Jillo Kadida - Nairobi — Three judges of appeal on Friday declared the mandatory death sentence for murder unconstitutional.
In a landmark decision, the three upheld a constitutional provision on protection against inhuman treatment and declared section 204 of the Penal Code, which stipulates death as the only sentence for murder, as inconsistent with the Constitution.
But the death penalty will remain lawful until such a time when Kenyans decide to do away with it, the three judges said.
The decision by justices Riaga Omollo, Philip Waki and Onyango Otieno gives the trial court the mandate to choose whether to impose the death penalty or vary it, depending on the merits of the case.
A trial does not stop at conviction as sentencing is part of it and the court is expected to take into consideration the evidence and nature of offence.
But when it comes to murder, the court cannot exercise its discretion to impose the punishment it deems fit because this is pre-ordained by legislature.
Friday's ruling comes less than a year after President Kibaki decided to commute punishment for death row inmates to life imprisonment.
The judgment arose out of a case filed by death row inmate Godfrey Mutiso challenging the mandatory death sentence.
Mutiso was convicted of murdering Mr Patrick Waweru in Kongowea on November 4, 2009.
He appealed against the conviction, saying the death sentence was unconstitutional as it amounted to inhuman punishment and denied him his right to a fair trial.
Mutiso said the mandatory death penalty is not authorised by the Constitution nor prohibited as the law is silent on it and it was left to the courts to make their own interpretations.