Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)
The bottom line
#Muruatetu ruling only applies to mandatory death penalty for murder, not other offences.
What this practically means
#The Supreme Court clarified that its landmark Muruatetu decision, which declared the mandatory death penalty unconstitutional, only applies to murder cases under sections 203 and 204 of the Penal Code. It does not invalidate mandatory or minimum sentences for other crimes like robbery with violence or sexual offences. Lower courts had wrongly extended the ruling, causing confusion. Re-sentencing hearings for murder must be handled by the High Court, not magistrates' courts.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the decision of the Supreme Court finding that the mandatory nature of the death sentence as provided under section 204 of the Penal Code was unconstitutional was applicable to all capital offences, sexual offences and all other statutes prescribing mandatory or minimum sentences.
- 2.Whether Magistrate's Courts had jurisdiction to conduct a re-hearing on sentencing and to revise sentences that had been confirmed at the High Court and/or the Court of Appeal.
- 3.Whether the decision of the Supreme Court finding that the mandatory nature of the death sentence as provided under section 204 of the Penal Code was unconstitutional was an authority for stating that all provisions of the law prescribing mandatory or minimum sentences were inconsistent with the law.
- 4.Whether it was necessary for specific matters to be instituted before appropriate courts to determine the question as to whether the imposition of a mandatory death sentence for other capital offences including treason, robbery with violence and attempted robbery with violence was constitutional.
Key legal issues
#Whether the Muruatetu decision applies to all capital offences and statutes prescribing mandatory or minimum sentences.
The Muruatetu decision applies only to the mandatory death sentence for murder under sections 203 and 204 of the Penal Code, and does not invalidate mandatory or minimum sentences in other statutes.
The court clarified that its earlier judgment was confined to the specific issue of the mandatory death sentence for murder. The ratio decidendi was that section 204 of the Penal Code was inconsistent with the Constitution only to the extent that it provided for a mandatory death sentence for murder. The court noted that lower courts had erroneously applied the decision to other offences, causing confusion and incoherence in sentencing. The court emphasized that the decision did not address other capital offences or minimum sentences in other statutes, and any challenge to those must be properly filed and argued in the appropriate courts.
Whether Magistrate's Courts have jurisdiction to conduct re-sentencing hearings for sentences confirmed by the High Court or Court of Appeal.
Magistrate's Courts lack jurisdiction to conduct re-sentencing hearings for sentences that were confirmed by the High Court or Court of Appeal; only the High Court can entertain such applications.
The court found that appellants whose sentences were confirmed by the High Court and Court of Appeal had improperly returned to magistrate's courts for re-sentencing, and magistrate's courts had entertained these applications without jurisdiction. The court held that an application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, not a subordinate court. This was necessary to maintain the proper hierarchy of courts and avoid confusion in the sentencing framework.
Whether the Muruatetu decision is authority for the proposition that all mandatory or minimum sentences are unconstitutional.
The Muruatetu decision is not authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.
The court stated that the assumption of applicability to other statutes was never contemplated in the context of the decision. The judgment only dealt with section 204 of the Penal Code and the mandatory death sentence for murder. The court emphasized that the ratio decidendi was confined to that specific provision, and the decision cannot be extended to other offences or statutes without proper constitutional challenge in the appropriate courts.
Legal principles established
#- Muruatetu applies only to the mandatory death sentence for murder under sections 203 and 204 of the Penal Code.
- Mandatory or minimum sentences in other statutes, including the Sexual Offences Act, remain valid.
- Only the High Court can conduct re-sentencing hearings for murder sentences previously confirmed by higher courts.
- A constitutional challenge to mandatory death penalty for other capital offences must be properly filed and argued in the High Court first.
- In re-sentencing, courts must consider aggravating and mitigating factors like age, remorse, and possibility of reform.
Court orders
#- 1.The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 203 and 204 of the Penal Code.
- 2.The Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu.
- 3.All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.
- 4.Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.
- 5.In re-sentencing hearing, the court must record the prosecution’s and the appellant’s submissions under section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on the suitable sentence.
- 6.An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.
- 7.In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court: (a) Age of the offender; (b) Being a first offender; (c) Whether the offender pleaded guilty; (d) Character and record of the offender; (e) Commission of the offence in response to gender-based violence; (f) The manner in which the offence was committed on the victim; (g) The physical and psychological effect of the offence on the victim’s family; (h) Remorsefulness of the offender; (i) The possibility of reform and social re-adaptation of the offender; (j) Any other factor that the court considers relevant.
- 8.Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.
- 9.These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. 93 of 2014
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.
An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.
The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 203 and 204 of the Penal Code;
a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached.
Orders accordingly.
Key timeline
#Practical implications
#Limit re-sentencing arguments to murder
When advising clients, confine Muruatetu arguments to murder cases under Penal Code sections 203/204. Do not assume it applies to robbery with violence, treason, or sexual offences. For those, a fresh constitutional petition must be filed in the High Court. Also, ensure re-sentencing applications are filed in the High Court, not magistrates' courts.
No change to compliance obligations
Businesses need not worry about Muruatetu affecting mandatory sentences for non-murder offences like robbery with violence, which often apply to security-related crimes. The ruling does not alter minimum sentences for sexual offences or other statutes. Continue to comply with existing sentencing frameworks until separate challenges succeed.
Re-sentencing only for murder convicts
If you were convicted of murder and received a mandatory death sentence, you can apply for a re-sentencing hearing in the High Court. However, if you were convicted of other crimes like robbery with violence or rape, Muruatetu does not apply. You must file a separate constitutional petition to challenge those sentences.
Frequently asked questions
#Does the Muruatetu decision apply to robbery with violence in Kenya?+
No. The Supreme Court clarified that Muruatetu only applies to the mandatory death penalty for murder under sections 203 and 204 of the Penal Code. Robbery with violence and other capital offences require a separate constitutional challenge.
Can I apply for re-sentencing in a magistrate's court after Muruatetu in Kenya?+
No. Only the High Court has jurisdiction to conduct re-sentencing hearings for murder sentences that were confirmed by the High Court or Court of Appeal. Magistrate's courts cannot handle these applications.
Does Muruatetu invalidate minimum sentences for sexual offences in Kenya?+
No. The Supreme Court expressly stated that Muruatetu did not invalidate mandatory or minimum sentences in the Sexual Offences Act or any other statute. Those remain in force unless successfully challenged in a separate case.
What factors does a Kenyan court consider in a murder re-sentencing hearing?+
Courts consider age, whether the offender is a first offender, guilty plea, character, gender-based violence context, manner of offence, impact on victim's family, remorse, and possibility of reform. Both prosecution and victim submissions are heard.
Later judgments citing this (25)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kariuki v Republic (Criminal Appeal E035 of 2024) [2026] KECA 1588 (KLR)[2026] KECA 1588 (KLR)31 Jul 2026
- Kyalo v Republic (Criminal Appeal E029 of 2025) [2026] KECA 1642 (KLR)[2026] KECA 1642 (KLR)31 Jul 2026applied
- Shimole v Republic (Criminal Appeal E013 of 2025) [2026] KECA 1641 (KLR)[2026] KECA 1641 (KLR)31 Jul 2026followed
- Mochanga v Republic (Criminal Appeal E060 of 2023) [2026] KECA 1620 (KLR)[2026] KECA 1620 (KLR)31 Jul 2026applied
- Kazungu v Republic (Criminal Appeal E013 of 2024) [2026] KECA 1502 (KLR)[2026] KECA 1502 (KLR)24 Jul 2026followed
- Juma v Republic (Criminal Appeal E034 of 2024) [2026] KECA 1304 (KLR)[2026] KECA 1304 (KLR)10 Jul 2026applied
- Ontumbo & 2 others v Republic (Criminal Appeal E022 of 2022) [2026] KECA 1411 (KLR)[2026] KECA 1411 (KLR)10 Jul 2026applied
- Njiru v Republic (Criminal Appeal 47 of 2019) [2026] KECA 1318 (KLR)[2026] KECA 1318 (KLR)3 Jul 2026distinguished
- Nyamatara v Republic (Criminal Appeal 146 of 2018) [2026] KECA 1167 (KLR)[2026] KECA 1167 (KLR)12 Jun 2026followed
- GMM v Republic (Criminal Appeal E016 of 2024) [2026] KECA 1032 (KLR)[2026] KECA 1032 (KLR)29 May 2026
- Wesa alias Moi v Republic (Criminal Appeal E073 of 2022) [2026] KECA 739 (KLR)[2026] KECA 739 (KLR)24 Apr 2026
- Bett v Republic (Criminal Appeal 32 of 2019) [2026] KECA 727 (KLR)[2026] KECA 727 (KLR)10 Apr 2026
- Miano v Republic (Criminal Appeal E019 of 2024) [2026] KECA 628 (KLR)[2026] KECA 628 (KLR)25 Mar 2026
- Mungania v Republic (Criminal Appeal E032 of 2023) [2026] KECA 333 (KLR)[2026] KECA 333 (KLR)27 Feb 2026applied
- Moyi v Republic (Criminal Appeal 96 of 2019) [2026] KECA 95 (KLR)[2026] KECA 95 (KLR)30 Jan 2026applied
- Okello & 5 others v Republic (Criminal Appeal E046 of 2023) [2026] KECA 164 (KLR)[2026] KECA 164 (KLR)30 Jan 2026applied
- Kimani v Republic (Criminal Application E080 of 2025) [2025] KECA 1919 (KLR)[2025] KECA 1919 (KLR)18 Nov 2025applied
- VMO v Republic (Criminal Appeal 76 of 2020) [2025] KECA 1877 (KLR)[2025] KECA 1877 (KLR)7 Nov 2025followed
- HM v Republic (Criminal Appeal 302 of 2019) [2025] KECA 1772 (KLR)[2025] KECA 1772 (KLR)24 Oct 2025applied
- Okwiri v Republic (Criminal Appeal E267 of 2022) [2025] KECA 1773 (KLR)[2025] KECA 1773 (KLR)24 Oct 2025applied
- Barawa v Republic (Criminal Appeal E022 of 2023) [2025] KECA 1524 (KLR)[2025] KECA 1524 (KLR)3 Oct 2025
- Onyango alias Jaringa v Republic (Criminal Appeal E125 of 2022) [2025] KECA 1638 (KLR)[2025] KECA 1638 (KLR)3 Oct 2025applied
- Kurere (Suing as a Legal Personal Representative of the Estate of the Robert Kiptalam Cheberek - Deceased) v County Land Adjudication & Settlement Officer, Trans Nzoia & 4 others; Managing Director, Agricultural Development Corporation & 3 others (Interested Parties) (Environment and Land Petition 3 of 2024) [2025] KEELC 6665 (KLR)[2025] KEELC 6665 (KLR)1 Oct 2025applied
- Republic v Masinde (Anti-Corruption and Economic Crimes Case E036 of 2024) (Anti-Corruption and Economic Crimes) [2025] KEMC 203 (KLR)[2025] KEMC 203 (KLR)28 Aug 2025applied
- Masika v Republic (Criminal Appeal 51 of 2020) [2025] KECA 1290 (KLR)[2025] KECA 1290 (KLR)11 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)", Case Analysis (2021). Petition 15 & 16 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/31/eng@2021-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.