The Penal Code (Amendment) Bill, 2026
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Life Imprisonment Set at 30 Years and Mandatory Death Penalty Abolished
The Bill explicitly defines "imprisonment for life" as a fixed term of thirty years under Section 4 of the Penal Code. Additionally, sections 40, 60, and 204 are amended to eliminate mandatory death sentences for treason, administration of unlawful oaths, and murder. Courts are instead given the discretion to sentence offenders to either death or to imprisonment for a term of not less than thirty years.
Prosecution Must Now Prove Incitement and Public Officer Offenses
Clauses 9 and 10 amend sections 96 and 132 of the Penal Code by deleting the phrase ", the burden of proof whereof shall lie upon him,". This shifts the entire burden of proof to the prosecution, meaning accused individuals no longer carry the legal obligation to prove they had a "lawful excuse" when charged with incitement to violence or undermining the authority of public officers.
Criminal Libel and Alarming Publications Repealed
To protect constitutional freedoms of expression, the Bill repeals several provisions:
- Section 66 (alarming publications) is abolished.
- Sections 194 to 200, which define and criminalize libel and defamatory matter, are entirely repealed.
New Default Imprisonment Scale for Fines
Clause 5 of the Bill replaces the old scale of imprisonment terms imposed in default of paying court-ordered fines. The new maximum terms are structured as follows:
- Fines not exceeding KSh 2,500: maximum 14 days.
- Fines between KSh 2,500 and KSh 12,500: maximum 1 month.
- Fines between KSh 12,500 and KSh 75,000: maximum 3 months.
- Fines between KSh 75,000 and KSh 250,000: maximum 6 months.
- Fines exceeding KSh 250,000: maximum 12 months.
Restructuring of Robbery Offenses and Penalties
The Bill repeals old robbery provisions and inserts new sections 295A through 295D, differentiating penalties based on the use of violence and weapons:
- Simple Robbery: Stealing with the threat or use of actual violence carries up to 14 years of imprisonment.
- Attempted Robbery: Carries up to 7 years of imprisonment.
- Aggravated Robbery and Attempted Aggravated Robbery: Applies when the offender is armed with a firearm, offensive weapon, chemical material, displays a weapon, acts in a group, wounds any person, or acts on behalf of a criminal organization. These offenses carry a sentence of death or imprisonment for not less than thirty years.
Bill No.
No. 12 of 2026
Gazette No.
Supplement No. 63 of 2026
Sponsor
George Gitonga Murugara
Background
The Penal Code (Amendment) Bill, 2026 seeks to amend the Penal Code (Cap. 63) to align its provisions with the Constitution of Kenya and other recent statutes, such as the Children Act, 2022 and the Mental Health Act (Cap. 248). The amendments address sentencing practices, freedom of expression, and specific criminal elements in accordance with modern human rights standards and judicial precedents.
Key Amendments
- Life Imprisonment Definition: Amends Section 4 to define "imprisonment for life" as a term of thirty years.
- Discretionary Sentences for Capital Offences: Removes the mandatory application of the death penalty for treason (Section 40), administration of unlawful oaths (Section 60), and murder (Section 204). Courts are given discretion to sentence an offender to death or to imprisonment for not less than thirty years.
- Decriminalization of Certain Offences: Repeals Section 66 (alarming publications), Section 173 (neglect of servants or apprentices), sections 191-192 (fouling water and air, which are addressed under environmental laws), and sections 194-200 (criminal libel and defamation).
- Burden of Proof Shifts: Shifts the burden of proof from the accused to the prosecution for the offences of incitement to violence (Section 96) and undermining the authority of public officers (Section 132).
- Abortion Defence: Inserts Section 160A, which establishes that actions taken in accordance with the circumstances contemplated under Article 26(4) of the Constitution do not constitute an offence of abortion.
New Obligations
- Robbery and Aggravated Robbery Restructuring: Introduces sections 295A through 295D. Simple robbery is defined as stealing while using or threatening violence and carries a 14-year term. Aggravated robbery and attempted aggravated robbery apply if the offender is armed with a firearm, offensive weapon, chemical material, displays such items, acts with a group, wounds any person, or acts on behalf of a criminal organization.
- Sentencing of Children: Restricts sentencing of individuals under eighteen years of age. Under Section 25, a sentence of death cannot be pronounced or recorded against anyone under eighteen at the time of the offence; instead, they must be sentenced in accordance with the Children Act, 2022.
Penalties
- Revised Default Prison Terms for Fines: Establishes a scaling system for imprisonment in lieu of unpaid fines:
- Fines under KSh 2,500: up to 14 days imprisonment.
- Fines between KSh 2,500 and KSh 12,500: up to 1 month imprisonment.
- Fines between KSh 12,500 and KSh 75,000: up to 3 months imprisonment.
- Fines between KSh 75,000 and KSh 250,000: up to 6 months imprisonment.
- Fines exceeding KSh 250,000: up to 12 months imprisonment.
- Aggravated Robbery Penalty: Offenders convicted of aggravated robbery (Section 295C) or attempted aggravated robbery (Section 295D) are liable to death or imprisonment for a term of not less than thirty years.
Transitional Provisions
- Savings Provision: Section 28 of the Bill states that the amendments do not affect the liability, trial, or punishment of any person under a sentence passed before the commencement of the Act. Additionally, an accused person retains the right to benefit from the least severe of the prescribed punishments if the penalty changed between the commission of the offence and the time of sentencing. The President's power of mercy under Article 133 of the Constitution remains unaffected.
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