Assessing Murder Sentences: Muruatetu and Kenya Law

A conviction for murder answers the question of criminal responsibility. It does not, by itself, answer the separate question of what punishment is just for the particular offender and offence. That distinction is the lasting importance of Muruatetu. The Supreme Court of Kenya did not abolish the death penalty or rewrite every sentencing statute. It rejected a method of sentencing in which a judge had no real choice after conviction and mitigation could not affect the outcome.

For an ordinary reader, the practical question is simple. If two people are both convicted of murder, must they automatically receive the same sentence even where their roles, planning, age, personal history, remorse and prospects of rehabilitation are very different? Muruatetu answered no. The Constitution requires a real sentencing hearing in which the judge evaluates the individual case before deciding whether the maximum punishment is justified.

What the Supreme Court actually decided

Francis Karioko Muruatetu and Wilson Thirimbu Mwangi had been convicted of murder under section 203 as read with section 204 of the Penal Code. At the time, section 204 was applied as requiring death automatically upon conviction. Their appeals against conviction and sentence failed before the Court of Appeal, after which they challenged the mandatory sentencing regime in the Supreme Court.

In Muruatetu & another v Republic [2017] KESC 2 (KLR), the Supreme Court held that section 204 was unconstitutional only to the extent that it made death the unavoidable sentence for murder. The offence of murder remained valid. The death penalty also remained legally available. What disappeared was compulsion.

That distinction is essential. The judgment did not say that every person convicted of murder must receive imprisonment. Nor did it say that death can never be proportionate. It held that the court must have authority to hear mitigation, evaluate aggravating circumstances and then select the sentence through a reasoned exercise of judicial discretion.

Why mitigation became a constitutional issue

Before Muruatetu, mitigation in a mandatory death case could become largely formal. A convicted person might speak about age, family circumstances, health, remorse or a minor role in the offence, yet the judge still had to impose the same punishment. The Supreme Court considered that inconsistent with the constitutional guarantees of fair trial and dignity.

Sentencing is not an administrative step after the real trial has ended. It is the stage at which the State decides the actual deprivation to be imposed. Article 25(c) makes the right to a fair trial non-derogable, while Article 28 protects inherent dignity. A sentencing process that treats materially different offenders as an undifferentiated group risks producing punishment disconnected from individual culpability.

The revised Judiciary Sentencing Policy Guidelines 2023 now reflect that approach. They recognise that, after Muruatetu, death remains a maximum punishment for murder rather than an automatic outcome and devote a specific part to resentencing hearings. The guidelines emphasise an informed record, aggravating and mitigating factors, victim participation and reasons for the sentence imposed.

The 2021 directions define the present boundary

The Supreme Court had to return to Muruatetu in 2021 because lower courts had begun applying its reasoning to robbery with violence, sexual offences and other laws containing mandatory or minimum penalties. In Muruatetu & another v Republic [2021] KESC 31 (KLR), the Court issued directions stating that the 2017 decision and its resentencing framework apply directly to murder under sections 203 and 204 of the Penal Code.

The directions also clarified procedure. A person who received the mandatory death sentence for murder may seek a resentencing hearing. The prosecution and offender must be heard, victim views are relevant, and the High Court has jurisdiction over resentencing where the original trial was before the High Court. The court must consider both aggravating and mitigating material rather than merely replace death with a standard term of imprisonment.

This matters because resentencing is not an automatic reduction exercise. The purpose is to supply the individualized judicial assessment that the mandatory regime previously prevented. The outcome may differ substantially from one case to another.

Muruatetu is not a universal sentencing shortcut

The Supreme Court reinforced this limit in Republic v Mwangi [2024] KESC 34 (KLR). The case concerned minimum sentences under the Sexual Offences Act. The Court criticised the blanket use of Muruatetu to invalidate sentencing provisions that raised different legal questions.

The Court drew an important distinction between a mandatory sentence and a minimum sentence. A truly mandatory sentence leaves the judge with no sentencing choice at all. A minimum sentence sets a statutory floor while potentially allowing a heavier sentence. Whether a minimum sentence is constitutional must therefore be argued on the text, purpose and constitutional effect of that particular provision; Muruatetu cannot simply be cited as having already decided the matter.

The same caution applies to other capital offences. Challenges to the mandatory death penalty for offences such as robbery with violence must be brought and properly argued through the ordinary court hierarchy. Good legal writing should therefore avoid the statement that Muruatetu invalidated all mandatory sentences in Kenya. It did not.

International law supports individualized capital sentencing

The international context points in the same direction. Kenya is a party to the International Covenant on Civil and Political Rights. In General Comment No. 36 on the right to life, the United Nations Human Rights Committee states that, where a State retains capital punishment, the sentencing court must consider the offender's personal circumstances and the circumstances of the offence. A mandatory death regime that prevents such consideration is treated as arbitrary.

That international position does not replace the Kenyan Constitution or the Supreme Court's judgment. Its value is confirmatory. It shows that the demand for individualized capital sentencing is connected to a broader human-rights concern about proportionality, fair process and the exceptional nature of the death penalty.

How a murder sentencing hearing should now be prepared

For defence counsel, mitigation should be evidence rather than a plea for sympathy. Relevant material may include age, prior record, degree of participation, mental and physical health, remorse, rehabilitation, family responsibilities, conduct while in custody and prospects of reintegration. Where a factual claim is important, it should be supported by reliable records or reports.

For prosecutors, the sentencing stage should address the seriousness of the offence with equal precision. Planning, brutality, vulnerability of the victim, impact on the victim's family, abuse of trust, concealment and public-protection concerns may all matter. Victim participation is not a substitute for the judicial decision, but it gives the court information about consequences that may be relevant to proportionality.

For judges, the safeguard against inconsistency is reasoned sentencing. The judgment should show which factors were considered, what weight they received and why the final sentence fits the offender and the offence. Individualization does not mean personal preference. It means discretion controlled by law, evidence, sentencing principles and appellate review.

Why the case still matters

Muruatetu changed Kenyan murder sentencing by restoring judgment to the sentencing stage. A court must no longer treat section 204 as mechanically fixing death in every murder case. Yet the precedent is strongest when used within the limits the Supreme Court later imposed on it.

The practical lesson is therefore two-sided. Murder sentencing must be individualized, and mitigation must be capable of affecting the result. At the same time, lawyers should not use Muruatetu as a universal formula for attacking every mandatory or minimum sentence in the statute book.

That combination of constitutional protection and precedential discipline is why the case remains important. It makes sentencing more humane without turning judicial discretion into an invitation to disregard legislation or the hierarchy of courts.

Source note

This article is based on Muruatetu & another v Republic [2017] KESC 2 (KLR), Muruatetu & another v Republic [2021] KESC 31 (KLR) (Directions), Republic v Mwangi [2024] KESC 34 (KLR), sections 203 and 204 of the Penal Code, the Judiciary of Kenya Revised Sentencing Policy Guidelines 2023, the Constitution of Kenya 2010, and the United Nations Human Rights Committee's General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights.

Suggested citation: 

Ronald Serwanga, "Assessing Murder Sentences: Muruatetu and Kenya Law" East Africa Legal Insight (8 September 2026).