Death Penalty Under Kenyan Law

Under the law of Kenya, the penal code state that anyone who intentionally, with malice aforethought, causes the death of another person is guilty of the crime of murder.

Malice aforethought is deemed to be established by evidence proving, among others:

An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not.

Knowledge of that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not.

Once convicted of murder, the person is sentenced to death by hanging. A conviction requires the prosecution to establish intention to cause death and knowledge that his or her action or inaction will cause death, among other things.

Penal Code Section 204 states that anyone found guilty of murder, robbery with violence, treason and other capital offences shall be hanged.

Though death sentences are frequently handed down, the last execution was in July 1987 when Kenya Air Force senior private Hezekiah Ochuka was hanged for the 1982 coup attempt.

Last year the Supreme Court declared the mandatory death sentence was unconstitutional but did not outlaw it. The ruling gives judges discretion to decide whether to hand down the death sentence or life imprisonment.

The country is constantly debating whether capital punishment should be retained in the law books. Opponents, including some religious leaders, say it violates the fundamental right to life guaranteed under the Constitution.

Supporters say the death penalty is good, a necessary punishment and also acts as a deterrent to others who might commit murder or robbery with violence.

In the case of Father Michael Maingi’s murder, should the prosecution charge any of three suspects with murder, they could face the death sentence.

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