[2022] KEHC 2382 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL CASE NO. 9 OF 2018

REPUBLIC .......PROSECUTOR

-VERSUS-

SNW.............................ACCUSED

JUDGMENT

1. SNW was charged with the offence of murder of CHARITY WANGARI WACHIRA DECEASED. When the accused was presented before court for the first time, on 4th December 2014 for plea, plea was deferred because he was not mentally fit to plead. The court on that day ordered the accused to be taken to Mathari National Teaching & Referral Hospital (Mathari Hospital). The accused continued with his treatment for his mental health at that hospital and was not fit to plead until 11th December, 2017.

2. The factual background of this case in that on 8th November, 2014 the accused’s mother was at her home at Ngorongo village in Chania Division, Gatundu North in the company of her two grandchildren, one of them being the deceased. It was around lunch hour. The accused’s mother heard the accused making loud noise. She also heard the accused say: -

“I will kill somebody.”

3. The accused’s mother, who was drawing water from the outside tap saw the accused go to the door of her house where her grandchildren were. She saw the accused get hold of the deceased who was 5 years old. The accused was still saying he would kill someone. She saw the accused hold the deceased by the neck and hit the deceased against the grounds. Accused’s mother and the other grandchild raised an alarm and the accused’s brother, Paul Waweru and other neighbours responded by going to accused mother’s home. The deceased was first taken to a local health center where she was referred to Thika Level 5 Hospital. The deceased was pronounced dead on arrival at that hospital.

4. The other granddaughter narrated similar evidence of how the accused found her and her sister, the deceased. The accused got hold of the deceased and began to strangle her. She also saw the accused hit the deceased.

5. The accused’s mother and two brothers confirmed that the accused had for many years suffered with mental illness. The accused’s mother stated that two days prior to attacking the deceased the accused had failed to take medicine for his mental health. One of the accused’s brother prosecution’s witness number 3, (PW3), who lived in Nairobi agreed to have received the accused on the material date because the villagers wanted to lynch him for having killed the deceased. PW3 stated that when accused was brought to him in Nairobi, he took him to Mathari hospital since he previously was a patient there. The hospital was unable to accommodate the accused that day and it was then that this brother surrendered the accused to the police.

6. The postmortem report of the deceased shows that the deceased was injured on the skull; she suffered fracture and tear to the brain. The cause of deceased’s death was head injury consistent with assault.

ANALYSIS

7. The accused, according to the Mathari Hospital reports before court, is that he is a long sufferer of schizophrenia. The medical report dated 29th June, 2021 states of accused: -

“Requires long term medication and follow up for schizophrenia (a chronic relapsing disorder) characterized by bizarre beliefs and perception without stimulus…

Requires long term treatment and follow-up.”

8. The accused’s state of mental ill health was evident when he offered his unsworn statement of defence. When accused was asked by his counsel to inform the court what he wanted to say in is defence the accused responded thus: -

“I can’t recall about the case. I am under medication … and I don’t know for what.”

9. I noted in the proceedings that during his trial the accused looked confused and blank. It will be recalled that the accused’s mother stated that the accused had been treated for his mental ill health for a long time and on the day he attacked the deceased, the accused had refused to take his medication for two days.

10. It follows that although the prosecution proved death of deceased, proved the cause of death of the deceased and that the deceased met her death as a result of an unlawful act of the accused, prosecution however did not prove that the accused committed the unlawful act of attacking the deceased with malice aforethought. The prosecution’s witnesses, members of the accused’s family and the Mathari Hospital medical report clearly show that the accused was, when he committed the offence, suffering from a defect of reason from a disease of the mind. The accused lacked in the court’s view the necessary mens rea. The accused as his mother stated had been hospitalized at Mathari Hospital for treatment for his mental illness. Although the accused assaulted the deceased which led to the death of the deceased, the accused was insane when he committed that offence. It is for that reason that I find that the provisions of Section 166(1)(2) and (3) of Criminal Procedure Code is relevant. That section provides: -

““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

(2) When a special finding is so made, the court shall report the case for the order of the President, and shall meanwhile order the accused to be kept in custody in such place and in such manner as the court shall direct.

(3) The President may order the person to be detained in a mental hospital, prison or other suitable place of safe custody.

DISPOSITION

11. In view of the above finding, I hereby find S.N.W. guilty of murder as charged but I find that he was insane when he committed the offence in accordance with Section 166(1) of the Criminal Procedure Code.

12. Consequently, by virtue of Section 166(2) of the Criminal Procedure Code,the court will report the case for order of H.E. the President and in the meanwhile, this Court hereby orders S.N.W. (the accused) to be detained at Kamiti Prison, or at such other prison or other facility where he shall receive specialized treatment as necessary.

13. I order that the proceedings herein be typed, and a certified copy of the record and the notes of this Court filed and this Judgment be transmitted to the Government Ministry concerned for consideration by H.E. the President.

JUDGMENT DATED and DELIVERED AT KIAMBU THIS 10TH DAY OF FEBRUARY, 2022

MARY KASANGO

JUDGE

Coram:

Court Assistant : Mourice

Accused : S.N.W. : - Present

For accused : -Mr. Njehu

For DPP :- Kasyoka and Benjamin

COURT

JUDGMENTdelivered virtually.

MARY KASANGO

JUDGE