R U L I N G
1. Mwari Munga, the accused person was first arraigned in court on 02/12/2026. She is facing two charges of murder. The homicides are said to have occurred on 14/11/2016. One of the victims is her mother.
2. On that 02/12/2016, she was not required to plead and an order was given that she be escorted to hospital 2 treatment and in a psychiatric evaluation. The report took a while to be prepared and on 17/02/2017 the Judge remarked “ The accused person does not appear to be in her proper senses. Eventually a report dated 22/03/2018 by Dr. C.M. Mwango was filed in –out. It shows that the accused was having epileptic fus while in remand and was violent.
3. The accusd denied any history of mental illness. The doctor concluded:
i. She has no mental illness
ii. She is fit to plead
iii. She should be treated to epilepsy when the matter came to court on 3/4/2017, the state appointed advocate, one miss Achieng – pointed out that she had tried to interview the accused person but she was not responding. The trial Judge then The Honourable Lady Justice D. Chepkwony tried to interview her.
She asked – Habari yako
How are you
Accused – Nani
Court – Unaitwa nani ( what is your name)
Accused – Nani?
The Judge found that the accused person appeared not to be aware of her sorroundings and she called for a further psychiatric evaluation.
4. I have not seen a 2nd report filed before the 15/05/2017, when Lady Justice Ongeri took on the matter. Miss Achieng Advocate stated that she was unable to communicate with ………….The record shows that a duruma interpreter was obtained the charges was then read and to the accused person who pleaded not guilty to the two of them.
5. Miss Ochieng then asked for a social inquiry report and Ms. Mutua for the state agreed to the proposal. The court ordered for one. The court also ordered for medical treatment. The report was filed by R.A. Nyaya. It is dated 10/07/2017. Under the character of the accused person it shows,
“She is known to be mentally challenged and on psychiatric medication. She is need of further psychiatrist review. This is not a suitable case to release”.
6. When the matter came up for hearing on 20/09/2017, Miss Odhiambo stated that her clients the accused, seemed not to be aware of her surroundings. That she was asking for her mother and yet she was charged with murder of her mother. She sought a 2nd psychiatric evaluation. The court granted the order.
7. This report dated 4/10/2017 prepared by the same Dr. Mwangome stated that the accused was
i. fit to plead
ii. That she should continue with the medication to prove fit on ……………..for her mental status.
8. With this report, the court directed that the hearing should go on 01/11/2018. Miss Odhiambo again sought a further psychiatrist examination party at that times, she is unable to communicate with the accused person coherently. In his report dated 2/1/2019, Mr. Mwangome states, The accused has been on treatment for epilepsy and mental illness interest and while in custody. She fit to plead. This led to Miss Odhiambo to seek on an evaluation by any other doctor apart from Dr. Mwangombe. She stated she could not communicate without the accused person in with Kiswahili or duruma and she could not recognize her relatives. The court granted prayer.
9. A report dated 5/08/2020 was availed. It was again by the same Dr. Mwang’ome since he was the only psychiatric in the nearby hospital. In this report, he says that the accused had been on treatment on epilepsy and mental illness since 2016, under his care. That she has always been refusing to be called Mwari saying her name is Rehema. That she had clinic epilepsy and diminished responsibility. Hence not fit to plead or follow proceedings in court.
10. On 30/09/2020, Mr. Muthoni for the DPP sought to have the provisions of Section 262 (4) of the CPC take effect. In her Ruling dated 20/11/2020, the court heed that.
11. Due to the conclusions arising from the mental examination of the accused person as per the reports which have been filed in Court since the year 2017 and more specifically, the report dated 5th August, 2020 this court cannot conclude that the accused person has been fully rendered incapable of following Court proceedings as three psychiatric reports in the past showed that she was fit to plead. In the circumstances, this court is of the view that it would be premature at this point in time to invoke the provisions of Section 162(4) of the Criminal Procedure Code. The said Section states that an accused person shall be detained in safe custody in such a place and manner as it may think fit and the Court shall transmit the court record or a certified copy thereof to the Minister for consideration by the President.
12. In order for this Court to proceed on to make a decision on this case, it is important to subject the accused person to a further mental assessment. I therefore order that the accused person be escorted to Mathari Mental Hospital, in Nairobi. The Officer-in-charge of Shimo-la-Tewa prison shall facilitate the transfer of the accused person to Mathari Mental Hospital for mental examination. The report of the said assessment shall be filed in court.
13. She was eventually escaped from Mathari National Teaching Referral Hospital on 14/12/12 Dr.Ngugi Gatri stated. She could not answer most questions put to her and she appeared to have low hence of intelligence. The Assessment was ………..They required a close relative. Eventually she was again re-examined by Dr. Janbisi Mohamed who stated:
“I interviewed the accused MWARI MUNGA on 26th July 2023 in the presence of CPL DZUYA JOCYE and P.C. SARAH AKINYI, who said that the accused has been well and follows instructions while in custody/remand.
The accused has been in remand since 2016 and on treatment for epilepsy. According to her, she never went to school because of an illness, her 2 siblings however went to school. She used to help with farming at home, however she never used to be given responsibilities that were appropriate for her age. She knows where she lived but cannot describe how to get there, does not understand why she is in remand and cannot tell for how long she has been in remand.
On examination, she was calm and well kept, has a scar on the left side of the face due to a burn injury sustained during an epileptic fit. Her speech was coherent, of normal tone and volume but limited in amount and complexity. Her mood was euthymic, effect was congruent. She had no hallucination or delusions. She was oriented in place and person, not in time. Her attention was fair but intelligence was low. Her general fund of knowledge was very low.
Opinion
i. She has epilepsy which is currently well controlled on treatment.
ii. She has intellectual disability.
iii. She is therefore NOT FIT to plead or follow court proceedings and this is unlikely to change due to the chronic nature of intellectual disability”.
14. Efforts to trace the relatives to accompany her to hospital for further examination was fruitless. The court engaged the DCI and the Probation department. The family members indicated that they are not willing to participate in any hospital process.
15. As outlined above, the matter is now about 8 years in court. Even though the charges were read out, at that time, an order had been given for a 2nd psychiatrist report by an outgoing Judge and the new Judge appeared not to be aware of the order.
16. The accused person has remand in custody but no proceedings going on. The latest two psychiatrist reports show that she cannot allow the court proceedings even the reports by Mr. Mwang’ome which found her fit to plead were contradictory. He mentioned the epilepsy and mental treatment and diminished capacity but said she was fit to plead.
17. The court are not quick to invoke this Section but his is one such case where it is unavoidable. The accused has been shunned by her family and it is totally understable.
18. I therefore make the provisions of Section 162(4) of the CPC and order the (1) A copy of the record be transmitted to the Cabinet Secretary for ……………..by the H.E. The President so that directions are given under Section 162 (5) as to the place and placed of the accused person’s detention.
19. In the meantime, she shall continue to be housed at Shimo la Tewa Women Remand Prison when she has been. In the meantime, the 2 charges are overtaken under Section 87(a) of the Criminal Procedure Code pending any for directions.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this …24th …day of …October…2024
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
……Accused………………………..
……Ms Maina for the State……………………….
……Bebora………………….
HON. LADY JUSTICE W. K. MICHENI
JUDGE