[2018] KEHC 238 (KLR)
The trial court failed to comply with the mandatory provisions of Section 162 of the Criminal Procedure Code by not conducting an inquiry into the accused's mental state after forming the opinion that he was of unsound mind. Instead, the court ordered the accused's detention and forwarding of proceedings to the...
Source-derived case information.
- Citation
- [2018] KEHC 238 (KLR)
- Parties
- Applicant: Republic; Respondent: Justus Kituu Mulungye
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 48 of 2018
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- orders of the trial court reversed; matter remitted for proper procedure
- Judges
- CM Kariuki
- Legal Topics
- Unsound Mind in Criminal Trial, Procedure for Inquiry, Powers of Revision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Justus Kituu Mulungye
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the trial court complied with the mandatory procedure under Section 162 of the Criminal Procedure Code when the accused was suspected to be of unsound mind.
- 2 Whether the orders made by the trial court on 06/03/2017 were lawful in light of the accused's mental status.
Ratio Decidendi
The trial court failed to comply with the mandatory provisions of Section 162 of the Criminal Procedure Code by not conducting an inquiry into the accused's mental state after forming the opinion that he was of unsound mind. Instead, the court ordered the accused's detention and forwarding of proceedings to the president, which was not the procedure required by law. This procedural irregularity necessitated the intervention of the High Court, which exercised its revisionary jurisdiction under Section 364(1)(b) of the Criminal Procedure Code to reverse the trial court's orders and remit the matter for proper handling in accordance with the law.
Court Disposition
orders of the trial court reversed; matter remitted for proper procedure
Orders
- The orders of 06/03/2017 by the trial court are reversed.
- The matter is remitted back to Senior Resident Magistrates Court Kilungu for the court to process the case as required by law.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HC CR. REV NO. 2 OF 2018
IN THE MATTER OF KILUNGU MAGISTRATE’S COURT
CRIMINAL CASE NO. 48 OF 2017
REPUBLIC................................ PROSECUTION
VERSUS
JUSTUS KITUU MULUNGYE......... ACCUSED
RULING
1. The court has perused the proceedings of Kilungu SRM CR NO. 48/017 in which the accused was charged with the offence of threatening to kill contrary to section 223(1) of the Penal Code.
2. Particulars being that on 23/01/2017 at Kyanga village, Kyanga Sub-location, Kilungu Sub-county, he threatened to kill by uttering directly to Mulungye Mutio that he would cut him and his mother into pieces until they die.
3. The court finds that the matter came for plea on 25/01/2017 and after taking plea, the court fixed a hearing date on 06/03/2017.
4. On 06/03/2017 before the hearing commenced, the accused stated that he is psychotic and stated that he had statements.
5. On that note, the court ordered under Section 162 CPC Cap 75 Laws of Kenya ordered an inquiry as to the unsoundness of mind of the accused.
6. The prosecution stated that he was of the opinion that the accused was of unsound mind and urged court to treat accused as a person of unsound mind.
7. The court without reversing the enquiry order, earlier made ordered the accused to be detained and certified copy of the proceedings to be forwarded to the president via internal security minister.
8. Section 162 CPC, Cap 75 L.O.K., makes it mandatory for inquiry to be conducted once the court forms an opinion that the accused is of unsound mind.
9. Thus the trial court breached the provisions of S. 162 CPC thus the court invokes the powers under S. 364 1(b) CPC Cap 75 L.O.K. and reverses the orders of 06/03/2017 and makes the following Orders/Directions:-
1. The matter is remitted back to Senior Resident Magistrates Court Kilungu for the court to process the case as required by the Law.
SIGNED, DATED AND DELIVERED THIS 19TH DAY OF FEBRUARY, 2018.
C. KARIUKI
JUDGE
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