The Office of the Directorate of Public Prosecutions (ODPP) continues to charge individuals like Brian Meshak Onyango with robbery with violence, despite a High Court ruling eight years ago that declared Section 296 (2) of the Penal Code unconstitutional, null, and void.
Just three days after a Magistrate Court in Milimani ruled that the robbery with violence charge against Ian Njoroge, a student allegedly involved in the assault of a police officer, was unfounded, the ODPP has again charged another suspect with the same offense.
Brian Meshak Onyango was charged today with robbery with violence under section 296 (2) of the Penal Code.
According to the prosecution, on June 9, 2024, at Sapros Club in Nairobi, Onyango and others not in court robbed Antony Macharia of two mobile phones worth Ksh 128,000 and a wristwatch valued at Ksh 6,000. The prosecution further alleges that Onyango used actual violence against Macharia immediately after the robbery.
Appearing before Milimani Chief Magistrate Lucas Onyina, Onyango denied the charges and was detained pending a bail and bond ruling.
Section 296 (2) of the Penal Code outlines the elements of robbery. For an incident to qualify as robbery with violence, it must involve theft, the number of assailants, whether the assailant was armed with a dangerous weapon, and whether the assailant used violence against the complainant.
However, in 2016, the High Court declared the provisions of Section 296 (2) unconstitutional. This landmark ruling led Katiba Institute to sue the Director of Public Prosecution (DPP) and the Judiciary in January 2024. The lawsuit addresses the continued criminal charges of robbery with violence, despite the High Court’s ruling.
In a petition filed with the Milimani High Court, the Human Rights Lobby Group accuses the DPP and Judiciary of failing to revoke charges of robbery with violence and attempted robbery as ordered by the court eight years ago.
“The Respondents’ wholesale abandonment of their core constitutional duties and utter indifference to all Kenyans’ fundamental rights and freedoms continues. Each day, people are arrested, charged, arraigned, detained, tried, convicted, and sentenced based on these ghost crimes,” states the court papers.
According to Katiba Institute, since the provisions were declared unconstitutional in 2016 and officially ceased to exist in law on March 15, 2018, no individual arrested for the offense of robbery with violence or attempted robbery should be charged, tried, or convicted for these crimes.
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The ongoing prosecutions highlight a significant legal controversy in Kenya, as the ODPP and Judiciary persist in applying a statute that the High Court deemed invalid. This raises serious questions about the adherence to constitutional mandates and the protection of fundamental rights. Despite the High Court’s clear ruling, the continued use of Section 296 (2) suggests a disconnect between judicial decisions and prosecutorial actions, undermining the legal system’s integrity and the rule of law.
Katiba Institute’s lawsuit emphasizes the critical need for accountability within the legal system. The case seeks to enforce the High Court’s ruling and protect individuals from being prosecuted under a law that no longer legally exists. This situation underscores the broader issue of legal reform and the necessity for judicial decisions to be respected and implemented effectively.
The outcome of this legal battle will likely have far-reaching implications for the Kenyan justice system, potentially reinforcing the importance of constitutional adherence and the protection of citizens’ rights. It also serves as a reminder of the vital role of oversight and advocacy groups in upholding the rule of law and ensuring that judicial rulings are not merely symbolic but are actively enforced to protect individuals from unjust prosecution.
