1. This appeal arises from the Ruling and order of R.N. Kimeu, Resident Magistrate given on 11.02.2025 in Kandara MCSO E038 OF 2022. The ruling relates to the decision to place the appellant to testify despite being allegedly a person suffering from mental disability.
2. The matter came to this court, on 12.03.2026, wherein, this court issued a warrant of arrest. The appellant was however bought on the mention date, he had no comprehension of what was going on. Though not in a vegetable state, he was closure there than to the land of the living. I lifted the warrant and gave a date for judgment.
3. The court must be cognizant that this is an interlocutory appeal hence facts are irrelevant for purpose of the appeal. Parties field mammoth submissions whose summary I shall deal with shortly. The appellant questioned the decision to declare the appellant fit to continue with the defence. He Stated that Dr Amos Kariuki was not qualified to conduct mental assessment the appellant argued that the report by Dr Kariuki was proper. They abhorred the finding of the court that Dr Kariuki was not a psychiatrist and thus not an expert. They relied on Section 2 of the Mental Health Act, defines a person with mental illness to mean:
a. A person diagnosed by a qualified mental health practitioner to be suffering from mental illness, and includes
a. A person diagnosed with alcohol or substance use disorder; and
b. A person with suicidal ideation or behaviour;
4. A mental health practitioner was defined as in Section 2 of the Mental Health Act:
A qualified and duly registered-
a. Psychiatrist under the Medical Practitioners and Dentists Act ( Cap. 253 );
b. Medical practitioner under the Medical Practitioners and Dentists Act;
c. Psychologist under the Counsellors and Psychologists Act ( No. 14 of 2014 );
d. Clinical officer under the Clinical Officers (Training, Registration and Licensing) Act ( Cap. 260 );
e. Counsellor under the Counsellors and Psychologists Act; and
f. Psychiatric nurse under the Nurses Act ( Cap. 257 );
5. They submitted that the court was plainly wrong in finding that Dr Amos Kariuki was not a medical a mental health practitioner, since he was not a psychiatrist.
6. They lamented that the appellant was not fit to stand trial. Reliance was placed on the case of E lisha v Republic [2023] KEHC 24416 (KLR), (Claris Kupata Elisha), where this court sitting at Malindi stated as follows:
In Maina Thiongo v Republic [2017] eklr, justice Ngaah Julius stated as doth:
“It follows that failure to call an expert whose report was not only the foundation of the charge against the appellant but was also the basis of the appellant’s conviction was a blatant and serious miscarriage of justice; it was a miscarriage of justice because first, by concluding the trial without the evidence of the expert the court deprived itself of the opportunity to interrogate and satisfy itself of his opinion and, second, the appellant was also denied the opportunity to test the accuracy of the expert’s opinion by way of cross-examination.
Section 48 of the Evidence Act , Cap 80 under which opinion of experts is catered for contemplates that the expert must testify; that section provides as follows:
(1)When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions.(2)Such persons are called experts.
The application of this provision of the law was explained by the Court of Appeal in Mutonyi versus Republic (1982) KLR 203 at 210 where Potter JA said:
Expert evidence is evidence given by a person skilled and experienced in some professional or special sphere of knowledge of the conclusions he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements and the like.
Section 48 of the Evidence Act (Cap 80) provides that where, inter alia, the court has to form an opinion upon a point “of science, art, or as to identity or genuineness of handwriting or finger or other impressions”, opinions on that point are admissible if made by persons “specialist skilled” in such matters.
In Cross on Evidence 5 th edition at page 446, the following passage from the judgement of President Cooper in Davie versus Edinburgh magistrates (1933) SC 34,40, as scenting the functions of expert witnesses:
“Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgement by the application of these criteria to the facts put in evidence.
”So, an expert witness who hopes to carry weight in a court of law, must, before giving his expert opinion:
1.Establish by evidence that he is specially skilled in his science or art.
2.Instruct the court in the criteria of his science or art, so that the court may itself test the accuracy of his opinion and also form its own independent opinion by applying these criteria to the facts proved.
3.Give evidence of the facts on which may be facts ascertained by him or facts reported to him by another witness.”
7. It was submitted that Dr Kariuki was an expert. They submitted that the appellant as found to have lost sense of time, space and could not explain himself. The doctor concluded that the appellant had dementia. This is said to be a decline in mental abilities severe enough to interfere with daily life. This was seen from the mental report that the appellant’s mental status depicted appearance, behavoiur, orientation, perceptions, memory, concentration, judgment, and insight were all abnormal. The appellant had other non-mental related conditions.
8. The appellant was not fit to plea, so the appellants’ advocates pleaded. They acknowledged dictates of section 11 of the Penal Code that provides as follows:
Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
9. They submitted that however section 162(1) of Criminal Procedure Code posits as follows:
1. When in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness.
2. If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case.
3. If the case is one in which bail may be taken, the court may release the accused person on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person, and for his appearance before the court or such officer as the court may appoint in that behalf.
4. If the case is one in which bail may not be taken, or if sufficient security is not given, the court shall order that the accused be detained in safe custody in such place and manner as it may think fit, and shall transmit the court record or a certified copy thereof to the Cabinet Secretary for consideration by the President.
5. Upon consideration of the record the President may by order under his hand addressed to the court direct that the accused be detained in a mental hospital or other suitable place of custody, and the court shall issue a warrant in accordance with that order; and the warrant shall be sufficient authority for the detention of the accused until the President makes a further order in the matter or
6. Until the court which found him incapable of making his defence orders him to be brought before it again in the manner provided by sections 163 and 164.
10. Powers under section 162(1) of criminal procedure code were delegated to the Cabinet Secretary and to the Principal Secretary of the Ministry for the time being responsible for prisons, by L.N. 579/1963.
11. They submitted that the court should exercise precautionary steps to ensure that the appellant is fit to stand trial. The need to ascertain whether the appellant is fit to stand. This was said to have been discussed in the case of SMN v Republic (Criminal Appeal E117 of 2022) [2025] KEHC 9445 (KLR), where Matheka J posited as follows:
This having been raised in a preliminary report, the trial court should have taken a precautionary step of sending him for mental assessment to ensure that he was fit to stand trial. The only way to prove the contrary, as per section 11 of the Penal Code , was to call for a mental assessment report. The need to ensure that an accused person is fit to stand trial was discussed in Blackstone, Commentaries on the Laws of England, Clarendon Press, Oxford, 1769, Vol IV, P 250 and the justifications were given to be;
a. A recognition that it is fundamentally unfair to try an unfit accused;
b. A recognition that it is inhumane to subject an unfit accused to trial and punishment;
c. A perception that, a trial of an unfit accused is comparable to trial of an accused in absentia,
d. A procedure the legal system repudiates; and a concern to avoid diminution of the public's respect for the dignity of the criminal justice process if unfit accused are subjected to trial and punishment.
The Court of Appeal in Leonard Mwangemi Munyasia v Republic (2015) eklr as follows:
We are of the view that a court cannot, as the trial Judge in this matter did, assume without considering surrounding circumstances that the suspect was not suffering from mental disorder at the time the offence was committed. Thus, it is permissible for the court to rely on evidence from which it can form an opinion regarding the mental status of the accused person at the time when the crime was committed. Such evidence will be based on the immediate, preceding or immediate succeeding or even the contemporaneous conduct of the accused person. There is also medical history of the accused person to be considered as the backdrop. What must be avoided and what this court has warned against in the two decisions relied on by the appellant’s advocate in this appeal, is the likelihood of sentencing to death a person with a mental disorder. Therefore, it is the duty of trial courts, where the defence of insanity is raised or where it becomes apparent to the court from the accused person’s history or antecedent, to inquire specifically into the question. Indeed, it would serve as a good practice… to call evidence based on the opinion of an expert in such cases in terms of; Section 48 of Evidence Act to explain the state of mind. It is the duty of both the investigating officer and the defence, to have the accused person subjected to a medical examination to establish whether he suffered from the disease of the mind that affected his mind and made him incapable of understanding his action. In addition, and in order to ascertain the accused person’s state of mind at the time of the offence, the expert opinion of a forensic psychologist, may also be sought. The field of forensic psychology has become a popular field of psychology in Kenya, yet their expertise is hardly sought in criminal trials.
12. The Appellant submitted that the lower court failed to take a precautionary step. The court was invited to adopt the dictates of section 12 of the penal code. It provides as follows:
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.
13. The appellant sought to rely on section 167 of the criminal procedure act, which provides as follows:
(1) If the accused, though not insane, cannot be made to understand the proceedings-
a. In cases tried by a subordinate court, the court shall proceed to hear the evidence, and, if at the close of the evidence for the prosecution, and, if the defence has been called upon, of
b. Any evidence for the defence, the court is of the opinion that the evidence which it has heard would not justify a conviction, it shall acquit and discharge the accused, but if the court is of the opinion that the evidence which it has heard would justify a conviction it shall order the accused to be detained during the president’s pleasure; but every such order shall be subject to confirmation by the high court;
c. In cases tried by the high court, the court shall try the case and at the close thereof shall either acquit the accused person or, if satisfied that the evidence would justify a conviction, shall order that the accused person be detained during the president’s pleasure.
(2) A person ordered to be detained during the President’s pleasure shall be liable to be detained in such place and under such conditions as the President may from time to time by order direct, and whilst so detained shall be deemed to be in lawful custody.
(3) The President may at any time of his own motion, or after receiving a report from any person or persons thereunto empowered by him, order that a person detained as provided in subsection (2) be discharged or otherwise dealt with, subject to such conditions as to the person remaining under supervision in any place or by any person, and such other conditions for ensuring the welfare of the detained person and the public, as the President thinks fit.
(4) When a person has been ordered to be detained during the Presidents pleasure under paragraph (a) or paragraph (b) of subsection (1), the confirming or presiding judge shall forward to the Cabinet Secretary a copy of the notes of evidence taken at the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.
14. The respondent submitted that the appellant was charged with defilement contrary to section 8(4) of the Sexual Offences Act, 2006. He also had an indecent act child contrary to Section 11(1) of the Sexual Offences Act, 2006. A total of 5 witnesses testified and the appellant was placed on his defence. The court ordered for a mental assessment at a government facility at the request of the appellant and insistence on the government facility by the prosecution. The report was returned that the appellant is unfit to plead. The examining doctor was examined on this aspect the doctor concluded that the appellant had dementia. He was a psychiatrist trainee and a medical doctor.
15. The state submitted that they requested for the court to find that the Doctor was not qualified to give such a report. The court delivered a ruling that the defence had not tendered evidence to dislodge the presumption of insanity.
16. It was their submission that the law presumes every person same unless the contrary is proved. It was their case that the defence failed to prove their case by providing a competent doctor to file for mental assessment. They submitted that the doctor admitted that he was not qualified and registered as a registered psychiatrist yet he wrote the report. They submitted that it was not the court duty to ascertain the qualifications of the credentials of persons testifying. They submitted that the court did not make a mistake in dismissing the use of the report. They prayed that the appeal be dismissed.
Relevant Evidence
17. For purpose of this appeal the crucial evidence is only that of Dr Amos Kariuki. He testified on 24.10.2024 that he works at Thika Level 5 Hospital and prepared a report dated 3.09.2022. The appellant was found unfit to plead. The was unable to express himself and had been brought in by a relative. He was cross examined and stated that he was not a certified psychiatrist. He was not a psychiatrist or registered as such.
18. The medical report was produced without any substantive challenge to its contents. The doctor was not cross-examined on the veracity or accuracy of the report. He testified that the accused had no documented history of mental illness. The treatment notes and medical documents presented to him related to a cardiac condition and did not contain any diagnosis or indication of a mental disorder.
19. The witness further explained that some of the documents he considered lacked a hospital number because the patient had not made payment for the services rendered. The documents relied upon did not address the accused's mental condition. During cross-examination, the prosecutor frequently interjected with observations and conclusions that did not assist in clarifying the medical issues before the court.
20. Upon re-examination, the doctor stated that he prepared and signed the report in his capacity as a duly registered medical practitioner. He testified that a medical doctor is competent to diagnose conditions such as dementia. According to him, the diagnostic process involves consideration of corroborative medical records together with clinical observation of the patient's conduct, demeanour, and mannerisms. It was on the basis of those considerations, and in the exercise of his professional judgment as a registered medical practitioner, that he prepared the report.
Analysis
21. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
22. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra] , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
23. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
24. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
25. The matter turns on expert evidence. The appellant was in this court and the court observed him. The same appellant was in the lower court. The lower observed his demeanor but did not comment on this aspect. The appellant pleaded not guilty before M Sudi, PM on 26.08.2022. Other than that, the appellant does not say anything at all in the record. There appears to have been plea on 9.2.2023, where the appellant pleaded not guilty. It is unclear, the generis of the second plea. The matter then placed for direction on defence hearing on 29.08.2023 before R.N. Kimeu. The appellant’s advocates prayed for the matter to start de novo.
26. This was strenuously opposed. The court directed that the court was under duty to show why they preferred an election for starting de novo. The court directed that the matter proceeds from where it had reached. The matter was placed before the RM. It is unclear what the transition was about as there was no report or proceedings for change of magistrates.
27. On the hearing date, the appellant indicated that the appellant had dementia and such e had been unable to take instructions. The prosecutor prayed that the mental assessment be carried out in a government facility. The court ordered defence counsel to take the appellant to a government facility for assessment. The report indicated the appellant had dementia
28. On the day for defence hearing the appellant raised issue of sanity and noted that the appellant had dementia. The court directed the doctor who prepared doctor to be availed for cross examination he was duly examined hence the impugned ruling.
29. Ordinarily the courts do not allow interlocutory appeals to proceed. However, this matter falls under the limited exceptions set out in paragraph 94 of the case of Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR), where the Supreme Court [DK Maraga, CJ & P, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] held as follows:
Flowing from the above, we are of the view that the right of appeal against interlocutory decisions is available to a party in a criminal trial but should be deferred, and await the final determination by the trial court. A person seeking to appeal against an interlocutory decision must file their intended notice of appeal within 14 days of the trial court’s judgment. However, exceptional circumstances may exist where an appeal on an interlocutory decision may be sparingly allowed. These include:
a. Where the decision concerns the admissibility of evidence, which, if ruled inadmissible, would eliminate or substantially weaken the prosecution case;
b. When the decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal;
c. Where the decision entails the recusal of the trial court to hear the cause.
30. The Appeal relates to a matter of a fair hearing, that is, whether a person allegedly suffering from dementia can continue with his case. The decision may terminate or substantial eliminate the prosecution case. The appeal is thus properly before the court. Though not raised, it is the duty of the court to satisfy itself on jurisdiction. In the case of Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) , the Supreme Court, [WM Mutunga, CJ, PK Tunoi, JB Ojwang, SC Wanjala & N Ndungu, SCJJ] stated as follows:
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.
31. The court will therefore assume jurisdiction where it has and eschew jurisdiction where none exists. This is in line with the decision in In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR , Nyarangi JA, as he then was stated as doth;
“With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what
I have already said is consistent with authority: “By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics.
32. Having satisfied myself of jurisdiction, the next question is whether the court rightly or wrongly excluded the medical report on the basis that Dr Amos Kariuki was not a psychiatrist. The good doctor testified that he is a registered doctor and gave his number. Basically, he is a physician or a medical officer. The question to address is whether he was an expert. The extent of application of an expert opinion in judicial proceedings, and the general trend is that such evidence is not necessarily conclusive and binding. As was held in Shah and Another vs. Shah and Others [2003] 1 EA 290 :
“The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.”
33. Further, the Court of Appeal, in the case of Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held as follows:
“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”
34. Courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts an
[...truncated]
2. The matter came to this court, on 12.03.2026, wherein, this court issued a warrant of arrest. The appellant was however bought on the mention date, he had no comprehension of what was going on. Though not in a vegetable state, he was closure there than to the land of the living. I lifted the warrant and gave a date for judgment.
3. The court must be cognizant that this is an interlocutory appeal hence facts are irrelevant for purpose of the appeal. Parties field mammoth submissions whose summary I shall deal with shortly. The appellant questioned the decision to declare the appellant fit to continue with the defence. He Stated that Dr Amos Kariuki was not qualified to conduct mental assessment the appellant argued that the report by Dr Kariuki was proper. They abhorred the finding of the court that Dr Kariuki was not a psychiatrist and thus not an expert. They relied on Section 2 of the Mental Health Act, defines a person with mental illness to mean:
a. A person diagnosed by a qualified mental health practitioner to be suffering from mental illness, and includes
a. A person diagnosed with alcohol or substance use disorder; and
b. A person with suicidal ideation or behaviour;
4. A mental health practitioner was defined as in Section 2 of the Mental Health Act:
A qualified and duly registered-
a. Psychiatrist under the Medical Practitioners and Dentists Act ( Cap. 253 );
b. Medical practitioner under the Medical Practitioners and Dentists Act;
c. Psychologist under the Counsellors and Psychologists Act ( No. 14 of 2014 );
d. Clinical officer under the Clinical Officers (Training, Registration and Licensing) Act ( Cap. 260 );
e. Counsellor under the Counsellors and Psychologists Act; and
f. Psychiatric nurse under the Nurses Act ( Cap. 257 );
5. They submitted that the court was plainly wrong in finding that Dr Amos Kariuki was not a medical a mental health practitioner, since he was not a psychiatrist.
6. They lamented that the appellant was not fit to stand trial. Reliance was placed on the case of E lisha v Republic [2023] KEHC 24416 (KLR), (Claris Kupata Elisha), where this court sitting at Malindi stated as follows:
In Maina Thiongo v Republic [2017] eklr, justice Ngaah Julius stated as doth:
“It follows that failure to call an expert whose report was not only the foundation of the charge against the appellant but was also the basis of the appellant’s conviction was a blatant and serious miscarriage of justice; it was a miscarriage of justice because first, by concluding the trial without the evidence of the expert the court deprived itself of the opportunity to interrogate and satisfy itself of his opinion and, second, the appellant was also denied the opportunity to test the accuracy of the expert’s opinion by way of cross-examination.
Section 48 of the Evidence Act , Cap 80 under which opinion of experts is catered for contemplates that the expert must testify; that section provides as follows:
(1)When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions.(2)Such persons are called experts.
The application of this provision of the law was explained by the Court of Appeal in Mutonyi versus Republic (1982) KLR 203 at 210 where Potter JA said:
Expert evidence is evidence given by a person skilled and experienced in some professional or special sphere of knowledge of the conclusions he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements and the like.
Section 48 of the Evidence Act (Cap 80) provides that where, inter alia, the court has to form an opinion upon a point “of science, art, or as to identity or genuineness of handwriting or finger or other impressions”, opinions on that point are admissible if made by persons “specialist skilled” in such matters.
In Cross on Evidence 5 th edition at page 446, the following passage from the judgement of President Cooper in Davie versus Edinburgh magistrates (1933) SC 34,40, as scenting the functions of expert witnesses:
“Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgement by the application of these criteria to the facts put in evidence.
”So, an expert witness who hopes to carry weight in a court of law, must, before giving his expert opinion:
1.Establish by evidence that he is specially skilled in his science or art.
2.Instruct the court in the criteria of his science or art, so that the court may itself test the accuracy of his opinion and also form its own independent opinion by applying these criteria to the facts proved.
3.Give evidence of the facts on which may be facts ascertained by him or facts reported to him by another witness.”
7. It was submitted that Dr Kariuki was an expert. They submitted that the appellant as found to have lost sense of time, space and could not explain himself. The doctor concluded that the appellant had dementia. This is said to be a decline in mental abilities severe enough to interfere with daily life. This was seen from the mental report that the appellant’s mental status depicted appearance, behavoiur, orientation, perceptions, memory, concentration, judgment, and insight were all abnormal. The appellant had other non-mental related conditions.
8. The appellant was not fit to plea, so the appellants’ advocates pleaded. They acknowledged dictates of section 11 of the Penal Code that provides as follows:
Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
9. They submitted that however section 162(1) of Criminal Procedure Code posits as follows:
1. When in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness.
2. If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case.
3. If the case is one in which bail may be taken, the court may release the accused person on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person, and for his appearance before the court or such officer as the court may appoint in that behalf.
4. If the case is one in which bail may not be taken, or if sufficient security is not given, the court shall order that the accused be detained in safe custody in such place and manner as it may think fit, and shall transmit the court record or a certified copy thereof to the Cabinet Secretary for consideration by the President.
5. Upon consideration of the record the President may by order under his hand addressed to the court direct that the accused be detained in a mental hospital or other suitable place of custody, and the court shall issue a warrant in accordance with that order; and the warrant shall be sufficient authority for the detention of the accused until the President makes a further order in the matter or
6. Until the court which found him incapable of making his defence orders him to be brought before it again in the manner provided by sections 163 and 164.
10. Powers under section 162(1) of criminal procedure code were delegated to the Cabinet Secretary and to the Principal Secretary of the Ministry for the time being responsible for prisons, by L.N. 579/1963.
11. They submitted that the court should exercise precautionary steps to ensure that the appellant is fit to stand trial. The need to ascertain whether the appellant is fit to stand. This was said to have been discussed in the case of SMN v Republic (Criminal Appeal E117 of 2022) [2025] KEHC 9445 (KLR), where Matheka J posited as follows:
This having been raised in a preliminary report, the trial court should have taken a precautionary step of sending him for mental assessment to ensure that he was fit to stand trial. The only way to prove the contrary, as per section 11 of the Penal Code , was to call for a mental assessment report. The need to ensure that an accused person is fit to stand trial was discussed in Blackstone, Commentaries on the Laws of England, Clarendon Press, Oxford, 1769, Vol IV, P 250 and the justifications were given to be;
a. A recognition that it is fundamentally unfair to try an unfit accused;
b. A recognition that it is inhumane to subject an unfit accused to trial and punishment;
c. A perception that, a trial of an unfit accused is comparable to trial of an accused in absentia,
d. A procedure the legal system repudiates; and a concern to avoid diminution of the public's respect for the dignity of the criminal justice process if unfit accused are subjected to trial and punishment.
The Court of Appeal in Leonard Mwangemi Munyasia v Republic (2015) eklr as follows:
We are of the view that a court cannot, as the trial Judge in this matter did, assume without considering surrounding circumstances that the suspect was not suffering from mental disorder at the time the offence was committed. Thus, it is permissible for the court to rely on evidence from which it can form an opinion regarding the mental status of the accused person at the time when the crime was committed. Such evidence will be based on the immediate, preceding or immediate succeeding or even the contemporaneous conduct of the accused person. There is also medical history of the accused person to be considered as the backdrop. What must be avoided and what this court has warned against in the two decisions relied on by the appellant’s advocate in this appeal, is the likelihood of sentencing to death a person with a mental disorder. Therefore, it is the duty of trial courts, where the defence of insanity is raised or where it becomes apparent to the court from the accused person’s history or antecedent, to inquire specifically into the question. Indeed, it would serve as a good practice… to call evidence based on the opinion of an expert in such cases in terms of; Section 48 of Evidence Act to explain the state of mind. It is the duty of both the investigating officer and the defence, to have the accused person subjected to a medical examination to establish whether he suffered from the disease of the mind that affected his mind and made him incapable of understanding his action. In addition, and in order to ascertain the accused person’s state of mind at the time of the offence, the expert opinion of a forensic psychologist, may also be sought. The field of forensic psychology has become a popular field of psychology in Kenya, yet their expertise is hardly sought in criminal trials.
12. The Appellant submitted that the lower court failed to take a precautionary step. The court was invited to adopt the dictates of section 12 of the penal code. It provides as follows:
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.
13. The appellant sought to rely on section 167 of the criminal procedure act, which provides as follows:
(1) If the accused, though not insane, cannot be made to understand the proceedings-
a. In cases tried by a subordinate court, the court shall proceed to hear the evidence, and, if at the close of the evidence for the prosecution, and, if the defence has been called upon, of
b. Any evidence for the defence, the court is of the opinion that the evidence which it has heard would not justify a conviction, it shall acquit and discharge the accused, but if the court is of the opinion that the evidence which it has heard would justify a conviction it shall order the accused to be detained during the president’s pleasure; but every such order shall be subject to confirmation by the high court;
c. In cases tried by the high court, the court shall try the case and at the close thereof shall either acquit the accused person or, if satisfied that the evidence would justify a conviction, shall order that the accused person be detained during the president’s pleasure.
(2) A person ordered to be detained during the President’s pleasure shall be liable to be detained in such place and under such conditions as the President may from time to time by order direct, and whilst so detained shall be deemed to be in lawful custody.
(3) The President may at any time of his own motion, or after receiving a report from any person or persons thereunto empowered by him, order that a person detained as provided in subsection (2) be discharged or otherwise dealt with, subject to such conditions as to the person remaining under supervision in any place or by any person, and such other conditions for ensuring the welfare of the detained person and the public, as the President thinks fit.
(4) When a person has been ordered to be detained during the Presidents pleasure under paragraph (a) or paragraph (b) of subsection (1), the confirming or presiding judge shall forward to the Cabinet Secretary a copy of the notes of evidence taken at the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.
14. The respondent submitted that the appellant was charged with defilement contrary to section 8(4) of the Sexual Offences Act, 2006. He also had an indecent act child contrary to Section 11(1) of the Sexual Offences Act, 2006. A total of 5 witnesses testified and the appellant was placed on his defence. The court ordered for a mental assessment at a government facility at the request of the appellant and insistence on the government facility by the prosecution. The report was returned that the appellant is unfit to plead. The examining doctor was examined on this aspect the doctor concluded that the appellant had dementia. He was a psychiatrist trainee and a medical doctor.
15. The state submitted that they requested for the court to find that the Doctor was not qualified to give such a report. The court delivered a ruling that the defence had not tendered evidence to dislodge the presumption of insanity.
16. It was their submission that the law presumes every person same unless the contrary is proved. It was their case that the defence failed to prove their case by providing a competent doctor to file for mental assessment. They submitted that the doctor admitted that he was not qualified and registered as a registered psychiatrist yet he wrote the report. They submitted that it was not the court duty to ascertain the qualifications of the credentials of persons testifying. They submitted that the court did not make a mistake in dismissing the use of the report. They prayed that the appeal be dismissed.
Relevant Evidence
17. For purpose of this appeal the crucial evidence is only that of Dr Amos Kariuki. He testified on 24.10.2024 that he works at Thika Level 5 Hospital and prepared a report dated 3.09.2022. The appellant was found unfit to plead. The was unable to express himself and had been brought in by a relative. He was cross examined and stated that he was not a certified psychiatrist. He was not a psychiatrist or registered as such.
18. The medical report was produced without any substantive challenge to its contents. The doctor was not cross-examined on the veracity or accuracy of the report. He testified that the accused had no documented history of mental illness. The treatment notes and medical documents presented to him related to a cardiac condition and did not contain any diagnosis or indication of a mental disorder.
19. The witness further explained that some of the documents he considered lacked a hospital number because the patient had not made payment for the services rendered. The documents relied upon did not address the accused's mental condition. During cross-examination, the prosecutor frequently interjected with observations and conclusions that did not assist in clarifying the medical issues before the court.
20. Upon re-examination, the doctor stated that he prepared and signed the report in his capacity as a duly registered medical practitioner. He testified that a medical doctor is competent to diagnose conditions such as dementia. According to him, the diagnostic process involves consideration of corroborative medical records together with clinical observation of the patient's conduct, demeanour, and mannerisms. It was on the basis of those considerations, and in the exercise of his professional judgment as a registered medical practitioner, that he prepared the report.
Analysis
21. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
22. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra] , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
23. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
24. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
25. The matter turns on expert evidence. The appellant was in this court and the court observed him. The same appellant was in the lower court. The lower observed his demeanor but did not comment on this aspect. The appellant pleaded not guilty before M Sudi, PM on 26.08.2022. Other than that, the appellant does not say anything at all in the record. There appears to have been plea on 9.2.2023, where the appellant pleaded not guilty. It is unclear, the generis of the second plea. The matter then placed for direction on defence hearing on 29.08.2023 before R.N. Kimeu. The appellant’s advocates prayed for the matter to start de novo.
26. This was strenuously opposed. The court directed that the court was under duty to show why they preferred an election for starting de novo. The court directed that the matter proceeds from where it had reached. The matter was placed before the RM. It is unclear what the transition was about as there was no report or proceedings for change of magistrates.
27. On the hearing date, the appellant indicated that the appellant had dementia and such e had been unable to take instructions. The prosecutor prayed that the mental assessment be carried out in a government facility. The court ordered defence counsel to take the appellant to a government facility for assessment. The report indicated the appellant had dementia
28. On the day for defence hearing the appellant raised issue of sanity and noted that the appellant had dementia. The court directed the doctor who prepared doctor to be availed for cross examination he was duly examined hence the impugned ruling.
29. Ordinarily the courts do not allow interlocutory appeals to proceed. However, this matter falls under the limited exceptions set out in paragraph 94 of the case of Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR), where the Supreme Court [DK Maraga, CJ & P, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] held as follows:
Flowing from the above, we are of the view that the right of appeal against interlocutory decisions is available to a party in a criminal trial but should be deferred, and await the final determination by the trial court. A person seeking to appeal against an interlocutory decision must file their intended notice of appeal within 14 days of the trial court’s judgment. However, exceptional circumstances may exist where an appeal on an interlocutory decision may be sparingly allowed. These include:
a. Where the decision concerns the admissibility of evidence, which, if ruled inadmissible, would eliminate or substantially weaken the prosecution case;
b. When the decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal;
c. Where the decision entails the recusal of the trial court to hear the cause.
30. The Appeal relates to a matter of a fair hearing, that is, whether a person allegedly suffering from dementia can continue with his case. The decision may terminate or substantial eliminate the prosecution case. The appeal is thus properly before the court. Though not raised, it is the duty of the court to satisfy itself on jurisdiction. In the case of Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) , the Supreme Court, [WM Mutunga, CJ, PK Tunoi, JB Ojwang, SC Wanjala & N Ndungu, SCJJ] stated as follows:
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.
31. The court will therefore assume jurisdiction where it has and eschew jurisdiction where none exists. This is in line with the decision in In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR , Nyarangi JA, as he then was stated as doth;
“With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what
I have already said is consistent with authority: “By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics.
32. Having satisfied myself of jurisdiction, the next question is whether the court rightly or wrongly excluded the medical report on the basis that Dr Amos Kariuki was not a psychiatrist. The good doctor testified that he is a registered doctor and gave his number. Basically, he is a physician or a medical officer. The question to address is whether he was an expert. The extent of application of an expert opinion in judicial proceedings, and the general trend is that such evidence is not necessarily conclusive and binding. As was held in Shah and Another vs. Shah and Others [2003] 1 EA 290 :
“The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.”
33. Further, the Court of Appeal, in the case of Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held as follows:
“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”
34. Courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts an
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