Abstract

The M’Naghten test of insanity is applied in many common law countries including Kenya. It provides that to be legally insane, one must prove that the act or omission came from a disease of the mind that restricted someone from knowing what they are doing, and whether what they are doing is right or wrong in law. These requirements focus on the cognitive aspect of committing a crime. However, there exist cases where the accused commits an action based on an irresistible impulse that makes them unable to refrain from doing a certain action. This amounts to volitional impairment. Cognition and volition are important aspects to consider when evaluating legal insanity as a defence. This study seeks to explain the need for cognition and volition to be considered in the defence of insanity by describing the requirements of the M’Naghten rules with the objective to show its ignorance of the volitional aspect. Additionally, the study will delve into the need for both cognition and volition by expounding on what they entail and showing their application through the Model Penal Code test. Therein, the study will propose the use of the Model Penal Code test as a substitute for the M’Naghten rules applied in Kenya since it recognises the presence of both cognition and volition when committing a crime.

Highlights

  • A general principle in Kenyan criminal law is that a person is not criminally liable for an offence unless it is proven by concrete evidence that they committed the offence, or omitted to act, voluntarily and with a blameworthy mind; the Strathmore Law Review, June 2019Muoki Ndunge maxim actus non facit reum, nisi mens sit rea.[1]

  • Cognition and volition are important aspects to consider when evaluating legal insanity as a defence.This study seeks to explain the need for cognition and volition to be considered in the defence of insanity by describing the requirements of the M’Naghten rules with the objective to show its ignorance of the volitional aspect

  • The consideration of cognitive impairment as a basis for insanity is a narrow and strict rule which ensures that only a mental illness that can be ascertained through records is considered under criminal law to negate criminal responsibility through the defence of insanity.[7]

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Summary

Introduction

A general principle in Kenyan criminal law is that a person is not criminally liable for an offence unless it is proven by concrete evidence that they committed the offence, or omitted to act, voluntarily and with a blameworthy mind; the. The provisions of the Kenyan Penal Code allow for the use of the M’Naghten rules as the test for ascertaining legal insanity.[26] The M’Naghten rules require the accused to prove that they had a disease of the mind, which impaired them from knowing what they were doing and if their actions were wrong or right in the eyes of the law.[27] the M’Naghten rules as seen above only acknowledge the cognitive aspect of one’s mind.[28] there are cases in which the accused commits a crime on an irresistible impulse limiting selfcontrol of their actions When this occurs, it becomes difficult for courts to apply the M’Naghten rules, as they do not extend beyond the realm of volition. This statement is almost always ignored by the courts, Kenyan courts included.[52]

The Practice in Kenyan Courts
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