Republic v Justus Kituu Mulungye [2018] KEHC 238 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HC CR. REV NO. 2 OF 2018

IN THE MATTER OF KILUNGU MAGISTRATE’S COURT

CRIMINAL CASE NO. 48 OF 2017

REPUBLIC................................ PROSECUTION

VERSUS

JUSTUS KITUU MULUNGYE......... ACCUSED

RULING

1. The court has perused the proceedings of Kilungu SRM CR NO. 48/017 in which the accused was charged with the offence of threatening to kill contrary to section 223(1) of the Penal Code.

2. Particulars being that on 23/01/2017 at Kyanga village, Kyanga Sub-location, Kilungu Sub-county, he threatened to kill by uttering directly to Mulungye Mutio that he would cut him and his mother into pieces until they die.

3. The court finds that the matter came for plea on 25/01/2017 and after taking plea, the court fixed a hearing date on 06/03/2017.

4. On 06/03/2017 before the hearing commenced, the accused stated that he is psychotic and stated that he had statements.

5. On that note, the court ordered under Section 162 CPC Cap 75 Laws of Kenya ordered an inquiry as to the unsoundness of mind of the accused.

6. The prosecution stated that he was of the opinion that the accused was of unsound mind and urged court to treat accused as a person of unsound mind.

7. The court without reversing the enquiry order, earlier made ordered the accused to be detained and certified copy of the proceedings to be forwarded to the president via internal security minister.

8. Section 162 CPC, Cap 75 L.O.K., makes it mandatory for inquiry to be conducted once the court forms an opinion that the accused is of unsound mind.

9. Thus the trial court breached the provisions of S. 162 CPC thus the court invokes the powers under S. 364 1(b) CPC Cap 75 L.O.K. and reverses the orders of 06/03/2017 and makes the following Orders/Directions:-

1. The matter is remitted back to Senior Resident Magistrates Court Kilungu for the court to process the case as required by the Law.

SIGNED, DATED AND DELIVERED THIS 19TH DAY OF FEBRUARY, 2018.

C. KARIUKI

JUDGE

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