Explained: Death sentence in Kenya

The sentencing of Joseph Irungu, alias Jowie, to death by the High Court has ignited a wave of reactions across the country.

The verdict, delivered by Justice Grace Nzioka on Wednesday, March 13, has sparked a debate about the legality of the death sentence.

"I have ordered that the first accused person, Joseph Kuria Irungu alias Jowie, shall suffer death as provided for the offence of murder under Section 204 of the Penal Code of Kenya," Judge Nzioka ruled.

In her judgment, Nzioka cited overwhelming evidence against Jowie, leading to his conviction for the crime of murder.

Critics argue that although the Supreme Court of Kenya declared the mandatory nature of the death penalty unconstitutional in 2017, the accused persons still have the right to appeal their case.

According to Constitutional Lawyer Charles Kanjama, Jowie, just like any other Kenyan, has the right to appeal the ruling at the Court of Appeal.

"He can ask the court to assess the case afresh on the basis of facts or evidence, and the Court of Appeal can overturn the ruling," says Kanjama

Professor Makau Mutua, also a lawyer, shared his thoughts on the death penalty saying, "It goes against the logic, values, and legal philosophy that undergird Kenya's 2010 Constitution."

"No court should ever impose such an irreversible penalty on any offender in Kenya, no matter the heinousness of the crime, or how despicable and depraved the felon," Mutua added.

Former Law Society of Kenya (LSK) President Nelson Havi also weighed in on the matter, calling on the courts not to act in vain.

"No one has ever been hanged for a capital offense after Captain Hezekiah Ochuka. Just sentence them to 30 years' imprisonment. Hardly anyone lives beyond that in jail," wrote Havi on X.

National Assembly Minority Leader Opiyo Wandayi is sponsoring a bill to have the death sentence penalty abolished.

"My Bill seeks to abolish the death sentence altogether, and have it replaced with a life sentence," he said.

Jowie was convicted for the murder of Monica Kimani, who was brutally killed on September 19, 2018, at her Lamuria Gardens apartment in Nairobi.

Justice Nzioka explained her decision to grant Jowie the death verdict despite the Supreme Court's nullification.

"The only thing that case did was to declare that the mandatory nature of the death sentence is unconstitutional. It did not declare the death sentence unconstitutional," said Nzioka.

Death sentence in Kenya

In December 2017, the Supreme Court of Kenya declared the mandatory death penalty unconstitutional.

This meant that the death penalty could still be rendered for murder but at the discretion of a judge. Since 2017, the courts have been rendering death sentences.

The execution was still set as the maximum penalty but was not to be the only penalty for murder.

According to research, there were 656 people recorded on death row in Kenya by the end of 2022, with a total of seventy-nine (79) death sentences handed down that year alone according to an Amnesty International report.

People convicted of murder, robbery with violence, attempted robbery with violence, or treason can be sentenced to death.

Since independence, some 280 convicts who were sentenced to death were executed in Kenya.

Hezekiah Ochuka was the last person to face the hangman's noose. He was found guilty of treason for the 1982 attempted coup and was hanged at the Kamiti Maximum prison in July 1987.

Kenya has since not carried out any execution in more than 35 years.

Last year, the Court of Appeal curbed life imprisonment in Kenya at 30 years with the death sentence ending when the convict dies or when the President commutes to a life sentence.

Those on death row have 24-hour solitary security confinement with minimal time in the sun.

During their tenures, former Presidents Mwai Kibaki and Uhuru Kenyatta changed the sentences of all death row inmates to life imprisonment.