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JudgmentMEHSEN ABDALLA VS The Republic6 min read

MEHSEN ABDALLA VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


THIS MOTION  IS BROUGHT UNDER ARTICLES 27, 29 AND 39(1), 50, 165 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA, RULES 10 OF THE HIGH COURT PRACTICE AND PROCEDURE RULES (“THE MUTUNGA RULES”).  SECTION 362 AND 364 OF THE CRIMINAL PROCEDURE CODE CAP. 75 OF THE LAWS OF KENYA, THE FAIR ADMINISTRATION ACT LAWS OF KENYA, INHERENT POWER AND JURISDICTIONOF THE HONOURABLE COURT, AND ALL OTHER ENABLING PROVISIONS OF THE LAW.

THE APPLICANT IS SEEKING THE DOLLOWING ORDERS: -

  1. SPENT
  2. SPENT
  3. THAT for the purpose of hearing of this Revision the Honorable Court be pleased to call for an examine of the record of the proceedings in CRIMINAL CASE NUMBER E1567 OF 2023 REPUBLIC-VERSUS- MEHSEN ABDALLA for purposes of satisfying itself as to the correctness, legality or propriety of the orders issued on the 24th day of July 2024. Magistrates Court in the infringement of the McNaughthen Rules as enshrined in section 162 of the Criminal Procedure Code Cap. 75 laws of Kenya.
  4. THAT the Honorable Court be pleased to review, vary, reverse, set aside and/or alter the orders rendered by the Honorable G. Olimo Senior Resident Magistrate placing the Applicant- MESHEN ABDALLA on his defense and replace it with an order of cessation of all consequent proceedings in CRIMINAL CASE E1576 0F 2023 REPUBLIC-VERSUS-MESHEN ABDALLA including bot not limited to placing the said MEHSEN ABDALLA on his defense.
  5. THAT for purposes of clarity the Honorable court be pleased to issue an order summoning Medical evidence which seems to be a variance essentially assists the Honorable court arrive at such reasoned decision in tandem with prayer 4 herewith.
  6. THAT the Honorable Court be pleased to issue such further orders in the interest of justice
  7. THAT the costs of this application to be provided for.
  8. THE APPLICATION is grounded on the following FACTS: -
  9. THAT the defense Trial in the Subordinate Court vide CRIMINAL CASE NUMBER E1576 OF 2023 REPUBLIC-VERSUS-MEHSEN ABDALLA is scheduled for the 20th day of November 2024.
  10. THAT the entire process of placing the applicant- MEHSEN ABDALLA a known schizophrenic and bipolar patient was preceded by placing said applicant in custody, having the said applicant examined without the benefit of having his Next Friend, Legal Guardian and/or Advocate attend to him while in-custody. Consequently a skewed medical report was conjured which is absolutely not in tandem with the medical history of the applicant-MEHSEN ABDALLA

(c) THAT inevitably at the inception of charge and consequent taking of plea; the Honourable Subordinate Court was informed of the incapacity of the Applicant which was ignored, the matter progressed for prosecutorial trial despite protests from the Defence- Advocates representing-Applicant- MEHSEN ABDALLA.

  1. (d) THAT in retrospect to paragraph(c) the Learned Trial Magistrate did place the Applicant in police custody to facilitate the said medical process, to wit the Applicant was unaccompanied by a family member and/or otherwise a next friend.
  2. (e) THAT indeed to precisely indicate the malice and accentuated ill-will, the Respondents/Respondents had yet to summon Medical Practitioner responsible for the care of the Applicant.
  3. (f) THAT it is manifestly clear that in the sequence afforded there is yet to be disclosed in the parameters of the Criminal justice system specifically the McNaughten Rules as enshrined in Section 162 Of the Criminal Procedure Code Cap. 75 Laws Of Kenya
  4. (g) THAT there are good and sufficient reasons to warrant grant of the Orders sought herein.
  5. (h) THAT the Respondents/Respondents are yet to substantively respond to the application raised by the Applicants thus resonating with the undeniable fact that the 1st and 2nd Petitioners/Applicants have been discriminated against in light of the obligations bestowed upon the Honorable Court.
  6. (i) THAT to proceed in prosecution of CRIMINAL CASE NUMBER E1576 OF 2023 shall erode public confidence and shall be abhorrent to the Criminal Justice system, conscience and erode Constitutional safeguards that halt such irregularities.

(j) THAT the Respondents/Respondents will not suffer any prejudice in the event the Honorable Court does grant the Orders sought herein.

(k) THAT it is in the larger interest of justice that the Honorable Court does grant the Orders sought herein.

9. The applicant further annexed a supporting affidavit of ABDALLA ALI HUSSEIN and filed submissions.

10. I have seen the report prepared by DR NAFISA AHMED SEIF which has outlined the background and treatment history of the applicant. I have also noted that when the Applicant was examined  whilst in custody , he was not accompanied by a relative, Advocate or next of friend. Clearly someone suffering such an incapacity cannot give a full and proper account of themselves.  It is actually a common practice that any one with any incapacity be it that of minority or mental age such as in this case , be accompanied by a next of friend.

11.There are many authorities around this area of mental health including PHILIP KEMBOI BOR and THE HONOURABLE ATTORNEY GENERAL Where The hon Justice nyakundi stated that ’’Mental illness is a medical condition and it is important that measured evidence be adduced by the expert testimony to assist the trial court to consider the psycho-legal implications. This condition suffered by the petitioner has its validity relating to the blame worthiness of the petitioner’s conduct to justify any imposition of a detention order by the State. The presumption of innocence in Article 50(2)(a) of the Constitution would be infringed whenever there is 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 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. Even though this Petition in respect to  Section 166 of the CPC, the same principles apply to section 162 of the CPC on how to handle such  a person before conviction.  The court must be cautious not to punish an ailment and must be certain that the accused person is competent enough understand  to follow the proceedings.              His state of mind at the time the offence occurred is also relevant.

13. Of course there is the need to balance public safety and personal rights and that is why under section 162 subsections 2,3 and 4  the law is very clear on how to handle such persons .  They  may be released on bond if the family can guarantee there  are safety measures in place to protect both the accused person and other members of society  and if we do not have such measures then the are kept in such other place as the court may determine.   More often than not , most are restrained in prison remand custody,  but that is self defeating.  We should aim at treatment.

14.In the present case, the applicant needs to be properly evaluated and a way forward defined.

  1. I therefore allow the Application and stay the proceedings in Mombasa  CR NUMBER E1576 OF 2023 REPUBLIC-VERSUS-MEHSEN ABDALLA until  the APPLICANT IS EVALUATED   as to HIS MENTAL CAPACITY and a way forwaerd is determined.
  2. THE Applicant to be escorted for a full psychiatric evaluation in before a qualified expert on mental health  and he should  be accompanied by his relatives or next of friend and the investigating officer. If they opt fpr a private expert the family who moved the court are to meet the requisite costs but otherwise they may visit a public institution.
  3. The report be presented to the DPP and the court who should then decide how to handle the matte thereafter.
  4. No orders as to costs.

DATED SIGNED AND DELIVERED  THIS 20TH DAY OF FEBRUARY 2025.

IN THE PRESENCE OF :

THE APPLICANT AND MR EGUNZA ADVOCATE

MR NGIRI, MR SIRIMA AND MS CHEROP FOR DPP

MS BEBOREA COURT ASSISTANT

    MEHSEN ABDALLA VS The Republic MEHSEN ABDALLA VS The Republic