What Supreme Court ruling on death sentence means

Sunday December 17 2017

Supreme Court judges on November 16, 2017 during proceedings of the presidential election petition. PHOTO | FILE | NATION MEDIA GROUP


The Supreme Court last week ended the long-standing dispute of mandatory death sentence.

According to the six judges of the apex court, the mandatory nature of the death sentence as provided for under Section 204 of the Penal Code is unconstitutional.

Mandatory death sentence has been contentious with judges differing over it, even issuing conflicting decisions. The first decision was issued in 2010 when a death row convict, Geoffrey Ngotho Mutiso, successfully argued before the Court of Appeal that the provision was illegal because it denies the judges a chance to consider the mitigation of an accused person.

Mutiso argued that judges should be allowed the discretion to pass any sentence to a convict and not restrict courts to only one sentence, that of death.

Three years later another bench of five judges of the Appellate court differed and restored the contentious matter, stating that death sentence “must continue to apply as the people decided that it was fit as it is reflected in the Constitution.”



The five judges said in the decision that it is not the role of judges to engage in “wandering and wilderness interpretation of what the law ought to be.”

They added that doing so would be going outside the province of Article 159 and 259 of the Constitution of Kenya.

“It would also amount to deciding and designing the correct size of the clothes and shoes that the people of Kenya wear. As judges, we must be satisfied with the privilege and honour bestowed upon us by the people of Kenya. We must avoid the temptation or invitation to be anti-death penalty crusaders when the law and the Constitution decree otherwise,” they said.

But the Supreme Court led by Chief Justice David Maraga, Deputy CJ Philomena Mwilu, justices Jackton Ojwang’, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola argued that it is during mitigation that the offender’s version of events may be heavy with pathos necessitating the court to consider an aspect that may have been unclear during the trial process.

They said that mitigation might “call for pity more than censure or on the converse, impose the death sentence, if mitigation reveals an untold degree of brutality and callousness.”


The Supreme Court directed  re-hearing of the cases of Francis Karioko Muruatetu and Wilson Thirimbi Mwangi back at the High Court. The two convicts, who were represented by lawyers Fred Ngatia and Kioko Kilukumi.

Mr Ngatia who argued that the mandatory nature of the death penalty jettisons the discretion of the trial forcing it to hand down a sentence pre-determined by the Legislature. Mr Ngatia said this “fouls the doctrine of separation of powers.”

The judges said the existing or intending petitioners with similar cases should not approach the Supreme Court directly but await appropriate guidelines for disposal of the same. The judges directed the Attorney General to urgently set up a framework to deal with sentence re-hearing of cases relating to the mandatory nature of the death sentence.

The move by the judges reignites the debate on whether death sentence should be abolished altogether.


Kenya National Commission on Human Rights kicked off a debate a few years ago seeking to abolish sections of the law that deal with death sentence.

Other than murder under section 204, the penal code imposes death sentence for treason under section 40, robbery with violence section 296(2) Attempted robbery with violence section 297(2) and administration of unlawful oaths to commit capital offences under section 60 and International crimes Act section 5(3).

Those agitating for the abolishment of death sentence argue that the penalty is cruel, inhuman and degrading punishment. According to KNCHR, death penalty represents an unacceptable denial of human dignity and integrity.

READ: Mandatory death sentence now unconstitutional in Kenya

READ: Reprieve for 2,747 after Uhuru cuts their death sentences

Although Kenya has not executed anyone on death row since 1987 when Hezekiah Ochuka was convicted and hanged for the 1982 attempted coup, for the offence of treason, the sentence is still given against offenders. Documented reports indicate that from 1963 to 1987, 280 persons out of 3,584 people sentenced to death were executed in Kenya.


But since 1987, those on death row have been kept waiting for the hangman. It was not until 2009 when President Mwai Kibaki commuted the sentences of more than 4,000 convicts on death row to life.

A total of 6,058 prisoners have been sentenced to death since 2011. The Kenya National Bureau of Statistics show that the death sentences were highest in 2014, when 2,757 offenders were condemned to face the hangman.

The 2014 figure was a 70 per cent increase from the death sentence rulings in 2013, which were only 809.

In 2012, those who were sentenced to death by various courts were 741, while 692 Kenyans were sent to the hangman’s noose.

The majority of persons on death row are mainly convicted for robbery with violence. The method of execution in Kenya is by hanging. However, KNCHR says Kenya does not have, at the moment, an executioner since no one has been hanged for more than 28 years.


Under section 332(3) of the criminal procedure code, a death warrant must be issued and signed by the President for the death to be carried out.

The warrant must also state the place and time for the execution. The death warrant must also provide directions as to the place of burial or cremation of the body of the person to be executed.

The country’s 103 prisons, with the capacity of 22,334 prisoners, are overcrowded and are holding more than 55,000 prisoners.

The body said that Kenya is a signatory to several articles and treaties. Article 2(6) of the Constitution provides that any treaty or Convention ratified by Kenya shall form part of the National law.

“Article 3 of Universal Declaration of Human Rights provides for the right to life, while it does not prohibit the death penalty directly, Article 5 provides for the right against cruel, inhumane and degrading treatment.”

In the region, Uganda, Tanzania and Malawi have already taken steps to abolish the death penalty.