1. Ezekiel Mutwiri hereinafter “the Applicant” was arraigned for the offence of Breaking into a building and committing a felony contrary to section 306 of the Penal Code. Particulars of the offence thereof being that he broke and entered into the plaster office at Samburu County Referral Hospital and stole from therein an electronic Neon Tablet Serial Number 359199780128143 valued at cash Eighty Thousand (80,000/-) the property of Samburu Referral Hospital.
2. In the alternative, he faced the charge of Handling stolen goods contrary to section 322(1)(2) of the Penal Code; and, the 2 nd Charge is Failure to register as a Kenyan Citizen contrary to section 14 of the Registration of Persons Act.
3. The Applicant denied the charges, he was granted bail and the matter slated for pre-trial directions. When the matter came up, the court observed that that the Applicant was recklessly heckling hence directed him to be escorted to hospital for mental assessment. The court suspected he had mental challenges hence could not participate in the trial.
4. Upon psychiatric examination, the learned prosecution counsel informed the court that the Applicant was not fit to stand trial and it had been recommended that he be taken to Mathari Mental Hospital. And the alleged item had been recovered by the police. Following the statement made by the prosecution, the Court delivered Itself thus:
“ The court has duly confirmed that the accused persons Mental assessment report dated 17th July, 2026 that finds him at least at this part in time not suitable to under go trial.
The court has also considered the submissions made by the prosecutor particularly the assertions that the ICT Tablet at the centre of this matter that was alleged stolen by the accused person has been recovered it is however not been produced as an exhibit or even return back to its owner.
By dint of Articles 28 of constitution the accused persons is hereby entitled to his dignity, Article 43(1) (a) grantees his health care and in the present circumstances his mental health has recommended by psychiatrist department of the Samburu county Teaching and Referral hospital.
Just as the constitutions guarantees the accused persons healthy rights,the Mental Health Act at Section 3A further exemplifies this right.
In light of theabove, it is not last for this court that there is a authority of decisions of the Superior Courts that have affirmed the possibility that besides being unconstitutional, it is also a form of criminal in human and inequality treatment to detain any person suffering from a mental illness.
These decision made R-VS- Som [2018]eKLR, Hussan Hussen Yusun -vs-Republic [2016] eKLR, BKJ -v- R [2016] eKLR, and Joseph Malikino Katuta -v- Republic [2016]eKLR as well and Charles Kipkoech chirchir -v-Republic [2021]eKLR.
From the foregoing, the court thus directs and orders that the accused persons be released by the prison authority currently detaining him to the incharge of the Mathare Mental Hospital or any of its branches as an involving patients in line with the mental persons of part VI of the Mental Health Act. And a report of the same file back in court within the next 14days and in any case not later than 7th August, 2026.
Regarding the presence charges, the court is guided by section 87(a) will suo moto have the same withdrawn against the accused person.
As it relates to the allegedly stolen ICT gadget the court will direct and ordered that the same be returned back to its owners. The owners to acknowledge receipt and the investigating officer to file a report back to court with the next 7 days and in any case not later than 27th July, 2026 14days right of appeal. Its so ordered..”
5. In a nutshell, the court emphasized legal protection of mentally ill persons pursuant to the Constitution and the Mental Health Act and confirmed the Applicant’s mental unfitness to stand trial. It ordered him to be taken to Mathari Teaching and Referral Hospital. Further, it ordered the ICT device to be returned to the complainant; and. lastly terminated the charges.
6. Revisionary jurisdiction of the High Court involves reviewing and correcting the decision made by the subordinate court to ensure justice is served. The power emanates from the Constitution and Statute.
7. Section 362 of the Criminal Procedure Code (CPC) provides thus:
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
8. Revisionary power is exercised based on significant issues raised. The Court considering issues on revision does not assess factual findings of the lower court unless it is clear that the court misapprehended issues before it.
9. An accused person has a constitutional right to comprehend criminal proceedings brought against him so as to follow the same and adequately defend himself. In the instant matter, it was confirmed that the Appellant was incapacitated by virtue of his mental status.
10. Statute provides for an instance where the accused is found to be of mental incapacity. Section 162 of the CPC provides:
(1) When in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness.
(2) If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case.
(3) If the case is one in which bail may be taken, the court may release the accused person on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person, and for his appearance before the court or such officer as the court may appoint in that behalf.
(4) If the case is one in which bail may not be taken, or if sufficient security is not given, the court shall order that the accused be detained in safe custody in such place and manner as it may think fit, and shall transmit the court record or a certified copy thereof to the Cabinet Secretary for consideration by the President.
11. Section 164 of the CPC is also relevant, it provides:
Wherever a trial is postponed under section 162 or section 280, the court may at any time, subject to the provisions of section 163, resume trial and require the accused to appear or be brought before the court, whereupon, if the court considers the accused to be still incapable of making his defence, it shall act as if the accused were brought before if for the first time.
12. This is a case where the trial court proceeded pursuant to the provisions of the Mental Health Act which was erroneous. It was a misapprehension of the laid down procedure. This was an illegality which must be corrected.
13. In the result, I call to this court the order of the trial court, which I quash and set aside. The matter shall be placed before the trial court on 03/08/2026 for compliance with Section 162 of the Criminal Procedure Code.
14. It is so ordered.
2. In the alternative, he faced the charge of Handling stolen goods contrary to section 322(1)(2) of the Penal Code; and, the 2 nd Charge is Failure to register as a Kenyan Citizen contrary to section 14 of the Registration of Persons Act.
3. The Applicant denied the charges, he was granted bail and the matter slated for pre-trial directions. When the matter came up, the court observed that that the Applicant was recklessly heckling hence directed him to be escorted to hospital for mental assessment. The court suspected he had mental challenges hence could not participate in the trial.
4. Upon psychiatric examination, the learned prosecution counsel informed the court that the Applicant was not fit to stand trial and it had been recommended that he be taken to Mathari Mental Hospital. And the alleged item had been recovered by the police. Following the statement made by the prosecution, the Court delivered Itself thus:
“ The court has duly confirmed that the accused persons Mental assessment report dated 17th July, 2026 that finds him at least at this part in time not suitable to under go trial.
The court has also considered the submissions made by the prosecutor particularly the assertions that the ICT Tablet at the centre of this matter that was alleged stolen by the accused person has been recovered it is however not been produced as an exhibit or even return back to its owner.
By dint of Articles 28 of constitution the accused persons is hereby entitled to his dignity, Article 43(1) (a) grantees his health care and in the present circumstances his mental health has recommended by psychiatrist department of the Samburu county Teaching and Referral hospital.
Just as the constitutions guarantees the accused persons healthy rights,the Mental Health Act at Section 3A further exemplifies this right.
In light of theabove, it is not last for this court that there is a authority of decisions of the Superior Courts that have affirmed the possibility that besides being unconstitutional, it is also a form of criminal in human and inequality treatment to detain any person suffering from a mental illness.
These decision made R-VS- Som [2018]eKLR, Hussan Hussen Yusun -vs-Republic [2016] eKLR, BKJ -v- R [2016] eKLR, and Joseph Malikino Katuta -v- Republic [2016]eKLR as well and Charles Kipkoech chirchir -v-Republic [2021]eKLR.
From the foregoing, the court thus directs and orders that the accused persons be released by the prison authority currently detaining him to the incharge of the Mathare Mental Hospital or any of its branches as an involving patients in line with the mental persons of part VI of the Mental Health Act. And a report of the same file back in court within the next 14days and in any case not later than 7th August, 2026.
Regarding the presence charges, the court is guided by section 87(a) will suo moto have the same withdrawn against the accused person.
As it relates to the allegedly stolen ICT gadget the court will direct and ordered that the same be returned back to its owners. The owners to acknowledge receipt and the investigating officer to file a report back to court with the next 7 days and in any case not later than 27th July, 2026 14days right of appeal. Its so ordered..”
5. In a nutshell, the court emphasized legal protection of mentally ill persons pursuant to the Constitution and the Mental Health Act and confirmed the Applicant’s mental unfitness to stand trial. It ordered him to be taken to Mathari Teaching and Referral Hospital. Further, it ordered the ICT device to be returned to the complainant; and. lastly terminated the charges.
6. Revisionary jurisdiction of the High Court involves reviewing and correcting the decision made by the subordinate court to ensure justice is served. The power emanates from the Constitution and Statute.
7. Section 362 of the Criminal Procedure Code (CPC) provides thus:
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
8. Revisionary power is exercised based on significant issues raised. The Court considering issues on revision does not assess factual findings of the lower court unless it is clear that the court misapprehended issues before it.
9. An accused person has a constitutional right to comprehend criminal proceedings brought against him so as to follow the same and adequately defend himself. In the instant matter, it was confirmed that the Appellant was incapacitated by virtue of his mental status.
10. Statute provides for an instance where the accused is found to be of mental incapacity. Section 162 of the CPC provides:
(1) When in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness.
(2) If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case.
(3) If the case is one in which bail may be taken, the court may release the accused person on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person, and for his appearance before the court or such officer as the court may appoint in that behalf.
(4) If the case is one in which bail may not be taken, or if sufficient security is not given, the court shall order that the accused be detained in safe custody in such place and manner as it may think fit, and shall transmit the court record or a certified copy thereof to the Cabinet Secretary for consideration by the President.
11. Section 164 of the CPC is also relevant, it provides:
Wherever a trial is postponed under section 162 or section 280, the court may at any time, subject to the provisions of section 163, resume trial and require the accused to appear or be brought before the court, whereupon, if the court considers the accused to be still incapable of making his defence, it shall act as if the accused were brought before if for the first time.
12. This is a case where the trial court proceeded pursuant to the provisions of the Mental Health Act which was erroneous. It was a misapprehension of the laid down procedure. This was an illegality which must be corrected.
13. In the result, I call to this court the order of the trial court, which I quash and set aside. The matter shall be placed before the trial court on 03/08/2026 for compliance with Section 162 of the Criminal Procedure Code.
14. It is so ordered.