- The court noted that the complaint raised was that SKK was sentenced to an indefinite and indeterminate sentence by the trial court.
- After deliberations, the judges dismissed the appeal and ordered that the man be admitted to a mental hospital.
In the early evening hours of December 9, 2009, within Kilifi, a woman codenamed KNN, was at home with her children when a man "appeared out of nowhere" and began scolding her.
This escalated to a physical attack and the man, SKK, punched the woman whereupon she fell and her assaulter stepped on her.
He would then produce a panga with which he cut her twice on the head and shoulder/arm area, and fled the scene.
As it would be the right reaction for such an incident, the woman and her children were left screaming, loud enough for the headmaster at a nearby school to hear.
He did not think much of it at the time but the screaming persisted prompting him to seek its source.
On the way, he met SKK's mother, his sisters and wife, who were holding and restraining the man.
He was speaking in a raised voice saying, "niacheni nikamumalize kabisa. Maana siwezi vumilia kuona mtu akitesa watoto wangu".
This is loosely translated to, "Leave me so I can finish her completely. I cannot tolerate someone tormenting my children."
As the headteacher was inquiring what was going on, SKK ran off in the direction of the screams but they pursued and restrained him.
With the help of the teacher, they persuaded the man to calm down and go to his mother's house, where they locked him up.
When the headteacher finally got to the scene, some 100 meters from where the family was, he found KNN lying in a pool of blood, describing the sight as "her breathing was slow and very weak, she was dying".
He then called the chief and returned to move SKK from his mother's house to his own.
Meanwhile, the chief arrived at the crime scene with the police and proceeded to the assaulter's house where they arrested him.
SKK's mother would later reveal that her son had epilepsy and would go to hospital frequently and that at one time he was sick and hospitalised.
While the unfortunate incident was taking place, KNN's husband, code-named KHK was away on his farm and only learnt later that his wife had been killed and the body taken to Kilifi mortuary.
After he identified her body, a postmortem was performed by a doctor whose report was produced before the trial court.
The cause of death was indicated as "severe head injury".
Recounting the day before the court, an officer from Kilifi police station said they received information at around 7:45 pm that someone had been murdered in Ngerenya village.
When they got to the scene, they found people gathered at the deceased's home, where her body was still lying, with deep injuries on the head and right hand.
The officers proceeded to re-arrest SKK, who had already been arrested by the people.
The man is said to have "appeared mentally disturbed" when he was arrested.
When the officers conducted investigations, SKK underwent a psychiatric examination at Coast General Hospital.
In his defence, the man told the court that he was at home with his three children at 6:45 pm on the material date when he heard screams.
They went on for about half an hour before he decided to go out and find out what was happening.
He claimed that he found a crowd gathered near the door of his brother’s house and tried to enquire what was going on, but he did not get information.
He then decided to go and inform his mother what was happening so that she could witness, where she met her leaving the shamba rushing to the scene.
SKK said he passed her on the way as she was going in the opposite direction as he was going home.
At about 8 pm, he claimed, police officers came, arrested him and beat him but he could not understand why he was being beaten.
He told the court that he was surprised at the allegation and knew nothing about the murder.
In a judgement dated November 15, 2011, delivered on February 10, 2012, the High Court made a special finding under section 166(1) of the Criminal Procedure Code (CPC) and found SKK guilty of the act but was insane at the time he committed the act.
The judge expressed: "…my finding is that the charge is proved, and I find the accused guilty but insane at the time of committing the offence".
Aggrieved, SKK appealed at the Court of Appeal at Malindi complaining that the High Court judge erred in law by failing to consider that presidential pleasure under section 166 "…is no longer a punishment in Kenya".
On his behalf, SKK's counsel appealed on the grounds that,"...the learned judge erred in giving a manifestly excessive, harsh, indefinite and indeterminate sentence that violates the human dignity of the appellant and denies the judicial officers discretion and faults (sic) the doctrine of separation of powers".
Appellate judges Gatembu Kairu, Pauline Nyamweya and George Vincent Odunga concluded that it was not contested that the man murdered KNN, and was insane at the time.
They noted that his grievance was that his incarceration at the pleasure of the president under section 166 of the CPC was illegal.
Section 166 of the CPC provides that when a person is found to have committed an offence whilst insane, the court is to make a special finding to the said effect.
After the special finding is so made, the court shall report the case for the order of the president, and at the time being order the accused to be kept in custody.
Upon reception, the president may order the person to be detained in a mental hospital, prison or other suitable place of safe custody.
The judges noted that there have been several conflicts regarding the aforesaid section, on its constitutionality.
In a ruling delivered in April 2018, one court said this was to the extent that the section takes away the judicial function to determine the nature of the sentence or consequence of the special finding contrary to Article 160 of the Constitution by vesting the discretionary power in the executive.
Article 160 is on the independence of the judiciary.
In the 2018 ruling, it was declared that the name of the President be replaced with that of the court in section 166 of the CPC.
Another court termed the section as a legal paradox in that to find a person guilty but insane.
This is in light of the requirements of criminal responsibility and culpability, which require that for a person to be criminally liable, it must be established beyond reasonable doubt that he or she committed the offence or omitted to act voluntarily and with a blameworthy mind.
It said the finding of not guilty for reason of insanity would be more legally sound in circumstances where an accused person is suffering from a defect of reason caused by a disease of the mind at the time of the commission of an offence.
In the case in question, the three-judge bench at the Malindi appellate court noted that the complaint raised was that SKK was sentenced to an indefinite and indeterminate sentence by the trial court.
After deliberations, the judges dismissed the appeal and ordered that SKK be admitted to a mental hospital.
"Consequently, we order that the appellant be taken to a mental hospital for medical treatment. He shall remain there until such a time as a psychiatrist in charge of the hospital certifies that he is no longer a danger to society or to himself," the judgement delivered on September 22, 2023, reads.
"We direct the Registrar of the court to forward a copy of this judgment to the Attorney General."