The law stipulating the death sentence for robbery with violence is ambiguous, the High Court has ruled.
Judges Jessi Lesiit, Luka Kimaru and Stella Mutuku made the declaration Thursday in a suit in which 12 death row convicts had challenged the law that prescribes the death penalty for robbery with violence offenders.
The judges ruled that sections of the law do not meet the constitutional threshold of setting out precise and distinct differentiating degrees of aggravation of the offence of robbery and attempted robbery to adequately answer to charges as well as prepare a defence.
They argued that for one to be handed a death sentence, one has to defend oneself after the hearing before the final verdict is made in what is known as mitigation.
“Death sentence is not a cruel, inhuman and degrading punishment. However, it just cannot be meted to any person convicted of a capital offence,” they said.
The judges pointed out that it was necessary for the mitigating circumstances to be considered so as to ensure the accused person’s right is not violated in anyway and that there is a fair trial.
“If the court does not receive and consider mitigating factors and other statutory pre-sentencing requirements, it is not mandatory for the courts to pass a death sentence against persons charged with capital offences,” they ruled.
In Kenya, offences with a death penalty, include robbery with violence and murder.
While noting that the verdict would consequently mean that several robbery with violence convicts would have to be set free, the judges temporarily suspended the decision for 18 months to enable the Attorney-General, the Kenya Law Reform and other relevant agencies to appropriately amend the impugned sections.
The court asked Parliament to take into consideration international good practices on sentencing so as to accord similar facts to similar charges of equal gravity.
But for those on death row after being convicted with the disputed sections of the law, the judges ruled that the AG with relevant authorities should find a remedy for the prejudice suffered and prescribe an appropriate solution in the same time frame.
Even though the verdict was in favour of the 12 filed the objection in 2013, after being handed the death sentence, the judges declined to grant a request to have their convictions looked again by the trial court.
They were all separately charged with offences of robbery with violence and attempted robbery.
With their petition, which challenged the death penalty as contrary to Bill of Rights, human rights and a right to a fair hearing, they first appeared before Justice Mohamed Warsame (now a Court of Appeal judge), who dismissed their suit.
The appellate court referred them back to the High Court to be heard on merit by a three- judge bench.