REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CRIMINAL APPEAL NO. 156 OF 2012 (From Original Conviction and Sentence in Criminal Case No. 1120 of 2011 of the Principal Magistrate’s Court at Kwale: A.O. Aminga – R.M.) ATHUMAN MOHAMED MANUVE ........................... APPELLANT VERSUS REPUBLIC .............................................................. RESPONDENT JUDGMENT The Appellant in this appeal who was represented by MR. GICHANA Advocate filed an appeal against his conviction and sentence by the learned Resident Magistrate sitting at Kwale Law Courts. The Appellant had been tried and convicted for the offence of CREATING A DISTURBANCE contrary to SECTION 95(1) OF THE PENAL CODE. Upon conviction the accused whom the court found to be mentally unstable was sentenced to serve at the Presidents pleasure. MR DZUMO learned State Counsel conceded the appeal. I do agree with the concession of the learned State Counsel. The offence of creating a disturbance is a misdemeanour which did not call for a custodial sentence. The trial magistrate himself noted that the Appellant appeared not to understand the proceedings. In such circumstances the court ought not to have rendered a conviction. It is clear that the Appellant who believes he is bewitched is more in need of psychiatric attention. He has been in custody since May 2012 well over 1 ½ years which is more than sufficient. I therefore allow this appeal. The Appellant is to be set at liberty unless otherwise lawfully held. Dated and Delivered in Mombasa this 19th day of February 2014. M. ODERO JUDGE
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