[1987] KECA 47 (KLR)
The Court of Appeal held that the High Court was correct in invoking section 166(1) and (2) of the Criminal Procedure Code, as the evidence, particularly the testimony of Dr Feks, established that the appellant was insane at the time of the offence and that there remained a risk of recurrence of mental illness. The...
Source-derived case information.
- Citation
- [1987] KECA 47 (KLR)
- Parties
- Appellant: Livingstone Ngure; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 167 of 1986
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Insanity Defence, Criminal Liability, Unlawful Killing, Mental Health in Criminal Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Livingstone Ngure
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the High Court was justified in invoking section 166(1) and (2) of the Criminal Procedure Code based on the evidence of insanity.
- 2 Whether the prosecution acted unfairly by adducing medical evidence of insanity, which the defence claims was within its province.
- 3 Whether the defence could have demonstrated that there was no risk of recurrence of mental illness, warranting the appellant's release.
Ratio Decidendi
The Court of Appeal held that the High Court was correct in invoking section 166(1) and (2) of the Criminal Procedure Code, as the evidence, particularly the testimony of Dr Feks, established that the appellant was insane at the time of the offence and that there remained a risk of recurrence of mental illness. The prosecution was entitled to adduce medical evidence to satisfy the court of the appellant's insanity, and the defence was not barred from presenting its own evidence. The statutory framework required the court to ensure the appellant's further supervision and safety, and the circumstances did not warrant setting the appellant at liberty. The principles in Regina v Picker were...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAKURU
CRIMINAL APPEAL 167 OF 1986
LIVINGSTONE NGURE………………………APPELLANT
V
REPUBLIC….………………………….………..RESPONDENT
JUDGMENT
The sole question of law in this appeal is whether the decision of the judge to invoke section 166(1) and (2) of the Criminal Procedure Code is warranted on the evidence.
It is common ground that at the time material to the offence the appellant was insane so as not to be responsible for the unlawful killing. The complaint advanced on behalf of the appellant as we understood it is that the prosecution acted unfairly in adducing the medical evidence upon which the High Court adjudged that the appellant was mentally sick at the time when he killed the three children. Mr Aminga urged that that particular evidence was within the province of the defence and that if the defence had had the opportunity to lead medical evidence, the defence would have demonstrated that there were no chances of the mental illness recurring and therefore that the court could exercise its discretion and set the appellant at liberty.
We say at the outset that we found the submission made on behalf of the appellant rather startling.
We take first the contention that somehow the defence would have persuaded the High Court to find that there was no risk of illness recurring. The evidence of Dr Feks, PW 5 was to the effect that the appellant would not know if the illness is developing further that,
“Even in future, if it were to recur he would not be able to help himself”.
It is not conceivable that there would be medical evidence suggesting that the appellant could be set at liberty without any risk before the illness which PW 5 diagnosed is treated and cured.
Secondly, the defence was not barred from calling their own medical evidence. The prosecution was required to prove intent and the nature of things the prosecution properly decided that it had become necessary to satisfy the court that the appellant was insane at the time he killed.
Thirdly, on the evidence the judge was bound to invoke section 166(1)(2) of the Criminal Procedure Code in order that further consideration, supervision and safety of the appellant could be ensured – vide subsections (5) (6) and (7) section 166: We are unable with respect, to agree with Mr Aminga that in the instant case the defence could have put the appellant’s case in such a strait-jacket as to preclude it from the provisions of section 166 of the Criminal Procedure Code.
Finally, the judgment inRegina v Picker [1970] 2 WLR 1038 to which we were referred raised the question what were the right principles to be applied in deciding whether to impose life sentence eg where the nature of the offence and the make up of the offender are of such a nature that the public require protection for a considerable time unless there is a change in the condition of the offender.
Here a statutory provision has to be applied to a person who acts under a state of insanity. Clearly the two set of circumstances are different one from the other.
The appeal is dismissed. That is the order of the court.
February 24, 1987
NYARANGI, PLATT & GACHUHI JJA