The Supreme Court on Thursday referred a case challenging the constitutionality of the death sentence to the High Court for review.
The Supreme Court judges say life sentence has not been defined in Kenyan law.
They argue that it’s the legislature and not the judiciary that is tasked with the requirement of providing the legal framework of this law.
The judges further declared section 204 of the penal code inconsistent with the Constitution.
The judges however reiterate that their decision does not outlaw the death penalty.
‘The penalty should only be exercised as discretional maximum sentence,’ they said.
Death row convicts Wilson Thirimbu Mwangi and Francis Karioko Muruatetu who have been in jail since 2003, petitioned the Supreme Court for a retrial and wanted the court to do away with the mandatory death penalty.
The petitioners had been awaiting execution after being sentenced to death alongside five other suspects including the wife of the former Lands Commissioner Wilson Gachanja for the grisly murder of businessman Lawrence Githinji Magondu.
The Attorney General, Director of Public Prosecution and other relevant agencies have also been ordered to prepare a detailed review in context to the judgment made.
The Attorney General has been granted 12 months from the date of the judgment to submit the progress report.
A copy of the judgment by the Supreme Court is to be submitted to the speaker of the National Assembly and the Senate for either amendment or enactment on the mandatory nature of the death sentence and what constitute life sentence.