BLOW TO INMATES

Muruatetu case only applicable in murder cases, Supreme Court rules

Thousands of inmates who have been relying on the Muruatetu case dealt a blow.

In Summary

• Chief Justice Justice Koome said the Muruatetu judgment has brought a lot of confusion in its application and the directions they were issuing would help give guidelines on how it will be applied.

• In the Muruatetu case, the Supreme Court in 2017 declared the mandatory sentence unconstitutional for the offence of murder.

Chief Justice Martha Koome when she presided over the proceedings of the Supreme Court as the third President of the Court on June 6, 2021.
Chief Justice Martha Koome when she presided over the proceedings of the Supreme Court as the third President of the Court on June 6, 2021.
Image: KENYA JUDICIARY

Thousands of inmates who have been relying on the Muruatetu case to get lesser sentences have been dealt a blow after the Supreme Court ruled they cannot ride on that judgment any longer.

Chief Justice Martha Koome who read directions on the matter on behalf of her six colleagues of the apex court on Tuesday said the Muruatetu case cannot be applied to any other cases except murder cases.

In her inaugural sitting since being appointed as Chief Justice, Justice Koome said the Muruatetu judgment has brought a lot of confusion in its application and the directions they were issuing would help give guidelines on how it will be applied.

In the Muruatetu case, the Supreme Court in 2017 declared the mandatory sentence unconstitutional for the offence of murder.

They only nullified the mandatory nature meaning the judges have the discretion to determine whether they will sentence the accused to death or not.

The Muruatetu case has brought a lot of confusion with lower courts using it in other offences including sexual offences and robbery with violence.

Since December 2017 when the Muruatetu judgment was delivered, thousands of inmates have had their sentences reduced and others released from jail using that ruling.

“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,” the court ruled.

The court 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,” Justice Koome ruled.

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

Justice Koome directed the Judiciary sentencing policy guidelines to be revised in tandem with the new jurisprudence in the Muruatetu case.

All offenders who have been subjected to the mandatory death sentence and desire to be heard on sentence will be entitled to resentencing hearing.

Where an appeal is pending at the Court of Appeal or High Court, they will entertain an application for resentencing upon being satisfied that the appeal had been withdrawn.