Cwk v Republic

She further stated that she had previously undergone admission at Mathari Mental Hospital for a period of three months and thereafter continued with medical treatment for one year, during which period she fully recovered from her illness. She describes herself as a mother who earnestly longs to reunite with her family and has urged the Court to consider the fact that she has already spent nine (9) years in custody. She has expressed remorse for her actions and maintained that she is now in a stable mental state fit, for reintegration into society. 4. In aid of her plea, the Applicant has relied upon the decision in the Petition No. 226 of 2020 – Isaac Ndegwa Kimaru & 17 Others, where the High Court considered the rights of persons detained at the President’s pleasure. 5. On 7th April, 2025, this Court directed that the Applicant be subjected to other mental assessment at Mbagathi Hospital and also directed the Probation and After Care Services Department to prepare and file a pre-sentence report. Pursuant to those directions, a Psychiatric Report dated 12th May, 2025 was filed confirming that although the Applicant had a history of mental illness, she is presently of sound mind after treatment. 6. Additionally, a Probation Officer’s Report dated 14th May, 2025 was filed indicating that the Applicant’s family, particularly her elder sister, had expressed readiness and willingness to provide her with the necessary support system to facilitate her smooth reintegration into the community. The report has urged this Court to consider extending a second chance to the convict/ Applicant. 7. As regards the factual circumstances surrounding the commission of the offence, the report revealed that at the material time, the Applicant had been living with her mother-in-law owing to her ill-health. And on the morning of 21st September, 2015, while preparing breakfast, the Applicant suddenly attacked her mother-in-law with an axe and fatally wounded her. The Applicant later explained that she could not comprehend what overcame her to commit such a heinous act, given that there had been no animosity between them. She attributed her actions to her unstable mental condition at the time and expressed deep remorse both to the Court and to the victim’s family. She affirmed that she has since regained her mental health and undertakes to continue with medical treatment as may be directed. 8. The family of the deceased, particularly the husband of the deceased, strongly opposed the revision application. He recounted the profound and irreparable pain occasioned by the loss of their loved one, and categorically stated that he harbours no desire to have any association with the Accused Person/ Convict/ Applicant. He further expressed apprehension that the Applicant’s release would exacerbate their trauma and reopen old wounds, especially considering the close geographical proximity between their homesteads. 9. The local administration did not raise objection to the possibility of a review of the Applicant’s sentence, provided that appropriate medical follow-up and supervision are ensured. In summing up the findings, the Probation Officer has underscored that the Applicant had spent seven (7) years in remand custody during the Pre-trial and since conviction, she has served an additional two(2) years and nine (9) months, which brings the cumulative period in detention to nine (9) years and nine(9) months. It is further noted in the report that throughout this period of incarceration, the Applicant has not exhibited abnormal behaviour consistent with mental instability. Determination by Court 10. This Court has had the benefit of carefully examining the entire record of proceedings, including the Psychiatric and Probation Officers Reports that have been filed before it, the oral and written submissions advanced by the Applicant, as well as the sentiments and concerns articulated by the victim’s family. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19302/eng@2025-09-12 2

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11. It is worth noting that the matter before this Court is not an ordinary sentencing exercise. It is a matter that requires the delicate balancing of competing constitutional values, statutory obligations, judicial discretion, and the dictates of justice in a case where the offender was found guilty of murder but insane at the time of commission of the said offence. Therefore, the question that now falls for determination is the most appropriate sentence to mete out in these unique and exceptional circumstances. 12. It is common ground that the Applicant was found guilty of the act of murder but was declared to have been insane at the material time. Consequently, she was detained at the President’s pleasure pursuant to Section 166(1) of the Criminal Procedure Code. It ought to be appreciated that historically, the rationale of this statutory provision is protective rather than punitive, in that, the law recognizes that a person who, by reason of mental infirmity, lacked the necessary criminal capacity at the time of the offence is not an ordinary offender deserving of conventional penal sanctions. Such a person is in law treated as a patient requiring treatment, supervision, and rehabilitation, rather than one deserving of pure retribution. 13. However, the continued application of indeterminate detention at the President’s pleasure has attracted significant constitutional and judicial scrutiny. The evolving jurisprudence both in Kenya and in comparative jurisdictions has cast doubt on the legality and propriety of consigning offenders found guilty but insane at the time of committing a crime to indefinite incarceration at the sole discretion of the President’s pleasure. In the case of Republic –vs- S O M (2017) eKLR, Majanja J. questioned the constitutionality of leaving sentencing to the Executive by observing that judicial power includes the imposition of appropriate sentences. Similarly, in the case of Republic –vs- ENW (2019) eKLR, Lesiit J. underscored that sentencing is an exclusive judicial function but also acknowledged the constitutional role of the President under the Power of Mercy provisions. 14. As such, Article 50(2)(q) of the Constitution guarantees every convicted person the right to the benefit of the least severe of the prescribed punishments. Equally, Article 28 underscores the inherent dignity of every individual, including those convicted of crimes, while Article 29(f) prohibits any form of cruel, inhuman, or degrading treatment or punishment. It would therefore be inconsistent with these provisions to consign an individual to indefinite detention without clarity on the length of sentence, especially in circumstances where credible medical reports confirm mental recovery and where the individual has already served a substantial period in custody. 15. Turning to the facts of this case, the Psychiatrics’ Report dated 12th May, 2025 confirms that the Accused Person/Applicant is now mentally stable, having benefitted from treatment and is no longer a danger to herself or the community. The probation report dated 14th May, 2025 similarly portrays the Accused Person/Applicant as remorseful, rehabilitated, and with strong family support structures willing to facilitate her reintegration into society/community. More importantly, the report also indicates that during her nine (9) years and nine (9)months of incarceration, the Applicant has not displayed any abnormal behaviour suggestive of a relapse into mental illness. She has also expressed remorse for her actions and seeks forgiveness from family of the victim. 16. On the other hand, this Court has given due regard to the sentiments of the victim’s family, particularly the Applicant/Convict/Accused Person’s husband, who has expressed deep anguish, a desire never to interact with the Applicant, and fear that her release would reopen old wounds. 17. This court acknowledges that Victims’ rights are constitutionally recognized under Article 50(9), and the Victim Protection Act obliges the courts to hear and consider their views before sentence is passed. That said, while victims’ views must be heard and considered, they cannot, by themselves, be determinative of the sentence to be meted by the court as the Court must weigh their views m against https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19302/eng@2025-09-12 3

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the offender’s rights, the broader interests of society, and the constitutional principles that guide the exercise of judicial discretion. 18. In weighing these considerations, this Court is acutely mindful that the offence of murder is by its very nature grave and carries the highest degree of moral and legal opprobrium. However, in this case, the Applicant’s culpability was profoundly diminished by reason of her mental condition at the time of committing the offence. As such, this Court is also alive to the fact that the principle of proportionality in sentencing demands that the punishment imposed must reflect not only the gravity of the offence but also the degree of blameworthiness of the offender. 19. Similarly, in determining the appropriate sentence, this Court is guided by the objectives of sentencing as set out in the Sentencing Policy Guidelines, 2023. Paragraph 1.3.1 thereof identifies the objectives as including retribution, deterrence, rehabilitation, restorative justice, community protection, denunciation, reconciliation, and reintegration. These objectives are not to be applied in isolation but holistically and in a manner that advances justice to the victim, the offender, and the community alike. Jurisprudence from our superior courts has repeatedly emphasized that sentencing must be individualized, proportionate, and constitutionally compliant. 20. The overarching principle, therefore, is that a sentence must fit both the offence and the offender, striking a delicate balance between retribution for the offence, deterrence of future wrongdoing, rehabilitation of the offender, the rights of the victim, and the safety of society. Thus, this Court must ensure that no single objective of sentencing overwhelms the others, lest justice be skewed either against the offender or against the victims. 21. In applying these principles to the present case, this Court is persuaded that the continued detention of the Applicant at the President’s pleasure is neither justifiable nor constitutional in the circumstances presented. While no sentence can ever restore the life of the deceased or fully assuage the grief of her family, this Court is satisfied that the most appropriate course is to substitute the indeterminate order with a determinate custodial sentence that recognizes the seriousness of the offence, while equally appreciating the Applicant’s diminished culpability, demonstrated rehabilitation, strong prospects of reintegration, and the time already spent in custody. 22. Accordingly, this Court is satisfied that a determinate custodial sentence of ten (10) years imprisonment is just and proportionate. The said sentence to be computed to run from the date of the Applicant’s arrest on 6th October, 2015 to this date. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 12TH DAY OF SEPTEMBER , 2025. D. O. CHEPKWONY JUDGE In the presence of: Applicant in person – present M/S Ndeda counsel for the State Court Assistant - Kinyua https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19302/eng@2025-09-12 4

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