https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1072

LMI v Republic (Criminal Appeal 12 of 2013) [2026] KECA 1072 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1072 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 12 of 2013 K M'Inoti, S ole Kantai & A Ali-Aroni, JJA May 29, 2026 Between LMI Appellant and Republic Respondent (Appeal from the judgment of the High Court of Kenya at Nyeri (Sergon, J.) dated 6th July 2012 in HCCC No. 13 of 2008) Judgment 1.This appeal has caused us considerable anxiety whether during his trial, the appellant, LMI, appreciated the process he was being taken through and whether, because of his mental condition, he received a fair trial as promised by Article 50 of the Constitution. The appeal also brings to the fore the fervent and solemn duty that reposes in our doctors, and whether in this case it was taken up with the seriousness it deserves. 2.The appellant was tried and convicted by the High Court at Nyeri (Sergon, J.) for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The information on which his prosecution was based stated that on 12th February 2008, at Kirembu Village in the present day Murang’a County, he murdered his father, HIM. Largely because of the appellant’s mental condition, his trial took almost five years from 26th February 2008 when he was first presented to the court to 18th October 2012 when he was sentenced to death. His appeal has taken an even longer period. 3.The trial of the appellant opened and proceeded up to defence before Makhandia, J. (as he then was). The evidence against him was adduced by 10 witnesses and was as follows. FMI (PW2), a younger brother of the appellant, who at the material time was about 18 years old, informed the court that on the material day, he was sleeping in the same house with his mother, AM and the deceased. At about 6.00 am the deceased woke up to answer a call of nature. Suddenly PW2 heard screams outside and he rushed out in the company of his mother. Daylight had broken and he could see clearly. He saw the appellant running away from the scene carrying a fork jembe, which he threw away next to the toilet. He also saw the deceased lying down about 20 meters from the house, bleeding from the head, mouth and nose. 4.The incident was reported at Murang’a Police Station after which the deceased was taken to Murang’a District Hospital, but succumbed on arrival. The body was moved to the mortuary, and in the company of neighbours, they went looking for the appellant who had disappeared. He was arrested the next day hiding in the forest and taken to the chief and thereafter to the police. The witness identified the fork jembe which he stated belonged to the accused. 5.AMK (PW3) was the wife of the deceased and the mother of the accused. Her evidence was similar to that of PW2, only that she got at the scene slightly earlier and saw the appellant hitting the deceased with a fork jembe. When she screamed, he threw the jembe away and escaped. She confirmed that the sun was rising and that there was sufficient light to enable her identify the two people, including how the appellant was dressed. In addition to bleeding profusely, the deceased had a fractured hand. 6.The witness further testified that in October 1987 the appellant had cut up her radio and threatened to kill her as a result of which he was arrested, charged and sentenced to 6 months imprisonment. However, he was released on presidential clemency before serving the full term. It was her evidence that the appellant had been acting normally and that he had never been treated for mental illness. 7.FMM (PW4), a brother of the deceased and uncle to the appellant, responded to the screams that fateful morning and found the deceased lying down injured and bleeding. His home was within the same shamba as that of the deceased. The rest of his evidence and that of Edward Mwangi Gitutu (PW5) and Francis Mukaru Mbaa (PW6), was similar to that of PW2 and PW3. PW4, together with Joseph Kamau Mwangi (PW1) identified the body of the deceased for postmortem. 8.Samuel Owino Ong’ang’a (PW8), a consultant psychiatrist based at Nyeri Provincial General hospital testified that on 21st February 2008, he examined the appellant and established that he was normal at the time and that he had never suffered mental illness. He therefore formed the opinion that he was fit to plead. The witness did not testify to having examined the appellant any other time. 9.Florence Nyambura (PW9) testified how she recovered the blood-stained fork jembe, which she identified in court. PC Musembi (PW10) narrated to the court how he collected the appellant from the Gitugi Chief’s Camp after he was arrested by members of the public, and escorted him for psychiatric examination. Subsequently, he went for the postmortem examination at Murang’a District Hospital which was conducted by Dr. Mwango. 10.The postmortem report showed that the deceased had suffered fractured right parietal bone with skull embedded into the brain matter; cut on the vertex of skull, bleeding from the left ear; and destroyed brain on the right cerebral hemisphere. The doctor formed the opinion that the cause of death was severe brain injury. PW.10 was allowed to produce the postmortem report, without any objection from the appellant’s advocate, because the court was informed that the doctor could not be availed without undue delay. He also produced the fork jembe as an exhibit. 11.When he was put on his defence, the appellant elected to give a sworn defence and call no witnesses. On the date scheduled for the defence hearing, namely 27th January 2010, the appellant however, changed his mind and opted to give unsworn defence and to call no witness. 12.The appellant’s defence was as follows, verbatim:“I am called LMI. I was a businessman in Nairobi. I sued to sell mitumbas. I know the deceased. He was my father. On 12/02/08 I woke up at 6.00 am. I met my mother going to fetch water from a river. At the same time, the deceased had gone to attend to a call of nature. I waited for him to come out of the toilet. I was armed with a fork jembe. So, when he came out, I attacked him and killed him. I hit him on the head with the fork jembe. He did not provoke me. I admit that I killed my father. I did so deliberately. It was not accidental. I was not even annoyed with him. I killed him because when I came home from Nairobi, he accused me of damaging his radio. He caused my arrest by Nyakianga Police. I was thoroughly beaten by the police officers. I was thereafter charged, tried an convicted by Kangema court and sentenced to 6 months. I was however released on presidential amnesty before I could finish the term. I was not bitter when I came back, but I decided to kill the deceased. I killed him because he caused my arrest, I was beaten and later jailed. I have no remorse.” 13.The court was taken by surprise by this turn of events and noted that the appellant neither appeared to know what was going on, nor what he was saying. The learned judge further noted that the appellant appeared to be mentally challenged, notwithstanding the report of the psychiatrist to the contrary. The court then referred to various previous incidents in the course of the proceedings pertaining to the appellant’s mental condition, which we shall consider later. 14.The appellant’s counsel expressed the view that he had a mental problem and urged the court to proceed under section 280 of the Criminal Procedure Code. On his part, counsel for the respondent stated that the appellant was admitting the offence, even without the prosecution evidence and that twice, medical experts had said that he was fit to plead. He contended that the hands of the court were tied by the said medical evidence but admitted that there was a possibility of a relapse on the part of the appellant. Like the appellant’s counsel, he urged the court to resort to section 280 of the Criminal Procedure Code. 15.In a ruling dated 29th January 2010, the court expressed itself as follows:I have carefully listened to both counsel. In respect of what I have said hereinabove, I an convinced and have reason to believe that the accused is of unsound mind and is consequently incapable of making his defence. The accused is unkempt, closely(sic) and keeps talking or muttering to himself. In the course of this trial, he has been in and out of a mental institution severally. He has absolutely no idea of what is expected of him in this court, more particularly with regard to his defence. When he admitted to the charge in his defence, his counsel, counsel for the State and myself were pleasantly surprised. Much as psychiatrists have twice returned a verdict that the accused is fit to stand trial, the accused may, as the trial progressed have relapsed as correctly pointed out by Mr. Orinda. Consequently, I am of the opinion that the accused is of unsound mind and consequently incapable of making his defence. In accordance with section 162 of the Criminal Procedure Code, I postpone further proceedings in this case. I direct that the accused be detained at King’ong’o Prison. In terms of section 162(4) of the Criminal Procedure Code, I direct that the court record or a certified copy thereof be transmitted to the Minister for the time being responsible for prisons for consideration of by the President. Though counsel asked me to invoke the provisions of section 280 of the Criminal Procedure Code, I think that the section is inapplicable in the circumstances of this case. It can only be invoked where an accused has refused to plead, going by the marginal notes. That is not the case obtaining here.” 16.There is no indication from the record that the order by the learned judge as regards transmittal of the record to the Minister for the President’s consideration was ever complied with. Next, the appellant’s case was mentioned about one year and nine months later, on 28th September 2011 before Sergon, J. when the court was informed that there was a report indicating that the appellant was mentally fit. 17.The case came up for hearing of the defence on 24th April 2012 when the court explained the provisions of section 200 of the Criminal Procedure Code to the appellant, who elected to continue with the case from where Makhandia, J. had left. This time round, the appellant gave sworn defence where he stated as follows, verbatim:I am called LMI. I come form Mathioya, Murang’a. I was a business man before I was arrested. I know HIM, the deceased. He was my father. I had picked up a quarrel with him. He had removed my property form my house. He threw out my property and evicted me before locking the house. My deceased father had sold most of the land without consulting me. I did not plan to kill him on 12.02.08. On that day in the morning, I was asleep. I had put up a new house. No one knew I was in the house. I heard my neighbour called Hellen call my mother to accompany her to fetch water. The two ladies left to fetch water. I saw my father go to relieve himself in the toilet. I took up a fork jembe and waited for him. I hit him on the head. I then fled the homestead to hide in River Mathioya. I came back at 8.00 pm to pick my stuff and left for Chui Shopping Center. I spent the night at Chui. In the morning I left for Mathioya. On my way to Mathioya I was spotted and arrested by members of the public who took me to Gitugi Police Post where I was re- arrested.” 18.By the impugned judgment, the court noted that the deceased had admitted the offence in his “unsworn defence.” That was not entirely correct because the appellant had given sworn defence and was even subjected to cross-examination. The court further found the offence of murder proved, convicted the appellant and sentenced him to death. 19.The present appeal is premised on seven grounds which the appellant’s counsel reduced to five, contending that the High Court erred by convicting the appellant without properly addressing his mental fitness to stand trial; by failing to consider the defence of provocation and diminished responsibility; by relying on irregular confessions; by holding that the offence of murder was proved beyond reasonable doubt; and by meting out the death sentence which was excessive and unconstitutional. 20.In support of the appeal, the appellant’s learned counsel, Mr. Mshila submitted that the court directed the appellant to be subjected to psychiatric examination and more than two reports were produced stating that he was fit to plead. Counsel contended that the duty of the court was not limited to accepting the reports, but to interrogate them and satisfy itself that the appellant was capable of forming the requisite mens era at the time of commission of the offence and that he was fit to stand trial. It was contended that sections 11 and 12 of the Penal Code distinguishes between the mental condition of an accused person at the time of commission of the offence and at the time of trial. 21.It was further contended that mental illness was not static and that an accused person who appears mentally fit could be experiencing a lucid moment, which would not negate the fact that at the time of commission of the offence, he had no capacity to form mens rea. Counsel cited the judgments of the High Court in Republic v. Mohamed Abdow Mohamed [2013] eKLR and the decision of this Court in Leonard Mwangemi Munyasia v. Republic [2015] eKLR in support of the proposition that psychiatric evidence must be assessed at the time of commission of the offence and at the time of trial and that once evidence of mental incapacity is raised, the trial court had a duty to scrutinise the issue closely. It was contended that the trial court did not seriously examine or analyse the psychiatric reports and that a safe conviction would have been for manslaughter in view of the possibility of the appellant’s diminished responsibility. 22.On the second ground it was contended that the appellant had raised the defences of provocation and diminished responsibility when he contended that there was deep-seated quarrel with the deceased over the appellant’s eviction from home and sale of land by the deceased without consultation. It was contended that the appellant was annoyed by these actions when he attacked the deceased. It was further submitted that when there was evidence of provocation on the record, the court was duty bound to consider it. In support, counsel relied on Wanjema v. Republic [1971] EA 493 and Republic v. Gachanja [2001] eKLR. 23.As regards diminished responsibility, counsel submitted that the psychiatric reports pointed to the possibility of diminished responsibility under section 13 of the Penal Code, which did not require total incapacity but partial impairment of the mind, affecting the ability of the appellant to appreciate the nature of his actions or to control his impulses. For that reason, counsel reiterated that the appellant should have been convicted of manslaughter. 24.We cannot exactly follow the appellant’s arguments as regards what counsel called irregular confessions. If we understood counsel correctly, he contended that there was a violation of section 25 of the Evidence Act and the Evidence (Out of Court Confessions) Rules, 2009 under which a confession is only admissible if made before a magistrate or a police officer not below the rank of Chief Inspector and in the presence of counsel for the accused. As far as we can tell from the record, the trial court did not rely on any extrajudicial confession, but only the admissions made by the appellant while presenting his defence in court. 25.On whether the offence of murder was proved beyond reasonable doubt, it was submitted that the burden was on the prosecution, which it did not discharge. It was contended that the evidence of PW2 and PW3, who claimed to have been eyewitnesses, was inconsistent regarding the recovery of the fork jembe and the circumstances of the appellant’s arrest and that the trial court did not attempt to resolve the contradictions. It was further submitted that the prosecution did not prove malice aforethought beyond reasonable doubt. 26.Turning to the last ground on sentence, counsel relied on Francis Karioko Muruatetu & Another v. Republic [2017] eKLR, and submitted that the Supreme Court held that the mandatory nature of the death sentence was unconstitutional. He added that although there were mitigating circumstances such as the appellant being a first offender and remorseful, the court treated the death sentence as a mandatory sentence. It was also submitted that the appellant has been in prison for about 17 years which was sufficient punishment. 27.Mr. Naulikha, Assistant Director of Public Prosecutions, opposed the appeal on behalf of the respondent. He submitted that all the elements of the offence of murder, namely, death of the deceased, the cause of the death, the unlawful act that led the death, and presence of malice aforethought were all proved beyond reasonable doubt. It was contended that the death of the deceased was proved by PW2, PW3 and PW10, and that the postmortem report showed the cause of death of the deceased. As regards who inflicted the injuries from which the deceased died, counsel submitted that PW2 and PW3 saw the deceased attacking the deceased and running way from the scene, and that in his defence, the appellant admitted to having attacked the deceased. On malice aforethought, it was submitted that by hitting the deceased with the fork jembe several times on the head, the actions of the appellant fell within the definition of malice aforethought under section 206 of the Criminal Procedure Code and as explained in Nzuki v Republic [1993] KLR 171 and Republic v Henry Kaithia [2022] KLR. 28.Lastly, on the sentence, counsel relied on Bernard Kimani Gacheru v Republic [2002] KLR and submitted that sentencing was at the discretion of the trial court and that an appellate court will not interfere unless the sentence is manifestly excessive, the trial court overlooked material factors or took into account immaterial factors, or acted on wrong principle. Counsel urged that taking into consideration all the circumstances, including that the deceased was the owner of the land in question, that he had no duty to consult the appellant, the fact that the deceased was unarmed and posed no threat to the appellant, and the nature of the injuries inflicted, the sentence that was imposed by the trial court was deserved. Counsel urge us to dismiss the appeal. 29.We have carefully considered this appeal and in particular the record of the proceedings. What comes out clearly is that throughout his trial, the court had serious reservations about the appellant’s mental condition, notwithstanding a psychiatric report claiming that he was fit to plead. 30.When the appellant appeared before Kasango, J. on 24th July 2008, the prosecutor informed the court that there was a medical report from the hospital indicating that the appellant was fit to plead. He indicated that it was a “review report” dated 22nd July 2008. For it to have been a review report, it suggests that there was an earlier deport, but it was not disclosed to the court what that report had found. 31.When the charge was read over to him, the appellant responded that it was not true and a plea of not guilty was entered. Immediately after, the learned judge made the following order:“I have observed, and the state counsel and Mr. Mwangi, Advocate concur that the accused does not look as though he is mentally fit. In a question whether he was guilty or not put by the court clerk, the accused first and second time said yes. His counsel said that was contrary to discussion he had had with his client. The court entered a plea of not guilty. I do now order the accused to be taken to Mathare Hospital, Nairobi for a complete review of his mental status. Matter stood over to 4/11/08 for mention to enable the report of Mathare Hospital to be availed before court.” 32.When the case came up in court on 10th February 2009 before Makhandia, J. the prosecutor informed the court that there was a medical report dated 22nd July 2008, which was overtaken by events and that another psychiatric report was needed. Of course, the report that the prosecutor was referring to was a report antedating the order of Kasango, J. made on 24th July 2008. 33.On 13th March 2009, the court was informed that there was a report from Dr. Owino, consultant psychiatric confirming that the appellant was fit to plead. It was not indicated where Dr. Owino was based and a question arises whether there was compliance with the order of Kasango J. that specifically directed the appellant to be taken to Mathare Hospital Nairobi, for a complete review of his mental status. 34.In his evidence in court on 14th July 2009 when he testified as PW8, Dr Owino informed the court that he examined the appellant on 21st February 2008 at Nyeri Provincial Hospital when he formed the opinion that his mental status was normal. Three things stand out from all this. The first is that the prosecution was relying on a report by Dr. Owino which was made on 21st February 2008, about five months before Kasango, J. directed on 24th July 2008 that the appellant’s mental status should be fully reviewed at Mathare Hospital. Secondly, the report the prosecution was relying on was the very report it had told the court had been overtaken by events. Thirdly, there simply was no compliance with Kasango, J.’s order and therefore the appellant was not subjected to a complete review of his mental status as ordered by the court. 35.It is not surprising that from the record, the appellant’s advocate informed the court that he had misgivings about Dr. Owino’s report. Nevertheless, plea was taken again. 36.When the charge was read to the appellant, he responded: “It is true.” He was advised by the Court twice that the offence he was charged with carried a death sentence. The Appellant confirmed that he understood the consequences but stated that he would nevertheless plead guilty. Accordingly, the court entered a plea of guilty. 37.When the facts were read to him, he responded that the facts were not correct and the court entered a plea of not-guilty once more. 38.As we have already noted, the prosecution called its witnesses and when the appellant was put on his defence, he proceeded in the manner we have set out, leading to the order of Makhandia, J. dated 29th January 2010 committing the appellant under section 162(4) of the Criminal Procedure Code. As we noted earlier, there is no indication from the record that the order by the Makhandia, J. as regards transmittal of the record to the Minister for the President’s consideration was ever complied with. 39.When Sergon J. took over the matter, on 28th September 2011, the record reads simply as follows:“There is a report indicating that the accused is mentally fit. Mention on 8th November 2011.” 40.The date and particulars of that report, and who prepared it and at which place, were not given to the court. For all we can tell from the record, it could be the very same report prepared by Dr. Owino on 21st February 2008 and which the court expressed doubts about before directing the appellant to be reviewed at Mathare Hospital. 41.From the detailed history of the proceedings we have set out above, the issue of the appellant’s soundness of mind to appreciate his trial still looms large. Two specific orders of the court directed the appellant to be reviewed at Mathare Hospital in Nairobi, which clearly was not done. Instead, the prosecution kept relying on a medical report made from Nyeri General Hospital long before the orders of the Court referring the appellant to Mathare Hospital. 42.In these circumstances it is not surprising that the appellant manifested even to justices Kasango and Makhandia behaviour that made them question his soundness of mind, one moment pleading not guilty, the next pleading guilty, thereafter denying the facts, and ultimately admitting the offence. From the way the appellant’s prosecution was conducted, and in particular the failure to comply with express court orders on evaluation of his mental status, we have absolutely no assurance that the appellant appreciated what he was going through. Flowing from that, neither do we have any assurance that he obtained a fair trial as demanded by the Constitution. 43.In Leonard Mwangemi Munyasia v. Republic [2015] KECA 382 (KLR), this Court emphasised the duty of the court to have absolute assurance about the mental status of an accused person when he committed an offence, and we would add, even when he is under trial. The Court rendered itself as follows: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… 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.” 44.What we have said above is enough to dispose of this appeal, without addressing the other grounds raised and addressed by the parties. Taking into account the period that the appellant has spent in jail from the date of his arrest, the fact that throughout the trial he was in remand, we allow this appeal, quash his conviction, set aside the sentence of death imposed upon him and direct that he shall be set at liberty unless he is otherwise lawfully detained. It is so ordered. DATED AND DELIVERED AT NYERI THIS 29TH DAY OF MAY, 2026.K. M’INOTI……………JUDGE OF APPEALS. ole KANTAI…………………JUDGE OF APPEALA. ALI-ARONI…………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR