[2022] KEHC 1819 (KLR)

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS CRIMINAL APPLICATION NO. E326 OF 2021

LUCY WANGARI MUHIA.....................................................................APPLICANT

VERSUS

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

RULING

1. By a notice of motion application dated; 6th September 2021, brought under the provisions of; Order 51 Rule 1 of the Civil Procedure Rules, 2010 and section 364 of the Criminal Procedure Code, (Cap 75) Laws of Kenya (herein “the Code”) and all other enabling provisions of the law, the applicant is seeking for orders as here below reproduced: -

a) That, a declaration be issued that, the applicant has recovered mentally;

b) That, the court be pleased to set aside orders committing the applicant to serve custodial sentence at the President’s pleasure;

c) That, the court be pleased to commute the applicant’s sentence to the period already served;

d) That, the court grants any other orders it deems fit in the interest of justice.

2. The application is supported by the grounds thereto, and an affidavit of the even date, sworn by the applicant. She avers that, she was charged jointly with others vide; High Court Criminal Case No. 88 of 2010, with the offence of; murder contrary to; section 203 as read together with; section 204 of the Penal Code, (Cap 63), Laws of Kenya.

3. That, at the conclusion of the case, and by a judgment delivered on 14th March 2017, her co-accused; Peter Gathongo Kamanyara and Ruth Wambui Muhia were set free, under the provisions of; section 322 of the Code but she was found guilty but insane. Further, pursuant to the provisions of; section 166(2) of Code, she was sentenced to, be detained at the President’s pleasure.

4. She avers that, despite the fact that, the court ordered, she be detained at the President’s pleasure, the court file has never been brought to the attention of the President. However, the court further ordered that, she should be accorded regular psychiatric medical follow up. Subsequently, she has been receiving frequent counselling, specialized psychiatric medical checkups, and treatment which has resulted into her steady and full recovery from the deranged mental state she was in.

5. Similarly, she has been an active participant in several activities, having undertaken various courses and involved in Christian Women’s Groups, which have helped her in her wholesome healing and recuperation, and, activated great and positive behavioral and attitudinal metamorphosis. Thus, she prays to be given a second lease in life, having fully recovered and being of sound mind and body.

6. Further, the court should note that, during the trial, she was remanded at Langata Women Prison remand for a period of five (5) years and six (6) months, and lost “touch with reality for days”. That, she is truly remorseful and apologetic for her actions and the consequences it has brought. Therefore, she seeks to be re-united with her family.

7. As such, she prays that, the court should set aside the orders of her detention at the President’s pleasure and re-sentence her, in line with the principles and guidelines as set out in the Supreme Court of Kenya’s decision in the case of;Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLRand/or commute the sentence to the period served.

8. However, the application was opposed by the Respondent, vide grounds of opposition dated; 2nd November 2021, in which it is stated that;

a) That, the Honourable court is functus officio having already pronounced itself on the sentence issued, hence, lacks jurisdiction;

b) That, the Director of Public Prosecution should be recused from the proceedings as they already discharged their mandate of prosecution and are not holding the applicant;

c) That, the correct office to respond on the issue of remaining time to be spent should be; the Power of Mercy Advisory Committee;

d) That, no evidence has been adduced as to whether the applicant is cured from her mental illness.

9. The application was canvassed vide the filing of submissions, wherein, the applicant filed submissions dated; 9th November 2021, and argued that, the detention of a convict at the President’s pleasure, violates the convict’s rights under; article 53 (2) (f) of the Constitution of Kenya, 2010, in that, the period of sentence is indefinite. Further, it is cruel, inhuman, degrading and unconstitutional, in so far as section 166(2) of the Code, donates the power to sentence to the President.

10. The applicant relied on various the cases, where the courts have held that, section 166(1) of the Code, that directs a convict suffering from mental disability, be detained at the pleasure of the President, for an indefinite period of time, is unconstitutional, as it violates; articles 25 and 29 of the Constitution of Kenya, 2010.

11. That, it erodes human dignity, is cruel, inhuman and amounts to degrading treatment. Further, the indefinite period of sentence is harsh and excessive. The cases relied on, only include but are not limited to: -

a) Hussan Hussein Yusuf vs Republic, Meru High Court Criminal Appeal No. 59 of 2014 [2016] eKLR;

b) BKJ vs Republic, Criminal Appeal No. 16 of 2015;

c) Joseph Melikino Katuta vs Republic, Criminal Appeal No. 12 of 2016, [2016] eKLR,

d) H. M. vs Republic and Another [2017] eKLR.

12. The applicant further submits that, in re-sentencing the applicant, the court should take into account, the Judiciary Sentencing Policy Guidelines which state that: “one of the objectives of the sentence is rehabilitation of the convict”. Furthermore, article 10(3) of the International Convention on Civil and Political Rights, to which Kenya is a signatory, states that; “the penitentiary system shall comprise of prisoners, the essential aim of which shall be their reformation and social rehabilitation.”

13. That, in the in the instant case, the applicant has been in custody for over ten (10) years, and therefore, her sentence should be commuted to the period served.

14. However, the Respondent in response, filed submissions dated; 2nd November 2021, and briefly submitted that, the sentence meted out by the trial court is lawful. That, the applicant has never filed an application for review of that sentence and/or appealed against it.

15. Furthermore, pursuant to; article 133 and Power of Protection Act No. 21 of 2011, the application should have been directed to the committee on the Power of Mercy, headed by the Attorney General, who should advise how long they intend to hold the applicant. Finally, that, only a report from the Mathare Mental and Psychiatrist Hospital can help to establish if the applicant has healed or not.

16. At the conclusion of the arguments by the respective parties, I have considered the same alongside all the materials placed before the court, I find that, among the issues that have arisen for determination, are whether; -

a) The court is functus officio;

b) The court can review and/or re-sentence the applicant;

c) The prayers sought can be granted.

17. However, before I delve into the aforesaid issues, I wish to make an observation on the provisions under which the application is premised. The applicant has relied on the provisions of; Order 51 Rule 1 of the Civil Procedure Rules, 2010 and section 364 of the Code, and all other enabling provisions of the law. For ease of understanding, I shall reproduce the subject provisions.

18. The provisions of; Order 51 Rule 1 of the Civil Procedure Rules, 2010, states as follows: -

“All applications to the court shall be by motion and shall be heard in open court unless the court directs the hearing to be conducted in chambers or unless the rules expressly provide”.

I find that, these provisions are procedural and nothing much falls on it.

19. I shall now move to the provisions of; section 364 of the Criminal Procedure Code which states as follows:

“(1) In the case of a proceeding in a subordinate court, the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—

(a) in the case of a conviction, exercise any of the powers conferred on it, as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;

(b) in the case of any other order other than an order of acquittal, alter or reverse the order.

(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:

Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.

(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.

(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.

(5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed”.

20. As can be perceived from the aforesaid provisions, the provisions apply in a case where, the court calls for a record or proceeding in a ‘subordinate court” not a superior court. Indeed, the subject power of the court, to call for such a record are provided for under section; 362 of the subject Code, and which should be read together with section 364 thereof.

21. In that regard, the provisions of; 362 of the subject Code, states as follows: -

“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or orderrecorded or passed, and as to the regularity of any proceedings of any such subordinate court” (emphasis added).

22. It follows from the aforesaid provisions that, for the court to exercise its powers, under the provisions of sections 362 and 364 of the Code, the impugned “sentence or order” must not only relate to proceedings of the subordinate court but must also relate to the correctness, legality or propriety of the subject sentence or order.

23. The aforesaid provisions are derived from the supervisory jurisdiction of the High Court bestowed upon it, pursuant to the provision of; article 165 (6) and (7) of the Constitution of Kenya 2010, which state as follows: -

“(6) The High Court hassupervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”(emphasis added).

24. Therefore, pursuant tothe above provisions of; article 165 (6) and (7) of the Constitution of Kenya 2010,and sections; 362 and 364 of the Code, the High court can only, (at the risk of repeating what is already stated), exercise supervisory jurisdiction over the subordinate court’s proceedings but not its own orders and/or sentence passed by it.

25. It suffices to note that, in the instant matter, the applicant was charged vide High Court Criminal Case No. 88 of 2010, with the offence of; murder contrary to section 203 as read with section 204 of the Penal code, and tried in the High Court and not the subordinate court. I therefore find that, on that ground alone, the jurisdiction of the court has not been properly invoked. Therefore, the application and in particular, prayers (3), and (4), thereof, cannot be granted due to want of jurisdiction.

26. I shall now turn to the question as to whether, the court is functus officio. Functus officio is a latin expression that translates to; “having performed his or her office.” According to Ulpian, after a judge has delivered his judgment, he immediately ceases to be the judge:

“hoc jure utimur ut judex qui semel vel pluris vel minoris condemnavit, amplius corrigere sententiam suam non posset; semel enim male vel bene officio functus est.” (see Alexandr Koptev, “Digestae Justinian” The Latin Library at Book 42, Title 1, Note 55, online:

The gist of Ulpian’s words is: “[A] judge who has given judgment, either in a greater or a smaller amount, no longer has the capacity to correct the judgment because, for better or for worse, he will have discharged his duty once and for all.” (see Translation in Daniel Malan Pretorius, “The Origins of the Functus Officio Doctrine, with Specific Reference to Its Application in Administrative Law” (2005) 122:4 SALJ 832 at 836).

27. The law of functus officio thus dictates that, decision-makers; judges, administrative officials, or arbitrators, cannot as a general rule re-open their decisions to correct a mistake. There is no opportunity for them to; “do better next time” in the same case because there will be no next time. They must get it right the first time, for that will be their only time.

28. This is contrary to the Lyrics to the song; “Mistake” from the popular children’s cartoon Shimmer and Shine enlighten:

“When we make a big mistake.

Don’t fret, let’s celebrate

Cause we’ll get another try (Oh yeah)

We’ll do better next time”.

29. In my considered opinion, the very moment the court gave its final verdict and sentenced the applicant to be detained at the President’s pleasure, the court generally became “functus officio”.

30. In the same vein, the role of the Respondent ended at the conclusion of the matter. It is therefore, not in vain when the Respondent argues that, it has been improperly enjoined in this matter, as its constitutional mandate ended with the conviction and/or final orders made by the court in the subject matter. I concur with the Respondent and hold that, it can only come into the arena, if the applicant appeals against the final decision of the trial court.

31. Be that as it may, assuming for once that, the court has jurisdiction to entertain the application, can it grant the orders sought? In that regard, I note that, the applicant, in prayer (2), of the application, is seeking for a declaratory order, to the effect that, she has recovered mentally. To support these averments, the applicant has to provide evidence to that effect. However, there is no medical evidence availed in support of that allegation.

32. The provisions of; section 107 of the Evidence Act (Cap 80), Laws of Kenya, provides that,

“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

33. Pursuant to the afore provisions, it was incumbent upon the applicant to provide a psychiatrist report, certifying that, she is mentally stable and/or fully recovered as stated. In the absence of the same, prayer (2) of the application cannot be granted.

34. Furthermore, in prayer (3) of the application, the applicant seeks for an order that, the court do set aside the order committing her to serve “custodial sentence at the President’s pleasure”. In dealing with that prayer, I note that, the subject order was made, pursuant to the provisions of; section 166 of the Criminal Procedure Code.

35. The provisions thereof state 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 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”.

36. The question is; can the court set aside an order made under section 166(1) of the Code? Pursuant to the aforesaid provisions, I find and hold that, an order made under section 166 (1) of the Code, to the effect that, a person found guilty but insane, be detained at the President’s pleasure, is a final order of the trial. It removes the matter from the jurisdiction of the court to; the President’s power. The court is thus “functus officio”.

37. I therefore find and hold that, the court has no power to set aside the order and neither can it be set aside pursuant to; the provisions of; section 362 and 364 of the Code as the order is neither, incorrect, improper and/or illegal or irregular. As such, the prayer (3) of the application cannot be granted.

38. Furthermore, a question arises, as to whether an order made under the subject provisions of; section 166 (1) of the Code, amounts to a punishment, as stipulated under; section 24 of the Penal Code. It suffices to note that, the provisions of; section 166 (1) of the Code, refers to the order as; “a special finding” and not a punishment or a sentence.

39. The various punishments, that a court can mete out upon conviction of an accused person, are set out under; Part VI of the Penal Code, (Cap 63), Laws of Kenya, and in particular; section 24 thereof; wherein it is stipulated: -

“The following punishments may be inflicted by a court—

(a) death;

(b) imprisonment or, where the court so determines under the Community Service Orders Act, 1998, community service under a community service order;

(c) detention under the Detention Camps Act;

(d) deleted by Act No. 5 of 2003, s. 3;

(e) fine;

(f) forfeiture;

(g) payment of compensation;

(h) finding security to keep the peace and be of good behaviour;

(i) any other punishment provided by this Code or by any other Act.

40. It therefore follows that, the order made pursuant to the provisions of; section 166 (1) of the Code is not a punishment and/or a sentence as envisaged under the law. As such, prayer (4) of the application seeking that, the applicant be released on the sentence served so far, is not tenable.

41. The applicant further submitted that, the court should re-sentence her, pursuant to the decision in; Muruatetu’s case (supra). However, I find that, on 6th July 2021, the Supreme Court of Kenya, clearly clarified that, re-sentence will be entertained, only in respect to a “death” sentence, where the applicant has been convicted on a charge of murder. The applicant herein has not been sentenced to suffer death. Therefore, the issue of re-sentence pursuant to, Muruatetu’s case does not arise.

42. The question that arises is; where does the applicant recourse lie? In this regard, I note that, the provisions of section 166(1) of the Code, have been declared unconstitutional by various courts, and I fully associate myself with the said finding.

43. However, it suffices to note that, the provisions of section 166 of the Code lay an elaborate procedure of; dealing with a person detained at the President’s pleasure. In my considered opinion, what seems to be the issue is non-compliance or failure to enforce of these provisions.

44. The provisions require inter alia that; the court shall report the case for the order of the President, and in the meantime, order the accused to be kept in custody “in such place and in such manner as the court shall direct”. The President may also order the person to be detained in “a mental hospital, prison or other suitable place” of safe custody. Apparently, it does appear that, most of these persons are only committed to Prison custody.

45. The provisions further, require periodical reviews of the persons 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, to enable an informed decision be made, in respect of the condition, history and circumstances of the person so detained. Again this is rarely done. Indeed, upon review, the President can order for the discharge of such a person subject to his own and the safety of the public.

46. Be that as it were, and as the dust settles down following the various pronouncement by the courts, and/or until enforcement mechanisms are put in place, it may suffice for an order of; mandamus to compel the President to act on and/or enforce his statutory duty under the provisions of; section 166 of the Code.

47. In my considered opinion, the importance of getting proper treatment for mental health disorders cannot be overemphasized. Everyone dealing with mental illness deserves adequate care, but unfortunately, most prison inmates with serious psychiatric conditions, such as bipolar disorder, schizophrenia, and depression are not getting the treatment they need.

48. In is noteworthy that, for some, it was their disorder that landed them in a detention in the first place, as being in the wrong state of mind led them to make poor behavioral decisions.

49. I therefore, hold the view that, people with mental issues don’t belong in a correctional facility or detention in prison. They need to get treatment in a mental health hospital, so they can receive care instead of confinement.

50. In fact, sending a mentally ill person to prison accomplishes nothing. Without treatment, a person who has been incarcerated before is likely to end up back in jail again because of the same ailment. The Bureau of Justice Statistics in Canada, reported in 2006 that, almost one-fourth of inmates with mental illness had been incarcerated at least four times.

51. To revert back to the matter herein, I find, that, the orders sought cannot be granted, due to the reasons stated herein. The application is thus dismissed in its entirety.

It is so ordered.

DATED, DELIVERED AND SIGNED ON THIS 7TH DAY OF FEBRUARY, 2022

GRACE L NZIOKA

JUDGE

In the presence of;

Mr. Swaka for the Applicant

Mr. Kiragu; for the Respondent

Applicant in attendance

Edwin: court Assistant