Petitioner v Republic (sentence re-hearing petition)
The bottom line
#In Kenya, the death penalty is no longer mandatory, allowing judges to consider mitigating factors in serious crimes.
What this practically means
#Executive summary
#Key legal issues
#Applicability of Muruatetu to attempted robbery with violence
The Muruatetu guidelines apply to all capital offences carrying the mandatory death sentence, including section 297(2) of the Penal Code.
The court relied on the Court of Appeal decision in William Okungu Kittiny v Republic, which held that Muruatetu broadly considered the constitutionality of the death sentence in general and that its findings apply mutatis mutandis to sections 296(2) and 297(2). The court rejected the State's argument that Muruatetu is confined to murder or does not benefit the petitioner.
Entitlement to sentence re-hearing after exhausting appeals
Convicts sentenced before Muruatetu, despite exhausting appeals, are entitled to apply for sentence re-hearing.
The court held that the purpose of Muruatetu is to allow judicial officers to review whether the death penalty or life imprisonment was deserved in cases finalized before the decision, and rejected the State's contention that the petitioner does not benefit from it.
Appropriate sentence on re-hearing
Taking into account the petitioner's age, first-offender status, absence of injury to the victim, remorse, possible rehabilitation and about 12 years served, the death sentence is set aside and substituted with time served.
The court applied the Sentencing Policy Guidelines objectives and comparable resentencing decisions (Simon Kimani Maina, Joseph Kaberia Kainga, Martin Bahati Makoha), noting a 14-year starting point for robbery-with-violence resentencing, and found the petitioner had served approximately 12 years.
Legal principles established
#- The mandatory aspect of the death sentence was declared unconstitutional in Muruatetu; the death sentence remains legal but discretionary, and convicts whose cases were finalized before Muruatetu may apply for sentence re-hearing.
- The Muruatetu mitigating-factor guidelines apply mutatis mutandis to robbery with violence and attempted robbery with violence under sections 296(2) and 297(2) of the Penal Code.
Court orders
#- 1.The death sentence is set aside and substituted with a sentence of the period already served
- 2.The petitioner to be released forthwith unless lawfully held under a separate warrant
- Jurisdiction invoked
- Constitutional petition for sentence re-hearing founded on the Supreme Court decision in Francis Muruatetu Karioko (Petition No. 15 of 2015)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Petitioner v Republic (sentence re-hearing petition)", Case Analysis (2020). Petition filed 04/12/2019 (Makueni High Court). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.