City Lawyer Danstan Omari on Thursday opposed the sentencing of his client who was convicted for robbery with violence and was set to be sentenced by the court.
However, in an interesting turn of events, Omari told Milimani Principal Magistrate Benard Ochoi that the said law which they were convicted on does not exist.
He said there is a high court ruling that was delivered by a three-judge bench which declared the said penal code unconstitutional.
The court heard that Justices Jessie Lessit, Luka Kimaru and Stella Mutuku declared Provisions of Sections 295, 296 (1)(2) and 297 (1) of the Penal Code unconstitutional.
Omari said the court ruled that the said sections do not give sufficient information relating to the offence of robbery with violence and therefore any person charged under those sections cannot adequately prepare for their defence hence being deemed unconstitutional.
According to Section 296 [2], If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.
Omari further used the recent court of appeal ruling on housing levy which ruled that there is no cure for a provision that has been declared unconstitutional.
“In the 2023 housing levy petition, the Court of Appeal Judges, Justice Achode, Justice Mativo and Justice M. Gachoka ruled that nothing can save a provision that has been declared unconstitutional.” Omari argued.
Omari said the decision that will be delivered by the trial court is expected to serve as a precedent to many robbery with violence cases in Kenya who have been convicted and sentenced using the illegal section.
In the case, Corporal George Onyango Mtere, attached to Ruiru Police Station, was convicted alongside his colleague Bernard Ogutu Okech also a cop for allegedly violently robbing a woman off her handbag.
“I find that the prosecution has established their case against officers Onyango and Ogutu beyond reasonable doubt and accordingly find them guilty of the offence of robbery with violence and convict them under section 215 of the Criminal Procedure Code (CPC),” Ruled the Magistrate.
The Magistrate also convicted three employees working at Mistsumi Business Park namely Albert Oketch Ochola who is the plumber at the building, Wycliffe Marani who is the electrician and Walter Kiverenge Indimali who is the caretaker and supervisor at the building for organizing the robbery.
In his judgement, Ochoi said the victim of the robbery, Daksha Patel, an employee of Mitsumi Computer Garage based at Mitsumi Business Park, positively identified Onyango and his accomplice Ogutu as the robbers of her handbag.
In her testimony, Patel told court that the accused persons robbed her at gunpoint inside a lift as she left the building.
Ochoi directed the defence lawyers including Omari to file their formal submissions on the issue in order to give the prosecution also a chance to respond.
City lawyer Omari opposes sentencing of robbery convicts arguing that the offense is illegal as it does not exist in law.
