28 February 2025
High Court of Kenya Declares Mandatory Death Sentence for Robbery with Violence Unconstitutional
On 24th February 2025, the High Court of Kenya sitting in Vihiga issued a landmark judgment in Constitutional Petitions No. E002 and No. E003 of 2024. The case centered on the constitutionality of the mandatory death sentence imposed on individuals convicted of robbery with violence and attempted robbery with violence under Sections 295(1), 296(2), and 297(2) of the Penal Code. The petitioners, who had initially been sentenced to death, later had their sentences commuted to life imprisonment through a presidential decree. They approached the court seeking redress, arguing that the mandatory nature of their sentences violated fundamental rights enshrined in the Constitution of Kenya, 2010.
The petitioners challenged the sentencing framework, contending that the mandatory death penalty deprived them of judicial discretion in sentencing. They asserted that this was inconsistent with Article 50(2)(p) of the Constitution, which guarantees the right to the least severe punishment applicable. Furthermore, they argued that the commutation of their sentences to life imprisonment without the possibility of review contravened Article 28, which protects human dignity, and Article 29(f), which prohibits cruel, inhuman, or degrading treatment or punishment.
The court, in its findings, upheld the constitutionality of the death penalty as per Article 26(3) of the Constitution but ruled that the mandatory imposition of the death sentence was unconstitutional. It found that Sections 296(2) and 297(2) of the Penal Code unjustly removed judicial discretion, preventing courts from considering mitigating factors when sentencing offenders. The court relied on the precedent set by the Supreme Court in Francis Karioko Muruatetu & Another v Republic (2017), which held that mandatory sentencing provisions violate fundamental rights to a fair trial, human dignity, and equality before the law.
Additionally, the court observed that sentencing individuals to life imprisonment without the possibility of review subjected them to indefinite incarceration, amounting to psychological torture and violating Articles 27 and 28 of the Constitution. The court referenced the European Court of Human Rights’ decision in Vinter and Others v United Kingdom, which established that life sentences without the prospect of release constitute inhuman treatment.
Another crucial aspect of the judgment was the court’s finding that failure to allow for mitigation during sentencing contravened Article 50(2)(h) & (p) of the Constitution, which guarantees the right to a fair trial. The court also reaffirmed that under Section 333(2) of the Criminal Procedure Code, courts must deduct time spent in custody before sentencing, and failure to do so was unconstitutional.
Based on these findings, the court made several key declarations. First, it held that the mandatory nature of the death sentence under Sections 296(2) and 297(2) of the Penal Code is unconstitutional. Second, it directed that all prisoners serving life sentences for robbery with violence or attempted robbery with violence be given an opportunity to apply for mitigation and resentencing. Third, it found that failure to consider time spent in custody under Section 333(2) of the Criminal Procedure Code was unconstitutional. As a result, affected prisoners are now entitled to petition the courts for resentencing, where their individual circumstances will be taken into account.
This ruling marks a significant shift in Kenya’s sentencing laws, aligning them with international human rights standards and reinforcing the principle of judicial discretion. The judgment ensures that sentencing is proportionate and fair while upholding the constitutional rights of convicted persons. It also provides hope for thousands of prisoners serving life sentences following the commutation of their death penalties, as they can now seek resentencing.
The decision in Stephen Njau Mbugua & Others v The Hon. Attorney General & Another represents a milestone in Kenya’s legal landscape. It affirms the importance of judicial discretion, human dignity, and equal treatment under the law. While the death penalty remains legal, it can no longer be imposed automatically. Instead, courts must evaluate each case on its own merits, ensuring that justice is served fairly and equitably.
For further legal assistance or advice on resentencing applications, contact our constitutional and criminal litigation department by clicking here.
Published by Joshua Kimani ACIArb
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