1.The petition subject of this judgment is a passionate plea by and on behalf of persons who suffer from mental challenges and who are held in various prisons in Kenya at the pleasure of the President.
2.Some of the inmates underwent full trial and at the end they were found to have been suffering from mental challenges at the time they committed the offences. Special findings were made that they were ‘guilty but insane’ and were subsequently committed to be detained in prisons at the President’s pleasure.
3.Some inmates have not been tried or did not complete their trials on account of the mental challenges and the courts made like orders that they be held at the President’s pleasure in various prisons.
4.The inmates are now before court challenging the constitutionality of the various provisions of the law providing for holding of inmates in prisons at the President’s pleasure.
5.Isaac Ndegwa Kimaru, Philip Mueke Maingi, Peter Kariuki Muibai, Peter Thanga Kago and Hesbon Onyango Nyamweya are the 1st to 5th petitioners herein respectively. They are all prisoners at the Kamiti Maximum Prison having been convicted for various offences and are serving different sentences.
6.The 1st to 5th petitioners aforesaid, are among Lawyers and Law students providing legal aid to indigent prisoners within Kamiti Prison under the sponsorship of the Africa Prisons Project, a registered Non-Governmental Organisation, whose objective is to bring hope and dignity to men, women and children in Kenyan Prisons.
7.The 6th petitioner, IMM, was arrested on the February 16, 2013 and charged for the offence of Murder contrary to section 203 as read with section 204 of the Penal Code in Criminal Case No 57 of 2013 in the High Court at Nairobi.
8.At the end of a full trial, a special finding was made and he has since March 8, 2018 been detained at Kamiti Prison at the pleasure of the President
9.IMM, the 6th petitioner, has been reviewed around four times by June 2019. The last Medical Report declared him fit and healthy. As a result, a recommendation was made to the President through the Power of Mercy Committee. Since then, IMM, is at the prison awaiting for his fate. He is currently pursuing undergraduate studies leading to the award of Bachelor of Laws degree from the University of London under the sponsorship of the African Prisons Project.
10.The 7th petitioner, JKM, epileptic then, aged 43 years was arrested on the April 10, 2014 and charged with the offence Murder which was later substituted with a charge of manslaughter in Criminal Case No 382 of 2014 at the Kitui Law Court. After a full trial, a special finding was made on the December 10, 2015 and was subsequently detained under the presidential pleasure.
11.The trial court found that the petitioner, JKM, suffered an epileptic fit when he committed the offence in issue. He has been severally reviewed and declared fit and healthy. He is also awaiting to hear from the President having made a request through the Power of Mercy Committee.
12.The 8th petitioner, BMK, is aged 44 years and was charged with the offence of cutting down crops in Criminal Case No 432 of 2008 at the Kandara Law Courts. A special finding was made on the 8th May, 2009 and was committed to prison to be held at the pleasure of the President. He is currently still undergoing review at the Prison.
13.The 9th petitioner, PKI, is aged 58 years. He was charged on the April 19, 2012 with the offence of murder in Criminal Case No 31 of 2012. A special finding was reached on the April 9, 2019 and was committed to Prisons to be held at the President’s pleasure.
14.The petitioner has never been reviewed since he was committed to Prison.
15.The 10th petitioner is IHK who is now aged 43 years. He was charged with the offence of defilement contrary to section 8 (1)(3) of the Sexual Offences Act in Criminal Case No 59 of 2015. The petitioner was not tried despite a medical report that he was fit to stand trial. Instead, a special finding was made on November 22, 2017 and he was committed to Prison where he has been held at the President’s pleasure.
16.IHK has since undergone further reviews and the reports confirmed that he has been fit and healthy. He is also awaiting to hear from the President having made a request through the Power of Mercy Committee.
17.The 11th petitioner, NNN, is aged 70 years. He was charged with the offence of murder on the September 20, 2002. After a full trial a special finding was made on the October 5, 2010. He unsuccessfully appealed against the special finding to the Court of Appeal at Nyeri in Criminal Appeal No 443 of 2010.
18.The petitioner has never undergone any medical assessment, review or treatment since the special finding was made in 2010.
19.The 12th petitioner, CTM, was charged with the offence of murder in Criminal Case No 17 of 2014 in the High Court at Nyeri on the August 6, 2014. A special finding was finding was made on the November 23, 2018.
20.The 13th petitioner, PGM, aged 49 years was arrested in 1997, but charged with the offence of murder in Criminal Case No 73 of 2004. He spent a period of 12 years in prison before a special finding was reached on March 12, 2010 and placed under presidential pleasure.
21.The petitioner has never undergone any medical review since 2010 when the special finding was made and he is currently not in any medication.
22.The 14th petitioner, TKM, is aged 65 years old. He was charged for the offence of murder in Criminal Case No 7 of 1994 and a special finding was reached on the July 12, 1994. Since then, he has never undergone any medical reviews.
23.The 15th petitioner is AKM and he was charged with the offence of murder in Criminal Case No 8 of 1998. A special finding was reached on the August 28, 1998. He has since then been reviewed and declared fit. He is also awaiting to hear from the President having made a request through the Power of Mercy Committee.
24.BGM is the 16th petitioner. He was charged at the Kibera Law Courts for the offence of defilement and a special finding was reached on the June 11, 2015.
25.He has been reviewed and found fit. He is also awaiting to hear from the President having made a request through the Power of Mercy Committee.
26.RMM is the 17th petitioner. He was charged for the offence of murder in Criminal Case No 78 of 2010 and a special finding was reached on the 19th April, 2018.
27.The 18th petitioner is CMW who was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code on the April 20, 2015.
28.The petitioner suffered from post-partum psychosis which is classified as a disease of the mind. A special ruling was made on the September 2018.
29.The 1st respondent is the Honourable Attorney General of the Republic of Kenya and the Principal Legal Adviser to the Government.
30.The 2nd respondent is the Director of Public Prosecutions, a creature of article 157 of the Constitution. The Director of Public Prosecutions is in charge of all criminal prosecutions.
31.The interested party, Kenya National Human Rights and Equality Commission, is an independent Commission established under article 59(4) of the Constitution and within the meaning of Chapter 15 of the Constitution.
32.The interested party is mandated under article 59(2) of the Constitution to, inter alia, promote the respect for and develop a culture of human rights in the Republic of Kenya, to promote the protection and observance of human rights in public and private institutions and to investigate any conduct in state affairs, or any act or omission in public administration in any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in any impropriety of prejudice.
33.Further, under article 249(1) of the Constitution, the interested party is mandated to protect the sovereignty of the people, to secure the observance by all state organs of democratic values and principles and to promote constitutionalism.
34.The petitioners in this matter filed the Petition in persons and were later joined and represented by Mr Michuki, Learned Counsel on a pro-bono basis.
35.The petition is undated, but was filed on June 3, 2020. The petition is supported by the affidavits of the petitioners wherein the inmates described the unique circumstances in which they were detained into prisons at the President’s pleasure. The petitioners also filed submissions in further support of the petition.
36.Later, the petitioners, while still appearing in persons, filed an application by way of Chamber Summons dated September 10, 2020 where they sought similar orders as those in the petition. The application was heard together with the Petition.
37.The instant petition raises questions of law regarding the constitutionality of sections 162(4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code (hereinafter referred to as ‘the impugned sections’).
38.The petitioners variously contended that the impugned sections are contrary to articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution.
39.In the main, the petition sought the following remedies: -
40.The Hon Attorney General did not participate in this matter even after due service.
41.The 2nd respondent, the Director of Public Prosecutions, opposed the both the petition and the application.
42.It filed Grounds of opposition dated 13th day of October, 2020.
43.The 2nd respondent’s main contention was that the petitioners failed to demonstrate how their rights and fundamental freedoms were violated by the 2nd respondent.
44.It also filed written submissions and sought the dismissal of the Petition against the 2nd respondent.
45.The interested party appeared in the matter. It filed written submissions in support of the Petition.
Issues for Determination:
46.Having carefully read the material before court, I hereby discern the following issues for discussion: -
47.I will deal with the issues sequentially.
48.This court has deliberately decided to look at the background of the petition herein for the reason that the subject of the impugned sections has been variously been litigated and Courts have variously rendered themselves.
49.The petition, therefore, does not raise any novel issue, save that it seeks to achieve a uniform application of the law in the whole country. The petition is also a call for review of various legal provisions so as to align then with the Constitution.
50.I will, therefore, deal with two sub-issues namely: -
51.There is no doubt that the impugned sections relate to the power of the Presidency to hold inmates in prisons at its pleasure. The exercise of that power arises in two ways. It may be during the trial of an accused in a criminal case or at the conclusion of a criminal trial.
52.The exercise of the power to hold accused persons at the pleasure of the President pending or during trial is provided for under sections 162, 163, 164 and 167 of the Criminal Procedure Code, cap 75 of the Laws of Kenya (hereinafter referred to as ‘the CPC’) whereas the power to hold the accused persons at the pleasure of the President after conviction, but before sentence, is provided for under sections 166 of the CPC.
53.For ease of this discussion I will reproduce verbatim the above provisions. Under the CPC these provisions fall under the head titled: Procedure in case of the lunacy or other incapacity of an accused person.
54.Sections 162, 163, 164 and 167 of the CPC provide as follows: -
55.Section 166 of the CPC deals with the defence of lunacy adduced at trial. It further provides as follows: -
56.A look at the next sub-issue follows.Decisions on the impugned sections:
57.As earlier stated, courts have previously dealt with the subject of the Petition herein. I will look at some of them.
58.The High Court in Meru Criminal Appeal No 59 of 2014 Hassan Hussein Yusuf v Republic  eKLR in dealing with an appeal where the appellant was tried and convicted but at the time of sentencing it dawned on the court that he was of unsound mind and was subsequently detained at the pleasure of the President found section 167 of the CPC unconstitutional.
59.The court held as follows: -
60.In allowing the appeal, the court held as follows: -
61.The same court returned a similar finding in Criminal Appeal No 16 of 2015 B K J v Republic  eKLR regarding section 167 of the CPC.
63.The court stated as follows: -
64.In setting-aside the sentence of imprisonment and releasing the appellant, the court observed as follows: -
65.The High Court at Kisumu also dealt with the impugned sections in Criminal Case No 6 of 2011 Republic v SOM (2018) eKLR. The court while delivering a ruling after convicting an accused person for the offence of murder and upon being satisfied that the accused person was insane at the time of committing the offence, observed as follows: -
66.The court went further and made the following orders: -
67.The exercise of the power by the Presidency to detain persons at its pleasure was further dealt with by the High Court in Nairobi Constitutional Petition No 570 of 2015 AOO & 6 others v Attorney General & another  eKLR.
68.In that matter, the court considered the issue in light of sentencing of children and with reference to section 25(2) and (3) of the Penal Code.
69.The court then observed as follows: -
70.The court further observed that: -
71.The court also made the following observation: -
72.In the end, the court made the following final orders: -
73.The concurrence in the foregoing decisions was impugned in Nairobi High Court Criminal Case No 78 of 2015 Republic v ENW  eKLR.
74.The court while interpreting section 166 of the CPC stated as follows: -
75.The court went further to state that: -
76.With the above decisions, this court shall now deal with the next issue.(b)Whether sections 162(4) and (5), 166(2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code contravene articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution:
77.The petitioners and the interested party fronted their efforts in persuading the court to allow the Petition.
78.In their submissions, the petitioners referred to the decisions referred to hereinabove in demonstrating that the impugned sections were unconstitutional.
79.The petitioners argued that article 27(1) and (2) of the Constitution which provides that every person is equal before the law and has the right to equal protection and equal benefit of the law and that equality includes the full and equal enjoyment of all rights and fundamental freedoms, when measured against the impugned sections yields to denial, violation, infringement and threatening of the petitioners’ rights and fundamental freedoms in the Bill of Rights and that they sanction inequality.
80.They also argued that article 27(4) of the Constitution is infringed in that the impugned sections clearly discriminate against the petitioners.
81.The petitioners averred that the notion of equality springs directly from the oneness of human family and is linked to the essential dignity of an individual. That principle cannot be reconciled with the notion that a given group has the right to privileged treatment or mistreatment because of its perceived superiority/inferiority. It is impermissible to subject human beings including prisoners to differences in treatment that are inconsistence with the Constitution.
82.It was submitted that the respondents were under an obligation to justify the continued limitation under the impugned provision as a reasonable and justifiable limitation on certain convicts' rights is in accordance with the law, legitimate and necessary, in the interests of the reformation and rehabilitation of the prisoner or in the interests of public security or public order.
84.They in particular pointed out the following provisions: -
85.The petitioners urged this court to allow the petition.
86.Since the interested party supported the petition, I will capture its submissions first.
87.It was submitted that the petition herein brought to the fore the delicate principle and doctrine of separation of powers and in particular the relationship between the Judiciary and the Executive branches of the Government.
89.That the court then held that: -
90.The interested party submitted that the doctrine of separation of powers is firmly grounded under the Constitution. It also submitted that the instant petition primarily hinges on the relationship between the Executive and the Judiciary and to the extent to which the Executive reach can permeate through the independence of the Judiciary.
91.It was argued that the application of the impugned sections and its ramifications within the context of our constitutional framework is neither novel nor strange to this court. The impugned sections have been judicially considered on several occasions before this court. The interested party, however, noted that the jurisprudence with regard to the said impugned sections is somewhat uncertain and ambiguous, hence, the need to have it settled.
92.The interested party submitted that the common thread that runs through the impugned sections is the power vested on executive functionaries to determine sentencing based on their whims which is contrary to the doctrine of separation of powers.
93.The interested party reviewed the decisions on the impugned sections. It agreed with the ones this court has captured hereinabove except the finding in the Republic v ENW.
94.It submitted that the rest of the decisions commended themselves to the spirit and letter of the Constitution and, therefore, they posed the correct position of the law with regard to the impugned sections.
95.In faulting the decision in ENW case (supra) the interested party argued that the powers vested on the Presidency pursuant to the impugned sections offended the principle of separation of powers and that the said power is not remotely or otherwise related to the Power of Mercy codified under article 133 of the Constitution.
96.The interested party further argued that article 133(1) of the Constitution employed the words ‘convicted’ and ‘punishment’ thereby fortified the argument that the power of mercy can only be exercised once a court of competent jurisdiction renders its punishment or conviction. This position, it was argued, dislodges the argument propounded by the court in ENW case (supra) that the Executive is vested with the powers to make the necessary determinations under the impugned sections.
97.Further, the interested party argued that the contemplated periodic review of accused persons by the President under the impugned sections is one process while the power of mercy under the Constitution is a totally different one and that the instant Petition sought to challenge the former not the latter.
98.It explained that whereas the appropriateness or otherwise of a sentence is exclusively the mandate of the Judiciary, the power of mercy lies squarely on the Executive. It submitted that the fine distinction was aptly captured in AOO case (supra) while quoting with approval the case of Reyes v R (Belize)  UKPC 11 in which it was stated: -
99.The interested party further argued that article 160(1) of the Constitution guarantees the independence of the Judiciary by providing that, ‘in the exercise of judicial authority, the Judiciary, as constituted by article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority’.
100.According to the interested party, the importance of independence of Judiciary is further reflected in the general rules of international law and treaties and conventions ratified by Kenya which form part of the laws of Kenya by dint of article 2(5) and (6) of the Constitution respectively.
101.It cited the following instruments and provisions: -
102.The interested party submitted that the weight of the authorities on the impugned sections seems to support the argument that indefinite sentences meted out on accused persons at the instigation of executive functionaries are not only a violation of the principle of separation of powers but a blatant breach of the independence of the Judiciary.
103.It was further submitted that sentencing and all its related facets is exclusively a judicial function and, therefore, outside the purview of executive functionaries.
104.The interested party called for a zealous protection of the independence of the Judiciary through the doctrine of separation of powers and that any attempt to subvert it, should be thwarted at the earliest opportune time.
105.The interested party posited that the independence of the Judiciary is non-negotiable otherwise the rule of law would fall into abyss.
107.In closing the argument, it was submitted that the Constitution places a lot of premium on the twin principles of separation of powers and independence of the Judiciary which this court must safeguard at all times. It was also submitted that the indeterminacy of the sentences vested on the Executive as provided for under the impugned sections is an affront to these very critical constitutional principles and therefore unconstitutional.
108.The interested party also submitted on the constitutionality of the impugned sections. It submitted that the position taken by the petitioners on the impugned sections resonated with the supreme law and established jurisprudence.
109.It was submitted that the position urged well with articles 25, 27, 28, 29, 50 of the Constitution and the various international instruments.
110.In the end, it was submitted that based on the foregoing, the indeterminate sentences or punishments meted out on accused persons is a violation of their right to a fair trial, freedom from cruel, inhumane and degrading treatment and amounts to discrimination based on their status which is impermissible under the Constitution.
111.On that score, the interested party called upon the court to grant appropriate orders in upholding the Constitution. They argued that given the unconstitutionality of the impugned sections, any action purported to be done on the basis of the same is a nullity and further perpetuates an illegality.
113.That in a similar fashion, the court in AOO case (supra) held that: -
114.The interested party urged this court, as custodian of human rights and fundamental freedoms, to adopt an interpretation that most favours the enforcement of a right or fundamental freedom in accordance with article 20(3)(b) of the Constitution and in line with article 259(1) of the Constitution.
115.The petitioner and Interested Party’s position was diametrically opposed by the 2nd respondent
116.It submitted that the petitioners failed to prove any violation or infringement of their rights or fundamental freedoms or the commission of illegality, irrationality, impropriety or unreasonable acts to be liable in these proceedings.
117.The 2nd respondent prayed that the Petition be dismissed.
118.As I stated and demonstrated earlier above, the subject of the constitutionality of the impugned sections has been severally litigated. I have carefully considered the decisions of the Learned Judges of the High Court.
119.I will, therefore, not attempt to re-invent the wheel. However, I must put my position clear on the subject issue. Without a second thought, I throw my weight behind the position and finding that indeed the impugned sections are unconstitutional.
120.Being in agreement with the reasoning of my fellow Learned Judges in the decisions I have cited above, I must re-emphasize the fact that the impugned sections are a threat to the doctrine of separation of powers and the independence of the Judiciary.
121.When the Executive has legal access to undertake and discharge judicial functions of the Judiciary, then there can be no more threat to the doctrine of separation of powers and the independence of the Judiciary than that. That can only be the height of the sequestration of the Judiciary.
125.The foregoing, therefore, ring-fences the independence of the Judiciary and the doctrine of separation of powers such that no one arm of the Government eats into the fabric of the other.
126.I also wish to add my voice to the distinction between the impugned sections and the exercise of the power of mercy in article 133(1) of the Constitution. Infact the two are crystal different and need no more elaboration. However, for emphasis, the exercise of the power under the impugned sections runs from the time a person is charged before a Court of law until the conviction, but awaiting sentence. The impugned sections, therefore, deal with the procedural aspects of the trial.
127.On the other hand, the exercise of the power of mercy under article 133(1) of the Constitution only comes to the fore after an accused has been sentenced by the court. The powers give discretion to the President to exercise leniency on the sentence meted out against a convicted person. That is only after the Judiciary has fully exercised its judicial functions in a criminal case.
128.The two sets of powers, hence, run parallel and as such, the argument that article 133(1) of the Constitution is a basis for sustaining the impugned sections cannot hold.
129.With utmost respect, this court, therefore, breaks ranks with the reasoning of the court in ENW case (supra) on the constitutionality of the impugned sections.
130.I will also ascertain if persons with mental challenges may be classified as persons with disabilities under article 54 of the Constitution.
131.Article 260 of the Constitution defines ‘disability’ as follows: -
132.The Persons with Disabilities Act, No 14 of 2003 defines disability’ as follows: -disability” means a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on social, economic or environmental participation;
133.Under the impugned sections, a court is supposed to carry out an inquiry as to soundness of mind of an accused before making the order of detention at the President’s pleasure. Upon carrying out the inquiry, the court must be satisfied that the accused is either unable to follow or understand the proceedings due to the state of the mind or that the accused was guilty but insane at the time of committing the offence.
134.Once the court makes the determination aforesaid, it then makes an order for the detention of the accused at the President’s pleasure.
135.Looking at the nature of the inquiry to be carried out under the impugned sections and the definitions of disability under the Constitution and the law, there is no doubt that an accused who is ordered to be detained at the President’s pleasure falls under the category of persons with disabilities.
137.Article 54 of the Constitution states as follows: -
138.This court, therefore, finds and hold that an accused who is found to be unfit to stand or to continue participating in a criminal trial due to mental challenges or an accused who is tried and a special finding of ‘guilty but insane’ made, is a person with disability and ought to be accorded the necessary protection and assistance required under the Constitution and the law.
139.This court, hence, echoes the holding in Hassan Hussein Yusuf v Republic case (supra) that such a person is sick and ‘a sick person's place is at the hospital and not in prison’.
140.Having considered the impugned sections through the lenses of the Constitution, this court returns the verdict that sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code contravene articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution.(c)What remedies, if any, shall issue?
141.In light of the finding that the impugned sections are unconstitutional, it is for this court to now fashion what is referred to as appropriate reliefs.
142.In doing so, the court ought to take into account all necessary considerations including the fact that there are thousands of inmates currently detained in various prisons in Kenya at the President’s pleasure and that such a state of affairs strains the meagre resources allocated to the Kenya Prisons Service.
143.A case at hand is the 11th petitioner herein, NNN, aged 70 years. He has been in detention since October 5, 2010 when a special finding was made against him and has never undergone any medical assessment, review or treatment since then. That is a period of 12 years by now.
144.There is also the 9th petitioner herein, PKI, aged 58 years who has been held at Kamiti Maximum Prison at the President’s pleasure since taking plea on April 19, 2012 to date. He has never been tried and never has he been reviewed or received any medical assistance. That is a period of 10 years.
145.Speaking of appropriate reliefs, the Court of Appeal in Total Kenya Limited vs Kenya Revenue Authority (2013) eKLR held that even in instances where there are express provisions on specific reliefs a Court is not precluded from making any other orders under its inherent jurisdiction for ends of justice to be met to the parties. The High Court in Simeon Kioko Kitheka & 18 others v County Government of Machakos & 2 others (2018) eKLR held that article 23 of the Constitution does not expressly bar the Court from granting conservatory orders where a challenge is taken on the constitutionality of legislation.
148.Another relevant consideration in this matter is the fact that despite the fact that the impugned sections were declared unconstitutional long ago, the CPC has not been amended so as to align the statute with the Constitution and in line with the various decisions. There is, therefore, need of taking further steps towards attaining that end.
149.The foregoing discussion yields that the Petition is successful. As a result, this Court hereby makes the following findings: -
150.As I come to the end of this judgment, this court wishes to sincerely thank all the parties and counsel for their diligence in the matter.
151.The court extends special appreciation to the Africa Prisons Project for its role in the prisons in Kenya and for sponsoring the 1st to 5th petitioners herein, among many other inmates, to bring out the plight of many inmates who have been languishing in prison with no hope of being released in the near future or at all.
152.The court further appreciates the Kenya Prisons Service for according the Africa Prisons Project, among other entities, the opportunity to deal with the inmates all over Kenya.
153.In the end, and flowing from the above, this court hereby makes the following final orders: -