DEATH PENALTY IN KENYA

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Now onto today’s topic;

The death penalty has long been one of the most debated aspects of Kenya’s criminal justice system. In this post, I’ll break down the landmark case of Francis Karioko Muruatetu & Another v Republic to illustrate how the Supreme Court reshaped the law by declaring the mandatory death sentence unconstitutional. This ruling opened the door for judicial discretion in capital punishment and continues to influence how courts balance justice, fairness, and the right to life.

 FACTS OF THE CASE 

The petitioners were Francis Karioko Muruatetu (1st Petitioner) and Wilson Thirimbu Mwangi (2nd Petitioner). The petitioners and others were arraigned before the High Court for the offense of murder. Upon their conviction, they were sentenced to death, as dictated by Section 204 of the Penal Code. They had been on death row for 17 years and felt that the law that imposed the mandatory death sentence on them was unconstitutional and unfair. Even though their death sentences were administratively changed to life imprisonment later on, they still argued that the original mandatory death sentence was illegal and null. They were fighting for compensation for their long incarceration and for their matter to be properly re-sentenced. They did not challenge the underlying fact that they were guilty of murder. 

LEGAL ISSUES  

The central and fundamental legal issue was whether or not the mandatory death penalty is unconstitutional.

1. The Supreme Court specifically considered the following related questions:Whether the mandatory nature of the death penalty provided for under Section 204 of the Penal Code is unconstitutional.
2. Whether the indeterminate life sentence should be declared unconstitutional. (The Court ultimately declined to determine this issue due to lack of sufficient argument).
3. What remedies, if any, accrued to the petitioners.

PROCEDURAL HISTORY AT THE COURTS 

 

1. THE HIGH COURT 

The petitioners were convicted of murder and sentenced to death by the High Court (Mbogholi Msagha J.) under Section 204 of the Penal Code. 

2. THE COURT OF APPEAL 

The petitioners appealed against both the conviction and the sentence, but the Court of Appeal sitting in Nairobi dismissed their appeal.

3. THE SUPREME COURT 

They filed two appeals which were combined. Because some of the original judges retired, the case had to be heard completely de novo (afresh) by the entire bench of Supreme Court judges.

THE SUPREME COURT'S HOLDING 

The Supreme Court delivered a landmark ruling with several key declarations:

• Mandatory Death Sentence Struck Down: The Court declared the mandatory nature of the death sentence, as set out in Section 204 of the Penal Code, to be unconstitutional and invalid.
• Death Penalty Remains Lawful: This ruling did not outlaw the death penalty itself. The death sentence remains a valid option under the Constitution (Article 26(3)), but it is now only a discretionary maximum punishment.
• Remedy for Petitioners: The case was remitted (sent back) to the High Court for a re-hearing on sentence only. This means the High Court had to reconsider their sentence, taking into account mitigating factors, instead of automatically sentencing them to death.
• Future Action for Government: The Attorney General and other relevant government agencies were given twelve months to create a framework to address the sentence re-hearing for all other similar cases. They also directed Parliament to amend the law concerning the mandatory death sentence and to define what life imprisonment actually means. 

THE SUPREME COURT'S REASONING 

The Court explained that the mandatory death penalty was a colonial relic that violated several fundamental rights guaranteed by the Constitution:

1. Violation of the Right to a Fair Trial (Article 50(2))

Sentencing is part of the trial: The judges reasoned that a trial doesn't end with a guilty verdict; sentencing is a crucial component of a fair trial.

No judicial discretion: Section 204 was deemed harsh, unjust, and unfair because it stripped the judge of their power to exercise discretion. It forced the court to impose a penalty predetermined by lawmakers, which fouling the doctrine of separation of powers

2. Violation of Dignity (Article 28)

By applying the death penalty universally without considering the specific facts of the crime or the character of the offender, the law treated all convicts as a "faceless, undifferentiated mass," thereby violating their inherent right to dignity.

Limited appeal rights: Since the sentence was mandatory, a convict's right to appeal or seek a review was limited only to the conviction itself. The higher court had no opportunity to review the appropriateness of the sentence, violating the right to appeal (Article 50(2)(q)).

3. Violation of Equality and Non-Discrimination (Article 27) 

The mandatory sentence was discriminatory because murder convicts (under Section 204) were not given equal treatment compared to those convicted of other serious crimes where judges had discretion in sentencing.

The Court found it "clearly unjustifiable discrimination and unfair" to allow people facing lesser sentences to plead for mitigation, but deny that same right to someone facing the finality of the death sentence. 

The Muruatetu decision marked a turning point in Kenya’s approach to capital punishment. By striking down the mandatory nature of the death penalty, the Supreme Court affirmed that justice must always consider the unique circumstances of each case. While the death penalty remains part of Kenyan law, its application is no longer automatic, ensuring that sentencing balances fairness, human dignity, and the rule of law. This case continues to shape conversations on criminal justice reform and the protection of constitutional rights in Kenya. 

Catch you in the next blog! 

 

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES 

Francis Karioko Muruatetu & Another v. Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2017] KESC 2 (KLR) (14 December 2017)