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For some time, Wesley Chechieng suffered undiagnosed Schizophrenia.
He was unkempt and increasingly became irrational.
On February 20, 2007 in Baringo, he was hungry and stormed the home of David Cheptumo demanding to be given food.
No food was given to him.
He then picked a jembe and started cutting iron sheets with it into pieces.
He went further, picked a panga and struck the face of a child, JD.
As the child’s mother tried to rescue her, the man cut her on the head and she fell down, before being cut again on the shoulder.
The mother was also carrying a young child, DJD, who also got cut by the man. The two children died from the wounds.
Chepchieng was then arrested and detained.
It was not until July 10, 2013 when he had his day in court for plea taking.
He took longer in detention because the state could not determine his mental fitness to stand trial.
The court heard that the man would seasonally become mentally ill. He was experiencing the symptoms when he committed the crimes.
The mother of the two children is his sister-in-law but who was not aware of his health condition.
The results of the post-mortem reveals that both the deceased died of massive intracranial hemorrhage secondary to the cut wounds.
When out on his defence, Chepchieng denied committing the offences, saying “that on the material date he was nowhere near the home where the murders had occurred. He only came to learn of the same when he was informed by some people that he had killed somebody.”
The High Court examined the evidence and the medical history of Chepchieng and found that he did not have the intention to commit the crimes given his mental conditio.
The court, however, not that it was impossible to state whether or not he had a malice aforethought.
“….it was doubtful whether the appellant had malice aforethought when he assaulted the deceased. The court further noted that it could not be ruled out that the appellant was insane. The court held that the appellant was not possessed of the mens rea to commit the act,” the court papers said.
The judge found him guilty and sent him to jail at G.K. Prison Eldoret and was to remain there at the pleasure of the president.
But Chepchieng appealed the verdict, complaining that the judge did not consider the fact that he only committed the crimes when on heat of passion after he was denied food.
He also complained that malice aforethought was not proved in his case and that he was found not fit for trail, hence his incarceration was violating his rights.
Three judges examining his cases looked at the evidence afresh and concluded that the High Court made the right decision to detain him at pleasure of the president.
However, the court found that the man could not be declared guilty because no intention was found in his case owing to his mental incapacity.
“It is trite that an act constituting an offence of murder does not make a person guilty unless the mind is also guilty. For an act or omission to constitute the crime, there must be actus reus and mens rea,” the court ruled on May 26 2023.
“The prosecution is required to prove both the presence of the unlawful cause of death and malice aforethought in order to sustain a conviction for murder under Section 203.”
The judges said that while Chechieng remains detained at the prison, he is not a prisoner but a patient because the court cannot definitively settle his case one way or the other.
“We therefore find that the special finding under Section 166 is neither a conviction nor a sentence. It cannot amount to a conviction because insanity is recognized in law as an illness requiring treatment and not punishment. When detained at the President’s pleasure the accused is considered a patient and not a prisoner.” BY THE STAR