REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL CASE NO. 28 OF 2018
REPUBLIC …………………………..…………..PROSECUTOR
-VERSUS –
MBILA MAVUSYU………………………..………………ACCUSED
JUDGMENT
The accused is charged with the offence of murder, contrary to Section 203 as read with Section 204 of the Penal Code vide information dated 10/8/2018 the particulars are that on 31-7-2018, at Makapela Village, Malalani Sub-location, Mutitu Sub-County within Kitui County, murdered Kimonyib Munyalo.
The accused person denied the charge.
The prosecution’s case Mr. Kimonyi Mbila;
He testified to that on 31-7-2018 he was at home when the accused Mbila Mabusya who is his father went to the fence and called his younger brother who is called Kitheka asking him where his grandfather was. The parents had deferred and the witness and their mother was staying with their grandparents. The accused went and asked where grandparents were. The deceased had gone there while armed with a bow and arrows. After a short while Pw1 had his grandfather screaming for help. He went outside and found the accused fighting with the deceased. The accused had shot the deceased with an arrow which had hit him below the chest. the Pw1 found the accused aiming a second arrow at the deceased who was trying to shield himself behind a tree while accused was trying to get closer the to target. Pw1 tried to jump over the fence but the accused told him “if you jump over that fence I will kill you”.
Pw-1 told the accused to shoot him and in the process the grandfather managed to escape and went to his house. The accused told Pw1 that he had no problem with anyone else and said he was going to commit suicide. The accused ran away. Pw1 found the accused bleeding profusely from the injury. Some people rushed him to hospital but the later is succumbed to the injuries on 31/7/2018. In cross examination he told the Court that the accused had told him that he had accomplished his mission and had gone to commit suicide.
Pw2 Nancy Mulunge Mueni testified that she was 13 years old and in class 7 she told the courts that on 31/7/2018 she heard the accused who is her grandfather saying that he had been shot with an arrow by the accused. She rushed to his house and found the accused holding an arrow which he said he had removed from the side of his chest. She heard the deceased saying that the accused had shot him with an arrow. The deceased was bleeding. She went to the market and called Dorcas who in turn called some people. In cross examination she told the court that the accused was not at the scene.
Pw3 Salee Kimonye testified on the material day 31/7/2018 she was called by Mbela Wambua who informed him that there was something urgent at home. She arrived at the place and arrived at Malalani dispensary at around 7:00 p.m. She found that her dad had been shot with an arrow by the accused. The deceased was lying on a bed at Malalani dispensary. The deceased told her that he was shot by the accused in this case. The deceased had a bandage around the rib cage. The deceased told her that accused was annoyed as he deceased and taken in the accused's wife Dorcas a month before the incident. The deceased had brought the said Dorcas to his home because of the violence meted on her by the accused who was her husband. that the accused did not pay to dowry for the said Dorcas and cohabited with her for 13 years. Pw3 transferred the deceased to Kitui hospital but he passed away while undergoing treatment.
In cross examination she told the court that the deceased was bleeding from the mouth and was speaking well though in pain. the deceased was her father. The wife of accused was her sister.
Pw 4 Doctor Vita Christopher is a Senior Medical Officer at Kitui Referral Hospital and holds a Bachelor Degree in medicine and surgery from the University of Nairobi. He gave evidence on behalf of Dr Bosire Pathologist at Kitui hospital who was away attending a seminar. He had worked with Dr Bosire since year 2023 and was familiar with her handwriting and signature.
The defence did have an objection to have the doctor produce the postmortem form. According to doctor Vita the postmortem on the body of the deceased was performed on 6th August 2018 at Kitui referral hospital at 1:00 p.m. it was the body of a male adult aged 79 years old and had been well preserved. The body had an incision (sutured) on the lower abdomen measuring 2 cm long. It had 9 stitches. The area below the rib there was a laceration that had been stitched and it was measuring 3 cm and was repaired with two sutures.
Internally in the respiratory system there were bilateral pleural adhesions (covering around the lungs inflammation or tearing of tissue)
On cardiovascular system the heart was enlarged. The vessels of the heart enlarged, There was perforation in the diaphragm. There was sutured laceration on vein and multiple haematoma noted on the mesentery. The doctor formed the opinion that the cause of death was severe abdominal injuries due to penetrating abdominal trauma. He issued death certificate number 719901. He produced the post mortem form as an exhibit.
Pw5 was Police constable Joseph Ndambuki who was based at Edau police station. He testified that on 31st July 2018 he received a report from Corporal Onyango and PC Muhando who took one prisoner by name Mbila Mavusyu to the police station. They also handed him a bow and two arrows which he kept as exhibits. One of the arrows had blood stains he recorded the statements of witnesses and thereafter he visited the scene. He was led to the scene by Pw1 and he drew a sketch plan of the scene and had photographs taken. he established that the accused walked from his house to the house of the in-law while armed with bow and arrows. The accused shot the deceased with an arrow on 30th July 2018 and he passed away on 31st July 2018 while undergoing treatment. A postmortem was done. The accused was then charged if the offence of murder.
Pw5 told the court that the accused was the father-in-law of the accused.
The defense case
The accused gave unsworn defence and told the Court that on 30th July 2018 he suffered a headache and went to the dispensary near his home. He suffered a blackout and did not know what happened. He did not know what he was doing. He only came to when he found himself in prison. He received treatment at Mathare. He said he killed but he did not know what he was doing. He told the court that he could not kill
In cross-examination he testified that he killed his father-in-law but he was not conscious.
I have considered all the evidence adduced. The accused person is charged with murder contrary to section 203 as read with section 204 of the Penal code. Section 203 defines murder as the unlawful causing of death of another person by an act or omission with Malice aforethought.
It provides: “Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder”
The punishment for the offence is provided under Section 204 of the penal code (Cap 63 Laws of Kenya) as follows:
“Any person convicted of murder shall be sentenced to death. The ingredients of the of the offence of murder are that:
a) death of the deceased and
b) cause of death
c) that the accused committed the unlawful act that caused the death of the deceased
d) Malice aforethought
It is clear from the definition of murder that that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice afore thought. That is to say that the actus reus and mensrea must be proved.
On the ingredients:
1. That the death of the deceased occurred and its cause
Prosecution called witnesses who testified that the deceased was shot with an arrow and he passed away while undergoing treatment in hospital. For the cause of death and that death did occur, it requires proof by a pathologist. In this case the prosecution Dr Vita Christopher pw4 testified that the postmortem on the body of the deceased was performed by a Doctor who is his colleague and he had worked with him at Kitui Hospital. He knew his handwriting and signature and was allowed to produce the postmortem form. Dr Bosire the Pathologist formed the opinion the cause of death was severe abdominal injury due to penetrating abdominal trauma. The postmortem form was produced as prosecution exhibit 1.
With this evidence the prosecution proved that the deceased died as a result of an external force which penetrated the deceased causing injury which led to his death.
On the 2nd ingredient Pw1 testified that it is the accused who shot the deceased with an arrow. Pw3 testified that he found the deceased holding a bloodstained arrow which he said he had removed from the side of the chest after the accused shot him with it.
Pw3 testified that she was informed by PW2 that the deceased had been shot. She went to Malalani dispensary and found the deceased receiving treatment. The deceased told her that he was shot with an arrow by the accused. The testimony of pw1 was an eye witness who saw when the deceased was shot with an arrow. This was corroborated by pw2 and pw3 who heard death declarations by the deceased that the accused is the one who shot him. The accused himself admitted in cross-examination that he killed his father-in-law. I find that the prosecution proved beyond any reasonable doubt that it is the accused who caused the injury that resulted in the death of the deceased. The act of shooting the deceased with an arrow was no doubt an unlawful act.
Malice Aforethought:
Malice Aforethought mens rea. constitutes the mental elements required for the conviction of murder. The mens rea is the motive pre-mediation which is Malice aforethought. The term mens rea connotes a notion of culpability or moral blameworthiness on the part of the offender section 206 of the penal code gives the instances when Malice aforethought is established. It states that:
Malice forethought shall be deemed to be established by
evidence proving any one or more of the following circumstances -
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.
The Malice is proved when it is established that the accused killed the person he intended to kill or when it is shown that the intention was to cause grievous harm or that the accused person in furtherance of a felony for example rape or robbery when resisting or preventing lawful arrest or to facilitate escape from custody of any person who has committed or attempted to commit a felony. The accused in this defence stated that he does not know what happened that he only came to know when he found himself in prison. He was told he was arrested for murder and he began treatment at Mathari hospital. He killed but did not know how he killed. He said he suffered a headache. But he has been forgetful and could not recollect himself or tell how many times.
In cross-examination he said he killed his father-in-law but was not conscious of that.
Dw2 Mulaimu Mavusyu testified that the deceased is his brother and he has been unwell for a long time they started noticing some confusion after his mother died. That he has had problems of forgetting and at one time stripped naked during a function. That upon arrest the doctor said he was not normal. Dw2 did not however dispute the manner in which the accused caused the death of the deceased. Dw3 testified and told court that the accused had some problems and came from a clan of “Ukoo wa Nguuka” that is a clan of people with mental illness. That he suffered from forgetfulness and there was a time he stripped naked. In cross-examination he maintained that the accused has a mental problem. When the accused was arraigned in court, On 10th August 2018 for the purpose of taking plea the court ordered that he be escorted to Mathari hospital to go under Psychiatrist examination. He was escorted to Mathari National Teaching and Referral Hospital and was diagnosed with:
a) diagnosis of Schizoaffective disorder substance abuse disorder.
b) he is not fit started on medications.
Will require relatives for corroborative history.
The examination was done on 13/9/2018. He was examined on 15.1.2019 and in the doctor’s opinion, the accused had improved on mediation and recommended that he continues with medication and be reviewed after two months. On 17/2/2020 a report was filed by Doctor Muia Janet, Consultant Psychiatrist who recommended that the accused was fit to plead but he however needs to continue on his medication. This background of the examination of the accused on his fitness to plead has exposed him as a person who was suffering from a mental illness at the time he committed or is alleged to have committed this offence.
The prosecution adduced evidence which proved beyond any reasonable doubt that the accused is the one who caused death of the deceased by shooting him with an arrow.
The defence Submissions
The defence counsel submits that under section 12 of the penal code accused is not criminally responsible for an act at the time of doing the act he was through disease affecting the mind, incapable of understanding what he was doing or knowing that he ought not to do it. That the accused went through psychiatrist evaluation and he was found to be unfit to stand trial. That evidence which is before this court demonstrates that the accused had a long standing history of mental illness. That at the time he committed the offense he was suffering from a mental disorder which substantially impaired his cognitive faculties judgment and control over his actions. The defense in its submissions has urged the court to determine whether the accused is criminally responsible for the said offence. And submitted by the Counsel the legal test of defence of insanity was stated in M’Naghten’s case where it was held that: To establish a defense of insanity it must be clearly proved that and the time of committing the act the accused was laboring under defect of reason, from disease of the mind as to know nature and quality of the act he was doing or if he did know it, that he did not know what he was doing was wrong.
Section 12 of the penal code:
( Supra) provides that a person suffering from mental illness is not criminally responsible for an act or omission done while he was suffering from disease of the mind. This means that no malice aforethought can be found on a person who was suffering from a mental illness at the time he committed the act. Criminal Liability is complete where actus reus and Mens rea are approved. The analysis of the evidence above proves that it is the accused who caused the death of the deceased. In the case of Republic versus Brian Mwangi Rukia (2019 ) eklr the court held that where accused acts under a state of insanity mens rea is negated. The charge of murder which requires proof of both actus reus and mensrea has not been established as the accused cannot be held to be criminally due to the fact that he was suffering from mental illness at the time he committed the offence. The court of appeal in the case of Leonard Mwangemi Munyasia versus Republic 2015 KECA 382 KLR
It was held that:
-if it was shown that indeed he suffered from this condition, then section 9 as read with section 12 of the penal code he could not be held criminally responsible for the murder of Eric Omwenga Mugeka the Deceased.
The Court Further stated:
We reiterate that the generally accepted notion is that a person who cannot appreciate the consequences of their actions should not be punished if those actions happen to be criminal acts”
That section 167(1) (b) of the Criminal Procedure Code provides that a person shall not be entitled to an acquittal but would be convicted and ordered to be detained during the president's pleasure because insanity is an illness (Mental illness) requiring treatment rather than punishment. Such people when so detained are considered patients and not prisoners. In this case from the analysis of the mental treatment record of the accused upon committing the offence the medical reports I have analyzed above its clear that the accused was suffering from mental illness at the time of committing the offence. It is the court which requested for a mental examination report in this case, the report dated 13/9/2019 and filed in Court on 14th September 2018 confirmed that he was suffering from schizoaffective disorder/ substance abuse disorders. On 15th January 2019 the report from Mathari hospital stated that he had improved on medication.
Further report from Machakos Hospital on 14th February 2020 stated that he needed to continue with medication. He was stable and fit.These medical records proves that the accused was suffering from a mental illness at the time he committed the offence. The prosecution proved that he is the one who killed the deceased. For these reasons I find that the accused person is guilty but insane. Section 167 (1) (b) of the Criminal Procedure Code applies.
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL CASE NO. 28 OF 2018
REPUBLIC …………………………..…………..PROSECUTOR
-VERSUS –
MBILA MAVUSYU………………………..………………ACCUSED
JUDGMENT
The accused is charged with the offence of murder, contrary to Section 203 as read with Section 204 of the Penal Code vide information dated 10/8/2018 the particulars are that on 31-7-2018, at Makapela Village, Malalani Sub-location, Mutitu Sub-County within Kitui County, murdered Kimonyib Munyalo.
The accused person denied the charge.
The prosecution’s case Mr. Kimonyi Mbila;
He testified to that on 31-7-2018 he was at home when the accused Mbila Mabusya who is his father went to the fence and called his younger brother who is called Kitheka asking him where his grandfather was. The parents had deferred and the witness and their mother was staying with their grandparents. The accused went and asked where grandparents were. The deceased had gone there while armed with a bow and arrows. After a short while Pw1 had his grandfather screaming for help. He went outside and found the accused fighting with the deceased. The accused had shot the deceased with an arrow which had hit him below the chest. the Pw1 found the accused aiming a second arrow at the deceased who was trying to shield himself behind a tree while accused was trying to get closer the to target. Pw1 tried to jump over the fence but the accused told him “if you jump over that fence I will kill you”.
Pw-1 told the accused to shoot him and in the process the grandfather managed to escape and went to his house. The accused told Pw1 that he had no problem with anyone else and said he was going to commit suicide. The accused ran away. Pw1 found the accused bleeding profusely from the injury. Some people rushed him to hospital but the later is succumbed to the injuries on 31/7/2018. In cross examination he told the Court that the accused had told him that he had accomplished his mission and had gone to commit suicide.
Pw2 Nancy Mulunge Mueni testified that she was 13 years old and in class 7 she told the courts that on 31/7/2018 she heard the accused who is her grandfather saying that he had been shot with an arrow by the accused. She rushed to his house and found the accused holding an arrow which he said he had removed from the side of his chest. She heard the deceased saying that the accused had shot him with an arrow. The deceased was bleeding. She went to the market and called Dorcas who in turn called some people. In cross examination she told the court that the accused was not at the scene.
Pw3 Salee Kimonye testified on the material day 31/7/2018 she was called by Mbela Wambua who informed him that there was something urgent at home. She arrived at the place and arrived at Malalani dispensary at around 7:00 p.m. She found that her dad had been shot with an arrow by the accused. The deceased was lying on a bed at Malalani dispensary. The deceased told her that he was shot by the accused in this case. The deceased had a bandage around the rib cage. The deceased told her that accused was annoyed as he deceased and taken in the accused's wife Dorcas a month before the incident. The deceased had brought the said Dorcas to his home because of the violence meted on her by the accused who was her husband. that the accused did not pay to dowry for the said Dorcas and cohabited with her for 13 years. Pw3 transferred the deceased to Kitui hospital but he passed away while undergoing treatment.
In cross examination she told the court that the deceased was bleeding from the mouth and was speaking well though in pain. the deceased was her father. The wife of accused was her sister.
Pw 4 Doctor Vita Christopher is a Senior Medical Officer at Kitui Referral Hospital and holds a Bachelor Degree in medicine and surgery from the University of Nairobi. He gave evidence on behalf of Dr Bosire Pathologist at Kitui hospital who was away attending a seminar. He had worked with Dr Bosire since year 2023 and was familiar with her handwriting and signature.
The defence did have an objection to have the doctor produce the postmortem form. According to doctor Vita the postmortem on the body of the deceased was performed on 6th August 2018 at Kitui referral hospital at 1:00 p.m. it was the body of a male adult aged 79 years old and had been well preserved. The body had an incision (sutured) on the lower abdomen measuring 2 cm long. It had 9 stitches. The area below the rib there was a laceration that had been stitched and it was measuring 3 cm and was repaired with two sutures.
Internally in the respiratory system there were bilateral pleural adhesions (covering around the lungs inflammation or tearing of tissue)
On cardiovascular system the heart was enlarged. The vessels of the heart enlarged, There was perforation in the diaphragm. There was sutured laceration on vein and multiple haematoma noted on the mesentery. The doctor formed the opinion that the cause of death was severe abdominal injuries due to penetrating abdominal trauma. He issued death certificate number 719901. He produced the post mortem form as an exhibit.
Pw5 was Police constable Joseph Ndambuki who was based at Edau police station. He testified that on 31st July 2018 he received a report from Corporal Onyango and PC Muhando who took one prisoner by name Mbila Mavusyu to the police station. They also handed him a bow and two arrows which he kept as exhibits. One of the arrows had blood stains he recorded the statements of witnesses and thereafter he visited the scene. He was led to the scene by Pw1 and he drew a sketch plan of the scene and had photographs taken. he established that the accused walked from his house to the house of the in-law while armed with bow and arrows. The accused shot the deceased with an arrow on 30th July 2018 and he passed away on 31st July 2018 while undergoing treatment. A postmortem was done. The accused was then charged if the offence of murder.
Pw5 told the court that the accused was the father-in-law of the accused.
The defense case
The accused gave unsworn defence and told the Court that on 30th July 2018 he suffered a headache and went to the dispensary near his home. He suffered a blackout and did not know what happened. He did not know what he was doing. He only came to when he found himself in prison. He received treatment at Mathare. He said he killed but he did not know what he was doing. He told the court that he could not kill
In cross-examination he testified that he killed his father-in-law but he was not conscious.
I have considered all the evidence adduced. The accused person is charged with murder contrary to section 203 as read with section 204 of the Penal code. Section 203 defines murder as the unlawful causing of death of another person by an act or omission with Malice aforethought.
It provides: “Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder”
The punishment for the offence is provided under Section 204 of the penal code (Cap 63 Laws of Kenya) as follows:
“Any person convicted of murder shall be sentenced to death. The ingredients of the of the offence of murder are that:
a) death of the deceased and
b) cause of death
c) that the accused committed the unlawful act that caused the death of the deceased
d) Malice aforethought
It is clear from the definition of murder that that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice afore thought. That is to say that the actus reus and mensrea must be proved.
On the ingredients:
1. That the death of the deceased occurred and its cause
Prosecution called witnesses who testified that the deceased was shot with an arrow and he passed away while undergoing treatment in hospital. For the cause of death and that death did occur, it requires proof by a pathologist. In this case the prosecution Dr Vita Christopher pw4 testified that the postmortem on the body of the deceased was performed by a Doctor who is his colleague and he had worked with him at Kitui Hospital. He knew his handwriting and signature and was allowed to produce the postmortem form. Dr Bosire the Pathologist formed the opinion the cause of death was severe abdominal injury due to penetrating abdominal trauma. The postmortem form was produced as prosecution exhibit 1.
With this evidence the prosecution proved that the deceased died as a result of an external force which penetrated the deceased causing injury which led to his death.
On the 2nd ingredient Pw1 testified that it is the accused who shot the deceased with an arrow. Pw3 testified that he found the deceased holding a bloodstained arrow which he said he had removed from the side of the chest after the accused shot him with it.
Pw3 testified that she was informed by PW2 that the deceased had been shot. She went to Malalani dispensary and found the deceased receiving treatment. The deceased told her that he was shot with an arrow by the accused. The testimony of pw1 was an eye witness who saw when the deceased was shot with an arrow. This was corroborated by pw2 and pw3 who heard death declarations by the deceased that the accused is the one who shot him. The accused himself admitted in cross-examination that he killed his father-in-law. I find that the prosecution proved beyond any reasonable doubt that it is the accused who caused the injury that resulted in the death of the deceased. The act of shooting the deceased with an arrow was no doubt an unlawful act.
Malice Aforethought:
Malice Aforethought mens rea. constitutes the mental elements required for the conviction of murder. The mens rea is the motive pre-mediation which is Malice aforethought. The term mens rea connotes a notion of culpability or moral blameworthiness on the part of the offender section 206 of the penal code gives the instances when Malice aforethought is established. It states that:
Malice forethought shall be deemed to be established by
evidence proving any one or more of the following circumstances -
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.
The Malice is proved when it is established that the accused killed the person he intended to kill or when it is shown that the intention was to cause grievous harm or that the accused person in furtherance of a felony for example rape or robbery when resisting or preventing lawful arrest or to facilitate escape from custody of any person who has committed or attempted to commit a felony. The accused in this defence stated that he does not know what happened that he only came to know when he found himself in prison. He was told he was arrested for murder and he began treatment at Mathari hospital. He killed but did not know how he killed. He said he suffered a headache. But he has been forgetful and could not recollect himself or tell how many times.
In cross-examination he said he killed his father-in-law but was not conscious of that.
Dw2 Mulaimu Mavusyu testified that the deceased is his brother and he has been unwell for a long time they started noticing some confusion after his mother died. That he has had problems of forgetting and at one time stripped naked during a function. That upon arrest the doctor said he was not normal. Dw2 did not however dispute the manner in which the accused caused the death of the deceased. Dw3 testified and told court that the accused had some problems and came from a clan of “Ukoo wa Nguuka” that is a clan of people with mental illness. That he suffered from forgetfulness and there was a time he stripped naked. In cross-examination he maintained that the accused has a mental problem. When the accused was arraigned in court, On 10th August 2018 for the purpose of taking plea the court ordered that he be escorted to Mathari hospital to go under Psychiatrist examination. He was escorted to Mathari National Teaching and Referral Hospital and was diagnosed with:
a) diagnosis of Schizoaffective disorder substance abuse disorder.
b) he is not fit started on medications.
Will require relatives for corroborative history.
The examination was done on 13/9/2018. He was examined on 15.1.2019 and in the doctor’s opinion, the accused had improved on mediation and recommended that he continues with medication and be reviewed after two months. On 17/2/2020 a report was filed by Doctor Muia Janet, Consultant Psychiatrist who recommended that the accused was fit to plead but he however needs to continue on his medication. This background of the examination of the accused on his fitness to plead has exposed him as a person who was suffering from a mental illness at the time he committed or is alleged to have committed this offence.
The prosecution adduced evidence which proved beyond any reasonable doubt that the accused is the one who caused death of the deceased by shooting him with an arrow.
The defence Submissions
The defence counsel submits that under section 12 of the penal code accused is not criminally responsible for an act at the time of doing the act he was through disease affecting the mind, incapable of understanding what he was doing or knowing that he ought not to do it. That the accused went through psychiatrist evaluation and he was found to be unfit to stand trial. That evidence which is before this court demonstrates that the accused had a long standing history of mental illness. That at the time he committed the offense he was suffering from a mental disorder which substantially impaired his cognitive faculties judgment and control over his actions. The defense in its submissions has urged the court to determine whether the accused is criminally responsible for the said offence. And submitted by the Counsel the legal test of defence of insanity was stated in M’Naghten’s case where it was held that: To establish a defense of insanity it must be clearly proved that and the time of committing the act the accused was laboring under defect of reason, from disease of the mind as to know nature and quality of the act he was doing or if he did know it, that he did not know what he was doing was wrong.
Section 12 of the penal code:
( Supra) provides that a person suffering from mental illness is not criminally responsible for an act or omission done while he was suffering from disease of the mind. This means that no malice aforethought can be found on a person who was suffering from a mental illness at the time he committed the act. Criminal Liability is complete where actus reus and Mens rea are approved. The analysis of the evidence above proves that it is the accused who caused the death of the deceased. In the case of Republic versus Brian Mwangi Rukia (2019 ) eklr the court held that where accused acts under a state of insanity mens rea is negated. The charge of murder which requires proof of both actus reus and mensrea has not been established as the accused cannot be held to be criminally due to the fact that he was suffering from mental illness at the time he committed the offence. The court of appeal in the case of Leonard Mwangemi Munyasia versus Republic 2015 KECA 382 KLR
It was held that:
-if it was shown that indeed he suffered from this condition, then section 9 as read with section 12 of the penal code he could not be held criminally responsible for the murder of Eric Omwenga Mugeka the Deceased.
The Court Further stated:
We reiterate that the generally accepted notion is that a person who cannot appreciate the consequences of their actions should not be punished if those actions happen to be criminal acts”
That section 167(1) (b) of the Criminal Procedure Code provides that a person shall not be entitled to an acquittal but would be convicted and ordered to be detained during the president's pleasure because insanity is an illness (Mental illness) requiring treatment rather than punishment. Such people when so detained are considered patients and not prisoners. In this case from the analysis of the mental treatment record of the accused upon committing the offence the medical reports I have analyzed above its clear that the accused was suffering from mental illness at the time of committing the offence. It is the court which requested for a mental examination report in this case, the report dated 13/9/2019 and filed in Court on 14th September 2018 confirmed that he was suffering from schizoaffective disorder/ substance abuse disorders. On 15th January 2019 the report from Mathari hospital stated that he had improved on medication.
Further report from Machakos Hospital on 14th February 2020 stated that he needed to continue with medication. He was stable and fit.These medical records proves that the accused was suffering from a mental illness at the time he committed the offence. The prosecution proved that he is the one who killed the deceased. For these reasons I find that the accused person is guilty but insane. Section 167 (1) (b) of the Criminal Procedure Code applies.