Muruatetu 1 and 2 Cases on the Death Penalty in Kenya
- Muhoro & Gitonga Associates
- Jan 26
- 4 min read
Updated: 3 days ago
Table of Contents
1. Introduction to the Muruatetu Decisions
The Muruatetu 1 and Muruatetu 2 decisions fundamentally reshaped the application of the death penalty in Kenya. Delivered by the Supreme Court of Kenya, these cases addressed whether mandatory death sentences are constitutional under the 2010 Constitution.
For law firms, businesses, and the public, understanding these decisions is essential to appreciating how constitutional principles now guide criminal sentencing in Kenya.
2. Legal Background of the Death Penalty in Kenya
The death penalty remains lawful in Kenya. It is provided for under several statutes, including:
Section 204 of the Penal Code for murder
Sections 296(2) and 297(2) of the Penal Code for robbery with violence and attempted robbery with violence
The Kenya Defence Forces Act for certain military offences
However, the Constitution of Kenya 2010 introduced a rights-based framework that significantly altered how these penalties are applied.
Article 26 protects the right to life, while Article 50 guarantees the right to a fair trial, including fair sentencing.
3. The Muruatetu 1 Case Explained
The Supreme Court decision in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment), commonly known as Muruatetu 1, challenged the constitutionality of the mandatory death sentence for murder under Section 204 of the Penal Code.
The petitioners argued that a mandatory sentence removes judicial discretion and violates constitutional rights.
4. Key Holdings in Muruatetu 1
The Supreme Court held that:
The mandatory death sentence for murder is unconstitutional
Mandatory sentencing deprives courts of discretion
Failure to consider mitigating factors violates the right to a fair trial
The death penalty itself was not abolished
Recognized Mitigating Factors
Courts may consider:
Age of the offender
Whether the offender is a first time offender
Circumstances of the offence
Possibility of reform and rehabilitation
Remorse and conduct after the offence
This decision introduced individualized sentencing for murder convictions in Kenya.
5. The Muruatetu 2 Clarification by the Supreme Court
In Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions), referred to as Muruatetu 2, the Supreme Court issued binding guidelines to address widespread misapplication of Muruatetu 1.
Core Clarifications
The Court clarified that:
Muruatetu 1 applies only to murder under Section 204 of the Penal Code
It does not automatically apply to other capital offences
Any extension to other offences must come through legislation or a separate constitutional challenge
Lower courts cannot extend the decision on their own motion
This decision restored legal certainty in sentencing for capital offences.
6. Practical Impact on Murder and Capital Offences
For Murder Cases
Death sentence is no longer mandatory
Courts must conduct mitigation hearings
Sentences may include imprisonment for life or a term of years
For Other Capital Offences
Mandatory sentences remain lawful unless challenged separately
Courts must follow statutory sentencing provisions
7. Sentencing Procedure After Muruatetu
Step by Step Overview
Conviction for murder under Section 203 of the Penal Code
Separate mitigation hearing conducted
Prosecution presents aggravating factors
Defence presents mitigating factors
Court issues a reasoned sentencing decision
Timelines
Mitigation is conducted immediately after conviction
Resentencing applications may be filed where convictions were finalized before 2017
8. Compliance Obligations for Courts and Practitioners
Judicial officers and advocates must:
Apply Muruatetu 1 strictly to murder cases
Follow Supreme Court sentencing guidelines
Avoid automatic application to other offences
Ensure written reasons are given for sentence imposed
Failure to comply may result in appeals or constitutional challenges.
9. Frequently Asked Questions
1. Did Muruatetu abolish the death penalty in Kenya?
No. The death penalty remains lawful but is no longer mandatory for murder.
2. Can a court still impose the death sentence after Muruatetu?
Yes, but only after considering mitigating and aggravating factors.
3. Does Muruatetu apply to robbery with violence?
No. Muruatetu 2 confirmed it applies only to murder unless separately challenged.
4. Can prisoners sentenced before 2017 apply for resentencing?
Yes, for murder convictions only, subject to court directions.
5. Is life imprisonment now mandatory instead of death?
No. Courts retain discretion to impose an appropriate sentence.
6. What law governs sentencing after Muruatetu?
The Penal Code, the Constitution of Kenya 2010, and Supreme Court sentencing guidelines.
7. Can Parliament change the position?
Yes. Parliament may legislate sentencing frameworks consistent with the Constitution.
10. Conclusion
The Muruatetu 1 and Muruatetu 2 decisions represent a major shift in Kenya’s criminal justice system. They reinforce constitutional values of dignity, fairness, and judicial discretion while preserving Parliament’s role in defining criminal penalties.
For businesses, institutions, and individuals engaging with the criminal justice system, these decisions underscore the growing importance of constitutional compliance in all areas of Kenyan law.
