The Kisumu Court of Appeal has upheld the constitutionality of the mandatory death sentence for those convicted of robbery with violence.

Judges Hannah Okwengu, Hellen Omondi, and Joel Ngugi stated that while the constitutionality of the mandatory death sentence under Section 296(2) of the Penal Code has yet to be addressed as recommended by the Supreme Court, the death sentence is not unconstitutional because it is still legal.

PHOTO | COURTESY court

The justices issued the ruling in response to an appeal by six convicts of robbery with violence.

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Samuel Wafula, Constant Sifuna, Patrick Wafula, David Masinde, John Masindani, and Calistus Simiyu appealed against the High Court in Bungoma's verdict, which affirmed their death sentences.

They were accused of stealing Rukia Naskanda Asman's Sh50,000 in April 2013 in Kware village Luongo, Bungoma County, while equipped with offensive weapons like pangas and rungus.

According to the evidence in court, Rukia was sleeping in her residence when she was awakened about midnight by the sound of her bedroom door crashing open. She awoke, grabbed a torch, turned it on, and saw the intruders she recognized entering her bedroom.

PHOTO | COURTESY court hammer


After evaluating the evidence for the prosecution and the appellants' arguments, the trial magistrate found all six guilties of the crime, including Kennedy Juma Makhoka (who jumped bail before the court gave its judgment), and punished each.

The courts noted that the six contested the death sentence because it was unlawful and unconstitutional and that the trial magistrate did not follow his instructions at sentencing.

They stated that the six could not take sanctuary in the Supreme Court's judgment to deem illegal the obligatory element of the death penalty for murder under Section 204 of the Penal Code.

“The appellant cannot find refuge under Muruatetu 1 because the sentence of death imposed upon them is prescribed under section 296(2) of the Penal Code, for the offence of Robbery with violence, and not the offence of murder regarding which sentence is prescribed under section 204 of the Penal Code,” ruled the appellate court judges.