Republic v Kaunga (Criminal Case E025 of 2026) [2026] KEHC 13288 (KLR) (1 September 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CRIMINAL CASE NO. E025 OF 2026** REPUBLIC..……….…………………………….…....….. PROSECUTOR VERSUS EDWIN MUTHONI KAUNGA …………........................... ACCUSED **RULING** 1. **Sarah Nyokabi Mugweru** the applicant herein and a sister to the deceased took out the motion dated 22nd June, 2026 whereof she sought for the following orders inter alia: 2. ***Spent*** 3. ***An order directing that the accused person herein be assessed further by a private psychiatrist and psychologist elected by the applicant*** 4. ***Spent*** 5. ***Costs of the application to be borne by the accused person.*** 6. The applicant filed an affidavit he swore in support of the motion. The Republic filed the replying affidavit sworn by **P. C. Martin** **Lolebo** to oppose the application. **Edwin Muthomi Kaunga,** the accused person herein filed a replying affidavit he swore to oppose the motion. Parties were directed to file written submissions and were also invited to make oral highlights of those submissions. 7. I have considered the grounds stated on the face of the motion and the facts deponed in the rival affidavits. I have further considered the written submissions plus the oral submissions made by learned counsels. It is the submission of the applicant that the mental assessment report dated 23rd April, 2026 which diagnosed the accused to be with Bipolar Mood Disorder I and traumatic disorder with poorly treated pyschosis is predicated on the assertions by the accused person’s father on his mental state and not through any ascertainable medical processes. 8. The applicant further pointed out that the psychiatrist who did the report contradicted himself in that in the report, he stated that the accused person understands the weight and consequences of the case facing him and yet he still went ahead stating that the accused person is unfit to stand trial. 9. The applicant further argued that the victim’s family have known the accused for over 6 years and that the accused person has never exhibited any of the behaviour assorted in the psychiatric report. 10. It is the averment of the applicant that the accused person who works for Kenya Defence Forces as a Captain based in Gilgil ought to have supportive documentation of the assertion of any mental illness as required under section 17 of the Menal Health Act. 11. It is the assertion that in the circumstances the victim of the crime is apprehensive that the said report might not have accurately captured the mental status of the accused person and that he is likely to go unpunished for his crimes against the spirit of the Constitution and the Victim’s Protection Act. 12. The victim further averred under section 19(2)(a) of the Victims Protection Act, the victim is allowed to present their views and concerns to court for determination at any stage of the proceedings. 13. It is argued by the applicant that the application will not prejudice the accused or his right to a fair hearing. 14. The Republic opposed the applicant’s application arguing that the same is misconceived and an abuse of the court process hence it ought to be struck out. 15. It is pointed out that the mental assessment report on the accused dated 23rd April, 2026 was done by Dr. Wafula who is a consultant Psychiatrist at Nakuru County Referral Hospital. It is further argued that it was only prudent for the medical personnel to consider the accused’s medical history before conducting his own assessment. It is also the argument of the State that the applicant cannot seek to act as a secondary prosecutor. 16. The accused made arguments and assertions similar to those made by the Republic. The Accused further argued that he was examined by a qualified consultant psychiatrist who prepared a report indicating his mental status. 17. It is the averment of the accused that the applicant has not exhibited any contrary psychiatric or psychological report contradicting the consultant’s report. The accused further pointed out that there is no provision in the Constitution, the Criminal Procedure Code, the Victim Protection Act or any written law that empower a private citizen, victim or member of the victim’s family to conduct, supervise, reopen or take over criminal investigations or to procure fresh forensic investigations against any accused person through experts appointed by such private persons. 18. It is argued that the applicant is not entitled to nominate psychiatrists or psychologists to undertake further investigations against an accused person. It is further averred that permitting one party to commission further psychiatric investigations whether one is dissatisfied with an existing report would encourage repeated applications for fresh investigations and undermine the orderly conduct of criminal proceedings. 19. The history behind the instant application is short and straightforward. The accused was arraigned before this court to face a charge of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 14th day of April, 2026 at St. Mary’s Estate in Nakuru East sub-county within Nakuru County the accused is said to have murdered Ann Mugweru. 20. Before taking plea, the prosecuting counsel beseeched the court to defer the plea on the basis that the mental assessment report on the accused had indicated that the accused was not fit to plead and stand trial. The consultant psychiatrist in his report had stated that the accused had Bipolar Mood Disorder I and Post Traumatic Disorder with Psychosis poorly treated. 21. The learned prosecution State counsel further applied for the accused to be taken to Mathare Mental Hospital for treatment until he gets fit to plead. The court acceded to both of the prosecution’s requests. It would appear this is what prompted the applicant victim to file the instant application. 22. I have carefully considered the rival arguments put forward by the parties. The applicant has aptly identified three issues for determination 23. ***Whether the applicant, as a person acting on behalf of the victim, has the standing to bring an application touching on the accused’s fitness to plead.*** 24. ***Whether the orders sought amount to an unlawful private investigations or usurpation of the mandate of the National Police Service and the Directorate of Public Prosecutions.*** 25. ***Whether on the material before court, there is a proper basis for this court to exercise its jurisdiction under section 162 of the Criminal Procedure Code to order a further psychiatric and psychological assessment of the accused before relying on the report dated 23rd April, 2026.*** 26. The first two issues can be dealt with together. It is not in dispute that under sections 4(2) and 9 of the Victim Protection Act No. 17 of 2014, that a victim should be given an opportunity to be heard and to respond before any decision affecting the victim is taken. 27. The law is also clear that the victim’s views to be presented and considered by the court at appropriate stages of the proceedings. The applicant herein namely **Serah Nyokabi Mugweru** is the sister of **Ann Mugweru,** the deceased. She is therefore a direct victim hence she has a standing in law to participate in these proceedings. 28. The Supreme Court in **Joseph Lendrix Waswa Vs Republic [2020] eKLR** affirmed the position that an advocate acting for a victim may actively participate in Criminal proceedings to safeguard rights. The Supreme Court further set the guiding principles for trial courts inter alia: that the applicant must be a direct victim or the victim’s legal representative, that the court must examine each application according to the special nature of the case and the stage at which it is made, that participation must not occasion undue delay and that such participation must meaningfully contribute to the justice process. The Supreme Court was quite emphatic that a victim cannot and does not wear the hat of a secondary prosecutor. 29. I have already set out the nature of the applicant’s application. The applicant has submitted that she does not intend or purport to investigate the offence of murder or prosecute the case but she says that she is presenting the view and concern namely that the psychiatric report of 23rd April, 2026 is internally inconsistent. 30. I am not persuaded by the applicant’s argument. A critical examination of the applicant’s application will show that the applicant has expressly applied to court for an order directing the accused person to be assessed further by a private psychiatrist and psychologist elected by the applicant. 31. In the case of **Joseph Lendrix Waswa Vs Republic** (supra) the Supreme Court held inter alia that the victim participation is not intended to replace or duplicate the prosecution and must always remain subject to the accused’s right to a fair trial. 32. In my view, the applicant through the instant application is seeking to conduct, reopen or take over criminal investigations. It would also appear that applicant seeks to procure fresh forensic investigations against the accused person through experts appointed or elected by the applicant. 33. It should be made clear that criminal investigations are undertaken by the National Police Service while criminal prosecutions are conducted by the Director of Public Prosecutions and neither of the aforesaid functions can be assumed by a private litigant. 34. The applicant therefore is not entitled to nominate psychiatrists or psychologists to undertake further investigations against an accused person. The existing legal framework governing victim participation does not extend to authorizing victims to conduct parallel investigations or to procure independent forensic examinations of an accused person. 35. The applicant had questioned the psychiatrist report dated 23rd April, 2026. She has averred that the same is internally contradictory and that is why she avers that she should be allowed to appoint a private psychiatrist to do a further mental assessment on the accused. 36. The applicant’s question is a genuine concern which can be addressed through the court to facilitate the interrogation of the report by way of cross-examination of the psychiatrist. If the court is convinced that the mental assessment report is contradictory, the court has the discretion to direct that the accused be subjected to a further Mental Assessment and or examination by a government psychiatrist and not by a private psychiatrist appointed by a party such as the victim. 37. This assertion by this court has answered the third issue. However, it is premature for the court to undertake such a process. Under Section 162 of the Criminal Procedure Code, the court is empowered to conduct an inquiry on the accused’s fitness to plead where it appears that an accused may be of unsound mind and consequently incapable of making his defence. 38. In the end the order which commends itself herein is that the applicant’s/victim’s application is for dismissal. Consequently, the motion dated 22nd June, 2026 is dismissed with each party bearing their own costs. **Dated, signed and delivered this 1st day of September, 2026 at Nakuru.** **J. K. SERGON** **JUDGE** **In presence of:** Ruto C/A Gakuhi and Nelima for Accused Chiwayah holding brief for victim/Applicant Baya for the State