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Supreme CourtPartially AllowedPetition 15 & 16 of 2015 (Consolidated)

Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)

Supreme Court of Kenya
14 December 2017
David Kenani MaragaD. K. MaragaPhilomena Mbete MwiluP. M. MwiluJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguN. S. NdunguIsaac LenaolaI. Lenaola
12,525 words in judgment
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The bottom line

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Mandatory death sentence for murder in Kenya is unconstitutional; courts must now consider mitigating factors.

What this practically means

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The Supreme Court ruled that the automatic death sentence for murder violates the Constitution. Every convicted person now has the right to present reasons why they should not be executed. Courts must listen to these reasons and decide an appropriate sentence, which could be death or a lesser penalty. This ruling applies to all murder cases, including those already sentenced.

Executive summary

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This consolidated appeal challenged the constitutionality of the mandatory death sentence under section 204 of the Penal Code. The petitioners, convicted of murder and sentenced to death, argued that the mandatory nature of the sentence violated the doctrine of separation of powers, the right to a fair trial under Article 50(2), the right to dignity under Article 28, and the right to equality under Article 27 of the Constitution. The respondent, the Director of Public Prosecutions, conceded that the mandatory aspect was unconstitutional. The amici curiae supported the petitioners' position, while the Attorney General argued that the sentence was legal under the repealed Constitution and that the challenge was moot due to commutation. The Supreme Court held that section 204 of the Penal Code is unconstitutional to the extent that it provides for a mandatory death sentence for murder. The court reasoned that sentencing is a crucial part of the trial process and that a mandatory sentence deprives the court of judicial discretion, denies the convict an opportunity to be heard in mitigation, and violates the right to a fair trial, dignity, and equality. The court affirmed the earlier Court of Appeal decision in Godfrey Ngotho Mutiso v R and overruled the subsequent decision in Mwaura & 2 others v R. The court declined to declare the indeterminate life sentence unconstitutional or to define the parameters of a life sentence, holding that these are matters for the Legislature. The court remitted the matter to the High Court for a sentencing re-hearing, where the court will consider mitigating factors. The court also directed the Attorney General to develop a framework for handling similar cases and ordered that the judgment be placed before Parliament and the Kenya Law Reform Commission for legislative action.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the mandatory nature of the death penalty provided for in the Penal Code under section 204 is unconstitutional?
  2. 2.Whether the indeterminate life sentence should be declared unconstitutional?
  3. 3.Whether this court can or should define the parameters of a life sentence; and
  4. 4.What remedies, if any, accrue to the petitioners?

Key legal issues

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01

Whether the mandatory nature of the death penalty under section 204 of the Penal Code is unconstitutional.

Holding

The mandatory death sentence is unconstitutional because it violates the right to a fair trial (Article 50), the right to dignity (Article 28), the right to equality (Article 27), and access to justice (Article 48). It deprives the court of judicial discretion and denies the convict an opportunity to be heard in mitigation.

Reasoning

The court reasoned that sentencing is a crucial component of a trial and the right to a fair trial extends to the sentencing stage. Section 204, by mandating the death sentence, prevents the court from considering mitigating circumstances, thereby treating all murder convicts as an undifferentiated mass and violating their dignity. It also denies convicts the right to have their sentence reviewed by a higher court, as the appeal is limited to conviction. The court found that this mandatory aspect is inconsistent with the progressive Bill of Rights in the Constitution.

p. 18
02

Whether the indeterminate life sentence should be declared unconstitutional.

Holding

The court declined to make a determination on this issue because the petitioners did not sufficiently argue and illustrate the particulars of why the indeterminate life sentence should be declared unconstitutional.

Reasoning

The court noted that the petitioners' submissions were inadequate and that a critical issue such as this, where legislation is to be examined, is deserving of reasoned arguments from all parties and input from the High Court and Court of Appeal. The court did not want to act as a court of first and last instance on this matter.

p. 24
03

Whether this court can or should define the parameters of a life sentence.

Holding

The court held that it is not for the Judiciary to define what constitutes a life sentence; this is a function within the realm of the Legislature.

Reasoning

The court relied on Article 51 of the Constitution, which tasks Parliament with enacting legislation for the humane treatment of detained persons. It also agreed with the High Court decision in Jackson Maina Wangui that determining what amounts to life imprisonment is a matter for the legislative branch. The court recommended that the Attorney General and Parliament develop legislation on the definition of a life sentence.

p. 29
04

What remedies accrue to the petitioners?

Holding

The appropriate remedy is to remit the matter to the High Court for a sentencing re-hearing, where the court will consider mitigating factors and pass an appropriate sentence.

Reasoning

The court was persuaded by comparative jurisprudence from Belize (Reyes), Uganda (Kigula), and Malawi (Kafantayeni), where the practice upon declaring the mandatory death penalty unconstitutional was to remit the case for resentencing. The court held that the petitioners are deserving of a remedy as they were denied a fair trial, and the High Court is best placed to hear mitigation and determine an appropriate sentence.

p. 32

Legal principles established

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  • Section 204 of the Penal Code is unconstitutional for imposing a mandatory death sentence.
  • Sentencing is part of a fair trial; convicts must be heard in mitigation.
  • The mandatory death sentence violates dignity, equality, and access to justice.
  • Courts now have discretion to consider mitigating factors in murder sentencing.
  • The definition of life imprisonment is a matter for Parliament, not the courts.
  • Convicts under mandatory death sentence are entitled to resentencing hearings.

Court orders

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  1. 1.The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.
  2. 2.This matter is hereby remitted to the High Court for re-hearing on sentence only, on a priority basis, and in conformity with this judgment.
  3. 3.The Attorney General, the Director of Public Prosecutions and other relevant agencies shall prepare a detailed professional review in the context of this Judgment and Order made with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the petitioners herein. The Attorney General is hereby granted twelve (12) months from the date of this Judgment to give a progress report to this court on the same.
  4. 4.We direct that this Judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law, to give effect to this judgment on the mandatory nature of the death sentence and the parameters of what ought constitute life imprisonment.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N. S. NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(4)(a) of the Constitution
Consolidated with
Petition No 16 of 2015

Relief refused

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Declaration that the indeterminate life sentence is unconstitutional

The court found that the petitioners had not sufficiently argued and illustrated the particulars of why the indeterminate life sentence should be declared unconstitutional, and that a critical issue such as this is deserving of reasoned arguments and input from lower courts.

p. 24

Order fixing a definite number of years to constitute life imprisonment

The court held that defining what constitutes a life sentence is a function within the realm of the Legislature, not the Judiciary.

p. 29

Award of damages for unconstitutional detention

The court did not grant this prayer; instead it remitted the matter to the High Court for sentencing, implicitly rejecting the claim for damages at this stage.

p. 32

Application of the declaration to all convicts suffering the same fate

The court limited the sentencing re-hearing to the two petitioners and directed that other existing or intending petitioners should await appropriate guidelines.

p. 32

Costs

No order as to costs was made in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, we find that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment.
p. 23 Unconstitutionality of mandatory death sentence
We do this by determining that any court dealing with the offence of murder is allowed to exercise judicial discretion by considering any mitigating factors, in sentencing an accused person charged with and found guilty of that offence.
p. 21 Judicial discretion in sentencing for murder
The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.
p. 32 Final order on constitutionality
This matter is hereby remitted to the High Court for re- hearing on sentence only, on a priority basis, and in conformity with this judgment.
p. 32 Remedy of remittal for resentencing

Key timeline

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2017
Supreme Court declares mandatory death sentence unconstitutional in Muruatetu case.
Within 12 months of judgment
Attorney General to report on framework for resentencing.
Immediately after judgment
Petitioners' case remitted to High Court for resentencing.

Practical implications

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For lawyers

Prepare for resentencing hearings

Lawyers representing murder convicts sentenced to death must now file applications for resentencing. Gather mitigating evidence such as character, circumstances, and remorse to argue for a lesser sentence. The High Court will conduct a hearing on sentence only, so focus on building a strong mitigation case.

For businesses

Review internal disciplinary procedures

The principle of fair hearing in sentencing may influence how businesses handle employee discipline. Ensure that employees are given a chance to present mitigating factors before termination or other severe penalties. This aligns with constitutional values of dignity and fair process.

For individuals

Know your rights if charged with murder

If you are charged with murder, you now have the right to present evidence of mitigation at sentencing. This could reduce your sentence from death to life imprisonment or a term of years. Ensure your lawyer prepares a strong mitigation case, including personal background and circumstances.

Frequently asked questions

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What is the Muruatetu case in Kenya?+

It is a landmark Supreme Court ruling that declared the mandatory death sentence for murder unconstitutional. Now, courts must consider individual circumstances before sentencing, giving convicts a chance to present mitigating factors.

Can a death row inmate in Kenya apply for resentencing after Muruatetu?+

Yes, the Supreme Court ordered that all murder convicts sentenced to death under the mandatory law are entitled to a resentencing hearing before the High Court. They should file an application with the help of a lawyer.

Does the Muruatetu ruling abolish the death penalty in Kenya?+

No, the death penalty remains legal under Article 26(3) of the Constitution. The ruling only removes the mandatory nature, allowing judges discretion to impose death or a lesser sentence based on the facts of each case.

What is the timeline for resentencing after Muruatetu in Kenya?+

The Supreme Court gave the Attorney General 12 months to develop a framework. Meanwhile, individual convicts can apply to the High Court for resentencing, which should be heard on priority. The process is ongoing.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)", Case Analysis (2017). Petition 15 & 16 of 2015 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2/eng@2017-12-14

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