By Andrew Kariuki
The High Court has declined to grant an order seeking the mass release of inmates charged or convicted of robbery with violence, cautioning that such a directive would undermine public safety and disrupt the administration of criminal justice.
In a judgment delivered by Justice Lawrence Mugambi, the court acknowledged that the continued reliance on certain provisions of the Penal Code governing robbery with violence has resulted in constitutional violations, particularly where courts have previously declared aspects of the law unconstitutional.
Justice Mugambi noted that despite earlier judicial findings, State agencies have continued to charge suspects under the affected provisions, an approach the court described as inconsistent with binding court decisions and detrimental to the rights of accused persons, including the right to a fair trial and due process.
However, the judge ruled that ordering the immediate release or automatic acquittal of all affected inmates would be unsafe and impractical.
He warned that such a sweeping remedy would derail ongoing criminal proceedings, overwhelm the justice system and expose the public to serious security risks.
The court emphasised that criminal liability must be determined on a case by case basis, stressing that a universal order would ignore the specific facts, evidence, and circumstances surrounding individual prosecutions.
The petition before the court challenged the constitutionality of Sections 295, 296(1), 296(2) and 297 of the Penal Code, which define and prescribe penalties for robbery with violence and attempted robbery with violence.
Petitioners argued that despite a 2018 ruling that invalidated parts of the framework, prosecutions under the same provisions had persisted.
In resolving the matter, the court adopted the principle of suspended invalidity, declaring Sections 295 and 297 unconstitutional, but temporarily suspending the effect of that declaration to allow Parliament time to correct the defects in the law.
Justice Mugambi explained that an immediate nullification would leave law enforcement agencies and courts without a legal basis to handle violent robbery cases, creating what he described as a dangerous legal gap.
To ensure accountability, the court ordered the Attorney General to file progress reports every six months for a period of 18 months, detailing steps taken to amend the law and align it with constitutional requirements.
The suspension will remain in force until midnight on June 30, 2026.
The court further warned that once the suspension period expires, the declaration of unconstitutionality will automatically take effect.
From midnight on June 30, 2027, any new or pending charges, prosecutions, or convictions based solely on Sections 295 and 297 will be rendered invalid and individuals detained exclusively under those provisions will be entitled to release.
