14 December 2017

Kenya: Mandatory Death Sentence Now Unconstitutional

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(file photo).

Mandatory death sentence is no longer lawful in Kenya.

This is after the Supreme Court on Thursday declared Section 204 of the Penal Code, which stipulates mandatory death sentence, as unconstitutional.


However, the top court specified that this decision does not affect validity of the death sentence.

The decision means death sentence is still lawful but not mandatory.

Murder and robbery with violence are the offences in the Kenyan criminal law that attract a death penalty.

The top court judges directed the Attorney-General, the Director of Public Prosecutions and other relevant agencies to prepare a detailed professional review of all murder and robbery with violence cases similar as pertains sentencing.

They also ordered that a copy of the judgment be forwarded to Speakers of Parliament and the National Council for Law Reporting to give way forward for any necessary amendments to death sentence.

The judges also ordered that the two Kenyans who filed the suit should have a priority hearing before the High Court and be freshly sentenced.


Death row convicts Francis Karioko Muruatetu and Wilson Thirimbu Mwangi, who have been in jail for the last 14 years, filed the case.

They asked the apex court to scrap mandatory mandatory death penalty from the Kenyan law.

The duo were convicted alongside five others-- including the wife of former Lands Commissioner Wilson Gachanja for the murder of businessman Lawrence Githinji Magondu.

As of December 2010, 139 countries out of 197 under the UN had already abolished the death penalty in law or practice.

The Kenya National Commission on Human Rights, the International Commission of Jurists Kenyan chapter, Legal Resources Foundation, Katiba Institute and the death penalty project were listed as amicus in the case.

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