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THE DEATH SENTENCE IN KENYA : WHAT YOU NEED TO KNOW

Mar-19-2024

BY BUNDI OKEMWA : 0701009131 (LAW STUDENT, WRITER AND STATISTICIAN)

The High Court on Wednesday 13 March 2024 sentenced Joseph Kuria Irungu alias Jowie to death for the 2018 murder of businesswoman Monica Kimani.

Monica was brutally murdered in her Nairobi residence at Lamuria Gardens, in Kilimani on September 19, 2018.

According to Justice Nzioka, the prosecution presented sufficient evidence beyond any reasonable doubt that Jowie murdered Monica

While delivering the verdict, Justice Grace Nzioka said that Jowie Irungu ‘shall suffer death as provided for the offence of murder under Section 204 of the Penal Code of Kenya’.

The judge noted that there were only three options in sentencing Irungu which included a term of years, life imprisonment or death.

Under the law of Kenya, anyone who intentionally, with malice aforethought, causes the death of another person is guilty of the crime of murder.

Penal Code Section 204 states that anyone found guilty of murder, robbery with violence, treason and other capital offences shall be hanged.

The death penalty has been around for a long time. It was first introduced in 1893 during the pre-colonial period. However, before colonisation, the penalty was rarely used.

Up until 1965, the Murder Act (Abolition of Death Sentence) in the United Kingdom imposed a five-year suspension on the death sentence for murder.

The House of Commons reaffirmed its decision to permanently abolish the death penalty for murder in 1969 by a vote of 343 to 185.

The majority of Britain's colonies, including Kenya, had gained independence by the time the death sentence was abolished in the UK.

This implied that each independent colony could continue the death punishment or follow Britain's lead and do away with it. Kenya decided to keep the death sentence in place.

Since Hezekiah Ochuka and Pancras Oteyo Okumu, the leaders of the 1982 failed coup attempt, were hung for treason in 1987, Kenya has not carried out another execution.

JOWIE IRUNGU IN COURT DURING SENTENCING ON 13TH MARCH 2024

In 2017, the Supreme Court declared the mandatory death sentence unconstitutional but did not outlaw it.

The ruling gave judges discretion to decide whether to hand down the death sentence or life imprisonment.

Justice Nzioka in her ruling noted that the apex court termed the mandatory nature of the death sentence as unconstitutional and not the death sentence itself.

"The case declared that the mandatory nature of the death sentence is unconstitutional and that it did not declare the death sentence unconstitutional," she stated while sentencing Jowie.

Despite this legal provision, Kenya has not executed a single convict in over 30 years.

With Jowie handed a death sentence, he will likely serve life imprisonment.

The legal framework governing the death penalty in Kenya is primarily enshrined in the Penal Code, which provides for capital punishment for certain offenses deemed as the "most serious crimes." These offenses typically include murder, treason, and certain acts of terrorism. However, Kenya has adopted a restrictive approach to the imposition of the death penalty, with executions being rare and subject to stringent procedural safeguards.


In practice, Kenya has not carried out any executions since 1987, effectively maintaining a de facto moratorium on the death penalty. This trend reflects a growing global trend towards the abolition of capital punishment, with an increasing number of countries opting to either abolish the death penalty outright or impose moratoriums on its use.

Moreover, Kenya's Constitution, promulgated in 2010, emphasizes the protection of human rights and dignity affirming the right to life as inviolable and prohibiting cruel, inhuman, or degrading punishment.

While the Constitution does not explicitly abolish the death penalty, it provides a basis for judicial review and scrutiny of capital punishment cases to ensure compliance with constitutional principles and international human rights standards.

In recent years, there has been renewed debate and advocacy for the abolition of the death penalty in Kenya, driven by concerns over its fairness, effectiveness as a deterrent, and potential for miscarriages of justice. Civil society organizations, human rights activists, and legal experts have called for legislative reforms to abolish or restrict the use of the death penalty, advocating for alternative sentencing measures, such as life imprisonment, rehabilitation, and restorative justice approaches.

Internationally, Kenya is a party to various human rights treaties and conventions that advocate for the abolition of the death penalty, including the International Covenant on Civil and Political Rights (ICCPR) and the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty.

As was demonstrated in The Jowie Irungu sentencing, it is safe to conclude that while the death penalty remains a legal option under the Kenya Penal Code, its application is rare, and there is a growing momentum towards its abolition or restriction. As Kenya continues to navigate these debates, the issue of the death penalty remains a significant aspect of its evolving legal landscape and commitment to human rights and justice.