1. The applicant in this matter moved the court under Article 50(2)(p), 6, 165 of the Constitution 2010, Sections 333(2), of the Criminal Procedure Code and Section 4 of the Probation of Offenders Act seeking orders that;-
i. THAT, the Honourable Court be pleased to consider the directives in Isaac Ndegwa Kimaru & 17 others v Attorney General & another; Kenya National Human Rights and Equality Commission (Interested Party) [2022] eKLR and revise the sentence of President's Pleasure the Applicant is serving to time served.
ii. THAT, the Honourable Court be pleased to make appropriate orders and directions upon taking into account the mental status of the Applicant during trial and the period the Applicant has been detained in Prison at the President's Pleasure.
iii. THAT, the Honourable Court be pleased to consider time spent in custody and when giving sentence to run from the date of arrest pursuant to section 333 (2) of the Criminal Procedure Code.
iv. THAT, the Applicant be exempted from paying costs as he is a pauper ( spent )
v. THAT, the Honourable Court be pleased to grant any other order (s) that this Honourable Court may deem fit, fair and expedient.
2. The application was based on the following grounds;-
a. THAT, the Applicant was charged before the High Court at Milimani for the offence of Murder contrary to Section 203 as read with 204 of the
Penal Code vide Criminal Case Number 70 of 2012.
b. THAT, the Applicant was charged, tried, convicted and sentenced to
Presidential Pleasure by the Honourable Lady Justice Jessy Lesit (J)
on the 6th September, 2016 on the grounds that he was "guilty but
insane."
c. THAT, following the orders in Isaac Ndegwa Kimaru & 17 others v
Attorney General & another; Kenya National Human Rights and
Equality Commission (Interested Party) [2022] eKLR, the Applicant
seeks leave of this Honourable Court to revise his sentence to a
determinate one and possibly time served as he has stayed in Prison for
a period of twelve (12) years.
d. THAT, the same 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).
3. The application was further supported by the affidavit of JOED MURIU KARUGU (the applicant) who deponed that he is now of sound mind, a Prisoner convicted of Murder, serving a President's Pleasure sentence and care of Kamiti Maximum Prison, Postal Office Box Number 65501-00607, Nairobi.
4. The Applicant further deposed that he was charged before the High Court at Milimani for the offence of Murder contrary to Section 203 as read with 204 of the Penal Code vide High Court Criminal Case Number 70 of 2012. 3.
5. The applicant was tried, convicted and sentenced to be held at the Pleasure of the President by the Honourable Lady Justice Jessy Lesit (J) on the 6th September, 2016 on the ground that he was 'guilty but insane'.
6. The applicant further deposed that he did not appeal to the Court of Appeal.
7. The applicant went on to state that his family informed him that they would help him appeal to the Court of Appeal through an advocate but they later informed him that they couldn't afford an Advocate.
8. The applicant further averred that the sentence he is serving goes against Articles 25, 27, 28, and 50 of the Constitutional of Kenya 2010.
9. He further asserted that the nature of sentence that he is currently serving was held in Isaac Ndegwa Kimaru & 17 others v Attorney General & another; Kenya National Human Rights and Equality Commission (Interested Party) [2022] eKLR to be unconstitutional and the affected individuals were directed to seek revisions of their sentences from their respective trial Courts.
10. The applicant therefore urged this Honourable Court to revise his sentence to a determinate sentence considering time served.
11. This Honorable court called for a psychiatrist report to determine whether the applicant is mentally sound and fit for release in order for the court to consider reviewing his sentence.
12. The court also summoned the applicants brother PETER MBUGA KAGURU and examined him on oath to ascertain whether the family was ready to receive the applicant back into society should the court review his sentence and set him free.
13. The applicant’s brother confirmed to the court that the applicant was mentally ill when the incident happened.
14. The applicants brother further told this court that as a family they were praying for his release into his hands. The brother further told the court that the applicant was left under his care by his late mother and that he was willing to have him stay with him and provide good care to avoid a repeat of such an incident as the one that led to his arrest and incarceration.
15. The said Peter Karugu pledged that he would take care of him stating that the period of almost 13 years that the applicant has been in custody has been traumatic to them as a family.
16. The called for a social inquiry report in respect of the applicant which was prepared and presented to the court by MS KANYANGI Probation and after care Officer.
17. At the hearing of the application Mr. Mogere Prosecution Counsel submitted that Section 166 of the Criminal Procedure Code was declared unconstitutional. Counsel cited the case of PKB & Another Vs. DPP & Another PET. 45/2023 Eldoret High Court.
18. Counsel stated that the court faced with similar circumstances such as in this matter, directed that the accused undergoes a psychiatric evaluation and if declared fit to be released to society, he ought to be released.
19. The jurisprudence obtaining at the moment in this country according to counsel is that where it appears to the court that at the time of the commission of the offense the accused was of unsound mind, the proper finding should be that of not guilty by reason of insanity.
20. The prosecution urged this court to consider the report by the Psychiatrist and based on it, the accused applicant should be able to benefit and be released back to his family for care.
21. The court in addition to the psychiatrist report received a report from the probation and aftercare service.
22. The officer established that the family is closely-knit, and the siblings have consistently visited the offender in prison since the beginning of his incarceration. They attend all significant occasions and continue to offer him continuous support.
23. The officer further established that the petitioner grew up in a stable family environment under the care and support of both parents.
24. The applicant is said to have dropped out of school , and moved to Nairobi in search of employment and worked as a casual laborer, mainly in masonry. At one point, he was arrested under unclear circumstances and severely beaten, after which his mental health began to deteriorate. Apart from his history of mental illness, the petitioner is reported to be in generally good physical health.
25. According to the probation officer the petitioner has a history of mental illness which may have impaired his judgement, contributing to the attack and the subsequent fatality of the victim. Nevertheless, he acknowledges his wrongdoing and pleads for leniency.
26. The officer also confirmed that the elder brother to the accused has offered to reside with him and cater for his basic needs.
27. The officer further informed the court that the victim was a pastor and had previously established his own church, Chosen Church. Following his death, his wife initially moved to her maternal home and later relocated to an undisclosed location and efforts to trace her were unsuccessful.
28. The victim’s family despite their grief for the loss of deceased, the family acknowledges that they cannot undo the past and have expressed that they have no objection to the petitioner's release.
29. The area Chief, confirmed that the petitioner has no known history of violence, and it remains unclear what may have prompted him to act as he did. Despite his history of mental illness, he is regarded as a person of good character. He asserts that the community harbors no hostility towards him should he be released. Furthermore, he has been incarcerated long enough to have learned valuable lessons, albeit through a difficult experience.
30. The probation officer concluded her report stating that the petitioner is 61 years old, the seventh of nine siblings, and comes from a close-knit family with no history of criminality. Although the applicant has a history of mental illness he is generally in sound physical health. The applicants’ family is prepared to support his reintegration by providing accommodation and meeting his basic needs upon release.
31. The petitioner is said to have shown an understanding of his wrongdoing and has expressed a desire for rehabilitation in the community. The family and community are supportive of his reintegration, and there are plans in place for his accommodation and welfare upon release.
32. The court further called for and received a psychiatrist report from MATHARI NATIONAL TEACHING & REFERRAL HOSPITAL. The report reads;-
REF: REPUBLIC OF KENYA VERSUS JOED MURIU KARUGU
MISC. CRIMINAL APPLICATION NO: E366 OF 2024.
Thank you for referring the above named accused for Mental Status Assessment and report for his suitability to be released back to society. I examined him today in the presence of a Nursing Officer and a Prison Officer.
He gives history of being on treatment for Schizophrenia since 1987 and for the past 10 years, he has been compliant on treatment while in custody. Today, he presented as a middle-aged man, calm, kempt and dressed in prisons uniform with handcuffs. He was co-operative and rapport was well established. He had good eye contact and his speech was coherent, of normal tone and volume. He had normal, mood and was well oriented in time, place and person. He denied any thought or perceptual disturbances and had good attention, concentration, memory and judgement. He had abstract thinking and insight.
OPINION:
From today's assessment, Joed Muriu Karugu is mentally stable enough to be for release back to society, incorporating the Probation Officers and Social assessments and recommendation. He is also advised to continue with medication and regular follow up at the nearest Psychiatric Unit.
MATHARI HOSPITAL FORENSIC CLINIC DEPT.
P.O. Box 40665, NAIROBI
DR. JACKLINE OCHIENG
CONSULTANT PSYCHIATRIST.
33. The Psychiatrist and the probation officer returned positive reports in respect of the applicant. The two favor the release of the applicant back to society.
34. The court in determining this matter is acutely aware of the fact that it must address the issue safety concerns to the general public before ordering the release of the applicant. The caution that must precede a determination for release is that the applicant must be capable of being reintegrated back into society and that there needs to be a clear family support structure for such an applicant to be released.
35. The declaration of unconstitutionality of Section 166 placed on the shoulders of this court the duty to ensure that persons who were convicted and sentenced under the provisions of the Section have their sentences reviewed to align them with the decision of the court.
36. In the case of Wakesho v Republic (Criminal Appeal 8 of 2016) [2021] KECA 223 (KLR) (3 December 2021) (Judgment) the Court of Appeal held : “It is clear from the few decisions of the High Court we have sampled that judicial opinion is divided on the constitutionality of some of the provisions of section 166 of the Criminal Procedure Code. As we have mentioned, beyond passing reference, counsel did not address us on this issue which certainly requires to be fully canvassed. It is a matter on which the state of the law is clearly unsatisfactory and in dire need of reform and the Attorney General should take immediate steps to initiate reform.
We can only add our voice to the many on the reforms that are needed to the provisions of section 166 of the Criminal Procedure Code in two respects. First, in our view, it is a legal paradox to find a person guilty but insane, in light of the requirements of criminal responsibility and culpability, which require that for a person to be criminally liable, it must be established beyond reasonable doubt that he or she committed the offence or omitted to act voluntarily and with a blameworthy mind. A finding of not guilty for reason of insanity would be more legally sound in circumstances where an accused person is suffering from a defect of reason caused by disease of the mind at the time of commission of an offence.
In addition, it is our view that the court should be granted discretion to impose appropriate measures to suit the circumstances of each case, upon a finding of not guilty for reason of insanity.
Second, the subs-stratum of the provisions as regards the right to fair trial in criminal cases in article 50(2) of the Constitution is that an accused person should be fully informed, understands, and thereby effectively participates in a criminal trial. To go through the motions of a trial whose nature and effect an accused person does not from the outset understand or appreciate, and further still to be convicted on the basis of such a trial as is provided for in section 166 of the Criminal Procedure Act, is in our view manifestly unfair in light of our current constitutional dispensation. We therefore direct the Registrar of the Court send a copy of this judgment for the attention of the Attorney General. Enough said on that.
For purposes of the present appeal, however, we are satisfied that the learned judge ought to have made a special finding of guilty but insane. We therefore allow the appeal. We quash the conviction and set aside the sentence of death. We substitute therefor, a special finding that the appellant did the act charged but he was insane at the time he did it. We order that the appellant, who has been in custody since his arrest on May 18, 2012, shall immediately be taken to a mental hospital for medical treatment where he shall remain until such time as a psychiatrist in charge of the hospital certifies that he is no longer a danger to society or to himself.
37. The court in this application has been informed that the applicant was at the time of the commission of the offence suffering from a decease of the mind that rendered himself incapable of appreciating his actions and could therefore not be able to comprehend even the proceedings leading to his arrest and incarceration.
38. It is the view of this court that it is unjust to hold a man who committed an offence whilst in that state of mind in custody indefinitely even after he has healed or substantially improved and is capable of being reintegrated back into society. The fact of unsoundness of mind of the present applicant seems to have been known even by relatives before the incident. The community is not hostile to his release and the family has indicated willingness to take him back into their custody and take care of him.
39. The applicant is a man who clearly needs care outside the prison facilities.
40. The application for review of sentence is therefore allowed in exercise of this court’s authority under Article 165 (3) (b), (d) (i) and (ii). The continued detention of the applicant indefinitely in exercise of the power under Section 166 of the Criminal Procedure Code is unconstitutional and amounts to a breach of his Constitutional right to liberty under Article 29 (a) and (f). The punishment is unconstitutional inhumane and degrading considering that the applicant could not have formed the necessary mens rea to commit the offence.
41. It is degrading and utterly inhumane to hold a fellow human being indefinitely yet what he is accused of having committed happened while he was mentally unwell.
42. In a functioning democracy, a range of orders, including hospital orders (with or without time limits), supervision orders, or absolute discharge if the person is no longer a danger to the public should be the most progressive way deal with mentally ill persons more so when they are shown to have recovered.
43. The applicant, if he continues to be held in prison custody, shall be denied his right to attain the highest attainable standard of health. The family through Mr. Peter Mbugua Kaguru has undertaken to receive him and take good care of him. The court is therefore inclined to order the immediate release of the applicant from prison custody into the hand of Mr. Peter Mbugua Kaguru.
44. The applicant’s brother is ordered to ensure that the applicant receives good care and protection. The applicant should continue with his daily medication as advised by the Psychiatrist and be escorted for regular follow up at the nearest Psychiatrist Unit.
45. It is so ordered.
i. THAT, the Honourable Court be pleased to consider the directives in Isaac Ndegwa Kimaru & 17 others v Attorney General & another; Kenya National Human Rights and Equality Commission (Interested Party) [2022] eKLR and revise the sentence of President's Pleasure the Applicant is serving to time served.
ii. THAT, the Honourable Court be pleased to make appropriate orders and directions upon taking into account the mental status of the Applicant during trial and the period the Applicant has been detained in Prison at the President's Pleasure.
iii. THAT, the Honourable Court be pleased to consider time spent in custody and when giving sentence to run from the date of arrest pursuant to section 333 (2) of the Criminal Procedure Code.
iv. THAT, the Applicant be exempted from paying costs as he is a pauper ( spent )
v. THAT, the Honourable Court be pleased to grant any other order (s) that this Honourable Court may deem fit, fair and expedient.
2. The application was based on the following grounds;-
a. THAT, the Applicant was charged before the High Court at Milimani for the offence of Murder contrary to Section 203 as read with 204 of the
Penal Code vide Criminal Case Number 70 of 2012.
b. THAT, the Applicant was charged, tried, convicted and sentenced to
Presidential Pleasure by the Honourable Lady Justice Jessy Lesit (J)
on the 6th September, 2016 on the grounds that he was "guilty but
insane."
c. THAT, following the orders in Isaac Ndegwa Kimaru & 17 others v
Attorney General & another; Kenya National Human Rights and
Equality Commission (Interested Party) [2022] eKLR, the Applicant
seeks leave of this Honourable Court to revise his sentence to a
determinate one and possibly time served as he has stayed in Prison for
a period of twelve (12) years.
d. THAT, the same 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).
3. The application was further supported by the affidavit of JOED MURIU KARUGU (the applicant) who deponed that he is now of sound mind, a Prisoner convicted of Murder, serving a President's Pleasure sentence and care of Kamiti Maximum Prison, Postal Office Box Number 65501-00607, Nairobi.
4. The Applicant further deposed that he was charged before the High Court at Milimani for the offence of Murder contrary to Section 203 as read with 204 of the Penal Code vide High Court Criminal Case Number 70 of 2012. 3.
5. The applicant was tried, convicted and sentenced to be held at the Pleasure of the President by the Honourable Lady Justice Jessy Lesit (J) on the 6th September, 2016 on the ground that he was 'guilty but insane'.
6. The applicant further deposed that he did not appeal to the Court of Appeal.
7. The applicant went on to state that his family informed him that they would help him appeal to the Court of Appeal through an advocate but they later informed him that they couldn't afford an Advocate.
8. The applicant further averred that the sentence he is serving goes against Articles 25, 27, 28, and 50 of the Constitutional of Kenya 2010.
9. He further asserted that the nature of sentence that he is currently serving was held in Isaac Ndegwa Kimaru & 17 others v Attorney General & another; Kenya National Human Rights and Equality Commission (Interested Party) [2022] eKLR to be unconstitutional and the affected individuals were directed to seek revisions of their sentences from their respective trial Courts.
10. The applicant therefore urged this Honourable Court to revise his sentence to a determinate sentence considering time served.
11. This Honorable court called for a psychiatrist report to determine whether the applicant is mentally sound and fit for release in order for the court to consider reviewing his sentence.
12. The court also summoned the applicants brother PETER MBUGA KAGURU and examined him on oath to ascertain whether the family was ready to receive the applicant back into society should the court review his sentence and set him free.
13. The applicant’s brother confirmed to the court that the applicant was mentally ill when the incident happened.
14. The applicants brother further told this court that as a family they were praying for his release into his hands. The brother further told the court that the applicant was left under his care by his late mother and that he was willing to have him stay with him and provide good care to avoid a repeat of such an incident as the one that led to his arrest and incarceration.
15. The said Peter Karugu pledged that he would take care of him stating that the period of almost 13 years that the applicant has been in custody has been traumatic to them as a family.
16. The called for a social inquiry report in respect of the applicant which was prepared and presented to the court by MS KANYANGI Probation and after care Officer.
17. At the hearing of the application Mr. Mogere Prosecution Counsel submitted that Section 166 of the Criminal Procedure Code was declared unconstitutional. Counsel cited the case of PKB & Another Vs. DPP & Another PET. 45/2023 Eldoret High Court.
18. Counsel stated that the court faced with similar circumstances such as in this matter, directed that the accused undergoes a psychiatric evaluation and if declared fit to be released to society, he ought to be released.
19. The jurisprudence obtaining at the moment in this country according to counsel is that where it appears to the court that at the time of the commission of the offense the accused was of unsound mind, the proper finding should be that of not guilty by reason of insanity.
20. The prosecution urged this court to consider the report by the Psychiatrist and based on it, the accused applicant should be able to benefit and be released back to his family for care.
21. The court in addition to the psychiatrist report received a report from the probation and aftercare service.
22. The officer established that the family is closely-knit, and the siblings have consistently visited the offender in prison since the beginning of his incarceration. They attend all significant occasions and continue to offer him continuous support.
23. The officer further established that the petitioner grew up in a stable family environment under the care and support of both parents.
24. The applicant is said to have dropped out of school , and moved to Nairobi in search of employment and worked as a casual laborer, mainly in masonry. At one point, he was arrested under unclear circumstances and severely beaten, after which his mental health began to deteriorate. Apart from his history of mental illness, the petitioner is reported to be in generally good physical health.
25. According to the probation officer the petitioner has a history of mental illness which may have impaired his judgement, contributing to the attack and the subsequent fatality of the victim. Nevertheless, he acknowledges his wrongdoing and pleads for leniency.
26. The officer also confirmed that the elder brother to the accused has offered to reside with him and cater for his basic needs.
27. The officer further informed the court that the victim was a pastor and had previously established his own church, Chosen Church. Following his death, his wife initially moved to her maternal home and later relocated to an undisclosed location and efforts to trace her were unsuccessful.
28. The victim’s family despite their grief for the loss of deceased, the family acknowledges that they cannot undo the past and have expressed that they have no objection to the petitioner's release.
29. The area Chief, confirmed that the petitioner has no known history of violence, and it remains unclear what may have prompted him to act as he did. Despite his history of mental illness, he is regarded as a person of good character. He asserts that the community harbors no hostility towards him should he be released. Furthermore, he has been incarcerated long enough to have learned valuable lessons, albeit through a difficult experience.
30. The probation officer concluded her report stating that the petitioner is 61 years old, the seventh of nine siblings, and comes from a close-knit family with no history of criminality. Although the applicant has a history of mental illness he is generally in sound physical health. The applicants’ family is prepared to support his reintegration by providing accommodation and meeting his basic needs upon release.
31. The petitioner is said to have shown an understanding of his wrongdoing and has expressed a desire for rehabilitation in the community. The family and community are supportive of his reintegration, and there are plans in place for his accommodation and welfare upon release.
32. The court further called for and received a psychiatrist report from MATHARI NATIONAL TEACHING & REFERRAL HOSPITAL. The report reads;-
REF: REPUBLIC OF KENYA VERSUS JOED MURIU KARUGU
MISC. CRIMINAL APPLICATION NO: E366 OF 2024.
Thank you for referring the above named accused for Mental Status Assessment and report for his suitability to be released back to society. I examined him today in the presence of a Nursing Officer and a Prison Officer.
He gives history of being on treatment for Schizophrenia since 1987 and for the past 10 years, he has been compliant on treatment while in custody. Today, he presented as a middle-aged man, calm, kempt and dressed in prisons uniform with handcuffs. He was co-operative and rapport was well established. He had good eye contact and his speech was coherent, of normal tone and volume. He had normal, mood and was well oriented in time, place and person. He denied any thought or perceptual disturbances and had good attention, concentration, memory and judgement. He had abstract thinking and insight.
OPINION:
From today's assessment, Joed Muriu Karugu is mentally stable enough to be for release back to society, incorporating the Probation Officers and Social assessments and recommendation. He is also advised to continue with medication and regular follow up at the nearest Psychiatric Unit.
MATHARI HOSPITAL FORENSIC CLINIC DEPT.
P.O. Box 40665, NAIROBI
DR. JACKLINE OCHIENG
CONSULTANT PSYCHIATRIST.
33. The Psychiatrist and the probation officer returned positive reports in respect of the applicant. The two favor the release of the applicant back to society.
34. The court in determining this matter is acutely aware of the fact that it must address the issue safety concerns to the general public before ordering the release of the applicant. The caution that must precede a determination for release is that the applicant must be capable of being reintegrated back into society and that there needs to be a clear family support structure for such an applicant to be released.
35. The declaration of unconstitutionality of Section 166 placed on the shoulders of this court the duty to ensure that persons who were convicted and sentenced under the provisions of the Section have their sentences reviewed to align them with the decision of the court.
36. In the case of Wakesho v Republic (Criminal Appeal 8 of 2016) [2021] KECA 223 (KLR) (3 December 2021) (Judgment) the Court of Appeal held : “It is clear from the few decisions of the High Court we have sampled that judicial opinion is divided on the constitutionality of some of the provisions of section 166 of the Criminal Procedure Code. As we have mentioned, beyond passing reference, counsel did not address us on this issue which certainly requires to be fully canvassed. It is a matter on which the state of the law is clearly unsatisfactory and in dire need of reform and the Attorney General should take immediate steps to initiate reform.
We can only add our voice to the many on the reforms that are needed to the provisions of section 166 of the Criminal Procedure Code in two respects. First, in our view, it is a legal paradox to find a person guilty but insane, in light of the requirements of criminal responsibility and culpability, which require that for a person to be criminally liable, it must be established beyond reasonable doubt that he or she committed the offence or omitted to act voluntarily and with a blameworthy mind. A finding of not guilty for reason of insanity would be more legally sound in circumstances where an accused person is suffering from a defect of reason caused by disease of the mind at the time of commission of an offence.
In addition, it is our view that the court should be granted discretion to impose appropriate measures to suit the circumstances of each case, upon a finding of not guilty for reason of insanity.
Second, the subs-stratum of the provisions as regards the right to fair trial in criminal cases in article 50(2) of the Constitution is that an accused person should be fully informed, understands, and thereby effectively participates in a criminal trial. To go through the motions of a trial whose nature and effect an accused person does not from the outset understand or appreciate, and further still to be convicted on the basis of such a trial as is provided for in section 166 of the Criminal Procedure Act, is in our view manifestly unfair in light of our current constitutional dispensation. We therefore direct the Registrar of the Court send a copy of this judgment for the attention of the Attorney General. Enough said on that.
For purposes of the present appeal, however, we are satisfied that the learned judge ought to have made a special finding of guilty but insane. We therefore allow the appeal. We quash the conviction and set aside the sentence of death. We substitute therefor, a special finding that the appellant did the act charged but he was insane at the time he did it. We order that the appellant, who has been in custody since his arrest on May 18, 2012, shall immediately be taken to a mental hospital for medical treatment where he shall remain until such time as a psychiatrist in charge of the hospital certifies that he is no longer a danger to society or to himself.
37. The court in this application has been informed that the applicant was at the time of the commission of the offence suffering from a decease of the mind that rendered himself incapable of appreciating his actions and could therefore not be able to comprehend even the proceedings leading to his arrest and incarceration.
38. It is the view of this court that it is unjust to hold a man who committed an offence whilst in that state of mind in custody indefinitely even after he has healed or substantially improved and is capable of being reintegrated back into society. The fact of unsoundness of mind of the present applicant seems to have been known even by relatives before the incident. The community is not hostile to his release and the family has indicated willingness to take him back into their custody and take care of him.
39. The applicant is a man who clearly needs care outside the prison facilities.
40. The application for review of sentence is therefore allowed in exercise of this court’s authority under Article 165 (3) (b), (d) (i) and (ii). The continued detention of the applicant indefinitely in exercise of the power under Section 166 of the Criminal Procedure Code is unconstitutional and amounts to a breach of his Constitutional right to liberty under Article 29 (a) and (f). The punishment is unconstitutional inhumane and degrading considering that the applicant could not have formed the necessary mens rea to commit the offence.
41. It is degrading and utterly inhumane to hold a fellow human being indefinitely yet what he is accused of having committed happened while he was mentally unwell.
42. In a functioning democracy, a range of orders, including hospital orders (with or without time limits), supervision orders, or absolute discharge if the person is no longer a danger to the public should be the most progressive way deal with mentally ill persons more so when they are shown to have recovered.
43. The applicant, if he continues to be held in prison custody, shall be denied his right to attain the highest attainable standard of health. The family through Mr. Peter Mbugua Kaguru has undertaken to receive him and take good care of him. The court is therefore inclined to order the immediate release of the applicant from prison custody into the hand of Mr. Peter Mbugua Kaguru.
44. The applicant’s brother is ordered to ensure that the applicant receives good care and protection. The applicant should continue with his daily medication as advised by the Psychiatrist and be escorted for regular follow up at the nearest Psychiatrist Unit.
45. It is so ordered.