Mandatory death sentence on robbery with violence constitutional

The mandatory death sentence imposed on robbery with violence suspects is constitutional, the Court of Appeal in Kisumu has maintained. Judges Hannah Okwengu, Hellen Omondi and Joel Ngugi said the issue of the constitutionality of the mandatory death sentence under Section 296 (2) of the Penal Code 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. The judges noted that the six challenged the death sentence because the sentence was illegal and unconstitutional and that the trial magistrate did not exercise his direction in sentencing. They noted that the six could not find refuge in the decision by the Supreme Court to declare unconstitutional the mandatory nature of the death sentence for the offence of murder under section 204 of the Penal Code. "The appellant cannot find refuge under Muruatetu 1 because the sentence of death imposed upon them is prescribed under section 296(2) of the Penal Code, for the offence of Robbery with violence, and not the offence of murder regarding which sentence is prescribed under section 204 of the Penal Code," ruled the appellate court judges. The Supreme Court in Muruatetu 2 they said gave clear directions that its decision in Muruatetu 1 only applied to the mandatory death sentence for the offence of murder under sections 203 as read with section 204 of the Penal Code. To clear the confusion that exists concerning the mandatory death sentence in offences other than murder and in respect of other capital offences such as treason, robbery with violence, and attempted robbery with violence, the Supreme Court said that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu, they said, as it now stands, cannot directly apply to those cases. Judges Ngugi, Omondi, and Okwengu noted that the issue of the constitutionality of the mandatory death sentence under Section 296 (2) of the Penal Code 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 trial magistrate properly imposed the death sentence upon the appellants, and the learned Judge was right in upholding the sentence. Consequently, the appellant's appeal fails in its entirety and is dismissed," they ruled.

Mandatory death sentence on robbery with violence constitutional

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Mandatory death sentence on robbery with violence constitutional

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