[2023] KEHC 23803 (KLR)

Republic v Kiriamunyi (Criminal Case 52 of 2009) [2023] KEHC 23803 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23803 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 52 of 2009

HM Nyaga, J

October 19, 2023

Between

Republic

Prosecutor

and

Sironga Kiriamunyi

Accused

Ruling

1. The Accused Sironga Kiriamunyi was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that on 2nd June,2009 at Ongata Nandu Sub-Location in Narok North District within Rift Valley Province he murdered Naesimuyi Koonyo.

2. The accused was expected to take plea on 26th June,2009, but that did not happen as the Accused appeared mentally sick, necessitating the court to order that he be escorted to the Provincial General Hospital for examination by a psychiatrist. Dr. Njau J.W a Consultant Psychiatrist at the said hospital conducted mental assessment on the accused on 3rd January,2010 and found he was not fit to stand trial. The court ordered that the accused be accorded appropriate treatment and his condition be reviewed.

3. Subsequently, several reports dated 9. 12. 2015,15. 02. 2018, & 21. 6.2023 have been presented before this court. All these reports share the opinion that the accused person is not fit to stand trial.

4. In view of the above reports, it is unlikely that the accused person would ever be fit to stand trial.

5. The issue to be determined therefore is what is the most appropriate action to take in this case?

6. On 20th January,2023, when the matter came up for directions, the prosecutor prayed that the accused be committed to a mental institution.

7. In determining the above issue, I am guided by Article 50 of the Constitution 2010 which provides for the rights to fair trial of an accused person. For these rights to be realized the accused must understand the trial process and that can only be possible if the accused person is of sound mind.

8. Section 162 of the Criminal Procedure Code provides for the process that courts should follow in cases where the accused persons are lunatics or are faced with other incapacities that render them incapable of understanding the trial process. It stipulates as follows:“162 (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 the court record or a certified copy thereof to the Minister for consideration by the President.(5). Upon consideration of the record the President may by order under his hand addressed to the court direct that the accused be detained in a mental hospital or other suitable place of custody, and the court shall issue a warrant in accordance with that order; and the warrant shall be sufficient authority for the detention of the accused until the President makes a further order in the matter or until the court which found him incapable of making his defence orders him to be brought before it again in the manner provided by sections 163 and 164. ”

9. Section 164 of the Criminal Procedure Code, states as follows: -“164. Whenever a trial is postponed under Section 162 or Section 280, the court may at any time subject to the provisions of section 163, resume trial and require the accused to appear or be brought before the court, whereupon, if the court considers the accused to be still incapable of making his defence, it shall act as if the accused were brought before it for the first time.”

10. Section 167 then provides for situations where the accused cannot understand the proceedings. It provides as follows;“167. Procedure when accused does not understand proceedings(1)If the accused, though not insane, cannot be made to understand the proceedings—(a)in cases tried by a subordinate court, the court shall proceed to hear the evidence, and, if at the close of the evidence for the prosecution, and, if the defence has been called upon, of any evidence for the defence, the court is of the opinion that the evidence which it has heard would not justify a conviction, it shall acquit and discharge the accused, but if the court is of the opinion that the evidence which it has heard would justify a conviction it shall order the accused to be detained during the President’s pleasure; but every such order shall be subject to confirmation by the High Court;(b)in cases tried by the High Court, the Court shall try the case and at the close thereof shall either acquit the accused person or, if satisfied that the evidence would justify a conviction, shall order that the accused person be detained during the President’s pleasure.(2)A person ordered to be detained during the President’s pleasure shall be liable to be detained in such place and under such conditions as the President may from time to time by order direct, and whilst so detained shall be deemed to be in lawful custody.(3)The President may at any time of his own motion, or after receiving a report from any person or persons thereunto empowered by him, order that a person detained as provided in subsection (2) be discharged or otherwise dealt with, subject to such conditions as to the person remaining under supervision in any place or by any person, and such other conditions for ensuring the welfare of the detained person and the public, as the President thinks fit.”

11. It is thus clear that the application of section 167 CPC must be after the court has acted under sections 162 and 164 of the CPC.

12. There has been litigation over this issue. I will refer to a few cases.

13. In Wambua Musili vs Republic [2020] eKLR the Court of Appeal reiterated the importance of complying with section 162 of the CPC. The court stated as follows;“The proper approach the two courts below ought to have taken in resolving the appellant’s plea of mental instability to plead to the charge at the trial and to prosecute his appeal before the High Court is as set out in section 162(1) &(2) of the CPC which provides as follows:162 (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.…………………”It is only upon complying with the above procedure namely, holding of inquiry that the trial court would have made an informed decision in terms of section 167 of the CPC as to whether to proceed and complete the plea taking process or take any other action as deemed fit within the meaning of section 167 of the CPC.”

14. In J. M vs Republic [2016] eKLR the court considered the import of section 167 CPC. It stated as follows;“It is important for anybody who desires to proceed under Section 167 of the CPC to remember that the said provision chips at the cornerstones of the right to a fair hearing. Among other things, a fair trial as envisaged by Article 50 of the Constitution requires that an accused person be informed of the charge; understands that charge; be represented by an advocate of his choice; and adduces and challenges evidence. A person who cannot follow proceedings is incapable of personally exercising those rights and great care must be taken and good reasons given before such a section can be invoked.”

15. It is thus clear that an enquiry as to the accused person’s capacity to follow the proceedings has to be undertaken. Once that process is done, then the court is to make further directions.

16. In this respect, I have looked at all the medical reports in respect to the accused. The condition the accused suffers from renders him incapable of understanding the trial process and therefore the trial may never continue. I say so because for 14 years now the accused has been on treatment and his condition has never improved.

17. The question that arises is, what is the next step to be taken by the court?

18. The State urges me to return the accused to hospital, but that has been done for the last 14 years. I do not think that this avenue will be helpful.

19. In light of the aforesaid, I find that the court is then to proceed as provided under section 167 CPC. The case shall proceed as provided therein.

20. Accordingly, I order as follows:1. The case against the accused to proceed under the provisions of section 167 CPC.2. Subsequent orders shall be made depending on the evidence adduced by the State against the accused.3. The Deputy Registrar to inform the advocate on record of these directions and if he has none, to assign the accused one forthwith.

DATED, SIGNED AND DELIVERED NAKURU THIS 19TH DAY OF OCTOBER, 2023. H. M. NYAGAJUDGE