[2012] KEHC 5517 (KLR)

[2012] KEHC 5517 (KLR)

The High Court held that it has jurisdiction to entertain the petition under Article 23(1) and Article 165 of the Constitution, as well as transitional provisions, despite the exhaustion of appellate remedies. The Court found that Section 297(2) of the Penal Code, which prescribes a mandatory death sentence for attempted robbery, is in conflict with Section 389, which limits punishment for attempted felonies to a maximum of seven years. Recent Court of Appeal decisions have resolved this contradiction in favour of the less severe sentence. The Court determined that the petitioner is entitled to benefit from this jurisprudence, as constitutional rights to fair trial, equality before the...

Citation
[2012] KEHC 5517 (KLR)
Parties
Applicant: Protus Buliba Shikuku; Respondent: Honourable Attorney General
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Judgment Date
13 February 2012
Case Number
Constitutional Reference 3 of 2011
Procedural Posture
Constitutional Reference / Judgment
Outcome
petition_allowed
Legal Topics
Mandatory Death Sentence, Right to Fair Trial, Contradiction in Penal Code, Retrospective Application of Jurisprudence, Inhuman and Degrading Punishment, Jurisdiction of High Court
Source Language
English
Constitutional Law Criminal Law Mandatory Death Sentence Right to Fair Trial Contradiction in Penal Code Retrospective Application of Jurisprudence Inhuman and Degrading Punishment Jurisdiction of High Court

Case Brief

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Parties

Protus Buliba Shikuku

Applicant

Honourable Attorney General

Respondent

Procedural Posture

Constitutional Reference / Judgment

Legal Issues

  1. 1 Whether the High Court has jurisdiction to entertain the petition after exhaustion of appellate remedies.
  2. 2 Whether Section 297(2) of the Penal Code prescribing mandatory death sentence for attempted robbery is in conflict with Section 389 of the Penal Code.
  3. 3 Whether the petitioner is entitled to benefit from the less severe sentence under Section 389 of the Penal Code in light of recent jurisprudence and constitutional provisions.

Ratio Decidendi

The High Court held that it has jurisdiction to entertain the petition under Article 23(1) and Article 165 of the Constitution, as well as transitional provisions, despite the exhaustion of appellate remedies. The Court found that Section 297(2) of the Penal Code, which prescribes a mandatory death sentence for attempted robbery, is in conflict with Section 389, which limits punishment for attempted felonies to a maximum of seven years. Recent Court of Appeal decisions have resolved this contradiction in favour of the less severe sentence. The Court determined that the petitioner is entitled to benefit from this jurisprudence, as constitutional rights to fair trial, equality before the...

Court Disposition

petition_allowed

Orders

  • It is declared that Section 297(2) of the Penal Code contradicts Section 389 regarding the sentence for attempted robbery and is inconsistent with the Constitution.
  • Section 297(2) of the Penal Code has no primacy over Section 389 for sentencing attempted robbery.