Court: Why inmates convicted of robbery with violence could be released by June 2027

The High Court has issued a landmark ruling affecting prosecutions under Sections 295, 296, and 297 of the Penal Code, setting midnight on June 30, 2027, as a critical deadline after which affected cases could be quashed. 

The contested provisions relate to robbery, robbery with violence, and attempted robbery with violence, offences that have long been prosecuted under the Penal Code.

The court found that these sections were found unconstitutional under the three‑judge High Court bench decision in Joseph Kaberia Kahinga & 11 Others v Attorney General in 2016, which held that the sections of the Penal Code failed to meet constitutional thresholds for clarity and precision and thus violated the right to a fair trial.

In a judgment delivered by Justice Lawrence Mugambi on Wednesday, the court found that the State had persistently charged individuals under provisions previously declared unconstitutional, violating the constitutional right to a fair trial.

“The respondents have persisted in charging the petitioners despite the unconstitutional provisions of the Penal Code,” Justice Mugambi observed.

“Acting to charge individuals under provisions found unconstitutional violates the fair rights of persons. Accused persons have a right to a fair trial. Pursuing unconstitutional provisions is an abuse of State powers.”

The petitioners, who had been charged under these sections, argued that their constitutional rights had been violated, with some remaining in custody for up to 11 years.

They sought remedies, including a prohibition against further charges under the contested sections and the immediate release of those detained.

Justice Mugambi, while acknowledging the violation, declined to grant the blanket relief requested.

“Issuing a blanket order that immediately prohibits all trials with violence or ordering the release would be impractical,” he said, highlighting the risk of harm to the public and legal confusion.

Instead, the court maintained that the contested provisions remained unconstitutional but suspended the effect of that declaration for 18 months, giving the State time to review and reform the law.

During this period, the Attorney-General has been directed to file an affidavit every six months, detailing steps taken to ensure compliance with the ruling and updating on parliamentary processes.

The judgment emphasises that after the 18-month suspension, commencing 30 June 2027, the declaration of invalidity shall take effect forthwith.

“Any pending or fresh charges, prosecutions or proceedings based on the aforesaid provisions of the Penal Code shall on midnight of June 30, 2027, stand quashed for unconstitutionality and any affected persons be set free unless continuation of such charges is justified under any other valid law,” Justice Mugambi ruled.

This ruling has significant implications for prisoners whose detention relies solely on Sections 295, 296, and 297.

Those individuals risk release once the deadline lapses.

However, the court clarified that persons with other valid convictions or charges under different provisions will remain in custody.

The judgment also draws on precedent, referencing the Kahinga ruling, where the State was previously found guilty of violating constitutional standards in robbery with violence prosecutions.

Justice Mugambi reiterated that the petitioners’ approach to the court was valid given the State’s continued reliance on unconstitutional provisions.

By setting a clear deadline, the High Court has given the State a window to align robbery with violence prosecutions with constitutional standards while protecting the rights of affected prisoners.

It is now up to prosecutors and lawmakers to ensure compliance before June 2027, after which affected charges and prosecutions will automatically collapse if no corrective action is taken.