Republic v Ndungu [2023] KEHC 23366 (KLR)

Republic v Ndungu (Criminal Case 131 of 2014) [2023] KEHC 23366 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23366 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 131 of 2014

RB Ngetich, J

October 12, 2023

Between

Republic

Prosecution

and

Gaitho Ndungu

Accused

Ruling

1. By Judgment delivered on the 29th day of March 2023, this court found the accused Gaitho Ndungu guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. Particulars were that on the night of 23rd and December 24, 2014 at Mona area, in Molo District within Nakuru County with malice aforethought, the accused murdered Samuel Karanja Muhindi. The state counsel informed the court that the accused was a first offender.

2. Mr. Kabaka holding brief for the defence counsel Mr. Orege mitigated on behalf of the accused. He submitted that the accused is 37 years old and has been in custody since 31st December, 2014 a period in excess of 9 years; that the accused has a history of mental illness as it came out during the hearing and even in prison and has been held in cell reserved for persons with mental illnesses. Counsel submitted that the accused is a first offender and urged the court to consider the same during sentencing.

3. Social inquiry report by Probation Officer, Nakuru indicate that accused’s family is a large family and accused is destitute with low level of education. The report further indicate that the accused’s family has several family members who suffer from mental depression leading to mental disorders and the accused lived with his father as their mother passed on. Accused solely depended on his father as he was not working due to his mental state; the family are not opposed to accused being placed on probation; they are willing to support to him if placed on a non-custodial sentence.

4. The presentence report indicate that the accused suffers from psychosis but is optimistic that if placed on a non-custodial sentence, he will navigate and look for ways to survive and settle down and if placed on probation, the probation office will ensure that he settles down and is reintegrated back to society; further that he will ensure he relocates from the area of offence to avert any reprisals and continue with medication. The probation officer is of the view that the accused is suitable for non-custodial sentence and recommends 3 years’ probation sentence.

5. The state counsel Mr. Kihara submitted that from presentence report, it is unfortunate that the accused still suffers from mental illness and looking at the report, he is not welcomed in the community as per the sentiments of the victims and the relatives and urged the court to consider this while sentencing the accused.

6. I take note of the fact that accused is a first offender. The family of the victim are still bitter and are not for noncustodial sentence; no re-conciliatory efforts have been initiated. I have also noted the concerns of the local administration specifically the area assistant chief who opines that although the offence occurred sometimes back, no total emotional healing has been achieved since no reconciliation has been done.

7. In view of the above, there are high chances that the accused may have committed the offence due to mental illness. I further note that the accused is now not mentally stable and he is being held separately from the other prisoners. In view of the fact that the accused is not mentally fit, it is not safe to release him back to the community. I hereby commit him to Mathare mental hospital with periodic mentions to get report on his mental state and further directions as and when is appropriate.

8. Final orders:-1. Accused is hereby committed to Mathare mental hospital. Mention after 6 months to establish his mental state and for further directions if need be.2. Right of appeal 14 days.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 12TH DAY OF OCTOBER 2023. ....................................RACHEL NGETICHJUDGEIn the presence of:Mr. Kemboi - Court Assistant.Mr. Kihara for State.Ms Mungai holding brief for Orege for accused.