(Suing Through SSG as Next Friend/Guardian) v Republic (Criminal Revision E260 of 2024) [2024] KEHC 14573 (KLR) (21 November 2024) (Ruling)
Neutral citation:
[2024] KEHC 14573 (KLR)
Republic of Kenya
Criminal Revision E260 of 2024
AK Ndung'u, J
November 21, 2024
Between
NCJ (Suing Through SSG as Next Friend/Guardian)
Applicant
and
Republic of Kenya
Respondent
Ruling
1.The Applicant being aggrieved by the orders of 15th August, 2024 in Nanyuki Criminal Case No. E1628 of 2024 moved this court through a notice of motion seeking the following orders;i.Spentii.Spentiii.That the honourable court be pleased to call for and examine the record of Nanyuki MCCR. No. E1628 of 2023 – Republic vs Nicholas Cockyane James before the honourable E.D. Deche where judgment and sentence was delivered on 15th August, 2024 for the purposes of the honourable court satisfying itself of the correctness, legality or propriety of the findings, sentence or order recorded or passed on and as to the regularity of the proceedings and sentence thereof.iv.That the honourable court do find and order that the conviction and sentence by the honourable E.D. Deche was irregular, illegal and improper and to proceed to set the same aside and replace the same with order and directions, setting the Applicant at liberty forthwith to enable the Applicant to be treated by the psychiatrist in the best interest of the Applicant and in the interest of justice or in the alternative, the honourable court do order the Applicant to pay a fine commensurate to the remaining days of the jail term.
2.The application is based on 11 grounds as seen on the face thereof and further supported by the supporting affidavit of Sophy Serena Maria Grattan stating that she knows Nicholas Cockayne James who is a British National and who is currently in Nanyuki G.K. Prison since 15th August,2024.
3.Under provisions of Article 50(7) of the Constitution and in the interest of justice, the court may allow an intermediary to assist a complainant or an accused person to communicate with the court on behalf of the Applicant. Thus, she has accepted and agreed to be a next friend and guardian of the Applicant herein.
4.That in the interest of justice, and the mental condition of the Applicant, the Applicant should have been considered and given the option of a fine under the provisions of Article 159(2) (d) of the Constitution of Kenya. The Applicant has been at Nanyuki Cottage Hospital for counselling and psychiatric treatment.
5.That the honourable court should exercise its discretion and jurisdiction to grant and issue the orders sought herein in the interest of justice.
6.The alleged offence the Applicant was charged with required proof that the Applicant was capable of understanding or knowing or that he ought to have known what he did or the omission he made in the circumstances contemplated under Section 12 of the Penal Code.
7.That the Applicant should benefit from the provisions of Article 47(1), 3(1) of the Constitution and Section 4 of the Fair Administrative Actions Act 2015 by being given the option of fine or being discharged on ground of mental infirmity.
8.This application seeks to serve ends of justice for the Applicant herein who had filed an appeal and application for bond pending appeal, but has since withdrawn the same to allow the Respondent filed grounds of opposition dated 23rd October, 2024 opposing the application on grounds that;
1.The application does not meet the legal requisite threshold for the grant of the orders sought.
2.In this instance the courts revisionary powers are delivered under Section 364(5) of the Criminal Procedure Code.
3.It has not been demonstrated that the conviction and sentencing of the Applicant by the learned trial magistrate was incorrect, illegal or improper.
4.It has not been demonstrated that the proceedings leading up to the conviction and sentencing of the Applicant by the learned trial magistrate were irregular.
5.The sentence passed on the Applicant was lawful and the learned trial magistrate neither acted upon a wrong principle of law nor failed to consider the proper provisions of the law when passing the sentence.
6.The Applicant has not made any basis for this honourable court’s exercise of its discretion in his favour.
7.The application lacks merit, is an abuse of the court process and should accordingly be dismissed.
9.The Respondent also filed their submissions dated 5th November, 2024 and filed on the same day.
a. The application does not meet the legal requisite threshold for the grant of orders sought (grounds 1, 6 and 7)
10.Section 362 of the Criminal Procedure Code, provides that;
11.The section refers to the specific circumstances under which the High Court exercise its revisionary jurisdiction. When considering the limits of a revision application, the court in Republic vs John Wambua Munyao & 3 Others [2018] eKLR observed that;
12.Further, the court in Vincent Echesa Okote vs Republic [2019] eKLR while considering the same issue stated
13.The Applicant in this instance claims that the sentence by the learned trial magistrate was improper, illegal and irregular since he was not given the option of fine. Section 339 of the Penal Code under which the Applicant was charged, provides as follows;
14.The section reproduced above does not provide for the option of a fine once one is convicted for the offence as stated and as such the sentence passed by the trial court was not irregular, illegal or improper to necessitate this court to exercise its powers of revision in accordance with Section 362 of the Criminal Procedure Code.
b. The courts revisionary powers are divested under Section 364 95) of the Criminal Procedure Code (ground 2)
15.Section 364(5) of the Criminal Procedure Code provides that;
16.After sentencing, the Applicant was informed by the trial court of his right to appeal within 14 days which he filed an appeal Nanyuki High Court Criminal Appeal No. E054 of 2024 challenging the conviction and sentence. However, instead of pursuing the same he instead withdrew the same and opted to file this revision.
17.From the application it is clear that the Applicant is inviting the court to exercise its appellate jurisdiction in a revision application.
18.In the case of Reuben Mwangi Nguri vs Republic (2021) eKLR stated;
19.Republic vs James Kiarie Mutungei (2017) eKLR the court observed;
20.Republic vs John Wambua Munyao & 3 Others (2018) eKLR the court while differentiating the appellate and revisionary jurisdiction of this court stated;
21.From the above, the Applicant is restricted in this application to only canvass the correctness, legality, propriety or regularity of the orders he is seeking to review. That the Applicant’s application is an attempt to argue an appeal against sentence under the guise of revision.
c. The sentence passed on the Applicant was lawful and the learned trial magistrate neither acted upon a wrong principle of law nor failed to consider the proper provisions of the law when passing the sentence (ground 3, 4 and 5)
22.Section 339 of the Penal Code under which the Applicant was charged, provides as follows;
23.From the penal section of the offence above, an option of fine is not provided for. From the ruling of the lower court it is clearly shown the factors that were considered before sentencing the Applicant.
24.In the case of Shadrack Kipkoech Kogo vs Eldoret Criminal Appeal No. 253 of 2003 the Court of Appeal status thus;
25.The Court of Appeal, on its part, in Bernard Kimani Gacheru vs Republic [2002] eKLR restated that;
26.The Applicant was represented throughout the trial and at no point was it raised that he was a person of unsound mind. There was no psychiatric report presented indicating that he was unfit to stand trial or plead to the charges he was facing.
27.The Applicant cannot therefore at this stage start introducing new evidence for consideration by this court and the medical reports attached to the Applicant’s application are not mental assessment tests showing that the Applicant is unfit but rather records showing he takes medication.
28.The issue for determination is whether the applicant has established the threshold for a review of the court under section 362 and 364 of the criminal procedure code and if in the affirmative what orders should issue.
29.The High Court’s power of revision is set out in Article 165 (6) and (7) which provides:-6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
30.Section 362 of the Criminal Procedure Code provides:-
31.Section 364(1) of the Criminal Procedure Code provides:-
32.in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence;
33.In the case of any other order other than an order of acquittal alter or reverse the order.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence.
34.This jurisdiction of the High Court was discussed by Odunga J in a persuasive decision of Joseph Nduvi Mbuvi vs Republic [2019] eKLR where he stated;
35.The crux of the matter in the present application is over the sentence passed.
36.In his apparent overzealous quest to protect the interests of the applicant, counsel has appeared to intimate that the plea should be vitiated as the Applicant was not mentally sound at the time of plea. This line has not been persued with conviction. I say so because, should that line have been persued and a positive finding made in that regard, then there would not have been proper proceedings before court under the M’gnaten rules.
37.The parties have submitted at length on the appropriateness of the sentence and the continued stay of the Applicant in prison.
38.The court while sentencing the Applicant stated observed that in mitigation, it was offered that the Applicant was a family man and has aged parents relying on him and further that he was on anti-depressants.
39.Dr Linda Thorpe and Dr. Treza Uduny have made reports on the applicant which confirm the mental disorder attributed to the Applicant. A reading of the report does not in any way suggest that the Applicant did not understand the nature of the act complained of or the processes before court and therefore the plea and the proceedings cannot be vitiated on that ground.
40.The reports however demonstrate that the Applicant suffers from anxiety and depression and ability to regulate his thought process and mood. Dr. Linda indicates that the Applicant’s condition makes him reactionary to situations and unable to control his emotions. He has traits of autism which makes him very sensitive to sounds around him.
41.Dr. Treza confirms that the Applicant had mood disorder, a mental condition that primarily affects his emotional state. This causes sadness, elation/anger.
42.Sentencing is at the discretion of the trial court. The trial court, however, ought to consider the health condition of an accused while passing sentence. Illness alone is not a ticket to avoid a jail term where such is provided in law. But, in my view, the nature of illness matters. While one can serve a term of imprisonment while receiving treatment in the prison facility or regular escorts to hospital, the situation is diametrically different when dealing with mental illness.
43.Prison is a place of order with stringent rules. It is not possible for aa convict with a mental disorder to be expected to follow the rules.
44.Secondly, a mentally unstable convict is a danger to himself and others with whom he is confined with.
45.Looking at the proceedings. The fact of the mental status of the Applicant having been brought to its attention, the court ought to have engaged in a deeper inquiry to have an informed position on sentencing.
46.The failure so to do amounts to an irregularity that this court can cure under the power of revision bestowed on it.
47.am fortified in that finding by the holding of Mativo J (as he then was) in Republic v Anthony Thuo Karimi [2016] eKLR, where he held;
48.From the foregoing , am satisfied that the Applicant has met the threshold of a revisionary order. The order that commends itself is to set aside the sentence of 1 year imprisonment imposed by the trial court and noting that the Applicant has sought an alternative sentence of a fine, substitute thereof an order that the Applicant is sentenced to pay a fine of 50,000 in default to complete the remainder of term but in solitary confinement and continued treatment.
DATED SIGNED AND DELIVERED THIS 21ST DAY OF NOVEMBER, 2024.A.K. NDUNG’UJUDGE