Republic v Noel Mutuku Kaluku [2017] KEHC 3203 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

CRIMINAL CASE NO. 4 OF 2015

REPUBLIC..........................................................PROSECUTOR

VERSUS

NOEL MUTUKU KALUKU.........................................ACCUSED

RULING OF THE COURT

1. The accused herein   NOEL MUTUKU KALUKU faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the offence are that on the 1st day of January, 2015 at Winzeni village, Mutitu Sub-location, Mbooni Location within Makueni County murdered ALBANUS KIOKO MUTINDA.

3. The accused herein right from the date he was presented to court on the 12/1/2015 has not taken plea in this matter due to the fact that he was reported to be of unsound mind and thus incapable of making his defence and even to plead to the charges.  The initial mental assessment reports conducted by the psychiatrists revealed that the accused was not fit to plead to the charges.  As a result of those reports, the accused was remanded at Mathare National Teaching and Referral Hospital where he underwent medical treatment.  The Psychiatrist kept on preparing periodic mental assessment reports which were duly filed before this court.  From those reports it became apparent that the accused might not be in a position to understand the proceedings and make a defence at all.  Consequently this court embarked on an inquiry into the fact of unsoundness of mind of the accused pursuant to the Provisions of Section 162 of the Criminal Procedure Code.  Both learned counsels for the accused and prosecution were in agreement that one of the Psychiatrists who conducted the mental assessment at Mathare Mental Hospital be summoned to appear in court and do present the assessment report.

4. Dr. Ngugi Gatere who is a Consultant Psychiatrist based at Mathare Hospital appeared in court on the 26th July, 2017 and stated that he together with other doctors conducted a mental assessment on the accused and established that he had very low intelligence and the doctors formed the opinion that the accused suffered from schizophrenia which is a form of mental retardation that does not have a cure.  The doctor further opined that the accused may never be able to plead in a Court of law.  The said doctor produced a report dated 2/12/2016 and suggested that the accused still needs to be taken for treatment until he may not be a danger to himself or society.  The doctor further added that if the accused is to be released then he should be taken to a good institution where he will not be a danger to himself and society.

5. While this Court was pondering on the next course of action SOS Children’s Villages Kenya a welfare organization for children in the world wrote a letter dated 2nd August, 2017 to this Court and volunteered to take up the accused.  Apparently the accused had earlier on when he was aged five (5) years old and an orphan had been admitted to their institution several years back where he stayed for close to 15 years before being released to his uncle one Gerald Kaluku with whom he stayed until he was arrested for this offence.  The Program Director of the said SOS Children in their said letter undertook to support the accused herein and to ensure that he gets medical attention and further to ensure he does not harm himself or others and further the institution is working to adhere to such terms as Court may impose and also to stay in touch with the accused’s close relatives.

6. Having analyzed the mental assessment reports on the accused herein and having heard the testimonies of the Psychiatrists namely Dr. Ogato Julius and Dr. Ngugi Gatere it is apparent that the accused herein NOEL MUTUKU KALUKU is of unsound mind and consequently incapable of making his defence in these proceedings.  That being the position, the proceedings are hereby postponed.  In the meantime the accused is hereby ordered to be detained at SOS Children’s Village Nairobi whereby he shall be given Psychiatric treatment and further where they will ensure he does not harm himself or others.  The said SOS Children’s Village Nairobi are ordered to stay in touch with accused’s family members and to present him to court as and when required.  The said SOS Children’s Village Nairobi is further directed to furnish the court with periodic reports on the progress of the accused’s mental condition.

It is so ordered.

Dated, signed and Delivered at MACHAKOSthis 7thday of September,2017.

D. K. KEMEI

JUDGE

In the Presence of:

Machogu for state

Kituku for accused

C/A:  Kituva