Mandatory death sentence for robbery with violence unconstitutional, court rules

High Court declares mandatory death sentences for robbery with violence unconstitutional. [Courtesy]

The High Court has declared a section of the Penal Code which provides for a mandatory death sentence for anyone convicted of robbery with violence unconstitutional.

In another landmark judgment, which now changes how Kenya deals with armed robbers and those who terrorise others in gangs, Justice Kizito Magare said that Section 29 (2) denies the court an opportunity to weigh circumstances and the degree of harm before deciding what punishment to hand down.

Justice Kizito was however of the view that death sentence is still constitution, but should be handed to the extreme of the cases.

He recommended that Parliament should amend Sections 295 and 297 of the Penal Code to classify robbery in five categories. The first category, the judge said, should be robbery in the first degree or aggravated robbery. In his view, he said, the culprit ought to have caused grievous harm to any person, discharged a firearm, committed a sexual offence or inflicted an injury on another person using a dangerous weapon.

“This degree alone attracts a maximum sentence known to the law, a discretionary maximum reserved for the gravest case,” said Justice Magare.

He added that robbery in the second degree ought to factor in the use of a firearm or a dangerous weapon which is used or displayed to threaten but not to injure. He said this should attract a substantial maximum term of imprisonment, including life or a stated jail term.

The other one, robbery in the third degree, the judge said that this ought to factor in robbery committed in company or by one or more persons and use of threat to a person but without a weapon. According to him, this one should attract a lower maximum term.

He added that attempted robbery ought to be graded and attract a lower punishment than those completed.

The judge said that Parliament should further define an offensive weapon, but with a caveat that a pen knife should not be placed under the same category as an assault rifle.

At the same time, he was of the view that sentencing ought to factor in each role played by a person. For example, a person who had not inflicted or intended serious violence should not be sentenced as though he had done it.

“Parliament should set out, non-exhaustively, the aggravating and mitigating factors to be weighed, including the vulnerability of the victim, the degree of planning, harm caused, the age and antecedents of the offender and restitution,” he continued.

He also delved into life imprisonment, saying that Parliament should clarify what it means and review it to a definite period behind bars.

Justice Magare insisted that although he could not direct Parliament to do his work, he was at liberty to point to the injustice caused to convicts who are behind bars for robbery with violence, such as Moses Gitahi, who had filed the case.

“A declaration for unconstitutionality, though necessary, is a blunt instrument for addressing a wider problem. I shall therefore direct this judgment to be brought to the attention of relevant authorities for consideration of appropriate legal reforms,” he said.

He ruled that, factoring in that Gitahi had been behind bars for 21 years and the seriousness of the offence, his sentence ought to be set to the number of years he was behind bars. He ordered his immediate release.

“The mandatory nature of the sentence is only part of the problem; the broader difficulty lies in the structure of the offence itself,” he said, adding that Kenya only recognises robbery and robbery with violence.

According to him, it is a sharp, abrupt and arguably arbitrary leap in punishment for a person who is unarmed but threatens a victim with a fist to be slapped with a death sentence if a second person joins him.

“The disparity has long troubled courts and prosecutors,” the judge observed, adding that in states such as New York, robbery is categorised in degrees while in South Africa, the law distinguishes between robbery and robbery with aggravating circumstances.

Gitahi was convicted of robbery with violence and sentenced to death. He argued that although the Supreme Court, in Francis Muruatetu’s case, outlawed the mandatory death sentence, it clarified that this was limited to murder cases.

Mutahi insisted that Parliament had taken up the work of a judge by prescribing death to armed and gang robbers.

He was charged in 2008 with robbing items worth Sh150,000 with others who were not before court while armed with pangas and axes.

The convict appealed before Justice James Wakiaga and Jairus Ngaah in 2010 but he lost. He escalated his case to the Court of Appeal but withdrew the same on May 3, 2021, when it was heard.

The man remained on death row but in 2016, his sentence was commuted to life by the President. He said he has no possibility of leaving jail while alive, as a death sentence meant a person’s natural life. 

He insisted that what is good for a convicted murderer is good for a convicted armed robber.

The debate on whether to change the law on robbery with violence has been in courts before. Magare’s judgment contradicts that of Court of Appeal Judges Hannah Okwengu, Hellen Omondi and Joel Ngugi, who said in 2024 that the issue of the constitutionality of the mandatory death sentence is yet to be addressed, as recommended by the Supreme Court; the death sentence under Section 296(2) of the Penal Code is not unconstitutional as it remains valid under the law.

The judges made the pronouncement in judgment on an appeal by six convicts on robbery with violence.

Samuel Wafula, Constant Sifuna, Patrick Wafula, David Masinde, John Masindani, and Calistus Simiyu had appealed against the decision of the High Court in Bungoma that upheld a death sentence imposed on them.

They were accused of robbing Rukia Naskanda Asman of her property worth Sh50,000 in April 2013 at Kware village, Luongo location within Bungoma County while armed with offensive weapons, namely pangas and rungus.

Six witnesses testified in the case.

Evidence presented before the court indicates that Rukia was asleep in her house when she was woken up at around midnight by the sound of the door to her bedroom breaking open. She woke up, took a torch, switched it on, and saw intruders she identified entering her bedroom.

Upon considering the evidence for the prosecution and the appellants' defences, the trial magistrate found all six, including Kennedy Juma Makhoka (who jumped bail before the court delivered its judgment), guilty of the charge and sentenced each of the appellants to death.

The decision saw the six lodge an appeal in the High Court.

The six, through lawyer Byron Menezes, challenged their conviction and sentence at the Court of Appeal, contending that the sentence meted out against them was excessive and unconstitutional.

They faulted the trial judge in sentencing them to death, adding that the mandatory nature of the death sentence is unconstitutional as per the law and that the offence of robbery with violence was not sufficiently proved.

In their case, they relied on the Supreme Court decision in Francis Karioko Muruatetu & Another -vs- Republic, wherein the mandatory death sentence concerning section 204 of the Penal Code was declared unconstitutional.

They argued that the death sentence imposed against them was unfair, as it took away their dignity contrary to Article 28 of the Constitution.

The Attorney General opposed their application and submitted that the sentence of death imposed upon the six as per the law was neither excessive nor illegal.

Last year, A High Court in Nairobi threw out a case filed by convicts to have killers, robbers or gangs who are convicted for murder or violent stealing paying fines.

Justice Chacha Mwita (now a Court of Appeal Judge), in his judgment, said the Penal Code is neither discriminatory nor excessive for requiring anyone who has been found guilty of murder or robbery with violence to serve a jail sentence without the option of a fine.

According to him, the two capital offences are the vilest acts that can be committed against a human being. He said that anyone caught by the long arm of the law should be punished as retribution to the victims.

He also said that the culprits need to be rehabilitated, something which cannot be done if they are released after paying a fine and that there was no evidence to show that those jailed for serious crimes were discriminated against others who are allowed to pay fines to avoid jail.

"Sentencing is the duty of the court and therefore has an option of challenging a conviction or a sentence on appeal. The petition is hereby dismissed with no orders as to costs," said Justice Mwita.

Erastus Ngula and Paul Odhiambo, both convicted of murder, had asked the court to find that it is unfair and unconstitutional for a person found guilty of murder or robbery with violence not to be accorded an opportunity to pay for their sins using money.

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