REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA

CONSTITUTIONAL PETITION NO. E030 OF 2024
IN THE MATTER OF: APPLICATION UNDER ARTICLE 165(3), (A) (B) 4 OF THE
CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF RULES OF THE CONSTITUTION OF KENYA (PROTECTION
OF RIGHTS AND FUNDAMENTAL FREEDOM) PRACTICE AND PROCEDURE
RULES, 2013
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL
RIGHTS AND FREEDOMS UNDER THE CONSTITUTION

MICHAEL MAINGI.............................................................1st PETITIONER/ APPLICANT

BRIAN SIMIYU....................................................................2ND PETITIONER/APPLICANT
-VERSUS-
DIRECTOR OF PUBLIC PROSECUTIONS….............................................RESPONDENT

1. The petitioners were arraigned before the High Court 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 this Court which have since been
consolidated.

2. The gravamen of petitioners’ appeal is that the mandatory death sentence

imposed upon them and the commutation of that sentence by an
administrative fiat to life imprisonment are both unconstitutional and
therefore null and void.

3. The issues raised were: -

a. Whether this Court has the requisite Jurisdiction to hear and determine
this matter to its conclusion.

b. Whether the mandatory nature of the death penalty under section 204
of the Penal Code is contrary to the Constitution.

c. Whether the indeterminate nature of a life sentence is also inconsistent

with the Constitution, and whether this court ought to assign a definite
number of years of imprisonment, subject to remission rules, which
will constitute life imprisonment.

d. Whether the use of the death penalty and life imprisonment serves
legitimate state interests, including deterrence and retribution, while
respecting the dignity and rights of the accused.