[2015] KEHC 2845 (KLR)
The court held that, although the accused's mental fitness was questioned after conviction but before sentencing, the proper course was not to declare a mistrial. Instead, the court should invoke its discretion under section 329 of the Criminal Procedure Code to obtain a current psychiatric assessment to guide...
Source-derived case information.
- Citation
- [2015] KEHC 2845 (KLR)
- Parties
- Applicant: Republic; Defendant: Miriam Waceke Maina; Defendant: Esther Watetu Maina
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 34 of 2007
- Procedural Posture
- Criminal Case / Post Conviction, Pre Sentencing
- Outcome
- Order for psychiatric assessment before sentencing; sentencing deferred.
- Legal Topics
- Murder Trial, Mental Fitness to Stand Trial, Sentencing Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Miriam Waceke Maina
Defendant
Esther Watetu Maina
Defendant
Procedural Posture
Criminal Case / Post Conviction, Pre Sentencing
Legal Issues
- 1 Whether the accused person, having been found unfit to stand trial by a psychiatrist report, can be sentenced after conviction for murder.
- 2 Whether the court should declare a mistrial due to the accused's mental status at the time of trial.
- 3 What procedure should be followed in sentencing where the accused's mental fitness is in question.
Ratio Decidendi
The court held that, although the accused's mental fitness was questioned after conviction but before sentencing, the proper course was not to declare a mistrial. Instead, the court should invoke its discretion under section 329 of the Criminal Procedure Code to obtain a current psychiatric assessment to guide sentencing. The court found that any alleged error regarding the accused's fitness at trial was a matter for the appellate court, not for the trial court to revisit after judgment. The court thus ordered a fresh psychiatric evaluation to determine the appropriate sentence, emphasizing that the validity of the proceedings was not affected by the accused's inability to mitigate at...
Court Disposition
Order for psychiatric assessment before sentencing; sentencing deferred.
Orders
- The accused person to be escorted to the consultant psychiatrist at Mathari Mental Hospital in Nairobi for mental assessment.
- The psychiatrist’s report on the accused person’s mental status to be filed in court within fourteen days.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL CASE NO. 34 OF 2007
REPUBLIC ……………………….…………………...PROSECUTOR
VERSUS
MIRIAM WACEKE MAINA…………………………….1ST ACCUSED
ESTHER WATETU MAINA………….…………………2ND ACCUSED
RULING
The accused persons were jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The record shows that the trial was conducted before three different judges the last of whom was my predecessor at the station, Hon. Mr Justice Wakiaga.
On 19th March, 2015, I delivered the judgment in the case on behalf of Justice Wakiaga. In his judgment, my learned brother found that the prosecution had proved its case against the 1st accused beyond reasonable doubt and convicted her accordingly. The 2nd accused was acquitted of the murder charge.
Soon after I read the judgment and before mitigation, counsel for the accused persons Mr. Njuguna Kimani informed the court that according to the psychiatrist report of 10th August, 2007 the person convicted was unfit to stand trial. Based on this report, it was the counsel’s view that accused person’s trial was a mistrial and should be declared so.
When Ms, Maundu, counsel for the state responded, she urged that this is a question which could only be taken on appeal and that having delivered its judgment, this court was now functus officio.
Counsel for the accused could not agree because in his view the accused person had not been sentenced. Relying on the High Court decision in Criminal Case No. 116 of 2007 Republic versus John Kimita Mwanikiwhere it was noted that the Court of Appeal had previously held that even in offences where punishment is prescribed the court should always inquire whether there exists special circumstances that would mitigate the imposition of the prescribed punishment, counsel urged that the accused person could not be sentenced when her mental status had been certified to be unstable and thus not fit to mitigate. I went through the High Court but I could not find the citation of the said Court of Appeal decision.
A perusal of the Criminal Procedure Code, however, reveals at least two provisions which would be applicable in the circumstances of this case and in particular on the question of passing of sentence. The first of these provisions is section 323 of the Code whichstates:
323. Calling upon the accused
If the judge convicts the accused person, or if the accused person pleads guilty, the Registrar or other officer of the court shall ask him whether he has anything to say why sentence should not be passed upon him according to law, but the omission so to ask him shall have no effect on the validity of the proceedings.
Related to the foregoing provision is section 329 of the Code which states:-
329. Evidence for arriving at a proper sentence
The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.
These two provisions of the law suggest, first, that upon conviction, the accused person may mitigate on the sentence but that failure to accord him this opportunity does not affect the validity of the proceedings. Secondly, in considering the sentence against the accused person, the court has the discretion to take further evidence so as to inform itself of the proper sentence to be meted out.
These provisions provide what I suppose is a safer option out of this situation than declare the proceedings a mistrial as suggested by counsel for the accused; I would agree with counsel for the state that the best placed court to do that, if that court finds any merit in doing so, is the Court of Appeal. This court is ill-equipped to fault its own proceedings particularly where that fault is founded on what is alleged to be an error on a point of law.
For purposes of sentencing and concluding this matter, I would therefore invoke section 329of the Code and direct that the accused person be escorted to the consultant psychiatrist at Mathari Mental Hospital in Nairobi for mental assessment; the psychiatrist’s report on the accused person’s mental status should guide this court on the proper sentence to be meted out against.
I direct that the psychiatrist’s report to be filed in this court within fourteen days of the date hereof. Orders accordingly.
Dated, signed and delivered in open court this 25th June, 2015
Ngaah Jairus
JUDGE