[2017] KEHC 2220 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL REVISION NO. 24 OF 2017

(From proceedings in Criminal Case No. 109 of 2016 of the Senior Resident Magistrate’s Court at Engineer)

MESHACK KIRIA MUNYUA…..…..….……….….……….. APPLICANT

-VERSUS-

REPUBLIC………………………….…………………… PROSECUTOR

RULING ON REVISION

1. Pursuant to directions given by this court in respect of the Applicant’s Notice of Motion filed on 17th July, 2017 in Miscellaneous Criminal Application No. 14 of 2017, the Applicant filed for revisionvide his advocate’s letter of 5th August 2017, and received at the registry on 7th August, 2017.

2. Having perused the said letter, I caused the Deputy Registrar to call for the lower court file, namely, Engineer Senior Resident Magistrate’s Court Criminal Case Number 109 of 2016for the court’s review. The record therein shows that the Applicant herein was charged with Defilement Contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. In that, on the 4th day of February 2016 in Kinangop within Nyandarua County, he intentionally caused his penis to penetrate the vagina of P.K.M. a child aged 11 years.

3. At the close of the prosecution case, the trial court found that a prima faciecase had been established. The Applicant was therefore placed on his defence. That was on 8th June, 2017. The days record of the proceedings upon the delivery of the ruling reads as follows:-

“MR NJIHIA

It is the view of the family that the Accused be subjected to a psychiatric examination since he was assaulted at the time of the arrest.

PROSECUTION

This seems to be a delay tactic by the Accused. Accused can be examined by a Psychiatric and the matter mentioned next week.

MR NJIHIA

This is not an attempt to delay the case. The Accused has a constitutional right to receive a fair hearing.

COURT

On the 27th June 2016 the defence indicated to the court that the Accused’s mental status had been ascertained and that the matter to proceed for trial since the Accused was ready to stand trial.

MR NJIHIA

If that is the case then we can proceed. I pray that the Occurrence Book of 28th January, 2016 and 4th February 2016 to be availed in court during defence hearing. The Accused will be giving a sworn statement and will be calling three witnesses one of whom is the Medical Health Officer from Engineer District Hospital.

COURT

In the interest of justice and without giving due regard to procedural technicalities, I order that the Investigating Officer avails the Occurrence Book of the stated dates in court or during the defence hearing. It is imperative that all facts are presented before court to enable the court make a fair and just decision.

MR NJIHIA

I propose the 25th July, 2017.

COURT

Defence hearing on 25th July, 2017.

G. N. OPAKASI

RESIDENT MAGISTRATE

8/6/2017”

4. So far as I can tell, the two complaints raised by the Applicant in the present revision relates to the above proceedings. It is contended, firstly, that the trial court delivered its “Ruling as though it were a judgment for the purposes of Section 215 of the Criminal Procedure Code”, while not addressing itself to answers given by prosecution witnesses under cross-examination.

5. Secondly, it appears that the Applicant is aggrieved that the order sought that he undergoes a medical examination as to mental fitness was disallowed.

6. The court has reviewed the entire record of the proceedings and noted, with regard to the Applicant’s mental condition that, the issue was raised by his counsel on 10th May 2016 during the first hearing. Evidently, the court itself did not notice anything untoward in respect of the Applicant and therefore ordered that the case be adjourned and mentioned later, to confirm the mental status of the Applicant who was ordered to subsequently present his medical records. He was out on bond having been released one week after the plea, which was on 11th February 2016.

7. On the appointed mention date (27th June 2016) counsel for the Accused addressed the court to the effect, interalia, that:

“The purpose of today’s mention was to confirm whether a medical exam had been carried on the mental status. The Accused is now ready to stand trial. We can take a hearing date. I propose the 22nd August, 2016. ”

8. No more was heard on this matter throughout the trial. However the question was raised again soon after the delivery of the ruling under Section 211 of the Criminal Procedure Code. Even then, counsel for the Applicant relented on his application for psychiatric examination upon the trial court restating the record of proceedings of 27th June, 2016 to the effect that the defence had stated that the Applicant was mentally fit. Mr. Njihia responded to the court’s comment regarding the said proceedings by stating that:

“If that is the case then we can proceed.”

He then proceeded to make an election under Section 211 of the Criminal Procedure Code and to seek certain evidential material for use by the defence, which request was granted by the court.

9. In these circumstances therefore, it is difficult to justify this court’s intervention regarding the matter of the Applicant’s mental state. At no point during the trial was the court informed that the “Applicant’s mental condition had deteriorated over time” as is now being stated in the defence revision letter. The defence on both occasions had raised the matter and subsequently proceeded to drop it. In other words the defence prevaricated on the issue. Further the court itself did not observe anything untoward during the trial as to cause it to invoke its powers under Section 162 of the Criminal Procedure Code.

10. The Section provides that:-

“(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 t(5) ………………..”(emphasis added)

he court record or a certified copy thereof to the Minister for consideration by the President.

11. Besides, the Applicant has always been out on bond, and could have been presented to a Government psychiatrist by the defence counsel or his concerned family for purposes of examination. Nothing bars such an action so long as the medical practitioner consulted is a qualified Government psychiatrist. This is true whether or not the Applicant intends to raise the defence of insanity. For the foregoing reason, it is my view that the trial court cannot be faulted for the manner in which it handled the question.

12. On the second complaint, I do agree that with the Applicant’s grouse. It is unnecessary and often undesirable for the trial court to prepare and deliver a considered or reasoned ruling where an acquittal under Section 210 of the Criminal Procedure Code is not contemplated.

13. In the case of Anthony Njue Njeru -Vs- Republic [2006] eKLR, where the trial judge had delivered a reasoned ruling to justify the finding that the Appellant had a case to answer, the Court of Appeal stated that:-

“We wish to point out here that it is undesirable to give a reasoned ruling at the close of the prosecution case, as the learned Judge did here unless the court concerned is acquitting the Accused person.”

14. That said, the ruling of the trial court largely recites the prosecution evidence. The findings of the court as contained in the last two paragraphs of the ruling are captured in tentative terms, which suggest that the trial court was alive, as earlier stated, as to what constitutes a prima facie case.

15. This is what the court stated:

“I have carefully examined the evidence of the five prosecution witnesses and the witnesses corroborate their evidence to a large extent. What PW1 testified in court turns out to be exactly what was reported to PW2 by PW1 and what was reported to PW3 by PW2. The evidence of PW4 the doctor, confirmed that indeed PW1 was defiled. On her part PW5’s evidence summarises the evidence of all the four witnesses.

From the evidence put before me it is not in doubt that indeed PW1 was defiled. Further, the evidence of PW1 largely points to the Accused as the perpetrator of the offence. I therefore find that the prosecution has put forth a prima facie case to warrant this court to put the Accused on his defence. I therefore hold that the Accused has a case to answer and he is therefore put on his defence.”(emphasis added)

16. The fact that a trial court delivers a reasoned ruling at the close of the prosecution case is not enough to vitiate the trial. The Court of Appeal in the Anthony Njue case did not seem to consider such error prejudicial to the Appellant. It is not correct therefore for the Applicant in this case to assert that by the trial court’s ruling, he was condemned unheard or that he suffered prejudice. The Applicant’s counsel did proceed to make an election under Section 211 of the Criminal Procedure Code and to seek evidentiary material, thereby signaling the Applicant’s intention to make his defence. A date was set for the same.

17. However, seven days before the hearing date set for the defence, the defence counsel rushed before this court with the first application. As a result the defence case has yet to be heard. There is no material proffered by the defence even at this stage tending to show that the Applicant is in anyway unfit to stand trial.

18. Considering all the matters raised in this review, I am not persuaded that the same has any merit. The Applicant has not suffered nor is he in danger of suffering any miscarriage of justice, as purported through his application. The application is dismissed. I direct that the lower court file be remitted back to the trial court and that the defence hearing should proceed expeditiously. For this purpose, the matter will be mentioned before the trial court on 19th October, 2017 so that appropriate hearing dates can be fixed.

Written and signed at Naivasha this6thday of October, 2017.

C. MEOLI

JUDGE