1. The accused person MUTIE MATHENGE is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on 1/12/2018 at Mukuku Village, Mbooni East Subcounty within Makueni County he murdered MICHAEL MWENDWA MUTHEU.
2. He was presented in court on 13/12/2018 but had mental health issues.
3. He took plea on 15/1/2020 before Hon. Ong’udi J after he was found to be fit to plead. He was represented by Mr. Judah Kioko Advocate. The matter proceeded before the Hon. Dulu J. on 11/5/2022.
4. PW1 Janet Nzilani Mbuva told the court that the deceased was her grandson, the accused, her nephew- (from her husband’s side) and they lived together in the same home. She testified that she also lived with her children, Irene, Crisma & Ingrid.
5. On 30/11/2018 after breakfast - Irene & Mwendwa (deceased) took the goats to graze on Mutie’s (the accused) land while she went to the farm with Crisma. While there she could see Mutie cutting mango and banana plants in his farm. He then went home and took his belongings, and threw them in the dam. Then took out his bed and cut it into pieces.
6. There was one by name Kioko who was ploughing with cows on her farm. She heard screams from Kioko calling out saying that the child had been killed and they needed to go there. She told Kioko to go as she was following him.
7. When she reached where the screams were coming from she found a crowd already. The child Mwendwa was lying on the ground bleeding from the nose while Mutie was on the ground there tied with ropes.
8. The child was taken Kisau dispensary, while report was made at Mbumbuni Police Station. At Kisau the child was put on oxygen. An ambulance came and he was taken to Wote Hospital (Makueni Referral) where the Doctor told her that the child’s injuries were very seriously and everything was in God’s hands. But the child died at 1.00pm the next day. The death was reported to the police.
9. As she identified the murder weapon in court, she told the court that the child had been with Irene who told her that Mutie had approached the child, and demanded to know why the child’s father was disturbing him – then hit the child with the stick on the head, causing the child to collapse and faint. She saw the stick at the scene.
10. She said Mwendwa was her daughter’s child and she did not know the child’s father. She also said she did not know whether or not the accused Mutie knew the child’s father.
11. She testified further that the accused had tried to commit suicide by strangling himself but was rescued by a neighbor who cut the rope. She said she had raised accused from when he was an infant. That sometimes he would be out of his head, that he once assaulted his wife and she left him. He was arrested and placed in custody.
12. On cross-examination by Mr. Kioko she told the court that the accused appeared to have mental health problems. She told the court there were times he would say he was seeing people; who no one else would see. That he was brought to Makueni Referral Hospital for treatment but was not cured.
13. PW2 1M- 14-year-old girl was adjudged by the judge to be a child who did know the importance of the oath. The judge directed that she gives unsworn testimony. She told the court she was 14 years old and was by then in class 8 at M…. Primary School. She was the last born of PW1.
14. On the material date she was herding goats with Mwendwa, her nephew – while her mother was in the shamba. From where they were herding, they could see Mutie the accused. They saw him cutting his mango trees, banana plants, and even his bed.
15. Then they were called by PW1 to take the goats home- they took the goats home and they started playing with Mwendwa. She said she saw Mutie come to their gate holding a stick. He then asked Mwendwa why his father was disturbing him. He then hit Mwendwa with the stick on the back. He fell and she ran off to call her mother who came – other people as well came. They found accused having been tied with ropes, and Mwendwa was taken away to hospital. She said he did not come back home alive. She identified the stick Mutie used – she said she did not know Mwendwa’s father and had never seen him. She identified Mutie in court.
16. PW3 James Mulinge Mathenge testified that Mwendwa was his grandson and a cousin of the accused.
17. On 30/11/2018 about midday while in the office received a call from one Mbuva Manzi that Mwendwa had been injured. He proceeded to the scene- saw the child lying on the ground oozing blood from mouth, ears and nose. One of his eyes was injured. The accused was also there tied in ropes. He also saw the stick that was used to hit the child and identified it in court. On 1/12/2018 he got report that the child had died. On cross-examination he said the accused was abnormal. He would slaughter cats and one time he tried to commit suicide.
18. On 19/10/2024, the charge sheet was amended and read to the accused. He pleaded not guilty. His counsel was present and raised no objection. No witnesses were recalled.
19. I took over the matter on 21/3/2023. Directions were taken under Section 200(3) of the Criminal Procedure Code and the defence chose to proceed from where the matter had stopped.
20. PW4 testified on 19/4/2023. Jeremiah Kituku Mung’eli told the court that on 30/11/2018 he was ploughing with one Kioko Ngome. The shamba they were ploughing is next to the PW1’s shamba. They could see some children grazing animals in that shamba- then they heard their mother PW1 tell them to take the animals home. Then he saw the accused Mutie who is nephew of PW1’s husband go towards PW1’s gate. The children were playing. He knew the children by the name Susu- PW2 and Papa the deceased. He did not hear what accused told the kids but he saw accused hit Papa with a piece of timber – then he saw Susu running to the shamba where their mother was. He (PW4) rushed to where the boy was and saw he was bleeding from head nose. He said the accused was still there. He picked the boy and set him against the wall so he could sit up. While down that he noticed that the accused wanted to hit him with the same piece of wood- he got hold of the accused together with the piece of wood while calling for help from Kioko Ngome who came and assisted to disarm the accused. Other neighbours came. The boy was taken to hospital and accused was arrested by two Assistant Chiefs who took him to the nearest Police Station.
21. The Assistant Chiefs asked him to accompany them and they took accused with wooden piece of timber which he identified in court, to the police. He later learnt the child had died. On cross-examination he said he was the one who disarmed the accused and recovered the piece of timber, that he had known the accused since 2016 – and in 2017 he noticed that accused would get “kawazimu kidogo” a small madness. He said that something would arise in the accused and he would begin to walk around: kuzurura zurura.
22. PW5 Dr. Stephen Musembi produced the Postmortem report which had been prepared by Dr. Alex Makau – who was away on study leave – there was no objection from the defence. He testified that the body was that of Michael Mwendwa aged 10 years. It was well preserved at the time of examination.
23. On external examination he found small bruises on the left leg, ecchymosis on both eyes (redness, both eyes).
24. On internal examination, he found epidural hemorrhage – bleeding within cover of the brain, on the left per temporal region. Comminuted fracture of the left temporal bone, with multiple butterfly segments, (skull bones on left side, nature of fractures – fragmented – small pieces) extensive linear circular fracture around the skull with comminution on the occipital bone region, massive bleeding into the brain tissue. The Cause of the death, was determined to be severe head injury due to massive intracranial hemorrhage -bleeding – from several blows on the head with a blunt object samples. He stated that samples were taken for DNA matching with the blood found on the murder weapon. The report was signed and stamped on 6/12/2018 by Dr. Alex Makau. It was produced as Pex. 2.
25. PW6 Kioko Ngome was working with PW5 on the shamba when the incident arose. He heard screams at around 1230pm from Irene saying Mutie had killed Mwendwa. Kituku ran to the home as he was stopping the ploughing oxen. He followed to find PW5 struggling with Mutie. The child was there bleeding from ears and nose. They were able to restrain Mutie with ropes. A crowd gathered and the Assistant Chief and Police officers came.
26. The boy was taken for treatment. He accompanied those who went to hospital. He was admitted at Makueni Referral, after a scan was done at Doctor’s Plaza. He stayed with the child till the next day at 10.00am when the doctor told them “Mtoto ameshindwa”. He identified the stick (piece of timber) in court. On cross-examination he said the accused was his cousin; that the 1st incident he recalled accused injured his wife, he was arrested charged and released. The 2nd time, he demolished his homestead. He said this was 3rd incident. That the family did not follow up. On re-examination, he said accused was jailed for hitting his wife then released. That the case was in the court in Tawa Law Courts. He said accused had not been living in the homestead and he saw him when he came that day and injured the child.
27. No. 77961 Corporal David Awino was the investigating officer. He was at Mbumbuni Police Station when PW1 and others came and reported a case of assault – that child had been beaten by his cousin and had been taken to Kisau Hospital. The name of the suspect was Mutie Mathenge. He proceeded to the dispensary to see the child, who was later transferred to Referral Hospital – Makueni.
28. On 1/12/2018 it was reported that the child had died Police Report was amended to murder. He visited the scene, recorded statements. The piece of timber was brought by the relatives. He produced the piece of wood as exhibit 1. On cross-examination he said he interviewed the accused at the time of arrest that accused was behaving like mwenda wazimu (mad person) He said he concluded that the words accused uttered to the child meant that there was a dispute.
29. The prosecution closed their case and in my view the accused had a case to answer under section 306(2) of the Criminal Procedure Code.
30. He testified on 27/3/2025 – He made a sworn statement. He said before he was arrested he was a farmer. The charge was read a fresh to him. He denied the charge saying that he found himself in hospital, and he was told he had killed Mwendwa. He said he did not recall committing the offence.
31. On cross-examination he said Janet PW1 was wife of his uncle and that her home was about 70 steps from his home. He called Irene as his cousin and that Janet PW1 was her mother. He denied knowing Michael Mwendwa Mutheu. He said he knew only one grandchild of Janet by name Kandi. He denied any knowledge of grandson of Janet by the name Mwendwa or Papa. It was put to him that Irene saw him injure the deceased with a piece of timber he said – if the thing happened he could not recall. He found himself in hospital and was told he had killed. He denied any disagreement with family of Janet.
32. On re-exam he said he found himself at Mathari, where he was told he had killed someone. He said he used to be brought to Wote for treatment.
33. The Defence closed without calling any witness.
34. Counsel for the accused filed written submissions.
35. Citing Anthony Ndegwa Ngari vs R [2014] eKLR he submitted that the prosecution is expected to establish the ingredients of murder set out therein.
a) The death of the deceased occurred.
b) That the accused committed the unlawful act which caused the death of the deceased; and
c) That the accused had malice aforethought.
36. He submitted that it was not disputed that a person was killed, and that accused killed the deceased. The issue in dispute was whether the accused had malice afore thought. He posed the question: Was the accused sane at the time he committed the offence?
37. He relied on Roba Galma Wario vs R [2015] eKLR for the proposition that the state had the duty to prove malice aforethought to sustain a conviction of murder: - There the court had stated:
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”
38. He also cited Nzuki V R [1993] for proposition that the offence of murder – the act must be arrived at someone with the following intentions: -
i. Intention to cause death
ii. Intention to cause grievous bodily arm
iii. Where accused knows that there is a risk that death or grievous bodily harm will ensure from his acts and commits them without lawful excuse.
39. It was submitted that accused suffered from a disease of the mind – the kind envisioned by section 12 of the Penal Code and hence accused was absolved from culpability. Counsel cited R vs M’Naghten (1843) 8 E.R for the proposition that the accused was to be adjudged guilty but insane. He urged the court to be guided by the M’naghten Rules as answers to the primary question set out by learned Chief Justice Tindal in the case above.
“Whether at the time the act in question was committed, the prisoner had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of the opinion that the prisoner was not sensible, at the time he committed it, that he was avoiding violating the law both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of the opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him.
40. He relied on R vs CTM [2018] eKLR where the court cited with approval Bratty versus Attorney –General for Northern Ireland (1961) 1 3 ALL ER 523 as to what constitutes a disease of the mind-
The major mental diseases, which the doctors call psychoses, such as schizophrenia, are clearly diseases of the mind. (Per Lord Denning).
The learned judge went further to substantiate that:
It seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind.
The accused was diagnosed with schizophrenia which, as noted, has been acknowledged by the learned judges of the House of Lords to be one of those diseases that fit the description of a ‘disease of the mind’ within the context of the M’Naghten Rule. There is no doubt therefore that the accused was suffering from a disease of the mind.
41. He submitted that the accused was diagnosed with schizophrenia which falls within the diseases of the mind within the context of the M’Naghten Rules. He submitted that it was doubtful that accused had malice aforethought and urged the court to make a finding of not guilty of murder, and acquit the accused person.
42. I have set out the evidence herein above and the submissions by the defence as the state chose not to file any.
43. The issue for determination is whether the prosecution has proved the charge of murder beyond a reasonable doubt, whether the defence of guilty but insane is available to the accused person, and if so, what orders this court ought to make.
44. It would have been illuminating to hear from the prosecution what the views of the DPP are regarding these issues.
45. On the first issue the prosecution must establish the three key elements: that there was a death, caused unlawfully by the accused, with malice aforethought.
46. Regarding the first element, it is not in dispute that the child died. And even if it was disputed the evidences there. There is a postmortem report confirming that the cause of death was not natural. It resulted from injuries inflicted by blunt force on the head. Another child saw this child being struck on the head.
47. Hence the ingredients of death of a person through unlawful means was established.
48. Who caused the death? The prosecution produced eye witnesses and the accused was arrested at the scene with the weapon in his hand while he attempted to strike the person who went to rescue the child. There is no doubt that the accused person is the one who inflicted the fatal blow.
49. Was there malice afore thought? Section 206 of the Penal Code sets out. Malice aforethought
Malice aforethought 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
50. The weapon used, a huge piece of timber, and the question posed to the child indicates that the accused person intended to harm the child. It was testified that he demanded to know from the child why the child’s father was disturbing the accused. Hence the intention to cause harm was there: ostensibly to deal with the child father’s issue.
51. Was there knowledge that the act causing death would probably cause the death of or grievous harm to the child?
52. Throughout the trial and in his defence the accused presented a defence of insanity at the time of the act that caused the death of the child here. It was his defence that he did not know that he had injured he child let alone kill him, and found himself in hospital where he was told that he had killed a child.
53. The Penal Code at s. 11 provides for the presumption of sanity everyone is presumed to be sane until they prove otherwise.
54. S. 12 provides the exemption, to this presumption and the criminal culpability of the accused person in the two scenarios of insanity at the point of committing the offence, and insanity post committing the offence.
55. It is the accused’s defence that he was insane at the point of committing the offence as he was suffering from a disease of the mind that had the effect of taking away his capacity of understanding what he is doing, or of knowing that he ought not to do the act or make the omission
56. Other than the accused’s testimony, the witnesses for the prosecution testified that the accused had mental health issues even before this incident.
57. The family members who witnessed the incident describe the bizarre things he did that day- chopping down his fruit trees, throwing away his household goods and cutting up his bed.
58. Even the confrontation with the child, demanding to know from the child why the child’s father was disturbing the accused. Followed by the violent attack on the child. The prosecution witness said that the child’s father was not known to the family. No one was aware of any family dispute with the alleged father of the child to warrant the said attack. In any event nothing would have warranted such an attack on the child on account of anything the father would have done.
59. Further when he was sent to Mathari Hospital for assessment - this was the report from Dr. Mucheru Wang’ombe specialist Psychiatrist dated 7/3/2019.
I have reviewed the accused who was in the company of a CID Officer from Mbooni East.
On Mental Status Evaluation
Appearance: Very unkempt/distraught
Eye contact: Avoids eye contact
Rapport: Difficult to establish
Speech: In coherent speech
Further evaluation not possible
Suicidal - wants an injection to die
Recommendation
In patient treatment recommended as emergency
Court to avail next of kin for interview during the period of hospitalization.
Commenced on medication which should be administered. Strictly by staff owing to suicidal risk
60. Though there was no specific diagnosis the Dr. was of the view that the accused needed emergency treatment for a mental illness that made him a risk to himself.
61. An order issued from court dated 22/5/2019 for the accused to be committed for treatment at Mathari for 6 months. The judge, Hon Ong’udi J indicated that the purpose of the order –
“for the purpose of expeditious delivery of justice and or fair hearing of this matter “
1. That the accused to be committed to Mathari mental hospital for treatment for six (6) months.
2. That a report to be filed.
That mention on 21/11/2019 for further orders.
62. There was another letter issuing an order to the Judge, dated 21st June 2019, from the Principal Secretary State Department for Correctional Services authorizing the Judge to issue a Warrant in accordance with Secretary’s Order. The letter written under THE CRIMINAL PROCEDURE CODE (CAP 75 –SECTION 162(1-5) was addressed to THE HIGH COURT OF KENYA AT MAKUENI, THE OFFICER IN CHARGE, MAKUENI MAIN PRSION, THE OFFICER IN CHARGE, NAIROBI REMAND AND ALLOCATION MAXIMUM SECURITY PRISON, AND THE CHIEF CONSULTANT PSYCHIATRIST IN CHARGE MATHARI HOSPITAL NAROBI and stated;
WHEREAS: -
1) MUTIE MATHENGE (herein referred to as “the said accused”) was on the 13th day of December, 2018 charged before the High court at Makueni in Criminal Case NO. 27 of 2018 for the offence of Murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya.
2) The said court after due inquiry was on the 27th day of May, 2019 of the opinion that the said accused cannot plead to charges due to mental illness, and in accordance with the provisions of section 162(5) of the Criminal Procedure Code ordered him to be detained as a Criminal Mental Patient for treatment until further orders are given, and
3) The said accused is at present confined in Makueni Main Prison
Now, therefore in exercise of the powers conferred to by section 162(5) of the Criminal Procedure Code and delegated to me and of all other powers me thereunto enabling…Principal Secretary, State department of Correctional Services do hereby Direct that the said accused be removed and delivered into the custody of the Chief Consultant Psychiatrist in Charge, Mathari Hospital, Nairobi: And this is to authorize you the Judge to issue a warrant in accordance with this order.
63. The import of this ‘Order’ is that the Judge required the directions of the Principal Secretary Correctional Services in order to issue the Orders for the Committal of the accused at the treatment facility. It is instructive that despite the accused not having been tried yet, he was referred to as a Criminal Mental Patient.
64. A further letter dated 31/7/2019 from Minister of Interior, State Department for Correctional Services signed by Officer in Charge Makueni Main Prison- indicated that there were 5 inmates including the accused herein who had been booked for admission at Mathari. The letter stated;
Re: James Kavini in HCCR. 224/2017
Kioko Mulili in HCCR 9 of 2018
Michael Wambua Mutua in HCCR52/2017
Boniface Mwendwa Joseph in HCRC. 58/2017
Mutie Mathenge in HCCR 27/2018
Kindly be informed that the above named remandees have been booked for admission at Mathari Hospital Nairobi on 20/8/2019 and 27/8/2019 respectively. Your orders on the above quoted files are relevant
65. On 7/8/2019 – another letter issued from prison stating;
REMOVAL ORDERS I.R.O HC CR. 27/2018 MUTIE MATHENGE
We request you to reissue us with order and warrant for the above quoted remand to enable us remove him to Mathari Hospital Nairobi for admission.
You issued us with only one copy of the said document which we used to request for removal instrument from our departments Headquarters thus leaving us with no other order to facilitate his removal to Mathari Hospital.
In that regard, also be informed that he has been booked for admission at Mathari on 27/8/2019 as indicated in our letter MKN/P/2/1/VOL.11/146 dated 31/7/2019. Your speedy response shall be highly appreciated.
Kindly acknowledge receipt of this letter.
66. A fresh order and warrant dated 22nd May 2019, was re issued on 27th May 2019, and another of 27th August 2019, in form Criminal B under Section 162/280 of Criminal Procedure Code were made. The form of the order is that it is addressed to the Officer in Charge of Prison/Hospital/Police station, to the Officer in Charge of similar places. It bears the names of the accused – before whom he is charged – (name and designation), the offence, the statute, date of the order directing that the accused be detained in the named facility (hospital/other suitable place of custody). It is the authority to remove the named accused to the custody officer in charge of the receiving institution – who is to receive the accused and DETAIN HIM UNTIL FURTHER ORDER. It is copied to the Attorney General, the Court Prosecutor.
67. It is clearly evident that the form itself exists in the previous Constitutional regime where the ODPP did not exists and there were only three ranks of the magistracy. The SRM, RM and DM (I, II, III). It has not been revised.
68. Pursuant to the foregoing the accused was removed and detained at Mathari Hospital.
69. On 28/10/2019 the Mathari Hospital wrote to ODPP – Certificate of capability to make defence under Section 163(1) of the Criminal Procedure Code. It stated that accused was committed on 22/5/2019 and had now became capable of making his/her defence asking the ODPP to give directions under Section 163(2) of the same Code.
70. The record shows that the report is copied to Principal Secretary State Department of Correctional Services, The Principal Magistrate High Court of Kenya, Magistrate, Makueni Law Courts, the Commissioner of Prisons and the Officer in Charge Makueni Prison.
71. On 14/1/2020 the DPP gave directions in the following terms District Magistrate - Makueni
High court CR. C No.27/2018 – Republic Vs Mathenge Mutie
The Director of Public Prosecution has received a certificate in respect of the above named accused from Mathari Hospital under Section 163(1) Criminal Procedure Code copy thereof will have been sent to and receive by you.
In terms of Section 163(2) Criminal Procedure Code, I wish to inform the court that it is the intention of the Republic that proceedings against the accused shall continue.
72. That is how he ended up taking the plea on 15th January 2020 slightly more than a year after his arrest.
73. It is instructive from the foregoing that three months after his arrest the accused required emergency admission.
74. The foregoing demonstrates that the accused was suffering from a disease of the mind, and it is evident that it was there even before he was arrested. It is also evident that the journey to obtaining a diagnosis, a proper report guiding the justice system on what to do, is long and the accused to wait for 7 years in custody for his case to be heard.
75. Looking at Section 11 of the Penal Code sets out the presumption of sanity which 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. And Section 12 which provides for the exception on the grounds of Insanity, differentiating between the person who is insane at the time of committing the offence and the one who becomes insane post committing the offence, It is evident that the accused person falls within the category of the person who is not criminally responsible for an act or omission if at the time of doing the act or making the omission because of the disease affecting his mind that made him incapable of understanding what he is doing, or of knowing that he ought not to have done the act.
76. In this case I find that the prosecution’s witnesses also supported the defence by the accused that at the time of the offence he was not of sound mind.
77. While acutely alert to, and aware of the clear provisions of Article 157 of the Constitution and what it states at 157(4) (10) and (11) that
(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.
(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
78. Taking a cue from other Guidelines on prosecution of special categories of offenders, whether the times call for the prosecution to have guidelines on the prosecution of persons with mental disabilities/illnesses. Evidently the Criminal Procedure Code has been found wanting, and the mental health landscape in the criminal justice system has been shifted by the Bill of Rights in the Constitution of Kenya, 2010, new legislation and the jurisprudence therewith. In my humble view such Guidelines would influence the manner of investigations of such cases, guide on when and whether or not to charge such persons, and would deal with situations such as this where a person with a mental illness spends long periods of time in pretrial detention due to the mental illness.
79. Section 166(1) of the Criminal Procedure Code tells the court what to do upon the finding that the person was insane at the point of committing the offence. It states:
Where an act or o
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2. He was presented in court on 13/12/2018 but had mental health issues.
3. He took plea on 15/1/2020 before Hon. Ong’udi J after he was found to be fit to plead. He was represented by Mr. Judah Kioko Advocate. The matter proceeded before the Hon. Dulu J. on 11/5/2022.
4. PW1 Janet Nzilani Mbuva told the court that the deceased was her grandson, the accused, her nephew- (from her husband’s side) and they lived together in the same home. She testified that she also lived with her children, Irene, Crisma & Ingrid.
5. On 30/11/2018 after breakfast - Irene & Mwendwa (deceased) took the goats to graze on Mutie’s (the accused) land while she went to the farm with Crisma. While there she could see Mutie cutting mango and banana plants in his farm. He then went home and took his belongings, and threw them in the dam. Then took out his bed and cut it into pieces.
6. There was one by name Kioko who was ploughing with cows on her farm. She heard screams from Kioko calling out saying that the child had been killed and they needed to go there. She told Kioko to go as she was following him.
7. When she reached where the screams were coming from she found a crowd already. The child Mwendwa was lying on the ground bleeding from the nose while Mutie was on the ground there tied with ropes.
8. The child was taken Kisau dispensary, while report was made at Mbumbuni Police Station. At Kisau the child was put on oxygen. An ambulance came and he was taken to Wote Hospital (Makueni Referral) where the Doctor told her that the child’s injuries were very seriously and everything was in God’s hands. But the child died at 1.00pm the next day. The death was reported to the police.
9. As she identified the murder weapon in court, she told the court that the child had been with Irene who told her that Mutie had approached the child, and demanded to know why the child’s father was disturbing him – then hit the child with the stick on the head, causing the child to collapse and faint. She saw the stick at the scene.
10. She said Mwendwa was her daughter’s child and she did not know the child’s father. She also said she did not know whether or not the accused Mutie knew the child’s father.
11. She testified further that the accused had tried to commit suicide by strangling himself but was rescued by a neighbor who cut the rope. She said she had raised accused from when he was an infant. That sometimes he would be out of his head, that he once assaulted his wife and she left him. He was arrested and placed in custody.
12. On cross-examination by Mr. Kioko she told the court that the accused appeared to have mental health problems. She told the court there were times he would say he was seeing people; who no one else would see. That he was brought to Makueni Referral Hospital for treatment but was not cured.
13. PW2 1M- 14-year-old girl was adjudged by the judge to be a child who did know the importance of the oath. The judge directed that she gives unsworn testimony. She told the court she was 14 years old and was by then in class 8 at M…. Primary School. She was the last born of PW1.
14. On the material date she was herding goats with Mwendwa, her nephew – while her mother was in the shamba. From where they were herding, they could see Mutie the accused. They saw him cutting his mango trees, banana plants, and even his bed.
15. Then they were called by PW1 to take the goats home- they took the goats home and they started playing with Mwendwa. She said she saw Mutie come to their gate holding a stick. He then asked Mwendwa why his father was disturbing him. He then hit Mwendwa with the stick on the back. He fell and she ran off to call her mother who came – other people as well came. They found accused having been tied with ropes, and Mwendwa was taken away to hospital. She said he did not come back home alive. She identified the stick Mutie used – she said she did not know Mwendwa’s father and had never seen him. She identified Mutie in court.
16. PW3 James Mulinge Mathenge testified that Mwendwa was his grandson and a cousin of the accused.
17. On 30/11/2018 about midday while in the office received a call from one Mbuva Manzi that Mwendwa had been injured. He proceeded to the scene- saw the child lying on the ground oozing blood from mouth, ears and nose. One of his eyes was injured. The accused was also there tied in ropes. He also saw the stick that was used to hit the child and identified it in court. On 1/12/2018 he got report that the child had died. On cross-examination he said the accused was abnormal. He would slaughter cats and one time he tried to commit suicide.
18. On 19/10/2024, the charge sheet was amended and read to the accused. He pleaded not guilty. His counsel was present and raised no objection. No witnesses were recalled.
19. I took over the matter on 21/3/2023. Directions were taken under Section 200(3) of the Criminal Procedure Code and the defence chose to proceed from where the matter had stopped.
20. PW4 testified on 19/4/2023. Jeremiah Kituku Mung’eli told the court that on 30/11/2018 he was ploughing with one Kioko Ngome. The shamba they were ploughing is next to the PW1’s shamba. They could see some children grazing animals in that shamba- then they heard their mother PW1 tell them to take the animals home. Then he saw the accused Mutie who is nephew of PW1’s husband go towards PW1’s gate. The children were playing. He knew the children by the name Susu- PW2 and Papa the deceased. He did not hear what accused told the kids but he saw accused hit Papa with a piece of timber – then he saw Susu running to the shamba where their mother was. He (PW4) rushed to where the boy was and saw he was bleeding from head nose. He said the accused was still there. He picked the boy and set him against the wall so he could sit up. While down that he noticed that the accused wanted to hit him with the same piece of wood- he got hold of the accused together with the piece of wood while calling for help from Kioko Ngome who came and assisted to disarm the accused. Other neighbours came. The boy was taken to hospital and accused was arrested by two Assistant Chiefs who took him to the nearest Police Station.
21. The Assistant Chiefs asked him to accompany them and they took accused with wooden piece of timber which he identified in court, to the police. He later learnt the child had died. On cross-examination he said he was the one who disarmed the accused and recovered the piece of timber, that he had known the accused since 2016 – and in 2017 he noticed that accused would get “kawazimu kidogo” a small madness. He said that something would arise in the accused and he would begin to walk around: kuzurura zurura.
22. PW5 Dr. Stephen Musembi produced the Postmortem report which had been prepared by Dr. Alex Makau – who was away on study leave – there was no objection from the defence. He testified that the body was that of Michael Mwendwa aged 10 years. It was well preserved at the time of examination.
23. On external examination he found small bruises on the left leg, ecchymosis on both eyes (redness, both eyes).
24. On internal examination, he found epidural hemorrhage – bleeding within cover of the brain, on the left per temporal region. Comminuted fracture of the left temporal bone, with multiple butterfly segments, (skull bones on left side, nature of fractures – fragmented – small pieces) extensive linear circular fracture around the skull with comminution on the occipital bone region, massive bleeding into the brain tissue. The Cause of the death, was determined to be severe head injury due to massive intracranial hemorrhage -bleeding – from several blows on the head with a blunt object samples. He stated that samples were taken for DNA matching with the blood found on the murder weapon. The report was signed and stamped on 6/12/2018 by Dr. Alex Makau. It was produced as Pex. 2.
25. PW6 Kioko Ngome was working with PW5 on the shamba when the incident arose. He heard screams at around 1230pm from Irene saying Mutie had killed Mwendwa. Kituku ran to the home as he was stopping the ploughing oxen. He followed to find PW5 struggling with Mutie. The child was there bleeding from ears and nose. They were able to restrain Mutie with ropes. A crowd gathered and the Assistant Chief and Police officers came.
26. The boy was taken for treatment. He accompanied those who went to hospital. He was admitted at Makueni Referral, after a scan was done at Doctor’s Plaza. He stayed with the child till the next day at 10.00am when the doctor told them “Mtoto ameshindwa”. He identified the stick (piece of timber) in court. On cross-examination he said the accused was his cousin; that the 1st incident he recalled accused injured his wife, he was arrested charged and released. The 2nd time, he demolished his homestead. He said this was 3rd incident. That the family did not follow up. On re-examination, he said accused was jailed for hitting his wife then released. That the case was in the court in Tawa Law Courts. He said accused had not been living in the homestead and he saw him when he came that day and injured the child.
27. No. 77961 Corporal David Awino was the investigating officer. He was at Mbumbuni Police Station when PW1 and others came and reported a case of assault – that child had been beaten by his cousin and had been taken to Kisau Hospital. The name of the suspect was Mutie Mathenge. He proceeded to the dispensary to see the child, who was later transferred to Referral Hospital – Makueni.
28. On 1/12/2018 it was reported that the child had died Police Report was amended to murder. He visited the scene, recorded statements. The piece of timber was brought by the relatives. He produced the piece of wood as exhibit 1. On cross-examination he said he interviewed the accused at the time of arrest that accused was behaving like mwenda wazimu (mad person) He said he concluded that the words accused uttered to the child meant that there was a dispute.
29. The prosecution closed their case and in my view the accused had a case to answer under section 306(2) of the Criminal Procedure Code.
30. He testified on 27/3/2025 – He made a sworn statement. He said before he was arrested he was a farmer. The charge was read a fresh to him. He denied the charge saying that he found himself in hospital, and he was told he had killed Mwendwa. He said he did not recall committing the offence.
31. On cross-examination he said Janet PW1 was wife of his uncle and that her home was about 70 steps from his home. He called Irene as his cousin and that Janet PW1 was her mother. He denied knowing Michael Mwendwa Mutheu. He said he knew only one grandchild of Janet by name Kandi. He denied any knowledge of grandson of Janet by the name Mwendwa or Papa. It was put to him that Irene saw him injure the deceased with a piece of timber he said – if the thing happened he could not recall. He found himself in hospital and was told he had killed. He denied any disagreement with family of Janet.
32. On re-exam he said he found himself at Mathari, where he was told he had killed someone. He said he used to be brought to Wote for treatment.
33. The Defence closed without calling any witness.
34. Counsel for the accused filed written submissions.
35. Citing Anthony Ndegwa Ngari vs R [2014] eKLR he submitted that the prosecution is expected to establish the ingredients of murder set out therein.
a) The death of the deceased occurred.
b) That the accused committed the unlawful act which caused the death of the deceased; and
c) That the accused had malice aforethought.
36. He submitted that it was not disputed that a person was killed, and that accused killed the deceased. The issue in dispute was whether the accused had malice afore thought. He posed the question: Was the accused sane at the time he committed the offence?
37. He relied on Roba Galma Wario vs R [2015] eKLR for the proposition that the state had the duty to prove malice aforethought to sustain a conviction of murder: - There the court had stated:
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”
38. He also cited Nzuki V R [1993] for proposition that the offence of murder – the act must be arrived at someone with the following intentions: -
i. Intention to cause death
ii. Intention to cause grievous bodily arm
iii. Where accused knows that there is a risk that death or grievous bodily harm will ensure from his acts and commits them without lawful excuse.
39. It was submitted that accused suffered from a disease of the mind – the kind envisioned by section 12 of the Penal Code and hence accused was absolved from culpability. Counsel cited R vs M’Naghten (1843) 8 E.R for the proposition that the accused was to be adjudged guilty but insane. He urged the court to be guided by the M’naghten Rules as answers to the primary question set out by learned Chief Justice Tindal in the case above.
“Whether at the time the act in question was committed, the prisoner had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of the opinion that the prisoner was not sensible, at the time he committed it, that he was avoiding violating the law both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of the opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him.
40. He relied on R vs CTM [2018] eKLR where the court cited with approval Bratty versus Attorney –General for Northern Ireland (1961) 1 3 ALL ER 523 as to what constitutes a disease of the mind-
The major mental diseases, which the doctors call psychoses, such as schizophrenia, are clearly diseases of the mind. (Per Lord Denning).
The learned judge went further to substantiate that:
It seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind.
The accused was diagnosed with schizophrenia which, as noted, has been acknowledged by the learned judges of the House of Lords to be one of those diseases that fit the description of a ‘disease of the mind’ within the context of the M’Naghten Rule. There is no doubt therefore that the accused was suffering from a disease of the mind.
41. He submitted that the accused was diagnosed with schizophrenia which falls within the diseases of the mind within the context of the M’Naghten Rules. He submitted that it was doubtful that accused had malice aforethought and urged the court to make a finding of not guilty of murder, and acquit the accused person.
42. I have set out the evidence herein above and the submissions by the defence as the state chose not to file any.
43. The issue for determination is whether the prosecution has proved the charge of murder beyond a reasonable doubt, whether the defence of guilty but insane is available to the accused person, and if so, what orders this court ought to make.
44. It would have been illuminating to hear from the prosecution what the views of the DPP are regarding these issues.
45. On the first issue the prosecution must establish the three key elements: that there was a death, caused unlawfully by the accused, with malice aforethought.
46. Regarding the first element, it is not in dispute that the child died. And even if it was disputed the evidences there. There is a postmortem report confirming that the cause of death was not natural. It resulted from injuries inflicted by blunt force on the head. Another child saw this child being struck on the head.
47. Hence the ingredients of death of a person through unlawful means was established.
48. Who caused the death? The prosecution produced eye witnesses and the accused was arrested at the scene with the weapon in his hand while he attempted to strike the person who went to rescue the child. There is no doubt that the accused person is the one who inflicted the fatal blow.
49. Was there malice afore thought? Section 206 of the Penal Code sets out. Malice aforethought
Malice aforethought 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
50. The weapon used, a huge piece of timber, and the question posed to the child indicates that the accused person intended to harm the child. It was testified that he demanded to know from the child why the child’s father was disturbing the accused. Hence the intention to cause harm was there: ostensibly to deal with the child father’s issue.
51. Was there knowledge that the act causing death would probably cause the death of or grievous harm to the child?
52. Throughout the trial and in his defence the accused presented a defence of insanity at the time of the act that caused the death of the child here. It was his defence that he did not know that he had injured he child let alone kill him, and found himself in hospital where he was told that he had killed a child.
53. The Penal Code at s. 11 provides for the presumption of sanity everyone is presumed to be sane until they prove otherwise.
54. S. 12 provides the exemption, to this presumption and the criminal culpability of the accused person in the two scenarios of insanity at the point of committing the offence, and insanity post committing the offence.
55. It is the accused’s defence that he was insane at the point of committing the offence as he was suffering from a disease of the mind that had the effect of taking away his capacity of understanding what he is doing, or of knowing that he ought not to do the act or make the omission
56. Other than the accused’s testimony, the witnesses for the prosecution testified that the accused had mental health issues even before this incident.
57. The family members who witnessed the incident describe the bizarre things he did that day- chopping down his fruit trees, throwing away his household goods and cutting up his bed.
58. Even the confrontation with the child, demanding to know from the child why the child’s father was disturbing the accused. Followed by the violent attack on the child. The prosecution witness said that the child’s father was not known to the family. No one was aware of any family dispute with the alleged father of the child to warrant the said attack. In any event nothing would have warranted such an attack on the child on account of anything the father would have done.
59. Further when he was sent to Mathari Hospital for assessment - this was the report from Dr. Mucheru Wang’ombe specialist Psychiatrist dated 7/3/2019.
I have reviewed the accused who was in the company of a CID Officer from Mbooni East.
On Mental Status Evaluation
Appearance: Very unkempt/distraught
Eye contact: Avoids eye contact
Rapport: Difficult to establish
Speech: In coherent speech
Further evaluation not possible
Suicidal - wants an injection to die
Recommendation
In patient treatment recommended as emergency
Court to avail next of kin for interview during the period of hospitalization.
Commenced on medication which should be administered. Strictly by staff owing to suicidal risk
60. Though there was no specific diagnosis the Dr. was of the view that the accused needed emergency treatment for a mental illness that made him a risk to himself.
61. An order issued from court dated 22/5/2019 for the accused to be committed for treatment at Mathari for 6 months. The judge, Hon Ong’udi J indicated that the purpose of the order –
“for the purpose of expeditious delivery of justice and or fair hearing of this matter “
1. That the accused to be committed to Mathari mental hospital for treatment for six (6) months.
2. That a report to be filed.
That mention on 21/11/2019 for further orders.
62. There was another letter issuing an order to the Judge, dated 21st June 2019, from the Principal Secretary State Department for Correctional Services authorizing the Judge to issue a Warrant in accordance with Secretary’s Order. The letter written under THE CRIMINAL PROCEDURE CODE (CAP 75 –SECTION 162(1-5) was addressed to THE HIGH COURT OF KENYA AT MAKUENI, THE OFFICER IN CHARGE, MAKUENI MAIN PRSION, THE OFFICER IN CHARGE, NAIROBI REMAND AND ALLOCATION MAXIMUM SECURITY PRISON, AND THE CHIEF CONSULTANT PSYCHIATRIST IN CHARGE MATHARI HOSPITAL NAROBI and stated;
WHEREAS: -
1) MUTIE MATHENGE (herein referred to as “the said accused”) was on the 13th day of December, 2018 charged before the High court at Makueni in Criminal Case NO. 27 of 2018 for the offence of Murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya.
2) The said court after due inquiry was on the 27th day of May, 2019 of the opinion that the said accused cannot plead to charges due to mental illness, and in accordance with the provisions of section 162(5) of the Criminal Procedure Code ordered him to be detained as a Criminal Mental Patient for treatment until further orders are given, and
3) The said accused is at present confined in Makueni Main Prison
Now, therefore in exercise of the powers conferred to by section 162(5) of the Criminal Procedure Code and delegated to me and of all other powers me thereunto enabling…Principal Secretary, State department of Correctional Services do hereby Direct that the said accused be removed and delivered into the custody of the Chief Consultant Psychiatrist in Charge, Mathari Hospital, Nairobi: And this is to authorize you the Judge to issue a warrant in accordance with this order.
63. The import of this ‘Order’ is that the Judge required the directions of the Principal Secretary Correctional Services in order to issue the Orders for the Committal of the accused at the treatment facility. It is instructive that despite the accused not having been tried yet, he was referred to as a Criminal Mental Patient.
64. A further letter dated 31/7/2019 from Minister of Interior, State Department for Correctional Services signed by Officer in Charge Makueni Main Prison- indicated that there were 5 inmates including the accused herein who had been booked for admission at Mathari. The letter stated;
Re: James Kavini in HCCR. 224/2017
Kioko Mulili in HCCR 9 of 2018
Michael Wambua Mutua in HCCR52/2017
Boniface Mwendwa Joseph in HCRC. 58/2017
Mutie Mathenge in HCCR 27/2018
Kindly be informed that the above named remandees have been booked for admission at Mathari Hospital Nairobi on 20/8/2019 and 27/8/2019 respectively. Your orders on the above quoted files are relevant
65. On 7/8/2019 – another letter issued from prison stating;
REMOVAL ORDERS I.R.O HC CR. 27/2018 MUTIE MATHENGE
We request you to reissue us with order and warrant for the above quoted remand to enable us remove him to Mathari Hospital Nairobi for admission.
You issued us with only one copy of the said document which we used to request for removal instrument from our departments Headquarters thus leaving us with no other order to facilitate his removal to Mathari Hospital.
In that regard, also be informed that he has been booked for admission at Mathari on 27/8/2019 as indicated in our letter MKN/P/2/1/VOL.11/146 dated 31/7/2019. Your speedy response shall be highly appreciated.
Kindly acknowledge receipt of this letter.
66. A fresh order and warrant dated 22nd May 2019, was re issued on 27th May 2019, and another of 27th August 2019, in form Criminal B under Section 162/280 of Criminal Procedure Code were made. The form of the order is that it is addressed to the Officer in Charge of Prison/Hospital/Police station, to the Officer in Charge of similar places. It bears the names of the accused – before whom he is charged – (name and designation), the offence, the statute, date of the order directing that the accused be detained in the named facility (hospital/other suitable place of custody). It is the authority to remove the named accused to the custody officer in charge of the receiving institution – who is to receive the accused and DETAIN HIM UNTIL FURTHER ORDER. It is copied to the Attorney General, the Court Prosecutor.
67. It is clearly evident that the form itself exists in the previous Constitutional regime where the ODPP did not exists and there were only three ranks of the magistracy. The SRM, RM and DM (I, II, III). It has not been revised.
68. Pursuant to the foregoing the accused was removed and detained at Mathari Hospital.
69. On 28/10/2019 the Mathari Hospital wrote to ODPP – Certificate of capability to make defence under Section 163(1) of the Criminal Procedure Code. It stated that accused was committed on 22/5/2019 and had now became capable of making his/her defence asking the ODPP to give directions under Section 163(2) of the same Code.
70. The record shows that the report is copied to Principal Secretary State Department of Correctional Services, The Principal Magistrate High Court of Kenya, Magistrate, Makueni Law Courts, the Commissioner of Prisons and the Officer in Charge Makueni Prison.
71. On 14/1/2020 the DPP gave directions in the following terms District Magistrate - Makueni
High court CR. C No.27/2018 – Republic Vs Mathenge Mutie
The Director of Public Prosecution has received a certificate in respect of the above named accused from Mathari Hospital under Section 163(1) Criminal Procedure Code copy thereof will have been sent to and receive by you.
In terms of Section 163(2) Criminal Procedure Code, I wish to inform the court that it is the intention of the Republic that proceedings against the accused shall continue.
72. That is how he ended up taking the plea on 15th January 2020 slightly more than a year after his arrest.
73. It is instructive from the foregoing that three months after his arrest the accused required emergency admission.
74. The foregoing demonstrates that the accused was suffering from a disease of the mind, and it is evident that it was there even before he was arrested. It is also evident that the journey to obtaining a diagnosis, a proper report guiding the justice system on what to do, is long and the accused to wait for 7 years in custody for his case to be heard.
75. Looking at Section 11 of the Penal Code sets out the presumption of sanity which 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. And Section 12 which provides for the exception on the grounds of Insanity, differentiating between the person who is insane at the time of committing the offence and the one who becomes insane post committing the offence, It is evident that the accused person falls within the category of the person who is not criminally responsible for an act or omission if at the time of doing the act or making the omission because of the disease affecting his mind that made him incapable of understanding what he is doing, or of knowing that he ought not to have done the act.
76. In this case I find that the prosecution’s witnesses also supported the defence by the accused that at the time of the offence he was not of sound mind.
77. While acutely alert to, and aware of the clear provisions of Article 157 of the Constitution and what it states at 157(4) (10) and (11) that
(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.
(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
78. Taking a cue from other Guidelines on prosecution of special categories of offenders, whether the times call for the prosecution to have guidelines on the prosecution of persons with mental disabilities/illnesses. Evidently the Criminal Procedure Code has been found wanting, and the mental health landscape in the criminal justice system has been shifted by the Bill of Rights in the Constitution of Kenya, 2010, new legislation and the jurisprudence therewith. In my humble view such Guidelines would influence the manner of investigations of such cases, guide on when and whether or not to charge such persons, and would deal with situations such as this where a person with a mental illness spends long periods of time in pretrial detention due to the mental illness.
79. Section 166(1) of the Criminal Procedure Code tells the court what to do upon the finding that the person was insane at the point of committing the offence. It states:
Where an act or o
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