The Supreme Court has on Thursday ruled that the mandatory death sentence is unconstitutional as it violates dignity, access to justice and right to fair trial by taking away the judges' discretion in considering mitigating factors.
The court, however, made it clear that the death sentence had not been outlawed but rather, should be a discretionary sentence, and proceeded to give guidelines to be used in assessing mitigating circumstances.
The apex court further directed that the full judgement be delivered to both Houses of Parliament to guide them in making ammendments to the relevant legislation.
The bench also ordered that the petitioners, who were death row convicts Francis Karioko and Wilson Thirimbu, have their case re-heard at the High Court only on sentencing.
The two, who had been charged with murder, wanted the court to abolish the mandatory death penalty, stating that it was cruel and inhumane.
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In Kenya, the death penalty was introduced during colonial times when Kenya was still under British rule. It was retained in constitutional dispensations that were developed after independence.
Case papers filed by the two read in part:“We were convicted by the High Court on a charge of murder and, by the operation of Section 204 of the Penal Code, the sole applicable sentence was the death sentence.
"The sentence was not a judicial evaluation, but rather a predetermined penalty in a municipal statute,” it continued.
They have been on Death Row for 14 years, having been jailed in 2003.
The last time the death penalty was fully undertaken in Kenya was in 1987 when Hezekiah Ochuka was executed for being behind the attempted 1982 coup.
President Uhuru Kenyatta commuted 2,747 death sentences to life imprisonment in October 2016, while his predecessor Mwai Kibaki commuted 4,000 sentences in 2009.
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