Indefinite detention at the president’s pleasure, without judicial oversight, contravened the principle of judicial independence
Headnote: The petitioner challenged the constitutionality of section 166 of the Criminal Procedure Code (CPC), which allowed indefinite detention of persons found guilty but insane at the President's pleasure. The High Court held that section 166 of the Criminal Procedure Code was unconstitutional as it violated the petitioner's rights under the Constitution, particularly the right to a fair trial, human dignity, and non-discrimination. The indefinite nature of detention at the President’s pleasure, without judicial oversight, was contrary to the independence of the judiciary as guaranteed by Article 160 of the Constitution. The court also found that the petitioner had been denied adequate mental health treatment, infringing on his rights under articles 47 and 50.

Bor v Director of Public Prosecutions & another (Petition E045 of 2023) [2024] KEHC 4588 (KLR) (11 April 2024) (Judgment)
Neutral Citation: [2024] KEHC 4588 (KLR)
High Court at Eldoret
RN Nyakundi, J
April 11, 2024
Reported by John Ribia
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Constitutional Law – fundamental rights and freedoms – rights to life, fair trial, right to fair administrative action, equality and freedom from discrimination, human dignity, access to justice, and the freedom and security of the person - sentence of detention at the President’s leisure – verdict of guilty but insane - whether section 166 of the Criminal Procedure Code, which mandated detention at the President’s pleasure for those found guilty but insane, violated the rights to a rights to life, fair trial, right to fair administrative action, equality and freedom from discrimination, human dignity, access to justice, and the freedom and security of the person – Constitution of Kenya, articles Article 22,24,25,26(1) 27, 28, 29, 48, 50 (2) (b), and 160; Criminal Procedure Code (cap 75) sections 162 and 166; Penal Code (cap 63) sections 203 and 204
Constitutional Law – separation of powers – judicial powers – sentencing powers - judiciary vis-à-vis exective - sentence of detention at the President’s leisure – verdict of guilty but insane - whether the delegation of judicial sentencing to the executive under section 166 of the Criminal Procedure Code breached the principle of separation of powers – Constiution of Kenya article 160; Criminal Procedure Code (cap 75) sections 162 and 166; Penal Code (cap 63) sections 203 and 204

Brief facts
The petitioner, Philip Kemboi Bor, was charged with murder in 1988. Due to his mental condition (triggered by cerebral malaria), he was found guilty but insane and sentenced under section 166 of the CPC to be detained at the President’s pleasure. Bor has been incarcerated for over 34 years, during which his mental state has reportedly improved. He filed a petition challenging Section 166 of the CPC, asserting that it violates his right to a fair trial, protection from inhumane treatment, and access to justice. His mental health was re-evaluated in 2023, and he was found mentally fit. The petitioner sought his release and the declaration of Section 166 as unconstitutional.

Issues
  1. Whether section 166 of the Criminal Procedure Code, which mandated detention at the President’s pleasure for those found guilty but insane, violated the rights to a rights to life, fair trial, right to fair administrative action, equality and freedom from discrimination, human dignity, access to justice, and the freedom and security of the person.
  2. Whether prolonged detention of the petitioner without periodic reviews constituted cruel, inhumane, or degrading treatment.
  3. Whether the delegation of judicial sentencing to the executive under section 166 of the Criminal Procedure Code breached the principle of separation of powers.
Held
  1. The anchor for this interpretive approach by the Kenyan people when the Constitution was promulgated in 2010 was traceable to article 20 of the Constitution.
  2. Section 166 of the Criminal Procedure Code granted the executive the powers that flew in the face of the doctrine of separation of powers as it allows the president to subsume the role of the judicial officer.The President was granted the power of mercy. In the event that a person was found to be guilty but insane, it was upon the president to order the detention of such person in a mental hospital or prison awaiting a report from the officer in charge of the institution. Upon the report being completed it was to be submitted to the president who may give orders he thought fit. That created a scenario where the president was given a judicial officer role. However, sentencing was by and large a judicial function and therefore, section 166 of the Criminal Procedure code flew against that doctrine.
  3. The impugned sections were already declared unconstitutional in several decisions. The administration of criminal justice in Kenya was embodied under article 50 of the Constitution on fair trial rights which were not derograble in any circumstances. To the extent, the law guaranteed rights of an accused person at various levels of the criminal process. One of the touchstone was the principle of the presumption of innocence until proven guilty.
  4. The Constitution had balanced the rule of law and the crime control models The Constitution implicitly provided that rights and fundamental freedoms emanating from the nature of mankind were inviolable and inalienable unless they fit within the spectrum of the limitation clause.
  5. It was a statement of the due process of law in article 29 of the Constitution which provided that no one shall be deprived of his/her liberty except on such grounds and in accordance with such procedure as established by law.
  6. One was presumed innocent until the contrary was proved. Presumption of innocence was confined to the mens rea, being guilty on the part of the perpetrator, which pre-supposed the presence of mental faculties which enabled the suspect or accused to have willed his/her crime. The other crucial criteria was actus reus elements. That was constituted by an act or deed or commission or omission or in some cases the occurrence of and event in which the offender was involved and it may include surrounding circumstances, consequences and results of the acts or omission. Intention of a suspect or an accused person indicted by the Director of Public Prosecution of the offence under article 157 (6) and (7) of the Constitution covered the case of a person who knew that the achievement of his purpose to commit the crime would necessarily cause the expected result in question in the absence of some supervening event. In Kenya’s Penal system, towards advancement of the criminal justice administration, a person was not generally liable to be found guilty on convicted of either non-serious or serious crime where the prohibited result was not only un-intended but also unforeseen. Mens rea therefore was at the core of both procedural and substantive justice.
  7. The evidence of the prosecution should be examined against the evidence offered by the accused in addition to any available defences known in law such as the defence of insanity. A distinction ought to be drawn in a trial of an accused person under article 50(1) of the Constitution between the factual guilt, that was what the accused did as a matter of fact, with the requisite mens rea, and the legal guilt being what the prosecution was able to establish beyond a reasonable doubt and in conformity with due process that the accused performed the criminal act.
  8. Those were the difficulties which if anything, the presumption of innocence rests as a constitutional imperative. The reality practically of course was that once the suspect of a criminal offence was arraigned before a court of law, the mind-set of many players from the National Police Service, the investigating agencies, the EACC and even the judicial officers in the criminal justice system, was that the suspect was probably guilty. The attitude was one of the very urgency in which the business of plea taking in non-serious offences was undertaken with the dangers inherent of a threat to infringement of the provisions of article 50 of the Constitution on fair trial rights. It was inevitable that many of the suspects in the criminal justice system were ignorant of the criminal law defences to an offence, for example self-defence in section 17, provocation in section 207 and 208, excusable or justified homicide as contemplated in article 26(3) of the Constitution and other enabling statutes. A common allegorical personification depicts justice as a woman who was holding a set of balance scales, comprising a balanced beam and two pans. The evidence of the prosecution was to be weighed on the pan of the scales, with evidence for the accused being weighed on the other.
  9. In due process, some of the challenges that may arise was whether that accused person in the dock, a preliminary inquiry has been carried out by the trial court, as to his/her fitness to stand trial. Every person adjudged before the criminal court in Kenya was presumed not to suffer from a mental illness or mental defect unless the contrary was proved by way of a psychiatrist medical report, yet the person may lack the capacity to appreciate the wrongfulness of his/her actions or act in accordance with an appreciation of his/her personal circumstances of the wrongfulness of his/her acts of omission or commission.
  10. The judgment of the trial court, the petitioner was found guilty of murder but declared insane. It was conceivable from the record that the petitioner suffered from a serious psychiatric disorder triggered by cerebral malaria. Mental illness was a medical condition and it was important that measured evidence be adduced by the expert testimony to assist the trial court to consider the psycho-legal implications. That condition suffered by the petitioner had its validity relating to the blame worthiness of the petitioner’s conduct to justify any imposition of a detention order by the State.
  11. The presumption of innocence in article 50(2)(a) of the Constitution would be infringed whenever there was a possibility of a conviction despite the existence of a reasonable doubt and that of the same characteristics of a person presumed to suffer from a mental illness or defect to render him not criminally liable for the offence. If taken within the context of article 25(a), the fundamental rights and freedoms from torture and cruel, inhuman or degrading treatment or punishment which may not be limited in our constitutional dispensation was weighed in against the State by having him detained at the pleasure of the President.
  12. The pre-rogative of mercy under article 133 of the Constitution for the last 34 years, seemed not to have reviewed his case with a neutral and open-minded approach about the petitioner’s innocence for reason of mental infirmity. Primarily, the petitioner presumably was detained without parole unlike other prisoners whose sentences are reviewed from time to time to receive pardon from His Excellency the President. The court strongly believed that the executive has extensive discretion to define crimes and defences that may be brought to its attention and to allocate the burden of persuasion appropriately to affect the degree of culpability.
  13. What the impugned section did was to import compulsory incarceration or institutionalization of the accused person apparently for his own safety and the public at large. The implication was that in the manner it was executed it threatened or infringed the provisions of article 29 of the Constitution which provided that every person had the right to freedom and security of the person which included not to be deprived of freedom arbitrarily or without just cause, not to be tortured in any way and not to be treated or punished in a cruel, inhuman or degrading way. The court order of detaining the petitioner in the actual sense deprived him of his right to freedom and security. During the period under review for 34 years, the petitioner had not been serving any sentence known in law in view of the findings by the judge that he was mentally insane to appreciate the initial charge of murder preferred against him.
  14. The conception of human dignity as an intrinsic value on account of the detention by the executive order of the precedency in compliance to the scheme detailed in the impugned provisions manifested infringement and violations guaranteed in article 28 of the constitution. The right to be treated with dignity was lost. There could be no argument that the state took upon itself to order the detention of the petitioner while fully aware that he suffered from a disability of the mind at the time he went through the criminal proceedings.
  15. The Constitution on most cases demanded of the impartial entity may it the executive or the legislature to act within the bounds of article 10 of the Constitution on National values and Principle of Governance. The symbolic function of the head of state helped the court to understand and explain an apparent anomaly with section 166 of the Criminal Procedure Code in so far as the right to be detained at the president’s pleasure was concerned. There was every reason to state that the code in which provisions under section 166 were anchored ought to be revisited by the legislature with an endeavour to have them comply with the Constitution.
  16. As much as the country has largely been implementing the provisions under section 166 of the CPC the owners and purpose of it was inevitably unconstitutional. The only purpose of rationality was to have the petitioner detained in terms of his own security and that of society on a highly debatable and contra version matter of policy on the right to presumption of innocence and the blameworthy state of mind with which the petitioner might have attributed to commit the offence which the trial court conclusively stated that he was not criminally liable for reason of mental state with intersect with legal notions of insanity.
  17. Before trial, an accused person was required to go for a mental assessment test to determine if he was fit to stand trial. A finding of guilty but insane was ironic as the fact that he was insane would mean that he did not have the capacity to understand the charge sufficiently in order to answer to it. It follows that putting such a person through a hearing is a breach of his constitutional rights. The provisions of section 166 of the CPC were unfair. Section 166 of the CPC the direct reverse of the provisions founded in article 22,24,25,26(1) 27, 28, 29, 48, and 50 of the Constitution. Even article 133 of the Constitution on the power of mercy contained provisions which were constitutionally responsive on the Bill of Rights but which were never taken advantage of in the formulation of insanity as established by the trial court that the petitioner though prosecuted, found guilty and convicted him for the offence of murder he suffered from mental illness at the time of the commission of the offence to form the necessary mens-rea to commit the crime.
Petition allowed.
Orders
  1. Declaration was issued that the provisions of section 166 of the Criminal Procedure Code of the Laws of Kenya were contrary to the provisions of article 22,24,25,26(1) 27, 28, 29, 48, 50 (2)(b) and 160 of the Constitution and were null and void.
  2. The review of the conviction of guilty but insane be made and the said conviction be replaced with a finding of not guilty for reason of insanity.
  3. Order issued directing the 2nd respondent to initiate the process of amending section 166 of the Criminal Procedure Code.
  4. The petitioner in view of section 166 of the Criminal Procedure Code as read with article 133 of the Constitution did not seem to have a really possibility of release by an exercise of prerogative of mercy and therefore sufficient cause to have disproportionate detention reviewed and set aside.
  5. Order made that the officer commanding prisons Eldoret that hosted the petitioner should escort the petitioner to Moi Teaching and Referral Hospital for a psychiatric report. That would inform the court on the possibility of the petitioner’s right to access health rights to be guaranteed by the state.


Kenya Law
Case Updates Issue 011/24-25
Case Summaries
CIVIL PRACTICE AND PROCEDURE Section 17(2)(d) of the National Employment Authority Act was discriminatory for setting an age limit of persons that can be employed as Director General of National Employment Authority to be less than 35 years

Headnote: The petitioner contended that specifying the age limit of persons that can be employed as Director General of National Employment Authority to be less than 35 years of age was expressly discriminatory as it was based on constitutionality prohibited ground of age. The court found that section 17(2)(d) was discriminatory and unconstitutional, violating the principle of equal access to employment opportunities. The court declared the provision null and void.

Mboya v Attorney General; National Employment Authority (Interested Party) (Petition E335 of 2023) [2024] KEHC 2240 (KLR) (Constitutional and Human Rights) (7 March 2024) (Judgment)
Neutral citation: [2024] KEHC 2240 (KLR)

High Court at Nairobi
LN Mugambi, J

Reported by John Ribia

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Constitutional Law – – fundamental rights and freedoms – equality and freedom from discrimination – provision of the law that set an age limit on persons that can be appointed in a parastatal - whether section 17(2)(d) of the National Employment Authority Act was discriminatory for setting an age limit of persons that can be employed as Director General of National Employment Authority to be less than 35 years - Constitution of Kenya article 27; National Employment Authority Act (cap 227) section 3(e) and 17(2)(d)

Brief Facts
The petitioner contended that specifying the age limit of persons that can be employed as Director General of National Employment Authority to be less than 35 years of age was expressly discriminatory as it was based on constitutionality prohibited ground of age. The respondent on other hand insisted that it was in furtherance of affirmative action principle provided for in article 27(6) of the Constitution by way of legislative intervention.

Issues:

  1. Whether section 17(2)(d) of the National Employment Authority Act was discriminatory for setting an age limit of persons that can be employed as Director General of National Employment Authority to be less than 35 years

Held:

  1. The High Court under article 165(3)(d)(i) of the Constitution was inter alia conferred with the jurisdiction to determine the question of whether any law was inconsistent with or in contravention of the Constitution. The same raised in the instant petition in regard to section 17(2)(d) of the National Employment Authority Act. Although the matter was being addressed by Parliament, the provision was still intact even as at the time of determining the petition. The contention that the matter was beyond adjudicatory powers of the High Court was not tenable as determination not constitutionality of a statute lay within the jurisdiction of the court under article 165(3)(d)(i) of the Constitution. The constitutionality of section 17(2)(d) of the National Employment Authority Act was not a non-justiciable issue.
  2. In the interpretation of Statutes, the general presumption was that every Act of Parliament was constitutional so that the responsibility lay on the person alleging the contrary. The same test would apply to cases where one was alleging discrimination. However, if the discrimination was based on a specified ground specifically prohibited by the Constitution the constitution, then discrimination was presumed. Discrimination on grounds of age was explicitly proscribed by the Constitution. In addition, the National Employment
  3. Authority Act listed one of its objectives under section 3(e) as being to facilitate and promote equity and diversity, and eliminate discrimination in the employment of Kenyans. It was a paradox that the same Act went ahead to make a daring move of dividing Kenyans in the working age population along the line of age by isolating a certain age category for grant of an employment opportunity while excluding the other from that opportunity in flagrant violation of an express constitutional provision. Affirmative action was not an excuse for violating an undoubted constitutional principle however well-meaning it might be. Section 17(2)(d) of the National Employment Authority Act contravened the principle of providing equal access of opportunities to Kenyans in the working age population. It was discriminatory, unconscionable, null and void.

Petition allowed.
Orders

  1. Declaration issued that section 17(2)(d) of the National Employment Authority contravened article 27(4) of the Constitution of Kenya and was unconstitutional, null and void.
  2. Each Party was to bear its own costs.
FAMILY LAW

Impact of the death of a donor of Public Attorney in an ongoing suit.

Headnote:The appellants challenged the decision of the Environment and Land Court (ELC) and the Magistrate's Court, both of which held that a power of attorney was extinguished upon the death of the donor but that the cause of action survived. The respondent, acting as a donee of a power of attorney for his deceased mother, filed a suit for rental income. After his mother’s death, the respondent obtained letters of administration ad litem and applied for substitution in the suit. The appellants contended that the suit had abated. Both courts found the cause of action had survived and substitution was proper. The Court of Appeal dismissed the appeal, holding that although the power of attorney had been extinguished, the substitution was valid and could proceed.

Meru & 3 others v Meru (Civil Appeal 9 of 2018) [2023] KECA 1600 (KLR) (27 October 2023) (Judgment)
Neutral citation: [2023] KECA 1600 (KLR)
Court of Appeal at Nyeri
W Karanja, J Mohammed, and LK Kimaru, JJA

Reported by John Ribia

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Agency Law power of attorney – survival of power of attorney after death of donor - whether the power of attorney could survive the death of the donor - whether a legal suit initiated by a donee of a Power of Attorney abated upon the death of the donor.
Civil Practice and Procedure –abatement - substitution of parties – substitution of a party bearing a power of attorney after the death of the done - whether substitution of substitution of a party bearing a power of attorney could be lawfully done after the death of the donee, and under what conditions - Civil Procedure Rules, 2010 (Cap 21 Sub Leg) order 24 rule 1; 3

Brief facts:
The respondent, acting under a general power of attorney granted by his mother, filed a suit seeking recovery of rent owed to his mother. During the pendency of the suit, the donor passed away. The respondent obtained limited letters of administration and applied for substitution as the plaintiff in the suit. The appellants contended that the suit had abated and that the power of attorney had been extinguished by the donor’s death. The Magistrate's Court and the High Court rejected the appellants’ claims, holding that while the power of attorney ceased upon the donor's death, the cause of action survived, and the respondent could substitute himself as the plaintiff. Dissatisfied the appellant filed the instant appeal.

Issu es:

  1. Whether the power of attorney could survive the death of the donor
  2. Whether a legal suit initiated by a donee of a Power of Attorney abated upon the death of the donor.
  3. Whether substitution of substitution of a party bearing a power of attorney could be lawfully done after the death of the donee, and under what conditions.

Held:

  1. The power of attorney was extinguished upon death of the donor. In the instant case, when the respondent’s mother died, the power of attorney that anchored him to file the suit on behalf of his mother was dislodged. The suit did not nonetheless sink and the respondent was able to take quick action to salvage it and put it back on course. The expiry of the power of attorney did not kill the suit as intimated by the appellants.
  2. A suit abated 12 months after the death of a party if no substitution had been done. The suit had not abated as the cause of action, which was not personal to the deceased, survived her. The respondent was appointed as legal representative to that estate within 12 months and sought to be substituted as the plaintiff within the 12 months.
  3. The donor should have been named as the plaintiff in the suit followed by the name of the respondent, so that upon the death of his mother, and after obtaining the letters of administration ad litem, the substitution would have been flawless. The appellants would not be before the instant court telling the court that the respondent could not substitute himself. That was a technicality. It was not fatal and was found to be curable under article 159(2)(d) of the Constitution which provided that justice shall be administered without undue regard to procedural technicalities. The argument proffered by the appellants to prevent the respondent from pursuing his mother’s claim was flippant and the same was properly dismissed.

Appeal dismissed with costs to the respondent.