Sentencing In Attempted Capital Offences Section 297 (2) of the Penal Code (which prescribed a sentence of death for the offence of attempted robbery) contradicted section 389 of the Penal Code (which prescribed a maximum of seven years imprisonment for an attempt to commit a capital offence) and was against the general rules of international law which by virtue of Article 2 (5) of the Constitution are part of the law of Kenya. Protus Buliba Shikuku v Attorney General [2012] eKLR Constitutional Reference No. 3 of 2011 High Court at Kisumu R N Nambuye, JA & A Aroni, J. February 13, 2012 The High Court sitting as the Constitutional Court invoked its mandate in Article 23 (3) as read with Article 165 (1) (2) (3) (a) (b) (d) (i) (ii) of the Constitution and declared that section 297 (2) of the Penal Code contradicted section 389 of the Penal Code as to the sentence of the offence of attempted robbery, noting that section 297 (2) of the Penal Code had no primacy over section 389 of the Penal Code. The petitioner’s final appeal against conviction and sentence before the Court of Appeal had been dismissed hence the petition before the Constitutional court on grounds, inter alia, that the petitioner’s constitutional rights had been breached by the respondent by convicting and sentencing him to serve an unlawful sentence, and that section 297 (2) of the Penal Code (which prescribed a sentence of death for attempted robbery) was in contradiction with section 389 of the Penal Code (which prescribed a 12 maximum of seven years imprisonment for an attempt to commit a capital offence) as to the offence of attempted robbery and was against the letter and spirit of the Constitution enshrined in Article 26 (1) (2) and Article 50 (2), and the benefit of the contradiction should be accorded to him. It was the petitioner’s case that all the courts through which he was processed had failed to reconcile the contradictions in the provisions of section 297 (2), 388 and 389 of the Penal Code. He submitted that the Court of Appeal had appreciated the said contradictions and accorded the benefit to the respective appellants in Evanson Muiruri Gichane v Republic, CA No. 277 of 2002; Godfrey Ngotho Mutiso v Republic, CA No. 17 of 2008; and Boniface Juma Khisa v Republic CA No. 268 of 2009, and it was on this basis that he approached the Constitutional Court to bestow a similar benefit on him as well. The court held that section 297 (2) contradicted section 389 of the Penal Code regarding the sentence of the offence of attempted robbery and was not only against the letter and spirit of section 389 of the Penal Code providing a general penalty for attempted felonies among them attempted robbery, but also against the provisions of the Constitution as well as international norms and best practices accessed through Article 2 (5) of the Constitution.
Posted on: Mon, 11 Aug 2014 05:27:03 +0000
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