[2008] KEHC 571 (KLR)
The court held that without medical evidence regarding the accused's mental state at the time of the alleged offence, it would not be possible to make a proper finding under section 166 of the Criminal Procedure Code. Therefore, the interests of justice required that the prosecution be allowed to reopen its case to...
Source-derived case information.
- Citation
- [2008] KEHC 571 (KLR)
- Parties
- Applicant: Republic; Respondent: Margret Ngunya Makau
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 43 of 2003
- Procedural Posture
- Criminal Case / Ruling on Application to Reopen Prosecution Case to Call Psychiatrist
- Outcome
- Application to reopen prosecution case granted.
- Judges
- I Lenaola
- Legal Topics
- Insanity Defence, Criminal Procedure, Reopening Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Margret Ngunya Makau
Respondent
Procedural Posture
Criminal Case / Ruling on Application to Reopen Prosecution Case to Call Psychiatrist
Legal Issues
- 1 Whether the prosecution should be allowed to reopen its case to call a psychiatrist after closing its case.
- 2 Whether the absence of medical evidence on the accused's mental state precludes a finding under section 166 of the Criminal Procedure Code.
Ratio Decidendi
The court held that without medical evidence regarding the accused's mental state at the time of the alleged offence, it would not be possible to make a proper finding under section 166 of the Criminal Procedure Code. Therefore, the interests of justice required that the prosecution be allowed to reopen its case to call the psychiatrist. However, the court emphasized that the case should not be allowed to drag on indefinitely and that the reopening was strictly for the purpose of calling the psychiatrist to provide the necessary medical evidence.
Court Disposition
Application to reopen prosecution case granted.
Orders
- The prosecution is permitted to reopen its case for the sole purpose of calling a psychiatrist to testify.
- The case should proceed without undue delay.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Criminal Case 43 of 2003
REPUBLIC
VERSUS
MARGRET NGUNYA MAKAU
RULING
1. On 17. 1.2007, Sitati,J. ordered this case to proceed under section 166 of the Criminal Procedure Code which provide as follows:-
“(1) Where an act or omission is charged against a person as anoffence, and it is given in evidence on the trial of the person for that offence that he was insane so as not to be responsible for its act 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.”
2. On the same day, PW1, Eunice Wanza Musembi testified and hearing adjourned to 28. 2.2007. Thereafter, on every other occasion when it was listed for hearing, no witness was availed by the Republic and finally on 2. 7.2007, a year and behalf after the trial commenced, I granted the Republic the last adjournment in the matter and on 30. 9.2008, Mr. Wango’ndu for the Attorney General closed his case as he had no other witness to call. I set the case for submissions on 29. 10. 2008 and on that day , Mr. Omirera, Principal State Counsel applied for “setting aside” of the order closing the case for the Republic to enable the psychiatrist who examined the accused person to testify.
3. Mrs Mutua for the accused person stated that the trial had been dragging for far too long and there was sufficient evidence on record for the court to determine whether the accused person was insane at the time the offence was allegedly committed.
4. I have elsewhere above set out section 166 of the Criminal Procedure Code and I have considered the rival submissions on whether I should or I should not re-open the case for the Republic. My humble view is as follows;-
5. Without medical evidence as to the mental state of the accused at the time the offence was committed, it may not be possible to make any proper finding under section 166 aforesaid and all prior proceedings would be in vain. However, even as I make an order that the state should reopen its case with a view to calling a Psychiatrist, it cannot be that the case should be dragged ad infinitum as is apparent.
6. Orders accordingly.
Dated and delivered at Machakos this 14th day of November 2008.
Isaac Lenaola
Judge
In the presence of: Mr. Omirera for Republic
Isaac Lenaola
Judge