Francis Karioko Muruatetu & Another v Republic

1. Case Citation and Court Details 

Case Name: Francis Karioko Muruatetu & Another v Republic 

Citation: [2017] eKLR 

Court: Supreme Court of Kenya (at Nairobi) 

Petition Numbers: Petition No. 15 of 2015 & Petition No. 16 of 2015 (Consolidated) 

Bench: D.K. Maraga (CJ & P); P.M. Mwilu (DCJ & VP); S.C. Wanjala; N.S. Ndungu; & I.  Lenaola (JJ.) 

Case Type: Constitutional Petition challenging mandatory sentencing 

Date of Judgment: December 14, 2017 

2. Background and Facts of the Case 

The petitioners, Francis Karioko Muruatetu and Wilson Thirimbu Mwangi, were charged and  convicted of the offence of murder of Lawrence Magondu in 2000 under Section 203 of the  Penal Code (Cap. 63, Laws of Kenya)1. Muruatetu, interestingly, was previously a police officer  who had been involved in a major narcotics seizure in 1995, for which he served time before  becoming involved in the murder case2. The murder was allegedly motivated by a land  transaction dispute, where the victim was lured to a remote area under the pretense of a land  purchase and brutally killed3 

The legal framework at the time, specifically Section 204 of the Penal Code, stipulated: “Any  person convicted of murder shall be sentenced to death.4” This provision made the death penalty  the sole and mandatory sentence for a murder conviction, stripping the trial court of any  discretion to consider mitigating circumstances or impose a lesser sentence. 

Consequently, the High Court imposed the mandatory death sentence on both petitioners. Their  subsequent appeals to the Court of Appeal, challenging both conviction and sentence, were  dismissed. By the time the case reached the Supreme Court, they had been on death row for approximately 16 years5 6. While on death row, their sentences were commuted to life  imprisonment by the President under the Prerogative of Mercy. 

Unsatisfied, the petitioners challenged the constitutionality of the mandatory death penalty itself,  arguing that their sentences, and the law underpinning them, were fundamentally incompatible  with the new constitutional dispensation under the Constitution of Kenya, 2010. 

3. Constitutional and Legal Issues Raised 

The central issue before the Supreme Court was the constitutionality of Section 204 of the Penal  Code7. The key legal questions were: 

1. Whether the mandatory nature of the death penalty under Section 204 is unconstitutional. 
2. Whether the mandatory sentence violates the right to a fair trial (specifically, a fair hearing  during sentencing) under Article 50(2) of the Constitution8and Article 48 on access to justice9
3. Whether the provision infringes on the separation of powers by surping the judicial function of  sentencing, contrary to Article 159(2)(c)10. 
4. Whether the mandatory sentence constitutes an arbitrary deprivation of life (violating Article  26)11 and a violation of the right to dignity (Article 28)12. 
5. Whether the mandatory sentence, by failing to distinguish between offenders, violates the right  to equality and freedom from discrimination (Article 27)13. 
6. Whether the commutation of death sentences to life imprisonment through an administrative  process (by the President) was constitutional. 

4. Arguments by Both Sides 

Appellants (Muruatetu & Another): 

They argued that the mandatory death sentence is a “legislative sentence” that unconstitutionally  ties the hands of the judiciary, violating the doctrine of separation of powers14. 

They contended that sentencing is an integral part of the right to a fair trial under Article 50(2)15.  By denying them an opportunity to present mitigating factors (e.g., their age, role in the crime,  possibility of rehabilitation), the law denied them a fair hearing16. 

The mandatory sentence, they argued, is a “one-size-fits-all” punishment that treats all murder  convicts as a homogenous group, thereby violating their individual dignity (Art. 28) and right to  equal protection (Art. 27)17 18. 

They further submitted that the provision makes the right of appeal against sentence (Art.  50(2)(q)) illusory, as there is no other sentence to appeal for. 

Comparative Jurisprudence: They cited international precedents from Uganda (Attorney General  v Susan Kigula & 417 Others)19, Malawi, Belize, the United States, Caribbean (Reyes v The  Queen)20 and India (Mithu v State of Punjab)21 that had invalidated mandatory death sentences22 

Respondent (The Republic): 

The Director of Public Prosecutions (DPP) made a significant concession, agreeing that the  mandatory aspect of Section 204 was unconstitutional. The DPP argued that the provision fetters  judicial discretion and is inconsistent with the constitutional imperative for a fair trial23. 

The Attorney General (AG), as amicus curiae, argued that the Constitution of 2010 could not be  applied retroactively to cases decided under the former constitution. However, the AG also  agreed that judicial discretion in sentencing is paramount. 

Crucially, the Respondent did not argue for the abolition of the death penalty itself, noting it is  saved by Article 26(3), which permits deprivation of life if “authorised by this Constitution or  other written law24 25.” 

Academic Challenge: The Attorney General argued that the petitioners’ challenge was merely  academic since their sentences had already been commuted to life imprisonment26 

5. Court’s Reasoning and Analysis 

The Supreme Court delivered a unanimous, transformative judgment. 

1. On the Right to a Fair Trial (Article 50): This was the lynchpin of the decision. The Court  held that a fair trial does not end at the conviction stage; it extends to sentencing. The Court  found that the right to “a fair and public hearing” includes the right to offer mitigating  circumstances before a sentence is imposed. A mandatory sentence, which makes mitigation a  “meaningless” and “futile” exercise, is therefore a fundamental violation of Article 50(2). The  justices emphasized that mitigation is a critical component of trial proceedings under Sections  216 and 329 of the Criminal Procedure Code, which the mandatory death penalty effectively  nullified27. The Court powerfully stated that “any law or procedure that culminates in termination  of life, ought to be just, fair and reasonable28” 
2. On Separation of Powers (Article 159): The Court affirmed that sentencing is a core judicial function, not a legislative one. Under Article 159, judicial authority is vested in the courts.  Parliament’s role is to prescribe a range of penalties, but the final determination of a “just and  proportionate” sentence based on the specific facts of a case must be left to the trial judge.  Section 204, by imposing a fixed sentence, was a legislative usurpation of this judicial power. 
3. On the Right to Life (Article 26): The Court was precise. It did not abolish the death penalty.  It held that Article 26(3) permits the death penalty only if the law authorizing it is constitutional.  A law that imposes a mandatory sentence, thus violating the right to a fair trial, is not a  constitutional law. Therefore, the procedure for imposing the death penalty was unconstitutional,  not necessarily the penalty itself.
4. On Dignity (Art. 28) and Equality (Art. 27): The Court reasoned that the mandatory sentence  is “harsh, unjust and unfair” because it fails to treat the accused as an individual. It  “mechanically” imposes a sentence without regard to the unique circumstances of the offense  (e.g., a mercy killing vs. a brutal assassination) or the offender (e.g., a first-time offender vs. a  serial killer). This blanket-punishment approach violates the right to dignity and the right to  equal protection. The Court found that the mandatory death penalty created unconstitutional  discrimination between convicts under Section 204 of the Penal Code and those under other  provisions that allowed judicial discretion in sentencing29. This differential treatment lacked  rational justification30
5. On Access to Justice (Article 48): The Court noted that a mandatory sentence renders the  right of appeal against sentence meaningless, effectively impeding access to justice. 
6. International and Comparative Law: The Court extensively referenced international human  rights law and comparative jurisprudence, citing decisions from the United Nations Human  Rights Committee, the Inter-American Commission on Human Rights, and courts in Uganda,  Malawi, Belize, the United States, and India31 32. This reflected Kenya’s constitutional  commitment under Article 2(5) and (6) to incorporating international law into its domestic legal  system33. 

Importantly, the Court clarified that the death penalty itself was not unconstitutional, only its  mandatory imposition. 

6. Holding / Decision of the Court 

The Supreme Court held and ordered as follows: 

1. Section 204 of the Penal Code is hereby declared unconstitutional to the extent that it provides  for a mandatory death sentence upon a conviction for murder. 
2. The mandatory nature of the sentence was “inconsistent” with the Bill of Rights and the  Constitution’s transformative vision. 
3. The provision is to be interpreted as providing for the maximum sentence for murder, with the  death penalty being a discretionary (not mandatory) punishment34. 
4. The petitioners, and all other persons similarly situated (i.e., all convicts on death row), were entitled to have their cases remitted to the High Court for a fresh sentencing hearing on  mitigation35 36. 
5. The Attorney General, DPP, and the Kenya Law Reform Commission were directed to prepare  a task force to review and align the Penal Code with the judgment37. 
6. Life Imprisonment: The Court declined to rule on the constitutionality of life imprisonment,  finding that the issue had not been sufficiently canvassed in the lower courts38. 

However, the Court emphasized that the death penalty remains lawful and may still be  imposed in appropriate cases after judicial consideration. 

7. Significance and Impact of the Judgment 

The Muruatetu decision is arguably one of the most significant human rights judgments in  Kenya’s post-2010 constitutional era. 

End of an Era: It effectively ended over a century of colonial-era penal policy that mandated  death for certain offenses39. 

Restoration of Judicial Discretion: It restored the centrality of judicial discretion and the  principle of individualized sentencing, forcing courts to actively consider mitigating and  aggravating factors40. 

Mass Re-sentencing: The judgment opened the door for thousands of death row convicts to be  re-sentenced, leading to a new wave of “Muruatetu applications” and a rich body of  jurisprudence on sentencing41. 

De Facto Abolition: While not abolishing the death penalty, the judgment significantly moved  Kenya closer to de facto abolition by making its imposition far more difficult and reserved only  for the “most heinous” cases. 

Subsequent Confusion and Clarification: The judgment initially caused confusion, with many  (including the Court of Appeal) interpreting its ratio as applying to all mandatory minimum  sentences (e.g., in the Sexual Offences Act)42 43.This created significant confusion in Kenya’s  sentencing framework, leading to an “avalanche of applications for re-sentencing44“. This was  later clarified by the Supreme Court in the Muruatetu (2021) Directions, which stated the 2017  decision applied only to the mandatory death penalty for murder, a move seen by many as a  retreat from the case’s transformative potential45. For other offenses with mandatory sentences,  the Court required separate constitutional challenges to be properly filed and argued before the  High Court46. 

The Attorney General established a Task Force to review the mandatory death penalty and  develop resentencing guidelines47 48 

The Judiciary began revising its Sentencing Policy Guidelines to align with the new  jurisprudence. Parliament was prompted to consider legislative reforms to bring statutory  provisions in line with the constitution49. 

8. Critical Commentary 

The Muruatetu judgment represents a high-water mark for judicial activism and transformative  constitutionalism in Kenya50. It is a profound assertion of the judiciary’s role as the guardian of  the Bill of Rights, demonstrating a willingness to strike down long-standing, legislatively- Its jurisprudential contribution lies in its eloquent defence of individualized justice. The Court  privileged the “humanity” of the justice system, rejecting a mechanical, retributive model in  favour of one that sees the offender, the victim, and the circumstances in their full context. By  centering the analysis on the process (fair trial) rather than just the outcome (the death penalty),  the Court crafted a durable legal argument that was difficult to dispute. 

However, the legacy of Muruatetu remains complex. The Supreme Court’s subsequent 2021  clarification, limiting the ruling’s applicability, was a significant disappointment to human rights  advocates. It created a confusing legal dichotomy: why should the principles of a fair sentencing  hearing apply only to murder and not to, for example, a sexual offense carrying a mandatory life  sentence? This “Muruatetu paradox” suggests a judiciary that, while capable of bold,  transformative steps, remains cautious about the full implications of its own reasoning. By  restricting its application to murder, the Court placed the burden of challenging other mandatory  sentences on individual litigants52. 

Institutional Capacity: The influx of resentencing applications exposed resource constraints and  varying sentencing approaches across courts53. 

Despite this, the 2017 decision fundamentally realigned Kenya’s criminal justice system,  championing dignity, fairness, and judicial integrity over the blunt-force trauma of mandatory,  pre-determined punishment. 

Legislative Inertia: Parliament’s delayed response in reforming contradictory statutory  provisions demonstrates the ongoing tension between judicial innovation and legislative  responsivenes54. 

The case also left unresolved the constitutionality of life imprisonment, leaving open an  important question for future litigation. As one scholar noted, Kenya’s sentencing regime  remains incomplete due to the absence of comprehensive statutory guidelines governing judicial  discretion in capital case55. 

The Muruatetu case represents a paradigm shift in Kenya’s approach to punishment,  constitutionalism, and judicial discretion. It harmonized domestic law with international human rights standards, emphasizing that justice must be individualized and proportionate56. 

Conclusion 

The Francis Karioko Muruatetu decision stands as a landmark in African constitutional  jurisprudence, representing both the growing assertiveness of African judiciaries and the  progressive potential of contemporary African constitutions57. By declaring the mandatory death  penalty unconstitutional, the Kenyan Supreme Court affirmed the fundamental principles of  human dignity, judicial independence, and individualized justice. Despite implementation  challenges and subsequent clarifications, Muruatetu remains a transformative judgment that  continues to reshape Kenya’s criminal justice system and strengthen its constitutional democracy. 

Reference(S):

1 Section 203 of the Penal Code (Cap. 63, Laws of Kenya) 

2https://nation.africa/kenya/news/how-muruatetu-a-murderer-became-the-face-of-supreme court-ruling-3618276 

3https://nation.africa/kenya/news/how-muruatetu-a-murderer-became-the-face-of-supreme court-ruling-3618276 

4 Section 204 of the Penal Code

5https://deathpenaltyinfo.org/supreme-court-of-kenya-declares-nations-mandatory-death sentences-unconstitutional 

6https://www.bbc.com/pidgin/tori-42359434 

7 Section 204 of the Penal Code 

8 Article 50(2) of the Constitution 

9 Aricle 48 of the Constitution  

10 Article 159(2)(c) of the Constitution  

11 Article 26 of the Constitution  

12 Article 28 of the Constitution 

13 Article 27 of the Constitution

14 https://medium.com/@TheNyokabi/why-the-supreme-court-declared-the-mandatory-death sentence-unconstitutional-82a3d2e5e229 

15 Article 50(2) od the Constitution. 

16 https://icj-kenya.org/news/the-case-of-francis-murutatetu-versus-the-republic-of-kenya/ 17 Article 27 and 28 of the Constitution  

18 https://medium.com/@TheNyokabi/why-the-supreme-court-declared-the-mandatory-death sentence-unconstitutional-82a3d2e5e229 

19 Attorney General v Susan Kigula & 417 Others 

20 Reyes v The Queen 

21 Mithu v State of Punjab 

22 https://www.cambridge.org/core/journals/american-journal-of-international law/article/abs/francis-karioko-muruatetu-v republic/15EB8BC2641CA70D0632AD0B22007AC5 

23 https://medium.com/@TheNyokabi/why-the-supreme-court-declared-the-mandatory-death sentence-unconstitutional-82a3d2e5e229

24 Article 26 of the Constitution  

25 https://medium.com/@TheNyokabi/why-the-supreme-court-declared-the-mandatory-death sentence-unconstitutional-82a3d2e5e229 

26 https://medium.com/@TheNyokabi/why-the-supreme-court-declared-the-mandatory-death sentence-unconstitutional-82a3d2e5e229 

27 Sections 216 and 329 of the Criminal Procedure Code 

28 https://medium.com/@TheNyokabi/why-the-supreme-court-declared-the-mandatory-death sentence-unconstitutional-82a3d2e5e229

29 Section 204 of the Penal Code 

30 https://medium.com/@TheNyokabi/why-the-supreme-court-declared-the-mandatory-death sentence-unconstitutional-82a3d2e5e229 

31 https://medium.com/@TheNyokabi/why-the-supreme-court-declared-the-mandatory-death sentence-unconstitutional-82a3d2e5e229 

32 https://www.cambridge.org/core/journals/american-journal-of-international law/article/abs/francis-karioko-muruatetu-v 

republic/15EB8BC2641CA70D0632AD0B22007AC5 

33 Article 2(5) and (6) of the Constitution

34 https://deathpenaltyinfo.org/supreme-court-of-kenya-declares-nations-mandatory-death sentences-unconstitutional 

35 https://www.cambridge.org/core/journals/american-journal-of-international law/article/abs/francis-karioko-muruatetu-v 

republic/15EB8BC2641CA70D0632AD0B22007AC5 

36 https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/31/eng@2021-07-06 37 https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/31/eng@2021-07-06 38 https://medium.com/@TheNyokabi/why-the-supreme-court-declared-the-mandatory-death sentence-unconstitutional-82a3d2e5e229 

39 https://www.cambridge.org/core/journals/american-journal-of-international law/article/abs/francis-karioko-muruatetu-v republic/15EB8BC2641CA70D0632AD0B22007AC5 

40 https://www.cambridge.org/core/journals/american-journal-of-international law/article/abs/francis-karioko-muruatetu-v republic/15EB8BC2641CA70D0632AD0B22007AC5

41 https://deathpenaltyinfo.org/supreme-court-of-kenya-declares-nations-mandatory-death sentences-unconstitutional 

42 Sexual offences Act of 2006 

43 https://icj-kenya.org/news/the-case-of-francis-murutatetu-versus-the-republic-of-kenya/ 44 https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/31/eng@2021-07-06 45 Muruatetu (2021) Directions 

46 https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/31/eng@2021-07-06 47 https://www.cambridge.org/core/journals/american-journal-of-international law/article/abs/francis-karioko-muruatetu-v republic/15EB8BC2641CA70D0632AD0B22007AC5 

48 https://icj-kenya.org/news/the-case-of-francis-murutatetu-versus-the-republic-of-kenya/ 49 https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/31/eng@2021-07-06 50 https://www.cambridge.org/core/journals/american-journal-of-international law/article/abs/francis-karioko-muruatetu-v republic/15EB8BC2641CA70D0632AD0B22007AC5 sanctioned practices that offend fundamental constitutional values51. 

51 https://medium.com/@TheNyokabi/why-the-supreme-court-declared-the-mandatory-death sentence-unconstitutional-82a3d2e5e229 

52 https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/31/eng@2021-07-06 53 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5179289 

54 https://icj-kenya.org/news/the-case-of-francis-murutatetu-versus-the-republic-of-kenya/ 55 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5179289 

56 https://www.cambridge.org/core/journals/american-journal-of-international law/article/abs/francis-karioko-muruatetu-v 

republic/15EB8BC2641CA70D0632AD0B22007AC5

57 https://www.cambridge.org/core/journals/american-journal-of-international law/article/abs/francis-karioko-muruatetu-v 

republic/15EB8BC2641CA70D0632AD0B22007AC5