[2017] KEHC 2032 (KLR)

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL CASE NO 3 OF 2012

(FORMERLY NYERI HC CRIMINAL CASE NO 23 OF 2010)

REPUBLIC…………………………………..….......PROSECUTOR

VERSUS

BEN NGARI MUTWIRA (alias KIEME)…………...…....ACCUSED

J U D G M E M T

1. The Accused herein, Ben Ngari Mutwira (alias Kieme) is charged with murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged in the information dated 27/07/2010 that on 30/06/2010 at Kiriaini Township in Murang’a North District within Central Province, he murdered one Robert Ngure Mwangi.

2. The Accused’s plea was originally taken at Nyeri on 27/09/2010. He pleaded not guilty. However, on 12/07/2011 a new counsel for the Accused pointed out to the court that a police medical report (P3) on the Accused supplied by the prosecution showed that the Accused was not fit to plead. The court then ordered for him to be examined by a psychiatrist and a report filed.

3. A medical report dated 12/08/2011 certified the Accused mentally fit to stand trial, and on 08/02/2012 his plea was taken afresh. He pleaded not guilty.

4. By an order entered on 14/11/2012 this case was transferred from the High Court at Nyeri to this court. On 25/03/2013 this court (Ngaah, J) directed that the Accused be medically examined afresh as to his mental status at Murang’a District Hospital. On 09/10/2013 the court ordered that he be taken to Mathari Mental Hospital, Nairobi for such medical examination.

5. On 10/12/2013 it was reported to court that the Accused was still undergoing psychiatric treatment at Mathari Mental Hospital.

6. On 24/02/2014 the court noted a medical report dated 18/12/2013 from Mathari Mental Hospital that certified the Accused fit to stand trial.

7. Eventually trial of the case commenced on 23/09/2015. The prosecution called 4 witnesses – Milka Muthoni Mwangi (PW1), a sister of the Deceased; Peter Gatava Muthoga (PW2), a brother-in-law of the Deceased; Emmah Waithira Mwangi (PW3), another sister of the Deceased; and police constable Emily Adhiambo Oloo (PW4).

8. PW4 produced in evidence the post-mortem report on the body of the Deceased (Exhibit P1) and the Accused’s police medical report (P3) Exhibit P2). She produced the documents under section 77 of the Evidence Act, Cap. 80 without objection by the Accused’s defence counsel.

9. The Accused gave a brief unsworn statement and did not call any witness. He stated that he did not know why he was charged.

10. I have considered the testimonies of the prosecution witnesses and the Accused’s unsworn statement. I have also read the two exhibits. Finally I have considered the submissions of the learned counsels for the Republic and the Accused.

11. It is common ground, and it has been proved beyond reasonable doubt, that on 30/06/2010 the Accused viciously attacked the Deceased under pretext of rescuing PW3 and inflicted upon him injuries that resulted in the Deceased’s death. It is not in contention at all that the Accused killed the Deceased.

12. There is also ample evidence that at the time the Accused killed the Deceased he was of unsound mind. This evidence is in the testimonies of PW1, PW2 and PW3. In fact the Accused was known for a long time before he killed the Deceased as the village madman or lunatic. He would be on an off medication and treatment with lucid intervals every so often, when apparently he would pose no danger to anyone. The medical evidence (Exhibit P2) was also testimony to the Accused’s insanity.

13. Both learned counsels stated that they would be happy with a verdict of guilty but insane.

14. There is a rebuttable presumption of sanity under section 11 of the Penal Code. In the case of the Accused in this case, that presumption of sanity has been amply rebutted by evidence placed before the court by the prosecution witnesses. I am satisfied that when the Accused killed the Deceased he was insane.

15. Insanity is defined under section 12 of the Penal Code 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.”

16. I am satisfied that at the time he killed the Deceased the Accused was suffering a disease of the mind and was incapable of understanding what he was doing. He was therefore not criminally responsible for killing the Deceased on account of his insanity.

17. I therefore make a special finding under section 166(1) of the Criminal Procedure Code, Cap 75 that the Accused was guilty of killing the Deceased, but that he was insane when he did so.

18. Consequently therefore, this case shall be reported for the order of the President of the Republic of Kenya. In the meantime the Accused shall be held in custody at Kamiti Maximum Security Prison. It is so ordered.

DATED SIGNED AND DELIVERED IN OPEN COURT AT MURANG’A

THIS 3RD DAY OF NOVEMBER 2017

H P G WAWERU

JUDGE