[2022] KEHC 114 (KLR)

Kimaru & 17 others v Attorney General & another; Kenya National Human Rights and Equality Commission (Interested Party) (Petition 226 of 2020) [2022] KEHC 114 (KLR) (Constitutional and Human Rights) (1 February 2022) (Judgment)

Isaac Ndegwa Kimaru & 17 others v Attorney General & another; Kenya National Human Rights and Equalitycommission (Interested Party) [2022] eKLR

Neutral citation: [2022] KEHC 114 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 226 of 2020

AC Mrima, J

February 1, 2022

IN THE MATTER OF: ARTICLES 2 (1), 3(1), 10(2), 19, 22(1), 23(1), 3(a) (d), 24(1) (a), (b), (c), (e), 2 (a) (b) (c), (3), 25(a), 27(1), (2), (4), 28, 29(d), (f), 50, 51(1), (2), 54(1), 159(2) (a), 160(1), 165 (3) (b)(d) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: SECTION 162(4)(5), 164(2) (3) (4), 166(2), (3), (4), (5), (6), (7), 167(1)(a), (b)(2), (3),(4) OF THE CRIMINAL PROCEDURE CODE, CAP 75 LAWS OF KENYA

Between

Isaac Ndegwa Kimaru

1st Petitioner

Philip Mueke Maingi

2nd Petitioner

Peter Kariuki Muibai

3rd Petitioner

Peter Thanga Kago

4th Petitioner

Hesbon Onyango Nyamweya

5th Petitioner

IMM

6th Petitioner

JKM

7th Petitioner

BMK

8th Petitioner

PKI

9th Petitioner

IHK

10th Petitioner

NNN

11th Petitioner

CTM

12th Petitioner

PGM

13th Petitioner

TKM

14th Petitioner

AKM

15th Petitioner

BGM

16th Petitioner

RMM

17th Petitioner

CMW

18th Petitioner

and

Attorney General

1st Respondent

Office of the Director of Public Prosecutions

2nd Respondent

and

Kenya National Human Rights and Equality Commission

Interested Party

Sections of the Criminal Procedure Code law on detention of persons of unsound mind at the president’s pleasure declared unconstitutional for infringing on of separation of powers and independence of the Judiciary

Reported by Ribia John

Constitutional Law– executive – Office of the President – president - mandate and functions - power of the presidency to detain accused persons of unsound mind at its pleasure – power of mercy - what were the circumstances and conditions necessary for a person to be detained at the president’s pleasure - whether there was a distinction between the presidential power of mercy and the president’s power to detain accused persons of unsound mind at his or her pleasure - Constitution of Kenya, 2010, article 133; Criminal Procedure Code, Cap. 75, sections 162, 163, 164, 166 and 167. Constitutional Law- separation of powers – executive vis-à-vis the judiciary - claim that the power of the presidency to hold persons of unsound mind at its pleasure infringed on the doctrine of separation of powers -whether sections 162, 163, 164, 166 & 167 of Criminal Procedure Code which mandated the presidency to detained accused persons at its pleasure pending or during trial undermined the independence of the judiciary – Constitution of Kenya, 2010, article 160(1); Criminal Procedure Code, Cap. 75, sections 162, 163, 164, 166 and 167. Constitutional Law– fundamental rights and freedoms – right to fair trial – right to human dignity – power of the president to detain persons of unsound mind at the president’s pleasure -whether Sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code that provided for the detention of persons of unsound mind at the pleasure of the president were unconstitutional for subjecting persons with disabilities inhuman or degrading treatment or punishment and for violating the right to fair hearing of persons of unsound mind – Constitution of Kenya, 2010 articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2); Criminal Procedure Code, Cap. 75, sections 162, 163, , 164, 166 and 167.

Brief facts The petition was a plea by and on behalf of persons who suffer from mental challenges and who were held in various prisons in Kenya at the pleasure of the president. Some of the inmates underwent full trial and at the end they were found to have been suffering from mental challenges at the time they committed the offences. Special findings were made that they were guilty but insane and were subsequently committed to be detained in prisons at the president’s pleasure.Some inmates had not been tried or did not complete their trials on account of the mental challenges and the courts made like orders that they be held at the president’s pleasure in various prisons. The inmates petitioned the instant court challenging the constitutionality of the various provisions of the law providing for holding of inmates in prisons at the president’s pleasure.The petitioners challenged the constitutionality of sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code, Chapter 75, Laws of Kenya. The petitioners contended that the impugned sections were contrary to articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution of Kenya. The petitioners asked the court to, inter aliadeclare sections 162 to167 of the Criminal Procedure Code unconstitutional to the extent that it occasioned inhuman and degrading treatment against persons living with disabilities and in violation of articles 28, 29 and 54 (1)(a) of the Constitution.The 1st respondent did not participate in the proceedings despite being duly served. The 2nd respondent opposed the petition failed to demonstrate how their rights and fundamental freedoms were violated by the 2nd respondent. The 2nd respondent asked the court to dismissed the petition.

Issues

What was the procedure and conditions necessary for detaining a person at the president’s pleasure?

Whether sections 162, 163, , 164, 166 & 167 of Criminal Procedure Code which mandated the presidency to detain accused persons at its pleasure pending or during trial undermined the independence of the judiciary

Whether there was a distinction between the presidential power of mercy and the president’s power to detain accused persons of unsound mind at his or her pleasure.

Whether accused persons of unsound mind were entitled to the protection under article 54 of the Constitution and part III of the Persons with Disabilities Act.

Whether Sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code that provided for the detention of persons of unsound mind at the pleasure of the president were unconstitutional for; subjecting persons with disabilities inhuman or degrading treatment or punishment contrary to articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f) of the Constitution;

violating the right to fairing of persons of unsound mind protected under article 50, 51(1) and (2);

infringing on the doctrine of separation of powers and independence of the judiciary contrary to articles 159(2)(a), (b) and (d) and 160(1) of the Constitution.

Relevant provisions of the Law Constitution of Kenya, 2010Article 25Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—(a)freedom from torture and cruel, inhuman or degrading treatment or punishment;(b)freedom from slavery or servitude;(c)the right to a fair trial; and(d)the right to an order of habeas corpus.Article 27(1)(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.Article 28Every person has inherent dignity and the right to have that dignity respected and protected.Article 29Every person has the right to freedom and security of the person, which includes the right not to be—(a)deprived of freedom arbitrarily or without just cause;(b)detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;(c)subjected to any form of violence from either public or private sources;(d)subjected to torture in any manner, whether physical or psychological;(e) subjected to corporal punishment; or(f)treated or punished in a cruel, inhuman or degrading manner.Criminal Procedure Code, Chapter 75, Laws of KenyaSection 162(1)***When in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness.(2)If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case._____________________*** Powers delegated to the Minister and to the Permanent Secretary of the Ministry for the time being responsible for prisons, by L.N. 579/1963. (3) If the case is one in which bail may be taken, the court may release the accused person on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person, and for his appearance before the court or such officer as the court may appoint in that behalf.(4)If the case is one in which bail may not be taken, or if sufficient security is not given, the court shall order that the accused be detained in safe custody in such place and manner as it may think fit, and shall transmit the court record or a certified copy thereof to the Minister for consideration by the President.(5)Upon consideration of the record the President may by order under his hand addressed to the court direct that the accused be detained in a mental hospital or other suitable place of custody, and the court shall issue a warrant in accordance with that order; and the warrant shall be sufficient authority for the detention of the accused until the President makes a further order in the matter or until the court which found him incapable of making his defence orders him to be brought before it again in the manner provided by sections 163 and 164. Section 163(1) If a person detained in a mental hospital or other place of custody under section 162 or section 280 is found by the medical officer in charge of the mental hospital or place to be capable of making his defence, the medical officer shall forthwith forward a certificate to that effect to the Director of Public Prosecutions.(2) The Director of Public Prosecutions shall thereupon inform the court which recorded the finding concerning that person under section 162 whether it is the intention of the Republic that proceedings against that person shall continue or otherwise.(3)In the former case, the court shall thereupon order the removal of the person from the place where he is detained and shall cause him to be brought in custody before it, and shall deal with him in the manner provided by section 164; otherwise the court shall forthwith issue an order that the person be discharged in respect of the proceedings brought against him and released from custody and thereupon he shall be released, but the discharge and release shall not operate as a bar to any subsequent proceedings against him on account of the same facts.Section 164Wherever a trial is postponed under section 162 or section 280, the court may at any time, subject to the provisions of section 163, resume trial and require the accused to appear or be brought before the court, whereupon, if the court considers the accused to be still incapable of making his defence, it shall act as if the accused were brought before if for the first time.Section 166(1)Where an act or omission is charged against a person as an offence, and it is given in evidence on the trial of that person for that offence that he was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission.(2)When a special finding is so made, the court shall report the case for the order of the President, and shall meanwhile order the accused to be kept in custody in such place and in such manner as the court shall direct.(3)The President may order the person to be detained in a mental hospital, prison or other suitable place of safe custody.(4)The officer in charge of a mental hospital, prison or other place in which a person is detained by an order of the President under subsection (3) shall make a report in writing to the Minister for the consideration of the President in respect of the condition, history and circumstances of the person so detained, at the expiration of a period of three years from the date of the President’s order and thereafter at the expiration of each period of two years from the date of the last report.(5)On consideration of the report, the President may order that the person so detained be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit.(6)Notwithstanding the subsections (4) and (5), a person or persons thereunto empowered by the President may, at any time after a person has been detained by order of the President under subsection (3), make a special report to the Minister for transmission to the President, on the condition, history and circumstances of the person so detained, and the President, on consideration of the report, may order that the person be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit.(7)The President may at any time order that a person detained by order of the President under subsection (3) be transferred from a mental hospital to a prison or from a mental hospital, or from any place in which he is detained or remains under supervision to either a prison or a mental hospital.Section 167(1)*If the accused, though not insane, cannot be made to understand the proceedings—(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 accused person be detained during the President’s pleasure.(2)A person ordered to be detained during the President’s pleasure shall be liable to be detained in such place and under such conditions as the President may from time to time by order direct, and whilst so detained shall be deemed to be in lawful custody.(3)The President may at any time of his own motion, or after receiving a report from any person or persons thereunto empowered by him, order that a person detained as provided in subsection (2) be discharged or otherwise dealt with, subject to such conditions as to the person remaining under supervision in any place or by any person, and such other conditions for ensuring the welfare of the detained person and the public, as the President thinks fit.(4)When a person has been ordered to be detained during the Presidents pleasure under paragraph (a) or paragraph (b) of subsection (1), the confirming or presiding judge shall forward to the Minister a copy of the notes of evidence taken at the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.

Held

Sections 162, 163, 164, 166 and 167 of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya (the CPC) related to the power of the Presidency to hold inmates in prisons at its pleasure. The exercise of that power arose in two ways: It could be during the trial of an accused in a criminal case or at the conclusion of a criminal trial. The exercise of the power to hold accused persons at the pleasure of the president pending or during trial was provided for under sections 162, 163, 164 and 167 of the CPC whereas the power to hold the accused persons at the pleasure of the president after conviction, but before sentence, was provided for under sections 166 of the CPC.

Courts had previously dealt with the subject of the instant petition. The subject of the constitutionality of the impugned sections had been severally litigated. Those courts had found that the provisions were unconstitutional. Therefore, the instant court could not attempt to re-invent the wheel. The impugned sections were unconstitutional.

The impugned sections were a threat to the doctrine of separation of powers and the independence of the Judiciary. When the Executive had legal access to undertake and discharge judicial functions of the Judiciary, then there could be no more threat to the doctrine of separation of powers and the independence of the Judiciary than that. That could only be the height of the sequestration of the Judiciary. Previous court decisions had warned against such scenario.

While the Constitution provided for several State organs, including commissions and independent offices, the people’s sovereign power was vested in the Executive, Legislature and Judiciary. The broad principle of separation of powers incorporated the scheme of checks and balances; but the principle was not to be applied in theoretical purity for its ultimate object was good governance, which involved phases of co-operation and collaboration, in a proper case.

The system of checks and balances served the cause of accountability, and it was a two-way motion between different State organs, and among bodies which exercised public power. The commissions and independent offices restrained the arms of Government and other State organs, and vice versa. The spirit and vision behind separation of powers was that there be checks and balances, and that no single person or institution should have a monopoly of all powers. The foregoing, therefore, ring-fenced the independence of the Judiciary and the doctrine of separation of powers such that no one arm of the government ate into the fabric of the other.

There was a distinction between the impugned sections and the exercise of the power of mercy in article 133(1) of the Constitution. The two were crystal different and needed no more elaboration. The exercise of the power under the impugned sections ran from the time a person was charged before a court of law until the conviction, but awaiting sentence. The impugned sections, therefore, dealt with the procedural aspects of the trial.

The exercise of the power of mercy under article 133(1) of the Constitution only came to the fore after an accused had been sentenced by the Court. The powers gave discretion to the president to exercise leniency on the sentence meted out against a convicted person. That was only after the Judiciary had fully exercised its judicial functions in a criminal case.

The two sets of powers ran parallel, the argument that article 133(1) of the Constitution was a basis for sustaining the impugned sections could not hold.

Article 260 of the Constitution defined disability to include any physical, sensory, mental, psychological or other impairment, condition or illness that had, or was perceived by significant sectors of the community to have, a substantial or long-term effect on an individual’s ability to carry out ordinary day-to-day activities. The Persons with Disabilities Act, No. 14 of 2003 defined as a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacted adversely on social, economic or environmental participation.

Under the impugned sections, a court was supposed to carry out an inquiry as to soundness of mind of an accused before making the order of detention at the president’s pleasure. Upon carrying out the inquiry, the court ought to have been satisfied that the accused person was either unable to follow or understand the proceedings due to the state of the mind or that the accused was guilty but insane at the time of committing the offence. Once the court made the determination aforesaid, it then made an order for the detention of the accused at the president’s pleasure.

An accused who was ordered to be detained at the president’s pleasure fell under the category of persons with disabilities. Such persons were entitled to the protection under article 54 of the Constitution, part III of the Persons with Disabilities Act and any other relevant law.

An accused who was found to be unfit to stand or to continue participating in a criminal trial due to mental challenges or an accused person who was tried and a special finding of guilty but insane made, was a person with disability and ought to be accorded the necessary protection and assistance required under the Constitution and the law. Such a person was sick and a sick person's place was at the hospital and not in prison.

Sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code contravened articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution.

There were thousands of inmates detained in various prisons in Kenya at the president’s pleasure and that such a state of affairs strained the meagre resources allocated to the Kenya Prisons Service. For instance, the 11th petitioner in the instant matter was aged 70 years. He had been in detention since October 5, 2010 when a special finding was made against him and had never undergone any medical assessment, review or treatment since then. That was a period of 12 years. There was also the 9th petitioner who was aged 58 years who had been held at Kamiti Maximum Prison at the president’s pleasure since taking plea on April 19, 2012. He had never been tried and never had he been reviewed or received any medical assistance. That was a period of 10 years.

Despite the impugned sections being declared unconstitutional long ago, the Criminal Procedure Code had not been amended so as to align the statute with the Constitution and in line with the various decisions. There was, therefore, need for taking further steps towards attaining that end.

The detaining of persons facing criminal trials or having been tried and special findings made that they were ‘guilty but insane’ in prisons at the president’s pleasure pursuant to sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code or under any other law constituted a threat to the doctrine of separation of powers and the independence of the Judiciary.

An accused who was found to be unfit to stand trial or to continue participating in a criminal trial due to mental challenges or an accused who was tried and convicted of a criminal offence, but was found insane at the time of committing the crime was a person with disability and ought to be accorded the necessary protection and assistance required under the Constitution and the law.

The persons who were detained in prison facilities in Kenya under the president’s pleasure ought to be arraigned before the courts which committed them and the courts ought to take charge of those persons and make appropriate orders and directions.

Petition allowed.

Orders

A declaration was issued that detaining of persons with mental challenges who were facing criminal trials or who had been tried and special findings made that such persons were ‘guilty but insane’ in prisons at the president’s pleasure pursuant to sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code or under any other law constituted a threat to the doctrine of separation of powers and the independence of the Judiciary.

A declaration was issued that sections 162(4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167(1)(a), (b), (2), (3) and (4) of the Criminal Procedure Code or any other law providing for the detaining of any person with mental challenges who faced a criminal trial or had been tried and a special finding made that such a person was ‘guilty but insane’ at the president’s pleasure contravened articles 25(a), 27(1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution. Such provisions were declared unconstitutional, null and void.

A declaration was issued that an accused who was found to be unfit to stand trial or to continue participating in a criminal trial due to mental challenges or an accused person who was tried for a criminal offence, and was found to have been insane at the time of committing the crime was a person with disability and ought to be accorded the necessary protection and assistance required under the Constitution and the law.

A declaration was issued that no court of law should commit any person facing a criminal trial found to suffer from mental challenges to any prison facility in Kenya to be detained under the president’s pleasure pursuant to any law.

A declaration was issued that no prison facility in Kenya should accept and detain any person found to suffer from mental challenges under the president’s pleasure. For clarity, a prison facility should only accept such persons with mental challenges committed to the facility under the orders of the court which orders should not include any order to hold such persons under the president’s pleasure.

A declaration was issued that any continued detention of persons with mental challenges who were facing criminal trials or who had been tried and special findings made that such persons were ‘guilty but insane’ and that they were to be detained at the of the president’

A declaration was issued that the Advisory Committee on the Power of Mercy established under article 133 of the Constitution had no jurisdiction to deal with persons with mental challenges who were facing criminal trials or who had been tried and special findings made that they were ‘guilty but insane’ until such a time when such persons were sentenced by courts of law.

An order was issued that any prison facility in Kenya holding any person with mental challenges facing a criminal trial or who had been tried and a special finding made that such a person was ‘guilty but insane’ and be detained at the president’s pleasure should make arrangements and arraign such a person before the Court that committed the person to the prison facility.

Once any person with mental challenges facing a criminal trial or who had been tried and a special finding made that such a person was ‘guilty but insane’ was arraigned before Court pursuant to order (h) above, the court should make appropriate orders and directions upon taking into account the mental status of the accused and the period the accused had been detained in prison at the president’s pleasure.

In the event the prison facility was unable to arraign such a person before court as ordered in order (viii) above, the facility should immediately so inform the court and the court should make appropriate orders and directions as it deemed fit.

The Honourable Deputy Registrar of the Constitutional and Human Rights Division of the High Court was directed to, within 14 days of the instant decision, transmit copies of the instant judgment to the parties in the instant matter as well as to the Commissioner-General of the Kenya Prisons Service, the Speaker of the National Assembly, the Registrar of the High Court and the Registrar of the subordinate Courts. The Speaker of the National Assembly was directed to take steps towards ensuring that the impugned sections of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya were aligned with the Constitution and in terms of the instant judgment.

The Speaker of the National Assembly had to file an Affidavit in the instant court on the status of implementation of the instant judgment in the next 12 months.

The Honourable Deputy Registrar was directed to, at the expiry of 12 months from the delivery of the instant judgment, fix the instant matter before court for appropriate directions.

No orders as to costs.

Citations CasesEast Africa; AOO & 6 others v Attorney General & another Petition 570 of 2015; [2017] eKLR — (Explained)

BKJ v RepublicCriminal Appeal of 2015; [2016] eKLR — (Explained)

Jayne Mati & another v Attorney General & another Petition No 108 of 2011; [2012] eKLR — (Explained)

Katuta, Joseph Melikino v Republic Criminal Appeal 12 of 2016; [2017] eKLR — (Explained)

Rawal, Kalpana H & 2 others v Judicial Service Commission & 3 others Civil Application No 11 of 2016; [2016] eKLR — (Explained)

Law Society of Kenya v Kenya Revenue Authority & another Petition 29 of 2017; [2017] eKLR — (Explained)

Republic ex parte Chudasama v Chief Magistrate’s Court, Nairobi & another [2008] 2 EA 311 — (Explained)

Republic v ENWCriminal Case No 78 of 2015; [2019] eKLR — (Explained)

SOM v Republic Criminal Appeal 44 of 2017; [2018] eKLR) — (Explained)

Trusted Society of Human Rights v. The Attorney-General & others, [2012] 2 KLR 518 — (Explained)

Musyoka, Wilfred Manthi v Machakos County Assembly & 4 others Constitutional Petition 16 of 2018; [2018] eKLR — (Explained)

South Africa;1. Minister of Health v Treatment Action Campaign (No 2) [2002] ZACC 5 — (Explained)2. Smith v Minister of Justice and Correctional Services & others [2020] ZACC 29 — (Explained)3. Fose v Minister of Safety & Security [1977] ZACC 6 — (Explained)United Kingdom;Reyes v R (Belize) [2002] UKPC 11 — (Explained)StatutesEast Africa; Constitution of Kenya, 2010 article 25(a), 27 (1), (2), (4), 28, 29(d) (f), 50, 51(1) (2);54(1)(a);59(4) ,159(2)(a), (b) (d) ;157 ;159(2)(a)(b)(d);160(1);161(1);162;167;249(1); Chapter 15 — (Interpreted)

Criminal Procedure Code (cap 75) sections 162 (4) (5); 166(2-7); 167(1)(a),(b),(2),(3)(4) — (Interpreted)

Penal Code (cap 63) section 25(2)(3) — (Interpreted)

Sexual Offences Act, 2016 (Act No 3 of 2016) section 8 (1)(3) — (Interpreted)

Texts & JournalsMontesque (Ed) (1948) The Spirit of the LawsCambridge University PressInternational Instruments & Conventions African Charter on Democracy, Elections and Governance, 2007 article 2(5)

African Charter on Peoples’ and Human Rights, 1998

Covenant on Civil and Political Rights, 1966

The Bangalore Principles of Judicial Conduct, 2002

United Nations Standard Minimum Rules for the Treatment of Prisoners, 2015

Advocates1. Mr Michuki for the petitioners2. Miss Kabila instructed by the Director of Public Prosecution for the 2nd respondent3. Mr Abdulkadir Osman for the interested party

Judgment

Introduction: 1. The petition subject of this judgment is a passionate plea by and on behalf of persons who suffer from mental challenges and who are held in various prisons in Kenya at the pleasure of the President.

2. Some of the inmates underwent full trial and at the end they were found to have been suffering from mental challenges at the time they committed the offences. Special findings were made that they were ‘guilty but insane’ and were subsequently committed to be detained in prisons at the President’s pleasure.

3. Some inmates have not been tried or did not complete their trials on account of the mental challenges and the courts made like orders that they be held at the President’s pleasure in various prisons.

4. The inmates are now before court challenging the constitutionality of the various provisions of the law providing for holding of inmates in prisons at the President’s pleasure.

The Parties: 5. Isaac Ndegwa Kimaru, Philip Mueke Maingi, Peter Kariuki Muibai, Peter Thanga Kago and Hesbon Onyango Nyamweya are the 1st to 5th petitioners herein respectively. They are all prisoners at the Kamiti Maximum Prison having been convicted for various offences and are serving different sentences.

6. The 1st to 5th petitioners aforesaid, are among Lawyers and Law students providing legal aid to indigent prisoners within Kamiti Prison under the sponsorship of the Africa Prisons Project, a registered Non-Governmental Organisation, whose objective is to bring hope and dignity to men, women and children in Kenyan Prisons.

7. The 6th petitioner, IMM, was arrested on the February 16, 2013 and charged for the offence of Murder contrary to section 203 as read with section 204 of the Penal Code in Criminal Case No 57 of 2013 in the High Court at Nairobi.

8. At the end of a full trial, a special finding was made and he has since March 8, 2018 been detained at Kamiti Prison at the pleasure of the President

9. IMM, the 6th petitioner, has been reviewed around four times by June 2019. The last Medical Report declared him fit and healthy. As a result, a recommendation was made to the President through the Power of Mercy Committee. Since then, IMM, is at the prison awaiting for his fate. He is currently pursuing undergraduate studies leading to the award of Bachelor of Laws degree from the University of London under the sponsorship of the African Prisons Project.

10. The 7th petitioner, JKM, epileptic then, aged 43 years was arrested on the April 10, 2014 and charged with the offence Murder which was later substituted with a charge of manslaughter in Criminal Case No 382 of 2014 at the Kitui Law Court. After a full trial, a special finding was made on the December 10, 2015 and was subsequently detained under the presidential pleasure.

11. The trial court found that the petitioner, JKM, suffered an epileptic fit when he committed the offence in issue. He has been severally reviewed and declared fit and healthy. He is also awaiting to hear from the President having made a request through the Power of Mercy Committee.

12. The 8th petitioner, BMK, is aged 44 years and was charged with the offence of cutting down crops in Criminal Case No 432 of 2008 at the Kandara Law Courts. A special finding was made on the 8th May, 2009 and was committed to prison to be held at the pleasure of the President. He is currently still undergoing review at the Prison.

13. The 9th petitioner, PKI, is aged 58 years. He was charged on the April 19, 2012 with the offence of murder in Criminal Case No 31 of 2012. A special finding was reached on the April 9, 2019 and was committed to Prisons to be held at the President’s pleasure.

14. The petitioner has never been reviewed since he was committed to Prison.

15. The 10th petitioner is IHK who is now aged 43 years. He was charged with the offence of defilement contrary to section 8 (1)(3) of the Sexual Offences Act in Criminal Case No 59 of 2015. The petitioner was not tried despite a medical report that he was fit to stand trial. Instead, a special finding was made on November 22, 2017 and he was committed to Prison where he has been held at the President’s pleasure.

16. IHK has since undergone further reviews and the reports confirmed that he has been fit and healthy. He is also awaiting to hear from the President having made a request through the Power of Mercy Committee.

17. The 11th petitioner, NNN, is aged 70 years. He was charged with the offence of murder on the September 20, 2002. After a full trial a special finding was made on the October 5, 2010. He unsuccessfully appealed against the special finding to the Court of Appeal at Nyeri in Criminal Appeal No 443 of 2010.

18. The petitioner has never undergone any medical assessment, review or treatment since the special finding was made in 2010.

19. The 12th petitioner, CTM, was charged with the offence of murder in Criminal Case No 17 of 2014 in the High Court at Nyeri on the August 6, 2014. A special finding was finding was made on the November 23, 2018.

20. The 13th petitioner, PGM, aged 49 years was arrested in 1997, but charged with the offence of murder in Criminal Case No 73 of 2004. He spent a period of 12 years in prison before a special finding was reached on March 12, 2010 and placed under presidential pleasure.

21. The petitioner has never undergone any medical review since 2010 when the special finding was made and he is currently not in any medication.

22. The 14th petitioner, TKM, is aged 65 years old. He was charged for the offence of murder in Criminal Case No 7 of 1994 and a special finding was reached on the July 12, 1994. Since then, he has never undergone any medical reviews.

23. The 15th petitioner is AKM and he was charged with the offence of murder in Criminal Case No 8 of 1998. A special finding was reached on the August 28, 1998. He has since then been reviewed and declared fit. He is also awaiting to hear from the President having made a request through the Power of Mercy Committee.

24. BGM is the 16th petitioner. He was charged at the Kibera Law Courts for the offence of defilement and a special finding was reached on the June 11, 2015.

25. He has been reviewed and found fit. He is also awaiting to hear from the President having made a request through the Power of Mercy Committee.

26. RMM is the 17th petitioner. He was charged for the offence of murder in Criminal Case No 78 of 2010 and a special finding was reached on the 19th April, 2018.

27. The 18th petitioner is CMW who was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code on the April 20, 2015.

28. The petitioner suffered from post-partum psychosis which is classified as a disease of the mind. A special ruling was made on the September 2018.

29. The 1st respondent is the Honourable Attorney General of the Republic of Kenya and the Principal Legal Adviser to the Government.

30. The 2nd respondent is the Director of Public Prosecutions, a creature of article 157 of the Constitution. The Director of Public Prosecutions is in charge of all criminal prosecutions.

31. The interested party, Kenya National Human Rights and Equality Commission, is an independent Commission established under article 59(4) of the Constitutionand within the meaning of Chapter 15 of the Constitution.

32. The interested party is mandated under article 59(2) of the Constitutionto, inter alia, promote the respect for and develop a culture of human rights in the Republic of Kenya, to promote the protection and observance of human rights in public and private institutions and to investigate any conduct in state affairs, or any act or omission in public administration in any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in any impropriety of prejudice.

33. Further, under article 249(1) of the Constitution, the interested party is mandated to protect the sovereignty of the people, to secure the observance by all state organs of democratic values and principles and to promote constitutionalism.

The Petition: 34. The petitioners in this matter filed the Petition in persons and were later joined and represented by Mr Michuki, Learned Counsel on a pro-bono basis.

35. The petition is undated, but was filed on June 3, 2020. The petition is supported by the affidavits of the petitioners wherein the inmates described the unique circumstances in which they were detained into prisons at the President’s pleasure. The petitioners also filed submissions in further support of the petition.

36. Later, the petitioners, while still appearing in persons, filed an application by way of Chamber Summons dated September 10, 2020 where they sought similar orders as those in the petition. The application was heard together with the Petition.

37. The instant petition raises questions of law regarding the constitutionality of sections 162(4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code(hereinafter referred to as ‘the impugned sections’).

38. The petitioners variously contended that the impugned sections are contrary to articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution.

39. In the main, the petition sought the following remedies: -a)This hon court be pleased to issue a declaration that sections 162-167 of the Criminal Procedure Code is unconstitutional to the extent that it is inconsistent with provisions of article 25, 27(1), (4), 28, 29, 50, 54, and 160 (1) of the Constitution of Kenya, 2010. b)This hon court a make declaration that sections 162-167 unconstitutional to the extent that it has occasioned inhuman and degrading treatment against persons living with disabilities and in violation of articles 28, 29 and 54 (1)(a) of the Constitution.c)This court issues a declaration that all those affected by the section 162-­167 of the Criminal Procedure Code be referred back to their respective trial courts for further revision of their matters.d)The court be pleased to order that the detainees who have since healed be released forthwith with the rest be detained in mental institutions for further psychiatric observation and recommendation to the courts if any.e)The court be pleased to make such other order(s) as it shall deem just.

The Responses: 40. The Hon Attorney General did not participate in this matter even after due service.

41. The 2nd respondent, the Director of Public Prosecutions, opposed the both the petition and the application.

42. It filed Grounds of opposition dated 13th day of October, 2020.

43. The 2nd respondent’s main contention was that the petitioners failed to demonstrate how their rights and fundamental freedoms were violated by the 2nd respondent.

44. It also filed written submissions and sought the dismissal of the Petition against the 2nd respondent.

45. The interested party appeared in the matter. It filed written submissions in support of the Petition.

Issues for Determination: 46. Having carefully read the material before court, I hereby discern the following issues for discussion: -a.The background of the petition.b.Whether sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code contravene articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution.c.What remedies, if any, shall issue?

47. I will deal with the issues sequentially.(a)The background of the petition:

48. This court has deliberately decided to look at the background of the petition herein for the reason that the subject of the impugned sections has been variously been litigated and Courts have variously rendered themselves.

49. The petition, therefore, does not raise any novel issue, save that it seeks to achieve a uniform application of the law in the whole country. The petition is also a call for review of various legal provisions so as to align then with the Constitution.

50. I will, therefore, deal with two sub-issues namely: -(i)The impugned sections.(ii)Decisions on the impugned sections.The impugned sections:

51. There is no doubt that the impugned sections relate to the power of the Presidency to hold inmates in prisons at its pleasure. The exercise of that power arises in two ways. It may be during the trial of an accused in a criminal case or at the conclusion of a criminal trial.

52. The exercise of the power to hold accused persons at the pleasure of the President pending or during trial is provided for under sections 162, 163, 164 and 167 of the Criminal Procedure Code, cap 75 of the Laws of Kenya (hereinafter referred to as ‘the CPC’) whereas the power to hold the accused persons at the pleasure of the President after conviction, but before sentence, is provided for under sections 166 of the CPC.

53. For ease of this discussion I will reproduce verbatim the above provisions. Under the CPC these provisions fall under the head titled: Procedure in case of the lunacy or other incapacity of an accused person.

54. Sections 162, 163, 164 and 167 of the CPC provide as follows: -Section 162: Inquiry by court as to soundness of mind of accused.(1)When in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness.(2)If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case.(3)If the case is one in which bail may be taken, the court may release the accused person on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person, and for his appearance before the court or such officer as the court may appoint in that behalf.4)If the case is one in which bail may not be taken, or if sufficient security is not given, the court shall order that the accused be detained in safe custody in such place and manner as it may think fit, and shall transmit the court record or a certified copy thereof to the Minister for consideration by the President.(5)Upon consideration of the record the President may by order under his hand addressed to the court direct that the accused be detained in a mental hospital or other suitable place of custody, and the court shall issue a warrant in accordance with that order; and the warrant shall be sufficient authority for the detention of the accused until the President makes a further order in the matter or until the court which found him incapable of making his defence orders him to be brought before it again in the manner provided by sections 163 and 164. Section 163: Procedure where person of unsound mind subsequently found capable of making defence:(1)If a person detained in a mental hospital or other place of custody under section 162 or section 280 is found by the medical officer in charge of the mental hospital or place to be capable of making his defence, the medical officer shall forthwith forward a certificate to that effect to the Director of Public Prosecutions.(2)The Director of Public Prosecutions shall thereupon inform the court which recorded the finding concerning that person under section 162 whether it is the intention of the Republic that proceedings against that person shall continue or otherwise.(3)In the former case, the court shall thereupon order the removal of the person from the place where he is detained and shall cause him to be brought in custody before it, and shall deal with him in the manner provided by section 164; otherwise the court the proceedings brought against him and released from custody and thereupon he shall be released, but the discharge and release shall not operate as a bar to any subsequent proceedings against him on account of the same facts.Section 164: Resumption of proceedings or trial:Wherever a trial is postponed under section 162 or section 280, the court may at any time, subject to the provisions of section 163, resume trial and require the accused to appear or be brought before the court, whereupon, if the court considers the accused to be still incapable of making his defence, it shall act as if the accused were brought before if for the first time.Section 167: Procedure when accused does not understand proceedings:1)If the accused, though not insane, cannot be made to understand the proceedings ­(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 has heard would not justify a conviction, it shall acquit and discharge the accused, but it 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 accused person be detained during the President's pleasure.2)A person ordered to be detained during the President's pleasure shall be liable to be detained in such place and under such conditions as the President may from time to time by order direct, and whilst so detained shall be deemed to be in lawful custody.3)The President may at any time of his own motion, or after receiving a report from any person or persons thereunto empowered by him, order that a person detained as provided in subsection (2) be discharged or otherwise dealt with, subject to such conditions as to the person remaining under supervision in any place or by any person, and such other conditions for ensuring the welfare of the detained person and the public, as the President thinks fit.4)When a person has been ordered to be detained during the Presidents pleasure under paragraph (a) or paragraph (b) of subsection (1), the confirming or presiding judge shall forward to the Minister a copy of the notes of evidence taken at the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.

55. Section 166 of the CPC deals with the defence of lunacy adduced at trial. It further provides as follows: -1)Where an act or omission is charged against a person as an offence, and it is given in evidence on the trial of that person for that offence that he was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission.2)When a special finding is so made, the court shall report the case for the order of the President, and shall meanwhile order the accused to be kept in custody in such place and in such manner as the court shall direct.3)The President may order the person to be detained in a mental hospital, prison or other suitable place of safe custody.4)The officer in charge of a mental hospital, prison or other place in which a person is detained by an order of the President under subsection (3) shall make a report in writing to the Minister for the consideration of the President in respect of the condition, history and circumstances of the person so detained, at the expiration of a period of three years from the date of the President's order and thereafter at the expiration of each period of two years from the date of the last report.5)On consideration of the report, the President may order that the person so detained be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit.6)Notwithstanding the subsections (4) and (5), a person or persons thereunto empowered by the President may, at any time after a person has been detained by order of the President under subsection (3), make a special report to the Minister for transmission to the President, on the condition, history and circumstances of the person so detained, and the President, on consideration of the report, may order that the person be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit7)The President may at any time order that a person detained by order of the President under subsection (3) be transferred from a mental hospital to a prison or from a mental hospital, or from any place in which he is detained or remains under supervision to either a prison or a mental hospital.

56. A look at the next sub-issue follows.Decisions on the impugned sections:

57. As earlier stated, courts have previously dealt with the subject of the Petition herein. I will look at some of them.

58. The High Court in Meru Criminal Appeal No 59 of 2014 Hassan Hussein Yusuf v Republic [2016] eKLR in dealing with an appeal where the appellant was tried and convicted but at the time of sentencing it dawned on the court that he was of unsound mind and was subsequently detained at the pleasure of the President found section 167 of the CPCunconstitutional.

59. The court held as follows: -A sick person's place is at the hospital and not in prison. I find section 167 of the Criminal ProcedureCode discriminative to people with mental illness for prescribing their detention to be in prison instead of a health facility and for the detention to be indeterminate. This offends articles 25 and 29 (f) of the Constitution.The order envisaged under section 167(1) of the Criminal Procedure Code is A punishment. Any punishment that cannot be determined from the onset is cruel, inhuman and degrading. I therefore make a finding that this section is unconstitutional to the extent it offends the said articles of the Constitution.

60. In allowing the appeal, the court held as follows: -The appeal is allowed, the order of detention is set aside, However the appellant shall be escorted to a medical facility with the capacity to re-evaluate his mental condition. If in the opinion of a psychiatrist, he will not pause any danger to the public and himself he shall be set at liberty and prison authorities shall ensure that he is facilitated to his home. If the opinion is otherwise, he shall be admitted for treatment until such a time it will be safe to release him.

61. The same court returned a similar finding in Criminal Appeal No 16 of 2015 B K J v Republic [2016] eKLR regarding section 167 of the CPC.

62. In Voi High Court Criminal Appeal No 12 of 2016 Joseph Melikino Katula v Republic [2017] eKLR, the court affirmed the decisions in the Hassan Hussein Yusuf case (supra) and BKJ case (supra).

63. The court stated as follows: -The constitutionality of section 167(1) of the Criminal Procedure Code vis-a vis the provisions of article 25 of the Constitution of Kenya was a conclusion that Kiarie wa Kiarie J also arrived at in the cases of B K J v Republic (2016) eKLR and Hassan Hussein Yusuf vs Republic [2016] eKLR. The common thread of his holdings was that keeping a sick person for an indeterminate period in a prison is cruel, inhuman and degrading treatment and contrary to article 25(a) and article 29(1) of the Constitution of Kenya.

64. In setting-aside the sentence of imprisonment and releasing the appellant, the court observed as follows: -11. Punishment that is meted out on a perpetrator is intended to achieve several objectives. If it is meted out as a deterrent punishment, it is intended to deter the offender from committing a similar crime. It is also meant to make the perpetrator pay for or suffer for his wrongful act and to compensate the victim for the loss or damage that he or she has suffered. It can also achieve the objective of protecting the community by incarcerating the perpetrator and communicating the displeasure of the society to crimes and it must.

12. Notably, imprisonment as a punishment must therefore achieve any of the aforesaid objectives. It is not intended to merely punish a person who has absolutely no idea why he has been imprisoned. Imprisonment of a convicted person who is unlikely to be reformed or deterred from future crimes because he is not aware of the consequences of his actions due to mental incapacities is tantamount to subjecting such person to torture and cruel, inhuman or degrading treatment or punishment contrary to article 25 of the Constitution of Kenya.

65. The High Court at Kisumu also dealt with the impugned sections in Criminal Case No 6 of 2011 Republic v SOM (2018) eKLR. The court while delivering a ruling after convicting an accused person for the offence of murder and upon being satisfied that the accused person was insane at the time of committing the offence, observed as follows: -11. ……. The vesting of discretion on the President on how the accused is to be treated after conviction is inimical to the fundamental duty of the Judiciary to determine the quilt of the accused and determine the terms upon which he or she serves the sentence. The fact that the statute provides for a periodic review by the President upon advise of executive functionaries goes further to buttress this key point.

66. The court went further and made the following orders: -(a)I declare that the provisions of section 166 of the Criminal Procedure Code are unconstitutional to the extent that they take away the judicial function to determine the nature of the sentence or consequence of the special finding contrary to article 160 of the Constitution by vesting the discretionary power to the President to determine the nature and extent of the sentence.(b)Consequently, I declare that in order to remedy the constitutional defect, the reference to “the President” under section 166 of the Criminal Procedure Code and that the review to be carried out under that section shall be undertaken by the court.(c)I direct that the accused shall be committed to a mental institution namely Mathari Mental Hospital for a term of fifteen (15) years subject to periodic review by the court in accordance with section 166 of the Criminal Procedure Code and in any case before the expiry of every two (2) years.

67. The exercise of the power by the Presidency to detain persons at its pleasure was further dealt with by the High Court in Nairobi Constitutional Petition No 570 of 2015 AOO & 6 others v Attorney General & another [2017] eKLR.

68. In that matter, the court considered the issue in light of sentencing of children and with reference to section 25(2) and (3) of the Penal Code.25. Sentence of death

(1)Where any person is sentenced to death, the form of the sentence shall be to the effect only that he is to suffer death in the manner authorized by law.(2)* Sentence of death shall not be pronounced on or recorded against any person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of eighteen years, but in lieu thereof the court shall sentence such person to be detained during the President’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the President may direct, and whilst so detained shall be deemed to be in legal custody.*Power delegated to the Minister and to the Permanent Secretary of the Ministry for the time being responsible for Prisons (LN 579/1963).(3)When a person has been sentenced to be detained during the President’s pleasure under subsection (2), the presiding judge shall forward to the President a copy of the notes of evidence taken on the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.

69. The court then observed as follows: -Sentencing under Commonwealth legislation is an essentially judicial function. The Constitution provides that if legislation cannot be read as to be compatible with the Constitution, a court has powers to declare the statute, to the extent that it is inconsistent, void.In my view, a sentence whose duration is not determined and which depends on the whims of the executive cannot be constitutionally sustainable in that it offends the provisions of article 53 (1) (0) () & (ii), (2) of the Constitution. I also find that section 25 (3) of the Penal Code offends the provisions of article 160 (1) of the constitution, in that it confers powers to the president to determine period of imprisonment of persons under 18 years which is a judicial function contrary to the constitutional doctrine of separation of powers.

70. The court further observed that: -I must hasten to point out that all the petitioners were convicted long before the promulgation of the 2010 Constitution. However, in my view, the concept of separation of powers is not new and was envisaged under the repealed Constitution. Under the previous constitution, just like the 2010 Constitution, the judicial function was and remained the preserve of the judiciary and it was never the intention of the framers of the former Constitution to vest judicial authority in the hands of the executive, and in particular transfer determination of sentences in the hands of the executive

71. The court also made the following observation: -The imposition of a punishment in a criminal matter which includes the assessment of its severity is an integral part of the administration of justice and is therefore the exercise of judicial not executive, power. In so far as section 25(2) & (3) of the Penal Code allows a person aged below 18 years to be detained at the president’s pleasure, thereby granting the president powers to determine sentence or when to release the person and requires a judicial officer to forward notes to the president, in my view it offends the principle of separation of powers and article 160 (1) of the Constitutionof Kenya 2010

72. In the end, the court made the following final orders: -a)A declaration be and is hereby issued that section 25(2) & (3) of the Penal Code[71] is unconstitutional in that it violates the provisions of article 53(1)(f)(i) & (ii), (2), and article 160 (1) of the Constitution of Kenya, 2010 and international conventions governing the rights of children.b)A declaration be and is hereby issued declaring that that to the extent that the second to the seventh petitioners herein were imprisoned for an indefinite and or an undetermined period of time at the pleasure of the president, thereby vesting into the executive judicial powers to determine the duration of their sentences contrary to the constitutional provision of separation of powers, their imprisonment at the presidents pleasure is unlawful to the extent that it violates the concept of separation of powers and the principles of constitutionalism under the repealed Constitution and theConstitution of Kenya, 2010. c)That the Hon Attorney General and Parliament be and are hereby directed to move with speed to enact the necessary amendments to ensure that the provisions of sections 25(2) & (3) of the Penal Code [72] conform with the provisions of article 53(1)(f) (i) & (ii), (2) and article 160 (1) Constitution of Kenya, 2010. d)That the second, third, fourth, fifth, sixth, and seventh petitioners herein be and are hereby ordered to be released from prison forthwith unless otherwise lawfully held.e)No orders as to costs.

73. The concurrence in the foregoing decisions was impugned in Nairobi High Court Criminal Case No 78 of 2015 Republic v ENW [2019] eKLR.

74. The court while interpreting section 166 of the CPC stated as follows: -The judicial function to pass sentence is reserved to the judicial process and cannot be taken away from it. However, the law gives the Executive a responsibility to make a determination whether a person need not suffer the punishment imposed against him by the court, and may remit such punishment for some reason, in certain cases. That executive power has constitutional underpinning under article 133 of the Constitution which stipulates thus….

75. The court went further to state that: -It is clear that passing sentence is an integral part of the judicial function. Equally important is the exercise of power of mercy, a responsibility that has been donated under the Constitution (2010) to the President acting on recommendations by the Power of Mercy Committee. This is an important role which has both constitutional and statutory underpinning. It is for that reason that I would hesitate to take the route suggested by my learned brother in the SOM case, supra where he declared that the name of the President be replaced with that of the court in section 166 of the CPC untenable.

76. With the above decisions, this court shall now deal with the next issue.(b)Whether sections 162(4) and (5), 166(2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code contravene articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution:

77. The petitioners and the interested party fronted their efforts in persuading the court to allow the Petition.

78. In their submissions, the petitioners referred to the decisions referred to hereinabove in demonstrating that the impugned sections were unconstitutional.

79. The petitioners argued that article 27(1) and (2) of the Constitution which provides that every person is equal before the law and has the right to equal protection and equal benefit of the law and that equality includes the full and equal enjoyment of all rights and fundamental freedoms, when measured against the impugned sections yields to denial, violation, infringement and threatening of the petitioners’ rights and fundamental freedoms in the Bill of Rights and that they sanction inequality.

80. They also argued that article 27(4) of the Constitution is infringed in that the impugned sections clearly discriminate against the petitioners.

81. The petitioners averred that the notion of equality springs directly from the oneness of human family and is linked to the essential dignity of an individual. That principle cannot be reconciled with the notion that a given group has the right to privileged treatment or mistreatment because of its perceived superiority/inferiority. It is impermissible to subject human beings including prisoners to differences in treatment that are inconsistence with the Constitution.

82. It was submitted that the respondents were under an obligation to justify the continued limitation under the impugned provision as a reasonable and justifiable limitation on certain convicts' rights is in accordance with the law, legitimate and necessary, in the interests of the reformation and rehabilitation of the prisoner or in the interests of public security or public order.

83. The petitioners, in referring to article 2(5) and (6) of the Constitution called upon the court to find that Kenya is bound various international legal instruments it ratified. The legal instruments included the International Covenant on Civil and Political Rights (ICCPR), United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) and the African Charter on Human and Peoples' Rights (ACHPR).

84. They in particular pointed out the following provisions: -a)Article 7 of the ICCPRand article 5 of the ACPHRboth provide that no one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment;b)Article 10 of the ICCPRand article 5 of the ACHPRboth provide that in the event one is deprived of liberty, one shall be treated with respect and humanityc)Rule 2 of the Mandela Rules provide that there shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status.

85. The petitioners urged this court to allow the petition.

86. Since the interested party supported the petition, I will capture its submissions first.

87. It was submitted that the petition herein brought to the fore the delicate principle and doctrine of separation of powers and in particular the relationship between the Judiciary and the Executive branches of the Government.

88. In buttressing that submission, the interested party stated that the doctrine of separation of powers is an important constitutional principle which this Court has time without number affirmed. Reference was made to Wilfred Manthi Musyoka Machakos County Assembly & 4 others [2018] eKLR which while quoting with approval the decision in Trusted Society of Human Rights v Attorney-General & others,High Court Petition No 229 of 2012; [2012] eKLR, the court expressed itself in the following terms: -69. As regards the doctrine of separation of powers, in his separation of powers theory, Montesquieu had sought to address the eternal mischief of abuse of power by those to whom it is entrusted. He observed [The Spirit of the Laws(1948)]:When the legislative and Executive powers are united in the same person, or in the same body of magistrates, there can be no liberty, there is no liberty if the power of judging is not separated from the legislative and Executive, there would be an end to everything, if the same man or the same body were to exercise those three powers.

71. …..Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. The Constitution consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two.

89. That the court then held that: -That this principle is reflected in our own Constitution appears in article 1(3) thereof which provides that sovereign power which pursuant to article 1(1) of the Constitution belongs to the people of Kenya and shall be exercised only in accordance with this Constitution: · is delegated to the following State organs, which shall perform their functions in accordance with this Constitution-(a) Parliament and the legislative assemblies in the county governments; (b) the national executive and the executive structures in the county governments; and (c) the Judiciary and independent tribunals.

90. The interested party submitted that the doctrine of separation of powers is firmly grounded under the Constitution. It also submitted that the instant petition primarily hinges on the relationship between the Executive and the Judiciary and to the extent to which the Executive reach can permeate through the independence of the Judiciary.

91. It was argued that the application of the impugned sections and its ramifications within the context of our constitutional framework is neither novel nor strange to this court. The impugned sections have been judicially considered on several occasions before this court. The interested party, however, noted that the jurisprudence with regard to the said impugned sections is somewhat uncertain and ambiguous, hence, the need to have it settled.

92. The interested party submitted that the common thread that runs through the impugned sections is the power vested on executive functionaries to determine sentencing based on their whims which is contrary to the doctrine of separation of powers.

93. The interested party reviewed the decisions on the impugned sections. It agreed with the ones this court has captured hereinabove except the finding in the Republic v ENW.

94. It submitted that the rest of the decisions commended themselves to the spirit and letter of the Constitution and, therefore, they posed the correct position of the law with regard to the impugned sections.

95. In faulting the decision in ENWcase (supra) the interested party argued that the powers vested on the Presidency pursuant to the impugned sections offended the principle of separation of powers and that the said power is not remotely or otherwise related to the Power of Mercy codified under article 133 of the Constitution.

96. The interested party further argued that article 133(1) of the Constitution employed the words ‘convicted’ and ‘punishment’ thereby fortified the argument that the power of mercy can only be exercised once a court of competent jurisdiction renders its punishment or conviction. This position, it was argued, dislodges the argument propounded by the court in ENWcase (supra) that the Executive is vested with the powers to make the necessary determinations under the impugned sections.

97. Further, the interested party argued that the contemplated periodic review of accused persons by the President under the impugned sections is one process while the power of mercy under the Constitution is a totally different one and that the instant Petition sought to challenge the former not the latter.

98. It explained that whereas the appropriateness or otherwise of a sentence is exclusively the mandate of the Judiciary, the power of mercy lies squarely on the Executive. It submitted that the fine distinction was aptly captured in AOO case (supra) while quoting with approval the case of Reyes v R (Belize) [2002] UKPC 11 in which it was stated: -…The Board is mindful of the constitutional provisions …governing the exercise of mercy by the Governor- General. It is plain that the Advisory Council has a most important function to perform. But it is not a sentencing function ·- Both in language and literature mercy and justice are contrasted. The administration of justice involves the determination of what punishment a transgressor deserves, the fixing of the appropriate sentence for the crime. The grant of mercy involves the determination that a transgressor need not suffer the punishment he deserves, that the appropriate sentence may for some reason be remitted. The former is a judicial, the latter is an executive, responsibility.

99. The interested party further argued that article 160(1) of the Constitutionguarantees the independence of the Judiciary by providing that, ‘in the exercise of judicial authority, the Judiciary, as constituted by article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority’.

100. According to the interested party, the importance of independence of Judiciary is further reflected in the general rules of international law and treaties and conventions ratified by Kenya which form part of the laws of Kenya by dint of article 2(5) and (6) of the Constitutionrespectively.

101. It cited the following instruments and provisions: -· Article 26 of the African Charter on Human and Peoples' Rights (Banjul Charter) states that:States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.· Article 2(5) of the African Charter on Democracy, Elections and Governance stipulates that one of the objectives of the Charter is to, Promote and protect the independence of the judiciary.· The Charter equally obligates State Parties under article 3 (5) to implement the principle of separation of powers. It further provides under article 15 (2) that, State Parties shall ensure that the independence or autonomy of the said institutions is guaranteed by the Constitution.· The United Nations Basic Principles on the Independence of the Judiciary sets out the minimum requirements for an ideal judicial system. That of relevance is article 3 which provides,The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by Law.The Bangalore Principles of Judicial Conduct (2002) further asserts the importance of judicial independence. It provides under article 1 that,Judicial independence is a pre­requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects

102. The interested party submitted that the weight of the authorities on the impugned sections seems to support the argument that indefinite sentences meted out on accused persons at the instigation of executive functionaries are not only a violation of the principle of separation of powers but a blatant breach of the independence of the Judiciary.

103. It was further submitted that sentencing and all its related facets is exclusively a judicial function and, therefore, outside the purview of executive functionaries.

104. The interested party called for a zealous protection of the independence of the Judiciary through the doctrine of separation of powers and that any attempt to subvert it, should be thwarted at the earliest opportune time.

105. The interested party posited that the independence of the Judiciary is non-negotiable otherwise the rule of law would fall into abyss.

106. The decision by the South African Constitutional Court in Smit v Minister of Justice and Correctional Services & others [2020] ZACC 29 while quoting with approval the decision in Minister of Health v Treatment Action Campaign (No 2) [2002] ZACC J5, was referred to where the court held as follows: -37. …. This court has made it clear on more than one occasion that, although there are no bright lines that separate the roles of the Legislature, the Executive and the courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of government and not the others. All arms of government should be sensitive to and respect this separation.

107. In closing the argument, it was submitted that the Constitution places a lot of premium on the twin principles of separation of powers and independence of the Judiciary which this court must safeguard at all times. It was also submitted that the indeterminacy of the sentences vested on the Executive as provided for under the impugned sections is an affront to these very critical constitutional principles and therefore unconstitutional.

108. The interested party also submitted on the constitutionality of the impugned sections. It submitted that the position taken by the petitioners on the impugned sections resonated with the supreme law and established jurisprudence.

109. It was submitted that the position urged well with articles 25, 27, 28, 29, 50 of the Constitution and the various international instruments.

110. In the end, it was submitted that based on the foregoing, the indeterminate sentences or punishments meted out on accused persons is a violation of their right to a fair trial, freedom from cruel, inhumane and degrading treatment and amounts to discrimination based on their status which is impermissible under the Constitution.

111. On that score, the interested party called upon the court to grant appropriate orders in upholding the Constitution. They argued that given the unconstitutionality of the impugned sections, any action purported to be done on the basis of the same is a nullity and further perpetuates an illegality.

112. To buttress the point, reliance is placed on Law Society of Kenya v Kenya Revenue Authority & another [2017] eKLR to the effect that: -12. …. It’s trite that an unconstitutional law is not law and actions or decisions taken pursuant to the unconstitutional law would out rightly be illegal.

113. That in a similar fashion, the court in AOOcase (supra) held that: -An unconstitutional statute is not Law, and more important judicial function includes the power to determine and apply the Law, and this necessarily includes the power to determine the legality of statutes.

114. The interested party urged this court, as custodian of human rights and fundamental freedoms, to adopt an interpretation that most favours the enforcement of a right or fundamental freedom in accordance with article 20(3)(b) of the Constitution and in line with article 259(1) of the Constitution.

115. The petitioner and Interested Party’s position was diametrically opposed by the 2nd respondent

116. It submitted that the petitioners failed to prove any violation or infringement of their rights or fundamental freedoms or the commission of illegality, irrationality, impropriety or unreasonable acts to be liable in these proceedings.

117. The 2nd respondent prayed that the Petition be dismissed.

118. As I stated and demonstrated earlier above, the subject of the constitutionality of the impugned sections has been severally litigated. I have carefully considered the decisions of the Learned Judges of the High Court.

119. I will, therefore, not attempt to re-invent the wheel. However, I must put my position clear on the subject issue. Without a second thought, I throw my weight behind the position and finding that indeed the impugned sections are unconstitutional.

120. Being in agreement with the reasoning of my fellow Learned Judges in the decisions I have cited above, I must re-emphasize the fact that the impugned sections are a threat to the doctrine of separation of powers and the independence of the Judiciary.

121. When the Executive has legal access to undertake and discharge judicial functions of the Judiciary, then there can be no more threat to the doctrine of separation of powers and the independence of the Judiciary than that. That can only be the height of the sequestration of the Judiciary.

122. Courts have severally warned against such scenario. Justice JB Ojwang, a retired Judge of the Supreme Court of Kenya while articulating the principle of supremacy of the Judiciary in Civil Application No 11 of 2016 Kalpana H Rawal & 2 others v Judicial Service Commission & 3 others[2016] eKLR as follows: -3. ……. While the Constitution requires all State organs to perform their part in giving fulfilment to the Constitution, the ultimate arbiter is the Judiciary, which has unlimited powers of interpretation. Interpretation of the Constitution and of any law, is far-removed from a condition of violence, tumult, or hurt to anyone, as the Judiciary’s operations are minutely governed by known law and procedure; and this justifies the standing of the judicial function as the essential underpinning of the new constitutional dispensation. [emphasis supplied].

123. On the subject of separation of powers, the court in Wilfred Manthi Musyoka v Machakos County Assembly & 4 others[2018] eKLR had the following to say: -69. As regards as regards the doctrine of separation of powers, in his separation of powers theory, Montesquieu had sought to address the eternal mischief of abuse of power by those to whom it is entrusted. He observed [The Spirit of the Laws (1948)]:When the legislative and Executive powers are united in the same person, or in the same body of magistrates, there can be no liberty, there is no liberty if the power of judging is not separated from the legislative and Executive, there would be an end to everything, if the same man or the same body were to exercise those three powers.

70. That this principle is reflected in our own Constitution appears in article 1(3) thereof which provides that sovereign power which pursuant to article 1(1) of the Constitution “belongs to the people of Kenya and shall be exercised only in accordance with this Constitution”:…is delegated to the following State organs, which shall perform their functions in accordance with this Constitution––(a)Parliament and the legislative assemblies in the county governments;(b)the national executive and the executive structures in the county governments; and(c)the Judiciary and independent tribunals. 71. This was appreciated by the High Court in Trusted Society of Human Rights v Attorney-General &others, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows:Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. The Constitution consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two.”

72. Thus, while the Constitution provides for several State organs, including commissions and independent offices, the people’s sovereign power is vested in the Executive, Legislature and Judiciary.

73. The broad principle of “separation of powers”, certainly, incorporates the scheme of “checks and balances”; but the principle is not to be applied in theoretical purity for its ultimate object is good governance, which involves phases of co-operation and collaboration, in a proper case. This perception emerges from Commission for the Implementation of the Constitution vs National Assembly of Kenya, Senate & 2 Others [2013] eKLR where Njoki, SCJ opined that:The system of checks and balances that prevents autocracy, restrains institutional excesses and prevents abuse of power apply equally to the Executive, the Legislature and the Judiciary. No one arm of Government is infallible, and all are equally vulnerable to the dangers of acting ultra vires the Constitution Whereas, the Executive and the Legislature are regularly tempered and safeguarded through the process of regular direct elections by the people, the discipline of an appointed and unelected Judicial arm of Government is largely self-regulatory. The parameters of encroachment on the powers of other arms of Government must be therefore clearly delineated, [their] limits acknowledged, and restraint fully exercised. It is only through the practice of such cautionary measures, that the remotest possibility of judicial tyranny can be avoided.

74. The system of checks and balances serves the cause of accountability, and it is a two-way motion between different State organs, and among bodies which exercise public power. The commissions and independent offices restrain the arms of Government and other State organs, and vice versa. The spirit and vision behind separation of powers is that there be checks and balances, and that no single person or institution should have a monopoly of all powers.

75. The Supreme Court has ably captured this fact InRetheMatter of the Interim Independent Electoral Commission Advisory Opinion No 2 of 2011 where it expressed itself as follows:The effect of the constitution's detailed provision for the rule of law in the process of governance, is that the legality of executive or administrative actions is to be determined by the courts, which are independent of the executive branch. The essence of separation of powers, in this context, is that in the totality of governance-powers is shared out among different organs of government, and that these organs play mutually-countervailing roles. In this set-up, it is to be recognized that none of the several government organs functions in splendid isolation.

124. In Jayne Mati & Another vs. Attorney General & another- Nairobi Petition No 108 of 2011, the court at paragraph 31 stated as follows: -:…separation of powers between the judiciary, executive and legislature is one of the hallmarks of our Constitution. Each body or organ of state is bound by the Constitution and should at all times acquaint itself of its provisions as it works within its sphere of competence. Constitutional interpretation is not the sole preserve of the judiciary but the judiciary has the last word in the event of a dispute on the interpretation and application of the Constitution.”

125. The foregoing, therefore, ring-fences the independence of the Judiciary and the doctrine of separation of powers such that no one arm of the Government eats into the fabric of the other.

126. I also wish to add my voice to the distinction between the impugned sections and the exercise of the power of mercy in article 133(1) of the Constitution. Infact the two are crystal different and need no more elaboration. However, for emphasis, the exercise of the power under the impugned sections runs from the time a person is charged before a Court of law until the conviction, but awaiting sentence. The impugned sections, therefore, deal with the procedural aspects of the trial.

127. On the other hand, the exercise of the power of mercy under article 133(1) of the Constitutiononly comes to the fore after an accused has been sentenced by the court. The powers give discretion to the President to exercise leniency on the sentence meted out against a convicted person. That is only after the Judiciary has fully exercised its judicial functions in a criminal case.

128. The two sets of powers, hence, run parallel and as such, the argument that article 133(1) of the Constitutionis a basis for sustaining the impugned sections cannot hold.

129. With utmost respect, this court, therefore, breaks ranks with the reasoning of the court in ENW case (supra) on the constitutionality of the impugned sections.

130. I will also ascertain if persons with mental challenges may be classified as persons with disabilities under article 54 of the Constitution.

131. Article 260 of the Constitutiondefines ‘disability’ as follows: -“disability” includes any physical, sensory, mental, psychological or other impairment, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial or long-term effect on an individual’s ability to carry out ordinary day-to-day activities;

132. The Persons with Disabilities Act, No 14 of 2003 defines disability’ as follows: -disability” means a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on social, economic or environmental participation;

133. Under the impugned sections, a court is supposed to carry out an inquiry as to soundness of mind of an accused before making the order of detention at the President’s pleasure. Upon carrying out the inquiry, the court must be satisfied that the accused is either unable to follow or understand the proceedings due to the state of the mind or that the accused was guilty but insane at the time of committing the offence.

134. Once the court makes the determination aforesaid, it then makes an order for the detention of the accused at the President’s pleasure.

135. Looking at the nature of the inquiry to be carried out under the impugned sections and the definitions of disability under the Constitution and the law, there is no doubt that an accused who is ordered to be detained at the President’s pleasure falls under the category of persons with disabilities.

136. Having so found, I also hold that such persons are entitled to the protection under article 54 of the Constitution, part III of the Persons with Disabilities Act and any other relevant law.

137. Article 54 of the Constitution states as follows: -(1)A person with any disability is entitled—(a)to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning;(b)to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person;(c)to reasonable access to all places, public transport and information;(d)to use Sign language, Braille or other appropriate means of communication; and(e)to access materials and devices to overcome constraints arising from the person’s disability.(2)The State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.

138. This court, therefore, finds and hold that an accused who is found to be unfit to stand or to continue participating in a criminal trial due to mental challenges or an accused who is tried and a special finding of ‘guilty but insane’ made, is a person with disability and ought to be accorded the necessary protection and assistance required under the Constitution and the law.

139. This court, hence, echoes the holding in Hassan Hussein Yusuf v Republic case (supra) that such a person is sick and ‘a sick person's place is at the hospital and not in prison’.

140. Having considered the impugned sections through the lenses of the Constitution, this court returns the verdict that sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code contravene articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution.(c)What remedies, if any, shall issue?

141. In light of the finding that the impugned sections are unconstitutional, it is for this court to now fashion what is referred to as appropriate reliefs.

142. In doing so, the court ought to take into account all necessary considerations including the fact that there are thousands of inmates currently detained in various prisons in Kenya at the President’s pleasure and that such a state of affairs strains the meagre resources allocated to the Kenya Prisons Service.

143. A case at hand is the 11th petitioner herein, NNN, aged 70 years. He has been in detention since October 5, 2010 when a special finding was made against him and has never undergone any medical assessment, review or treatment since then. That is a period of 12 years by now.

144. There is also the 9th petitioner herein, PKI, aged 58 years who has been held at Kamiti Maximum Prison at the President’s pleasure since taking plea on April 19, 2012 to date. He has never been tried and never has he been reviewed or received any medical assistance. That is a period of 10 years.

145. Speaking of appropriate reliefs, the Court of Appeal in Total Kenya Limited vs Kenya Revenue Authority(2013) eKLR held that even in instances where there are express provisions on specific reliefs a Court is not precluded from making any other orders under its inherent jurisdiction for ends of justice to be met to the parties. The High Court in Simeon Kioko Kitheka & 18 others v County Government of Machakos & 2 others (2018) eKLR held that article 23 of the Constitution does not expressly bar the Court from granting conservatory orders where a challenge is taken on the constitutionality of legislation.

146. In Republic ex parte Chudasama v The Chief Magistrate’s Court, Nairobi & another Nairobi HCCC No 473 of 2006, [2008] 2 EA 311, Rawal, J (as she then was) stated that:While protecting fundamental rights, the court has power to fashion new remedies as there is no limitation on what the court can do. Any limitation of its powers can only derive from the Constitution itself. Not only can the court enlarge old remedies, it can invent new ones as well if that is what it takes or is necessary in an appropriate case to secure and vindicate the rights breached. Anything less would mean that the Court itself, instead of being the protector, defender, and guarantor of the constitutional rights would be guilty of the most serious betrayal. See Gaily v Attorney-General[2001] 2 RC 671; Ramanoop v Attorney General [2004] Law Reports of Commonwealth (From High Court of Trinidad and Tobago); Wanjuguna v Republic[2004] KLR 520…The Court is always faced with variety of facts and circumstances and to place it into a straight jacket of a procedure, especially in the field of very important, sensitive and special jurisdiction touching on liberties and rights of subjects shall be a blot on independence and many facetted jurisdiction and discretionary powers of the High Court. See The Judicial Review Handbook (3rd Edn) by Michael Fordham at 361.

147. The Constitutional Court of South Africa in Fose v Minister of Safety & Security [1977] ZACC 6 emphasized the foregoing as follows: -Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights.

148. Another relevant consideration in this matter is the fact that despite the fact that the impugned sections were declared unconstitutional long ago, the CPC has not been amended so as to align the statute with the Constitution and in line with the various decisions. There is, therefore, need of taking further steps towards attaining that end.

Conclusion: 149. The foregoing discussion yields that the Petition is successful. As a result, this Court hereby makes the following findings: -(i)The detaining of persons facing criminal trials or having been tried and special findings made that they are ‘guilty but insane’ in prisons at the President’s pleasure pursuant to sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code or under any other law constitute a threat to the doctrine of separation of powers and the independence of the Judiciary.(ii)Sections 162(4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167(1)(a), (b), (2), (3) and (4) of the Criminal Procedure Code contravene articles 25(a), 27(1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution.(iii)An accused who is found to be unfit to stand trial or to continue participating in a criminal trial due to mental challenges or an accused who is tried and convicted of a criminal offence, but was found insane at the time of committing the crime is a person with disability and ought to be accorded the necessary protection and assistance required under the Constitution and the law.(iv)The persons who are detained in prison facilities in Kenya under the President’s pleasure ought to be arraigned before the courts which committed them and the courts must take charge of those persons and make appropriate orders and directions.

Disposition: 150. As I come to the end of this judgment, this court wishes to sincerely thank all the parties and counsel for their diligence in the matter.

151. The court extends special appreciation to the Africa Prisons Project for its role in the prisons in Kenya and for sponsoring the 1st to 5th petitioners herein, among many other inmates, to bring out the plight of many inmates who have been languishing in prison with no hope of being released in the near future or at all.

152. The court further appreciates the Kenya Prisons Service for according the Africa Prisons Project, among other entities, the opportunity to deal with the inmates all over Kenya.

153. In the end, and flowing from the above, this court hereby makes the following final orders: -a)A declaration hereby issues that detaining of persons with mental challenges who are facing criminal trials or who have been tried and special findings made that such persons were ‘guilty but insane’ in prisons at the President’s pleasure pursuant to sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code or under any other law constitute a threat to the doctrine of separation of powers and the independence of the Judiciary.b)A declaration hereby issues that sections 162(4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167(1)(a), (b), (2), (3) and (4) of the Criminal Procedure Code or any other law providing for the detaining of any person with mental challenges who face a criminal trial or has been tried and a special finding made that such a person was ‘guilty but insane’ at the President’s pleasure contravenes articles 25(a), 27(1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution. Such provisions are hereby declared unconstitutional, null and void.c)A declaration hereby issues that an accused who is found to be unfit to stand trial or to continue participating in a criminal trial due to mental challenges or an accused who is tried of a criminal offence, and was found to have been insane at the time of committing the crime is a person with disability and ought to be accorded the necessary protection and assistance required under the Constitution and the law.d)A declaration hereby issues that no court of law shall henceforth commit any person facing a criminal trial found to suffer from mental challenges to any prison facility in Kenya to be detained under the President’s pleasure pursuant to any law.e)A declaration hereby issues that no prison facility in Kenya shall accept and detain any person found to suffer from mental challenges under the President’s pleasure. For clarity, a prison facility shall only accept such persons with mental challenges committed to the facility under the orders of the court which orders shall not include any order to hold such persons under the President’s pleasure.f)A declaration hereby issues that any continued detention of persons with mental challenges who are facing criminal trials or who have been tried and special findings made that such persons were ‘guilty but insane’ and that they be detained at the President’g)A declaration hereby issues that the Advisory Committee on the Power of Mercy established under article 133 of the Constitutionhas no jurisdiction to deal with persons with mental challenges who are facing criminal trials or who have been tried and special findings made that they were ‘guilty but insane’ until such a time when such persons are sentenced by Courts of Law.h)An order hereby issues that any prison facility in Kenya holding any person with mental challenges facing a criminal trial or who has been tried and a special finding made that such a person was ‘guilty but insane’ and be detained at the President’s pleasure shall forthwith make arrangements and arraign such a person before the court that committed the person to the prison facility.i)Once any person with mental challenges facing a criminal trial or who has been tried and a special finding made that such a person was ‘guilty but insane’ is arraigned before court pursuant to order (h) above, the court shall make appropriate orders and directions upon taking into account the mental status of the accused and the period the accused has been detained in prison at the President’s pleasure.j)In the event the prison facility is unable to arraign such a person before court as ordered in order (h) above, the facility shall immediately so inform the court and the court shall make appropriate orders and directions as it deems fit.k)The Honourable Deputy Registrar of the Constitutional and Human Rights Division of the High Court shall, in the next 14 days, transmit copies of this judgment to the parties in this matter as well as to the Commissioner-General of the Kenya Prisons Service, the Speaker of the National Assembly, the Registrar of the High Court and the Registrar of the subordinate courts. The Speaker of the National Assembly shall take steps towards ensuring that the impugned sections of the Criminal Procedure Code, cap 75 of the Laws of Kenya are aligned with the Constitutionand in terms of this judgment.l)The Speaker of the National Assembly shall file an affidavit in this court on the status of implementation of this judgment in the next 12 months.m)The Honourable Deputy Registrar shall, at the expiry of 12 months from the delivery of this judgment, fix this matter before court for appropriate directions.n)There shall be no orders as to costs.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 1ST DAY OF FEBRUARY, 2022. A. C. MRIMAJUDGEJudgmentvirtually delivered in the presence of:Mr. Michuki, Counsel for the Petitioners.Miss Kabila, Counsel instructed by the Director of Public Prosecutions for the 2nd Respondent.Mr. Abdulkadir Osman, Counsel for the Interested Party.Elizabeth Wanjohi – Court Assistant.