UNIT TITLE: CRIMINAL LAW

UNIT CODE: BLW 1102

COURSE INSTRUCTOR: MADAM LINET WATAKA
GROUP THREE
GROUP THREE MEMBERS

NAME ADMISSION NUMBER SIGNATURE MARKS

KITHINJI MAKENA YVONNE BLAW/2024/31453

TERESIA WAMBAIRE NJOKI BLAW/2024/32203

GLADYS MANANGOI BLAW/2024/32602

SAMMY KIPLIMO KIPTOO BLAW/2024/33246

FREYNEAU PIERALY NATACHA BLAW/2024/33760

BRENDA WAMBUI MWANGI BLAW/2024/64214

MAINA WANGUI MARGRET BLAW/2024/34346

CHRISTINE KANYANGO BLAW/2024/35033

STEPHEN MUSA MUTSOTSO BLAW/2022/36023

QUESTION
Discuss the case of Muruatetu & another v Republic; Katibu Institute & 5 others (Amicus
Curiae) (Petition 15 & 16 of 2015(Consolidated)) [2017] KESC 2 (KLR) (14 December 2017)

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outlining judicial interpretation and the supreme guidelines on the applications of the Muruatetu
Decision.

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Contents
1.1 INTRODUCTION...............................................................................................................................3
2.1 THE SUPREME COURT REVIEW ON THE MURUATETU CASE MANDATORY DEATH
PENALTY..................................................................................................................................................4
2.1.2 Determination of the Issues Arising By the Judges....................................................................6
3.1 JUDICIAL INTERPRETATION AND APPLICATION IN THE FRANCIS MURUATETU V
REPUBLIC CASE.....................................................................................................................................8
3.1.1 JUDICIAL INTERPRETATION................................................................................................8
3.1.2 THE SUPREME COURT GUIDELINES ON APPLICATION OF MURUATETU
DECISION.............................................................................................................................................9
4.1 CONCLUSION..................................................................................................................................10

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1.1 INTRODUCTION
The Muruatetu case become a landmark case when the petitioners appealed for the death
convictions1. This case attracted the public interest and interest of a third party that is: Kenya
National Commission of Human Rights, Kenya Section of the International Commission of
Jurists, Legal Resources Foundation, and Katiba Institute, to be enjoined as Interested Parties;
and an application by The Death Penalty Project, to be enjoined as Amicus Curiae. It
reverberated across the legal world, not just in Kenya, but became case law across all
commonwealth countries.

Katiba Institute is a non-profit making and non-governmental organization, registered under the
laws of Kenya, and dedicated to the implementation of the Kenya Constitution, including the
protection of fundamental rights and freedoms

Francis Muruatetu and his accompliance Wilson Thirimbu were convicted for the murder of
Nairobi renowned businessman Lawrence Githinji Mogondu, who was killed in February
2000.The court found that the two had posed as buyers and expressed their interest in a particular
piece of land. Oblivious of their intentions, Githinji together with his driver King’ori took them
to inspect the land. They had barbed wire, iron bars and a panga which they claimed they would
use to fence the land. The two convicts killed Githinji on the scene and beat up his driver to near
death. They were convicted of murder under Section 204 of the Penal Code and sentenced to
death.

After spending 14 years in prison, they filed a petition at the Supreme Court. The basis for their
petition was;

a. The Penal code 204, takes away the independence of the court 2since the sentence is
already predetermined.
b. Interference with the constitutional rights of a fair trial.
c. The mandatory death sentence interfered with the right to life enshrined in constitution of
Kenya 2010.

1 Section 204 of the Penal code

2 Article 160 of the constitution of Kenya 2010

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2.1 THE SUPREME COURT REVIEW ON THE MURUATETU CASE MANDATORY
DEATH PENALTY.3
In 2017, the Supreme Court issued a landmark decision declaring the mandatory death penalty
sentence as, “unconstitutional” and out of sync with the Bill of rights as enshrined in the
Constitution of Kenya 2010. This landmark decision has been instrumental in not only the
clamor for policy and legal reforms to the extent of repealing sections on the death penalty but
has triggered the development of a new body of jurisprudence as will be espoused below. The
court determined the issues that were arising on the appeal at the Supreme Court, the court
looked at the following:

a. Unconstitutional of mandatory death sentence

In this case, the Supreme Court held that the mandatory nature of the death sentence as
provided by Section 204 of the penal code was unconstitutional. The court found that the
that it infringed on the right to a fair trial under Article 50 of the constitution of Kenya
2010 and the Right to life under Article 26 of the constitution of Kenya 2010.

b. Individual sentencing
The Supreme Court held that every accused person has the right to have mitigating
circumstances considered before sentencing. The mandatory death sentence denied the
courts the chance to exercise judicial discretion in considering the circumstances of each
case.
c. Right to dignity and freedom from cruel inhuman or degrading treatment
The mandatory death sentencing was found to violate article 28 and 29 of the constitution
of Kenya 2010.

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2.1.1 The Issues for Determination in the Muruatetu Case at the Supreme Court.

3 Article 163 (4) (a) of the constitution of Kenya 2010

4 Francis muruatetu & another vs Republic eKLR

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The petitioners –Francis Karioko Murutatetu and Wilson Thirimbu Mwangi – were arraigned
before the High Court for the offence of murder contrary to section 203 read with section 204 of
the Penal Code. They were convicted and sentenced to death in tandem with section 204 of the
Penal Code. They appealed both the conviction and sentenced to the Supreme Court on the
grounds that the mandatory death sentence imposed upon them and the commutation of that
sentence by an administrative fiat to life imprisonment were both unconstitutional and therefore
null and void. The Appeal generated a lot of national and international interest. ICJ Kenya
together with other civil society organizations were admitted as amicus curiae in the Case to
providing guidance to the Court on the, “Compatibility of the mandatory death penalty with the
Constitution.”

The Petitioners argued that the mandatory nature of the death penalty under Section 204 of the
Penal Code fettered the following that;

a) The penal code fettered judicial discretion compelling it to hand down pre-determined
sentences as imposed by the Legislature thus impeding the doctrine of separation of
powers.
b) The mandatory nature of the death sentence was a violation of the right to a fair hearing
under Article 50 (2) (q) of the Constitution.
c) The mandatory nature of the death sentence set out in Section 204 of the Penal Code as
unconstitutional.

2.1.2 Determination of the Issues Arising By the Judges

The six-judge bench in applying itself to the matter which had been a subject of contention
before the lower courts, and acknowledging the decisions rendered by various jurisdictions both
at the regional and international level observed that:

Accessed on 22nd march (http://krnyalaw.org/caselaw/cases/views/)

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 5
a) On the issue of the violation of the right to a fair hearing under article 50 (2) of the
constitution of Kenya 2010: The Section 204 was a violation of the right to fair trial in
that “Section 204 of the Penal Code which provides for a mandatory death sentence is
antithetical to the Constitutional provisions on protection against inhuman or degrading
punishment or treatment and fair trial. The Court noted that, “while the Constitution
itself recognizes the death penalty as being lawful, it does not say anywhere that when a
conviction for murder is recorded, only the death sentence shall be imposed. Having
assessed its findings the Court declared that, “Section 204 shall, to the extent it provides
that the death penalty is the only sentence in respect of the crime of murder is
inconsistent with the letter and spirit of the Constitution, which as we have said, makes
no such mandatory provision.
b) 6The Supreme Court went ahead and interrogated the provisions of section 204 of
the Penal Code which provided that, ‘Any person convicted of murder shall be
sentenced to death: In its interrogation the Court observed that Section 204 the Penal
Code restricted an Accused’s person opportunity to mitigate since the court has to
impose the death sentence nonetheless. The Court further added that that, “a person
facing the death sentence is most deserving to be heard in mitigation because of the
finality of the sentence.” Additionally, the Court invoked the provision of Article 4 of the
ICCPR which provides that all persons shall be equal before the courts and tribunals. In
the determination of any criminal charge against him, or of his rights and obligations in
a suit at law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law…”
c) As relates to the question whether Section 204 of the Penal Code deprived off the
judiciary its powers of discretion7: the Court observed that the wording of the provision
limited the exercise of judicial discretion in sentencing and further stated that, Where a
court listens to mitigating circumstances but has, nonetheless, to impose a set sentence,
the sentence imposed fails to conform to the tenets of fair trial that accrue to accused
persons under Articles 25 of the Constitution; an absolute right.”

5 Article 50 of the Constitution of Kenya 201

6 Section 204 of the Penal Code
7 Chapter 10 of the Constitution of Kenya 2010

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The Court in its Judgment declared the mandatory nature of the death sentence as provided for
under Section 204 of the Penal Code is hereby declared unconstitutional and issued orders for the
establishment of a framework to deal with the sentence re-hearing of the applicable cases and
lastly directed the legislative making bodies to enact legislation to the effect of repealing sections
that made provision for the death penalty.

3.1 JUDICIAL INTERPRETATION AND APPLICATION IN THE FRANCIS

MURUATETU V REPUBLIC CASE.

3.1.1 JUDICIAL INTERPRETATION

The Supreme Court judgment was lauded as a positive development to the abolition of the death
penalty campaign as it propelled the wheels of policy and legal reform. The decision was not
welcomed by abolitionist proponents but also by persons who sought to challenge the mandatory
sentences and mandatory minimums. One such case would be the case of David Esokon Samwel
v Republic where the court in analyzing the application of Muruatetu case held that, “the

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Murutatetu decision applies mutatis mutandis to the provisions of Section 8(2 8) of the Sexual
Offences Act which imposes the mandatory life imprisonment for the offence of defilement.”
Similarly, the application of Murutatetu decision in sexual offences under the Sexual Offences
Act No. 6 of 2003 was considered and applied by the Court of Appeal in Dismas Wafula
Kilwake v R, where the court held that the mandatory minimum sentence under Section 8 of the
Sexual Offences Act was unconstitutional as it denies the court discretion in sentencing. This
was the similar approach taken by the Court in the Cases of Jared Koita Injiri v Republic and the
Case of Julius Mlanda Wanje v Republic where the Murutatetu decision was applied in sexual
offences challenging the mandatory minimums. However, the question that emerged was
whether the application of the Murutatetu decision -where the facts and circumstances of the case
were dissimilar- was applicable in all cases or not? Therefore, the Supreme Court gave the
guidelines to be followed when applying the muruatetu decision.

3.1.2 THE SUPREME COURT GUIDELINES ON APPLICATION OF MURUATETU

DECISION9.

The Supreme court was dissatisfied with the manner with which the Muruatetu decision was
being applied and interpreted by the lower courts observed that, “ While it is regrettable that the
report was not filed timeously and these directions not issued immediately, there can be no
justification for courts below us, to take the course that has now resulted in the pitiable state of
incertitude and incoherence in the sentencing framework in the country, giving rise to an
avalanche of applications for re-sentencing. Appellants whose sentences were confirmed by the
High Court and the Court of Appeal have returned to the magistrate’s courts, where, without
reference to the decisions of the two superior courts, have had those sentences revised. The
magistrate’s courts have also, in some instances entertained applications for re- sentencing in
murder cases, clearly without jurisdiction.

8 Sexual offences Act No 6 of 2003

9 Nairobi monthly law report accesed on 22nd march (www.kenylaworg.co.ke)

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 The Supreme Court then issued directions and guidelines to the effect that the decision in
Muruatetu was only applicable in respect to sentences of murder under section 203 and 204
of the Penal Code.

4.1 CONCLUSION
In conclusion the Supreme Court did not declare death penalty as unconstitutional but rather that
it was illegal. The issue of whether the death penalty is unconstitutional is still on debate. The
question we ask ourselves is whether the court can still sentence accused to a death sentence?
The answer is yes. The decision of the Muruatetu case did not abolish death but rather declared it
illegal as it violates the Right to life10.

REFERENCES

The constitution of Kenya 2010 articles 26, 27, 28, chapter 10 , article 163

10 Article 26 of the Constitution of Kenya 2010

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Francis Muruatetu & another v R (https://kenyalaworg./caselaws/cases/view/ )

Sexual offences Act No 6 of 2003

Nairobi monthly law report accesed on 22nd march (www.kenylaworg.co.ke)
The penal code cap 63 laws of Kenya

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