Job William Namachanja v Republic

High Court of Kenya

30 January 2019

SRS. N. Riechi

858 words in judgment

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The bottom line

The court confirmed that while the mandatory death penalty is unconstitutional, the death penalty itself remains a legal punishment in Kenya.

What this practically means

Executive summary

The petitioner, Job William Namachanja, was convicted of robbery with violence in Bungoma CM CRI. 2481/2009 and sentenced to death, his conviction and sentence being affirmed by the High Court (Bungoma HC. CRI. Appeal No. 52/2010, dismissed 22.6.2011 by Muchemi and Onyancha JJ) and by the Court of Appeal in Eldoret (C.A. CR. APP No. 146/2013, dismissed 10.12.2015 by Maraga, Musinga and Murgor JJA). He filed this constitutional petition invoking Articles 25, 26, 27, 35(1)(a), 49 and 50 of the Constitution, together with provisions of the Criminal Procedure Code, the Evidence Act and the Penal Code, seeking declarations that his trial was unfair, that the charge sheet was incurably defective owing to a variance in the complainant's name, that the courts were biased, and that the death sentence was cruel, inhuman and unconstitutional. He relied on the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR. The state, through Mr. Akello, opposed the petition, arguing it amounted to a second appeal and that no infringement of fundamental rights had been demonstrated. The court held that Muruatetu declared only the mandatory nature of the death sentence under section 204 of the Penal Code unconstitutional, not the death penalty itself, which remains lawful under Article 26(3). Noting that the petitioner's death sentence had been commuted to life imprisonment in 2017, the court found there was no death sentence to vary or set aside and dismissed the petition on 30 January 2019.

Key legal issues

Constitutionality of the death sentence for robbery with violence

Holding

The death sentence remains legal; only its mandatory nature was declared unconstitutional by the Supreme Court

Reasoning

The court relied on the Supreme Court's orders in Muruatetu, which declared the mandatory death sentence under section 204 of the Penal Code unconstitutional while expressly preserving the validity of the death sentence under Article 26(3). Since the petitioner's sentence had been commuted to life imprisonment in 2017, there was no death sentence left to vary or set aside.

p. 2

Alleged unfair trial and defective charge sheet

Holding

The petition on these grounds was found without merit and dismissed

Reasoning

The petitioner alleged an incurably defective charge sheet, variance in the complainant's name, lack of state-funded counsel and bias by the courts. The state opposed, arguing the petition amounted to a second appeal and that no infringement of fundamental rights was demonstrated. The court accepted the state's position and dismissed the petition without addressing each ground in detail.

p. 2

Legal principles established

The death penalty remains lawful under Article 26(3); only its mandatory nature under section 204 of the Penal Code was declared unconstitutional in Muruatetu

Court orders

1.The petition is dismissed

Authorities

Legislation

Constitution of Kenya 2010Articles 25, 26, 27, 35(1)(a), 49(1)(f)(i),(g), 50(2)(b), 50(5)
Criminal Procedure CodeSections 89(1), 134, 137, 214(1)(i)(ii), 214(3)
Evidence ActSections 107, 163(c), 165
Penal CodeSections 204, 295 as read with 296(2)

Cases cited (1)

Francis Karioko Muruatetu & Another Vs. Republic
[2017] eKLR
Declared the mandatory death sentence under section 204 of the Penal Code unconstitutional while affirming the validity of the death sentence under Article 26(3)

Jurisdiction invoked: Articles 35(1)(a), 50(2)(b), 5(1), 49(1)(f)(i),(g), 25(c), 27(1),(2) of the Constitution of Kenya 2010

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Cite this brief

Caselaw, "Job William Namachanja v Republic", Case Analysis (2019). Misc. Petition Case No. 2 of 2017. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.