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Supreme CourtOtherPetition 15 & 16 of 2015

Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)

Supreme Court of Kenya
6 July 2021
Martha Karambu KoomeM. K. KoomePhilomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaIsaac LenaolaI. LenaolaNjoki Susanna NdunguNjoki NdunguWilliam OukoW. Ouko
4,486 words in judgment
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The bottom line

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Muruatetu ruling only applies to mandatory death penalty for murder, not other offences.

What this practically means

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The Supreme Court clarified that its landmark Muruatetu decision, which declared the mandatory death penalty unconstitutional, only applies to murder cases under sections 203 and 204 of the Penal Code. It does not invalidate mandatory or minimum sentences for other crimes like robbery with violence or sexual offences. Lower courts had wrongly extended the ruling, causing confusion. Re-sentencing hearings for murder must be handled by the High Court, not magistrates' courts.

Executive summary

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This judgment is a directions ruling by the Supreme Court of Kenya, issued on July 6, 2021, to clarify and provide guidelines on the implementation of its earlier landmark decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR, which declared the mandatory death sentence for murder unconstitutional. The court noted with concern that lower courts had misinterpreted the Muruatetu decision, erroneously applying it to other capital offences such as robbery with violence and treason, as well as to sexual offences and other statutes prescribing mandatory or minimum sentences. This had resulted in confusion, inconsistency, and an avalanche of re-sentencing applications, with magistrate's courts improperly entertaining re-sentencing hearings for sentences that had been confirmed by the High Court and Court of Appeal. The Supreme Court clarified that the Muruatetu decision applies only to the mandatory death sentence for murder under sections 203 and 204 of the Penal Code, and does not invalidate mandatory or minimum sentences in any other statute. The court issued nine specific guidelines to govern re-sentencing hearings, including that only the High Court has jurisdiction to conduct re-sentencing for cases originally tried in the High Court, that pending appeals must be withdrawn before re-sentencing, and that courts must consider specified aggravating and mitigating factors. For other capital offences, the court directed that any constitutional challenge to the mandatory death penalty must be properly filed and argued before the High Court and escalated to the Court of Appeal. The court also ordered that the Judiciary Sentencing Policy Guidelines be revised in line with the Muruatetu jurisprudence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the decision of the Supreme Court finding that the mandatory nature of the death sentence as provided under section 204 of the Penal Code was unconstitutional was applicable to all capital offences, sexual offences and all other statutes prescribing mandatory or minimum sentences.
  2. 2.Whether Magistrate's Courts had jurisdiction to conduct a re-hearing on sentencing and to revise sentences that had been confirmed at the High Court and/or the Court of Appeal.
  3. 3.Whether the decision of the Supreme Court finding that the mandatory nature of the death sentence as provided under section 204 of the Penal Code was unconstitutional was an authority for stating that all provisions of the law prescribing mandatory or minimum sentences were inconsistent with the law.
  4. 4.Whether it was necessary for specific matters to be instituted before appropriate courts to determine the question as to whether the imposition of a mandatory death sentence for other capital offences including treason, robbery with violence and attempted robbery with violence was constitutional.

Key legal issues

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01

Whether the Muruatetu decision applies to all capital offences and statutes prescribing mandatory or minimum sentences.

Holding

The Muruatetu decision applies only to the mandatory death sentence for murder under sections 203 and 204 of the Penal Code, and does not invalidate mandatory or minimum sentences in other statutes.

Reasoning

The court clarified that its earlier judgment was confined to the specific issue of the mandatory death sentence for murder. The ratio decidendi was that section 204 of the Penal Code was inconsistent with the Constitution only to the extent that it provided for a mandatory death sentence for murder. The court noted that lower courts had erroneously applied the decision to other offences, causing confusion and incoherence in sentencing. The court emphasized that the decision did not address other capital offences or minimum sentences in other statutes, and any challenge to those must be properly filed and argued in the appropriate courts.

p. 7
02

Whether Magistrate's Courts have jurisdiction to conduct re-sentencing hearings for sentences confirmed by the High Court or Court of Appeal.

Holding

Magistrate's Courts lack jurisdiction to conduct re-sentencing hearings for sentences that were confirmed by the High Court or Court of Appeal; only the High Court can entertain such applications.

Reasoning

The court found that appellants whose sentences were confirmed by the High Court and Court of Appeal had improperly returned to magistrate's courts for re-sentencing, and magistrate's courts had entertained these applications without jurisdiction. The court held that an application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, not a subordinate court. This was necessary to maintain the proper hierarchy of courts and avoid confusion in the sentencing framework.

p. 8
03

Whether the Muruatetu decision is authority for the proposition that all mandatory or minimum sentences are unconstitutional.

Holding

The Muruatetu decision is not authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.

Reasoning

The court stated that the assumption of applicability to other statutes was never contemplated in the context of the decision. The judgment only dealt with section 204 of the Penal Code and the mandatory death sentence for murder. The court emphasized that the ratio decidendi was confined to that specific provision, and the decision cannot be extended to other offences or statutes without proper constitutional challenge in the appropriate courts.

p. 7

Legal principles established

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  • Muruatetu applies only to the mandatory death sentence for murder under sections 203 and 204 of the Penal Code.
  • Mandatory or minimum sentences in other statutes, including the Sexual Offences Act, remain valid.
  • Only the High Court can conduct re-sentencing hearings for murder sentences previously confirmed by higher courts.
  • A constitutional challenge to mandatory death penalty for other capital offences must be properly filed and argued in the High Court first.
  • In re-sentencing, courts must consider aggravating and mitigating factors like age, remorse, and possibility of reform.

Court orders

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  1. 1.The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 203 and 204 of the Penal Code.
  2. 2.The Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu.
  3. 3.All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.
  4. 4.Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.
  5. 5.In re-sentencing hearing, the court must record the prosecution’s and the appellant’s submissions under section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on the suitable sentence.
  6. 6.An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.
  7. 7.In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court: (a) Age of the offender; (b) Being a first offender; (c) Whether the offender pleaded guilty; (d) Character and record of the offender; (e) Commission of the offence in response to gender-based violence; (f) The manner in which the offence was committed on the victim; (g) The physical and psychological effect of the offence on the victim’s family; (h) Remorsefulness of the offender; (i) The possibility of reform and social re-adaptation of the offender; (j) Any other factor that the court considers relevant.
  8. 8.Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.
  9. 9.These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 93 of 2014
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.
p. 7 Scope of Muruatetu decision
An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.
p. 8 Jurisdiction for re-sentencing
The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 203 and 204 of the Penal Code;
p. 8 Applicability of guidelines
a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached.
p. 8 Challenge to mandatory death penalty for other offences
Orders accordingly.
p. 9 Final orders

Key timeline

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2017
Supreme Court's original Muruatetu decision declared mandatory death penalty for murder unconstitutional.
2021
Supreme Court clarifies Muruatetu applies only to murder, not other offences, and sets re-sentencing guidelines.

Practical implications

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For lawyers

Limit re-sentencing arguments to murder

When advising clients, confine Muruatetu arguments to murder cases under Penal Code sections 203/204. Do not assume it applies to robbery with violence, treason, or sexual offences. For those, a fresh constitutional petition must be filed in the High Court. Also, ensure re-sentencing applications are filed in the High Court, not magistrates' courts.

For businesses

No change to compliance obligations

Businesses need not worry about Muruatetu affecting mandatory sentences for non-murder offences like robbery with violence, which often apply to security-related crimes. The ruling does not alter minimum sentences for sexual offences or other statutes. Continue to comply with existing sentencing frameworks until separate challenges succeed.

For individuals

Re-sentencing only for murder convicts

If you were convicted of murder and received a mandatory death sentence, you can apply for a re-sentencing hearing in the High Court. However, if you were convicted of other crimes like robbery with violence or rape, Muruatetu does not apply. You must file a separate constitutional petition to challenge those sentences.

Frequently asked questions

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Does the Muruatetu decision apply to robbery with violence in Kenya?+

No. The Supreme Court clarified that Muruatetu only applies to the mandatory death penalty for murder under sections 203 and 204 of the Penal Code. Robbery with violence and other capital offences require a separate constitutional challenge.

Can I apply for re-sentencing in a magistrate's court after Muruatetu in Kenya?+

No. Only the High Court has jurisdiction to conduct re-sentencing hearings for murder sentences that were confirmed by the High Court or Court of Appeal. Magistrate's courts cannot handle these applications.

Does Muruatetu invalidate minimum sentences for sexual offences in Kenya?+

No. The Supreme Court expressly stated that Muruatetu did not invalidate mandatory or minimum sentences in the Sexual Offences Act or any other statute. Those remain in force unless successfully challenged in a separate case.

What factors does a Kenyan court consider in a murder re-sentencing hearing?+

Courts consider age, whether the offender is a first offender, guilty plea, character, gender-based violence context, manner of offence, impact on victim's family, remorse, and possibility of reform. Both prosecution and victim submissions are heard.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae)", Case Analysis (2021). Petition 15 & 16 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/31/eng@2021-07-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.