Petition No. E036 of 2024
1. The Petition dated 29th January 2024 which was subsequently amended on 4th March 2025 is supported by the affidavits of the 1st Petitioner’s Litigation Manager, Emily Kinama’s and Chris Kerkering.
2. The Petition seeks the following reliefs against the Respondents:
Declarations
i. A declaration that the Attorney-General, the Kenya Law Reform Commission, and the National Council on Administrative Justice have violated the orders in Kahinga to review and remedy the constitutional infirmities in the offences of Robbery, Robbery with Violence and Attempted Robbery with Violence statutes. A further declaration that the Attorney-General violated the orders in Kahinga by failing to report to the Court 18 months following the Kahinga judgment.
ii. A declaration that, since 15th March 2018, the Office of the Director of Public Prosecutions and the Judiciary have violated Articles 2(1)-(4), (5), & (6), 3(1), 20(1), 21(1), and 21(3) of the Constitution by continuing to charge, arraign, detain, try, arrest, and convict people under Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code despite the Kahinga decision.
iii. A declaration that the Attorney-General, Kenya Commission on Administration of Justice, Kenya Law Reform Commission, the National Council on Administrative Justice, and Parliament have violated Articles 2(1)-(4), (5), & (6), 3(1), 20(1), 21(1), and 21(3) of the Constitution by failing to uphold and respect the Constitution and observe, respect, protect, promote the rights guaranteed under the Bill of Rights.
iv. A declaration that Parliament has violated Articles 1(3), 93(2), and 94(4) by failing to uphold, protect, and defend the Constitution.
v. A declaration that all Respondents have violated the values and principles of good governance under Article 10 of the Constitution.
vi. A declaration that the Attorney-General has violated its duty under Article 156(6) and Section 5(e) of the Office of the Attorney-General Act by failing to draft legislative proposals to the National Assembly advising on the inconsistency and ambiguity of Sections 295, 296(1), 296(2), 297(1) and 297(2) and attendant violations to the right to a fair trial.
vii. A declaration that, since 15th March 2018, the Respondents, individually and collectively, have violated the fundamental rights and freedoms of all individuals arrested, charged, arraigned, detained, held in custody, tried, convicted, or sentenced under Sections 295, 296(1), 296(2), 297(1) and 297(2), including rights guaranteed under Articles 26, 27, 28, 29, 30, 31, 33, 35(1), 39(1), 48, 50(2)(b) and (n).
viii. A declaration that, since 15th March 2018, the Respondents have violated their duties under Sections 4(1) and (2)(f), (i), and (l) of the Victim Witness Protection Act by charging, arraigning, detaining, and trying individuals for violations of Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code.
ix. A declaration that the Office of the Director of Public Prosecutions violated Article 35(1)(a) and the Access to Information Act by refusing to give information to Katiba Institute and failing to forward the access to information request to the Judiciary.
x. A declaration that information regarding criminal arrests, charges, trials, convictions and sentences for each crime under the Penal Code and other laws is important information affecting the public that must be published and publicized under Article 35(3) of the Constitution.
Injunctive Orders
xi. An order prohibiting the Office of the Director of Public Prosecutions from charging and the Judiciary from accepting charges against individuals suspected of offences under Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code.
xii. An order directing the Judiciary, Kenya Prisons Service, and the Office of Director of Public Prosecutions to identify all individuals arrested, charged, or convicted of violations of Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code since 15th March 2018.
xiii. An order dismissing all pending charges filed under Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code and for the accused people to be released from custody immediately.
xiv. An order directing the Judiciary to vacate all convictions from 15th March 2018 for violating Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code.
xv. An order directing the Kenya Prisons Service to immediately release from custody all people who are imprisoned based on convictions from 15th March 2018 to the present for violating Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code.
xvi. An order directing that, per Article 35(3) of the Constitution, the Respondents publish and publicize information relating to arrests, charges, trials, convictions, and sentences for all crimes, including crimes under the Penal Code.
Damages
xvii. An order finding that the Respondents are jointly and severally liable for the harm caused by their violations of the Constitution and the law.
xviii. An order providing incidental, consequential, and aggravated general damages against the Respondents in favour of all individuals arrested, charged, detained, tried, or convicted of Robbery with Violence or Attempted Robbery with Violence from 15 March 2018 to date.
xix. An order for compensatory, incidental, consequential, and aggravated general damages against the Respondents in favour of all who have suffered harm because a family member has been arrested, charged, detained, tried, or convicted of Robbery with Violence or Attempted Robbery with Violence from 15th March 2018 to date.
xx. An order of compensatory incidental, consequential, and aggravated general damages in favour of all victims and alleged victims who have or will suffer trauma because the respondents have abrogated their duties and violated the rights of victims guaranteed under the Constitution and the Victim Witness Protection Act.
xxi. An order for punitive damages against the Attorney-General, the Judiciary, and the Office of the Director of Public prosecutions for their wilful or grossly indifferent violations of the fundamental rights and freedoms of all individuals arrested, charged, detained, tried, or convicted of Robbery with Violence or Attempted Robbery with Violence from 15th March 2018 to date.
Structural Interdict
xxii. Any further relief or orders, including a structural interdict, to ensure that the Respondents comply with the rulings of this Court and that those harmed by the Petitioners’ violations of the Constitution and the law are justly and appropriately accommodated.
Other relief
xxiii. An order that although this Petition has been filed in the public interest because the Respondents have abdicated their mandates under the Constitution and the law, the Respondents be required to indemnify the Petitioners for the expenses associated with the litigation.
xxiv. Any other orders this Court considers appropriate to protect the Constitution and the interests of justice.
1st Petitioner’s Case
3. The 1st Petitioner states that in a Judgment dated 15th September 2016 in Joseph Kaberia Kahinga & 11 Others [2016] eKLR, a 3-judge bench found Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code that relate to Robbery, Robbery with Violence and Attempted Robbery with Violence, violated the Constitution because the provisions are too vague to be enforceable hence declared them unconstitutional. The Court then proceeded to suspend its judgment for 18 months to enable the 2nd, 4th and 6th Respondents amend the impugned Sections of the Penal Code.
4. That the judgment has never been appealed and no party has ever sought leave to stay the judgment beyond the 18-month suspension. That the Court’s suspension of the aforesaid judgment lapsed on 15th March 2018 yet the police and the 1st Respondent have continued to arrest, charge and prosecute persons while the 3rd Respondent has continued to try and sentence persons charged with these offences.
5. The 1st Petitioner stated that from the data obtained from the 3rd Respondent, over 10,000 people have been charged and 2000 convicted with the impugned offences since the said Judgment was passed. The Petitioner contends that in itself violates the fundamental principles of criminal justice, constitutional jurisprudence and the core duties of the State actors in the criminal justice system.
6. The 1st Petitioner discloses that on 1st March 2023, vide an email, sought information from the 1st Respondent concerning persons charged with robbery with violence under Sections 295 and 296(1) of the Penal Code. Specifically, the number of persons who had been charged since 16th February 2018 to date, number of active cases pending determination and persons who had since been convicted.
7. She avers that the 1st Respondent in its response dated 21st March 2023 stated that, it was in the process of digitizing its data. As such, it directed the 1st Petitioner to access the information from the 3rd Respondent. Further correspondence to the 1st Respondent dated 3rd May 2023 did not elicit any response.
8. The 1st Petitioner then proceeded to make a request for the information from the 3rd Respondent vide a correspondence dated 3rd May 2023 since the 1st Respondent had failed disclose this information. She avers that the 3rd Respondent provided the requested information on 15th June 2023.
9. The 1st Petitioner confirms that following the Court Order dated 30th September 2024, the 1st Respondent on 19th November 2023 issued the 1st Petitioner a schedule of the robbery with violence cases filed between 2018 and 2023.
10. In light of these averments, the 1st Petitioner asserts that by the 1st Respondent by relying on the impugned provisions of the Penal Code to charge, try and convict people of robbery with violence and attempted robbery with violence, is in violation of its duties under Articles 1(1); 2(1), (2) & (4); 3(1); 10(1) & (2); 19(2)(a) & (c); 20(1), 21(1) & (3), 157(6)(a) & (c), 157(10) & (11), 249(1) & (2) of the Constitution. Moreover, violated these persons rights under Articles 26(3), 28, 29(a) & (f), 30(2), 39(1) & (3), 45(1), 48, 49(g) & (h), 50(1), 50(2)(a) -(b) & (n)-(p), 51(1) of the Constitution. The 1st Petitioner adds that the 1st Respondent by failing to supply the sought information has violated Article 35 of the Constitution.
11. Equally, the 2nd Respondent is faulted for being in breach of its duty under Articles 2(1)-(4), (5), & (6), 3(1), 20(1), 21(1), and 21(3) or the Constitution. It is asserted that the 2nd Respondent failed to review the cited Judgment and issue a professional review of the impugned provisions and further make a Report of the same to the Court.
12. The 3rd Respondent is as well faulted for violating Articles 2(1)-(4), (5), & (6), 3(1), 20(1), 21(1), and 21(3) of the Constitution, by continuing to arraign, detain, try, arrest, convict and affirm the convictions of persons charged under the impugned Sections. The 4th Respondent is similarly accused of being in violation of Section 7 of the Sixth Schedule of the Constitution for failing to amend the Penal Code and specifically the impugned provisions so as to bring them into conformity with the Constitution.
13. The 1st Petitioner claims that the 5th Respondent has failed to ensure a coordinated, efficient, effective, and consultative approach in the administration of justice and reform of the justice system thus in contravention of Articles 2(1)-(4), (5), & (6), 3(1), 20(1), 21(1), and 21(3) or the Constitution. Equal averments are stated in relation to the 6th Respondent.
1st Respondent’s Case
14. The 1st Respondent in opposition to the Petition filed Grounds of Opposition dated 27th February 2024 on the premise that:
i. The 1st Respondent herein, the Office of the Director of Public Prosecutions, is an independent Office under Article 157(10) as read with Article 248 (1) of the Constitution, and consequently, does not require the consent of any person or authority for the commencement of any proceedings and in the exercise of his powers and functions, does not act under the directions and/or control of any person or authority.
ii. In the exercise of state prosecutorial powers, the 1st Respondent is guided by the Constitution, relevant statutes, sectoral and internal policies and guidelines, always conscious of ensuring that public interest and the wider interests of administration of justice are taken into consideration, and therefore the 1st Respondent should not be prohibited from making decisions whether to prosecute or not to prosecute for offences under Sections 295, 296(1) 296(2), 297(1), and 297 (2) of the Penal Code when those offences are still part of the law.
iii. The 1st Respondent in exercise of its Constitutional mandate conferred by Article 157 of the Constitution does not extend to undertaking the role of the legislature as conferred upon it under Article 109 of the Constitution.
iv. The 1st Respondent under Section 5 of the ODPP Act No.2 of 2013 particularly under Section 5(1)(d) (f) and (g) has a duty to advise the State on matters relating to administration of the criminal justice or doing other things as are necessary or incidental to the performance of its functions under the Constitution and the ODPP Act which does not extend to carrying out the function of the 6th Respondent (Kenya Law Reforms Commission) as provided under Section 6 of the Kenya Law Reform Commission Act No.19 of 2013 and therefore the 1st Respondent ought not to be prohibited from carrying out its mandate based on the foregoing.
v. In making the decision to charge under Sections 295, 296 (1) 296 (2) and 297 (1) of the Penal Code, the 1st Respondent neither abrogated, breached, infringed nor violated any provision of the Constitution or any human and fundamental rights of the Petitioner or any other written law or regulations made thereunder to the contrary, the 1st Respondent was under obligation at all times to weigh and consider the rights of victims of the offence or Robbery and Robbery with Violence.
vi. The 1st Respondent in exercise of its mandate under Article 157 is in compliance with Comity of Nations by balancing the competing rights of victims of crime as envisaged in the Kyoto Declaration On Advancing Crime Prevention, Crime Justice And The Rule Of Law Towards The Achievement Of The 2030 Agenda For Sustainable Development and that prohibits the 1st Respondent from charging under Sections 295, 296 (1) 296 (2) and 297 (I) of the Penal Code, will violate the rights of victims.
vii. Any order prohibiting the institution and or filing of any cases where individuals are charged with the offence of robbery with violence or attempted Robbery with violence under Section 295, 296, (I) 296 (2) 297 (2), 388 and 389 of the Penal Code and the consequential order sought in prayer number 2, 3, 4 and 7:
a) Has the potential to create an environment that enables serious crimes to thrive and threaten the lives and property of all humans whether Kenyan nationals, visiting, or resident foreigners, and for violent criminals to enjoy immunity from prosecution thereby threatening the ability of the state to maintain law, peace and public order necessary for economic growth and development.
b) Is likely to impair the ability of the State through its law enforcement agencies to curb serious violent crimes including containing violent theft and robberies through the detection of crimes, investigation; arrest and prosecution or the processing of the accused through the Criminal justice system.
c) The prohibition of the law enforcement agencies particularly the 3rd Interested Party from arresting suspects of attempted robbery or robbery with violence to face charges potentially infringes upon or and violates the competing rights to a fair trial to equal protection of law security of the victims of the crime.
viii. The 1st Respondent disagrees with the Petitioners’ interpretation of the Court's order in declaring that Sections 295, 296 (1) 296 (2) and 297 (I) of the Penal Code, do not meet the constitutional threshold for whose remedy is an omnibus release of every accused, convicted felon or grant of immunity from arrest and prosecution of any suspects as prayed for in the Petition. The 1st Respondent's interpretation of Order 5 of the Judgement in Petition No.618 of 2010 Joseph Kaberia & others -vs- The Attorney General is that, the Petitioners therein were to apply to the Court for mitigation and re-sentencing upon expiry of the stipulated period of 18 months.
ix. The 1st Respondent interpretation of Order 5 in the aforesaid Petition was well demonstrated by the path the said Petitioners took as follows:
a) In Misc. Cr. Application No.393 of 2018 Nairobi (Joseph Kaberia Kahiga -vs- Republic 2019 eKLR) Joseph Kaberia successfully sought rehearing, was given a chance to mitigate and was re-sentenced to the term already served.
b) In Misc. Cr. Application No.378 of 2018 Nairobi (Daniel Kioko Mbuva -vs- Republic 2019 eKLR) successfully sought rehearing, was given a chance to mitigate and was resentenced to a term of 10 years from the 13th February, 2019.
c) In Misc. Cr. Application No.395 of 2018 Nairobi (Ibrahim Ali Hatake -vs- Republic 2019 eKLR) successfully sought rehearing, was given a chance to mitigate and was resentenced to a term of 5 years from the 12th February, 2019.
x. In the absence of clarity in terms of the constitutionality or otherwise of Sections 295, 296 (]) 296 (2) and 297 (1), 297 (2) of the Penal Code, (in light of the continued subsistence of these provisions) and given that the Court of Appeal has rendered a decision that has a binding effect on the High Court in the case of Simiyu -vs- Republic CR. Appeal No.47 of 2018 [2021] KECA 247 (KLR) the 1st Respondent cannot be faulted and prohibited from charging and prosecuting offenders under Section 297(2) of the Penal Code guided by the decision of the Court of Appeal.
xi. The Petitioner's Application and Petition have failed to satisfy the threshold requirement for the grant of the interim reliefs sought, pending determination of this Petition and the relief sought are proportionate to the problem that is to be addressed by allowing the petition.
xii. The issues raised in the Petition are matters of grave public interest and would require clarity of the orders and sufficient time to ensure compliance if at all so as to enhance and create good order in the practice of criminal law.
15. In addition to this, the 1st Respondent filed a Replying Affidavit by the Senior Assistant Director of Public Prosecutions, Jalson Makori sworn on 29th February 2024.
16. With reference to the cited Judgment, Joseph Kaberia Kahinga & 11 others v Attorney General (Petition No.618 of 2010) [2016] eKLR delivered on 15th September 2016, he avers that the Court found that Sections 295, 296(1), 296(2), 297(1) & (2) did not meet the constitutional threshold of setting out with precision and differentiating the degree of aggravation of the offense of robbery and attempted robbery.
17. He notes that the Petitioner fails to appreciate that there is a remedy to any prejudice that arises out of any inadequacy in the impugned provisions of law and which has been applied by the High Court and Court of Appeal pending review and legislative amendments. Considering this, he argues that the Petitioner in seeking release of all convicted persons, dismissal of pending cases and prohibition of the 1st Respondent from charging under these Sections, is a misinterpretation of the Orders that were issued by the Court.
18. He depones that the 1st Respondent in exercise of its mandate and as a member of the Kenya Law Reform Commission and the National Council for Administration of Justice, has instigated the process that will ensure compliance with Order No.2 in the cited Judgment as seen in the correspondence dated 16th February 2024.
19. That said, he avers that there is no vacuum existing in the law to bring to justice the offenses of robbery, attempted robbery, attempted robbery with violence and robbery with violence. He stresses that the 1st Respondent cannot fetter his own power to exercise his discretion to make decisions to charge for these offences. He adds that the criminal prosecution is a critical component in maintenance of law, order and the rule of law. On this premise, he urges against grant of the orders sought in the Petition.
4th Respondent’s Case
20. The 4th Respondent through its Clerk, Samuel Njoroge C.B.S filed a Replying Affidavit sworn on 3rd July 2024.
21. Reiterating the averments and facts of this case, he commences by noting that the 4th Respondent was not enjoined as a Party in the Joseph Kaberia Kahinga(supra) case.
22. He avers that in order for the 4th Respondent to amend the impugned provisions of the Penal Code, the 2nd and 6th Respondents together with other relevant agencies were required by the Court to prepare a detailed professional review in view of the Judgment and Order made, to enable the 4th Respondent amend the Penal Code. In light of this, he asserts that the 4th Respondent cannot be faulted for non-compliance with the Court Orders as it would only proceed once it received this Review.
23. That’s said, he depones that the National Assembly Departmental Committee on Justice has been engaging the 5th Respondent on the proposal to amend the Penal Code and the Criminal Procedure Code. In addition, the 5th Respondent in a letter dated 11th October 2023, issued the 4th Respondent’s Rt. Speaker the draft Penal Code and Criminal Procedure Code Amendments Bills, for consideration by the House. He avers that these Bills contain amendments that seek to harmonize and align the Penal Code and Criminal Procedure Code with the Constitution.
24. He depones that at the moment, the Draft Bills are before the 4th Respondent’s Committee for consideration and harmonization with the other existing Bills that seek to amend the Penal Code.
25. Furthermore, he depones that there is another Bill before the 4th Respondent that seeks to amend the Penal Code, the Penal Code (Amendment) Bill, 2023 (National Assembly Bill No.55 of 2023). This Bill underwent the First reading on 3rd October 2023 and thereafter committed to the Departmental Committee on Justice and Legal Affairs.
26. In light of this, he informs that the 4th Respondent is already considering several proposals that seek to amend the Penal Code in line with the cited Judgment. As such, he contends that the Court as guided by the doctrine of separation of powers ought to refrain from interfering and dictating the 4th Respondent’s legislative mandate. He argues therefore that if the orders sought are granted, the same will be in violation of the doctrine of separation of powers.
27. He as well asserts that the Petitioner has prior to filing this suit failed to exhaust its right to Petition Parliament as envisaged under Article 119 of the Constitution as read with the Parliament (Procedures) Act. He stresses that no attempts were made to approach the 4th Respondent yet the mandate of amending laws lies with it.
28. To this end, he maintains that the questions raised in the Petition are primarily on law reforms. He for this reason, argues that this Court ought to exercise restraint and give the 4th Respondent a chance to conclude its legislative mandate.
6th Respondent’s Case
29. The 6th Respondent’s Chief Executive Officer, Joash Dache in reaction to this Petition swore a Replying Affidavit on 25th June 2023.
30. On a preliminary note, he states that the 6th Respondent’s mandate is limited to making the necessary proposals for reforms as the legislative authority is solely vested in the 4th Respondent under Article 94(1) of the Constitution.
31. He depones that following the cited Judgment, the 6th Respondent together with the 1st and 2nd Respondent embarked on a journey to address the issues raised issues by forming a Joint Committee. This Committee held several consultative meetings where other stakeholders were also engaged. He avers that this process could not be conducted within the stipulated 18 months as per the Judgment, owing to the wide spectrum of stakeholder engagements and resource constraints.
32. He depones that the proposed amendments of the Penal Code in line with the cited Judgment have since been initiated through the Penal Code (Amendment) Bill, 2023 which is pending before the 4th Respondent. Having discharged its duty, he asserts that the 6th Respondent has no control over the legislative process.
33. He points out that while the Court issued Orders in Joseph Kaberia Kahinga (supra) for the impugned Sections to be amended, the Court under Order 5 directed that if the orders are not complied with within the set timelines, the Petitioners were at liberty to make an application. He asserts that none of the Petitioners in the said case have moved the Court pursuant to its Orders, alleging non-compliance.
34. He postulates that the instant Petition is unnecessary and an abuse of the Court process as it seeks to enforce implementation of Orders that were issued in the cited case. He points out that this is tantamount to supervision of a decision of other High Court Judges contrary to Article 165(6) of the Constitution.
35. He as well argues that the blanket review of the impugned sentences as sought by the Petitioners would be contrary to public policy and a recipe for chaos in the criminal justice system.
36. It is argued that this Court should allow the 4th Respondent enact the amendments to the Penal Code already pending before it, so as to end the stalemate herein.
37. Equally, he notes that the Supreme Court in Muruatetu & another v Republic; Katiba Institute & 4 others (2021) KESC 31 (KLR) guided on practical ways to deal with a situation where persons affected by the orders of the High Court can apply for resentencing, being an application by the 1st Respondent and convicted person before the Trial Court, of the appropriate remedy based on the peculiar circumstances of a case.
The Other Respondents’ Case
38. The 2nd, 3rd and 5th Respondents’ responses to the Petition are not in the Court file or Court Online Platform (CTS).
1st Interested Party’s Case
39. The 1st Interested Party through its Chief Executive Officer, Dr. Benard Mogesa filed its Affidavit in support of the Petition sworn on 9th October 2025.
40. Rehashing the facts of this case, he avers that the Court in the cited Judgment, declared the impugned Sections unconstitutional. In his interpretation, the effect of this Judgment was that the offense of Robbery with violence and attempted Robbery with violence ceased to be crimes in Kenya. He notes that the Court suspended its decision for 18 months which lapsed on 15th March 2018, so as to enable the Respondents amend the impugned provisions of the Penal Code.
41. He asserts that the 2nd Respondent has failed to comply with the said Orders while the 1st Respondent has continued to charge accused persons with the impugned offences. He stresses that this is a clear violation of the non-derogable right to a fair trial and also a blatant disregard of the national values and principles of governance. He adds that Court Orders are not made in vain and as such all persons are duty bound to comply with them as failure to do so undermines the authority of the Court.
42. He equally claims that the 4th Interested Party’s fundamental rights under Article 25 and 50 of the Constitution have been violated by the 1st and 3rd Respondent’s actions.
43. He clarifies that while the 1st Interested Party supports the Petitioner’s case, it does not support the Order sought for release of all suspected and convicted persons without a specific framework that will protect the rights of the victims and complainants. As such, he urges the Court to balance the competing rights of the suspects, convicts and the victims.
44. He equally avers that this Court should impose sanctions on the Respondents to ensure compliance with the cited Orders and also summon the 2nd Respondent to explain the steps taken so far in this matter.
The Other Interested Parties Case
45. The 2nd to 7th Interested Parties responses to the Petition are not in the Court file or Court Online Platform (CTS).
Petition No. E080 of 2024
46. This Petition dated 14th February 2024 is supported by the 2nd Petitioner’s affidavit in support. These Petitioners seek the following relief against the 1st and 2nd Respondents:
i. A Declaration do issue declaring that the Petitioners right to a fair trial as guaranteed under Article 50 of the Constitution was violated by the Respondents by putting them on a trial under Section 296 (2) of the Penal Code, which is un procedural.
ii. A declaration that Section 295, 296 (1) (2) 297 (1) & (2) of the Penal code Cap 63 Laws of Kenya are ambiguous and unconstitutional henceforth.
iii. An order for Petitioners to be released and their case be remitted back to the police stations to start a fresh with lawful provisions of the law that align with the Constitution or be released forthwith since they are facing unlawful charges.
iv. An order awarding cost of the Petition to the Petitioners.
Petitioners’ Case
47. The 2nd Petitioner depones that he alongside the other Petitioners were charged with the offence of Robbery with Violence under Section 296(2) of the Penal Code before the Chief Magistrates Court in CMCR No.479 of 2015.
48. He depones that they have brought this matter before this Court for review, following the Judgment delivered by a three - Judge bench on 15th September 2016. The Court therein is said to have declared Sections 295, 296(1), & (2) ,297(1) & (2) of the Penal Code, unconstitutional. It is claimed that the 3 - Judge bench directed the 2nd Respondent and 4th Respondent to consider the shortcomings set out in its Judgment concerning these Sections, in r
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1. The Petition dated 29th January 2024 which was subsequently amended on 4th March 2025 is supported by the affidavits of the 1st Petitioner’s Litigation Manager, Emily Kinama’s and Chris Kerkering.
2. The Petition seeks the following reliefs against the Respondents:
Declarations
i. A declaration that the Attorney-General, the Kenya Law Reform Commission, and the National Council on Administrative Justice have violated the orders in Kahinga to review and remedy the constitutional infirmities in the offences of Robbery, Robbery with Violence and Attempted Robbery with Violence statutes. A further declaration that the Attorney-General violated the orders in Kahinga by failing to report to the Court 18 months following the Kahinga judgment.
ii. A declaration that, since 15th March 2018, the Office of the Director of Public Prosecutions and the Judiciary have violated Articles 2(1)-(4), (5), & (6), 3(1), 20(1), 21(1), and 21(3) of the Constitution by continuing to charge, arraign, detain, try, arrest, and convict people under Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code despite the Kahinga decision.
iii. A declaration that the Attorney-General, Kenya Commission on Administration of Justice, Kenya Law Reform Commission, the National Council on Administrative Justice, and Parliament have violated Articles 2(1)-(4), (5), & (6), 3(1), 20(1), 21(1), and 21(3) of the Constitution by failing to uphold and respect the Constitution and observe, respect, protect, promote the rights guaranteed under the Bill of Rights.
iv. A declaration that Parliament has violated Articles 1(3), 93(2), and 94(4) by failing to uphold, protect, and defend the Constitution.
v. A declaration that all Respondents have violated the values and principles of good governance under Article 10 of the Constitution.
vi. A declaration that the Attorney-General has violated its duty under Article 156(6) and Section 5(e) of the Office of the Attorney-General Act by failing to draft legislative proposals to the National Assembly advising on the inconsistency and ambiguity of Sections 295, 296(1), 296(2), 297(1) and 297(2) and attendant violations to the right to a fair trial.
vii. A declaration that, since 15th March 2018, the Respondents, individually and collectively, have violated the fundamental rights and freedoms of all individuals arrested, charged, arraigned, detained, held in custody, tried, convicted, or sentenced under Sections 295, 296(1), 296(2), 297(1) and 297(2), including rights guaranteed under Articles 26, 27, 28, 29, 30, 31, 33, 35(1), 39(1), 48, 50(2)(b) and (n).
viii. A declaration that, since 15th March 2018, the Respondents have violated their duties under Sections 4(1) and (2)(f), (i), and (l) of the Victim Witness Protection Act by charging, arraigning, detaining, and trying individuals for violations of Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code.
ix. A declaration that the Office of the Director of Public Prosecutions violated Article 35(1)(a) and the Access to Information Act by refusing to give information to Katiba Institute and failing to forward the access to information request to the Judiciary.
x. A declaration that information regarding criminal arrests, charges, trials, convictions and sentences for each crime under the Penal Code and other laws is important information affecting the public that must be published and publicized under Article 35(3) of the Constitution.
Injunctive Orders
xi. An order prohibiting the Office of the Director of Public Prosecutions from charging and the Judiciary from accepting charges against individuals suspected of offences under Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code.
xii. An order directing the Judiciary, Kenya Prisons Service, and the Office of Director of Public Prosecutions to identify all individuals arrested, charged, or convicted of violations of Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code since 15th March 2018.
xiii. An order dismissing all pending charges filed under Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code and for the accused people to be released from custody immediately.
xiv. An order directing the Judiciary to vacate all convictions from 15th March 2018 for violating Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code.
xv. An order directing the Kenya Prisons Service to immediately release from custody all people who are imprisoned based on convictions from 15th March 2018 to the present for violating Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code.
xvi. An order directing that, per Article 35(3) of the Constitution, the Respondents publish and publicize information relating to arrests, charges, trials, convictions, and sentences for all crimes, including crimes under the Penal Code.
Damages
xvii. An order finding that the Respondents are jointly and severally liable for the harm caused by their violations of the Constitution and the law.
xviii. An order providing incidental, consequential, and aggravated general damages against the Respondents in favour of all individuals arrested, charged, detained, tried, or convicted of Robbery with Violence or Attempted Robbery with Violence from 15 March 2018 to date.
xix. An order for compensatory, incidental, consequential, and aggravated general damages against the Respondents in favour of all who have suffered harm because a family member has been arrested, charged, detained, tried, or convicted of Robbery with Violence or Attempted Robbery with Violence from 15th March 2018 to date.
xx. An order of compensatory incidental, consequential, and aggravated general damages in favour of all victims and alleged victims who have or will suffer trauma because the respondents have abrogated their duties and violated the rights of victims guaranteed under the Constitution and the Victim Witness Protection Act.
xxi. An order for punitive damages against the Attorney-General, the Judiciary, and the Office of the Director of Public prosecutions for their wilful or grossly indifferent violations of the fundamental rights and freedoms of all individuals arrested, charged, detained, tried, or convicted of Robbery with Violence or Attempted Robbery with Violence from 15th March 2018 to date.
Structural Interdict
xxii. Any further relief or orders, including a structural interdict, to ensure that the Respondents comply with the rulings of this Court and that those harmed by the Petitioners’ violations of the Constitution and the law are justly and appropriately accommodated.
Other relief
xxiii. An order that although this Petition has been filed in the public interest because the Respondents have abdicated their mandates under the Constitution and the law, the Respondents be required to indemnify the Petitioners for the expenses associated with the litigation.
xxiv. Any other orders this Court considers appropriate to protect the Constitution and the interests of justice.
1st Petitioner’s Case
3. The 1st Petitioner states that in a Judgment dated 15th September 2016 in Joseph Kaberia Kahinga & 11 Others [2016] eKLR, a 3-judge bench found Sections 295, 296(1), 296(2), 297(1) and 297(2) of the Penal Code that relate to Robbery, Robbery with Violence and Attempted Robbery with Violence, violated the Constitution because the provisions are too vague to be enforceable hence declared them unconstitutional. The Court then proceeded to suspend its judgment for 18 months to enable the 2nd, 4th and 6th Respondents amend the impugned Sections of the Penal Code.
4. That the judgment has never been appealed and no party has ever sought leave to stay the judgment beyond the 18-month suspension. That the Court’s suspension of the aforesaid judgment lapsed on 15th March 2018 yet the police and the 1st Respondent have continued to arrest, charge and prosecute persons while the 3rd Respondent has continued to try and sentence persons charged with these offences.
5. The 1st Petitioner stated that from the data obtained from the 3rd Respondent, over 10,000 people have been charged and 2000 convicted with the impugned offences since the said Judgment was passed. The Petitioner contends that in itself violates the fundamental principles of criminal justice, constitutional jurisprudence and the core duties of the State actors in the criminal justice system.
6. The 1st Petitioner discloses that on 1st March 2023, vide an email, sought information from the 1st Respondent concerning persons charged with robbery with violence under Sections 295 and 296(1) of the Penal Code. Specifically, the number of persons who had been charged since 16th February 2018 to date, number of active cases pending determination and persons who had since been convicted.
7. She avers that the 1st Respondent in its response dated 21st March 2023 stated that, it was in the process of digitizing its data. As such, it directed the 1st Petitioner to access the information from the 3rd Respondent. Further correspondence to the 1st Respondent dated 3rd May 2023 did not elicit any response.
8. The 1st Petitioner then proceeded to make a request for the information from the 3rd Respondent vide a correspondence dated 3rd May 2023 since the 1st Respondent had failed disclose this information. She avers that the 3rd Respondent provided the requested information on 15th June 2023.
9. The 1st Petitioner confirms that following the Court Order dated 30th September 2024, the 1st Respondent on 19th November 2023 issued the 1st Petitioner a schedule of the robbery with violence cases filed between 2018 and 2023.
10. In light of these averments, the 1st Petitioner asserts that by the 1st Respondent by relying on the impugned provisions of the Penal Code to charge, try and convict people of robbery with violence and attempted robbery with violence, is in violation of its duties under Articles 1(1); 2(1), (2) & (4); 3(1); 10(1) & (2); 19(2)(a) & (c); 20(1), 21(1) & (3), 157(6)(a) & (c), 157(10) & (11), 249(1) & (2) of the Constitution. Moreover, violated these persons rights under Articles 26(3), 28, 29(a) & (f), 30(2), 39(1) & (3), 45(1), 48, 49(g) & (h), 50(1), 50(2)(a) -(b) & (n)-(p), 51(1) of the Constitution. The 1st Petitioner adds that the 1st Respondent by failing to supply the sought information has violated Article 35 of the Constitution.
11. Equally, the 2nd Respondent is faulted for being in breach of its duty under Articles 2(1)-(4), (5), & (6), 3(1), 20(1), 21(1), and 21(3) or the Constitution. It is asserted that the 2nd Respondent failed to review the cited Judgment and issue a professional review of the impugned provisions and further make a Report of the same to the Court.
12. The 3rd Respondent is as well faulted for violating Articles 2(1)-(4), (5), & (6), 3(1), 20(1), 21(1), and 21(3) of the Constitution, by continuing to arraign, detain, try, arrest, convict and affirm the convictions of persons charged under the impugned Sections. The 4th Respondent is similarly accused of being in violation of Section 7 of the Sixth Schedule of the Constitution for failing to amend the Penal Code and specifically the impugned provisions so as to bring them into conformity with the Constitution.
13. The 1st Petitioner claims that the 5th Respondent has failed to ensure a coordinated, efficient, effective, and consultative approach in the administration of justice and reform of the justice system thus in contravention of Articles 2(1)-(4), (5), & (6), 3(1), 20(1), 21(1), and 21(3) or the Constitution. Equal averments are stated in relation to the 6th Respondent.
1st Respondent’s Case
14. The 1st Respondent in opposition to the Petition filed Grounds of Opposition dated 27th February 2024 on the premise that:
i. The 1st Respondent herein, the Office of the Director of Public Prosecutions, is an independent Office under Article 157(10) as read with Article 248 (1) of the Constitution, and consequently, does not require the consent of any person or authority for the commencement of any proceedings and in the exercise of his powers and functions, does not act under the directions and/or control of any person or authority.
ii. In the exercise of state prosecutorial powers, the 1st Respondent is guided by the Constitution, relevant statutes, sectoral and internal policies and guidelines, always conscious of ensuring that public interest and the wider interests of administration of justice are taken into consideration, and therefore the 1st Respondent should not be prohibited from making decisions whether to prosecute or not to prosecute for offences under Sections 295, 296(1) 296(2), 297(1), and 297 (2) of the Penal Code when those offences are still part of the law.
iii. The 1st Respondent in exercise of its Constitutional mandate conferred by Article 157 of the Constitution does not extend to undertaking the role of the legislature as conferred upon it under Article 109 of the Constitution.
iv. The 1st Respondent under Section 5 of the ODPP Act No.2 of 2013 particularly under Section 5(1)(d) (f) and (g) has a duty to advise the State on matters relating to administration of the criminal justice or doing other things as are necessary or incidental to the performance of its functions under the Constitution and the ODPP Act which does not extend to carrying out the function of the 6th Respondent (Kenya Law Reforms Commission) as provided under Section 6 of the Kenya Law Reform Commission Act No.19 of 2013 and therefore the 1st Respondent ought not to be prohibited from carrying out its mandate based on the foregoing.
v. In making the decision to charge under Sections 295, 296 (1) 296 (2) and 297 (1) of the Penal Code, the 1st Respondent neither abrogated, breached, infringed nor violated any provision of the Constitution or any human and fundamental rights of the Petitioner or any other written law or regulations made thereunder to the contrary, the 1st Respondent was under obligation at all times to weigh and consider the rights of victims of the offence or Robbery and Robbery with Violence.
vi. The 1st Respondent in exercise of its mandate under Article 157 is in compliance with Comity of Nations by balancing the competing rights of victims of crime as envisaged in the Kyoto Declaration On Advancing Crime Prevention, Crime Justice And The Rule Of Law Towards The Achievement Of The 2030 Agenda For Sustainable Development and that prohibits the 1st Respondent from charging under Sections 295, 296 (1) 296 (2) and 297 (I) of the Penal Code, will violate the rights of victims.
vii. Any order prohibiting the institution and or filing of any cases where individuals are charged with the offence of robbery with violence or attempted Robbery with violence under Section 295, 296, (I) 296 (2) 297 (2), 388 and 389 of the Penal Code and the consequential order sought in prayer number 2, 3, 4 and 7:
a) Has the potential to create an environment that enables serious crimes to thrive and threaten the lives and property of all humans whether Kenyan nationals, visiting, or resident foreigners, and for violent criminals to enjoy immunity from prosecution thereby threatening the ability of the state to maintain law, peace and public order necessary for economic growth and development.
b) Is likely to impair the ability of the State through its law enforcement agencies to curb serious violent crimes including containing violent theft and robberies through the detection of crimes, investigation; arrest and prosecution or the processing of the accused through the Criminal justice system.
c) The prohibition of the law enforcement agencies particularly the 3rd Interested Party from arresting suspects of attempted robbery or robbery with violence to face charges potentially infringes upon or and violates the competing rights to a fair trial to equal protection of law security of the victims of the crime.
viii. The 1st Respondent disagrees with the Petitioners’ interpretation of the Court's order in declaring that Sections 295, 296 (1) 296 (2) and 297 (I) of the Penal Code, do not meet the constitutional threshold for whose remedy is an omnibus release of every accused, convicted felon or grant of immunity from arrest and prosecution of any suspects as prayed for in the Petition. The 1st Respondent's interpretation of Order 5 of the Judgement in Petition No.618 of 2010 Joseph Kaberia & others -vs- The Attorney General is that, the Petitioners therein were to apply to the Court for mitigation and re-sentencing upon expiry of the stipulated period of 18 months.
ix. The 1st Respondent interpretation of Order 5 in the aforesaid Petition was well demonstrated by the path the said Petitioners took as follows:
a) In Misc. Cr. Application No.393 of 2018 Nairobi (Joseph Kaberia Kahiga -vs- Republic 2019 eKLR) Joseph Kaberia successfully sought rehearing, was given a chance to mitigate and was re-sentenced to the term already served.
b) In Misc. Cr. Application No.378 of 2018 Nairobi (Daniel Kioko Mbuva -vs- Republic 2019 eKLR) successfully sought rehearing, was given a chance to mitigate and was resentenced to a term of 10 years from the 13th February, 2019.
c) In Misc. Cr. Application No.395 of 2018 Nairobi (Ibrahim Ali Hatake -vs- Republic 2019 eKLR) successfully sought rehearing, was given a chance to mitigate and was resentenced to a term of 5 years from the 12th February, 2019.
x. In the absence of clarity in terms of the constitutionality or otherwise of Sections 295, 296 (]) 296 (2) and 297 (1), 297 (2) of the Penal Code, (in light of the continued subsistence of these provisions) and given that the Court of Appeal has rendered a decision that has a binding effect on the High Court in the case of Simiyu -vs- Republic CR. Appeal No.47 of 2018 [2021] KECA 247 (KLR) the 1st Respondent cannot be faulted and prohibited from charging and prosecuting offenders under Section 297(2) of the Penal Code guided by the decision of the Court of Appeal.
xi. The Petitioner's Application and Petition have failed to satisfy the threshold requirement for the grant of the interim reliefs sought, pending determination of this Petition and the relief sought are proportionate to the problem that is to be addressed by allowing the petition.
xii. The issues raised in the Petition are matters of grave public interest and would require clarity of the orders and sufficient time to ensure compliance if at all so as to enhance and create good order in the practice of criminal law.
15. In addition to this, the 1st Respondent filed a Replying Affidavit by the Senior Assistant Director of Public Prosecutions, Jalson Makori sworn on 29th February 2024.
16. With reference to the cited Judgment, Joseph Kaberia Kahinga & 11 others v Attorney General (Petition No.618 of 2010) [2016] eKLR delivered on 15th September 2016, he avers that the Court found that Sections 295, 296(1), 296(2), 297(1) & (2) did not meet the constitutional threshold of setting out with precision and differentiating the degree of aggravation of the offense of robbery and attempted robbery.
17. He notes that the Petitioner fails to appreciate that there is a remedy to any prejudice that arises out of any inadequacy in the impugned provisions of law and which has been applied by the High Court and Court of Appeal pending review and legislative amendments. Considering this, he argues that the Petitioner in seeking release of all convicted persons, dismissal of pending cases and prohibition of the 1st Respondent from charging under these Sections, is a misinterpretation of the Orders that were issued by the Court.
18. He depones that the 1st Respondent in exercise of its mandate and as a member of the Kenya Law Reform Commission and the National Council for Administration of Justice, has instigated the process that will ensure compliance with Order No.2 in the cited Judgment as seen in the correspondence dated 16th February 2024.
19. That said, he avers that there is no vacuum existing in the law to bring to justice the offenses of robbery, attempted robbery, attempted robbery with violence and robbery with violence. He stresses that the 1st Respondent cannot fetter his own power to exercise his discretion to make decisions to charge for these offences. He adds that the criminal prosecution is a critical component in maintenance of law, order and the rule of law. On this premise, he urges against grant of the orders sought in the Petition.
4th Respondent’s Case
20. The 4th Respondent through its Clerk, Samuel Njoroge C.B.S filed a Replying Affidavit sworn on 3rd July 2024.
21. Reiterating the averments and facts of this case, he commences by noting that the 4th Respondent was not enjoined as a Party in the Joseph Kaberia Kahinga(supra) case.
22. He avers that in order for the 4th Respondent to amend the impugned provisions of the Penal Code, the 2nd and 6th Respondents together with other relevant agencies were required by the Court to prepare a detailed professional review in view of the Judgment and Order made, to enable the 4th Respondent amend the Penal Code. In light of this, he asserts that the 4th Respondent cannot be faulted for non-compliance with the Court Orders as it would only proceed once it received this Review.
23. That’s said, he depones that the National Assembly Departmental Committee on Justice has been engaging the 5th Respondent on the proposal to amend the Penal Code and the Criminal Procedure Code. In addition, the 5th Respondent in a letter dated 11th October 2023, issued the 4th Respondent’s Rt. Speaker the draft Penal Code and Criminal Procedure Code Amendments Bills, for consideration by the House. He avers that these Bills contain amendments that seek to harmonize and align the Penal Code and Criminal Procedure Code with the Constitution.
24. He depones that at the moment, the Draft Bills are before the 4th Respondent’s Committee for consideration and harmonization with the other existing Bills that seek to amend the Penal Code.
25. Furthermore, he depones that there is another Bill before the 4th Respondent that seeks to amend the Penal Code, the Penal Code (Amendment) Bill, 2023 (National Assembly Bill No.55 of 2023). This Bill underwent the First reading on 3rd October 2023 and thereafter committed to the Departmental Committee on Justice and Legal Affairs.
26. In light of this, he informs that the 4th Respondent is already considering several proposals that seek to amend the Penal Code in line with the cited Judgment. As such, he contends that the Court as guided by the doctrine of separation of powers ought to refrain from interfering and dictating the 4th Respondent’s legislative mandate. He argues therefore that if the orders sought are granted, the same will be in violation of the doctrine of separation of powers.
27. He as well asserts that the Petitioner has prior to filing this suit failed to exhaust its right to Petition Parliament as envisaged under Article 119 of the Constitution as read with the Parliament (Procedures) Act. He stresses that no attempts were made to approach the 4th Respondent yet the mandate of amending laws lies with it.
28. To this end, he maintains that the questions raised in the Petition are primarily on law reforms. He for this reason, argues that this Court ought to exercise restraint and give the 4th Respondent a chance to conclude its legislative mandate.
6th Respondent’s Case
29. The 6th Respondent’s Chief Executive Officer, Joash Dache in reaction to this Petition swore a Replying Affidavit on 25th June 2023.
30. On a preliminary note, he states that the 6th Respondent’s mandate is limited to making the necessary proposals for reforms as the legislative authority is solely vested in the 4th Respondent under Article 94(1) of the Constitution.
31. He depones that following the cited Judgment, the 6th Respondent together with the 1st and 2nd Respondent embarked on a journey to address the issues raised issues by forming a Joint Committee. This Committee held several consultative meetings where other stakeholders were also engaged. He avers that this process could not be conducted within the stipulated 18 months as per the Judgment, owing to the wide spectrum of stakeholder engagements and resource constraints.
32. He depones that the proposed amendments of the Penal Code in line with the cited Judgment have since been initiated through the Penal Code (Amendment) Bill, 2023 which is pending before the 4th Respondent. Having discharged its duty, he asserts that the 6th Respondent has no control over the legislative process.
33. He points out that while the Court issued Orders in Joseph Kaberia Kahinga (supra) for the impugned Sections to be amended, the Court under Order 5 directed that if the orders are not complied with within the set timelines, the Petitioners were at liberty to make an application. He asserts that none of the Petitioners in the said case have moved the Court pursuant to its Orders, alleging non-compliance.
34. He postulates that the instant Petition is unnecessary and an abuse of the Court process as it seeks to enforce implementation of Orders that were issued in the cited case. He points out that this is tantamount to supervision of a decision of other High Court Judges contrary to Article 165(6) of the Constitution.
35. He as well argues that the blanket review of the impugned sentences as sought by the Petitioners would be contrary to public policy and a recipe for chaos in the criminal justice system.
36. It is argued that this Court should allow the 4th Respondent enact the amendments to the Penal Code already pending before it, so as to end the stalemate herein.
37. Equally, he notes that the Supreme Court in Muruatetu & another v Republic; Katiba Institute & 4 others (2021) KESC 31 (KLR) guided on practical ways to deal with a situation where persons affected by the orders of the High Court can apply for resentencing, being an application by the 1st Respondent and convicted person before the Trial Court, of the appropriate remedy based on the peculiar circumstances of a case.
The Other Respondents’ Case
38. The 2nd, 3rd and 5th Respondents’ responses to the Petition are not in the Court file or Court Online Platform (CTS).
1st Interested Party’s Case
39. The 1st Interested Party through its Chief Executive Officer, Dr. Benard Mogesa filed its Affidavit in support of the Petition sworn on 9th October 2025.
40. Rehashing the facts of this case, he avers that the Court in the cited Judgment, declared the impugned Sections unconstitutional. In his interpretation, the effect of this Judgment was that the offense of Robbery with violence and attempted Robbery with violence ceased to be crimes in Kenya. He notes that the Court suspended its decision for 18 months which lapsed on 15th March 2018, so as to enable the Respondents amend the impugned provisions of the Penal Code.
41. He asserts that the 2nd Respondent has failed to comply with the said Orders while the 1st Respondent has continued to charge accused persons with the impugned offences. He stresses that this is a clear violation of the non-derogable right to a fair trial and also a blatant disregard of the national values and principles of governance. He adds that Court Orders are not made in vain and as such all persons are duty bound to comply with them as failure to do so undermines the authority of the Court.
42. He equally claims that the 4th Interested Party’s fundamental rights under Article 25 and 50 of the Constitution have been violated by the 1st and 3rd Respondent’s actions.
43. He clarifies that while the 1st Interested Party supports the Petitioner’s case, it does not support the Order sought for release of all suspected and convicted persons without a specific framework that will protect the rights of the victims and complainants. As such, he urges the Court to balance the competing rights of the suspects, convicts and the victims.
44. He equally avers that this Court should impose sanctions on the Respondents to ensure compliance with the cited Orders and also summon the 2nd Respondent to explain the steps taken so far in this matter.
The Other Interested Parties Case
45. The 2nd to 7th Interested Parties responses to the Petition are not in the Court file or Court Online Platform (CTS).
Petition No. E080 of 2024
46. This Petition dated 14th February 2024 is supported by the 2nd Petitioner’s affidavit in support. These Petitioners seek the following relief against the 1st and 2nd Respondents:
i. A Declaration do issue declaring that the Petitioners right to a fair trial as guaranteed under Article 50 of the Constitution was violated by the Respondents by putting them on a trial under Section 296 (2) of the Penal Code, which is un procedural.
ii. A declaration that Section 295, 296 (1) (2) 297 (1) & (2) of the Penal code Cap 63 Laws of Kenya are ambiguous and unconstitutional henceforth.
iii. An order for Petitioners to be released and their case be remitted back to the police stations to start a fresh with lawful provisions of the law that align with the Constitution or be released forthwith since they are facing unlawful charges.
iv. An order awarding cost of the Petition to the Petitioners.
Petitioners’ Case
47. The 2nd Petitioner depones that he alongside the other Petitioners were charged with the offence of Robbery with Violence under Section 296(2) of the Penal Code before the Chief Magistrates Court in CMCR No.479 of 2015.
48. He depones that they have brought this matter before this Court for review, following the Judgment delivered by a three - Judge bench on 15th September 2016. The Court therein is said to have declared Sections 295, 296(1), & (2) ,297(1) & (2) of the Penal Code, unconstitutional. It is claimed that the 3 - Judge bench directed the 2nd Respondent and 4th Respondent to consider the shortcomings set out in its Judgment concerning these Sections, in r
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