[2022] KEHC 17017 (KLR)

Wangui v Republic (Criminal Appeal 26 of 2019) [2022] KEHC 17017 (KLR) (10 February 2022) (Judgment)

Neutral citation: [2022] KEHC 17017 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Appeal 26 of 2019

GWN Macharia, J

February 10, 2022

Between

John Kariuki Wangui

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in the Senior Principal Magistrate’s Court at Engineer Sexual Offence Case No.12 of 2018 delivered by Hon. D.N. Sure (SRM) on 30th July 2019)

Judgment

Background 1. John Kariuki Wangui, the Appellant herein was charged in count 1 with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act No 3 of 2006. The particulars were that on the February 9, 2017 at [Particulars Withheld] village in Kinangop within Nyandarua County, intentionally and unlawfully caused his penis to penetrate the vagina of JWK. JWH, a child aged 8 years’ old. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.

2. The Appellant pleaded not guilty to all counts. Upon trial, he was convicted of defilement. He was sentenced to life imprisonment under Section 8(2) of the Sexual Offences Act. Aggrieved by both his conviction and sentence, he preferred the instant appeal.

3. He filed a Petition of Appeal on August 9, 2019 and Amended Grounds of Appeal received into court on August 2, 2021 raising three (3) grounds of appeal:a.That the trial magistrate erred in law and facts by failing to appreciate that the Appellant was not fit to stand trial due to his mental status.b.That the learned trial magistrate erred in law and fact by failing to appreciate that the provisions of Article 50(2)(h) were not adhered to.c.That the sentence meted upon the appellant was not only harsh but excessive in light of the facts and circumstances of the case.

Summary of Evidence 4. The prosecution’s case shall be summarized as follows: when the facts were read to the Appellant, he pleaded guilty but was said that he was of unsound mind. He was referred for treatment When PW1 took the stand, she informed the court that she could not recall the date of the alleged offence, but remembered the Appellant who asked her to play with him and told her for the play to take place, he would pick strawberries for her. She informed the court that she was in the company of her brother who was then sent away by the Appellant to go check on the cows. She narrated how he removed her inner wear and proceeded to remove his clothes and innerwear. He then carried her to lay on top of him and put his penis into her vagina. She elaborated that he did not stay a long while. He then told her to dress up and she did so. Her brother had by then come back and she headed home.

5. On arrival, she informed her mother who took her to hospital. She narrated that at the hospital she was examined in her vagina and was given medicine. She then elaborated that they then went to the police station where she was asked questions. She identified the Appellant by walking to where he was and touching him.

6. On March 28, 2018 the court observed that the Appellant could be having a mental disorder and referred him to Gilgil Provincial General Hospital on May 5, 2017 which found him fit to stand trial. However, the psychiatrist confirmed that he was suffering from a psychotic disorder and referred him to Mathare Hospital. On June 12, 2018 the court was informed that the Appellant did not receive medical treatment from Mathare Hospital and asked for more time to get a full report on him. On October 8, 2018, October 22, 2018, November 5, 2018, November 22, 2018, December 3, 2018, December 10, 2018 and December 20, 2018 no report had been received. It emerged on March 26, 2019 that the Appellant was committed at Mathare hospital and was undergoing treatment. On July 2, 2019 the trial continued the Appellant stated he was ready to proceed.

7. PW2, a Dr Ntwiga produced a P3 form and PRC form (P Exhibit1 and 2 respectively) for JWK where the report showed there was an 18-hour old injury to her vagina. He administered antibiotics and Post Exposure Prophylaxis. He stated that the vagina presented redness and inflammation with a high swap urinalysis done on her.

8. PW3, police Constable Leah Kiiru attached to Kinangop police station was the investigating officer. She stated that on February 10, 2017 she reported to work and found instructions for her to conduct investigations into the suspected offence. She summed the prosecution case and preferred the charges against the Appellant

9. PW4, PWK, PW1’s mother stated that the complainant is 9 years old. She further stated that on February 9, 2017 at 4:30 pm when she came home and went to the farm and disclosed to her that the Appellant had defiled her. She informed neighbours and her son-in-law who advised her to report to the police station then to hospital and was issued a P3 form at Engineer District Hospital.

10. The Appellant when put on his defense gave an unsworn statement in evidence. He stated that PW4 was lying and that PW1’s brother would have seen it if he defiled her. He narrated that he had fallen out with PW4 over a payment of Kshs 10,000/- and had been threatened to be taught a lifelong lesson. He added that during the trial he had been on medication prescribed from Mathare Mental Hospital. He said that he was being framed.

Appellant’s submissions 11. The Appellant relied on his written submissions filed on July 27, 2021. He submitted that he pleaded guilty when the facts were read out to him adding that he informed the court that he had a mental challenge. That a psychiatric assessment report was tabled in court on May 18, 2017 and he was found fit to stand trial. He then entered a plea of not guilty. The Appellant moots that on May 28, 2018 the court noted that he might be mentally disturbed. Again, on May 29, 2018 the court noted that the he could have been having from a mental disorder which the prosecution also took note of. He was treated and on June 10, 2019 the doctor found him fit to stand trial.

12. The Appellant contends that Article 50 (2)(h) of theConstitution was breached as substantial injustice was meted to him as he was mentally unstable to stand trial. Further, the Appellant mooted that Section 43 of the Legal Aid Act 2016 gives effect to the operation of Article 50 (2)(h) of theConstitution by which an accused should be given legal representation at State expense.

13. On ground three of his appeal the Appellant contends that the sentence was harsh and excessive. He submitted that mandatory sentences have now been done away with by being declared unconstitutional. He cited several case law in support of this submission.

Respondent’s Submissions 14. Learned Counsel for the Respondent, Mr Alfred Michuki filed written submissions dated October 18, 2021. He submitted that Section 12 of the Penal Code which provides that ‘A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission’ places the burden on the accused person to prove that he was of unsound mind when he committed the offence.

15. Counsel cited Naivasha HC Criminal Case 38 of 2015 Republic vs SE [2017]which upheld that Section 12 of thePenal Code and the McNaughton rules recognize that insanity will only be a defence if it is proved that at the time of the commission of the offence the accused person by reason of unsoundness of mind was incapable of knowing the act he was charged with. The test is strictly on the time the offence was committed. Learned counsel stated that when on February 14, 2017 the Appellant entered a plea of guilty with the mitigation that he had a mental disorder, the court ordered for a psychiatric assessment on May 29, 2018. Counsel sated that the accused was committed to Mathari Hospital for three months and stood trial after he was found when he was found fit to stand trial.

16. In response to the ground that Article 50 (2)(h) of theConstitution was violated on ground that the Appellant was not accorded legal aid, counsel acknowledged that indeed under the Legal Aid Act No 6 of 2016 the State should provide legal services to those who cannot secure it. He however stated that the Act is at infancy stage and has not been enforced for the compelling reasons of budgetary constraints. Learned counsel went on to state that as long as injustice is not done to the accused and due process in the trial is followed, then the court ought to find that a conviction is proper.

17. On sentence, counsel submitted that the case of Supreme Court Petition No 15 &16 (Consolidated) Francis Karioko Muruatetu & Another vs Republic [2017] eKLR is irrelevant as it only applies to murder cases. He submitted that where minimum mandatory sentences are provided as in the instant case, a court has no discretion in varying the sentence irrespective of the circumstances of the case.

Analysis and determination 18. This being the first appellate court its duty is to reevaluate the evidence and come up with its independent conclusions. In so doing, the court must bear in mind that it neither saw nor heard the witnesses and give due regard for that. The Court of Appeal in Criminal Appeal 28 of 2009 Kisumu David Njuguna Wairimu V – Republic [2010] eKLR stated:'The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.'

19. I have considered the evidence adduced, the grounds of appeal and the respective submissions. I have concluded that the issues arising for determination are:a.Whether the Appellant’s right to a fair trial under Article 50(2)(h) of theConstitution was violated.b.Whether the defence of insanity applied to the Appellant.c.Whether the sentence was harsh and excessive in the circumstances.

20. On the issue that the Appellant was not accorded his right to a fair trial under Article 50(2)(h) of theConstitution being that the State did not provide him with legal representation, I find the Supreme Court decision in Petition 11 of 2017 Charles Maina Gitonga v Republic [2018] eKLR useful. It was stated thus:'We now opine as follows:(a)It is manifestly clear to this Court that, while the Applicant was tried and convicted in the trial Court, the question of legal representation did not arise at all, and;(b)Noting that legal representation is not an inherent right available to an accused person under Article 50 ofthe Constitution or any provisions of the Repealed Constitution and that under Section 36(3) of the Legal Aid Act No 6 of 2016, an accused person has to first establish that he was unable to meet the expenses of his trial;

(c)(d)Applying the above principles to the instant Application, we are unconvinced that the Applicant was not accorded an opportunity to obtain legal representation within the law as then in place during his trial and appeals or as later enacted through the Legal Aid Act, 2016. We cannot also fault the trial Court and the Appellate Court of first instance for alleged violation of Article 50 (2) (g) & (h) of theConstitution of Kenya. (Emphasis my own) 21. In Naivasha Criminal Appeal 4 of 2020 Paul Mbugua Maingi v Republic [2020] eKLR the court in dismissing the Appellant’s claim that he was not accorded his right to legal representation stated,'His submissions then veer off into an argument about the failure of the trial court to avail him legal representation. This was an issue that was not raised at trial as properly argued by the DPP who relied on the Supreme Court Case of Charles Maina Gitonga v Republic [2018] eKLR.'

22. The same case applies to the Appellant herein. The trial court proceedings attest that the issue of legal representation was not brought up and it was only raised on appeal at the High Court. The Appellant further did not establish that he was unable to meet the expenses of his trial as is stipulated under Section 36 of the Legal Aid Act No 6 of 2016. Accordingly, this ground of appeal fails. It is too late for this court to come to his aid.

23. As to the issue that the Appellant was found guilty yet he was a person of unsound mind, the fulcrum on which this appeal turns is whether the Appellant was of sound mind at the time of the commission of the offence. Much has been said about his mental state during the trial and the trial court. The prosecution and the Appellant have mutually agreed that during the trial the Appellant presented himself of being in need of psychiatric help, which was accorded to him. After he raised the issue after initially pleading guilty, the court referred him for treatment. He was committed to Mathari National Teaching and Referral Hospital. On July 2, 2019, having been declared fit to stand trial, he stated he was ready to proceed. He was then read to Section 200 of the Criminal Procedure Code which he said he understood.

24. The court called for a medical report to confirm that the Appellant was indeed fit to stand trial. The same was adduced on June 10, 2019. The Appellant having earlier stated that he was ready to proceed from where the matter had reached as another magistrate had taken over the case, the prosecution proceeded with PW2.

25. Back to the first date that the Appellant was produced to take plea on February 13, 2017, he pleaded guilty but on mitigation, he informed the court that he was mentally unstable. In his own words he said;'I pray for court’s forgiveness but I have a mental problem.'

26. The court then ordered that he be escorted to hospital for examination by a psychiatrist.

27. It was not until May 18, 2017, three months down the line that a report was received and the Appellant was declared fit to plead. PW1 thereafter testified. The case was subsequently adjourned on various dates. On January 18, 2018 he informed the court that he was unwell and the court ordered that he be escorted to hospital for treatment. The nature of the treatment was not disclosed.

28. Come the May 28, 2018 the court noted;'Court has observed that the accused is behaving in a manner to suggest that he might be having a mental disturbance.'

29. On May 29, 2018, the court reiterated that it had noted that the Appellant appeared to have a 'mental disorder. It also noted that earlier treatment by the doctor indicated that although he was ready to stand trial, he suffered from a mental Psychotic Disorder but that at the time of examination, the disorder was well controlled since he was on medication. He court noted that the disorder was exhibiting itself again and accordingly referred him to Hospital to be treated. It was not until June 10, 2019 that a Psychiatrist report indicated that he was well treated and could stand trial.

30. My biggest concern which I have had to grapple with is, it cannot be ascertained from this chronology that indeed the Appellant, at the time he committed the offence was not mentally unstable. I say so having in mind that the presumption of insanity is a rebuttable presumption This is further vindicated by the fact that, after he pleaded guilty and mitigated that he had a mental problem, it took a clear three months to certify him fit to stand trial. The doctor was however candid that he had a mental Psychotic Disorder.

31. Section 12 of the Penal Code provides that:'A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.'

32. It is a rule of universal application and of criminal responsibility that a man cannot be condemned if it can be proved that at the time of the perpetration of the criminal act he was not in charge of his mental faculties. Indeed, the law presumes that every person is sane and responsible for his actions at all times including when he is alleged to have committed an offence as sanity is the normal and usual state of man unless the contrary is proved. Section 11 of the Penal Code embodies this in the words that:'Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.'

33. Section 9 of the Penal Code cements the principle set out in Section 12 by stipulating that:-'(1)Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.'

34. The structure of Section 12 contemplates that insanity will only be a defence if it is proved that at the time of the commission of the offence charged, the accused person, by reason of unsoundness of mind, was either incapable of knowing the nature of the act he is charged with or was incapable of knowing that it was wrong or contrary to the law. The test, therefore, is strictly on the time when the offence was committed and no other. It is however not always possible to lead direct evidence on the actual mental condition of an accused person at the time he committed the offence. In the instant case, it is worthy to note that the Appellant did present the defence of insanity during the trial and at the earliest opportunity.

35. As earlier noted, the question in this case remains, whether the Appellant was laboring under the burden of mental illness at the time he committed the offence. It is notable that he was found fit to plead after treatment.

36. As was held by a two Judge bench in Eldoret Criminal Appeal 10 of 2015 JKK v Republic [2019] eKLR:'As the first appellate court, it is permissible for this court to reanalyze the evidence tendered before the trial court from which it can form an opinion regarding the mental status of the appellant at the time when the crime was committed. Such evidence will be based on the immediate preceding or immediate succeeding or even the contemporaneous conduct of the accused person, I find that the trial court needed to warn itself of the possibility of sentencing to life imprisonment, a person with mental disorder’

37. The Court of Appeal at Mombasa in Criminal Appeal 261 of 2006 Julius Wariomba Githua vs Republic [2008] eKLR observed that in addition to the provisions of Sections 162 and 166 of the Criminal Procedure Code, it is the duty of the trial court to ensure that the accused person’s mental status at the time he is alleged to have committed the offence is established, if that question becomes relevant.

38. In the present case, the Appellant’s mental status at the time of the commission of the offence was not known. However, from the evidence tendered by the prosecution on direction from the court, it was found that the Appellant was mentally unwell from the psychiatric report and from the admission of the Appellant into Mathari Hospital for three months. The Appellant had at plea taking, way early in the trial process, stated that he was mentally unstable.

39. The Respondent referred to Naivasha Criminal Case 38 of 2015 Republic vs SE [2017] in positing that Section 12 of the Penal Code and the McNaughton Rules recognize that insanity will only be a defence if it is proved that at the time of the commission of the offence the accused person by reason of unsoundness of mind was incapable of knowing the act he was charged with. However, as was in Eldoret Criminal Appeal 10 of 2015 JKK v Republic (supra), nothing in this case from the court record shows that the trial court formed its opinion regarding the mental status of the Appellant at the time when the crime was committed as it did not satisfactorily address the evidence based on the immediate succeeding and the contemporaneous conduct of the accused person.

40. This is because of its own accord, the court noted that something was off about the Appellant and asked for psychiatric help. The answer was coming too late into the trial. Further, the trial court did not warn itself of the possibility of sentencing to life imprisonment, a person with mental disorder wholly assuming that because the Appellant was by June 10, 2019 fit to stand trial, he understood the implications of the sentence.

41. I hold the view that, being fit to stand trial in the future does not negate the unfitness that could have stretched way back into the actual commission of the offense.

42. On these observations, I make a conclusion that although the offence was established by the evidence adduced, it cannot be ruled out that the Appellant was laboring under a disease of the mind when he committed the offence. The same case applies notwithstanding that the evidence appeared to lead to a conclusion that he knew how to lure the victim. For this reason, the court gladly accepts a defence that he committed the offence but at the time he did it, he did not know that what he was doing was wrong.

43. .I now grapple with what should happen to a person found guilty but was of unstable mind at the time he committed the offence. Section 166 of the Criminal Procedure Code has for a long time been the provision that courts have fallen back to. Under Section 166, where the court finds that the accused was 'insane' (this is the term used in the provision) at the time of committing the offence, the court shall make a special finding to the effect that the accused was 'guilty but insane.' When a special finding is so made, the court shall report the case for the order of the President, who may order the person to be detained in a mental hospital, prison or other suitable place of safe custody. The officer in charge of the institution in which the convicted person is detained on order by the President is required to make a report in writing to the Minister for the consideration of the President in respect of the condition, history and circumstances of the person so detained, at the expiration of a period of three years from the date of the President’s order and thereafter at the expiration of each period of two years from the date of the last report. On consideration of the report, the President may order that the person so detained be discharged or otherwise dealt with.

44. The Court of Appeal in K C K v Republic [2016] eKLR in addressing the special finding of ‘guilty but insane’ as provided for under Section 166 (1) rendered itself thus:'The marginal notes to section 166(1) uses the word lunacy and reads; 'Defence of lunacy adduced at trial', yet the entire section relates to the defence of insanity. It is in all material respects similar to section 2(1) of the English Trial of Lunatics Act, 1883 prior to its amendment by Criminal Procedure (Insanity) Act, 1964. Before that amendment the section provided that where there is evidence that, if at the time a person committed an offence he was insane, the court would return a special verdict that 'he was guilty but insane'. With the 1964 amendment the special verdict was changed to 'not guilty by reason of insanity'. This Act was ultimately repealed by Criminal Law (Insanity) Act, 2006 which maintained the special verdict of 'not guilty by reason of insanity', but it was also subsequently amended by the Criminal Law (Insanity) Act, 2010 without changing the wording of the verdict.The question we ask in order to understand the import of a special finding is whether it amounts to a 'conviction'. In the case of Felstead v Rex (1914) AC 534, the House of Lords unanimously held that the special finding was one and indivisible and was infact a verdict of acquittal and not a conviction notwithstanding the use of word 'guilty' in the relevant section. Lord Reading explained that;''It is unfortunate that this word ('guilty') is there used, as it suggests the responsibility for criminal act. If the requirement under the Act had been merely to find that the accused did the act, instead of that he was guilty of the act, there could have been no room for doubt that such a verdict was not a conviction, but was an acquittal'The ‘insanity defence’ is provided for under section 12 of the Penal Code; and Section 166 of the Criminal Procedure Code provides for the procedure to be followed when a person is found ‘guilty but insane.’'Since the special finding under section 166 is neither a conviction nor a sentence, it can, logically, only be an acquittal with the consequence that in terms of section 379 (1) no appeal lies to this Court. It cannot amount to a conviction because insanity is recognized in law as an illness requiring treatment and not punishment. When detained at the President’s pleasure the accused is considered a patient and not a prisoner.'

45. Parts of Section 166 have lately been declared unconstitutional on account of empowering the President to conduct judicial function in sentencing. As late as December 21, 2021, the Court of Appeal in the case of Wakesho v Republic [2021)e KLR has delivered that a finding of not guilty for reason of insanity was more legally sound than a finding of guilty in light of the requirements of criminal responsibility and culpability which required that for a person to be criminally liable, it must be established beyond a reasonable doubt that the accused committed the offence or omitted to act voluntarily and with a blameworthy mind. In the case, the Court found that the Appellant was guilty of murder but was mentally ill at the time she committed the offence. She was ordered to be committed into a hospital for treatment until such a time that she was certified fully recovered.

46. To further buttress the above point, in Republic v S O M [2018] eKLR the accused was convicted for the murder of his grandmother, contrary to Section 203 as read with Section 204 of the Penal Code. The trial Court found that the accused committed the act that led to the death of the deceased. The Court made a special finding under Section 166(1) of the Criminal Procedure Code to the effect that the accused committed the act of killing but was insane at the time. On appeal, the High Court in Kisumu stated that it is clear from Section 166 of the CPC that the Court’s duty comes to an end when it enters the special verdict against the accused and directs the accused’s detention pending the President’s decision. According to the High Court, the imposition of a punishment in a criminal matter which includes the assessment of its severity is an integral part of the administration of justice and is therefore the exercise of judicial, not executive, power. The Court noted that the vesting of discretion on the President on how an accused is to be treated after conviction is inimical to the fundamental duty of the judiciary to determine the guilt of the accused and determine the terms upon which he or she serves the sentence. According to the High Court, the fact that the statute provides for a periodic review by the President upon advice of executive functionaries goes further to buttress this key point.

47. The Court went on to declare the provisions of Section 166 of the Criminal Procedure Code unconstitutional to the extent that they take away the judicial function to determine the nature of the sentence or consequence of the special finding contrary to Article 160 of theConstitution by vesting the discretionary power to the President to determine the nature and extent of the sentence. Consequently, the court declared that in order to remedy the constitutional defect, the reference to ‘the President’ under Section 166 of the Criminal Procedure Code shall be replaced by reference to ‘the Court’.

47. I come to the conclusion that the appellant herein is a person deserving treatment. Prison is not his home. I order that he be set free. He shall be released to his family who shall take care of him by taking him to hospital for treatment and ensuring that he is not a danger to himself and the society. A probation Officer’s Report shall be tabled in court to confirm that the Appellant has a strong family background that can support him through the treatment process failing which the court shall make furthers orders on his treatment.

48. Having made the orders above, I shall not delve into the issue of sentence save to add that the minimum mandatory sentence under Section 8 (2) of the Sexual Offences Act which is life imprisonment cannot be varied.

DATED AND DELIVERED AT NAIVASHA THIS 10TH DAY OF FEBRUARY, 2022. G.W. NGENYE-MACHARIAJUDGEIn the presence of:Appellant in person.Ms. Maingi for the Respondent.