Republic VS JARED OCHIENG OGUMBE Republic VS JARED OCHIENG OGUMBE

The accused person in this matter is charged with the offence of murder contrary to Section 203 as read with 204 of the Penal Code.
It is alleged that on the 10th August 2024 at Blackwood Lounge Embakasi Sub county in Nairobi County, the accused person murdered Nicholas Koech.
The accused person has not been able to take plea for he is said to be unfit for trial.
The prosecution through MS. Njoroge prosecution counsel informed the court that there was need for the accused person to be escorted to hospital on 15^thJanuary 2025 for psychiatric review. Ms. Njoroge relied on a report dated 19^thNovember 2024 declaring the accused person unfit to plead.
The defence counsel insisted that the prosecution had delayed in ensuring the psychiatric review is done and on the 24^thJanuary 2025 proceed to argue their bail application dated 23rd January 2025 .
The Notice of Motion is supported by the Affidavit of Jared Ochieng Ogumbe the accused in this matter.
The accused person through MR.EKISA argued that he is not a flight risk as deposed by the investigating officer NO.67474 CPL JOSEPHAT MAKAI of DCI Embakasi in his affidavit in opposition to bail dated 29^th November 2024.
According to the defence the accused person has a well known place of abode and that the state is opposed to his release on Bail because they had difficulties in tracing and arresting the accused person.
The accused is said to be a mechanic and that he would occasionally leave his place of work to go to pick vehicles from customers in different places a fact that may have contributed to the difficulty the police had in tracing him.
The defence counsel submitted that the accused person was arrested within Umoja Area within the jurisdiction of this court thus he had not taken flight as alleged by the prosecution.
The accused person’s counsel further submitted that the sheer difficulty in effecting the arrest of the accused should not be a ground for court to deny bail.
The accused is said not to have any passport thus according to the defence he has no means of leaving the country.
Further the accused is said to be a family man with 5 (five) children and that he is the sole bread winner of the family thus his continued incarceration is causing untold suffering to his family.
The defence has urged this court to release the accused on bond and impose terms and conditions that would ensure the accused attends court as and when required to do so. The accused has expressed willingness to abide by any such conditions that the court may impose.
On the issue of the seriousness of the offence that has been raised by the prosecution , the accused person’s counsel submitted that all offences are Bailable in Kenya today and as such the court should not place undue weight that consideration.
The accused person has so far spent over 3 months in custody and plea has not been taken because of delay on the part of the state.
The defence contends that if the period so far spent in custody before plea is anything to go by, the accused person if not released on Bail may have to remain in custody for a very long time yet he has the right to be presumed innocent under Article 50 of the Constitution.
The state vehemently opposed the release of the accused on Bail insisting that the right to bail is not absolute and that the court has a discretion over the matter.
The prosecution counsel argued that after the incident leading to the death of the deceased the accused person fled from Nairobi to his home in Homa bay County.
The state however conceded that he was arrested 2 months later in Kayole Nairobi.
MS. DELA counsel for the prosecution further urged the court to deny bail even though the accused person had a fixed abode in Nairobi but could not be traced for 2 months before his arrest.
The prosecution counsel further submitted that the accused person had not given details of the place he would be residing in upon release on Bail.
The defence in response urged the court to impose a condition that the accused person provides the details of his abode before release on bail.
The court has duly considered the rival arguments by counsel for both parties.
It is clear to this court that the state is opposed to release of the accused solely on the basis that he is flight risk.
The prosecution agrees that he was arrested within Nairobi after about 2 months and that he indeed has a known place of abode in Nairobi.
Both counsel failed to address the court on the critical question of what should a court should do with an accused person who is said to be unfit to to plead by a psychiatrist.
In the considered view of this court the proper course would not be to release the accused person on Bail.
Under the Mental Health (Amendment) Act, 2022 the rights of persons with Mental illness have been clearly set out.
The Act amended the Principal Act by introducing a new part which provides as follows:-

3. Every person with mental illness
has the right to—
(a) fully participate in the affairs of
the community in any position
suitable and based on the person’s
interests and capabilities;
(b) access medical, social and legal
services for the enhancement of
the protection of the rights of the
person under the Constitution;
(c) protection from physical and
mental abuse and any form of
discrimination and to be free f rom
exploitation;
(d) take part in activities that promote
the person’s social, physical,
mental and emotional well-being;
and
(e) receive reasonable care, assistance
and protection from their family
and the State.

The court therefore notes that pursuant to the new provisions under Part II of the Act a person said to be having a mental illness has the right under Section 3 (b) of the Mental Health Amendment Act to access medical, social and legal services for the enhancement of the protection of his rights under the Constitution.
Further, such a person is entitled to receive reasonable care, assistance and protection from the family and the state.
The accused person is now in the hands of the State thus the state has the primary duty to ensure that while in his custody he receives reasonable care, assistance and protection.
The care that the accused person presently requires is care that the state can provide through the Mathare Mental Hospital which is within the jurisdiction of this court.
It would be unwise at this stage to release a person who is said to be mentally unfit to go back to the society for he could as well be a danger to his family and the community at large.
The court therefore is not inclined to pronounce itself on the issue of bail at this stage.
The order that would serve the best interests of the accused would be an order committing him to Mathare Mental Hospital for treatment and care until such time he shall be declared fit to stand trial by the consultant psychiatrist of the Hospital.
In order to ensure that the accused person is not forgotten and left to remain in the Mental Health Hospital for an indeterminate periods, this court directs that there shall be monthly mentions of this matter to monitor the progress of the accused.
Accordingly the Deputy Registrar of this court shall extract the order of this court and ensure that it is served upon the prison authorities immediately to facilitate the immediate transfer of the accused to Mathare Mental Hospital.
The matter shall be mentioned on a date to be agreed between the parties to monitor progress of the accused.
It is so ordered.