Republic of Kenya (Kenya).

Africa (Eastern Africa).

Swahili and English.

48,500,000.

Abolitionist de facto.

The last known recorded execution in Kenya was carried out in 1987.

There are conflicting sources stating that the last execution was carried out in 1986.

There appears to be confusion as to the last known year of execution. The last reported executions were carried out in 1987, when three people were hanged for treason following their role in the 1982 coup attempt against President Daniel Arap Moi. However, the Kenyan Supreme Court stated in 2015 that the last execution took place in 1986.

Hanging.

Executions are to be carried out by hanging.

At least 158.

According to Amnesty International, there were at least 158 people on death row at the Kamiti Maximum Security Prison in November 2018. It has been reported that the total death row count in Kenya is approximately 650.

(This question was last updated on June 5, 2019.).

There is not an official moratorium on executions in Kenya, although Kenya has not carried out an execution in over 30 years, and Kenyan presidents commuted over 4,000 death sentences in 2009 and 2,747 death sentences in 2016.

The Constitution enshrines the right to life, but contains an exception stating that “[a] person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.” There is no specific provision addressing capital punishment.

Murder.

The Penal Code states that “[a]ny person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

Other Offenses Resulting in Death.

Administering an oath purporting to bind a person to commit a capital offense is punishable by death.

Robbery Not Resulting in Death.

Robbery with violence and attempted robbery with violence are punishable by death. To be guilty of robbery, a perpetrator must use or threaten to use actual violence to a person or property during the course of stealing something. If robbery or attempted robbery is committed while using a dangerous or offensive weapon or instrument, or with a gang, or results in actual violence to any person, the crimes are punishable by death.

Treason.

Treason is punishable by death. A variety of acts qualify as treason, such as acts that may cause the death, maiming or wounding, or the imprisonment or restraint of the President, or the deposing of the President, or overthrow by unlawful means of the government. To constitute treason, a person’s intent must be established through publishing or writing or by an overt act or deed. Additionally, any person who starts a war against Kenya, is adherent to or gives aid to Kenya’s enemies, in Kenya or elsewhere, or instigates in Kenya or elsewhere the invasion of Kenya with an armed force is guilty of treason.

Military Offenses Not Resulting in Death.

Pursuant to the Kenya Defence Forces Act, aiding the enemy, communication with the enemy, spying, offences by servicemembers or officers, or persons in command when in action, unlawfully advocating for a change of government, mutiny, and failure to suppress mutiny are all death-eligible offenses. Persons subject to the Kenya Defence Forces Act who commit the civil offences of treason or murder shall on conviction by a court-martial be liable to a death sentence.

Other Offenses Not Resulting in Death.

Administering an oath purported to bind a person to commit a capital offense: Under the Penal Code, “[a]ny person who administers an oath, or engagement in the nature of an oath, purporting to bind the person who takes it to commit any offence, punishable with death, is guilty of a¬ felony and shall be sentenced to death.”

The Supreme Court of Kenya ruled in 2017 that the mandatory death penalty is unconstitutional in Francis Karioko Muruatetu & another v. Republic.

Robbery Not Resulting in Death.

The Penal Code employs mandatory sentencing language for the offense of robbery committed with violence or the threat of violence, by a gang, or resulting in personal harm (“shall be sentenced to death”). Although the Court of Appeal at Mombasa in Mutiso v. Republic determined that the mandatory death penalty for murder violates the protections against arbitrariness and inhuman treatment, the Court of Appeal at Nairobi in Joseph Njuguna Mwaura & 2 Others vs. Republic upheld the mandatory death penalty for armed robbery. These conflicting decisions will presumably be resolved in a challenge to the mandatory death penalty that is currently pending before the Kenyan Supreme Court.

Treason.

Section 40(3) of the Penal Code uses mandatory language when it provides: “[a]ny person who is guilty of the offence of treason shall be sentenced to death.”

Other Offenses Not Resulting in Death.

Administering an oath purported to bind a person to commit a capital offence: The Penal Code uses mandatory language when it provides: “[a]ny person who administers an oath, or engagement in the nature of an oath, purporting to bind the person who takes it to commit any offence, punishable with death, is guilty of a felony and shall be sentenced to death.”

Comments.

The Court of Appeal at Mombasa in Mutiso v. Republic determined that the mandatory death penalty for murder violates the protections against arbitrariness and inhuman treatment, using language that equally applies to other capital offenses. The Court of Appeal at Nairobi, however, in Joseph Njuguna Mwaura & 2 Others vs. Republic upheld the mandatory death penalty for armed robbery, ruling that the mandatory nature of the death penalty should be decided by the legislature. These conflicting decisions will presumably be resolved in a challenge to the mandatory death penalty that is currently pending before the Kenyan Supreme Court. The future constitutionality of the mandatory of the death penalty is therefore uncertain.

Individuals Below Age 18 at Time of Crime.

Kenya excludes anyone who was under the age of 18 at the time of an offense from a death sentence. Instead of a death sentence, the offender shall be “detained during the President’s pleasure … in such place and under such conditions as the President may direct.” Kenya is also a party to the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, which prohibit the execution of persons under 18 years of age.

Pregnant Women.

Pregnant women may not be sentenced to death, but receive a sentence of life imprisonment. In such cases, whether a woman is pregnant is to be determined by a judge based on the evidence presented by the woman or the state.

Mentally Ill.

Criminal responsibility may be negated if at the time of committing an offense, a person was incapable of understanding or knowing that he ought not to commit the act or omit to act because of insanity. If at trial the accused is found to have been insane at the time of the offense, the court shall make a special finding that the accused was guilty but was insane. When this happens, the court is required to report the case to the President, who may order detention in a mental hospital, prison, or other place of custody.

Intoxication may serve as a defense if intoxication led to temporary or permanent insanity.

In the course of a trial, a court shall postpone proceedings and the accused may be released on bail if the accused is “of unsound mind and consequently incapable of making his defence.” A later finding of fitness to stand trial must be supported by a certificate from a medical officer, which is provided to the Director of Public Prosecutions, who then will report to the court whether or not it intends to continue with the proceeding against the accused. The court may at any time resume the trial and require the accused’s presence, and if the accused is deemed incapable of mounting a defense, the court “shall act as if the accused were brought before it for the first time.”

Comments.

The Kenyan government has not carried out any executions since 1987.

The Supreme Court of Kenya rendered a hugely influential judgment in December 2017, in which it ruled that the mandatory death penalty is unconstitutional. The petitioners in Muruatetu appealed to the Supreme Court after being convicted of murder and automatically sentenced to death. The Supreme Court found that the right to a fair trial precludes the application of the mandatory death penalty, as the right to submit evidence of mitigating factors and allowing room for judicial discretion are crucial to respecting and upholding fair trial rights. The Supreme Court also struck down Kenya’s official Sentencing Policy Guidelines, which stated that courts did not have discretion in imposing the mandatory death penalty. The Supreme Court further provided non-exhaustive advisory guidelines for considering mitigating factors, such as youth, character, and record of the offender, remorsefulness, possibility of reform and social re-adaption, and commission of the offense in response to gender-based violence.

In 2017, the Supreme Court of Kenya rendered a judgment, Republic v. Karisa Chengo & 2 others, that dealt with the issue of whether the state’s failure to provide free legal representation for indigent persons charged with a capital offence violated the constitutional right to a fair trial. In this case, three individuals were convicted of robbery with violence, and the third with rape, and were sentenced to death. The Supreme Court held that the issue of whether the state ought to have provided legal representation was to be determined afresh at the High Court level, made within the criteria in the Legal Aid Act, No. 6 of 2016, which mandates legal representation at state expense where substantial injustice would otherwise result.

The Constitution explicitly references international law and international human rights obligations. It provides that “[t]he State shall enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms.” With regards to a detained person, the Constitution mandates that parliament shall enact legislation that “takes into account the relevant international human rights instruments.” There is confusion as to whether Kenya is now a monist or dualist state as the 2010 Constitution proclaims that general rules of international law and any treaty or convention ratified by Kenya form part of the law of Kenya.

In 2012, the Human Rights Committee expressed regret that Kenya continued to retain the death penalty and that there were 1,582 inmates on death row. It noted that robbery continued to be a capital crime despite the fact that it does not meet the “most serious crime” standard under international law.

In 2005, the Human Rights Committee likewise expressed concern that Kenyan courts imposed the death penalty for non-lethal offenses. The Committee also deplored the large numbers of individuals on death row, recommended that Kenya repeal the death penalty for crimes that are not “most serious crimes” under international law, and urged Kenya to commute the death sentences of individuals who had exhausted their final appeals. The Committee denounced reports of abuses against individuals in custody, including torture by police, and recommended that Kenya take more effective measures to prevent such abuses, including by ensuring that people accused of murder have access to a lawyer in the initial stages of arrest.

In the Human Rights Council’s 2015 Universal Periodic Review of Kenya, states commended Kenya’s de facto moratorium on capital punishment, recommended Kenya establish a de jure moratorium, and urged Kenya to abolish the death penalty entirely. Kenya responded that it would continue to debate the abolition of the death penalty and has since outlined its efforts in a UPR implementation plan. Kenya committed to spreading awareness of the need to abolish the death penalty, undertaking a public perception survey on the need for abolition, and amending the provisions in the Penal Code to abolish the death penalty, the latter of which was to be implemented in 2019. Kenya noted recommendations to ratify the Second Optional Protocol, aiming at the abolition of the death penalty, and stated “that it had come through a long period of national dialogue on the new Constitution … and the requisite political and social consensus on [criminal law and death penalty] was a work-in-progress.”

In 2013, the Committee Against Torture noted that despite the de facto moratorium on the death penalty, concerns remained about the high number of death sentences imposed, and the condition of those still remaining on death row. It urged Kenya to abolish the death penalty and to ensure that all prisoners on death row were treated humanely and afforded the protections guaranteed by the Convention against Torture. It stated that Kenya should support the Kenya National Commission on Human Rights in conducting a survey and awareness-raising measures regarding public opinion on executions.

The Constitution of Kenya provides that indigent defendants have the right to legal representation paid for by the state. On May 10th, 2016, the 2016 National Legal Aid Act (Act No. 6) commenced, the object of which is to establish a framework for indigent individuals to access legal aid. The Legal Aid Service provides legal aid services funded by the state to eligible people in criminal matters. In cases where an accused person is brought before the court and is charged with an offence punishable by death, the court shall order the Legal Aid Service to provide legal representation. In practice, advocates interested in representing such clients apply to the Registrar of the High Court. The Registrar then allocates cases to them as and when necessary.

The U.N. Human Rights Committee had noted that the 2016 Legal Aid Act excludes some categories of foreign nationals from accessing legal aid.

The Constitution of Kenya mandates the provision of state-funded legal aid to indigent persons. The Chief Justice or presiding judge may at any time during a criminal application or appeal assign an advocate to represent the appellant if “desirable in the interests of justice.” Under the Legal Aid Act, 2016, an aided person shall not be required to provide security for costs during appeal proceedings.

In 2017, Kenya launched the National Action Plan on Legal Aid to guide the implementation of policies that will lead to greater access to justice for individuals from 2017 to 2022. Prior to 2017, legal aid was restricted to capital cases and was fraught with problems such as low quality of representation, low pay for lawyers, and delays in proceedings. Most of the services were provided by civil society, which also exacerbated gaps in access to justice between rural and urban areas with more resources. The National Action plan seeks to put the responsibility on the government for providing legal resources and seeks to make it easier for not only indigent persons but vulnerable populations such as women, children, and persons with disabilities to access legal aid.

The U.N. Human Rights Committee had noted that the 2016 Legal Aid Act excludes some categories of foreign nationals from accessing legal aid.

In 2017, the Republic v. Karisa Chengo & 2 others case hinged on whether a state’s failure to provide free legal representation for indigent persons charged with a capital offence violated the right to a fair trial and therefore nullified trials in which legal representation had not been provided. The Supreme Court held that the issue of whether the state ought to have provided legal representation was to be determined at the High Court in a fresh appeal. Nevertheless, the Court stated that “the right to legal representation at state expense . . . is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict. We must however emphasize the fact that in accordance with the language of the Constitution, this particular right is not open ended. It only becomes available ‘if substantial injustice would otherwise result’.”

Appointed capital defenders face low pay at approximately USD $150 per case and a backlog of cases, which cause delays in justice. Furthermore, attorneys are only appointed after investigation, if conducted, is complete and pleas have been made, limiting their ability to influence the critical pre-trial preparations for the case. Attorneys rarely conduct investigations as these are typically led by the police investigative unit. Investigators often do not conduct quality investigations, and in the absence of modern forensic labs, prosecutors often rely on outdated evidence in court, which increases the risk of wrongful convictions. Kenya is largely dependent on the Government Chemist to perform forensic testing, though the Government Chemist is understaffed and often uses outdated technology. Forensic tests are often unreliable because of tampering, contamination, and poor conservation of the criminal evidence. Other challenges include lack of or inadequate pre-trial access to evidence held by the government and a prohibition on entering into evidence photographs other than those taken by official police photographers. Furthermore, some capital defense lawyers fear for their personal safety. On January 7, 2016, Willie Kimani, a veteran human rights attorney working pro-bono on a police abuse case, his client, and a taxi driver were kidnapped and murdered.

Under the Constitution, every person has the right to have a dispute legally resolved by a court of law, in a fair and public manner, and every person also has the right to appeal lower court decisions.

The High Court has a special division that hears serious crimes including capital offences, and individuals may appeal from the High Court to the Court of Appeals. Death sentences shall not be enforced until appeals have been completed. A notice of appeal against a decision in a criminal matter must be filed within 14 days of the court’s decision. Though the High Court may extend the time for giving notice of intention to appeal, no extensions may be granted to individuals under sentence of death once the warrant for the execution of the death sentence has been issued. After all appeals are exhausted, or if no appeal is lodged, the court sends the trial notes of evidence and any “recommendation or observations” to the president. The president then determines whether to issue a death warrant, commute the sentence, or grant a pardon.

The Constitution outlines the clemency process in Kenya. On the petition of an offender, “the President may exercise a power of mercy in accordance with the advice of the Advisory Committee” to: grant a free or conditional pardon; postpone the execution of a punishment either for a specified or indefinite period; substitute a less severe form of punishment; or remit all or part of a punishment. The Advisory Committee on the Power of Mercy—composed of the Attorney General, Cabinet Secretary for correctional services, and five other members—considers the petition and may take into account the views of victims.

In cases in which a death sentence has been pronounced and there is no appeal against the sentence, the presiding judge will forward notes of evidence taken on the trial and a report containing any recommendations or observations to the president. The president will consider the report, then will communicate to the judge, or his successor in office, the terms of any decision he has taken, “and the judge shall cause the tenor and substance thereof to be entered into the records of the court.” Then, the president is required to issue a death warrant, an order for the commutation of the death sentence, or a pardon. If the sentence is commuted for another punishment, the president will specify the other punishment. Further, if the person sentenced is pardoned, the pardon shall state whether it is free or conditional.

The Kenyan legal system does not provide for a trial by jury, as all cases are tried before a judge. The Kenya Criminal Procedure Code previously referenced assessors, but this was removed in 2007 by the Statute Law (Miscellaneous Amendments) Act of 2007.

A significant issue is whether an individual’s financial situation negatively impacts his/her ability to access justice, legal representation, and to have his/her rights respected. For example, pre-trial detention practice indicates that many suspects are unable to post bail and therefore are detained for long periods of time, despite a functioning bail system and the right of all suspects including capital offence suspects to be eligible for bail.

Moreover, though case law provides that capital defendants must be brought before a judge within 14 days of arrest, the government does not respect the law in practice. Courts have unconditionally released defendants because the police detained them longer than legally permitted. Another significant issue is the amount of time that it takes for cases to be completed. The Criminal Justice System in Kenya Audit found that the average days it takes for completed capital cases to proceed from first lodging to final judgment on appeal are 535 days at the 25th percentile, 725 days median, and 906 days at the 75th percentile.

Conditions inside Kenyan prisons remain dire with detainees and prisoners facing the risk of mistreatment and torture, despite the Constitution’s protection against torture. In practice, police use torture and violence during interrogations and against pre-trial detainees and prisoners. Human rights organizations and the media have reported cases of torture and indiscriminate police violence committed with impunity. Further, informal justice systems exist alongside the formal justice system. In Northern Kenya, for instance, criminal offences are predominantly dealt with in informal systems, though serious crimes can be referred to the formal system by community leaders.

Death-sentenced prisoners are incarcerated in Kenya’s maximum-security prisons including Kamiti, Naivasha, Kingongo, Kibos, Manyani, Kodiaga, and Shimo La Tewa. Female death-sentenced prisoners are housed in Lang’ata prison. In some instances, death row inmates are housed in prisons that are not meant to have death-sentenced prisoners including Kitale Main Prison, which had 11 male and three female inmates on death row in 2018.

Prison conditions in Kenya are widely reported to be substandard and have been the subject of both media and government scrutiny in recent years. Detainees who face capital charges are separated from others in detention, but still face the range of issues that plague the general system such as overcrowding, unhygienic conditions, abuse, and torture. An ongoing major issue in the prison system is inmates’ lack of access to legal representation and lack of knowledge of their rights.

In 2017, the Legal Resources Foundation Trust, the Resources Oriented Development Initiatives and the National Council on Administration of Justice inspected the Kenyan criminal justice system and released a report, Criminal Justice System in Kenya: An Audit. The report concluded that Kenya’s detention facilities are not fit for purpose, as they are “generally old, limited in space and dilapidated and . . . there are inconsistencies in policy and practice application in every aspect investigated by the audit.” The report noted that detention centers “must be guided by the following principles: the presumption of innocence [for pre-trial detainees]; the respect for dignity and humanity; and the absence of torture and ill-treatment.”

Nevertheless, the actual conditions of prisons in Kenya fail to live up to these ideals. The report identified three diseases as being present at nearly all prisons: scabies, tuberculosis, and diarrhea, all of which can cause great devastation in cramped environments. Further, concerns about hygiene, safe food preparation and consumption, drinking water, facilities, and personal hygiene exacerbates these issues. At Shimo La Tewa, 17 “unnatural deaths” were reported, which the report attributed to a large number of people detained and long periods of incarceration. Further, Shimo Law Tewa did not respond to inquiries about measures taken to limit the spread of HIV and tuberculosis, though it appears that at least some measures were taken at other prisons including screening, counselling, health education, and segregation. Lice, bed bugs, and cockroaches were reported at Shimo La Tewa.

Recently, attention has been drawn to the condition of police cells, after six politicians were detained in June 2014 in the Pangani police station. Junet Mohamed, MP, reported that they were not fed, as there was no food, and that “[e]veryone appeared shocked at the condition in the cells…Our colleague . . . could not bear it. He suffered a running stomach shortly after we arrived, forcing him to frequently use the bucket. It was so dehumanizing. This is something I will never forget.” Court cells were also reported to be subpar, without access to clean water, functioning toilets, or proper ventilation, as were remand facilities.

No foreign nationals are known to be under sentence of death.

No foreign nationals are known to be under sentence of death.

According to the Task Force on the Review of the Mandatory Death Sentence, Sub-committee on Resentencing, there were approximately 100 to 200 women on death row in Kenya in 2018. As of December 2018, the Task Force was organizing a survey to collect more accurate figures.

Persons under 18 are not eligible for the death penalty under Kenyan law. In 2017, High Court Judge John Mativo issued a decision releasing six prisoners sentenced to death when they were minors. Amnesty International noted that it is often the case that the age of the individual sentenced or accused is difficult to ascertain, due to difficulties finding official documents such as birth certificates. We found no reports of minors on death row as of October 2018.

We did not find any information about the racial/ethnic composition of death row.

In December 2017, the Supreme Court issued its judgment in Francis Karioko Muruatetu & another v. Republic, in which it ruled that the mandatory death penalty is unconstitutional. This judgment affected the sentences of approximately 8,000 prisoners sentenced to death in Kenya. The Supreme Court ordered the Attorney-General and the Director of Public Prosecutions, along with other government agencies, to review all capital cases of murder and armed robbery. The Task Force on the Review of the Mandatory Death Sentence was constituted with the mandate of developing a proposal to implement the Supreme Court’s judgment, which includes the rehearing and resentencing of cases, the implementation of the Victim Protection Act of 2014, and the incorporation of alternative dispute resolution and restorative justice frameworks into criminal matters. On March 7, 2018, the Task Force started its mandate with members from the following institutions: Judiciary, Office of Director of Public Prosecutions, National Crime Research Centre, the Power of Mercy Advisory Committee, Kenya Law Reform Commission, Parliament, Kenya National Commission on Human Rights, the Ministry of Interior and the Office of Attorney General and Department of Justice as the chair of the Committee. Those death-sentenced prisoners whose sentenced are reviewed could receive years in prison, life terms, or death sentences.

Previous to the Muruatetu decision, another landmark change to the application of the death penalty occurred on October 24, 2016, when President Uhuru Kenyatta commuted the death sentences of 2,747 prisoners to life imprisonment. This followed another mass commutation of death sentences signed by former President Mwai Kibaki in 2009.

Since 2007, Kenya has abstained from voting on all six U.N. General Assembly Resolutions calling for a moratorium on the use of capital punishment.

None.

The Kenya National Commission on Human Rights (http://www.knchr.org/) is an independent public institution established to advise the government on protecting and promoting human rights.

The Kenya Legal Resources Foundation (http://www.lrf-kenya.or.ke/home) has reported on prison conditions.

The Katiba Institute (http://www.katibainstitute.org/) litigates on constitutional issues relating to human rights. They have participated as amicus curiae in Francis Karioko Muruatetu & another v. Republic, which challenged Kenya’s mandatory death penalty.

A comprehensive database of Kenya’s laws and court decisions may be found at Kenya Law Reports eKLR (www.kenyalaw.org), which includes the Kenya Law Reports case reporter from 1971 and the Kenya Gazette from 2003. The site’s “bench updates” section hosts unreported recent decisions from the High Court and the Court of Appeal.

National Council on the Administration of Justice, Criminal Justice System in Kenya: an Audit, http://acjr.org.za/resource-centre/kenya-audit.pdf, 2017.

National Action Plan Legal Aid 2017-2022 Towards Justice for All, Republic of Kenya Office of the Attorney General and Department of Justice, http://www.statelaw.go.ke/wp-content/uploads/2017/12/NAP-Legal-Aid-2017-2022.pdf, 2017.

Penal Reform International, The Abolition of the Death Penalty and its Alternative Sanction in East Africa: Kenya and Uganda, http://www.penalreform.org/wp-content/uploads/2013/05/East-Africa-research-report-on-death-penalty-and-life-imprisonment.pdf, Mar. 2012.

Patricia Kameri Mbote & Migai Akech, Kenya: Justice Center and the Rule of Law, Open Society Initiative for East Africa, http://www.ielrc.org/content/a1104.pdf, Mar. 2011.

The Kenya National Commission on Human Rights issues annual and thematic reports on human rights issues at http://www.knchr.org/.

Though no official executions have been carried out since the 1980s, extrajudicial killings remain prevalent and largely impact young people from slums and marginalized groups. Extrajudicial killings and excessive force have been used during elections, amid a climate of impunity for police transgressions. The government has also been accused of using secret police death squads to assassinate those suspected of terrorist or criminal activity.

In 2011, Kenya created the Independent Policing Oversight Authority to monitor and oversee the police, including issues related to liability for deaths, but extrajudicial killings continue.