Two murder convicts have called for abolition of the death sentence.
Francis Karoki Muruatetu and Wilson Thirimbu Mwangi told the Supreme Court that hanging offenders is cruel and inhuman.
The two, sentenced by the High Court for murder, hope the Supreme Court will finally abolish the mandatory sentence.
In their argument, they said no court would have independently handed them the penalty, which they said Kenya borrowed from her colonial master, Britain, before it was adopted by Parliament.
Britain introduced capital punishment in Kenyan during the colonial era and Kenya went on to retain it even after independence.
“We were convicted by the High Court on a charge of murder and, by the operation of Section 204 of the Penal Code, the sole applicable sentence was the death sentence. The sentence was not a judicial evaluation, but rather a predetermined penalty in a municipal statute,” reads papers the two have filed.
Muruatetu and Thirimbu were convicted, alongside five others, over the death of Lawrence Githinji Magondu 16 years ago.
They appealed the High Court decision but lost in the Court of Appeal.
Courts have had different opinions on the death sentence. At the same time, MPs have not been clear on what they think of the sentence.
Director of Public Prosecutions Keriako Tobiko, in the Muruatetu-Thirimbu appeal, said Kenya should do away with the mandatory death sentence.
However, Muruatetu and Thirimbu are not the first to challenge the death sentence. In 2012, Jackson Maina and Joseph Kirero Sepi asked High Court judges Mbogholi Msagha, Florence Muchemi, Mumbi Ngugi and Isaac Lenaola for their interpretation on whether hanging a person is against the law.
The judges, in their verdict two years later, ruled the death penalty was not unconstitutional. However, they said keeping such convicts in confinements awaiting death was irrational.
They said only Kenyans can do away with the sentence, not courts.
Courts have also not decided how many years a life sentence should be, a decision the four-judge bench said should be made by Parliament.
“As to what amounts to life imprisonment, that is a matter for the legislative branch of government. It is not for the courts to determine for the people what should be a sufficient term of years for a person who has committed an offence that society finds reprehensible to serve,” the court found.
Courts hand death to those found guilty of administering an oath to commit a capital offence including murder, treason, robbery with violence and attempted robbery with violence. Kenya has not executed any convict since 1987.