• Historically sentencing has evolved from a very retributive and primitive practice to a more humane approach.

  • Essentially this developed as a result of various social scientists, criminologists and penologists who have argued that there are many factors that contribute to one becoming a criminal and hence the need to use a more individualized approach in sentencing as opposed to considering that all criminals act out of their own free rational will and thereby using the sentencing process to reward them for the choices that they have made

  • Broadly speaking sentencing has the following purposes;

  • To act as punishment

  • To act as a form of treatment

  • To act as a deterrent factor

  • As a measure of protection for society

  • Most sentences embody all the four aspects each is important

  • In summary sentence will therefore punish the offender and is therefore seen as a crime prevention mechanism.

  • In Kenya we have provisions for both mandatory and discretionary sentencing

  • All offences punishable by death do not give room for discretion and the death sentence once awarded and upheld up to the Court of Appeal can only be commuted by the president in exercise of his constitutional powers of pardon

  • In all other cases the courts have discretion which must take into account the maximum sentence as provided by statute/penal code.

  • Having given judgment the judicial officer must then go into the process of awarding sentence which includes the following:

Section 216 provides that the court may before passing sentence or making an order against an accused person, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made. Arising from this provision the practice is for the courts to give the prosecution an opportunity to produce records of the offenders past record is any additionally the prosecution are allowed to address the court before sentence is awarded. The offender/defence may challenge the records produced or require sworn evidence on the general address by the prosecutor.

Where the records are challenged then the prosecutor will lead evidence to prove their authenticity.  A similar provision is made under Section 329 of CPC with regard to trials before The High Court.  further this section has been amended to include victim impact statements.   Section 329B applies to an offence that is being dealt with by any court, where the offence results in the death of or actual physical bodily harm to any person.  It can therefore …

Victim Impact Statement means a statement containing particulars of

(a)              In the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence; or
(b)              In the case of a family victim, the impact of the primary victims death on the members of the primary victims immediate family’ members of the immediate family as defined as
(a)              The victim’s spouse
(b)              The victims de facto spouse being a person who has cohabited with the victim for at least 2 years
(c)               A parent, guardian or step parent of the victim
(d)              Child or step child of the victim or some other child of whom the victim is a guardian
(e)              A brother, sister, step brother or step sister to the victim.

A primary victim is a person against whom the offence was committed or a person against whom the offence was committed or a person who was a witness to the act of actual or threatened violence, the death or the infliction of bodily harm concerned, being a person who has suffered personal harm as a direct result of the offence or a personal harm…

Section 329C makes it discretionary upon the court to determine whether or not to receive and adopt a victim impact statement, after conviction and before sentence.  Where the primary victim has died as a direct result of the offence then the court may receive a statement from a family victim.  The impact statement must be in writing and such other requirements as per the rules (rules are to be made by the Chief Justice).

The court shall not accept a victim impact statement unless it has been filed by or on behalf of the victim to whom it relates (where the victim is incapable of preparing the statement it may be prepared on their behalf by a family victim); or by an on behalf of the prosecutor and shall only consider a statement by a family victim if it considers it appropriate to do so.

The court shall only consider a statement by a family victim if it considers it appropriate to do so.

Mitigation of the offender
It is a well established practice that the court should consider mitigation from the offender;  it is at this juncture that the offender has opportunity to inform the court of his personal circumstances that could mitigate against a harsh/inappropriate sentence.

Having heard the prosecution, including the victim impact statement if any, and the accused, the court will then be in apposition to award a suitable sentence.

Factors the court considers in sentencing
The cause of crime – there are various socio economic factors that may lead to crime i.e. poverty, drunkenness, avarice, greed, anger, lust opportunity, habit insanity ignorance.  Unemployment, broken home, psychological problems etc; whereas it is not always possible to tell why a crime is committed where motive can be established it ought to be taken into consideration. 

The magnitude of the crime – the level of seriousness and gravity of other offence must be taken into account including the impact on the victim and society generally

Prevalence and type of crime – what is the frequency or rarity of the type of crime, is it comparatively more prevalent in one area, is there a sudden spare in the type of crime

Aggravating or extenuating circumstances – these are circumstances that are peculiar to the offence e.g. opportunity  provocation.

Accused – circumstances, character, attitude etc these are issues which would ordinarily arise during mitigation.

Previous conviction – this will be raised by prosecution,- the court should consider whether they are similar as well as their relevance in any case, they should the court a good indication of the offenders previous interaction with the criminal justice system.

In most cases the courts tend to be more lenient to first offenders.

The court will also consider uniformity in approach to sentencing.  This is in order to avoid disparities by the same court as well as in comparison to other courts in sentencing offence of similar nature etc.

This should be supported by a clear sentencing policy that is known to judicial offices.

Such a policy will generally enhance the credibility of courts, offenders will know what to expect and in a sense it should therefore act as a deterrent factor when offenders can with some amount of certainty predict the kind of sentences that their offences are likely to attract.


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