The High Court in Garissa has set free a sexual assault convict after filing a special finding of guilty but insane.
While releasing the convict, Garissa High Court judge Justice John Nyabuto noted that issue regarding persons found guilty but insane has been a subject of consideration by our courts yet with no common determination,
“However, the majority of the decisions tend to lean towards discharge upon certification of the accused by a medical expert that he is recovered and therefore not a danger to himself nor society,” the judge indicated.
The judge referred to the decision by Waweru Kiarie in Hassan Hussein Yussuf V Republic (supra) declared Section 166 of the CPC unconstitutional and held that the president had no role in the Judicial process. “To the Judge a discharge was appropriate,” he noted.
In reference, the judge quoted a decision by the Nairobi court in exercise of its jurisdiction to hear any question in respect to the interpretation of the constitution under Article 165(3)(d).
In Kimaru & 17 others v Attorney General & another; Kenya National Human Rights and Equality Commission (Interested Party) (Petition 226 of 2020) [2022] KEHC 114 (KLR) (Constitutional and Human Rights) (1 February 2022), Justice Mrima J declared sections 162(4)&(5), 166(2),(3),(4),(5),(6)&(7) and 167(1)(a)(b),(2)(3)&(4) of the Criminal Procedure Code unconstitutional for contravening various Articles of the constitution.
The court noted that the special finding of “guilty but insane” resulted in the convicted person being held at the pleasure of the President. “Such holding interfered with the independence of the Judiciary and the doctrine of separation of powers.”
In the current matter, the convict was charged with sexual assault to a minor in a magistrate court.
He was subjected to a mental assessment and found unfit to stand trial on account of mental infirmity, he was referred to Mathari Mental Hospital for treatment.
Upon being certified fit to stand trial, he pleaded not guilty. After the full trial, the accused was found guilty and consequently, the court entered a special finding of guilty but insane.
The trial magistrate delivered a sentence where he committed the applicant at Mathari Mental Hospital for treatment and rehabilitation for a period not exceeding six years. The decision prompted the filing of the appeal.
In his decision, Justice Nyabuto stated that “Mathari hospital is not a place for detention of convicts but a treatment facility which upon recovery refers the convict back to court for necessary action.”
He added that Mathari hospital has done its work and certified him fit to join society hence they cannot return him back. “It is the obligation of the society to accommodate people suffering from mental infirmity after recovery.”
In determination he directed that the accused herein shall be discharged unconditionally under Section 35(1) of the penal code.
