REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL CASE NO. E007 OF 2023
(Coram: Andayi W. F., J.)
REPUBLIC
VERSUS
ABDULAZIZ SWALEH…………………………… ACCUSED PERSON
SENTENCE
1. Abdulaziz Swaleh was charged with the offence of murder contrary to section 203 (1) as read with section 204 of the Penal Code (Cap. 63) Laws of Kenya that on 21/1/2023 at Bondeni estate in Mvita Sub-County within Mombasa County he unlawfully killed Sharifa Ali Salim. He was tried for the offence and the court returned a verdict of guilty but insane.
2. This matter now comes up for sentencing after receiving the pre-sentence report and taking mitigation.
3. I have considered the mitigation by the accused person through his counsel on record Mr. Nabil. Learned counsel pleads that the court should pass a lenient sentence upon the accused person as he is remorseful and the pre-sentence report is partly in his favour. Learned counsel pleads that the accused person is a relative of the deceased and the victims and he had never been at loggerheads with the law. Learned counsel also pleads that since the offender suffers from a mental sickness, he should be granted a non-custodial sentence so that so that he can proceed with his treatment.
4. I have also considered the pre-sentence report and the victim impact statement filed in court. The report indicates that the accused person appreciates the gravity of the offence and that he is remorseful. I have also noted the circumstances under which the offence was committed and the conduct of the accused person thereafter. He says in the report that he could not appreciate what happened to the victim until later after his arrest when he was informed that he had killed his grandmother.
5. The report indicates that the accused person is 24 years old and has no family of his own as he is not yet married. The issue that runs through the report from the family and community is that he suffers from mental illness which is episodic. Sometimes he is well off and sometimes he is unwell from the mental illness. However, they reported no threats from the offender in the past and do not foresee any in future. They were traumatized by the killing of their kin but they were willing to forgive the offender as one of their kin as well. They asked the court to exercise lenience in sentencing.
6. The report recommends that the offender be given further psychiatric treatment as well as rehabilitation from mild drug and substance abuse.
7. I have considered both the mitigating and aggravating factors in determining the sentence.
8. The manner in which an offender who has been found guilty but insane should be dealt with is provided for under section 166 of the CPC. The Court of Appeal while considering the import of this section in the case of Wakesho v Republic [2021] KECA 223 (KLR) said thus:
“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.”
9. In the said case, the Court of Appeal after substituting the conviction for murder and with a special finding of guilty but insane ordered that the appellant, who has been in custody since his arrest on May 18, 2012, to be immediately taken to a mental hospital for medical treatment where he would remain until such time as a psychiatrist in charge of the hospital certified that he was no longer a danger to society or to himself.
10. I am bound to follow that decision and consequently this court orders that the offender, who has been in custody since his arrest on 21/1/2023 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.
11. Orders accordingly.
Judgment delivered, dated and signed in Open Court and Virtual Platform, Teams this 20th day of May 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused in person present at Shimo La Tewa prison.
Nabil for the accused person.
Ms Vallerie h/b for Mr. Ngiri for the Respondent
Ummu h/b for Etropia - Court Assistant
HON. ANDAYI W. F.
JUDGE
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL CASE NO. E007 OF 2023
(Coram: Andayi W. F., J.)
REPUBLIC
VERSUS
ABDULAZIZ SWALEH…………………………… ACCUSED PERSON
SENTENCE
1. Abdulaziz Swaleh was charged with the offence of murder contrary to section 203 (1) as read with section 204 of the Penal Code (Cap. 63) Laws of Kenya that on 21/1/2023 at Bondeni estate in Mvita Sub-County within Mombasa County he unlawfully killed Sharifa Ali Salim. He was tried for the offence and the court returned a verdict of guilty but insane.
2. This matter now comes up for sentencing after receiving the pre-sentence report and taking mitigation.
3. I have considered the mitigation by the accused person through his counsel on record Mr. Nabil. Learned counsel pleads that the court should pass a lenient sentence upon the accused person as he is remorseful and the pre-sentence report is partly in his favour. Learned counsel pleads that the accused person is a relative of the deceased and the victims and he had never been at loggerheads with the law. Learned counsel also pleads that since the offender suffers from a mental sickness, he should be granted a non-custodial sentence so that so that he can proceed with his treatment.
4. I have also considered the pre-sentence report and the victim impact statement filed in court. The report indicates that the accused person appreciates the gravity of the offence and that he is remorseful. I have also noted the circumstances under which the offence was committed and the conduct of the accused person thereafter. He says in the report that he could not appreciate what happened to the victim until later after his arrest when he was informed that he had killed his grandmother.
5. The report indicates that the accused person is 24 years old and has no family of his own as he is not yet married. The issue that runs through the report from the family and community is that he suffers from mental illness which is episodic. Sometimes he is well off and sometimes he is unwell from the mental illness. However, they reported no threats from the offender in the past and do not foresee any in future. They were traumatized by the killing of their kin but they were willing to forgive the offender as one of their kin as well. They asked the court to exercise lenience in sentencing.
6. The report recommends that the offender be given further psychiatric treatment as well as rehabilitation from mild drug and substance abuse.
7. I have considered both the mitigating and aggravating factors in determining the sentence.
8. The manner in which an offender who has been found guilty but insane should be dealt with is provided for under section 166 of the CPC. The Court of Appeal while considering the import of this section in the case of Wakesho v Republic [2021] KECA 223 (KLR) said thus:
“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.”
9. In the said case, the Court of Appeal after substituting the conviction for murder and with a special finding of guilty but insane ordered that the appellant, who has been in custody since his arrest on May 18, 2012, to be immediately taken to a mental hospital for medical treatment where he would remain until such time as a psychiatrist in charge of the hospital certified that he was no longer a danger to society or to himself.
10. I am bound to follow that decision and consequently this court orders that the offender, who has been in custody since his arrest on 21/1/2023 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.
11. Orders accordingly.
Judgment delivered, dated and signed in Open Court and Virtual Platform, Teams this 20th day of May 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused in person present at Shimo La Tewa prison.
Nabil for the accused person.
Ms Vallerie h/b for Mr. Ngiri for the Respondent
Ummu h/b for Etropia - Court Assistant
HON. ANDAYI W. F.
JUDGE