https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10388

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CRIMINAL CASE NO. E025 OF 2026** REPUBLIC..……….……………………………………...….. PROSECUTOR VERSUS EDWIN MUTHONI KAUNGA …………................................ ACCUSED **RULING** 1. **Sarah Nyokabi Mugweru** the applicant herein, on behalf of the victim, took out the motion dated 22nd June, 2026 whereof she sought for inter alia: 2. ***That this court be pleased to grant an order directing that the accused person herein be assessed further by a private psychiatrist and psychologist elected by the applicant herein.*** 3. ***That the said mental assessment be undertaken before the next mention date of 14th July, 2026 and the medical report be produced in court.*** 4. ***That cost of this application be borne by the accused person herein.*** 5. The applicant filed an affidavit she swore in support of the motion. When served with the motion, **Edwin Muthomi Kaunga,** the accused person/Respondent, filed a replying affidavit he swore to oppose the motion. The applicant filed a supplementary affidavit she swore in answer to the accused’s/Respondent’s replying affidavit. 6. In paragraphs 2, 3, 4 and 5 of the supplementary affidavit, the applicant raised preliminary points of law as follows: 7. ***That owing to the Mental assessment dated 23rd April, 2026, the Respondent herein is classified by the Mental Health Act at section 2 as a person with mental illness, therefore, he lacks legal capacity to swear the Affidavit dated 26th June, 2026.*** 8. ***The said Mental Assessment contends that the Respondent lacks capacity to stand trial and ought to receive treatment first. In the circumstances, it is legally inconceivable that he would not more than two months later be legally competent to swear an Affidavit in his defence.*** 9. ***That the effect thereof is that the replying affidavit dated 26th June, 2026 ought to be expunged from the court record and the application dated 22nd June, 2026 be allowed as prayed”.*** 10. The preliminary objection is the subject matter of this ruling. It is the submission of M/s Ochieng, learned advocate for the Applicant, that the accused person having been described to suffer from a mental disorder and or illness, he is therefore unfit to plead or stand for trial. 11. It is further the submission of the applicant’s learned advocate that the accused person cannot competently swear any affidavit hence his replying affidavit should be struck out and expunged from the court record because it is incompetent. 12. **Miss Chawiyah Jean** learned advocate who appeared alongside **M/s Ochieng** for the applicant argued that the psychiatric report in possession of the court clearly indicates that the accused is unfit to plead nor stand trial. 13. It is her further submission that the accused cannot competently swear an affidavit. She pointed out that under Section 3(I) of the Mental Health Act, such a person can only act or plead through a supporter because the accused is not in a position to understand what he swore. 14. **Mrs Gakuhi** and **Chege** who appeared for the accused opposed the preliminary objection arguing the psychiatric report filed in court merely addresses the accused’s ability to plead at the time of the report. They pointed out that the accused person had not been declared by any court to be a person of mental disorder under the Mental Health Act. 15. The learned advocate also opined that there is no law that bar such an accused person who is undergoing mental treatment from swearing affidavits like in the instant case. He further stated that the accused person swore the replying affidavit in respect of matters which are within his knowledge and there is nothing to demonstrate that he lacks the appreciation of the facts he swore. 16. It is not disputed that the accused/Respondent was subjected to mental assessment by **Dr. Wafula, a consultant psychiatrist** at the **Nakuru County Referral and Teaching Hospital.** 17. In his mental assessment report dated 23rd April, 2026 Dr. Wafula came to conclusion that **Edwin Muthomi Kaunga** had **Bipola Mood Disorder** and **Post Traumatic Disorder** with psychosis poorly treated. 18. He further concluded that he was not fit to plead and stand trial in his current state at the time. The good doctor advised that the accused be admitted in **Mathare Mental Hospital** for treatment. 19. In **Republic Vs Msuya Ngolo Lewis [2021] KEHC 272 (KLR),** the court held ***inter alia***: **“*A mental assessment report served the purpose of, inter alia determining whether, the accused was mentally fit to understand or appreciate the charges and or information and then stand trial……*** ***The justification for the requirement that the accused be fit to stand trial may be divided into four:*** 1. ***A recognition that it was fundamentally unfair to try an unfit person.*** 2. ***A recognition that it was inhuman to subject an unfit accused to trial and punishment.*** 3. ***A perception that a trial of an unfit accused was comparable to the trial of an accused person in absentia.*** 4. ***A procedure the legal system repudiated and a concern to avoid diminution of the public’s respect for dignity of the criminal justice process if unfit accused were subjected to trial and punishment”*** 5. The Supreme Court of Kenya in **Hon. Justice M. M. G Vs Tribunal Appointed to Investigate the conduct of Hon. Justice M. M. G [2023] KESC 73 (KLR)** expressed itself inter alias as follows: ***“The mental Health Act, did not define mental incapacity. It defined a person with mental illness in Section 2 as a person diagnosed by a qualified mental health practitioner to be suffering from mental illness. The Mental Health Act was however silent on the resultant effect of mental capacity of persons with mental illness.*** ***Therefore, when determining cases of mental incapacity, and being in mind that conclusions could not be transposed from one case to another, the following guidelines were established for courts to follow in matters which involve an assessment of mental incapacity:*** 1. ***Mental incapacity included but was not limited to a person’s inability to make a decision, understand information about a decision, remember information, use the information to make a decision or communicate a decision.*** 2. ***Mental incapacity could result from mental illness but it did not necessarily follow that mental illness equaled mental incapacity.*** 3. ***Mental incapacity must be diagnosed by a qualified professional.*** 4. ***A court must consider the diagnosis by a qualified professional and medical expert evidence and assess whether, on a balance of probabilities, the employee’s mental illness affected their work duties”*** 5. In the matter before this court, the question which must be answered is whether the accused/Respondent had the requisite to competence to swear the replying affidavit. I have considered the rival submissions by learned counsels appearing in this matter. As of 23rd April, 2026, the consultant psychiatrist found the accused/Respondent had **Bipolar Mood Disorder** **I** and **Post Traumatic Disorder** with psychosis poorly treated and was found to be unfit to plead and stand trial. The record shows that on 26/6/2026 the accused/Respondent filed the replying affidavit he swore to oppose the applicant’s motion dated 22nd June, 2026. The accused/ Respondent expressly deponed in paragraph 19th of the replying affidavit that **“what is deponed to hereabove is true to best of my knowledge, information and belief save wherein otherwise stated”** 6. At the date of swearing the replying affidavit, the accused/Respondent’s mental capacity was unknown. It is possible he was mentally sound. There was therefore need to have another mental assessment report by a professional to establish the accused/ Respondent mental capacity at the time of swearing the replying affidavit. I am of the view that the test as to whether the accused/Respondent could competently swear an affidavit is **not the diagnosis itself but is whether the person understands what an affidavit is and what he was swearing to**. 7. Under the **Oaths and Statutory Declarations Act Cap 15 Laws of Kenya** and the **Civil Procedure Rules**, a person can swear an affidavit if he understands the nature of an oath and should demonstrate that he has the capacity to understand the facts he is deposing. 8. It is therefore possible for a person suffering from a mental illness to swear an affidavit if he can demonstrate the above qualities. 9. It is also possible that a party with intermittent disorder like **Bipolar,** **Schizophrenia** with lucid intervals, to swear affidavit during lucid interval. 10. This court has been urged to strike out and expunge from the court record the replying affidavit sworn by the accused/ Respondent based on the diagnosis of 23rd April, 2026. 11. I think the correct approach in dealing with the issue is that the mental capacity should be assessed at the time of swearing the affidavit and should not be based on past diagnosis. 12. There are various safeguards which the court may use in addressing situations like the one obtaining in this case, **First**, that the commissioner for oaths must be satisfied that the deponent understands the contents before administering the oath. **Secondly,** if the opposite party questions the deponent’s affidavit like in the instant case, then can seek for a further doctor’s report. **Thirdly,** if the person is of unsound mind order 32 rule 1 of the Civil Procedure Rules allows a guardian ad litem or next friend to sue, defend and swear affidavits for them. **Finally,** the court will strike out an affidavit sworn by an incompetent person. 13. In the end this court finds the preliminary objection to be without merit. The same is dismissed. **Dated, signed and delivered this 13th day of July, 2026 at Nakuru.** **J. K. SERGON** **JUDGE** **In presence of:** Jamleck C/A Ms Anyumba for State Chawiyah & Ochieng watching brief for victim & applicant