Kenya’s murder sentencing framework changed fundamentally after the Supreme Court’s 2017 decision in Francis Karioko Muruatetu & Another v Republic. Although Section 204 of the Penal Code still provides for the death sentence for murder, the Supreme Court held that making that punishment mandatory was unconstitutional. A judge must therefore consider the circumstances of the individual case and offender before deciding sentence.
The practical result is that a murder conviction no longer automatically produces a death sentence. Death remains legally available in appropriate murder cases, but the sentencing court has discretion. Other sentences, including imprisonment for a fixed term or life imprisonment where legally appropriate, can be considered after examining aggravating and mitigating circumstances. The Judiciary’s 2023 Sentencing Policy Guidelines reinforce this individualised approach.
What Section 204 says
Kenya’s Penal Code defines murder under Section 203 and provides the statutory punishment under Section 204.
The wording of Section 204 traditionally required a person convicted of murder to be sentenced to death.
That mandatory requirement was challenged in Muruatetu.
The Supreme Court’s 2017 ruling did not strike murder out of the Penal Code. Nor did it abolish the death penalty. Instead, it found the mandatory nature of the death sentence unconstitutional because it deprived the sentencing court of the ability to consider the circumstances of the particular offender and offence.
This distinction remains central to murder sentencing in Kenya.
What Muruatetu actually changed
Before Muruatetu, the statutory position left little room for judicial discretion once a murder conviction had been entered.
After the decision, sentencing became an individualised judicial exercise.
In simplified terms:
| Issue | Position |
|---|---|
| Murder conviction | Established when the prosecution proves the offence beyond reasonable doubt |
| Statutory punishment in Section 204 | Death |
| Is death automatically imposed? | No |
| Is the death penalty still legally available? | Yes |
| Must mitigation be considered? | Yes |
| Can another sentence be imposed? | Yes, where legally appropriate |
| Is life imprisonment an automatic substitute? | No |
| Are all convicted murderers sentenced identically? | No |
The Supreme Court’s intervention therefore concerned mandatory sentencing, not the existence of murder as an offence or the complete abolition of capital punishment.
Why the Supreme Court rejected mandatory death sentencing
The constitutional concern was judicial discretion.
Sentencing involves more than identifying the offence. The court must consider the circumstances in which it was committed and the circumstances of the person being sentenced.
A mandatory death sentence prevented that assessment.
For example, factors such as age, previous criminal record, personal circumstances and prospects of rehabilitation could have no meaningful effect on the sentence if death was automatically required.
The Supreme Court found that this undermined constitutional protections and the proper judicial function of sentencing.
The Judiciary’s current Sentencing Policy Guidelines describe sentencing as a judicial responsibility and emphasise proportionate, fair and individualised punishment.
Does Muruatetu mean that murder now carries life imprisonment?
No.
This is one of the most persistent misunderstandings surrounding the decision.
The Supreme Court did not replace the mandatory death sentence with a mandatory life sentence.
Instead, it opened the door to judicial discretion.
A court must examine the circumstances before deciding what punishment is appropriate. Depending on the case, that can include a custodial sentence other than death.
Life imprisonment can therefore be relevant in murder sentencing, but it is not an automatic statutory replacement for the death penalty.
What does a judge consider at sentencing?
The sentencing process generally involves two broad categories: aggravating factors and mitigating factors.
Mitigating factors
Mitigation concerns circumstances that may support a less severe sentence.
Depending on the case, the court can consider matters such as:
- whether the offender is a first offender;
- age;
- personal and family circumstances;
- physical or mental health where relevant;
- remorse;
- prospects of rehabilitation;
- cooperation with the justice process; and
- other circumstances affecting culpability.
The 2023 Sentencing Policy Guidelines were specifically revised to reflect developments in sentencing jurisprudence and to provide greater guidance on issues including victims, vulnerable offenders and mandatory sentencing provisions.
None of these factors guarantees a particular sentence.
Their significance depends on the facts of the individual case.
Aggravating factors
The court also considers circumstances that increase the seriousness of the offence.
These can include factors such as planning, exceptional violence, the vulnerability of the victim or other circumstances demonstrating greater culpability.
The purpose is not to create a mechanical points system.
The judge must weigh the circumstances as a whole.
The victim’s family also has a place in sentencing
Modern Kenyan sentencing recognises that criminal punishment affects more than the offender.
Victim-impact information can help the court understand the consequences of an offence for the victim and family.
That is particularly significant in murder cases because the victim cannot personally address the sentencing court.
A family can explain financial losses, emotional consequences, effects on children and other continuing consequences.
But victim participation does not mean that relatives decide the sentence.
The final decision remains with the court.
Why the prosecution and defence can ask for different sentences
Sentencing hearings commonly involve competing submissions.
The defence presents mitigation and argues for the punishment it considers appropriate.
The prosecution can identify aggravating circumstances and argue for a more severe sentence.
The judge must then make an independent determination under the law.
This explains why an offender’s request for leniency does not mean leniency will follow, just as a prosecution request for the maximum punishment does not automatically determine the result.
What happens when several people are convicted of one murder?
A single murder can produce different sentences for different offenders.
The reason is individual culpability.
One person might have played a different role from another. Their previous records, personal circumstances and mitigating factors can also differ.
The sentencing court therefore has to examine each offender separately.
This principle is particularly relevant to the Sharon Otieno case, where former Migori Governor Okoth Obado, Michael Juma Oyamo and Caspal Ajwang Obiero were convicted in the same proceedings.
The fact that three people were convicted does not by itself establish that all three must receive identical sentences.
What Muruatetu II clarified
Following the original 2017 decision, questions arose about whether its reasoning applied to every offence carrying a mandatory or minimum sentence.
The Supreme Court addressed that issue in 2021.
It clarified that the 2017 Muruatetu decision specifically concerned the mandatory death sentence for murder under Sections 203 and 204 of the Penal Code. It did not automatically invalidate every mandatory or minimum sentence elsewhere in Kenyan criminal law.
That clarification is important when discussing the case today.
It means that Muruatetu should not be described as a blanket constitutional ruling against every mandatory sentence.
What the decision means for Obado
The relevance to Obado’s sentencing is direct.
His murder conviction places him within the framework created by Section 204 and interpreted through Muruatetu.
His lawyers can present mitigating circumstances. The prosecution can present aggravating circumstances. Sharon Otieno’s family can provide victim-impact information and express its views.
The judge must then consider the entire sentencing record.
The family’s position is particularly significant because Sharon’s parents have asked for mercy, while the prosecution has opposed leniency. But neither position is binding on the court.
The sentencing decision ultimately belongs to the judge.
Why a first-offender argument does not settle the case
Being a first offender can be important mitigation.
But it does not erase the seriousness of a murder conviction.
The sentencing court must balance the offender’s previous record against the circumstances of the offence and the other material before it.
The same applies to age, health, family responsibilities and expressions of remorse.
These are considerations, not automatic discounts.
The death penalty remains part of Kenya’s legal framework
The distinction between legal availability and mandatory application is essential.
Kenya’s current Sentencing Policy Guidelines expressly recognise the death penalty and state that it remains applicable in some murder cases following Muruatetu, which found Section 204 invalid only to the extent that it prescribed death as mandatory.
The Guidelines also note that the recognised method of carrying out a death sentence under the Prisons Act is hanging.
Thus, saying that Muruatetu “abolished the death penalty” would be inaccurate.
It is more precise to say that the decision abolished the mandatory character of the death penalty for murder.
The bigger constitutional principle
The lasting importance of Muruatetu goes beyond one category of punishment.
It established the importance of allowing a sentencing court to consider the human and factual circumstances surrounding an offence rather than applying punishment mechanically.
That principle is reflected in the Judiciary’s current sentencing guidelines, which describe their objectives as supporting proportionate, impartial, fair, consistent and accountable sentences.
For victims’ families, this means sentencing can take account of the consequences of the crime. For offenders, it means relevant personal circumstances can be heard. For the court, it means the final sentence must be justified through the facts and applicable law rather than simply triggered by the conviction.
What to watch in Obado’s sentencing
The important question in Obado’s case is therefore not simply whether the law permits death, life imprisonment or another custodial sentence.
The decisive issue will be how the High Court weighs the competing factors in this particular case.
The court will have to consider the seriousness of the murder alongside the individual culpability of the convicted men, their mitigation, victim-impact material and the applicable sentencing principles.
That is the practical legacy of Francis Karioko Muruatetu & Another v Republic: **a murder conviction establishes criminal responsibility, but sentencing requires a separate judicial assessment of what punishment is proportionate to the offence and the individual offender.**