[2015] KEHC 1635 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

MURDER CASE NO. 13 OF 2015

ROSEMADRINE NJERI KABUTHI.....…..............PETITIONER/APPLICANT

-VERSUS-

REPUBLIC ……………..……………...……RESPONDENT/PROSECUTOR

RULING

ROSE MADRINE NJERI, the petitioner/applicant herein is a murder suspect in this case. She was presented before this Court on 22nd July, 2015 when the plea was deferred owing to the fact that mental assessment had not yet been done to confirm if she was fit to stand trial. The matter came up again on 16th September, 2015 when the prosecution requested for more time as the psychiatrist at Embu level 5 hospital was reportedly on leave. This Court gave the prosecution one more week and when the matter came up for plea on 23rd September, 2015 the petitioner/applicant then applied for deferment of plea pending her motion dated 21st September, 2015.

In the said motion, the applicant moved this Court under Section 19 of the Sixth Schedule of the Constitution, Rule 19 of the Constitution(Protection of Rights and Fundamental Freedoms) Practice Rules and Procedural Rules and Section 10 of the Judicature Act for the following orders:

That the application be certified urgent and service be dispensed with.

That pending the hearing of this application inter partes, this hon. Court be pleased to grant conservatory order restraining the Respondent either by themselves, their agents, employees from prosecuting and/or presenting the petitioner for plea taking.

That pending the hearing and determination of this petition this hon. Court be pleased to admit the applicant on bond or bail on reasonable terms and conditions.

By the time of hearing this application, prayer 1 above had been spent therefore the prayers for consideration in this ruling relate to prayers 2 & 3 of the application.

In her submissions before Court made through her learned counsel Mr. Ndegwa, the applicant alleged that her rights under Article 50 (1) were infringed by the State and that her petition was about restoring her constitutional right as per Article 10 and 27 (1) of the Constitution. She further cited the provisions of Article 50 (2) (b) and Article 50 (c) submitting that the conduct of the State by taking her for mental assessment after 66 days prejudiced her rights as an accused person. This she said compromised her possible defence in this case. In this regard, she sought this Court’s interpretation of the Constitution to determine whether by delaying in presenting her to instantaneous mental assessment, the State was exposing her to unfair trial.

On the question of bond pending formal charges, the Applicant while relying on Article 49 (h) of the Constitution, submitted that she is entitled to bail unless there are compelling reasons to deny her the same. She submitted that she has a right to a presumption of innocence under Article 50 (2) of the Constitution. In her view a pre-trial detention does constitute a punishment which is not fair to her. She further maintained that her liberty should be guaranteed owing to presumption of her innocence.

The Applicant relied on the policy guidelines on bond and bail by the hon. Chief Justice of Kenya and a high court case at Nairobi Criminal Revision No. 31 of 2014 in the case of Hassan Mahati Omar and Another Vs Republic and urged this Court to find that there were no compelling reasons demonstrated to deny her bail.

The Respondent through the Office of Director of Public Prosecutions represented by Mr. Omayo learned principal State Counsel, opposed the application relying on his own affidavit sworn on 30th September, 2015 and that of Police Constable Michael Kimaru the investigating officer sworn on the same date.

The position of the State is that the Applicant was arrested on suspicion of murder on 7th July, 2015 and within 24 hours she had been produced in Court at Wanguru Law Courts as stipulated by law. The Respondent through the said investigating officer further deposed that he requested for more time on 8th July, 2015 to have the suspect examined medically to establish if she was fit to stand trial. The State further maintained that the Applicant was brought before this Court on 22nd July, 2015 and 16th September, 2015 when more time was sought owing to the absence of Dr. Thuo of Embu level 5 hospital. Mr. Omayo deposed that when he sought for time on 16th September, 2015 and gave reasons for the extension, the Applicant’s learned counsel Mr. Ndegwa was present in court and expressed no objection to the extension of time. He deposed that the Applicant was examined on 22nd September, 2015 and found to be fit to stand trial.

The Respondent through Mr. Omayo faulted the application by the Applicant for being an afterthought stating that the delay was not unreasonable as explanation had been offered as to why the delay occurred. It was also submitted that the offence facing the Applicant is serious because a life was lost. The State denied infringing on the constitutional right of the Applicant submitting that once they produced the accused in court on 8th July, 2015 the Applicant became the subject of this court. Mr. Omayo further submitted that the Applicant could still pursue her rights and damages in a separate cause if her rights were violated.

On the issue of bond pending trial, the Respondent submitted that the Applicant may interfere with some witnesses who are her own children aged 11 years and 13 years. Mr. Omayo submitted that the witnesses were vulnerable owing to their ages and the influence the Applicant being their mother could have on them. He relied on the social inquiry report showing that the Applicant still had strong family ties and submitted that chances of influence were high.

I have considered the application, the reasons advanced and the submissions made on her behalf by her advocate. I have also considered the response made by the Respondent and the rival submissions orally advanced in this Court during the hearing of this application. In my view the main issues for determination are as follows:

Whether the delay in taking the applicant for mental assessment infringed on her rights and if yes whether the remedy is to stop her prosecution.

Whether the Applicant can be released on bond or bail at this stage.

The Applicant’s view is that there was delay in taking her for mental assessment which is a requisite for murder trials to establish if an accused is fit to stand trial. The State in a nutshell concedes that there was delay but that the same was not inordinate nor was it an infringement on the constitutional right of the Applicant.

Article 49 (1) (f) now requires that persons arrested for any offence have a right to be produced in court as soon as reasonably possible but within 24 hours after arrest unless the 24 hour period ends on a non-working day which would then require that the arrested person be produced in court the following day immediately after the non-working day. The Constitution further provides under Article 49 (1) (g) that an arrested has a right;

“…………..at the first court appearance to be charged or informed of the reason for the detention continuing……….”

The Respondent has responded to the application before Court by demonstrating that they produced the Applicant within 24 hours after her arrest. I also find that the Applicant has not complained that she was not informed of the reasons why she was arrested or reasons why she was detained in custody awaiting mental assessment. Her complain is centred on the fact that she was made to wait for 66 days to undergo mental assessment.

The explanation tendered by the State for the delay appears plausible. The State submitted that there is only one government doctor working at Embu level 5 hospital in this region who has the expertise on psychiatry and this Court takes judicial notice of that fact. The Applicant did not contest this fact and if anything when the Respondent made an application to be given more time to conduct the examination on 16th September, 2015, the Applicant’s counsel fully aware of the circumstances obtaining at the time did not oppose the application. He also did not raise any issue about infringements of any of her client’s constitutional rights. I am therefore persuaded to agree with the State that this issue being brought up now is an afterthought. Of course I agree that the Applicant could not have acquiesced to infringement of her constitutional right but in my view the Applicant is required to demonstrate clearly and specifically what that right(s) are in the first place.

It is a fact, for which I take judicial notice that Police at times face hardships in getting murder suspects examined to check whether they are fit to stand trial. The same is not unique to this region alone and has in fact been raised in other courts in Kenya. In the case of REPUBLIC -VS- SAMUEL MWAURA KARIUKI [2009] eKLR an accused person was held in custody for 59 (fifty nine) days before he was taken to court owing to failure by Police to take the suspect for medical assessment on time because the place where the accused was held did not have a medical expert to conduct the assessment. At that time the constitution demanded that an accused person charged with a capital offence was required to be presented in court within 14 days of arrest and so when the accused was presented in court 59 days after arrest, the accused raised a constitutional question as to validity of his prosecution due to infringement of his constitutional rights and this is what court held inter alia as follows:

“……..I find and hold that the State did not discharge the obligation of proving that notwithstanding the delay in taking the accused to court, the accused was nonetheless taken to court as soon as was reasonably practicable…………”

The same court went further to hold that if the delay had occasioned any damage, then the remedy did not lie on acquittal but compensation.

The Applicant in this case has not sought acquittal as a remedy for the alleged infringements of rights but I note that she has sought to block her prosecution. However, she has failed to give a clear direction on how she wants to be treated after stopping her prosecution. This Court cannot be moved to grant a relief that leads to voidness. In her application the accused has not stated that she wants a temporary stay of prosecution pending a determination of a constitutional petition, if at all. This is because she has not yet filed any constitutional petition or reference for any relief in any court. She has annexed a copy of her draft petition yet to be filed but which for me is the right way to go because compensation if proved would provide a meaningful remedy in the circumstances. But asking this Court to stop her from taking plea is not in the interest of justice. The offence facing the accused is serious and it is in the interest of the society in general to see that persons reasonably suspected to have committed serious crimes such as murder are duly prosecuted in a court of law for justice to be seen to be done otherwise stopping prosecution of suspects for reasons such as the ones advanced herein may be a recipe for chaos and our duty as courts is to ensure that the rule of law prevails.

This Court is of course alive to the need to ensure that fundamental rights of accused persons are protected by the State and its organs. The Applicant herein apart from the citing delay in her mental assessment has not really specified what rights were infringed and to what extent have the alleged infringement her rights to a fair trial. I find that the accused has cited quite a number of her constitutional rights and the current Constitution is bountiful in that respect but her claims at this stage of the proceedings cannot hold for want of specificity. The application for me in regard to prayer 2 which is to stop her from taking plea is untenable in law because even the Applicant is uncertain of her legitimate expectation if the relief to be granted. Is she asking for a permanent injunction or a temporary one to restrain the State from prosecuting her for the offence she is suspected to have committed? Or does she intend to pursue her constitutional rights in a constitutional court for remedies sought in her draft constitutional petition? So while the duty of this Court as correctly put by the Applicant’s learned counsel is to safeguard, promote and enforce all the rights as enshrined in the Constitution a wider approach to that duty is paramount.

Mr. Omayo has correctly submitted that once an arrested person is presented to court, he/she becomes the subject of the court. It is the duty of a court of law to ensure that the accused is informed of the charges facing him/her with sufficient detail to enable him/her answer or plead to the same. In this instance the Applicant was notified of the need for a medical assessment to establish if she was mentally fit to stand trial. The Applicant has further not indicated that she suffers from any mental illness or that she has had a history of mental illness that could only be established by instantaneous examination after her arrest or demonstrate the prejudice she may have suffered as a result of the delay in examining her. The record clearly shows that on the two occasions she was brought to this Court she did not raise a finger against the State in the manner in which the case was progressing. And after all as I have indicated, once the prosecution presented the accused to court she became subject to any decision made by this Court. The prosecution simply asked for more time to prepare their case and based on the reasons given, the court deemed it fit to grant extension of time. If that decision prejudiced the Applicant in any way which I doubt, based on what her reaction to the prosecution’s three applications for more time, then her remedy surely cannot lie in the motion before Court.

This Court further finds that the Applicant’s contention that the delay in medical assessment had the effect of compromising her possible defence is at best speculative. In the absence of any medical evidence it is difficult at this stage to establish that the mental state of the accused at the material time was materially different from the time the examination actually took place. This is a matter that can be taken up during trial and I do not see any prejudice to the accused.

In the case of GERARD MACHARIA GITHUKU -VS- R CRIMINAL APPEAL NO. 119/04 the Court of Appeal held as follows:

“We have come to the conclusion after careful weighing of these two considerations in the light of facts of the present case that although the delay of 3 days in bringing the appellant to court 17 days after his arrest, instead of within 14 days in accordance with Section 72 (3) of the constitution did not give rise to any substantial prejudice to the appellant and although on the evidence we are satisfied that he was guilty as charged, we nevertheless do not consider that the failure by the prosecution to abide by the requirements of section 72 (3) of the constitution should be disregarded.”

This Court therefore has to weigh delicately all matters and issues brought before it and render a decision that protects both the interests of the individual and the wider interests of the society. As held in the case of R -Vs- NAOMI WANGECHI CHEGE [2009] eKLR:

“Every individual is thus entitled to enjoy the rights and freedoms provided that he has not infringed on the rights and freedoms of any other person or persons or the public interest……………I do appreciate that an accused person is presumed innocent until and unless he is proved to be guilty.”

The court went on to find that it was desirable and in public interest to afford the prosecution a reasonable opportunity to lead evidence where it has reasonable grounds with a view to discharging the onus of proving the guilt of such accused person. In sum this Court finds that the relief sought under prayer 2 of the application is not merited. The trial of the accused person shall commence and proceed in accordance with the law.

On the 3rd prayer for bond pending trial, although the applicant has not expressly stated that the bond is sought pending trial, it is true that the Constitution now gives an accused person a right to bail pending trial under Article 49 (h) of the Constitution unless there are compelling reasons to deny him/her. The State has asserted that the reasons advanced are compelling enough to deny the accused herein bail while the Applicant does not share the same opinion. The Applicant has cited an authority in the case of Hassan Mahati Omar & Another -Vs- R (Nairobi High Court Criminal Revision No. 31 of 2014) where an interpretation of what can amount to compelling reason was given. In that case it was decided that the State in opposing the right to bail must state, describe and explain the reasons in detail and quoting from Section 60(4) of the South African Criminal Procedure Act it listed the grounds upon which an accused can be denied bail.

These are situations where an accused person if released on bond would:

Endanger the safety of the public, or any person or will commit a certain specified offence.

Attempt to evade trial.

Attempt to influence or intimidate witnesses or to conceal or destroy evidence.

Undermine or jeopardize the objectives or the proper functioning of the criminal system or

Where in exceptional circumstances there is likelihood that the release of the accused person would disturb the public order or undermine public peace or security.

The above is relevant in our situation especially given that our current Constitution borrowed heavily from the South African model, I do find that the reasons listed above are relevant factors to be considered in our courts though there are other considerations like the safety of the applicant if released on bond. This is because there are situations though not in this case where the hostility of the community or the society towards the accused could be so much that it would be in his or her interest and safety to be kept in custody pending trial. Such could be a compelling reason to deny an accused bond. In the case of R -VS- Lucy Njeri Waweru & 3 Others [2013] eKLRthe court sitting in Nairobi gave a definition of “compelling” reason from “Readers Digest Complete Word finder” as “rousing strong interest, attention, conviction or admiration” and went on to list the factors to be considered in an application for bond pending trial as:

Whether the accused person is likely to turn up for trial should they be granted bail.

Whether they are likely to interfere with witnesses.

Nature and severity of the charge.

Security of accused if released on bond.

Whether the accused have a fixed abode within the jurisdiction of court.

If sick, nature of illness.

(See also the cases of R -VS- KOKONYA MUHSIN (2013) eKLR & FELICITY SICHANGI NYONGESA –VS- R [2014] eKLR)

By applying the above principles illustrated by the authorities cited including the South African position cited by the Applicant’s counsel, this Court finds that fear expressed by the prosecution about the likelihood of the Applicant to interfere with some witnesses, particularly her young children reported to be aged 11 and 13 years old respectively, is real. This Court ordered a social inquiry to be conducted on the accused in order to establish some of the above factors and from the report dated 13th October, 2015 filed in this Court, it is quite clear that the reasons advanced by the State against the release of the accused person at this stage are indeed compelling. The children who are listed as witnesses are still very young and owing to the emotional attachment to their mother, I find that the likelihood of interference is high. Once the two witnesses have testified, the accused can apply for review of the position taken by this Court which in my view is in the interest of justice.

In view of the foregoing and for reasons aforestated, the

application dated 21st September, 2015 is declined in entirety. The accused shall proceed to take plea as provided by law to enable the case to proceed accordingly. It is so ordered.

Dated and delivered at Kerugoya this 22nd day of October, 2015.

R. K. LIMO

JUDGE

22. 10. 2015

Before Hon. Justice R. Limo J.,

Court Assistant Mbogo

Accused present

Interpretation English/Kiswahili

Magee holding brief for Ndegwa for accused present

Omayo for State present

COURT: Ruling dated, signed and delivered in the open court in the presence of accused, Magee holding brief for Ndegwa for accused and Omayo for State.

R. K. LIMO

JUDGE

22. 10. 2015