Read court’s special directions


The case of Francis Muruatetu and another convict made world headlines in December 2017 when Kenya’s highest court declared that the mandatory death penalty for murder, imposed in the case of the two men, was unconstitutional.

The mandatory death sentence had become an increasingly troublesome issue for many in Kenya, and the court’s declaration was widely welcome in that country and beyond. However, the court did not invalidate the death penalty itself, merely the requirement that it had to be imposed in any case where the accused was convicted of murder.

After its declaring of unconstitutionality, the court gave the attorney general, the director of public prosecutions and other agencies a year to prepare a detailed plan to deal with sentence re-hearings for convicts who were on death row as a result of the mandatory death penalty.

‘Utmost urgency’

In addition, the national assembly, the senate, the attorney general and the Kenya law reform commission were required as a matter of ‘utmost urgency’ to draw up any amendments or other changes to the law and proposals as to what ought to constitute life imprisonment, in the wake of the Muruatetu decision. They too, were given a year to make their proposals.

However, as the court explained this week, these authorities took almost two years to present a progress report on the way forward in relation to re-sentencing of those whose death penalty convictions could now be challenged.

One result of the long delay in formulating recommendations to the court, has been great confusion in the other courts which were required to deal with appeals on sentencing, but had no guidelines from which to work.

Special directions

Dealing with these and other issues that had emerged since the initial Muruatetu decision of 2017, the supreme court sat this week to issue special ‘directions’ on what should happen next.

While the supreme court waited for the various agencies and state bodies to report back on their progress, other courts had started interpreting the original Muruatetu decision themselves, and applying what they discerned as the principle in the matter, to a variety of other cases including some where minimum (rather than mandatory) sentences were laid down.

Noting this development, the supreme court said, ‘We state that this implication or assumption of applicability was never contemplated at all, in the context of our decision.’


The judges continued, ‘While it is regrettable that the report was not filed timeously … there can be no justification for courts below us, to take the course that has now resulted in the pitiable state of incertitude and incoherence in the sentencing framework … giving rise to an avalanche of applications for re-sentencing.’

Included in this ‘avalanche’, were cases where magistrates had ‘entertained applications’ for re-sentencing in murder cases, though they clearly lacked jurisdiction. In others, appellants with hearings pending, had their sentences revised by magistrates to whom the appellants had not disclosed that their appeals were pending in the higher courts.

There were a number of related problems, spelled out by the supreme court, which categorically denied that its initial judgment should have been interpreted as many courts had subsequently done.

Similar outcome

On the way forward to resolve this chaos, the court directed that a ‘properly filed, presented and fully argued’ challenge should come through the high court and the court of appeal, if necessary, dealing with other mandatory capital offences such as treason, robbery with violence and attempted robbery with violence, through which a ‘similar outcome as that in [Muruatetu] may be reached.’

‘Muruatetu as it now stands cannot directly be applicable to those cases,’ the supreme court declared.

The next issue was the attorney general’s task force recommendations. They included that life imprisonment should replace the death penalty in matters where the mandatory punishment had been standard. Further, if the death penalty was not abolished, it should be reserved ‘for the rarest of rare cases involving intentional and aggravated acts of killing.’


According to these recommendations, all offenders who had been subject to the mandatory death penalty would be eligible for re-sentencing.   

Pulling together all these issues, and to prevent further delay and confusion, the court issued nine guidelines. These included a clarification that the supreme court’s declaration of unconstitutionality applied only to sentences of murder; that judiciarl sentencing policy guidelines would be revised to take account of the Muruatetu decision, and that all offenders on whom the mandatory death penalty had been passed were entitled to a re-sentencing hearing.

Inaugural sitting

The new Chief Justice, Martha Koome, had also touched on the issue of the Muruatetu case and its aftermath in her opening remarks at the inaugural sitting of Kenya’s supreme court this week.  

She said the case was a landmark decision and recognised that there may be varying degrees of criminal culpability in cases of murder. ‘Not all murders are the same and thus the need for mitigation in murder trials’.

‘While Muruatetu obviously was limited to the death penalty in murder cases, the principles the decision pronounced has had far-reaching implications with ramifications for sentencing in all criminal cases. Indeed, the court of appeal and the high court have extended these principles to cases of robbery with violence and other criminal cases where legislation prescribes minimum and mandatory sentences.

‘This is the situation we intend to clarify in the directions. While the principles of Muruatetu are arguably directly transferable to other cases of mandatory sentences, there is a live debate as to whether they are equally applicable in circumstances where the legislature merely prescribes minimum but not mandatory sentences.’