[2023] KEHC 24858 (KLR)

Machuki v Republic (Constitutional Petition 03 (E008) of 2022) [2023] KEHC 24858 (KLR) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24858 (KLR)

Republic of Kenya

In the High Court at Kisii

Constitutional Petition 03 (E008) of 2022

PN Gichohi, J

November 2, 2023

FROM THE KISUMU COA CR. APPL. NO. 877 OF 2015 ORIGINATED FROM THE HCCR. CASE NO. 36 OF 2005 AT KISII

Between

Justus Oyaro Machuki

Petitioner

and

Republic

Respondent

Ruling

1. The background of this Petition is that the Petitioner Justus Oyaro Machuki, was charged with three counts of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He pleaded not guilty and the matter went for full hearing. On 4th November 2011, the High Court found him guilty and convicted him of the three counts.

2. Aggrieved, he filed an appeal before the Court of Appeal being Criminal Appeal No. 10 of 2013 but he was not successful.

3. The Petitioner has now moved this Court vide an undated Petition filed 14th February, 2022 simultaneously with a Notice of Motion seeking a re-hearing of the sentence imposed. In the Petition, he stated that the mandatory sentence as imposed was excessive, arbitrary, degrading and deprived him of his right to a fair trial under Article 50 (2) (q) of the Constitution. He further sought refuge under Article 165(3), 159(2) and 22(4) of the Constitution. He stated that his “mitigation during hearing was not given due consideration as the same had no legal framework and hence the superior court judge claimed that his hands were tied by the provisions for mandatory sentence for the conviction arrived at.”

4. He also swore an Affidavit filed on the same date sworn in support of the Application and the Petition. He deponed that the Petition was filed subject to remission rules and in conformity with the decision of the Supreme Court of Kenya in Petition No. 15 of 2015; Francis Karioko Muruatetu and another, in its judgment which was delivered on 14th December, 2017.

5. Upon being served, the Respondent through Mr. Ochengo opposed the Petition on the ground that this Court lacks jurisdiction to resentence the accused who was convicted and sentenced by this Court differently constituted.

6. He urged the Court to dismiss the Application as it lacked jurisdiction to revise the conviction and sentence of the Court of Appeal at Kisumu in Criminal Appeal No. 10 of 2013 delivered on 15th December 2023. Further, he stated that this Court is functus officio for reasons that separately constituted, the Court handled this matter in HCCR Case No. 36 of 2005. Lastly, he termed the sentence herein valid and legal. He urged the Court to dismiss the Application herein for lack of merit.

Determination 1. This Court has considered the arguments by both parties in this Petition. The issue that arises for determination is whether this Court has jurisdiction to entertain this Petition and grant the orders being re-hearing and sentencing the Petitioner in the circumstances. In doing so, this Court has looked at both the High Court record and the finding by the Court of Appeal.

2. In her judgment dated 4th November 2011, Ruth Sitati J held: -“…I am satisfied that the accused was likely to have been legally insane at the time he killed the deceased persons. It seems to me that psychosis is a decease that needs treatment as was the case here. I am therefore persuaded that from the nature of the crime and the accused’s proved conduct both before and at the time of the commission of the crime and the accused’s proved conduct both before and at the time of the commission of the crime and all surrounding circumstances, including the fact that even during the hearing of this case , the accused had to undergo psychiatric treatment and the fact that he was found to be a changaa addict, that it has been proved on a balance of probabilities that the accused was legally insane when he committed the murderous acts against the his own family members : wife, a mother and a brother. He is therefore found guilty on each of the three counts of murder.In the circumstances, and pursuant to Section 167 (1) (b) of the Criminal Procedure Code, I order that this case be reported for the of His Excellency the, the President and that meanwhile the accused shall be kept in appropriate custody.”

9. After hearing the parties in Kisumu Criminal Appeal No. 10 of 2013, P. Kihara Kariuki (PCA), Gatembu and Murgor, JJA delivered the judgment on 17th Day of December 2017 where the Court of Appeal held: -“From the submissions before us, it is evident that the appellant’s complaint is that, since the trial court sentenced him under section 167 of the Criminal Procedure Code, it ought to have an order of acquittal of the appellant or made an order that he be detained in a mental institution which would be deemed to be lawful custody.The trial court having found the appellant insane, specified that section 167 (1) (b) would apply, but instead applied the requirements of section 166 of the Act. In view of the circumstances, of the case, we are satisfied that the learned judge correctly applied the requirements of section 166 of the Act, but it is apparent that, section 167 (1) (b) was pronounced in error.In the circumstances, we see no reason to interfere with the conviction and sentence of the trial court, save that the applicable provision was section 166(1) and (2) of the Criminal Procedure Code, and not section 167 (1) (b) of the Criminal Procedure Code. Accordingly, the appeal is hereby dismissed.” [Emphasis added]

10. The High Court differently constituted was the trial Court exercising its original jurisdiction in the criminal case before it. The High Court did not sentence the Petitioner to death and did not indicate that its hand was tied. The conviction was for the offence of murder and the sentence was reasoned. It was not one of death sentence. It was pursuant to the provisions of the Criminal Procedure Code in regard to an accused found guilty of murder but insane.

11. The Court of Appeal upheld both the conviction and sentence, save that it found that the pronouncement on sentence ought to have invoked the provisions of section 166(1) and (2) of the Criminal Procedure Code and not section 167 (1) (b) of the Criminal Procedure Code.

12. For emphasis, and in regard to the defence of lunacy adduced at trial, section 166 of the Criminal Procedure Code provides:(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.”

13. This Court is alive to the decision in Republic v SOM [2018] eKLR, where D.S. Majanja, J declared the provisions of section 166 of the Criminal Procedure Code 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. Despite that declaration, the circumstances of the case therein were different.

14. Considering the circumstances herein and even though guided by the Muruatetu case, this Court lacks jurisdiction to entertain this Petition as to do so is tantamount to interfering with the findings of both Courts leading to this Petion.

15. In the upshot, this Petition is therefore dismissed for want of jurisdiction.

DATED, DELIVERED AND SIGNED AT KISII (VIRTUALLY) THIS 2ND DAY OF NOVEMBER, 2023. PATRICIA GICHOCHIJUDGEIn the presence of:The Applicant in PersonMr. Justus Ochengo for the Respondent.Court Assistant