Capital offences in Kenya are crimes considered so grave that they warrant the highest punishment under the law, traditionally the death penalty.
These offences, defined under the Penal Code, reflect acts that severely undermine the safety, security, or stability of individuals and society.
While the death penalty remains legal, its application has significantly evolved, with most death sentences now commuted to life imprisonment.
This article delves into the key capital offences in Kenya, explaining their legal definitions and punishments, including recent developments in how these penalties are applied.
Murder
Murder is among the most serious crimes under Kenyan law and is defined in Section 203 of the Penal Code as the unlawful killing of another person with malice aforethought.
This means the offender intended to kill or cause grievous harm, making the act premeditated and deliberate. The punishment for murder is prescribed under Section 204 of the Penal Code and is traditionally the death penalty.
However, a landmark Supreme Court ruling in 2017 (Francis Karioko Muruatetu & Another vs Republic) declared the mandatory death sentence for murder unconstitutional.
Judges now have discretion to consider mitigating factors and may impose alternative sentences, such as life imprisonment.
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Treason
Treason involves acts aimed at overthrowing the government or aiding enemies of the state.
Section 40 of the Penal Code outlines treasonous acts, including levying war against Kenya, attempting to depose the President, or collaborating with external enemies during wartime.
Due to the threat treason poses to national stability, it is punishable by the death penalty.
Robbery with violence
Under Section 296(2) of the Penal Code, robbery with violence occurs when an offender uses or threatens violence during a robbery, is armed with a dangerous weapon, or is in the company of accomplices.
This crime is considered particularly egregious because it combines theft with the potential to cause serious harm or loss of life.
The punishment for robbery with violence is the death penalty, although courts may consider lesser sentences depending on the circumstances.
Administration of unlawful oaths
Section 60 of the Penal Code criminalises the administration or participation in unlawful oaths related to criminal activities, such as planning to commit murder or robbery.
This offence often involves coercing individuals into taking oaths to bind them to illegal acts, typically within organised crime or militia groups.
The punishment for administering or participating in unlawful oaths with criminal intent is the death penalty.
The evolution of capital punishment in Kenya
While the death penalty remains on Kenya’s legal books, it has not been carried out since 1987, with death sentences often commuted to life imprisonment.
This shift reflects Kenya’s adherence to evolving global human rights standards.
The 2017 Supreme Court ruling further strengthened this trend by eliminating the mandatory nature of the death penalty, allowing courts to issue proportionate sentences based on individual circumstances.