[1952] EACA 287

## ો 64

# **CRIMINAL REVISION**

#### Before WINDHAM, J., AND CONNELL, J.

REX, Prosecutor

ν.

## KÍBIRÓ s/o KARIOKI. Accused

### Criminal Revision Case No. 94 of 1951

(Appeal from the decision of the First Class Magistrate's Court at Fort Hall-A. B. Simpson, Esq.)

Insanity—Penal Code, section 13—Absence of medical evidence.

The accused having been found guilty of arson by the First Class Magistrate, Fort Hall, was also found to have been insane as to be not responsible for his action. There was no medical evidence as to the accused's mental state in April when the crime was committed. Medical evidence showed no signs of insanity from 28th May to date of trial in August. The accused had been placed under observation as a suspected lunatic between 31st January and 6th February, when he was discharged as normal. The only evidence of the accused's mental state at the time the crime was committed was that of accused himself corroborated by a defence witness who stated she saw accused at the time of the crime "behaving like a drunk man, tottering about" and that he was "known in our village as a man who has mad fits".

Held (29-1-52).—Medical evidence is not essential to prove insanity and a Court of Appeal will only upset the Court of trial's finding on that issue if satisfied that it was quite unreasonable on all the evidence.

Cases referred to: Rex v. Dart, 14 Cox 143, followed; Rex v. Rivett, 34 Cr. App. Rep. 87, followed.

Templeton, Crown Counsel (Kenya), for Crown.

ORDER.—This case comes to us in revision, for the determination of the point whether the learned trial Magistrate, having found the accused guilty of arson as charged, was justified in going on to hold that, on the evidence, he was insane at the time so as not to be responsible for his action, under section 164 of the Criminal Procedure Code. The crime was committed on 12th April, 1951. The accused was tried in August, 1951. There was no medical evidence as to the accused's mental state in April, 1951, the medical officer who testified stating merely that there were no signs of insanity in him from 28th May, 1951, onwards. The accused had been placed under medical observation at Fort Hall as a suspected lunatic between 31st January and 6th February, 1951, and was discharged as normal on the latter date, there being no evidence whether he was normal or not during that week. The accused's father testified on him that "he is not mad". A witness Wanjohi Wabugi, called for the defence and whom the Court believed, stated that she saw the accused at the time of the crime "behaving like a drunk man, tottering about" and that he was "known in our village as a man who has mad fits", and that once before, at the beginning of 1951, he was "bad" and had to be brought to Fort Hall "staggering about and vacant looking". The accused himself, who gave evidence, denied at first<br>that he had committed the arson, but later said "I just don't know if I burnt them" (i.e. the huts "or not. My head was very bad at the time..., I had trouble with my father as he bewitched me and made me mad... This was in May last year.... I woke up in Fort Hall and was informed I had burnt huts.... I began having mad fits last year".

Upon the above evidence and after observing and commenting upon the demeanour of the accused in the box, the learned Magistrate held that when he committed the arson the accused was insane so as not to be responsible for his action. On carefully considering the evidence, and noting the fact that the Magistrate accepted the evidence of the accused himself and of the witness Wanjohi on the subject of the accused's mental state, we are of the opinion that on the available evidence, the learned Magistrate cannot be held to have been wrong in holding that at the time when he committed the arson the accused was temporarily insane and did not know what he was doing. Although the learned Magistrate did not in his judgment mention the provisions of section 13 of the Penal Code, it would seem clear that he had them in mind and was making a finding that the accused was at the time, through a disease affecting his mind, incapable of understanding what he was doing, and was for that reason not criminally responsible for his act. It is for an accused person to prove, on a balance of all the evidence, that he falls within the ambit of section 13. In the present case the only evidence of his mental state at the time when the crime was committed in April, was his own, corroborated by that of Wanjohi, both of whom the Magistrate believed. The medical evidence that the accused was same on 6th February and again on 28th May would have little bearing on his mental state on 12th April if, as was the defence contention, he was not permanently insane but subject to fits of insanity. Nor is medical evidence essential to prove insanity (Rex v. Dart, 14 Cox 143). In any event it is ultimately for the jury (here the Magistrate in his capacity as judge of facts) and not for medical men, to determine the issue of sanity; and a court of appeal will only upset the Court of trial's finding on that issue if satisfied that it was quite unreasonable on all the evidence (*Rex v. Rivett,* 34 Cr. App. Rep. 87), and not merely because, it feels it might have made a different finding had it been trying the case itself. Notwithstanding the existence of enmity between the accused and his father whose huts he burnt down, and notwithstanding the apparent deliberation with which the accused prepared and executed his act of arson, we are unable to hold that the learned Magistrate's finding was so unreasonable as to justify our interfering with it. We therefore decline to interfere with his findings in this case or with his order under section 164 of the Criminal Procedure Code. We further direct that the Governor be supplied with a copy of this Order for such. action as he may deem desirable.