That question was brought into sharp focus in Katiba Institute & 8 others v The Office of the Director of Public Prosecutions & 7 others; Kenya National Commission on Human Rights & 6 others (Interested Parties) [2026] KEHC 489 (KLR). In that decision, the High Court was invited to revisit the constitutionality of Kenya’s robbery and attempted robbery provisions, particularly sections 295, 296 and 297 of the Penal Code.

The case did not arise in a vacuum. Nearly a decade earlier, in Joseph Kaberia Kahinga & 11 Others v Attorney General [2016] eKLR, a three-judge bench had already found constitutional infirmities in these provisions. The concern was that the law did not set out, with sufficient precision, the different degrees of aggravation in robbery and attempted robbery. In simple terms, the law failed to distinguish clearly between different levels of criminal conduct.

That failure matters.

Under the current framework, the value of the property stolen is often secondary to the presence of certain statutory ingredients. Whether the item taken is worth ten shillings or ten million shillings, the charge may still escalate to robbery with violence if the accused was armed, acted with another person, or used or threatened violence. The law therefore risks treating vastly different factual scenarios as though they carry the same moral blameworthiness.

This is not to minimize the seriousness of robbery. Victims of violent theft deserve protection, redress, and a justice system that takes their harm seriously. The point is different. A constitutional criminal justice system must be able to distinguish between degrees of wrongdoing. It must separate the truly aggravated robbery from conduct that, while criminal, may not deserve the same legal label or sentencing exposure.

That is the heart of the problem with “Stroke Two.”

The High Court in Katiba Institute did not say that violent robbery should no longer be punished. It did not give immunity to impunity. Rather, the Court confronted a deeper legislative failure; Parliament had not sufficiently defined and graded the offences of robbery, robbery with violence, attempted robbery and attempted robbery with violence in a manner that satisfies the constitutional standards of legality, certainty, fair trial and proportionality.

The Court found that the continued arrest, charging, arraignment, detention, trial and conviction of persons under sections 295, 296(1), 296(2), 297(1) and 297(2), despite the earlier Joseph Kaberia Kahinga decision, amounted to continuing constitutional violations. It specifically linked the ambiguity in the definition of the offences to Article 50(2)(b) of the Constitution, which guarantees every accused person the right to be informed of the charge with sufficient detail to answer it.

This is a significant finding. It means the problem was not merely academic. It affected real people: accused persons, convicted persons, victims, families and the broader justice system.

However, the Court was also careful not to create a legal vacuum. It recognized that an immediate blanket prohibition of all robbery-related prosecutions, or the immediate release of all persons facing such charges, would have serious consequences for public safety and the administration of justice. The Court therefore suspended the operation and effect of its declarations until 30 June 2027, allowing time for legislative, administrative, and policy reforms.

In doing so, the Court required the Attorney General, the Director of Public Prosecutions, and Parliament to file affidavits every six months, beginning 30 June 2026, detailing the specific legislative, administrative, or policy measures taken to address the ambiguities that led to the declaration of unconstitutionality. The message was clear; constitutional defects in criminal law cannot be left unresolved indefinitely.

This is where the judgment becomes more than a robbery with violence case. It becomes a judgment about constitutional governance.

It reminds us that Parliament has a duty to enact precise criminal laws. The ODPP has a duty to charge responsibly. The Judiciary has a duty to protect fair trial rights. And the State as a whole has a duty to ensure that criminal laws do not punish through ambiguity.

The human cost of this ambiguity is not theoretical.

One matter that remains with me involved a woman charged with robbery with violence. She was arrested while pregnant and spent the entire nine months of her pregnancy in remand custody awaiting trial. Her greatest fear was not even the trial itself. It was the thought of giving birth in prison and that the first home her child would ever know would be the walls of a remand cell.

Eventually, the case collapsed after the prosecution repeatedly failed to avail witnesses. The charges were dismissed. But by then, she had already spent her entire gestation period in custody.

This is the quiet violence of pre-trial detention. Before conviction, before proof beyond reasonable doubt, before the State establishes the ingredients of the offence, liberty is already lost. For pregnant women, mothers and other vulnerable accused persons, that loss extends beyond the individual. It reaches children, families, livelihoods and futures.

That is why reforming robbery with violence cannot be approached as a technical legislative exercise. It is a matter of justice.

The law must be amended to create clear categories of robbery offences. Parliament should consider a graded framework that distinguishes between simple robbery, aggravated robbery, armed robbery, gang robbery, robbery involving serious injury and other properly defined aggravating circumstances. This would allow charges and sentences to reflect the true seriousness of each case.Such gradation already exists in many jurisdictions and allows punishment to better reflect culpability.

The ODPP should also develop clear interim charging guidelines before the 2027 deadline. Prosecutors must be guided on when to charge robbery, when to charge robbery with violence and when alternative offences such as stealing, assault, handling stolen property or malicious damage may be more appropriate. The current practice where the label “RV” is often used as the most serious available charge should give way to a more careful, evidence-based charging culture.

Courts, too, have a role to play. Bail and bond decisions in robbery with violence cases should not be driven by the charge label alone. The Constitution requires courts to consider the individual circumstances of each accused person, vulnerability, pregnancy, caregiving responsibilities, and whether there are compelling reasons to deny release. A charge of robbery with violence should never become an automatic ticket to prolonged remand.

Investigative agencies must also be held to higher standards. If the State charges a person with one of the most serious offences in the Penal Code, it must be ready to prosecute the case diligently. Witnesses must be availed. Evidence must be organized. Adjournments caused by prosecutorial indolence should not result in years of punishment before trial.

Finally, legal aid providers and defence advocates must continue challenging weak robbery with violence cases at the earliest possible stage. Where the evidence discloses a lesser offence, this must be raised. Where the prosecution is not ready, courts must be urged to enforce fair trial guarantees. Where accused persons remain in custody for extended periods, bail review and constitutional arguments must be pursued with urgency.

The High Court’s decision in Katiba Institute gives Kenya an opportunity to rethink one of its most feared criminal offences. It does not ask us to be soft on crime. It asks us to be precise, proportionate and constitutional.

As the 30 June 2027 deadline approaches, now less than a year away, the question is no longer whether robbery with violence requires reform. The High Court has already answered that. The real question is whether Parliament, the Attorney General, the ODPP, and other criminal justice actors will treat this moment with the urgency it deserves. This deadline should not be allowed to arrive quietly. It should be used to build penal laws that are clearer, fairer and more proportionate. One that protects victims of violent crime while also ensuring that accused persons are not trapped for months or years under overbroad charges.

A society must protect itself from violence. But it must also ensure that its laws do not become so broad that they fail to distinguish between the truly dangerous offender and the marginal accused person caught in an overbroad legal net. The Constitution does not demand fewer criminal laws. It demands better ones. Laws that are clear. Laws that are fair. Laws that punish according to culpability. 

Ultimately, the strength of a criminal justice system is not measured by the harshness of its punishments, but by the fairness with which it distinguishes between different forms of wrongdoing.

That is the lesson of “Stroke Two.”

And as the 2027 deadline draws closer, it is a lesson Kenya can no longer afford to ignore.

Author:
Wesley Waku 

Advocate of the High Court of Kenya 

Legal Aid Advocate 

Justice Nest