Rex v Kongo (Cr. App. No. 52/1936.) [1936] EACA 46 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR SIDNEY ABRAHAMS, C. J. (Tanganyika), and GAMBLE, J. (Uganda).

## REX, Respondent (Original Prosecutor)

## OLUAL S/O KONGO, Appellant (Original Accused). Cr. App. No. 52/1936.

- Criminal Procedure—Insanity—Accused previously found to be incapable of making his defence—Recovery of sanity— Certificate of medical officer—Duty of Court—Criminal Procedure Code (Kenya), sections 157, 160, 161. - $Held$ (5-5-36).—That where it is alleged that an accused, who has previously been found to be incapable of pleading, has recovered his sanity, the responsibility for deciding that he is once more of sound mind and capable of making his defence is that of the trial judge and the certificate of the medical officer, produced under section 161, is only evidence of his sanity.

$Appellant$ absent, unrepresented.

Mathew, Ag. S. G. (Uganda), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-In this case the accused had been found incapable of making his defence by reason of unsoundness of mind in May, 1935. In March, 1936, the trial was resumed, there having been produced a medical certificate, receivable in evidence under section 161 of the Criminal Procedure Code, that the accused was of sound mind and capable of making his defence. Thereupon the accused was charged and a plea of not guilty entered on his saying, "I killed him, but he attacked me first." Next the learned judge allowed the trial to proceed, recording that "Accused is before the Court under section 161, Criminal Procedure Code, it having been ordered that he be tried as he is now of sound mind." Section 160 makes it clear that the responsibility for deciding that an accused person, whose trial is resumed as in this case, is once more of sound mind and capable of making his defence is that of the trial judge. The production of the certificate referred to is not conclusive of sanity; it is but material on which the judge can act in arriving at his decision. In the present case there should, as section 160 indicates, have been an affirmative finding by the judge on the question. Considering, however, the record, the answer to the charge made by the accused, the fact that he was represented by counsel, in addition to the medical certificate, we are of the opinion that the accused must

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be presumed to have been capable of making his defence, and that the learned judge so thought. On the facts of the case, the evidence supports the conviction, and the appeal is dismissed. This case is one in which no doubt the mental history of the accused will receive consideration by His Excellency the Governor in Council. He said in his memorandum of appeal that he was an inmate of Mathari Mental Hospital as late as 1931.