Francis Karioko Muruatetu & Another v Republic [2017] eKLR 

Case Title & Citation 

Francis Karioko Muruatetu & Another v Republic [2017] eKLR 

Supreme Court of Kenya, Petition No. 15 of 2015 

Consolidated with Petition No. 16 of 2015 

Court Name & Bench 

1. Court: Supreme Court of Kenya 
2. Bench Composition: Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, Justice Mohammed Ibrahim, Justice Jackton Ojwang, Justice Smokin Wanjala, Justice Njoki Ndung’u, and Justice Isaac Lenaola. 
3. Bench Type: Full Bench (7-Judge Bench) of the Supreme Court, sitting as the apex constitutional court of Kenya. 

Date of Judgment 

14/12/2017 

Parties Involved 

1. Petitioners/Appellants: Francis Karioko Muruatetu and Wilson Thirimbu Mwangi. 2. Respondent: Republic of Kenya, represented by the Office of the Director of Public Prosecutions (ODPP).

Facts 

Francis Karioko Muruatetu and Wilson Thirimbu Mwangi,1 were charged before the High Court with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.2 They were convicted and sentenced to death in accordance with section 204.3 On appeal, the Court of Appeal upheld both the conviction and the sentence. Dissatisfied, the appellants lodged an appeal before the Supreme Court, challenging the mandatory nature of the death penalty. 

Their argument was that a mandatory death sentence denies judges discretion to consider the individual circumstances of each case, effectively imposing a fixed penalty in all instances. They contended that this violates the right to a fair trial under Article 50(2)(q),4 of the Constitution, especially since section 261 of the Criminal Procedure Code restricts second appeals to conviction matters only.5 They relied on, among other authorities, Godfrey Ngotho Mutiso v Republic,6 where it was observed that a uniform sentence prevents courts from considering mitigation, ignores varying degrees of participation in crime, and can result in unequal punishment. 

In an unusual turn, the respondent agreed with the appellants. It argued that the mandatory death penalty is unconstitutional because it strips courts of judicial discretion. Citing Joseph Kaberia Kahinya & Others v Attorney General,7 The respondent stressed that trial courts should be guided by mitigating factors, statutory guidelines, and policy considerations before sentencing. To do otherwise would infringe Article 50(2) of the Constitution. The respondent therefore supported referring the case back to the High Court for re-sentencing.8 

The Supreme Court, sitting as a six-judge bench, noted that sentencing must be informed by broader policy considerations, and that mitigation is an essential component of a fair trial, even if not expressly mentioned in the Constitution. The Court held that section 204 of the Penal Code deprived judges of discretion in life-and-death matters, rendering it harsh, unjust and unfair. Consequently, section 204 was declared unconstitutional to the extent that it made the death penalty mandatory. However, the Court clarified that this did not abolish the death penalty; it merely rendered it discretionary. The matter was remitted to the High Court for re-sentencing. 

The decision, later referred to as Muruatetu (No. 1), attracted widespread approval, with many suggesting Kenya was edging towards abolition of the death penalty. Following this, a surge of cases arose where appellants sought re-sentencing based on Muruatetu. For instance, in David Esokon Samwel v Republic,9 The Court applied the reasoning in Muruatetu to a life sentence under the Sexual Offences Act, substituting it with a 20-year term. Similarly, in Dismas Wafula Kilwake v Republic,10 The Court of Appeal extended the Muruatetu reasoning to mandatory sentences under section 8 of the Sexual Offences Act,11 holding that courts must retain sentencing discretion. Other cases, such as Jared Koita Injiri v Republic and Julius Manda Wanje v Republic,12followed suit, reducing mandatory sentences imposed under the Sexual Offences Act on the basis of Muruatetu. 

These developments raised questions regarding the doctrine of precedent (stare decisis). Under this doctrine, similar cases should be decided similarly to ensure consistency and predictability. However, precedent may be avoided through overruling, reversal, or distinguishing the facts. The problem in the post-Muruatetu cases was that courts applied the reasoning of the Supreme Court far beyond the facts of the original case, contrary to the principle of binding precedent. 

Recognising the confusion, the Supreme Court issued clarifications on 6 July 2021 in what came to be known as Muruatetu (No. 2). It criticised lower courts for misapplying its decision, pointing out that some magistrates’ courts had entertained resentencing applications in murder cases without jurisdiction, while others had revised sentences under the Sexual Offences Act and Penal Code despite appeals being pending. The Court emphasised that its earlier decision applied only to murder cases under sections 203 and 204 of the Penal Code. 

The Court reminded lower courts that its reasoning in Muruatetu (No. 1) was that section 204 was unconstitutional because it made the death penalty mandatory for murder. It did not outlaw the death penalty itself, nor did it invalidate other mandatory or minimum sentences in the Penal Code or Sexual Offences Act. The Attorney General was directed to establish a framework to manage resentencing applications for those sentenced to death under section 204 only, and not under other statutes. 

The Court also stressed that challenges to other mandatory sentences, such as those for treason or robbery with violence, must begin in the High Court and proceed through the appellate system before reaching the Supreme Court. In short, Muruatetu (No. 1) was confined strictly to murder. 

Finally, the Supreme Court set out express guidelines: 

204. a) The Muruatetu (No. 1) decision and these guidelines apply solely to murder sentences under sections 203 and 204. 
205. b) The Judiciary Sentencing Policy Guidelines must be revised to reflect this jurisprudence. c) Offenders sentenced under the mandatory death penalty may seek resentencing. 
206. d) If an appeal is pending before the Court of Appeal, the High Court may entertain a resentencing application only after the appeal is withdrawn. 
207. e) At a resentencing hearing, courts must record submissions from the prosecution, the defence, and victims under section 329 of the CPC.13
208. f) Resentencing applications from High Court trials can only be heard by the High Court, not subordinate courts. 
209. g) In resentencing murder cases, courts should consider both aggravating and mitigating factors, such as the offender’s age, prior record, whether they pleaded guilty, the nature of the crime, its impact on victims, remorse, and prospects of reform. 

Issues 

1. Whether the mandatory death sentence for murder under Section 204 of the Penal Code is constitutional. 
2. Whether the death penalty itself is unconstitutional, or only the mandatory nature of the death sentence. 
3. Whether sentencing is a judicial function that requires discretion, and if Parliament can fetter judicial discretion by mandating a single penalty. 
4. What remedies are available to the petitioners and others similarly placed. 

Judgment 

Judgement was delivered in favour of the petitioners: 

1. Mandatory Death Penalty Declared Unconstitutional: The Court held that Section 204 of the Penal Code, to the extent that it mandated the death penalty as the only punishment for murder, was unconstitutional. 
2. Death Penalty Not Abolished: The Court clarified that the death penalty itself remains constitutional. Article 26(3) expressly contemplates it. What was unconstitutional was the mandatory imposition without judicial discretion. 
3. Judicial Discretion Restored: Sentencing is a judicial function. Judges must retain discretion to consider mitigating and aggravating factors. 
4. Resentencing Ordered: The petitioners’ cases were remitted to the High Court for resentencing hearings, where mitigation could be considered. 

Thus, the appeal was allowed in part: the conviction for murder was upheld, but the mandatory sentence was invalidated. 

Legal Reasoning / Ratio Decidendi 

The Court’s reasoning can be summarised under the following themes:

1. Right to Dignity and Fair Trial (Articles 28 and 50): A fair trial includes the right to be heard in mitigation before sentencing. Mandatory death penalty deprives the accused of this right, treating all offenders alike regardless of circumstances.14
2. Cruel, Inhuman, or Degrading Punishment (Article 29): The absence of judicial discretion in sentencing makes punishment arbitrary and excessively harsh.15 3. Judicial Function of Sentencing: Sentencing is inherently a judicial function. Parliament cannot wholly remove judicial discretion without undermining separation of powers. 4. Comparative Jurisprudence: The Court relied heavily on international and comparative jurisprudence from India, Uganda, Belize, and Caribbean jurisdictions, which had already struck down mandatory death sentences. 
3. Constitutional Supremacy: Any law inconsistent with the Constitution is void to the extent of the inconsistency (Article 2(4).16 Section 204 was unconstitutional to the extent that it imposed a mandatory penalty. 

Conclusion 

The case stands as a beacon of transformative constitutionalism in Kenya, affirming that punishment must be individualised, proportionate, and respectful of human dignity. on. It was clearly stated by the apex court that matters such as the constitutionality of life sentence were not canvassed before it thus it could not cloth itself with the jurisdiction under the garb of interpretation to address its mind on such matters. It directed that the matters be filed, presented and argued before the High Court for reliefs.17 Suffice to add, were it that the subject matter of Muruatetu 1 was mandatory minimum sentence under the Sexual Offences Act or rather were it that the ratio decidendi of Muruatetu 1 was that sections 40(3), 296(2) and 297(2) of the Penal Code were declared unconstitutional to the extent that they deprive courts the jurisdiction of exercising discretion that is when appellants could lodge re-sentencing appeals under those sections of the Penal Code or Sexual Offences Act. 18 

Reference(S):

1 Francis Karioko Muruatetu & Another v Republic [2017] eKLR (Supreme Court of Kenya, Petition 15 & 16 of 2015).

2 Penal Code (Cap 63, Laws of Kenya), s 203, s 204. 

3Ibid. 

4 Constitution of Kenya, 2010, art 50 (2). 

5 Criminal Procedure Code (Cap 75, Laws of Kenya), s 261. 

6 Godfrey Ngotho Mutiso v Republic [2010] eKLR. 

7 Joseph Kaberia Kahinya & 11 Others v Attorney General [2010] eKLR. 

8 Constitution of Kenya, 2010, art 50 (2). 

9 David Esokon Samwel v Republic [2019] eKLR.

10 Dismas Wafula Kilwake v Republic [2018] eKLR. 

11 Sexual Offences Act 2006 (No 3 of 2006), s 8. 

12 Jared Koita Injiri v Republic [2019] eKLR. 

13 Criminal Procedure Code (Cap 75, Laws of Kenya), s 329.

14 Constitution of Kenya, 2010, art 28 & 50.

15 Constitution of Kenya, 2010, art 29. 

16 Constitution of Kenya, 2010, art 2 (4) 

17 https://supremecourt.judiciary.go.ke/wp-content/plugins/download-attachments/includes/download.php?id=4394 18 https://icj-kenya.org/news/the-case-of-francis-murutatetu-versus-the-republic-of-kenya/