[2025] KEHC 91 (KLR)

Republic v Koech (Criminal Case 11 of 2018) [2025] KEHC 91 (KLR) (14 January 2025) (Ruling)

Neutral citation: [2025] KEHC 91 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case 11 of 2018

RL Korir, J

January 14, 2025

Between

Republic

Prosecutor

and

Peter Cheruiyot Koech

Accused

Ruling

1. The Accused, Peter Cheruiyot Koech was charged with the offence of murder contrary to section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 27th June 2018 at Samituk Sub-Location, Cheboin Location within Bomet County, he murdered Robert Kipkoech Chemurwok.

2. In its judgement dated 20th June 2024, this court made a special finding as per the provisions of section 166(1) of the Criminal Procedure Code and found the Accused guilty but insane. The Court further deferred consequential orders pending the parties submissions on mitigation and sentence.

3. This court also directed the Probation Officer file a pre-sentence report and owing to the findings in the judgement ordered that the Accused undergo psychiatric evaluation and a current and comprehensive report be filed.

Psychiatric Evaluation Report 4. A report dated 9th July 2024 was filed on 10/7/2024 it stated that the Accused was examined and found to be of sound mind after treatment.

The Pre-sentence Probation Report 5. The Pre-sentence Report dated 9th July, 2024 stated that the Accused’s family was a loving one and their support system and resources were available to warrant the Accused’s positive reintegration and resettlement in the family and community.

6. The Report stated that the Accused started to exhibit unusual and strange behaviors which were thought to be psychological issues brought about by the death of his 1st born son and this might have provoked him to rise up against his father (deceased). The Accused stated that he had lost his mind and could not comprehend what he had done. He expressed remorse and asked this court for leniency.

7. The community stated that the Accused was an amiable and quiet person who related well with others while maintaining close community ties. That they did not have any administrative problem with the Accused and were receptive of his release on a non-custodial sentence.

Victim Impact Statement 8. The victim’s family stated that they did not know what got into the Accused’s mind when he killed his father. That he was a silent, polite and humble person and they did not expect him to commit such an offence. That the deceased’s first wife was bitter and aggrieved by the loss. The Report stated that the family members met and discussed the Accused’s future which included forgiveness, reconciliation, cleansing rituals and rehabilitation.

The Accused’s mitigation 9. Extensive submissions on mitigation were made on behalf of the Accused. Through written submissions dated 8th July 2024, the Accused’s counsel Ms. Chemutai submitted that once an Accused is found guilty but insane, he ought to be accorded the necessary protection and assistance under the law. That according to the bail assessment report dated 29th October 2020, the Accused’s conduct was described as “hard working but eccentric and sometimes behaved weirdly” and “good physically but described as not mentally sound”. The Accused further submitted that he was not himself at the time of the commission of the offence.

10. Counsel submitted that the Accused was a beneficiary of section 166 of the Criminal Procedure Code and should be referred to an appropriate institution. She backed her submission with several authorities including; Isaac Ndegwa Kimaru & 17 others vs The Attorney General & another (2022) eKLR, Republic vs S O M (2018) eKLR, Republic vs Onesmus Nthale Mutua (2020) eKLR, Republic vs J K N (2021) eKLR and P O O vs Republic (2024) eKLR.

11. It was her further submission that he be given a 3 year probation sentence at a suitable facility under the supervision of a Probation Officer. That he needed help and rehabilitation in a mental facility.

12. When the matter came-up for further hearing on 6th November 2011, Ms. Chemutai made oral submissions. She submitted that the Accused was remorseful and that he was a first offender. That he had learnt his lesson and promised to change his ways and become an upstanding member of the society. It was counsel’s further submission that the Accused had sought reconciliation and his family had forgiven him. That the family would begin the process of reconciliation once the Accused was released.

13. Counsel asked this court to grant the Accused a non-custodial sentence. That his family had shown commitment to assist him access treatment.

14. The Accused addressed the court in person and asked this court to forgive him. That his family had forgiven him. He further stated that he had healed and was no longer undergoing treatment. He also handed the court written submissions which reiterated his desire to rejoin his family which he stated had been visiting him in prison. He pleaded with the court to consider that he was 56 years old and had spend 2320 days in pre-trial custody and his children who were of school going age faced an unpredictable future.

The State’s submissions 15. The State submitted that the sentence as provided for in section 167 of the Criminal Procedure Code was the Accused be detained at the President’s pleasure. That however courts had found that the sentence was not in conformity with Article 50(1) of the Constitution of Kenya. They relied on Republic vs JKN (2021) eKLR where the court, faced with similar circumstances, found the Accused guilty but insane and sentenced him to serve 3 years’ probation.

16. The State submitted that in Republic vs SOM (2018) eKLR, provisions of section 166 of the Criminal Procedure Code were declared unconstitutional to the extent that they took away the judicial function to determine the nature of the sentence or consequences of the special finding.

17. It was the State’s submission that the Accused was currently of sound mind and had spent considerable time in custody. That the State agreed with the probation officer’s recommendation that the Accused was fit for a probation sentence.

Consideration by the Court 18. In meting out a sentence, this court is guided by the objectives of sentencing as set out in law and various legal texts. The Sentencing Policy Guidelines 2023 outlines the objectives of sentencing at paragraph 1. 3.1 as follows:-Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other- in so far as possible, sentences imposed should be geared towards meeting the objectives in totality.i.Retribution.ii.Deterrence.iii.Rehabilitation.iv.Restorative justice.v.Community Protection.vi.Denunciation.vii.Reconciliation.viii.Reintegration.

19. The Sentencing Policy Guidelines 2023 also outlines the principles underpinning the sentencing process at paragraph 1. 2 as follows:-i.Proportionality: The sentence meted out must be proportionate to the offending behavior meaning it must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behavior is weighted in view of the actual, foreseeable and intended impact of the offence as well as the responsibility of the offender.ii.Equality/Uniformity/Parity/Consistency/Impartiality: The same sentences should be imposed for the same offences committed by offenders in similar circumstances.iii.Accountability and Transparency: The reasoning behind the determination of sentence should be clearly set out and in accordance with the law and the sentencing principles laid out in these guidelines.iv.Inclusiveness: Both the offender and the victim should participate in and inform the sentencing process.v.Totality of the Sentence: The sentence passed for offenders convicted for multiple counts must be just and proportionate, taking into account the offending behavior as a whole.vi.Respect for Human Rights and Fundamental Freedoms: The sentences imposed must promote, and not undermine, human rights and fundamental freedoms. Whilst upholding the dignity of both the offender (and where relevant, the victim), the sentencing regime should contribute to the broader enjoyment of human rights and fundamental freedoms in Kenya. Sentencing impacts on crime control and has direct correlation to fostering an environment in which human rights and fundamental freedoms are enjoyed.vii.Enhancing Compliance with Domestic Laws and Recognised International and Regional Standards on Sentencing: Domestic law sets out the sentences that can be imposed for each offence. In addition, those international legal instruments, which have the force of law under Article 2 (6) of the Constitution of Kenya should be applied. There are also international and regional standards and principles on sentencing that, even though not binding, provide important guidance on sentencing.

20. As earlier stated, this court made a special finding of the Accused being guilty but insane as envisioned in section 166(1) of the Criminal Procedure Code. What ought to follow was set out under Section 167 of the Criminal Procedure Code which provides: -(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.(4)When a person has been ordered to be detained during the Presidents pleasure under paragraph (a) or paragraph (b) of subsection (1), the confirming or presiding judge shall forward to the Cabinet Secretary a copy of the notes of evidence taken at the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.

21. The Court of Appeal in the case of Leonard Mwangemi Munyasia vs Republic (2015) eKLR observed:-‘‘……..under the rule insanity is a defence if at the time of the commission of the act, the accused person was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. In such circumstances, the accused person will not be entitled to an acquittal but under section 167 (1) (b) of the Criminal Procedure Code he would be convicted and ordered to be detained during the president’s pleasure because insanity is an illness (mental illness) requiring treatment rather than punishment. Such people when so detained are considered patients and not prisoners.”

22. From the law and authorities stated above, it was clear that the objective of detention at the president’s pleasure in a suitable facility were measures aimed at ensuring the welfare of the person adjudged guilty but insane.

23. Courts have however begun to question the constitutionality of the role of the Executive in sentencing which was essentially a judicial function. In Republic v S O M (2017) eKLR, Majanja J. (as he then was) held:-“As I have found that the accused committed the act that led to the death of the deceased, I make a special finding under section 166(1) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) (“the CPC”) to the effect that the accused committed the act of killing but was insane at the time. I am by law required to direct that the accused be kept in custody at Kisumu Maximum Security Prison pending the President’s order in accordance with section 166(2) of the CPC which provides that: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.However, this is not the end of the matter as I have doubt as to the constitutionality of these provisions particularly in light of the recent Supreme Court decision in Francis Karioko Muruatetu and Another v Republic SCK Petition No. 15 and 16 of the 2015 (UR) where the court held that it is the judicial duty to impose a sentence that meets the facts and circumstances of the case. This suggests that a law the leaves the length of the sentence to another authority violates the fundamental rights and freedoms of the accused.”

24. While agreeing that sentencing was a judicial function to be jealously safeguarded Lesiit, J. (as she then was) in the case of Republic vs ENW (2019) eKLR, brought to the fore the important role of the Executive exercisable in the power of mercy donated to the president by the constitution. She held thus held thus:-“It is clear that passing sentence is an integral part of the judicial function. Equally important is the exercise of power of mercy, a responsibility that has been donated under the Constitution (2010) to the President acting on recommendations by the Power of Mercy Committee. This is an important role which has both constitutional and statutory underpinning. It is for that reason that I would hesitate to take the route suggested by my learned brother in the SOM case, supra where he declared that the name of the President be replaced with that of the court in section 166 of the CPC untenable.In addition, once a trial court passes sentence after conviction, it becomes functus officio, and can no longer handle the matter again. Unless of course for purposes of review where that is applicable. The case file will have come to an end and will be marked concluded. I would hesitate to keep the matter open for further periodic action after concluding it as, in my view, it would render the doctrine of functus officio nugatory.I can understand the frustrations we face as a court when you find children you detained at the President’s pleasure still incarcerated several years later, and worse still without any word from the POMAC or Ministry concerned. That is a matter that the ministry concerned needs to look into to ensure that the cases of persons sentenced under section 166 of the CPC, or those of underage children are attended to as provided under section 25(2) and (3) of the Penal Code. The delay cannot be cured by having the matter mentioned in court.In conclusion, I do find that it is expedient and judicious to give a determinant sentence in cases concluded under section 166(1) of the CPC. After so doing, the court becomes functus officio, and should let the Executive carry out its responsibility under section 166 (2) to (7) of the CPC.”

25. I have considered the emerging jurisprudence including the case law cited to me by both the Prosecution and the defence and which I have extensively set out above. They bring out three key issues as follows. Firstly, that the law under sections 166 and 167 of the Criminal Procedure Code was inadequate to the extent that it blurs the line between judicial and executive function in sentencing thereby exposing affected convicts to indeterminate and sometimes inappropriate sentences. Secondly, that there’s a school of thought and jurisprudence where judges have acknowledged gaps in the said law and called upon the Executive and Parliament to amend and update the law. Thirdly, there exists a school of thought where judges have considered and meted out sentences to meet the ends of justice in specific circumstances notwithstanding the express and mandatory provisions under section 166 (2) of the Criminal Procedure Code.

26. The unsatisfactory state of the laws was aptly captured by the court of Appeal in Wakesho vs. Republic (Criminal Appeal 8 of 2016) [2021] KECA 223 (KLR), held:-“It is clear from the few decisions of the High Court we have sampled that judicial opinion is divided on the constitutionality of some of the provisions of section 166 of the Criminal Procedure Code. As we have mentioned, beyond passing reference, counsel did not address us on this issue which certainly requires to be fully canvassed. It is a matter on which the state of the law is clearly unsatisfactory and in dire need of reform and the Attorney General should take immediate steps to initiate reform.We can only add our voice to the many on the reforms that are needed to the provisions of section 166 of the Criminal Procedure Code in two respects. First, in our view, it is a legal paradox to find a person guilty but insane, in light of the requirements of criminal responsibility and culpability, which require that for a person to be criminally liable, it must be established beyond reasonable doubt that he or she committed the offence or omitted to act voluntarily and with a blameworthy mind. A finding of not guilty for reason of insanity would be more legally sound in circumstances where an accused person is suffering from a defect of reason caused by disease of the mind at the time of commission of an offence. In addition, it is our view that the court should be granted discretion to impose appropriate measures to suit the circumstances of each case, upon a finding of not guilty for reason of insanity…….…………For purposes of the present appeal, however, we are satisfied that the learned judge ought to have made a special finding of guilty but insane. We therefore allow the appeal. We quash the conviction and set aside the sentence of death. We substitute therefor, a special finding that the appellant did the act charged but he was insane at the time he did it. We order that the appellant, who has been in custody since his arrest on May 18, 2012, shall immediately be taken to a mental hospital for medical treatment where he shall remain until such time as a psychiatrist in charge of the hospital certifies that he is no longer a danger to society or to himself.”

27. In the present case I have anxiously considered the appropriate sentence to mete. As earlier stated, this court made a special finding under section 166 (i) and what ought to follow is an order for detention in a mental institution pursuant to section 167. I have however considered the circumstances of the case and the Accused’s mitigation and it is my finding that the Accused requires medical assistance over and above punishment.

28. In this case as already stated the court received a psychiatric evaluation report dated 9/7/2024 from the Kericho Referral hospital in respect of the Accused. Dr. Nancy Wendot who examined the Accused categorically stated that he was of sound mind. This means that he was no longer a danger to himself or society. He was also no longer mentally sick to warrant incarceration in a mental institution. To that extent, this case was clearly distinguishable from the case of R.V. JKN (2020) eKLR where where Mwongo J, issued the following orders:-“a)The accused shall be placed under a mental and psychological rehabilitative programme, and whenever he suffers mental instability, he shall be facilitated to see a mental health doctor.b)The prisons service shall maintain a detailed record of the accused’s life and conduct while he is incarcerated which shall be availed to the court after his first three (3) years of incarceration, to determine whether the sentence shall be reviewed.c)The accused shall be brought to court on completion of his third year of incarceration for review of his sentence at the court’s discretion.’’This court finds that the interest of justice will be served by the following orders: -i.The accused person having been found guilty but insane, this court cannot order for his discharge immediately, but the following orders are issued: -a)The subject shall be escorted to psychiatrist who shall examine him and make comprehensive report regarding the safety of the family and community if he is released from custody.b)This matter shall be mentioned in court on May 11, 2023 and in the meantime, the subject shall be kept in a mental hospital for close observations/supervision and treatment as may be required from time to time.”

29. In the end I have come to the conclusion that the Accused merited a non -custodial sentence. I have considered that he has been in pre-trial custody for 6 ½ years and that the family was willing to support his further rehabilitation. The Probation Officer has also recommended community based rehabilitation under close supervision of the local probation officer.

30. The Accused is released from Prison custody and shall serve 3 years’ probation under close supervision of the local probation officer. He shall attend before a medical officer and professional counsellor periodically.Orders accordingly.

RULING DELIVERED, DATED AND SIGNED THIS 14TH DAY OF JANUARY, 2025. ........................R. LAGAT-KORIRJUDGERuling delivered in the presence of the Accused in person, Mr. Njeru For the state, Mr. Mugumya holding brief for Ms. Chemutai for the Accused and Siele (Court Assistant).