Parsing The Muruatetu and Gichuki Cases: Clarifying The Errors and Misunderstanding Stemming From The Proportionality, Judicial Discretion, and Legislative Lacunae Research Paper .
An Article by Laban Achoki
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This paper begins by acknowledging a significant oversight in its predecessor: the mistaken view that the Supreme Court’s decision in Gichuki rested on a substantive proportionality analysis. In reality, the Court did not address the merits of proportionality or the legality of mandatory minimum sentences for sexual offences; it simply found that the case reached it by an improper procedural route. Consistent with precedents such as Gatirau Peter Munya, the Court emphasised that only appeals originating from the High Court may proceed as of right to the Supreme Court. Having clarified this error, the present paper retains its original academic value—provided the reader understands that one element of the earlier argument was overstated. With this qualification in mind, the ensuing discussion remains both relevant and insightful.
Following feedback from The Initial Paper attempting to reconcile Muruatetu and Gichuki, it is evident that resistance remains against framing the two decisions through the lens of proportionality. This skepticism largely stems from the entrenched belief that mitigation is central to a fair trial and cannot be constrained by a proportionality argument. This paper seeks to clarify this issue by restating the Supreme Court's position in Gichuki and refining the argument concerning the interplay between proportionality, mitigation, and fair trial guarantees. This reframing underscores the centrality of mitigation, as affirmed in Muruatetu, while situating it within the broader constitutional and judicial context.
In the initial paper, I highlighted the ambiguity in Muruatetu, which has led to widespread misinterpretation of the Supreme Court’s position. Ironically, I now find it necessary to further clarify the argument presented. This paper begins by reaffirming two foundational premises: that Muruatetu established sentencing as an integral component of the trial process, thereby extending fair trial protections to sentencing, and that Muruatetu’s pronouncements were made strictly within the context of Section 204 of the Penal Code. With these premises in place, I will analyze the relationship between sentencing and fair trial principles, the role of proportionality, and the true scope of mitigation in Kenyan sentencing jurisprudence.
The Supreme Court in Muruatetu explicitly recognized that sentencing is a crucial component of a fair trial. At paragraph 41, the Court stated:
"It is evident that the trial process does not stop at convicting the accused. There is no doubt in our minds that sentencing is a crucial component of a trial. It is during sentencing that the court hears submissions that impact on sentencing. This necessarily means that the principle of fair trial must be accorded to the sentencing stage too."
This affirms the first premise: sentencing is inextricable from a fair trial. The second premise is established in Gichuki, where the Court clarified at paragraph 51 that Muruatetu’s pronouncements were confined to Section 204 of the Penal Code: "Reading this paragraph and the Judgment as a whole, at no point is reference made to any provision of any other statute. The reference throughout the Judgment is only made to section 204 of the Penal Code and it is the mandatory nature of death sentence under that section that was said to deprive the ‘courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases.’"
Thus, the Muruatetu ruling must be understood within the confines of Section 204 and not as a general statement on mandatory sentences across all offenses.
The Supreme Court in Gichuki acknowledged the global trend toward using proportionality as a tool for individualizing sentences and eliminating mandatory minimums. However, it categorically stated that proportionality has
not yet been adopted as the standard for invalidating mandatory sentences in Kenya. Instead, the Court emphasized that any challenge to the constitutionality of mandatory minimums must originate from the High Court and proceed through the appellate hierarchy. In paragraph 62, the Court reiterated:
"Before Kenyan courts can determine whether or not the above trends and decisions are persuasive, we reiterate that there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder."
Despite this, the Court acknowledged that Parliament, not the Judiciary, holds primary authority over sentencing laws, reaffirming the principle of separation of powers. The Court stated at paragraph 66:
"We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law."
Nonetheless, there are ‘special circumstances’ where courts may intervene. The Court suggested that a “blatantly illegal sentence” may justify judicial intervention. This phrase begs the question: what constitutes a blatantly illegal sentence?
That question cannot be answered without a proportionality analysis. Article 94 grants Parliament the power to enact penal laws, but this power is constrained by Article 24, which limits rights only to the extent that is acceptable in a democratic society. Further safeguards include Article 25, which prohibits cruel, inhuman, and degrading punishment, Article 27, which mandates non-discrimination, and Article 28, which guarantees human dignity. A sentence that violates these provisions—such as one prescribing flogging or amputation—would be manifestly unconstitutional.
Interestingly, even though proportionality is not yet the standard for invalidating mandatory sentences, the Supreme Court itself has invoked it when discussing mitigation. In paragraph 53 of Muruatetu, the Court stated:
"If a Judge does not have discretion to take into account mitigating circumstances it is possible to overlook some personal history and the circumstances of the offender which may make the sentence wholly disproportionate to the accused's criminal culpability."
This reinforces the intrinsic link between mitigation and proportionality. Mitigation exists to ensure that sentencing is proportionate, aligning with constitutional safeguards. A primary point of contention with critics of the initial paper was the perceived relegation of mitigation to a secondary status. However, the Supreme Court unequivocally affirmed that mitigation is a fundamental component of a fair trial, even though it is not explicitly listed in the Bill of Rights. The Court stated:
"We are of the view that mitigation is an important congruent element of fair trial. The fact that mitigation is not expressly mentioned as a right in the Constitution does not deprive it of its necessity and essence in the fair trial process."
On the surface, this may suggest that mitigation is a non-derogable right. However, two critical considerations must be acknowledged. Muruatetu applied strictly to Section 204 of the Penal Code, meaning its mitigation pronouncements were confined to murder cases. Additionally, the preceding paragraph of Muruatetu contextualized the ruling within Section 204:
"To our minds, what section 204 the Penal Code is essentially saying to a convict is that he or she cannot be heard on why, in all the circumstances of his or her case, the death sentence should not be imposed on him or her, or that even if he or she is heard, it is only for the purposes of the record as at that time of mitigation because the court has to impose the death sentence nonetheless."
As the Supreme Court alluded to and as argued in the Prior Paper, the problem with Muruatetu is that it is not always read with the strict context it requires, which is that it is addressing Section 204 and nothing else. There is no room to import Muruatetu to other offenses. Mitigation remains fundamental in murder cases but is not yet an absolute right in all offenses. Future jurisprudence will determine whether mitigation evolves into a decisive standard for invalidating mandatory sentences, but for now, its role remains advisory rather than authoritative.
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