The Office of the Directorate of Public Prosecutions continues to charge people with robbery with violence against a High Court Ruling that declared Section 296 (2) of the Penal Code where the said offense is anchored unconstitutional, null and void eight years ago.
Barely three days after a Magistrate Court in Milimani ruled that robbery with violence charge against Ian Njoroge, a student behind the alleged assault of a police officer to be unfounded in Law, today the ODPP yet again arraigned a suspect in Court and charged him with the same offence.
Brian Meshak Onyango was today charged with robbery with violence contrary to section 296 (2) of the Penal Code.
According to the prosecution, the suspect on June 9, 2024 at Sapros Club in Nairobi, with others not before Court robbed Antony Macharia two mobile phones valued at Ksh 128,000, a wrist watch valued at Ksh 6,000 and immediately after the time of such robbery used actual violence against the said Victim.
Appearing before Milimani Chief Magistrate Lucas Onyina, the accused denied the charges and was detained pending bail and bond ruling.
The Penal code, Section 296 (2) sets out the elements of robbery. To qualify as robbery with violence, the evidence of the theft, the number of assailants, whether the appellant was armed with a dangerous weapon, and whether the appellant beat the complainant has to be determined.
However, the provisions of section 296 (2) were in 2016 declared unconstitutional by the High Court.
It was a landmark ruling that made Katiba Institute in January 2024, sue the Director of Public Prosecution (DPP) and the Judiciary for sustaining criminal charges of robbery with violence despite the High Court’s declaration that the same is unconstitutional.
In the petition lodged before the Milimani High Court, the Human Rights Lobby Group accuses the DPP and Judiciary of an alleged refusal to revoke charges of robbery with violence and attempted robbery as ordered by the Court eight years ago.
“The Respondents’ wholesale abandonment of their core constitutional duties and utter indifference to all Kenyans’ fundamental rights and freedoms continues. Each day, people are arrested, charged, arraigned, detained, tried, convicted, and sentenced based on these ghost crimes,” reads the court papers.
According to Katiba Institute, no individual arrested for the offence of robbery with violence or attempted robbery should be charged, tried or convicted on the same since the provisions were declared unconstitutional in 2016 and the statutes ceased to exist in law on March 15, 2018.
