Muruatetu And the Death Penalty: What Changed Under Section 204 Of the Penal Code?

Muruatetu And the Death Penalty: What Changed Under Section 204 Of the Penal Code?

For decades, a conviction for murder in Kenya carried one inevitable consequence: the death sentence. Judges had no discretion, regardless of the offender's age, background, or the circumstances surrounding the offence. The Supreme Court's decision in Muruatetu fundamentally changed that legal position. Prior to that decision, Section 204 of the Penal Code provided that "any person convicted of murder shall be sentenced to death."

The word "shall" is the operative and historically contentious term. It removes judicial discretion entirely. Upon a conviction for murder under Section 203, the trial court had no legal authority to consider any mitigating factors, including the age of the offender, the circumstances of the killing, provocation falling short of the legal defence, the offender's character, or any other relevant consideration. The sentence was death, automatically and invariably.

The Facts and the Holding

In Francis Karioko Muruatetu & Another v Republic [2017] eKLR (Petition No. 15 of 2015, consolidated with Petition No. 16 of 2015), the Supreme Court addressed the constitutionality of the mandatory death sentence under Section 204.

The petitioners had been convicted of murder and sentenced to death. They challenged the constitutionality of Section 204, arguing that:

  1. The mandatory death sentence violates the right to a fair trial under Article 50(2) of the Constitution, as the sentencing process, including the right to present mitigation, is an integral part of a fair trial.
  2. The mandatory nature of the sentence contravenes the doctrine of separation of powers by removing judicial discretion and compelling the judiciary to impose a sentence predetermined by the legislature.
  3. The provision violates the right to equality and freedom from discrimination (Article 27), the right to human dignity (Article 28), and the right not to be subjected to cruel, inhuman, or degrading treatment or punishment (Article 29).

The Supreme Court, in a watershed ruling, declared the mandatory nature of the death sentence under Section 204 unconstitutional. The court's reasoning drew on comparative jurisprudence, including:

· Patrick Reyes v The Queen [2002] (Privy Council): Holding that murders differ greatly and it is wrong to prescribe the same punishment for all.

· Woodson v North Carolina and Roberts v Louisiana (US Supreme Court): Declaring mandatory death sentences for certain classes of murder unconstitutional.

· Godfrey Ngotho Mutiso v Republic, CRA No. 17 of 2008 (Kenya Court of Appeal): Reasoning that uniform sentences deprive courts of the ability to consider mitigating circumstances and fail to appreciate unequal participation in crime.

The Sentencing Guidelines Established in Muruatetu

Having declared the mandatory death sentence unconstitutional, the Supreme Court set down specific guidelines for re-sentencing.

The court further directed that the objectives of sentencing under the Kenya Judiciary Sentencing Policy Guidelines must guide the exercise of discretion. These objectives are:

1. Retribution — to punish the offender in a just manner;

2. Deterrence — to discourage the offender and the public from committing similar offences;

3. Rehabilitation — to enable the offender to reform;

4. Restorative justice — to address victims' losses and promote accountability;

5. Community protection — to incapacitate dangerous offenders;

6. Denunciation — to communicate society's condemnation;

7. Reconciliation — to mend relationships between offender, victim, and community;

8. Reintegration — to facilitate re-entry into society.

Critical Distinction: The Death Penalty Was Not Abolished

It is essential to understand that Muruatetu did not abolish the death penalty in Kenya. The Supreme Court made this clear: the death sentence remains the maximum penalty prescribed by law for the offence of murder.

What the court declared unconstitutional was the mandatory, automatic imposition of that penalty without any opportunity for the trial court to hear and consider mitigation. A sentencing court may still impose the death penalty after weighing mitigating and aggravating factors, but it must do so as an exercise of discretion, not because the law compels it.

Credit for Time Served Under Section 333(2)

A consistent feature of post-Muruatetu re-sentencing is the application of Section 333(2) of the Criminal Procedure Code, which requires courts to credit the period spent in pre-trial custody when computing the final sentence. In Muruatetu, the Supreme Court observed that the mandatory death sentence left little practical room for the application of Section 333(2), as there was no determinate custodial term against which time spent in pre-trial detention could be credited. Post-Muruatetu, courts now routinely apply this provision. In John Ebenyo's case, Justice Nyakundi deducted four years and four months spent in pre-trial custody from the substituted 22-year term.

The 2021 Supreme Court Clarification

In its 2021 directions, the Supreme Court clarified that the Muruatetu decision was confined to murder cases under Section 204 of the Penal Code. The Court cautioned against extending the principles in Muruatetu to other offences carrying mandatory or minimum sentences unless such extension was made through legislation or subsequent judicial pronouncements. This clarification was intended to address the widespread application of Muruatetu beyond its intended scope.

Conclusion

Muruatetu reaffirmed a fundamental constitutional principle: punishment should not be automatic. Justice requires courts to look not only at the offence committed, but also at the offender, the circumstances of the case, and the broader objectives of sentencing. In doing so, the Supreme Court shifted Kenyan criminal justice from mandatory punishment toward individualized justice.

Disclaimer

The information provided in this article is for general informational purposes only and does not constitute legal advice. Prior results do not guarantee a similar outcome. Reading or relying on the contents of this article does not create an advocate-client relationship with our firm. For advice regarding your specific situation, please contact us to obtain legal advice with respect to any particular legal matter.

By Ivy Ndirangu