On 14th December 2017 the Supreme Court in Francis Karioko Muruatetu & another v Republic [2017] eKLR altered the mandatory death penalty for convicted murderers and held that the mandatory death sentence is “out of sync with the progressive Bill of Rights” in Kenya’s 2010 Constitution and an affront to the rule of law.
The Court also highlighted the ouster of the court’s judicial decisional independence by affixing a determinate sentence, the varied mitigating circumstances notwithstanding.
The Court relied on progressive global jurisprudence on the question of death penalty, to find that the mandatory nature of death sentence is “harsh, unjust and unfair.” Subsequently, the Court mandated that all trial courts conduct a pre-sentencing hearing to determine whether the death penalty is deserved on a case-by-case basis. Effectively, Muruatetu delegitimizes the mandatory the capital punishment, for murder cases; and Courts would have to apply their judicial minds to the circumstances under which the murder was committed to elect whether mete out the death sentence.