Kenya’s Penal Code still states that a person convicted of murder “shall be sentenced to death” under Section 204. But that wording no longer means that death is an automatic punishment. The Supreme Court held in Francis Karioko Muruatetu & another v Republic that the mandatory nature of the death sentence for murder is unconstitutional because it removes judicial discretion. The death penalty therefore remains legally available for murder, but as a discretionary maximum sentence rather than an automatic one.
A murder conviction can consequently result in a range of sentences depending on the circumstances. Courts have imposed lengthy terms of imprisonment, including fixed-term sentences, and the legal framework also recognises life imprisonment as a possible sentencing outcome in appropriate cases. There is, however, no statutory provision in Section 204 that simply replaces the death penalty with a mandatory life sentence. The judge must conduct an individualised sentencing exercise, considering aggravating and mitigating factors before deciding the appropriate punishment.
What Section 204 of the Penal Code says
Kenya’s murder offence is defined in Section 203 of the Penal Code.
A person is guilty of murder where, with malice aforethought, the person unlawfully causes another person’s death. Section 204 then provides that a person convicted of murder shall be sentenced to death.
On the face of the legislation, that appears straightforward.
The constitutional jurisprudence makes the position more complicated.
The Supreme Court’s 2017 Muruatetu decision did not abolish the death penalty. Instead, it invalidated its mandatory application to murder.
That distinction remains fundamental to understanding murder sentencing in Kenya.
The death penalty remains available
It would therefore be inaccurate to say that Kenya has abolished the death penalty for murder.
The Supreme Court expressly clarified in its 2021 directions that Muruatetu did not outlaw the death penalty. Instead, Section 204 was held unconstitutional to the extent that it required a mandatory death sentence. The death penalty remained available as a discretionary maximum punishment for murder.
This creates a two-part legal position:
| Question | Position under current Kenyan law |
|---|---|
| Does Section 204 still provide for death? | Yes |
| Is death automatically imposed after a murder conviction? | No |
| Did Muruatetu abolish the death penalty? | No |
| Can a court impose a sentence other than death? | Yes |
| Is life imprisonment automatically substituted for death? | No |
| Can a court impose a fixed prison term? | Yes, depending on the circumstances and applicable jurisprudence |
| Must the judge consider mitigation? | Yes |
| Does every murder conviction have the same sentence? | No; sentencing is individualised |
The practical effect is that the words of Section 204 must now be read together with the Constitution and the Supreme Court’s interpretation.
What changed after Muruatetu?
Before Muruatetu, the statutory wording left a trial judge with no sentencing choice once murder had been proved.
The Supreme Court found that the mandatory nature of the punishment was unconstitutional because it prevented the court from considering the circumstances of the individual offender and offence.
The Court subsequently clarified the scope of its decision.
In 2021, the Supreme Court stated that Muruatetu and its sentencing guidelines applied specifically to murder under Sections 203 and 204 of the Penal Code. It rejected the interpretation that the decision had automatically invalidated every mandatory or minimum sentence contained elsewhere in Kenyan law.
That clarification is important because Muruatetu is sometimes incorrectly described as having abolished mandatory sentencing generally.
It did not.
What does a judge consider before sentencing?
Once a person has been convicted of murder, the court conducts an individualised sentencing exercise.
The Judiciary’s 2023 Sentencing Policy Guidelines provide a framework for this process. They direct courts to consider relevant mitigating and aggravating circumstances and the purposes of sentencing.
Mitigating circumstances
Mitigation can include circumstances such as:
- the offender’s age;
- previous criminal record;
- personal and family circumstances;
- remorse where properly established;
- prospects of rehabilitation;
- mental or physical health where relevant;
- whether the offender has cooperated with the justice process; and
- other circumstances that reduce the offender’s culpability or make a particular punishment less appropriate.
The precise weight given to any factor is for the sentencing court.
Being a first offender, for example, does not guarantee a non-custodial sentence.
Aggravating circumstances
The court can also consider factors that increase the seriousness of the offence.
These can include the manner in which the victim was killed, planning or premeditation, extreme violence, vulnerability of the victim and other circumstances demonstrating heightened culpability.
Again, the existence of an aggravating factor does not mechanically produce a particular sentence.
The judge must assess the complete circumstances.
Is life imprisonment the alternative to death?
This is one of the most commonly misunderstood points.
There is no rule under Section 204 saying that every murder conviction that does not attract death must automatically result in life imprisonment.
The Muruatetu decision specifically left the question of the parameters of a life sentence unresolved at the time. The Supreme Court later reiterated that its decision had not simply converted the mandatory death penalty into mandatory life imprisonment.
Life imprisonment can therefore be imposed where the court considers it appropriate, but it is not an automatic statutory substitute for death.
That distinction gives the sentencing judge discretion to consider other lawful sentencing outcomes where the circumstances justify them.
Can a murder offender receive a fixed prison term?
Yes.
Kenyan courts have imposed fixed-term custodial sentences in murder cases following the development of discretionary sentencing after Muruatetu.
The precise term depends on the circumstances of the individual case and the court’s assessment of proportionality.
A fixed-term sentence should not, however, be understood as a standard tariff for murder. Kenyan law does not prescribe one universal number of years that applies to every murder conviction.
This is why comparing one murder sentence with another can be misleading unless the circumstances of the offences and offenders are also compared.
What about a non-custodial sentence?
A non-custodial sentence is legally different from saying that the offender has escaped punishment.
But in a murder case, the question is whether such a sentence is appropriate given the seriousness of the offence and the purposes of sentencing.
The fact that the offender is a first offender, elderly, ill or supported by the victim’s family does not automatically require a non-custodial sentence.
Those factors can be presented as mitigation. The judge must then decide what weight they deserve.
This is particularly relevant to the sentencing of Obado, whose defence has asked the court to consider his age, health, clean record and other personal circumstances.
Why the circumstances of the offence matter
The sentencing court does not look only at the person who has been convicted.
It must also consider what happened.
A murder involving substantial planning, deliberate targeting, extreme violence or other aggravating circumstances can be treated differently from a case in which significant mitigating circumstances reduce the offender’s culpability.
That is one reason there is no single sentence that can accurately be predicted from the word “murder” alone.
The conviction establishes criminal responsibility. Sentencing then requires the court to assess the gravity of the particular offence and the culpability of the particular offender.
Why individual culpability matters when several people are convicted
Where several people are convicted of the same murder, the court does not necessarily have to impose identical sentences.
The 2023 Sentencing Policy Guidelines require consideration of each offender’s individual culpability.
That principle is particularly relevant to cases such as Sharon Otieno’s murder, in which Obado, Michael Juma Oyamo and Caspal Ajwang Obiero were convicted in the same proceedings but were found to have had different roles.
The sentencing court must therefore consider each man’s responsibility rather than simply treating the three convictions as identical.
The victim’s family can influence the sentencing discussion
Victim-impact evidence is another part of modern Kenyan sentencing.
A victim or, in a fatal case, members of the victim’s family can explain the consequences of the offence and express their views.
This can include financial losses, emotional consequences, effects on children and other continuing consequences of the crime.
But the family does not determine the sentence.
That distinction is especially visible in the Obado case, where Sharon Otieno’s parents have asked for mercy despite the prosecution opposing leniency.
Their forgiveness can be considered by the judge. It does not require the judge to impose a particular punishment.
What happens to time already spent in custody?
Another issue that can affect the final sentence is the period an offender has already spent in custody.
Section 333(2) of Kenya’s Criminal Procedure Code requires courts, when sentencing, to take into account the period the accused has spent in custody before sentence.
This does not mean that every period of custody translates into an automatic one-for-one deduction from whatever sentence the judge selects. The court must apply the statutory requirement to the circumstances of the case and make the appropriate sentencing order.
For defendants who have spent substantial periods in custody during lengthy proceedings, this can become an important part of the final sentencing calculation.
Does the death penalty have to be carried out?
The availability of a death sentence and the actual carrying out of an execution are separate questions.
A court can impose a death sentence under the discretionary framework without that necessarily meaning that an execution will take place.
Kenya has not carried out an execution since 1987, although courts have continued to impose death sentences in appropriate cases. The legal existence of the penalty should therefore not be confused with the country’s execution practice.
The President also has constitutional powers relating to the exercise of mercy, including commutation of sentences, subject to the constitutional process.
What Muruatetu did not decide
The boundaries of Muruatetu are important.
The Supreme Court’s 2021 directions made clear that its murder-sentencing decision did not automatically invalidate mandatory or minimum sentences in every other offence. Challenges involving other capital offences require their own constitutional litigation.
Nor did the Court establish a universal sentencing scale for murder.
The result is a discretionary framework rather than a new mandatory penalty.
This is why statements such as “Muruatetu replaced the death penalty with life imprisonment” are legally incomplete.
What this means for Obado
Obado’s case falls directly within the murder-sentencing framework addressed by Muruatetu.
The High Court has already convicted him. The question before Justice Cecilia Githua is now what sentence is appropriate after considering the relevant material.
His defence has presented mitigating circumstances, while the prosecution has argued for a severe punishment and pointed to the circumstances of the offence.
Sharon’s parents have separately asked for mercy.
None of those submissions determines the result by itself.
The judge must assess the evidence and sentencing material against the applicable legal framework.
The key distinction to remember
Kenya’s murder-sentencing law is best understood through one distinction: death remains the statutory maximum, but it is no longer mandatory.
A judge has discretion to impose a different lawful sentence after considering the offender’s mitigation, the seriousness and circumstances of the murder, individual culpability, victim impact and the purposes of sentencing.
That means a murder conviction does not automatically translate into death, nor does rejecting the death penalty automatically translate into life imprisonment.
For Obado, the significance of the sentencing process is therefore not simply whether the court chooses death, life imprisonment or a fixed term. The more important legal question is how the judge applies the constitutional requirement for individualised sentencing to the specific facts, aggravating circumstances, mitigation and victim impact in the Sharon Otieno case.