he is required to take regularly. It is important that he is able to be observed regularly by his personal doctor in Taveta. The medicines enable the accused to function normally. Any interruption would have drastic effects…… I wish to provide copies of the accused’s medical documents to confirm his condition.”

The matter was adjourned to enable the prosecution to respond to this application. At the resumed hearing of the application the prosecution opposed it not on the appellant’s medical ground but for the reason that the deceased was a police officer and the offence was serious. The learned Judge sought a pre-bail report which was duly filed. That report found, among other things, that the appellant suffered chronic malaria in his tender age which appeared to have affected his growth and development; that his “mental condition is suspect, he is on medication for mild psychosis.” With that information, the learned Judge granted the appellant bail.

During the trial, it was clear from the evidence that the appellant’s conduct immediately before he stabbed the deceased was strange. The appellant was not known to the eye witnesses. The appellant himself in his defence stated that the deceased was not known to him; and that there was no form of misunderstanding between them prior to the incident. It is in evidence however that after exchanging greetings, the appellant sat next to the deceased who was the only officer in the group who was in police uniform and armed with a rifle. Completely without provocation he drew the murder weapon, a knife and stabbed the deceased. After this and upon being searched he was found to have in his possession a pangaand a second knife. According to the witnesses he was calm when he was arrested. These are acts which are clearly indicative of an abnormal behaviour, which taken together with the subsequent defence and the appellant’s history should have raised question requiring the mental status of the appellant.

In his unsworn defence, the appellant denied stabbing the deceased but explained that he had been suffering from mental illness for which he was on treatment. He presented a “long term” prescription issued at Port Reitz Hospital, Mombasa by the Ministry of Medical Services, Psychiatric Services dated 6th July 2009 for largactic 100 mg tablets and artane 5mg.

His condition was reviewed in August and September 2009, on which date the doctor noted that he was doing well but was added a dose of serenancetablets. No attempt was made to explain to the trial court the purpose and consequence of these drugs on a person of unsound mind, leaving that task to us to find answers. According to the British Medical Journal (BMJ) Vol. 1 No. 4909 (5th February 1955) pages 338-339, largactil (chlorpromazine hydrochloride) is used to treat symptoms of schizophrenia (a mental illness that causes disturbed or unusual thinking, loss of interest or inappropriate emotion and other forms of psychotic). Artane, on the other hand is stated to be medicine for the treatment the symptoms of Parkinson’s disease. An expert would have explained why such a drug was prescribed for the appellant. Finally,serenance is also used for treatment of illnesses such as schizophrenia, mania or severe anxiety.

When the appellant was examined on 25th October 2010, a few months before the incident under consideration, the doctor noted some unusual behavior. For instance the doctor recorded that the appellant was “confused, not talking and crying”. He was admitted in hospital on that day, we believe on account of this behaviour.

On 1st April, 2011 the doctor also recorded that the appellant was a known psychiatric patient, although doing well. He dispensed artane andlargactil. In the course of his trial, the appellant underwent two psychiatry examination by Dr. Mwangombe, a consultant psychiatrist. The first one was on 27th June 2012 in which the doctor observed that although the appellant had been on treatment since 8th May 2011 his condition at the time of examination had improved and therefore he was fit to plead. The report refers to “fit to plead”yet plea had been taken several months earlier.

The second report was on 25th October 2013, more than one year after the first one, and just before the defence case. In it, the doctor was categorical that the appellant who had been under his care for “severe mental illness” (Bipolar Disorder) since June 2010, (before the commission of the offence), was at the time of examination stable and, once more, fit to plead. Technical terms such as bipolar disorder, schizophrenia and mild psychosis have been used in evidence to describe the appellant’s state of mind. How do these conditions affect a person’s state of mind? Again, these are questions which ought to have been answered at the trial by the experts.

But according to World Health Organization Publication, the ICD-10, Classification of Mental and Behavioural Disorders, 1992, a patient suffering from psychosis experiences hallucinations and/or delusions that they believe are real, and may behave and communicate in an inappropriate and incoherent fashion.

Schiozophrenia is a condition of mental disorder which makes a patient have false beliefs, unclear or confused thinking and auditory hallucinations. While bipolar disorder, on the other hand is a brain disorder that causes unusual shifts in mood and energy activity levels.

Clearly the condition the appellant suffered have severe effect in a patient’s mind and perception. The condition according to the above literature may be long-term, transient and intermittent in nature. See also Chemagong (supra).

The law recognizes, as we have seen, that the society has people like the appellant who may fall in this category of the population, and therefore provides for the procedures to be followed by the court in two instances where the question of insanity arises at the trial. Because of the muddled manner trial courts have approached the question as was observed in Grace Nyorokaand Julius Wariomba (supra), we set out below the correct procedure.

In the first instance, sections 162to 164 of the Criminal Procedure Code provide for situations where, if in the course of a trial it becomes apparent, after the trial court has inquired into the issue, that the accused person is of unsound mind, and is therefore not able to understand the proceedings or make his defence, the court is required to adjourn the proceedings. Depending on whether the offence in questions is bailable (all offences are today bailable subject to the circumstances of each case) the accused person may be released on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person and of course, for his next and subsequent appearances before the court. But if the case involved is one which bail may not be taken, or if sufficient security has not been given, the court will order for the detention of the accused person in safe custody in such a place as it may think fit and thereafter transmit the court record or certified copy thereof to the Minister (today Cabinet Secretary) for the time being responsible for prisons, who shall, in turn transmit it for the President’s consideration.

It is only after the President directs that the accused person be detained in a mental hospital or such other place that the court will issue an order to effect the directive and the accused person shall be so detained until the President makes a further order after being satisfied from the report of the medical officer of the mental hospital or such other place, that the accused person is capable of participating in the trial. The Attorney General (today the Director of Public Prosecution) is required to indicate whether or not the State wishes to press on with the case against the accused person. In Grace Nyoroka(supra) the High Court upon satisfying itself as to the accused person’s state of mind straight away committed her without the order of the President to a mental hospital, a procedure, which this Court on appeal described as short-circuit, and justified on account of saving time. For our part, and granted the provisions of the law, we think the court without an order of the President would have no powers to commit an accused to a mental hospital directly.

The second scenario under which the appellant falls was provided for under Section 166 which states:-

“166. (1) Where an act or omission is charged against a person as an offence, and it is given in evidence on the trial of that person for that offence that he was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission.”

Once again, where the trial court finds that the accused person was legally insane when he committed the crime it has to report the case for the direction of the President, who may then order that the accused person be detained in a mental hospital, prison or other suitable place of safe custody. The rest of what should follow thereafter is provided for in the subsequent sections.

We emphasize that it is the duty of the trial court to be satisfied through evidence that the accused person did the act charged but was insane at the time he did it.

From the many instances we have enumerated, we have come to the conclusion that the learned Judge failed to see that the conduct of the appellant could not have been that of a normal person. Having correctly found that the appellant committed the office of murder and convicting him, the learned Judge ought not, as was properly conceded before us by Mr. Monda, to have imposed a term of imprisonment but instead should have made a special finding of guilty but insane and ordered for his detention in custody pending the President’s further orders.

To the extent that the sentence was unlawful, we set aside the 30 years imprisonment imposed and substitute it with a special finding of guilty but insane and direct that the appellant be kept in custody at Shimo La Tewa Prison pending the President’s order.

We so order.

Dated and delivered at Malindi this 30th day of September 2015.

ASIKE MAKHANDIA

………………………………..

JUDGE OF APPEAL

W. OUKO

……………….…………….

JUDGE OF APPEAL

K. M’INOTI

………………………………..

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR