[1939] EACA 133

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya); Whitley, C. J. (Uganda); and Sir Charles Law, C. J. (Zanzibar)

# REX, Respondent (Original Prosecutor)

#### $\boldsymbol{\nu}.$

# KAMAU s/o NJEROGE, Appellant (Original Accused)

## Cr. App. No. 69/1939

(Appeal from decision of H. M. Supreme Court of Kenya) Criminal Law—Murder—Insanity.

Held $(2.8.39)$ .—That in considering the second branch of the test of the defence of insanity, namely if the accused knew the physical nature of the act did he know that he was doing wrong, the standard to be applied is<br>whether he knew that according to the ordinary standard adopted by a reasonable man the act was right or wrong or that the act was wrong in law. (Rex $v$ . Codere, 12 Cr. App. Rep. 21, approved.)

Appellant absent unrepresented.

Phillips, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN).—The one question that falls to be considered in this appeal is whether the appellant who has been clearly proved to have murdered an Indian Jesang Baichand Patel was at the time he committed the murder legally insane. Was he suffering from disease of the mind at the time and as a result was he incapable of understanding what he was doing or of knowing that he ought not to do the act? The burden of proving this incapacity is on the defence and the appellant will be deemed to have discharged that burden if he has shown that the preponderance of evidence supports a defence of insanity. As has been held by this Court in Rex v. Noormohamed Kanji 4 E. A. C. A. 34 quoting the decision of the Privy Council in Sodeman v. Rex (1936) 2 All E. R. 1138 "It is certainly plain that the burden in cases in which an accused has to prove insanity may fairly be stated as not being higher than the burden which rests upon a plaintiff or defendant in civil proceedings". Bearing in mind this principle the question is whether the burden of proving legal insanity has been established in this case. There seems little reason to doubt that the appellant at the time he committed the murder was suffering from some form of disease of the mind, that his mind in fact had been diseased for some years. There is evidence that over a period of years he had suffered from epileptic insanity but his mental disease does not appear to have been limited to that. If the murder had been committed under the influence of and at the time of an epileptic seizure that would be sufficient to justify a finding of guilty but insane; that is decided law. But the evidence does not support such a conclusion and we have to examine whether as a result of disease of the mind in other respects he was incapable of knowing that he ought not to have killed the Indian. The case was very fully and carefully tried by the learned trial Judge who naturally and properly was largely influenced in his decision that the appellant was not insame at the time by the clear statement the appellant made to the magistrate recounting his reasons for his act. The statement is as follows: —

"One day a stranger was at my house and I took 15 cents and leaving him at my house I went to the shop to buy some sugar. When I had bought it the Indian said 'You are bad people, you Kikuyu'. I said 'Why so?' He said 'Because even when you' are entertaining a guest you will not buy much to give him'. I replied 'I am a poor man, not rich like the Europeans'. The Indian said 'I have money and cigarettes and sugar'. I replied 'Yes but I have no more money and I do not want anything else'. The Indian said 'Let me show you', and he took out his cash drawer and put it on the counter and showed me the money. I said 'Why do you do this when you know I am a poor man?' The Indian said 'Go away, I do not want to hear more'. I went and as I got near the door the Indian abused me and called me a monkey. I took the sugar home and gave it to my mother and she cooked food for my guest. Having had some tea and drink the stranger got up to leave and I went with him a little way. I returned home and began to think deeply and went and got a knife and thinking—'Now the Indian showed me the money', and I went to the shop and looked at the clock there. The Indian went into his kitchen and I got under the counter. It was then 3 p.m. I slept there until nightfall and when I woke up the lamp was lit. The Indian went and got some food from the kitchen and came back and ate it in the shop. He then went to sleep in the shop. I got out from where I was lying, got a box of matches and lit a lamp. I went towards the cash box. The Indian got up saying 'Who is there?' I did not answer but struck him with my knife. I did not want to wound him, but only to keep him quiet so that I could take away the cash box. But the Indian went on shouting and people came up outside the shop. So I struck him again with the knife. The people outside waited to hear another shout, but heard nothing further. I picked up some clothes and a bag of money which was in a box and went off with them into the bush. I buried the money and hid the clothes in the bush. Then I went back home. Next day I saw a car come to the shop but I thought I will not run away, because even if $I$ am arrested the Indian showed me the money. I did not leave the house until next day when I went towards Dagoretti to get<br>a cow but I left it there. You, sir, would not show everyone your money; but the Indian showed me his. I have not left my house since I did this."

The following passage from the case of Rex v. Codere 12. Cr. App. Rep. 21 at pages 27 and 28 seems to us to apply forcibly to the present case.

"We then come to the second branch of the test namely if he knew the physical nature of the act did he know that he was doing wrong? . . . The question of the distinction between morally and legally wrong opens wide doors. In a case of this

kind namely killing, it does not seem debatable that the appellant could have thought that the act was not morally wrong judged by the ordinary standard when the act is punishable by law and is known by him to be punishable by law. It was suggested at one time in the course of the argument that the question should be judged by the standard of the accused, but it is obvious that this proposition is wholly untenable and would tend to excuse crimes without number and to weaken the law to an alarming degree. It is considered now that the standard to be applied is whether according to the ordinary standard adopted by a reasonable man the act was right or wrong ... once it is clear that the appellant knew that the act was wrong in law, then he was doing an act which he was conscious he ought not to do, and as it was against the law it was punishable by law; assuming therefore that he knew the nature and quality of the act he was guilty of murder and was properly convicted.... The difficulty no doubt arises over the words 'conscious that the act was one which he ought not to do' but looking at all the answers in McNaughton's case it seems that if it is punishable by law it is an act which he ought not to do, and that is the meaning in which the phrase is used in that case."

The question asked by the learned trial Judge at the conclusion of the doctor's evidence was a pertinent one "Do you think he was capable of knowing that he ought not to do it?" and the answer "I think he would probable have sufficient intelligence to understand that other people would think his action was a bad one" is against the accused.

The defence of legal insanity fails and the appeal is dismissed.