If you have been watching the ongoing interviews for Kenya's next Chief Justice, one name has frequently popped up in the engagement between every candidate and the Judicial Service Commission (JSC) panel - Muruatetu.
Some non-lawyers have come to understand the term as legal jargon but the simple explanation is that the name refers to a convict who is currently serving a life sentence at Kamiti Maximum Prison - Francis Karoki Muruatetu.
The convicted murderer was immortalised courtesy of a landmark case where he successfully petitioned the Supreme Court of Kenya to declare the mandatory death penalty unconstitutional.
Muruatetu and his accomplice Wilson Thirimbu were convicted for the murder of Nairobi businessman Lawrence Githinji, who was killed in February 2000
The court found that the two had posed as buyers and expressed their interest in a particular piece of land.
Oblivious of their intentions, Githinji together with his driver King’ori took them to inspect the land. They had barbed wire, iron bars and a panga which they claimed they would use to fence the land.
According to court records, the two convicts killed Githinji on the scene and beat up his driver to near death.
The driver, however, lived to tell the tale that eventually led to their conviction and both were sentenced to death as prescribed by Kenyan law. The Penal Code 204 states that “Any person convicted of murder shall be sentenced to death.”
After spending 14 years in prison, they filed a petition at the Supreme Court. They were represented by some of the best legal minds in the country with Muruatetu's legal team being headed by Senior Counsel Fred Ngatia - a candidate seeking the Chief Justice position.
The basis for their petition was;
-The penal code 204, takes away the independence of the court since the sentence is already predetermined.
- Interference with the constitutional right of a fair trial.
- The mandatory death sentence interfered with the right to life enshrined in Kenya's 2010 constitution.
In a landmark ruling (formally known as Francis Karioko Muruatetu & another v Republic 2017) the Supreme Court agreed with Muruatetu and ruled that the mandatory death penalty was unconstitutional.
The ruling, which is simply quoted as the Muruatetu case, reverberated across the legal world, not just in Kenya, but became case law across all commonwealth countries.
It not only dealt with the issue of right to life, but also set precedence on matters of the independence of the various arms of government, right to fair trial, among others.
Despite the favourable ruling, Muruatetu and his fellow convict were required to serve a life sentence, although the lower courts in Kenya were freed from the compulsory death sentences and were given the discretion to decide on a case by case basis.
The ongoing CJ interviews have seen candidates questioned on their understanding of the precedence set by the Muruatetu case.
"I have no problem with the final result of the Muruatetu case... I understand the persuasive reasoning of the Supreme Court in that there should be scope for punishing responsibility by way of the sentence to be meted out," Philip Murgor state
Justice Said Chitembwe cited the case as guiding his decision to deviate from the minimum court sentences imposed on sexual offenders, especially in cases where he felt there was no defilement.
Another candidate, Justice Martha Koome, said the Muruatetu case opened a pandora's box and called for a review that would see harmony in sentencing and avoid cases where sexual offenders get a slap on the wrist for serious crimes.
