[2018] KEHC 2847 (KLR)
The court found that Section 166 of the Criminal Procedure Code, which allows for indeterminate detention of an accused at the President's Pleasure, is unconstitutional as it violates the right to freedom from torture, cruel, inhuman or degrading treatment, the right to a fair trial, and protection from arbitrary...
Source-derived case information.
- Citation
- [2018] KEHC 2847 (KLR)
- Parties
- Appellant: B R O; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 29 of 2017
- Procedural Posture
- Criminal Appeal / Ruling on Application to Amend Sentencing Order
- Outcome
- Application allowed; previous order reversed; applicant committed for a determinate term with periodic review.
- Judges
- TW Cherere
- Legal Topics
- Indeterminate Sentencing, Mental Health and Criminal Liability, Constitutional Rights of Accused, Torture and Inhuman Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
B R O
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application to Amend Sentencing Order
Legal Issues
- 1 Whether Section 166 of the Criminal Procedure Code is unconstitutional for imposing an indeterminate sentence at the instance of an authority other than the court.
- 2 Whether the applicant's continued detention at the President's Pleasure violates constitutional rights, including freedom from torture and right to a fair trial.
- 3 Whether the High Court has power to reverse or amend its previous sentencing order to prevent a failure of justice.
Ratio Decidendi
The court found that Section 166 of the Criminal Procedure Code, which allows for indeterminate detention of an accused at the President's Pleasure, is unconstitutional as it violates the right to freedom from torture, cruel, inhuman or degrading treatment, the right to a fair trial, and protection from arbitrary deprivation of liberty. The court held that only the judiciary should determine the length of a sentence, and that sentences must be determinate and subject to periodic review. Accordingly, the court exercised its power under Section 382 of the Criminal Procedure Code to reverse its previous order and instead committed the applicant to Mathari Mental Hospital for a fixed term of...
Court Disposition
Application allowed; previous order reversed; applicant committed for a determinate term with periodic review.
Orders
- The orders made on 8th February, 2018 are reversed.
- The applicant/appellant is committed to Mathari Mental Hospital to continue treatment for a term of four (4) years from the date of conviction.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
CRIMINAL APPEAL NO. 29 OF 2017
B R O........APPELLANT/APPLICANT
VERSUS
REPUBLIC...................RESPONDENT
RULING
Background
1. On 8th February 2018, this court ordered that the applicant be detained at the President’s Pleasure and committed him to Mathari Mental Hospital to continue treatment.
Application
2. Being dissatisfied with the said order, the applicant filed a Notice of Motion dated 24th May, 2018, in which he prays THAT:
a. The Court corrects/amends the final order made in the Judgment and warrants drawn pursuant to the said orders as not to subject the applicant/appellant to a punishment/sentence which he is not supposed to
b. The court makes such other or further orders as it shall deem just and expedient to the benefit of the applicant
3. The application is based on grounds among others that Section 166 of the Criminal Procedure Code is unconstitutional and in breach of Articles 25(a); 27; 29(f) and 43 of theConstitution and that the orders made by this court amounts to imprisonment for an indefinite period which may be more than the 4 years the applicant was meant to serve upon conviction by the lower court.
4. The application is supported by an affidavit sworn by Mr.Onsongo, advocate for the appellant/applicant on 24th May, 2018 in which he reiterates the grounds on the face of the application. Further reliance was placed on the following:
i. The Constitution of Kenya
ii. Hassan Hussein Yusuf v Republic [2016] eKLR
iii. A O O& 6 others v Attorney General & another [2017] eKLR
iv. Article 7 and 10(1) of the international covenant on civil and political rights
v. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
5. In response to the application, the state filed a replying affidavit sworn by Peter Muia, Prosecuting Counsel on 4th October, 2018. He supported the application and placed reliance on a Hong Kong authority YauKwong Man v Secretary for Security[2002] 3 HKC 457.
6. I have carefully considered theapplication in the light of the affidavits. I have also considered he various decisions cited by the parties and I am convinced that the provisions that impose an indeterminate sentence on an accused at the instance of an authority other than the courts violate the right to freedom from torture and cruel, inhuman or degrading treatment or punishment; the right to a fair trial; the equality and freedom from discrimination and the deprivation of freedom arbitrarily or without just cause.
7. Consequently, I find that this court has power under Section 382 of the Criminal Procedure Code to reverse its order to prevent a failure of justice.
8. Accordingly, the orders made on 8th February, 2018 are reversed in the following terms:
The applicant/appellantis hereby committed to Mathari Mental Hospital where he shall continue to receive treatment fora term of four (4) years from date of conviction subject to period review by the court in accordance with section 166 of the Criminal Procedure Code and in any case before the expiry of every one (1) year.
DATED AND DATED IN KISUMU THIS25th DAY OFOctober, 2018
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant- Felix
Appellant/Applicant- N/A
For the Appellant/Applicant- N/A
For the State- Mr Muia