https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/100

Republic v RK (Criminal Case E2177 of 2025) [2026] KEMC 100 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEMC 100 (KLR) Republic of Kenya In the Nakuru Law Courts Criminal Case E2177 of 2025 PA Ndege, SPM May 26, 2026 Between Republic Prosecution and RK Accused Ruling 1.The accused person herein, RK, was on 15/10/2025 charged with the offence of Offensive conduct contrary to section 94 (1) of the Penal Code. The particulars are that on 8/10/2025 at around 11:30 am at Kimathi Estate area in Nakuru East Sub-County within Nakuru County, he unlawfully used abusive language that led to breach of peace. 2.The accused appeared in court several times after taking plea but on 12/03/2026 the accused displayed habits that caused the court to seek that he undergoes a mental examination in accordance to Section 162 (1) of the Criminal Procedure Code at Nakuru County Referral and Teaching Hospital. The examination was conducted on 19/03/2026 and the report submitted before court on 30/03/2026. 3.The medical examination report as returned on the 30/03/26 states that the accused was found to be a restless, fairly kempt elderly man. That he was talking insensibly and even incomprehensibly at times. That it was difficult to establish rapport and he avoided eye contact. That he was unable to answer questions appropriately. His speech was loud and he got irritable very quickly. His insight was partial as he was able to say that he has a mental condition and he usually takes medication that he randomly mentioned but couldn’t tell that he was currently unwell. The report concluded that the accused is not fit to plead and that he was displaying overt psychiatric symptoms and that he is a psychiatric patient most likely with a psychotic illness-Schizoaffective or schizophrenia. 4.In the instance of insanity the court is bound by section 162 of the criminal procedure code that states: 162.Inquiry by court as to soundness of mind of accused(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. 5.The applicability of this section is reiterated in the case of Republic v J W K (2013] eKLR where the learned Judge Gikonyo J stated:I think, the phrase ‘incapable of making his defence’ refers to the entire course of the proceeding; from the inception of the charges and throughout the trial to the time when sentence is passed, for, the defence of the Accused person begins, at least, immediately the charges are instituted in court, if not earlier. Section 162 of the CPC would therefore applies at the time of taking plea and at any other time during the trial. That is why under article 50 of the Constitution, the Accused person should be fit to plead, be informed of the charge with sufficient details, be informed in advance of the evidence the Prosecution intends to rely upon, be given sufficient time and facilities to prepare a defence and so on. Therefore, where unsoundness of the accused is in issue, the law applicable will be section 162 of, and section 167 of the CPC will not apply. 6.The court having established that the accused is mentally unwell it now considers whether the offence in question is bailable or not. The court is aligned with the principles established under section 162 (3) of the Criminal Procedure code that requires sufficient security that the accused will be well taken care of and will be prevented from harming himself and others. Article 49(1) (h) of the Constitution of Kenya establishes the right to bail unless there are compelling reasons. 7.As far as Section 162(3) of the Criminal Procedure Code is concerned, I do call for a pre-bail report to guide the court on whether there is sufficient security that the accused, if released on bond, shall be well taken care of and will be prevented from harming himself and others, and attend court whenever required. DATED, SIGNED AND DELIVERED THIS … 26TH …… DAY OF …… MAY ……, 2026HON ALOYCE PETER NDEGESENIOR PRINCIPLE MAGISTRATEIn the presence of;Prosecution counsel: MachariaAccused: PresentVictim: N/ACT: Mn on 03/06/26