Court declares mandatory nature of death sentence for robbery with violence unconstitutional
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The High Court in Nyeri has declared the mandatory nature of the death sentence for robbery with violence unconstitutional.
In a judgment delivered on October 13, 2026, Justice Kizito Magare found that Section 296(2) of the Penal Code, which requires courts to impose the death sentence for robbery with violence, violates constitutional protections, including the right to a fair trial, human dignity and freedom from cruel, inhuman or degrading punishment.
The court held that the decision does not invalidate the death penalty itself but removes the requirement that it must be imposed in every case involving a conviction for robbery with violence.
“The declaration does not disturb the validity of the death penalty, which remains available under section 296(2) of the Penal Code as a discretionary maximum sentence,” Justice Magare ruled.
The judge added that the constitutional violation lay in compelling courts to impose the death sentence without considering the circumstances of each case.
“What is declared inconsistent with the Constitution is the compulsion: the requirement that the court shall pass that sentence and no other,” ruled the court.
The decision followed a petition by Moses Gitahi Mwangi, who challenged the constitutionality of the mandatory sentencing provision after being convicted over a robbery committed in 2005 in Nyeri District.
Mwangi was convicted in 2008 after robbing a shop of goods valued at Sh150,000 while armed with a panga and acting alongside others.
His death sentence was later commuted to life imprisonment in 2016 through presidential mercy.
Mwangi had argued that section 296(2) creates a class of persons “deprived of the opportunity to mitigate and to show cause why they should not be sentenced to death,” contrary to Article 27 (equal protection).
He said the provision “removes judicial discretion in sentencing” and so defeats sections 216 and 329 of the Criminal Procedure Code, breaching the right to a fair hearing under Article 50.
“The law is therefore arbitrary and oppressive and violates Article 26 (right to life),” said Mwangi.
He further said that the circumstances of robbery with violence are even more varied than those of murder
Justice Magare relied on the Supreme Court’s 2017 decision in the Francis Karioko Muruatetu case, which declared the mandatory nature of the death sentence for murder unconstitutional.
Although the Supreme Court initially confined its decision to murder cases, it issued further directions in 2021 allowing challenges to mandatory sentences for other capital offences, including robbery with violence, to be pursued before the High Court.
The judge rejected the argument that determining criminal penalties was exclusively a matter for Parliament, ruling that the Judiciary has a constitutional duty to assess whether legislation complies with the Constitution.
“A provision that admits of only one sentence sets no parameter and leaves no judgment to be made,” Justice Magare ruled.
The court found that mandatory sentencing treated offenders as an undifferentiated mass, failing to account for differences in their roles, the circumstances of the offences and their personal circumstances.
Justice Magare also highlighted the disparity between murder and robbery with violence, holding that following the Muruatetu decision, people convicted of murder could seek sentences tailored to their circumstances, while those convicted of robbery with violence remained subject to an automatic death sentence, even where no one had been killed or injured.
The judge said that an offender who intentionally kills could be in a better position before a sentencing court than one convicted of robbery in which nobody was injured.
“The disparity does not appear to arise from any deliberate legislative judgment… Rather, it is a consequence of the order in which the respective provisions came before the Supreme Court for consideration,” ruled the court.
“A distinction that rests on such a fortuitous circumstance… is arbitrary. It therefore violates the right to equal protection and equal benefit of the law.”
In considering Mwangi’s case, the court ruled that he was a first offender, was young at the time of his arrest and had maintained good conduct in prison.
The stolen items had also been recovered, and the court found no aggravating circumstances warranting a harsher sentence.
Justice Magare declined to send the matter back to the trial court for resentencing, citing the age of the case and the fact that the magistrate who handled it was no longer stationed at the court.
The judge consequently set aside both Mwangi’s death sentence and the subsequent life imprisonment, substituting them with a sentence equivalent to the period he had already served, which exceeded 21 years.
He ordered Mwangi’s immediate release unless he was otherwise lawfully held.
The judge urged Parliament to amend the Penal Code and introduce different categories of robbery, with sentences tailored to the severity of each offence.
Justice Kizito Magare recommended the introduction of first-degree, second-degree and third-degree robbery, alongside simple robbery, saying the current legal framework creates a sharp disparity in punishment between offenders whose crimes differ significantly in severity.
The judge observed that the existing law creates an abrupt and potentially arbitrary difference in punishment between simple robbery and robbery with violence.
Under the proposed framework, first-degree robbery would cover aggravated offences involving death, grievous harm, the discharge of a firearm, the use of explosives, sexual offences or the use of a dangerous weapon to inflict injury. The court proposed that the category attract the maximum punishment available under the law as a discretionary sentence for the gravest cases.
Second-degree robbery would cover offences in which an offender uses or displays a firearm or other dangerous weapon to threaten a victim without causing injury, as well as cases involving bodily harm short of grievous harm.
Such offences would attract substantial prison terms, potentially including life imprisonment or a specified term of years.
Third-degree robbery would cover offences committed by two or more people, or involving the use or threat of personal violence, but without weapons or significant injury. Simple robbery would remain a separate category under the proposed classification.
The court also recommended that attempted robbery be classified along similar lines, with maximum sentences lower than those prescribed for completed offences of the corresponding degree.
Justice Magare further proposed that Parliament clearly define what constitutes a dangerous or offensive weapon, noting the need to distinguish between weapons with substantially different levels of danger.
The judge also recommended that sentencing courts be required to consider the individual role played by each participant in a robbery, ensuring that offenders who neither inflicted nor intended serious violence are not punished as though they had.
The court also recommended that the legislation set out, non-exhaustively, the aggravating and mitigating factors to be weighed, “including the vulnerability of the victim, the degree of planning, the harm caused, the age and antecedents of the offender, and restitution.”
It further recommended that Parliament prescribe what a sentence of life imprisonment means and provide for its review after a stated period, and create a statutory framework for re-sentencing persons already serving sentences under sections 296(2) and 297(2), “so that their cases are dealt with uniformly rather than petition by petition.”
Justice Magare stressed that “these are recommendations only,” adding that “it is for Parliament to determine the appropriate degrees of robbery, their definitions, and the penalties applicable to each.”
In its final orders, the court declared Section 296(2) of the Penal Code unconstitutional and invalid only to the extent that it makes the death sentence mandatory for robbery with violence.
The death penalty remains available as a discretionary maximum sentence.
The court also granted the parties 14 days to appeal the decision.
The judgment has been forwarded to the Attorney General, the Speakers of both Houses of Parliament and the Kenya Law Reform Commission for consideration of the proposed legislative reforms.
