J M M v Republic [2017] KEHC 855 (KLR)

IN THE HIGH COURT OF KENYA

AT MURANG’A

CRIMINAL APPEAL NO 219 OF 2013

(FORMERLY NYERI HCCR APPEAL NO 79 OF 2012)

(From original conviction and sentence in Kigumo SPM

Criminal Case No 725 of 2010 – S Mbungi, SPM)

J M M........................................APPELLANT

VERSUS

REPUBLIC............................RESPONDENT

J U D G M E N T

1. The Appellant herein, J M M, was convicted after trial, in count I of capital robbery contrary to section 296(2) of the Penal Code, and in Count II of gang rape contrary to section 10 of the Sexual Offences Act, No 3 of 2006.  He was sentenced to death as required by law in Count I.  Sentencing in Count II was left in abeyance.  He has appealed against both conviction and sentence.

2. In the grounds of appeal appearing in his petition filed from prison on 07/05/2012 the Appellant complains –

(a) That the trial court did not consider his mental status yet he is a psychiatric patient and had been at Mathare Mental Hospital for six months.  He thus did not follow the proceedings.

(b) That he was a minor when he was arrested.

(c) That there was an existing grudge between the Appellant and the complainant who was his aunt.

3. In his amended grounds of appeal handed in at the hearing of the appeal, the following further grounds of appeal appear –

(d) That the Appellant was not supplied in advance with the charge sheet and witness statements, and that therefore “the tenets of fair trial were infringed” contrary to Article 50 (2) (i) of the Constitution.

(e) That the evidence adduced by the prosecution was at variance with the particulars of offence in the charge.

(f) That the Appellant was not positively identified.

(g) That the trial court rejected the Appellant’s defence without assigning any reasons for doing so.

(h)  That the offence was not proved against the Appellant to the required standard.

The Appellant also put in written submissions which I have considered.

4.  Learned prosecution counsel for the Respondent did not support the convictions for the main reason that during trial the court observed that the Appellant was not mentally fit and referred him to Mathare Mental Hospital for treatment, yet the trial subsequently resumed after about six months without following the procedure set out under sections 162, 163 and 164 of the Criminal Procedure Code.

5. Learned prosecution counsel also did not seek a re-trial upon the ground that the evidence placed before the trial court was not sufficient to found a conviction.

6. I have examined and read through the record of the trial court.  The Appellant’s plea was taken on 07/06/2010.  Hearing of the case was scheduled for 07/07/2010.  But when the case came up for routine mention on 22/06/2010 the trial court ordered, seemingly out of the blue:  “Accused to be taken to hospital.”

7. Trial commenced on 07/07/2010 but did not proceed far as the prosecution did not have their exhibits.  On 21/07/2010 when the case came up for routine mention, the court again seemingly out of the blue, ordered: “Accused committed to Mathare Mental Hospital.”

8. Over the next six months or so it was regularly reported to the trial court during routine mention that the Appellant was still at Mathare Mental Hospital.  On 22/11/2010 however, the Appellant was produced in court and the case was scheduled for hearing.  On 23/03/2011 hearing of the case resumed and proceeded eventually to completion.

9. It is apparent that the trial court did not comply with the law both in committing the Appellant to Mathare Mental Hospital and in resuming his trial.  There is no evidence of the court conducting an inquiry under section 162(1) of the Criminal Procedure Code; and there is no record of the court’s opinion regarding his state of mind upon such inquiry.

10. If the Appellant was subsequently certified capable of making his defence by the medical officer in charge of Mathare Mental Hospital, there is not on the court record such medical report; nor is there any communication from the Director of Public Prosecutions  to the court as to the intention of the Republic regarding the proceedings against the Appellant.  Section 163 of the Code was wholly ignored by the trial court.

11. Before hearing this appeal this court directed that the Appellant be examined at Mathare Mental Hospital for evaluation of his mental status.  A medical report dated 23/06/2016 was subsequently filed in court.  It was the opinion of the Consultant Psychiatrist that his mental status was not stable; he was not fit to plead; and that he would benefit from admission at Mathare Hospital for closer monitoring and treatment.

12. The upshot of the above grave procedural lapses on the part of the trial court is that, having apparently formed the opinion that the Appellant was of unsound mind, and thus incapable of making his defence, and having committed him to Mathare Mental Hospital for treatment, the court resumed his trial without the Appellant being certified fit to stand trial, and without compliance with section 163 aforesaid of the Code.  The Appellant’s trial was thus illegal and a mistrial.  The convictions are unlawful and are hereby set aside, along with the sentence of death imposed upon him.

13.  As for the Republic’s decision not to seek a re-trial of the Appellant, I note that the Appellant has been in custody since June 2010, now nearly seven (7) years.  I have also perused the evidence placed before the trial court, and quite clearly the same falls far short of proving the charges laid against the Appellant beyond reasonable doubt.

14. I will allow this appeal in its entirety.  The Appellant’s convictions and the sentence of death imposed upon him are hereby set aside.  He shall be set at liberty forthwith unless otherwise lawfully held.  It is so ordered.

DATED AND SIGNED AT MURANG’A THIS 11TH DAY OF MAY 2017

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS 10TH  DAY OF JULY 2017