[2017] KEHC 2005 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

H.C.C.R.A NO. 17 OF 2017

H M...............................................APPELLANT

VERSUS

REPUBLIC................................RESPONDENT

(Being an appeal from the original conviction and sentence in Criminal

Case No. 987 of 2015 at Githongo Resident Magistrate’s Court).

J U D G M E N T

The appellant was charged with the offence of rape of a person with mental disability contrary to Section 7 of the Sexual Offences Act Number 3 of 2006. The particulars of the offence are that the appellant on the 22nd October, 2015 at [particulars withheld] Sub-Location, of Imenti Central District within Meru County intentionally caused his penis to penetrate the vagina of L.M.

The appellant was sentenced under Section 167(1) of the Criminal Procedure Code and is being held in Prison at the pleasure of the President.

The grounds of the appeal are that:-

1. The Trial Court erred in law by failing to warn itself on the dangers of relying on one witness.

2. Section 12 of the Criminal Procedure Code was not complied with as the Trial Court failed to observe that the appellant is suffering from insanity.

3. The prosecution did not avail essential witnesses to corroborate the other adduced evidence.

4. The prosecution failed to prove the case beyond reasonable doubt.

5. The appellant was not examined by a Doctor to prove that he committed the offence.

6. The sentence is harsh and excessive.

The main issue being raised in the written submissions is that there was no documentary evidence adduced which established that he appellant was suffering from insanity. It is submitted that the punishment under Section 7 of the Sexual Offences Act is a minimum of ten years yet the appellant is being detained at the President’s pleasure. The sentence under Section 167(1) of the Criminal Procedure Code is therefore excessive.

Mr. Namiti, Prosecution Counsel, relied on the record of the Trial Court. Counsel maintain that the conviction is proper.

This is a first appeal and the court has to evaluate the evidence afresh and make its own conclusion. PW1 was the complainant. She testified that she was 15 years old. On 22/10/2015 the appellant got hold of her as she was heading to school. It was around 9. 00 a.m. She was walking alone. The appellant appeared from the bush. He removed her clothes and held her mouth. The appellant pushed her down and defiled her. The appellant finished and went away. That was not the first time he was doing that to her. At one time PW1 was going to collect milk from her grandmother. The appellant defiled her. The appellant was not her boyfriend. He defiled her twice. She informed her teacher, Mrs. Ndubi. She was taken to hospital and was treated.

PW2 C N is a teacher who was based at [particulars withheld] Special School. On 27/10/2015 PW1 informed her that someone had done bad things to her and she wanted her help. PW1 informed her that the person had held her mouth and defiled her. PW1 informed her that the person had defiled her twice. The matter was reported at Githongo Police Station.

PW3, DR. STEPHEN KIRIMI, was stationed at Githongo Sub-District Hospital. He is a Medical Doctor. He examined PW1 on 27/10/2015. PW1 did not have lacerations or discharge. Her hymen was broken. She had no bacterial infection. PW3 concluded that PW1 had been penetrated. He observed that PW1 had a mild mental retardation.

PW4 PC ABDINOOR DONASHA was based at the Githongo Police Station. The case was reported at the station on 27/10/2015 at 1. 00 p.m. PW2 went to the station with PW1. He investigated the case and caused the appellant to be charged with the offence. It is his evidence that PW1 was 19 years old and suffered mental disability.

In his sworn defence, the appellant testified that he was a shamba boy. On the material day he was sent to Kinjo at about 8. 00 a.m. He met a lady who had sex with another man but claimed it was the appellant. He was arrested. He denied that he had defiled PW1. He saw PW1 being raped but did not know who was raping her. He was new in the area and could not identify the rapist.

DW2 P K testified that he saw PW1’s father arresting the appellant. It is his evidence that the appellant is not of sound mind. The appellant is his cousin.

The evidence of PW1 is that it is the appellant who raped her. He raped her twice. The second incident took place at about 9. 00 a.m. when PW1 was heading to school. PW2 was informed by PW1 that she had been raped twice. Although PW1 testified that she was 15yeras old. PW4, the Investigating Officer testified that she was 19years old. The medical evidence is to the effect that PW1 was penetrated. Her hymen was missing.

On his part, the appellant denied committing the offence. It is his evidence that he was arrested and charged with the offence. He saw someone raping PW1 but PW1 alleged that it was the appellant who raped her. It is evident from the evidence of PW1 that she knew the appellant. PW1 did not give any other person other than the appellant. It was not the first time the appellant was raping her. I am satisfied that PW1 identified the appellant. It is the appellant who properly raped PW1.

The next issue is whether the punishment meted out by the trial court is proper or excessive. The trial court made the following observations in its judgment.

“ The uniqueness of this case was pegged as at the time when the case came up for plea taking on the 28/10/2015. Charges were read to the accused in Kiswahili in which he responded quoted verbatim “ it is true as she loved me”. This court noted that the complainant was a person of unsound mind and so sought for a medical psychiatrist report on the accused as well. On the 5/11/2015, Dr. Mwikamba Andrea, a Psychiatric Consultant with Meru Teaching and Referral Hospital examined the accused. He found that accused was suffering from mild intellectual disability. In his final remark he indicated that accused was not fit to plead. On the 9/11/2015, this court ordered accused to be taken to Mathari Mental Hospital for treatment until 08/03/2016, when he was discharged from the aforesaid hospital. On the 02/03/2016, Mathari Hospital sent a letter to this court with information that accused could now give his defence. The case was heard in his presence and quite frankly he was able to follow his case well save for a few obscene words used, but of which the court understood. In the initial psychiatric report filed by Dr. Mwikamba Andrea, he noted in the second paragraph that accused has had a difficult early life as he had poor grades leading to him dropping out. DW2 also noted that accused absent minded in life. The evidence presented before this court actually suggest that the accused at the time of the offence was actually not of sound mind, but the question before this court is whether he could benefit from Section 12 of the Penal Code. In the famous M’naghten rules whereby the House of Lords held that “the Jurors ought to be told in all case that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; if he know it, that he did not know he was doing what was wrong”.

In the instant case, accused indicated that the complainant was his lover and so he had sexual intercourse with her. It is clear that he did not know that it was wrong to do so at that time of the offence. It can also be seen from the finding by the medical officer that the accused did not even understand the charges facing him. Accused also faced a difficult labored mind which impaired his reasoning. I do find that accused case fitted the rules under M’naghten rules, as clearly this was someone who was of unsound mind.

I do therefore find that the prosecution proved the case as against accused beyond reasonable doubt for the offence of rape contrary to Section 7 of the Sexual Offences Act, No.3 of 2006, however, the defence of insanity is also upheld.”

Section 167(1),(a),(b),and (c) of the Criminal Procedure Code states as follows:-

(1) If the accused, though not insane, cannot be made to understand theproceedings—

(a) in cases tried by a subordinate court, the court shall proceed to hear the evidence, and, if at the close of the evidence for the prosecution, and, if the defence has been called upon, of any evidence for the defence, the court is of the opinion that the evidence which it has heard would not justify a conviction, it shall acquit and discharge the accused, but if the court is of the opinion that the evidence which it has heard would justify a conviction it shall order the accused to be detained during the President’s pleasure; but every such order shall be subject to confirmation by the High Court;

(b) in cases tried by the High Court, the Court shall try the case and at the close thereof shall either acquit the accused person or, if satisfied that the evidence would justify a conviction, shall order that the accusedperson be detained during the President’s pleasure.

Section 7 of the Sexual Offences states as follows:-

7. A person who intentionally commits rape or an indecent act with another within the view of a family member, a child or a person with mental disabilities is guilty of an offence and is liable upon conviction to imprisonment for a term which shall not be less than ten years.

Similarly, Section 146 of the Penal Code states as follows:-

“Any person who, knowing a person to be an idiot or imbecile, has or attempts to have unlawful carnal connection with him or her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person was an idiot or imbecile, is guilty of a felony and is liable to imprisonment with hard labour for fourteen years”.

Although the appellant contends that he is not aware of the medical report by Dr. Mwikamba Andrea, the record shows that the appellant was ordered to be taken to Mathare Mental Hospital on 09/11/2015. He was then taken for mental assessment at the Meru Teaching and Referral Hospital. Dr. Mwikamba examined the appellant and prepared a report dated 12th May, 2016. This was done after the appellant had undergone treatment at Mathare Mental Hospital. It is clear from the record that the trial court properly followed the correct procedures in dealing with an accused person who suffered from mental disorder. A fresh plea was taken when the medical report indicated that the appellant was fit to plead.

The incident occurred on 22nd October, 2015. The appellant appeared in court to take the plea on 28/10/2015. The charge sheet indicate that he was arrested on 27/10/2015. When he took the plea, the appellant informed the court that it was true since the complainant loved him. This prompted the prosecution to seek mental assessment of the appellant. It is therefore established that before taking the second plea on 7/4/2016 and before undergoing mental treatment at Mathare Hospital, the appellant was mentally affected. It is doubtful whether the appellant can be held responsible with what he did. The unfortunate aspect of the incident is that the appellant raped the complainant twice on two different occasions.

Due to PW1’s mental status, she did not reveal the first incident immediately it happened. PW1 decided to move on. When the appellant defiled her for the second time, She decided to report to PW2. Section 11 of the Penal Code provides that every person shall be presumed to be of sound mind. Section 12 of the Penal Code states as follows:

A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.

From the evidence on record, it is clear that it is the appellant who raped PW1. Both the appellant and PW1 are mentally challenged. The appellant’s defence that it was another man who raped PW1 is not true. PW1 was raped twice. How comes the appellant did not tell anyone that he had witnessed a rape incident? PW1 knew the appellant and gave his name to PW2.

Under Section 12 of the Penal Code, the appellant cannot be held criminally responsible for his acts if it is established that he did not know what he was doing or that he was incapable of understanding that he ought not to do the act. It is evident that the appellant knew what he was doing. He was enjoying what he was doing. He did it once and repeated the same act again. The only issue is whether he knew that he ought not to have done the act. Was the appellant fully aware that what he was doing was wrong? The trial court found that the appellant was insane when he committed the act.

Section 12 of the Penal Code has two limbs:

1. The person doing the act or committing the omission does not know what he is doing due to mental disease.

2. The person doing the act or committing the omission does not know that he ought not to do the act or commit the omission due to mental disease.

In essence therefore, the act may be committed but the accused may not have known that he ought not to have committed the act. This presupposes that due to his mental illness, the accused’s ignorance of the legal position that the act was unlawful is protected by the law.

By the time the appellant was charged, he was mentally sick. He was referred to Mathari Hospital where he was treated. The appellant was arrested on 27/10/2015. The incident occurred on 27/10/2015 the same day. The plea was taken on 28/10/2015. It can be presumed that at the time the act was committed, the appellant was mentally sick and not capable of knowing that the act he committed was unlawful.

There are two instances where a convict is detained at the President’s pleasure. These are under Section 25(2) of the Penal Code and Section 167 of the Criminal Procedure Code. Under Section 25(2) of the Penal Code, if one is sentenced to death but is found to have been under the age of 18 years when he /she committed the offence, such a person shall be detained at the President’s pleasure.

There are instances where the courts have dealt with Section 25(2) of the Penal Code and set aside the detention of a convict at the President’s pleasure. In the case of A. W. M - V – REPUBLIC, NYERI COURT OF APPEAL NO.156 OF 2006, the appellant was 17years old. She was convicted of murder and was sentenced to detention under the President’s pleasure. The Court of Appeal set aside the sentence and held as follows:-.

“ In view of the foregoing, we are satisfied that the appellant was wrongly convicted before the superior court on a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. Accordingly, the conviction is set aside and substituted with one of a finding of guilty of infacticide contrary to Section 210 of the Penal Code. We also set aside the order of detention under President’s pleasure apparently imposed pursuant to Section 25(2) of the Penal Code and it its place we substitute a discharge under Section 191(1) (a) of the Children Act taking into account the long period the appellant has been in custody. The appellant is to be set free forthwith unless otherwise lawfully held”.

When one is detained at the President’s pleasure, he does not know when the pleasure will be exercised. The matter has to be brought to the attention of the President by the concerned authorities. The appellant contends that he was charged under Section 7 of the Sexual Offences Act. Under that Section, the minimum sentence is ten (10) years imprisonment. He is now detained at the President’s pleasure. He does not know when he will be released. At least if it is a 10 years sentence, he would know when he will be eligible to be released from prison.

In the case of A.O.O & 6 OTHERS – VS – ATTORNEY GENERAL &ANOTHER (2017)Eklr, Justice Mativo dealt with the issue of one being detained at the President’s pleasure. Justice Mativo cited the case of SVTCOEIB(1966) (1) SCAR, 390 where the court observed as follows:

“ It must, I think, be conceded that if the release of the prisoner depends entirely on the capricious exercise of the discretion of the prison or executive authorities leaving them free to consider such a possibility at a time which they please or not at all and to decide what they please when they do, the hope which might yet flicker in the mind and the heart of the prisoner is much too faint and much too unpredictable to retain for the prisoner a sufficient residue of dignity which is left un invaded”.

The appellant was convicted on 12th May, 2016. He was served one and a half years in prison. He was mentally sick when he committed the offence. His position can be equated to that of a child under the age of 18 years .The law provides that one who is guilty but insane is to be detained at the President’s pleasure just like one who is sentenced to death but is under the age of 18 years. The lengthy incarceration of such convicts erodes their human dignity provided under Article 28 of the Constitution. The appellant did not know that he ought not to have committed the act. He was mentally sick and the law acknowledges that mental status. Having the appellant detained for a period which might be longer than the minimum sentence under Section 7 of the Sexual Offences Act is unlawful. The sentence is now indefinite and all what the appellant has to do is to entertain the faint hope that the Presidential pleasure will be exercised before the expiry of 10 years. One serving such a sentence cannot be held to be serving a proper sentence. The sentence is indefinite. It can be more or less than 10 years prescribed period. That situation erodes the appellant’s dignity.

In the end, I do find that the conviction was proper. It is the appellant who committed the offence. In view of the fact that the appellant was insane at the time he committed the offence, I do find that his detention at the President’s pleasure from an unknown period is an excessive sentence. I do set aside the sentence imposed by the trial court under Section 167 of the Criminal Procedure Code and in its place substitute it with the period already served. The appellant shall be set at liberty unless otherwise held.

DATED, SIGNED AND DELIVERED AT MERU THIS ….….DAY OF …….… 2017.

S. J. CHITEMBWE

JUDGE

DATED, SIGNED AND DELIVERED AT MERU THIS 9TH DAY OF NOVEMBER 2017.

A. MABEYA

JUDGE

IN PRESENCE OF:

……………….………...for Appellant

…………………………for Respondent

…………………...….…Court Assistant