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The Supreme Court of Kenya (SCK) yesterday ruled that the famous Muruatetu judgment be applied in murder cases only.

Speaking during her first session as the President of the Supreme Court during a virtual mention of the case, Chief Justice Martha Koome noted that the judgment cannot be applied in any other cases.

Verdict of the apex court deals a major blow to thousands of prisoners who have been relying on the Muruatetu judgment to get lesser sentences.

The Muruatetu judgment delivered in 2017 by the Supreme Court declared the mandatory death sentence for the offence of murder unconstitutional.

Koome noted that the judgement has brought a lot of confusion with lower courts using it in other offences including sexual offences and robbery with violence. 

“The decision of Muruatetu can only apply for murder under Section 203 and Section 204 of the Penal Code,” the court ruled.

Koome, Deputy Chief Justice Philomena Mwilu, Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Susanna Ndung’u, Isaac Lenaola and William Ouko directed that all offenders who have been subjected to the mandatory death sentence and desire to be heard will be entitled to re-sentencing hearing.

She noted that since the Muruatetu judgment was delivered, thousands of inmates have had their sentences reduced, others released from jail while others sought re-sentencing over the same based on the case. 

“To clear the confusion in regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason and robbery with violence, that a challenge of those sentences should be properly filed in court,” ruled the judges.

The Judges held that the Muruatetu judgement and the guidelines apply only in respect to sentences of murder as provided for under Sections 203 and 204 of the penal code.

“We direct other capital offences  such as robbery with violence that are challenged on the constitutional validity should be bargained at the High Court. Muruatetu can’t be applicable to those cases,” they noted. 

They further said the cases filed should be presented and fully argued before the High Court and escalated to the Court of Appeal if necessary at which a similar outcome as Murutetu may be reached.

“Muruatetu cannot be the authority for stating that all the provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution,” ruled Justice Koome.

Further, the Supreme Court issued guidelines in which the court should consider when re-sentencing among them the age of the offender, probation report, offender’s remorse and whether the accused pleaded not guilty.

Other considerations should include character of the offender, manner in which the offence was committed on the victim, possibility of reform and any other factor the court may consider relevant.

The Muruatetu case came to the fore in December 2017 when the Supreme Court ruled that Section 204 of the Penal Code was inconsistent with the Constitution to the extent that it provided for  mandatory death sentence for murder while taking away judicial discretion to consider mitigation before sentencing.

This will be the first time that the court applies the principle of structural interdict, which is a supervisory order through which a court directs compliance with its order.