Kamande v Republic (Petition E032 of 2023) [2025] KESC 18 (KLR) (11 April 2025) (Judgment)

Kamande v Republic (Petition E032 of 2023) [2025] KESC 18 (KLR) (11 April 2025) (Judgment) Neutral citation: [2025] KESC 18 (KLR) REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA PETITION E032 OF 2023 MK KOOME, CJ & P, PM MWILU, DCJ & VP, MK IBRAHIM, SC WANJALA, N NDUNGU, I LENAOLA & W OUKO, SCJJ APRIL 11, 2025 BETWEEN RUTH WANJIKU KAMANDE .............................................................. APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an appeal from the Judgment of the Court of Appeal at Nairobi (H. M. Okwengu, M. Warsame and J. Mohammed, JJ. A) dated 6th November 2020 in Criminal Appeal No. 102 of 2018) The battered woman syndrome is not a stand-alone defence and it has to be raised in aid of one of the existing legal stand-alone defences The instant matter concerned the applicability of the battered woman syndrome as a defence under criminal law. The court highlighted the nature of the concept of battered woman syndrome. It was further held that the battered woman syndrome had not attained the status of a stand-alone defence and that it had to be raised in aid or as an extension of one of the existing legal stand-alone defences. The court also held that the standard of proof in involving the battered woman syndrome had to be addressed within the context of legal standards for defences relied upon by the accused. In particular, the burden rested on the defence to not only establish the existence of the battered woman syndrome but also the extent of such application. Reported by Kakai Toili Criminal Law – offences – murder – defences to the offence of murder – battered woman syndrome – nature of the concept of battered woman syndrome - whether the battered woman syndrome had attained the status of a stand-alone defence, Evidence Law – standard and burden of proof - standard and burden of proof in criminal cases - who bore the burden of proof and what was the standard of proof in cases where an accused invoked the battered woman syndrome. Words and Phrases - battered woman syndrome – definition of battered woman syndrome - a set of behavioural and psychological reactions displayed by women who are subjected to severe, long-term domestic abuse - Walker L, The Battered Woman Syndrome, Fourth Edition, Springer Publishing Company, 1984. Words and Phrases - battered woman syndrome - a constellation of medical and psychological symptoms of a woman who has suffered physical, sexual, or emotional abuse at the hands of a spouse or partner and who, as a result, cannot take action to escape the abuse - Black’s Law Dictionary 11th Edition at page

187. Brief facts The instant matter was certied as being of general public importance by the Court of Appeal and concerned the applicability of the battered woman syndrome as a defence under criminal law. While the Court of Appeal did not explicitly delineate questions of law to be determined by the court, it accentuated that the battered woman syndrome was a fairly unexplored issue in Kenya, with limited judicial decisions thus far in existence, thereby creating an opportunity for interrogation by the court. The appellant had been charged with the oence of murder at the trial court. The particulars of the oence were that the appellant murdered the deceased who at the time was in a relationship with her. At the High Court (trial court), the appellant gave an unsworn statement and stated that the deceased attacked her, threw her on the bed, sat on her, and stabbed her several times on the chest, hand, thighs, and stomach with a knife he was carrying. By poking the deceased’s eyes, the appellant claimed that she disarmed the deceased and took the knife from him and while lying on the bed with the deceased seated on her, she stabbed him severally. The trial court convicted the appellant of murder and sentenced her to death. Dissatised, the appellant led an appeal at the Court of Appeal. The appeal was dismissed, hence the instant appeal to the Supreme Court.

Issues

i. Whether the battered woman syndrome had attained the status of a stand-alone defence. ii. What was the nature of the concept of battered woman syndrome? iii. Who bore the burden of proof and what was the standard of proof in cases where an accused invoked the battered woman syndrome?

Held

1. Under article 163(4)(b) of the Constitution, it was for the Court of Appeal to identify the specic question(s) (of law) which in its view constituted a matter(s) of general public importance. That was because, unlike in a general appeal, it was the question framed by the appellate court that conferred jurisdiction upon the court. Where the Court of Appeal failed to identify the specic issues or points of law, or made a broad and/or vague nding as it did in certifying the appeal, it was incumbent upon the court in the circumstances of the case to delineate the issues for determination meriting the Supreme Court’s attention from the outset. In the absence of any specic questions outlined by the Court of Appeal, the parties were led to assimilate and frame the appeal on the issues set out by the appellant in her application for certication.

2. The court was not blind to the troubling surge in incidences of violence in Kenya, particularly intimate partner violence which manifested, inter alia, through acts of femicide and other forms of sexual and gender-based violence. The battered woman syndrome was a psychological condition of individuals who, had endured prolonged and severe abuse at the hands of an intimate partner. It was that condition that could be extended as a basis for defence where such an individual nally resorted to killing their abuser. Given that the concept transcended cultural and legal boundaries, exploring its place in other jurisdictions provides a nuanced approach.

3. The acceptance of battered woman syndrome by courts had been met with mixed responses. Some applauded it for recognising the plight of abused women and extending the traditional denition of self-defence. Others criticised the extension of self-defence to situations where no immediate physical threat was present. Apart from State v Truphena Ndonga Aswani [2021] KEHC 8758 (KLR) which applied the concept of battered woman syndrome, there were no past cases in the jurisdiction where the concept had specically been used as a defence in murder trials.

4. There was broader acceptance that the battered woman syndrome did not establish a new defence, but rather oered an explanation within established legal frameworks of the existing defences. It remained necessary to assist judges, understand the distinct mental and emotional state of a woman who had endured prolonged abuse, which could inuence her actions. While it enabled the courts to consider the trauma a woman had faced, it did not serve as a stand-alone justication for acquittal or reduced punishment.

5. The battered woman syndrome had so far primarily been used as a mitigating factor rather than a legal defence to a murder charge in Kenya. The syndrome had also been recognized as a contributing circumstance that could reduce the severity of the charge or sentence in line with the guidelines issued in the Muruatetu case for mitigation on the part of convicted persons. The implication of the Muruatetu case was that mitigating factors, such as gender–based violence, must be understood in the proper context.

6. The battered woman syndrome fell within the category of gender- based violence in the context of marriage or an intimate partner relationship. However, while the syndrome as a mitigating factor in sentencing, the instant appeal raised the signicant question: whether the battered woman syndrome could be considered and elevated to a valid defence capable of justifying or excusing the actions of an accused person.

7. The application of the battered woman syndrome must be carefully tailored to individual cases, rather than applied universally as a blanket and stand-alone defence. A court could not take a restrictive view that limited the scope of defences available in such circumstances. A case-by-case evaluation was needed to ensure that the legal system as was, remained committed to justice while considering the unique psychological and emotional eects of prolonged abuse.

8. Where a party sought to rely upon the battered woman syndrome in the course of trial, the same should be raised at the earliest in a similar manner that any other defence would have been raised. That did not prevent a party from raising it in mitigation upon conviction. Neither would it prevent admission of additional medical evidence at an appellate level, in rare and exceptional cases.

9. It should not be left to the court to infer the existence and applicability of the battered woman syndrome from the facts and evidence adduced before it. The battered woman syndrome had not attained the status of a stand-alone defence and it had to be raised in aid or as an extension of one of the existing legal stand- alone defences: self-defense, provocation or temporary insanity. However, the courts could not singularly elevate the battered women syndrome to a stand-alone defence of itself, as to do so would amount to usurpation of legislative mandate bestowed upon Parliament under the constitutional architecture.

10. While the profound impact of domestic violence in the context of criminal law must be recognized, each case should be assessed on its own merits to avoid potential misuse or overgeneralization of the defence of battered woman syndrome. That struck a fair balance between protecting women who acted out of genuine fear for their safety and life and holding accountable those whose actions may not have met the criteria for the defence raised. By adopting that nuanced approach, the law would better serve both victims of abuse and the broader principles of justice, ensuring the fair application of battered woman syndrome within established legal standards.

11. The court’s position was not exhaustive particularly at that nascent stage of any determination of the issue of battered woman syndrome. That was so as to allow the courts below, to have an opportunity to fully articulate and apply that doctrine in appropriate cases and respond to some of the issues raised. The battered woman syndrome as a matter of law, could at the opportune time require further input in exercise of the appellate mandate of the court in an appropriate case.

12. The burden of proof in criminal matters never left the prosecution’s backyard. The term burden of proof encompassed both the legal burden of proof and the evidential burden. The legal burden of proof in criminal cases did not and could not shift from the prosecution. In contrast, the evidential burden initially rested with the party carrying the legal burden, which was typically the prosecution. However, as the evidence was presented during the trial, the evidential burden could shift to the party who risked losing its case without additional evidence.

13. Given that the burden of proof remained with the prosecution to prove guilt beyond reasonable doubt, when the defence invoked the battered woman syndrome, it did not need to disprove the crime but raise a reasonable doubt regarding the accused’s actions and intent. That could be achieved through expert testimony and evidence addressing the psychological eects of sustained abuse, which helped to exemplify the mental state of the accused at the time of commission of the oence, and not necessarily the mental capacity to stand trial. The standard of proof in involving the battered woman syndrome had to be addressed within the context of legal standards for defences relied upon by the accused. In particular, the burden rested on the defence to not only establish the existence of the battered woman syndrome but also the extent of such application to the oence in which the syndrome was to be relied upon.

14. A tailored case by case approach remained most appropriate in such instances for the trial or appellate court. Issuing blanket guiding principles may not be the most apt approach under the circumstances especially when the courts below had not been given the opportunity to address the issue. Moreover, the specic circumstances of each case would call for a dierent approach both in considering the defence and in mitigation. The battered woman syndrome was a developing legal principle and the court may at the opportune time be called upon to make an authoritative nding as an appellate court.

15. The battered woman syndrome was not adequately raised and addressed by the courts below. The nature of the relationship between the appellant and the deceased, while it could have been raised at the trial court as self-defence, did not persuade the court from concluding that the appellant was not a victim but rather the perpetrator who contributed to the toxicity of the relationship. The trial court instead adopted the proportionality test in comparing the wounds inicted by the appellant to the deceased as against those that had been inicted by the deceased to the appellant, including the circumstances of such iniction. The appellant’s actions were thus held to be aggravating in nature rather than demonstrative of lack of self-control within the parameters of self-defence or provocation.

16. Throughout her remand, the appellant maintained exemplary conduct and was a rst-time oender who was genuinely remorseful for her actions. At no point during that stage did the appellant bring up any history of long standing and severe abuse in her relationship with the deceased; bearing in mind, that it was only on the day of the incident that the appellant alleged that the deceased accosted her and a physical altercation ensued. By giving an unsworn statement, the appellant’s testimony could not be tested or challenged by way of cross examination. Without making any adverse inference against the appellant’s choice of giving an unsworn statement in her defence, as that the court could not do, the court remained careful not to wade into factual ndings, particularly at the second appellate stage.

17. The deliberately detailed narration of the proceedings before the courts ante was to illustrate the nature and substance of the matter argued in the case, including the defence raised by the applicant during those proceedings. It also brought to the fore the need to explicitly raise the issue of the syndrome before the trial court. At no point in her defence did the applicant raise the defence of battered woman syndrome either implicitly or explicitly. It was neither raised during the trial at the High Court nor during the appeal thereof as an issue for determination despite the doctrine being in existence since the 1970s. The issue concerning the battered woman syndrome was raised for the rst time in the application for certication before the Court of Appeal. That was of signicant import to the propriety of exercise of appellate jurisdiction of the apex court in the matter.

18. To exercise its appellate jurisdiction the matter before the court must be ripe for consideration. In addition to ensuring suitability, accountability, and fairness of judicial decision, a crucial function of the appellate decision was to develop and clarify the law and legal principles through the various layers of consideration and clarication through the hierarchy of courts. As a matter was ventilated through the appellate system, the issues in contest, especially those of jurisprudential gravitas, were rened and distilled. At the apex court, once the superior courts below had had occasion to exercise their respective jurisdictions, the matter was then ripe for nal determination.

19. The elucidation, clarication and development of the law on the issue of the battered woman syndrome, would particularly benet from the consideration of the facts in an appropriate matter; the testimony of victims and witnesses including the specialist analysis by expert witnesses on relevant related subjects; and the interpretation and application of laws and legal principles by the courts ante, before the matter could be considered ripe for nal determination at the court.

20. The Supreme Court must operate within the constitutional limits. It could not expand its jurisdiction through judicial craft or innovation. The extremely pertinent issue of battered woman syndrome would be properly ventilated and adjudicated by the courts in due course. If and when moved correctly, the Supreme Court would provide opinion and guidance on the matter. But, despite the importance of that issue, it was not properly before the court. The remedies sought by the appellant relating to her conviction and sentence could not therefore issue. At any rate the severity of sentence was a matter of fact not appealable in a second appeal in line with section 361 of the Criminal Procedure Code. Appeal dismissed.