The Republic AND The Republic VS KENNEDY GITHINJI NJERU AND JOSEPH KARANI NJERU AND 1 Others

1. The accused persons have been charged with Murder contrary to section 203 as read together with section 204 of the Penal Code. Particulars of the offence are that on 07^th February 2022 at Gatukui village, Kithimu location in Embu West subcounty within Embu County, the accused persons murdered Michael Nyaga Kigumo. To this charge, each of the accused persons pleaded not guilty and the plea was entered as such.
2. When the hearing began, PW1 was Dr. Sheila Shavulimo, a psychiatrist at Embu Level 5 Hospital, who testified that she conducted mental assessments on all the accused persons and she found all of them fit to plead. The prosecution wished to produce the mental assessment reports as evidence but counsel for the accused persons raised an objection to the production of the mental assessment reports. The objection was 2-pronged: first that the court did not order that the accused persons be subjected to mental assessments and second, that the accused persons did not consent to the mental assessments as provided under the Mental Health Act of 2015.
3. It was his argument that without a court order and the consents by the accused persons, the mental assessment reports are improperly before the court and that they should be expunged from the court record. The prosecution rebutted, stating that the issue raised through the objection had been raised and determined by this court in another criminal case namely Republic v. Syuki [2023] KEHC 25303 (KLR).
4. The court directed the parties to canvass the application by way of written submissions.
5. In their submissions, the accused persons stated that according to section 11 of the Penal Code an accused person is presumed to be of sound mind until the contrary is proved. He relied on the case of Republic v. Lewis [2021] KEHC 272 (KLR) where the court was of the view that there is no provision in law supporting mandatory subjection of accused persons to mental assessment before trial. Further reliance was placed on the case of Leonard Mwangemi Munyasia v Republic [2015] KECA 382 (KLR) where the Court of Appeal held that the mental state of an accused person can be inferred from the available evidence or where the defense of insanity is raised.
6. It was their argument that none of the accused persons has raised the defense of insanity nor has any evidence been adduced to the effect that the accused persons suffer from a mental illness. The accused persons argued that their rights under Article 50(2) of the Constitution have been violated and that their being subjected to mandatory mental assessment without their consent is discriminatory in light of Article 27 of the Constitution. That the mental assessment is prejudicial and it goes against the provisions of section 11 of the Penal Code.
7. On its part, the respondent stated that for the offence of murder to stand, one must prove the unlawful act and malice aforethought as provided under sections 203 and 206 of the Penal Code. It cited sections 9, 11 and 12 of the Penal Code and argued that the only way to determine an accused person’s soundness of mind is through mental assessment, albeit on the strength of common law alone. Reliance was placed on this court’s decision in the case of Republic v. Syuki [2023] KEHC 25303 (KLR)(supra). It submitted that the spirit of Article 50(2) of the Constitution is that an accused person ought to be mentally fit for him to be accorded fair trial.
8. It also relied on the case of Republic v. Lewis [2021] KEHC 272 (KLR)(supra). On the applicants’ argument on discrimination, it stated that Article 27 of the Constitution accords the accused person an equal right to benefit from protection of the law, even where he may plead the defense of insanity. Reliance was placed on the case of Leonard Mwangemi Munyasia v Republic [2015] KECA 382 (KLR) (supra) and section 3B of the Mental Health Act which provides for consent to mental assessment for persons diagnosed with mental illness. It argued that in the case of mental assessment for accused persons in murder cases, nothing in law bars the prosecution from subjecting the accused persons to mental assessment.
9. The issue for determination is whether the mental assessment report should be struck out of the proceedings because the accused persons did not consent to mental assessment. 
10. The Penal Code presumes all accused persons to be of sound mind until proven otherwise. Section 11 provides:

“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.”

1. Section 12 of the Penal Code provides for the defense of insanity which is available for the accused persons, so long as it can be proved that they were not of sound mind at the time of committing the offence. This defense can be actualized under section 111(1) and (2)(c) of the Evidence Act and it is upon the accused persons to prove that they were insane at the time of committing the offence. Section 12 of the Penal Code states:

“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.”

1. In this case where the prosecution’s case has just begun, none of the accused persons has pleaded insanity.  If at any point during the proceedings, one or all the accused persons plead insanity, onus will be on them to prove as much. While it is true that a mental assessment may be ordered by the court, in this case the order was not made but the prosecution proceeded to secure mental assessment reports for each of the accused persons in support of its case. See the case of Leonard Mwangemi Munyasia v Republic [2015] KECA 382 (KLR) (supra) where the court opined that the court may seek the expert opinion of a forensic psychologist. However, these sentiments are also not founded in statute.
2. In the case of Republic v. Syuki [2023] KEHC 25303 (KLR)(supra), this court labored at length on the issues raised herein. The accused persons feel aggrieved by the fact that they were subjected to mental assessment without their consent or compulsion through a court order. They cited section 3B of the Mental Health Act which provides for consent to treatment and not consent to assessment. It states:

“3B. Consent to treatment

(1) Every health care provider shall, where the person with mental illness has attained the age of majority—

(a) inform the person with mental illness, of the right of that person to choose an appropriate form of treatment; and

(b) obtain the written consent from that person before administering any treatment.

(2) Where the person with mental illness is incapable of making an informed decision on the form of treatment under subsection (1), such consent shall be sought and obtained from —

(a) the supporter of the person with mental illness duly appointed under this Act, who shall, when giving consent, comply with the will and preferences of that person; or

(b) the representative of the person with mental illness, where a supporter has not been appointed.

(3) Every health care provider shall, where a person with mental illness is a minor —

(a) inform the guardian of the minor of the right of the guardian to choose an appropriate form of treatment for the minor; and

(b) obtain written consent from the guardian before administering any treatment.”

1. As I have held before, it is still my view that the above cited provision of the Mental Health Act does not demand consent for mental assessment but it envisions consent from the outlook of a mentally ill patient (one who has already been diagnosed). However, this is in no way to mean that an accused person should be ‘forced’ to get mental assessment. It means that in the absence of a statutory position on the issue, the court is allowed to consider the common law position in order to avert any injustice. This will also be in line with the tenets of fair trial as provided under Article 50(2) of the Constitution.
2. For the purpose of section 206 of the Penal Code, mental assessment of an accused person can be done on the strength of common law. Section 3(c) of the Judicature Act, Cap. 8 of the Laws of Kenya provides for application of common law as follows:

“…subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12^th August, 1897, and the procedure and practice observed in courts of justice in England at that date:

Provided that the said common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.”

1. The court in the case of Republic v. Musya Ngolo Lewis (2021) eKLR (supra) labored to explain the roots of this practice in murder cases as etched in common law. The practice began in England when the need arose to ensure fair trials for accused persons in criminal cases. The Honourable Judge in this case, stated that:

“In my considered opinion, it serves the purpose of; inter alia, determining whether, the accused is mentally fit to understand, or appreciate the charges and/or information and then stand trial. Indeed, the insistence that an accused be fit to stand trial arose out of a concern in the common law that, criminal trials be fairly conducted. (See Blackstone, Commentaries on the Laws of England, Clarendon Press, Oxford, 1769, Vol IV, P 250. The justifications for the requirement that, the accused be fit to stand trial may be divided into four:

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, (Allen, Kesevarajah & Moses (1993) 66 A Crim R 376,397. 10),

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.”

1. The respondent argued that it is only in murder cases where mens rea has to be established as provided under section 206 of the Penal Code. Mens rea as defined in the 9^th Edition Black’s Law Dictionary means:

“The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness”.

In other words, it means the intention by the accused person to commit the crime or the state of mind for the offender at the time of committing the offence. The respondent rightly argued that the state of mind of the accused person can best be determined through a mental assessment by the relevant professional.

1. I have already stated hereinbefore, that the intent to commit murder, and any other offence for that matter, can rightly be established through application of common law and in the absence of statute to guide the process. It is the prosecution’s role to prove mens rea according to section 206 of the Penal Code. The prerogative on whether or not an accused person should be subjected to mental assessment cannot be left only to the accused person as a defense, lest the prosecution be denied justice and yet the law has placed a heavy burden on the prosecution by requiring mens rea be proved as one of the elements of the offence of murder. The accused person is allowed to plead insanity as a defense, but if he pleads insanity after the close of the prosecution’s case, the prosecution would never have a chance to interrogate and rebut such evidence.
2. The elements of the offence of murder under section 203 of the Penal Code are only enforceable when a mental assessment is carried out, in this case the prosecution has been diligent to secure this factor before the close of its case. Section 9 of the Penal Code rightly provides for

“(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.”

1. As to whether the right of the accused person to fair hearing under Article 50(2) and right to non-discrimination under Article 27 of the Constitution have been infringed, I am of the view that mental assessment in fact compliments and aids delivery of justice to the accused person and to the State. I wish to rehash my position in the case of Republic v. Syuki [2023] KEHC 25303 (KLR)(supra) that on the basis of common law, the accused persons may be subjected to mental assessment when they face murder charges in an effort to establish mens rea.
2. Sections 9, 11, 12 and 206 of the Penal Code places the onus on the prosecution to establish the accused person’s state of mind at the time of the offence and the prosecution proceeded to have the accused persons subjected to mental assessment in a bid to prove its case. Given the standard of proof in criminal cases, the legal requirement of mens rea coupled with the seriousness of the offence, it is beneficial that the mental assessment reports be produced as part of evidence.
3. Therefore, I find that the objection lacks merit and is hereby dismissed.  

Delivered, dated and signed at Embu this 9^th day of October, 2024.