Martin Musau Mbuiko v Republic

Another; Kenya National Human Rights and Equality Commission [2022]eKLR and revise (interested the Party) sentence of President’s Pleasure the Applicant is serving to time served. iii. That the Honourable court be pleased to make appropriate orders and directions upon taking into account the mental status and the age of the applicant during trial and the period the applicant has been detained in prison at the President’s pleasure. iv. That the Honourable court be pleased to consider time spent in custody and when giving sentence, order the sentence to run from the date of arrest pursuant to Section 333(2) of the Criminal Procedure Code. 2|Page

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v. That the Applicant be exempted from paying costs as he is a pauper. vi. That this Honourable court be pleased to grant any other order that the court may deem fit. 2. The grounds for the application are on its face and in the supporting affidavit sworn by the applicant on 2 nd October 2024. These are inter alia that he was charged Makueni HCCRC No.1 of 2018 with Murder contrary to Section 203 as read with 204 of the Penal Code. That he was tried, found guilty but insane by the Hon. Justice Dulu and was on the 6th October, 2021 sentence to serve detention at the pleasure of the President. 3. That due to insanity he was unable to file an appeal to the CoA. That after treatment he could now comprehend the facts of the matter and comes before this court seeking revision of his sentence. 3|Page

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4. That following the orders in Isaac Ndegwa Kimaru & 17 Others v. Attorney General & Another; Kenya National Human Rights & Equality Commission (Interested Part) [2022] eKLR the Applicant seeks leave of this court to revise his sentence to a determinate one as he has stayed in custody for 8 years. 5. That the implementation of the Judgement of Isaac Ndegwa Kimaru case was reiterated by the High Court In Nairobi in HMM V Director of Public Prosecutions & Another (Constitutional Petition E323 of 2020) [2023] KEHC 2620(KLR) 6. He avers further that he is therefore seeking the revision of his sentence as the sentence under the Presidential Pleasure is indeterminate and has been declared unconstitutional by the courts in Kenya. That the sentence of presidential pleasure was held in Isaac Ndegwa Kimaru & 17 Others v. Attorney General & Another; Kenya National Human 4|Page

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Rights & Equality Commission (Interested Part) [2022] eKLR to be unconstitutional and affected individuals were directed to seek revisions of their sentences from their respective trial courts. 7. The application is opposed by the Respondent on the grounds that the application for review does not meet the threshold set in law and should be dismissed in its entirety. 8. That this court is functus officio having already pronounced itself on the issue of sentence and conviction in Makueni HCCR No.001 of 2018 and the Applicant is asking this court to sit on its own appeal while the appropriate forum is the court of Appeal. Analysis and Determination 9. I have considered the application and the prayers on its face. What orders can issue from this court. 10. 5|Page The applicant has cited two cases

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Kimaru & 17 others v Attorney General & another ; Kenya National Human Rights and Equality Commission (Interested Party) [2022] KEHC 114 (KLR) where the court made the following orders: In the end, and flowing from the above, this court hereby makes the following final orders: a)A declaration hereby issues that detaining of persons with mental challenges who are facing criminal trials or who have been tried and special findings made that such persons were ‘guilty but insane’ in prisons at the President’s pleasure pursuant to sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code or under any other law constitute a threat to the doctrine of separation of powers and the independence of the Judiciary. b)A declaration hereby issues that sections 162(4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167(1)(a), (b), (2), (3) and (4) of the Criminal 6|Page

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Procedure Code or any other law providing for the detaining of any person with mental challenges who face a criminal trial or has been tried and a special finding made that such a person was ‘guilty but insane’ at the President’s pleasure contravenes articles 25(a), 27(1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution. Such provisions are hereby declared unconstitutional, null and void. c)A declaration hereby issues that an accused who is found to be unfit to stand trial or to continue participating in a criminal trial due to mental challenges or an accused who is tried of a criminal offence, and was found to have been insane at the time of committing the crime is a person with disability and ought to be accorded the necessary protection and assistance required under the Constitution and the law. 7|Page

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d)A declaration hereby issues that no court of law shall henceforth commit any person facing a criminal trial found to suffer from mental challenges to any prison facility in Kenya to be detained under the President’s pleasure pursuant to any law. e)A declaration hereby issues that no prison facility in Kenya shall accept and detain any person found to suffer from mental challenges under the President’s pleasure. For clarity, a prison facility shall only accept such persons with mental challenges committed to the facility under the orders of the court which orders shall not include any order to hold such persons under the President’s pleasure. f)A declaration hereby issues that any continued detention of persons with mental challenges who are facing criminal trials or who have been tried and special findings made that such persons 8|Page

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were ‘guilty but insane’ and that they be detained at the President’(sic) g)A declaration hereby issues that the Advisory Committee on the Power of Mercy established under article 133 of the Constitution has no jurisdiction to deal with persons with mental challenges who are facing criminal trials or who have been tried and special findings made that they were ‘guilty but insane’ until such a time when such persons are sentenced by Courts of Law. h)An order hereby issues that any prison facility in Kenya holding any person with mental challenges facing a criminal trial or who has been tried and a special finding made that such a person was ‘guilty but insane’ and be detained at the President’s pleasure shall forthwith make arrangements and arraign such a person before the court that committed the person to the prison facility. 9|Page

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i)Once any person with mental challenges facing a criminal trial or who has been tried and a special finding made that such a person was ‘guilty but insane’ is arraigned before court pursuant to order (h) above, the court shall make appropriate orders and directions upon taking into account the mental status of the accused and the period the accused has been detained in prison at the President’s pleasure. j)In the event the prison facility is unable to arraign such a person before court as ordered in order (h) above, the facility shall immediately so inform the court and the court shall make appropriate orders and directions as it deems fit. k)The Honourable Deputy Registrar of the Constitutional and Human Rights Division of the High Court shall, in the next 14 days, transmit copies of this judgment to the parties in this matter as well as to the Commissioner-General of the Kenya Prisons Service, the Speaker of the 10 | P a g e

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National Assembly, the Registrar of the High Court and the Registrar of the subordinate courts. The Speaker of the National Assembly shall take steps towards ensuring that the impugned sections of the Criminal Procedure Code, cap 75 of the Laws of Kenya are aligned with the Constitution and in terms of this judgment. l)The Speaker of the National Assembly shall file an affidavit in this court on the status of implementation of this judgment in the next 12 months. m)The Honourable Deputy Registrar shall, at the expiry of 12 months from the delivery of this judgment, fix this matter before appropriate directions. n)There shall be no orders as to costs. Orders accordingly. 11 | P a g e court for

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11. In HMM v Director of Public Prosecutions & another [2023] KEHC 2620 (KLR) the Petitioner relying on Kimaru & 17 others v Attorney General & another prayed for the following reliefs; i. A declaration be issued that the Petitioner is entitled to the rights set out in Article 25(a), 27(1), 27(2), 28, 29(a), 43(1)(a), 51(1) of the Constitution of Kenya. ii .A dealation be issued that the failure of the Respondent to perform their constitutionally violated the mandated duties has Petitioner’s right and continues to violate Article 25(a), 27(1), 27(2), 28, 29(a) 43(1)(a), 51 of the Constitution of Kenya. iii. An Order for the Petitioner to be released from prison and be freed from serving an indefinite prison sentence. 12 | P a g e

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iv. Any other order and or directions that this Court may deem fit to grant. The court heard the Petition and determined it in the following manner: i. Given the orders in the above case, the instant Petition stands spent. The prayers sought by the Petitioner herein were fully granted and if the orders in Isaac Ndegwa Kimaru & 17 Others v The AG & DPP were duly implemented, then the Petitioner’s plight ought to have been attended to. Resulting from the foregoing, this Court hereby makes the following final orders: -a. This Petition is hereby determined in terms of the judgment in High Court at Nairobi Constitutional Petition No 226 of 2020, Isaac Ndegwa Kimaru & 17 Others v The AG & DPP (2022) eKLR. 13 | P a g e

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b In the event the Petitioner is yet to benefit from the implementation of the said judgment, then the said judgment shall forthwith be implemented in respect to the Petitioner herein. c. There shall be no orders as to costs. Orders accordingly. 12. My understanding of the foregoing is that what is prevailing now with respect to the applicant’s application is Order (h) and (i) in Kimaru & 17 others v Attorney General & another above. These orders state: h)An order hereby issues that any prison facility in Kenya holding any person with mental challenges facing a criminal trial or who has been tried and a special finding made that such a person was ‘guilty but insane’ and be detained at the President’s pleasure shall forthwith make arrangements and arraign such a person before the court that committed the person to the prison facility. 14 | P a g e

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i)Once any person with mental challenges facing a criminal trial or who has been tried and a special finding made that such a person was ‘guilty but insane’ is arraigned before court pursuant to order (h) above, the court shall make appropriate orders and directions upon taking into account the mental status of the accused and the period the accused has been detained in prison at the President’s pleasure Analysis and Determination: 1. It is not in dispute that the applicant was tried, convicted by this court (Hon. Dulu J) in Makueni HCCR.1 of 2018. He was found guilty but insane, and sentenced to detention at the pleasure of the president. Those provisions were declared unconstitutional. It is on the horizon of those orders that the applicant comes before this court. 2. Mental illness has and the criminal justice system in Kenya have been anathema – with the accused persons/convicts suffering from mental illness being treated. The Presidential 15 | P a g e

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Pleasure sentence does not provide the requisite rehabilitation and treatment but turns Prisons into de facto asylums. 3. Under our Constitutional framework, and the current awareness within the judicial system and jurisprudence accused person diagnosed with a mental disorder is a person with disability, a person who, he ought not to be incarcerated for being sick. The jurisprudence is settling 1– that the justice system must be conscious of the fact of mental illness and treat the persons who entrust the justice system with mental illness, or who develop the same in the process – are accorded the appropriate safeguards. 4. The Constitutional court in Kimaru & 17 others (above) already rendered that such a person is a person with disability who assistance. 1 Republic v SOM [2018] eKLR 16 | P a g e ought to be awarded the appropriate

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5. Mental illness can rob a person of their dignity but it ought not be used as a reason to strip one of their dignity rights. The applicant clearly states that the Constitutional court has already paved a way for him – that instead of being held indefinitely he ought to benefit from the declarations made by the court: to be assessed and the trial court to make the appropriate orders. 6. To answer the jurisdictional question raised by the Respondent, it is my considered view that the applicant is not asking this court to sit on appeal of its own decision. Neither is he asking this court to look into correctness/legality/propriety of the sentence. He is simply stating that there are orders of the Constitutional Court that are applicable to him, following the declarations in the judgments he has cited , that require the intervention of this court in order for the same to be effected in his case. 7. In the circumstances, I find in his favour in the view of declaration (h) and (i) in Kimaru & 17 others above. 17 | P a g e

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8. It is therefore in order that the applicant be presented before the Judge in Makueni within 14 days hereof – for the appropriate assessment and subsequent directions. 9. Orders accordingly. Ruling, Dated, signed and delivered Kabarnet this 12th June 2026. Mumbua . T. MATHEKA JUDGE In the presence of: - The Applicant. - Musyoki for the Respondent. - Chrispol Court Assistant. 18 | P a g e virtually at

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