For close to a decade, GNJ lived behind walls, first within the secured wards of Mathare Mental Hospital and later within the confines of Kamiti Maximum Prison.
He was detained at the health facility at the order of the President’s pleasure. He was not just serving time but was receiving treatment after he was diagnosed with schizophrenia.
However, last month, the long wait for freedom came to an end after Voi High Court set him free.
Justice Asenath Ongeri set aside an order for detention at the President’s pleasure that had seen GNJ spend nine years in confinement following his conviction for the murder of his wife, Fatuma Nzivili Chengo.
The judge ruled that the indefinite incarceration of GNJ, who was found to have committed the offence by reason of insanity, amounted to cruel and degrading punishment, especially in view of his improved mental condition and successful rehabilitation.
“The court hereby sets aside the order for detention at the President’s pleasure and substitutes it with a sentence of time served, taking into account the nine years already spent in custody. He shall be released forthwith unless lawfully held for any other reason,” she said.
The judge explained that the original order detaining GNJ at the President’s pleasure was based on his mental state at the time of trial, but this could no longer justify continued detention.
Justice Ongeri said she relied on the Supreme Court’s decision and subsequent jurisprudence on sentencing review and the treatment of offenders with mental illness in determining this application.
GNJ was convicted on October 31, 2018, for killing his wife on February 24, 2016, at Ngutini Village in Taveta Sub County.
Though guilty, he was found to have been suffering from schizophrenia and was ordered to be detained at Mathare Mental Hospital at the President’s pleasure.
After a while, he returned to the High Court to seek review of the sentence, basing his arguments on improved health conditions and previous judicial decisions.
He sought a review of his sentence, arguing that his mental instability was evident during the trial and that his imprisonment is inhumane and degrading.
“In as much as I was found guilty, it was evident that I had fallen into stress and depression after the loss of my business, which led to my mental illness at the commission of the act,” he said through his advocate.
Further, he argued that he was of good character and held a clean record before being charged with murder in 2016.
Also, the court heard that his family still hold him in high regard as per the Sentence Review Report, where they indicated they would receive him well if he is considered for review.
GNJ also submitted he was committed to Mathare Hospital and has since been treated, rehabilitated and released to Kamiti Prison.
“I am still under medication and promise to continue with the regimen as advised by the doctor,” he said.
“I have been in custody for about nine years. I request that this period be considered under section 333 (2) of the Criminal Procedure Code,” he said.
The section provides that a sentence of imprisonment should be deemed to commence from the day it was pronounced, unless the law or the specific circumstances of the case dictate otherwise.
GNJ invoked this provision to remind the court to consider the time he has already spent in custody while making its final decision.
He lamented that his prolonged detention is inhumane and degrading, particularly in light of his rehabilitation, medical stability, and the period already served in custody.
The prosecution opposed GNJ’s application, arguing that the case was fully heard and determined, with judgements issued by two judges.
The prosecution’s position was that the court had already made its decision, and it cannot thus review or vary the sentence as it lacks jurisdiction.
According to the prosecution, the matter is now under the purview of the Executive arm of government, or it can be appealed to the Court of Appeal, and urged the court to uphold its previous decision and dismiss the application.
However, Justice Ongeri dismissed the prosecution’s arguments, noting that the High Court has the constitutional authority under Article 165 to review its own decisions where justice demands.
“This position is untenable in light of the Supreme Court's directions, which affirmed the judiciary's role in ensuring that sentences are proportionate, just, and subject to review where circumstances warrant,” the judge said.
Justice Ongeri said the Supreme Court emphasised the need for individualised sentencing, taking into account mitigating factors, including the offender’s mental health, age, and potential for rehabilitation.
The judge also noted that previous superior court rulings held that sentencing must be guided by the peculiar circumstances of each case, including the offender’s mental state and prospects of reintegration into society.
Justice Ongeri noted that the applicant demonstrated significant mitigating factors such as that he was a first offender, suffered from a documented mental illness at the time of the offence, and has undergone treatment and rehabilitation, with medical reports confirming his stability.
“His family has expressed willingness to support his reintegration, as evidenced in the Sentence Review Report,” the judge said.
According to the judge, the High Court’s original order for detention at the President’s pleasure was predicated on GNJ’s mental state at the time of trial, but given his subsequent recovery, continued indefinite detention would amount to arbitrary and disproportionate punishment.
This, the judge noted, will be contrary to Article 50(2)(p) of the Constitution, which guarantees the right to a fair trial, including the right to the benefit of the least severe prescribed punishment.
“The prosecution’s argument that the court lacks jurisdiction is misplaced. The High Court retains inherent powers to review its own decisions where justice so demands, particularly in cases involving mental health and prolonged detention,” said the judge.
The judge further added that the detention orders under the Criminal Procedure Code (CPC) must be subject to periodic review to ensure they remain justifiable, adding that courts must be alive to changes in an offender’s circumstances, including improvements in mental health, when considering sentence reviews.
Justice Ongeri concluded that GNJ’s case warranted a review, as he has served a substantial period in custody, demonstrated rehabilitation, and poses no evident risk to society if released under appropriate medical supervision.
“I direct that GNJ shall be released forthwith unless lawfully held for any other reason, subject to compliance with any ongoing medical treatment and supervision as may be recommended by the relevant mental health authorities,” said the judge.
The judge supported her decision, saying it aligns with the constitutional imperative of humane treatment, the principles of restorative justice, and the precedent set by Kenyan courts in similar cases involving mentally ill offenders.
