Supreme Court declares the Mandatory Death Penalty unconstitutional


The petitioners in petition Number 15 of 2015, (Francis Karioko Muruatetu and Wilson Thirimbu Mwangi) and others were arraigned before the High Court (Mbogholi Msagha J.) for the offence of murder. Upon their conviction, they were sentenced to death as decreed by Section 204 of the Penal Code. Their appeal to the Court of Appeal against both that conviction and sentence was dismissed. Aggrieved by that decision, they filed two separate appeals in the Supreme Court which were consolidated.

Upon their applications, the Death Penalty Project; the Kenya National Commission on Human Rights (KNCHR); the Kenya Section of the International Commission of Jurists (ICJ- Kenya); the Legal Resources Foundation; and the Katiba Institute as well as the Attorney General were all admitted in this matter as amicii curiae.

The petitioners’ case was that the mandatory nature of the death penalty under Section 204 of the Penal Code takes away the discretion of the trial court forcing it to hand down a sentence pre-determined by the Legislature and therefore going against the doctrine of separation of powers. They submitted that the sentencing process is part of the right to a fair trial enshrined in Article 50(2) of the Constitution. They contended that the mandatory death penalty under Section 204 of the Penal Code, violated that right in that it denied the trial Judge discretion in sentencing.

The Supreme Court agreed with them.

Click here to read that judgment and our participation in that case.