[2022] KEHC 13770 (KLR)

SMK v Republic (Miscellaneous Criminal Application E017 of 2022) [2022] KEHC 13770 (KLR) (Crim) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13770 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E017 of 2022

JM Bwonwong'a, J

October 6, 2022

Between

SMK

Accused

and

Republic

Prosecutor

(Being an application for leave to appeal out of time from the decision of the Director of Public Prosecutions made on delivered on 29/09/2019 in the Chief Magistrate’s Court at Makadara (Nairobi) in Criminal Case No.3027 of 2018, Republic versus 1. SMK 2. Japheth Ombati Omori)

Ruling

The case for the accused/applicant 1. The applicant under certificate of urgency moved this court for the grant of leave to the applicant to file an appeal against the decision and/or direction of the Director of Public Prosecutions (DPP) made on September 29, 2021 to proceed with the hearing and determination of Criminal Case No.3027 of 2018, Republic versus 1. SMK 2. Japheth Ombati Omori, in the Chief Magistrate’s Court at Makadara.The application is supported by ten grounds that are set out on the face of the notice of motion dated 24/01/202, with the major grounds being the following.

2. The applicant was arrested and charged jointly with the co-accused with conspiracy with intent to defraud contrary to section 317 of the Penal Code (Cap 63) Laws of Kenya in the lower court. Before the start of his trial his advocate made an application for the accused to be medically examined as to his mental fitness to stand trial. As a result, a medical examination was conducted at Mathari National Teaching and Referral hospital and a report dated March 16, 2021 was prepared and filed in court on March 22, 2021. The DPP disregarded the said report and directed the criminal case against the accused to proceed to its logical conclusion.The accused intends to appeal the decision of the DPP.The accused is unfit to stand trial.Furthermore, the proceedings took too long to be typed hence the application herein.

3. Finally, the accused contends that he unlikely to have a fair trial before the learned magistrate (Hon. M.A. Opondo) in the circumstances of this case.I have declined to set out the averments of counsel’s supporting for reasons that will appear below in this ruling.

The submissions of accused/applicant 4. Messrs Kago & Co. Advocates for the accused have filed submissions in support of the application.They have cited Miriam Mwongeli & Patricia Mwaniki v Republic (2017) e-KLR, in which that court granted the applicants leave to appeal out of time.Counsel also cited Hassan Hussein Yusuf v Republic (2016) e-KLR, in which the court held that a mentally ill person is sick and his place is at the hospital and not in prison.

The submissions of the respondent. 5. Counsel for the respondent (Ms Edna Ntabo) opposed the application arguing that the accused has not demonstrated how his fair trial rights in article 50 of the 2020Constitution of Kenyaof the accused have not been violated.Additionally, counsel has also argued that the applications offends provisions of sections 347, 349 and 350 of the Criminal Procedure Code (Cap 75) Laws of Kenya in that the accused has not demonstrated that the intended appeal was made on issues of law and/or fact and that 14 days had already lapsed, which is the time allowed within which an accused may to appeal.

Issues for determination1. Whether the decision of the Director of Public Prosecutions made on delivered on September 29, 2019 is appealable.2. Whether the court may proceed with trying the accused person.

Issue 1 6. The decision of the DPP that is sought to be appealed against arose in the following context as recorded in the proceedings of September 29, 2021:“29/9/2021Before: Hon. M.A. Opondo (PM)Prosecutor CaroCourt clerk LydiaAccused Both presentState Counsel: Mention to update.I have received directions that the matter proceeds to its logical conclusions.I pray case be fixed for hearing.Hon. M. A. Opondo (PM)29/9/2021Ms. Mwangi Advocate: Am guided29/9/2021Court: Proceedings be typed to enable defence appealHearing February 2, 202229/9/2021”

7. It is clear from the foregoing that the directions of the DPP to his prosecuting counsel that the proceedings against the accused proceed to their logical conclusion were not the orders of the a court of law. It therefore follows that the present application of the accused that he be granted leave to appeal out of time against those directions is incompetent and is hereby struck out. For the orders that are appealable by an accused person are those in which the accused has been convicted and sentenced by a court of law.

Issue 2 8. Furthermore, the record of the proceedings of August 17, 2021 clearly indicate that the prosecutor (Caro) informed the court that she was not ready with the case as there was a medical report dated 16/3/2021, which indicated that the present accused was unfit to stand trial. In response to this information the court (Hon. M. A. Opondo, PM) stated that:Case is adjourned to enable the state give court an update on the mental status of the 1st accused and if case against him should be withdrawn.”

9. The medical report referred to by the prosecutor was that of a consultant psychiatrist (Dr. Ochieng, J), who was based at Mathari National Teaching & Referral Hospital, which is the top medical facility in the country. Dr. Ochieng, J in that report pronounced himself in respect of the accused as follows:He is not Fit To Pleaddue to his Intellectual Disability; and may not be able to recover to plead in court.”

10. It is important to refer to section 163 of theCriminal Procedure Code which is in respect of an accused who has been found fit to be plead in court. The provisions of the section read as follows:163 (1) If a person detained in a mental hospital or other place of custody under section 162 or section 280 is found by the medical officer in charge of the mental hospital or place to be capable of making his defence, the medical officer shall forthwith forward a certificate to that effect to the Director of Public Prosecutions.(2)The Director of Public Prosecutions shall thereupon inform the court which recorded the finding concerning that person under section 162 whether it is the intention of the Republic that proceedings against that person shall continue or otherwise.”

11. It is equally clear from the immediate foregoing provisions that the DPP is only allowed to inform the court of his intention to proceed with the prosecution of the accused when such an accuse has been certified fit to stand trial. The filing of the certificate of fitness to plead is a condition precedent to the information that the DPP will pass to the court that he intends that the prosecution of the accused is to proceed to its logical conclusion. Stated differently without such a certificate the DPP lacks authority to inform the court that the proceedings against the accused will proceed.

12. It is also important to point out that if the proceedings against the accused who was mentally ill; those proceedings will be null and void from the start and are incurable. The accused is a patient who first and foremost needs to be treated. I find as persuasive the pronouncement of the court in Hassan Hussein Yusuf v Republic (2016) e-KLR, in which the court held that a mentally ill person is sick and his place is in the hospital and not in prison.

13. In the circumstances, I find that the DPP lacked the legal authority to direct that the prosecution of the accused was to proceed to its logical conclusion. The DPP is a servant of the law and must at all times operate within the law as required by article 157 of the Constitution of Kenya. He has at all times to bear in mind that he has to defend the public interest, which interest requires mentally ill persons to treated to be treated in health facilities so that they do not endanger danger public safety.

14. It therefore follows that since the accused had not been certified fit to stand trial, the continuation of his trial is hereby prohibited with the result that this court acting on its own motion (suo motu) hereby issues an order of prohibition prohibiting the trial court from proceeding with the trial of the accused person in terms of article 23 (3) (f) of the 2010 Constitution of Kenya.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 6TH OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantMr Kago for the applicantMs Edna Ntabo for the Respondent