Ramadhan & 8 others v General & another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR) (6 February 2024) (Judgment)
Neutral citation:
[2024] KEHC 1173 (KLR)
Republic of Kenya
Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)
OA Sewe, J
February 6, 2024
IN THE MATTER OF: ARTICLES 2(5) & (6), 3, 22, 23, 19(3), 20(1) & (2), 25(a) & (c), 26(1), 27(1), 28, 29(d) & (f), 50(2) (q), AND 160 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: SECTIONS 216 AND 329 OF THE CRIMINAL PROCEDURE CODE, CHAPTER 75 OF THE LAWS OF KENYA
AND
IN THE MATTER OF: SECTION 296(2) AND 297(2) OF THE PENAL CODE, CHAPTER 63 OF THE LAWS OF KENYA
AND
IN THE MATTER OF: THE PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS AND ENFORCEMENT OF THE CONSTITUTION
AND
IN THE MATTER OF: THE SENTENSING POLICY GUIDELINES
Between
Shaban Salim Ramadhan
1st Petitioner
Franklin Otieno Olango
2nd Petitioner
Abdalla Said Mboga
3rd Petitioner
Christopher Bilali Sabaya
4th Petitioner
Paul Kimani Njeri
5th Petitioner
Douglas Owiye
6th Petitioner
Ibrahim Katana Kasungu
7th Petitioner
Peter Kimani Gachuhi
8th Petitioner
Katana Mwadzombo
9th Petitioner
and
Attorney General
1st Respondent
Director of Public Prosecutions
2nd Respondent
Judgment
1.The 9 petitioners are all convicts on death row at Shimo la Tewa Maximum Security Prison, having been convicted either of robbery with violence under Section 296(2) of the Penal Code, Chapter 63 of the Laws of Kenya, or attempted robbery with violence contrary to Section 297(2) of the Penal Code. They filed their Petition through Kituo Cha Sheria, basically complaining that, although upon their conviction, they were heard for purposes of sentencing, their mitigation was not taken into consideration because of the wording of Sections 296(2) and 297(2) of the Penal Code.
2.The petitioners averred that they are all relatively young, and had no previous criminal records as at the date of their conviction; but were nevertheless sentenced in disregard of their mitigating circumstances. As a result, they have been in custody for periods ranging from 6 to 25 years now, and have in the meantime acquired relevant skills while in prison, such as paralegal studies, tailoring, basic education and theology studies, which they have applied towards supporting fellow inmates. They further averred that the wording of Sections 296(2) and 297(2) of the Penal Code have the effect of limiting their right to fair trial as contemplated by Article 25(c) of the Constitution, which is a non-derogable right.
3.The petitioners further contended that their right to life under Article 26 of the Constitution is threatened by virtue of the death sentences that have been meted out against them. In addition, the petitioners made reference to their right to fair trial under Articles 25(c) and 50(2) of the Constitution, right to appeal under Article 50(2)(q) of the Constitution, freedom against discrimination under Article 27 of the Constitution, right to dignity under Article 28 and freedom and security of the person under Article 29(d) and (f) of the Constitution, and contended that the same have either been violated by dint of their respective sentences or are threatened with violation.
4.Accordingly, the petitioners prayed for the following reliefs vide their Petition filed on 9th March 2022:(a)A declaration that the mandatory nature of the death penalty as provided for under Section 296(2) and 279(2) of the Penal Code is unconstitutional.(b)A declaration that the petitioners be placed for re-hearing on mitigation and sentence depending on each petitioners’ circumstances and the same be considered for their ultimate sentencing.
5.The Petition was supported by the affidavit as well as a Further Affidavit sworn on behalf of all the petitioners by the 1st petitioner, Shaban Salim Ramadhan, in which the grounds set forth in the Petition were reiterated. The petitioners annexed copies of research papers and reports recommending the abolition of the death penalty and prayed that their Petition be allowed.
6.In response to the Petition, the 1st respondent averred that the petitioners have misinterpreted the law in so far as the Supreme Court did not invalidate the death sentence in other provisions of the law. Thus, the 1st respondent posited that the Court is bound by the decision of the Supreme Court in Francis Karioko Muruatetu & Another v Republic & Others [2017] eKLR (hereinafter, Muruatetu I) in which the issue of the constitutionality of the death sentence has been dealt with extensively and with finality.
7.When the Petition came up for directions on 13th June 2022, it was, at the instance of the parties, consolidated with Mombasa High Court Constitutional Petition No. 6 of 2022 wherein the 14 petitioners therein seek the same reliefs against the same two respondents. The petitioners are:(a)Gerald Muiruri Wathika (1st petitioner)(b)Stephen Nganga Gachuhi (2nd petitioner)(c)George Gikeria Njihia (3rd petitioner)(d)Aggrey Mbai Injaga (4th petitioner)(e)John Gitonga Ndungu (5th petitioner)(f)Stephen Kamau Mtabuki (6th petitioner)(g)Cornelius Mulili Mbui (7th petitioner)(h)Robert Njuguna Muthee (8th petitioner)(i)Bonface Kuria Karanja (9th petitioner)(j)Lawrence Mwanzia Titus (10th petitioner)(k)Sammy Muthangya Katuta (12th petitioner)(j)Vincent Kasuti Wafula (13th petitioner)(k)James Kinyoo Musya (14th petitioner)
8.Accordingly, directions were given that the two Petitions be canvassed by way of written submissions. The written submissions of the petitioners in Petition No. 5 were filed herein on 8th March 2023 by their counsel, Mr. Adika. They provided a detailed background that entailed the global perspective of death sentence and current trends, the African view as well as the Kenyan situation as borne out of recent reports of studies conducted by the by the Office of the Director of Public Prosecutions and the Kenya National Commission on Human Rights.
9.Thus, the petitioners submitted that, from the studies conducted, there is no longer any reasonable justification for the death penalty. They reiterated the provisions of the Constitution underpinning their Petition and added that, unless the orders sought are granted the Judiciary will continue to play the role of a conveyor of sentences passed by Parliament on convicts for robbery with violence under Section 296(2) of the Penal Code and attempted robbery with violence under Section 297(2) of the Penal Code. They relied on Reyes v the Queen [2002] 2 AC 335 for the proposition that, when enacted law is said to be incompatible with a right protected by the Constitution, it is the Court’s duty to interpret the Constitution and decide whether there is indeed any inconsistency.
10.It was further the submission of the petitioners in Petition No. 5 that the Supreme Court having pronounced itself in Muruatetu I, the same principles ought to apply in the context of robbery with violence and attempted robbery with violence. They pointed out that Article 27(1), (2) and (4) of the Constitution underscores the principles of equality before the law as well as equal protection before the law and submitted that upon the pronouncement of the Muruatetu I judgment, many inmates were released from prison who were on death row for the offences of robbery with violence and attempted robbery with violence. It was consequently their submission that it is discriminatory to deny them the same benefit.
11.In terms of human dignity, the petitioners submitted that every person has inherent dignity and the right to have that dignity respected and protected. They were of the view that the process of conducting the sentence of death is quite demeaning; and that, on that account, the Court has the jurisdiction to grant the orders sought and declare the unconstitutionality of the mandatory death sentence under Section 296(2) and 297(2) of the Penal Code.
12.In Petition No. 6 of 2022, written submissions dated 19th July 2022 were filed herein on behalf of the 14 petitioners in the matter. They reiterated the stance that the mandatory death sentence is unconstitutional, the same having been declared as such by the Supreme Court of Kenya; and therefore that cases of robbery with violence and attempted robbery with violence should not be the exception. In addition, they urged that, in the event of re-sentencing, an order be made for compliance with Section 333(2) of the Criminal Procedure Code, in line with the decision of the Court of Appeal in Ahamad Abolfathi Mohamed & Another v Republic [2018], with a view of accounting for the time so far spent by them in custody.
13.In the 1st respondent’s written submissions dated 5th April 2023, Ms. Kiti proposed the following issues for determination:(a)Whether the Court can overturn the decision of the Supreme Court;(b)Whether the Court is functus officio;(c)What orders should be granted.
14.According to the 1st respondent, it is not open for the Court to reconsider the constitutionality of the death sentence because the Supreme Court has already pronounced itself on the same. The 1st respondent relied on Dodhia v National & Grindlays Bank Limited & Another [1970] EA 195 to underscore the doctrine of stare decisis. Additionally, the 1st respondent submitted that the Supreme Court was deliberate in the Muruatetu I and limited its application to murder cases under Section 204 of the Penal Code. Thus, according to the 1st respondent, Muruatetu I is no authority for the petitioners’ contention that the death sentence, as provided for in Sections 296(2) and 297(2) of the Penal Code, is unconstitutional.
15.In support of the Attorney General’s arguments, Ms. Kiti relied on John Gilbert Ouma v Kenya Ferry Services Limited [2021] eKLR and Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR on the doctrine of functus officio and urged the Court to find that the constitutionality of the death penalty cannot be re-litigated. Lastly, the 1st respondent revisited the efforts made by the Kenya Law Reform Task Force on the Reform of Penal Laws, 1997 and the report submitted by the Task Force on Muruatetu I and postulated that the State intends to do away with the death penalty but is hindered by Article 26(3) of the Constitution.
16.Thus, the 1st respondent invited the Court to consider directing that a task force on the review of the mandatory nature of the death penalty in robbery with violence cases be established to table its recommendations to the courts and the Attorney General for adoption as guidelines. The 1st respondent was of the view that to allow the Petition would be to create havoc in the criminal justice system as well as inconsistency in sentencing of robbery with violence cases and other capital offence cases. It was further submitted that such a move would negate the intent of Article 26(3) and the whole purpose of the decision of the Supreme Court of Kenya in Muruatetu I. Accordingly, the 1st respondent prayed for the dismissal of the Petition with costs.
17.The petitioners thereafter filed responses to the respondents’ written submissions. They made reference to the directions given by the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2021] KESC 31 (KLR) (6 July 2021 (Directions) (Muruatetu II) and submitted that, although it limited the applicability of Muruatetu I to death sentence under Section 204 of the Penal Code, the principles ought to apply across board. They relied on Criminal Appeal No. 260 of 2019: Oprodi Peter Omukanga v Republic and submitted that counsel misconstrued the directions of the Supreme Court in Muruatetu II. They relied on paragraph 15 of Muruatetu II for their assertion that the Supreme Court thereby opened the way for other capital offences, such as treason, robbery with violence under Section 296(2) and attempted robbery with violence under Section 297(2) of the Penal Code be presented for full argument before the High Court before being escalated to the Supreme Court through the Court of Appeal. They submitted therefore that this Court is rightfully placed to entertain the Petition and grant the reliefs sought.
18.In response to the 2nd respondent’s written submissions, the petitioners cited Omuse v Republic [2009] KLR 214 to buttress their submission that sentences must be commensurate with the moral blameworthiness of the offenders and the circumstances of the offence. They reiterated the posturing that their Petition is not about the constitutionality of the death sentence in respect of the offences of robbery with violence and attempted robbery with violence, but about the mandatory nature of the sentence; which in their view constitutes not only violations of offenders’ rights but also contravenes the doctrine of separation of powers as envisaged by Article 160 of the Constitution. Thus, the petitioners urged the Court to allow their Petition and grant the prayers sought therein.
19.As has been pointed out hereinabove, the petitioners prayed for the following reliefs:(a)A declaration that the mandatory nature of the death penalty provided for under Section 296(2) and 279(2) of the Penal Code is unconstitutional.(b)A declaration that the petitioners be placed for re-hearing on mitigation and sentence depending on each petitioners’ circumstances and the same be considered for their ultimate sentencing.
20.Having given due consideration to the Petition, the affidavits and the written submissions filed by the parties, including the authorities relied on by them, the issues emerging for determination are:(a)the constitutionality of the mandatory death sentence as provided for in Sections 296(2) and 297(2) of the Penal Code.(b)What reliefs, if any, ought the Court to give.
A. On the constitutionality of the mandatory death sentence as provided for in Sections 296(2) and 297(2) of the Penal Code:
21.The two Petitions are hinged on Articles 20(1), 22, 23(3)(a) and (d), 29, 48 and 50(2)(q) of the Constitution. Article 20(1) provides for the application of the Bill of Rights to all laws; and is explicit that it binds all state organs and all persons. Articles 22 and 48 of the Constitution provide for enforcement of the Constitution and access to justice, respectively. Article 23(3)(a) of the Constitution is the provision that empowers the Court to grant appropriate reliefs, including a declaration of rights.
22.Article 29(d) and (f) safeguard the right of every person to freedom and security of the person, including the right not to be subjected to torture in any manner, whether physical or psychological; and the right not to be treated or punished in a cruel, inhuman or degrading manner. Article 50(2)(q) of the Constitution, on the other hand, provides that every accused person has the right to a fair trial, which includes the right, if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
23.Needless to mention that Article 259 of the Constitution provides for a holistic approach to the interpretation of the provisions of the Constitution. In particular, it states in Sub-Articles (1), (2) and (3) that:(1)This Constitution shall be interpreted in a manner that—(a)promotes its purposes, values and principles;(b)advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;(c)permits the development of the law; and(d)contributes to good governance.(2)If there is a conflict between different language versions of this Constitution, the English language version prevails.(3)Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking…”
24.What amounts to a holistic interpretation was discussed by the Supreme Court in the Matter of Kenya National Human Rights Commission, Supreme Court Advisory Opinion Ref. No.1 of 2012, thus:
25.Similarly, in Institute of Social Accountability & Another v National Assembly & 4 others [2015] eKLR the approach taken in a comparable situation was as follows:56.First, this Court is enjoined under Article 259 of the Constitution to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributes to good governance. In exercising its judicial authority, this Court is obliged under Article 159(2)(e) of the Constitution to protect and promote the purpose and principles of the Constitution.57.Second, there is the general presumption that every Act of Parliament is constitutional and the burden of proof lies on any person who alleges otherwise (see Ndyanabo v Attorney General of Tanzania [2001] EA 495)…58.Third, in determining whether a Statute is constitutional, the Court must determine the object and purpose of the impugned statute for it is important to discern the intention expressed in the Act itself (see Murang’a Bar Operators and Another v Minister of State for Provincial Administration and Internal Security and Others Nairobi Petition No. 3 of 2011 [2011] eKLR, Samuel G. Momanyi v Attorney General and Another (supra)). Further, in examining whether a particular statutory provision is unconstitutional, the court must have regard not only to its purpose but also its effect. The Canadian Supreme Court in the R v Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 enunciated this principle as follows;Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.59.Fourth, the Constitution should be given a purposive, liberal interpretation. The Supreme Court in Re The Matter of the Interim Independent Electoral Commission Constitutional Application (supra) at para. 51 adopted the words of Mohamed A J in the Namibian case of State v Acheson 1991(20 SA 805, 813) where he stated that;The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relationship of government and the governed. It is a mirror reflecting the “national soul” the identification of ideas and... aspirations of a nation, the articulation of the values bonding its people and disciplining its government. The spirit and tenor of the Constitution must, therefore preside and permeate the process of judicial interpretation and judicial discretion.60.Lastly and fundamentally, it is the principle that the provisions of the Constitution must be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other (see Tinyefuza v Attorney General of Uganda Constitutional Petition No. 1 of 1997 (1997 UGCC 3)).”
26.Hence, as to the constitutionality of the death sentence generally, the starting point is Article 26(3) of the Constitution, which is explicit that:
27.Sections 296(2) and 297(2) of the Penal Code are some of the provisions of written law that provide for the death sentence, in addition to Section 24 of the Penal Code, which generally stipulates that:The following punishments may be inflicted by a court—SUBPARA (a)death;(b)imprisonment or, where the court so determines under the Community Service Orders Act, 1998, community service under a community service order;(c)detention under the Detention Camps Act;(d)Deleted by Act No. 5 of 2003, s. 3;(e)fine;(f)forfeiture;(g)payment of compensation;(h)finding security to keep the peace and be of good behaviour;(i)any other punishment provided by this Code or by any other Act.
28.Accordingly, the situation obtaining in Kenya was aptly captured thus by a multiple bench of the High Court in Joseph Kaberia Kahinga & 11 Others v Attorney General [2016] eKLR:
29.Hence, at Paragraph 52 of its decision in Muruatetu 1, the Supreme Court was explicit that:
30.It is plain therefore that the petitioners’ arguments to the effect that death sentence is demeaning and amounts to a violation of the right to life are entirely untenable. The principle of stare decisis dictates that points in litigation be determined according to precedent. Accordingly, in Dodhia v National & Grindlays Bank Limited & Another [1970] EA 195, it was held:
31.Accordingly, the constitutionality of the death sentence as provided for in Sections 296(2) and 297(2) is now settled. In the same vein, it is also indubitable that the mandatory nature of the death sentence for the offence of murder has been settled by the Supreme Court in Muruatetu I. Here is what the apex court had to say in this regard:
32.The Court further held, at paragraphs 58 and 59 of its judgment that:(58)"To our minds, any law or procedure which when executed culminates in termination of life, ought to be just, fair and reasonable. As a result, due process is made possible by a procedure which allows the Court to assess the appropriateness of the death penalty in relation to the circumstances of the offender and the offence. We are of the view that the mandatory nature of this penalty runs counter to constitutional guarantees enshrining respect for the rule of law.(59)We now lay to rest the quagmire that has plagued the courts with regard to the mandatory nature of Section 204 of the Penal Code. We do this by determining that any court dealing with the offence of murder is allowed to exercise judicial discretion by considering any mitigating factors, in sentencing an accused person charged with and found guilty of that offence. To do otherwise will render a trial, with the resulting sentence under Section 204 of the Penal Code, unfair thereby conflicting with Articles 25 (c), 28, 48 and 50 (1) and (2)(q) of the Constitution.”
33.Then, at paragraph 69 of its Judgment the Supreme Court made it clear that:
34.It is therefore significant to acknowledge the petitioner’s assertion that some inmates benefited from Muruatetu I and had their sentences reviewed and converted into terms of imprisonment. For instance, in William Okungu Kittiny v Republic [2018] eKLR, in which the Court of Appeal had occasion to reflect on the ramifications of Muruatetu I, it was held that:
35.The Supreme Court has since issued further guidance in connection with the Muruatetu I vide its Directions dated 6 July 2021 (Muruatetu III) thus:(11)"The ratio decidendi in the decision was summarized as follows;(12)We therefore reiterate that, this Court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.…(14)It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two Petitioners who approached the Court for specific reliefs. The ultimate determination was confined to the issues presented by the Petitioners, and as framed by the Court.”
36.Hence, it cannot be validly argued, as the respondents tried to, that the court is functus officio or that the Petition is a non-starter on account of the Muruatetu I. This is because, in Muruatetu II the Supreme Court was explicit at paragraph 15 that:
37.Accordingly, the ratio decidendi in Muruatetu I is equally applicable to robbery with violence and attempted robbery with violence as contemplated by Sections 296(2) and 297(2) of the Penal Code. I find succor in the decision of Hon. Odunga, J. (as he then was) in Maingi & 5 Others v Director of Public Prosecutions & Another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) (17 May 2022) (Judgment) which, though in respect of mandatory minimum sentences under the Sexual Offences Act, was hinged on the same ratio. It is also significant that the decision was made after Muruatetu II. Here is what the learned judge had to say:
38.Likewise, in Oprodi Peter Omukanga v Republic (Criminal Appeal 260 of 2019) [2023] KECA 430 (KLR) the Court of Appeal aptly stated thus in this regard:
39.The Court of Appeal further stated, at paragraph 31 of its Judgment that:
40.It is in the light of the foregoing that I find merit in the contention by the petitioners that the mandatory nature of the death sentences provided for in Sections 296(2) and 297(2) of the Penal Code is unconstitutional.
B. On whether a case has been made out in respect of Section 333(3) of the Criminal Procedure Code:
41.In their written submissions dated 7th March 2023, the petitioners urged that, in the event of re-sentencing, an order be made for compliance with Section 333(2) of the Criminal Procedure Code, in line with the decision of the Court of Appeal in *Ahamad Abolfathi Mohamed & Another v Republic [2018], with a view of accounting for the time so far spent by them in custody.
42.Section 333(2) of the Criminal Procedure Code states:
43.Accordingly, in Ahmad Abolfathi Mohammed & Another Criminal[2018] eKLR the Court held:
44.It is noteworthy however that nowhere in the two Petitions did the petitioners provide the factual basis of their complaints under Section 333(2) of the Criminal Procedure Code. Consequently, the issue was not addressed in the Supporting Affidavit or Responses to the Petitions. It is now trite that allegations of violation of the Constitution must not only be pleaded with specificity but must also be sufficiently proved. In Anarita Karimi Njeru v Republic [1979] eKLR the Court of Appeal held:
45.The principle was affirmed by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as hereunder:
46.In the premises, I endorse the position taken by Hon. Chacha, J. in Godfrey Paul Okutoyi & others v Habil Olaka & Another [2018] eKLR, that:
47.Thus, any breaches of Section 333(2) of the Criminal Procedure Code ought to be dealt with by way of revision on case by case basis. It would serve no useful purpose for the Court to issue a blanket declaration in this regard, without knowing whether or not such a breach ever occurred as a matter of fact. It is therefore my finding that this aspect of the petitioner’s case must fail.
C. On the applicable reliefs:
48.Article 23(3) of the Constitution provides that in any proceedings brought under Article 22, a court may grant appropriate relief, including a declaration of rights. In Minister of Health & Others v Treatment Action Campaign & Others (2002) 5 LRC 216 at page 249 appropriate relief was defined thus:
49.In the result, that I find merit in the two Petitions. It is therefore hereby ordered that:(a)A declaration be and is hereby made that the mandatory nature of the death penalty as provided for under Section 296(2) and 279(2) of the Penal Code is unconstitutional.(b)The petitioners be presented before the respective sentencing courts for sentence re-hearing upon appropriate applications being made in that regard in line with Paragraphs 2.2.1, 2.2.2, 2.2.3 and 2.2.4 of the Judiciary Sentencing Guidelines.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 6TH DAY OF FEBRUARY 2024OLGA SEWEJUDGE