Section 24 of the Penal Code makes provision for the various types of sentences that courts may award

Death is mandatory for murder, treason, robbery with violence or attempted robbery with violence.  It an only be imposed upon an adult where a person under 18 years is convicted of an offence that carries a mandatory death sentence, then they will be detained at the presidents pleasure in which case the presiding judge is required to forward a copy of notes of evidence taken on the trial, wit ha report in writing signed by him containing any recommendation or observations on the case as he may think fit.  The sentence cannot be imposed on a pregnant woman.

Imprisonment – is the most popular punishment and it entails the actual physical restrain of the offender by placing him in custody.  the highest duration is life imprisonment.  It may be with or without hard labour.  The purpose of imprisonment is to restrain contain and rehabilitate the offender.  The prisons department therefore runs a number of programmes mostly skills imparting ones such as carpentry woodwork knitting etc additionally they have counselling and chaplaincy services for the offenders.

The court may award the sentence to be served either consecutively or concurrently where the offender is sentenced to more than one offence.  This is where somebody is charged with more than one offence.  Each count attracts their own sentence and there is no generic sentence.

The court does not determine which prison the offender will go to.  Prison department has maximum and medium security prisons, and the offenders are distributed to the facilities depending on the number of years of sentence, the nature of offence and their previous records consideration may also be given to the type of programme that the offender may be most suited for and its availability to this end there is a reception facility that classifies and categorizes offenders for this purpose.  For example there is a reception facility at Kamiti which determines where prisoners are best suited.  They don’t necessarily have to stay at Kamiti.

The prisons department is governed by the Prisons Act which has various provisions including dietary, disciplinary, classification etc.  The Act also significantly makes provisions for remission which any offender serving a sentence of more than 1 month is immediately entitled to unless they have committed breaches in prison which have lead to deductions on their remission period.  this is meant to enable the prisons department to try and achieve some objective with an offender by waiving a third of the sentence for model prisoners.

The Act aolso makes provision for parole/remission which any offender serving a sentence of more than 1 month is immediately entitled to  unless they have committed breaches in prison which have lead to deductions on their remission period.     the Act makes provisions for Parole, but it is not practiced in Kenya.

Fines are rarely imposed in felonies but are frequently utilised in misdemeanours an statutory offences – the usual practice is for the amount of fine to be specified in the statute or Penal Code and it can be specified either as a minimum or a maximum or a combination of both.

Section 28 of Penal Code makes provision for those cases where the amount of fine is not specified and it is required that the fine should not be excessive.

Section 28(b) provides a table to be used by judicial officers where a fine is awarded and in default an imprisonment term is provided – the provisions give the maximum fine and maximum default period. this is just a guideline to enable courts not to overshoot.

The award of a fine should not be denied on the basis of the offenders financial status.

Mita v R – the appellant an air hostess was convicted on her own plead of assault causing actual bodily harm for biting the complainant on the chin;  the magistrate sentence her to 2 months imprisonment without option of  fine, although she was a first offender and was contrite according to the magistrate a fine would not have served any purpose as the appellant appeared to be earning a lot of money.  Madam J held that irrespective of their financial standing it is not wrong to impose a fine unless the circumstances of the case precludes the imposition of such punishment.  The contrary cannot be correct, otherwise every well paid accused person irrespective of the nature of the offence would be sent to prison by the courts without the option of a fine.

Forfeiture – Section 29 of the Penal Code makes provision for forfeiture for offences committed under Sections 118 and 119 of the PC where the property the subject of which the order has been given cannot be traced then the court will assess the value and require the offender to forfeit such amount to court.

Compensation – Section 31 empowers the court to order an offender to compensate any person injured by his offence, either in addition to or in lieu of any other penalty – in practice criminal courts will usually on order compensation where the monetary value is straightforward, otherwise compensation is usually left to the civil courts to comprehensively asses.

Mukindia v R 1966 EA 425 the court of appeal observed that the powers to award compensation should only be used in the clearest cases as when a person has suffered a comparatively minor physical injury or has been deprived of property or whose property has suffered damage and such deprivation or damage is of readily ascertainable and comparative e small value.

The current practice does not take into account the fact that there are persons who cannot afford civil proceedings and in such cases they will remain largely uncompensated deriving satisfaction only from the knowledge that the offender has been punished in the criminal process.

Otherwise finds on the facts proven in the case that the convicted person has by virtue of the act constituting the offence a civil liability to the complainant or another person.  Further provisions have been made by section 175 of the CPC to the effect that where a court imposes a fine or a sentence of which a fine forms part or where such sentence is confirmed ion appeal, revision o

The court may order the convicted person to pay to the injured party such sums as it considers could justly be recovered as damages in civil proceedings by the injured party against the convicted person in respect of the civil liability concerned.  Such a court may not award an amount that is in excess of its civil jurisdiction.

Where the court considers that the complexity of evidentiary matters affecting the quantum of damage of evidence before it in relation t0 Such damages, the insufficiency of evidence before it in relation t such damages or their quantum, or the provisions of the Limitation of Actions Acts or any other circumstances,.  Where the court considers that such an order would unduly prejudice the rights of the convicted person in respect of the civil liability, that order will not issue.

Section 177 of the CPC also makes provision for restitution of property that is found in possession of an offender – the court may order such property to be returned to whoever it considers to b e entitled to it, including the offender.

Further that the court may order that the property or party thereof; be applied to the payment of fine, costs, or compensation which ought to be paid by the offender.

Security for good behaviour – Section 33 provides that an offender may be required by the court to enter into recognizance with or without surety in addition to any other sentence to keep the peace for a specified period.

Under Section 35 there is Absolute and Conditional Discharge – this section provides that where having regard to the circumstance including the nature of offence and the character of the accused that it is inexpedient to inflict punishment and that a probation order would not be appropriate, then the court may absolutely or conditionally discharge the offender upon the condition that they shall not commit other offences for a period not exceeding 12 months a breach will result in the accused being brought back to court and sentenced for previous offence in respect of which he had been discharged.

Probation – this is the system where the offender instead of being awarded the other sentences provided is placed under the supervision of a probation officer; the aim of the sentence is to rehabilitate the offender while he is living in his normal surroundings and continuing with his routine in life – it is governed by Cap 64 Laws of Kenya.

The court before making a probation order takes into consideration the nature of the offence, age of offender, whether he is a first offender.  The magistrate will then request for a probation officer’s report to be prepared.  The report will be prepared based on interviews with the accused, victim of crime if need be, other persons that the probation officer considers relevant.  The aim of the report is to determine the social circumstances of the offender and whether or not the offender would benefit from the probation.  The report will usually contain a recommendation on the suitability of the offender for probation or any other sentence.  It is then handed to the magistrate who if they accept it will explain to the offender the terms, including an indication by the offender that they are willing to be placed on probation and their consent must be recorded.  The terms of probation may include issues relating to residence, use of alcoholic beverages etc.

The offender is required to signify the acceptance and willingness to abide by the terms and conditions of the probation order.  An order will then be made in the appropriate form and signed by the offender and the court.  a breach of probation order will result in the offender being produced in court and the court may then cancel the order an substitute probation with any other sentence.

A probationer is then released to be supervised by a specific probation officer.  There are provisions for a probationer who is moving to a different location to transfer the order for supervision by the nearest probation officer.

Community Service Orders:  replaced EMPE – made under Act NO. 10 of 1998 – Whereas, the EMPE had been meant to reduce congestion in provisions and provide a mechanism for enabling rehabilitation of the offender within the community, there was a lot of dissatisfaction with its application and implementation.  Under EMPE anyone who was liable for imprisonment for  term no exceeding 6 months could be place on EMPE, each locality had designated EMPE centers which were invariably local administrative officer e.g DO and Chiefs officers as well as the courts themselves.  The offenders

Some of the complaints included that it did not lead to decongestion of prisons and still left a lot of petty offenders in prison.  It was also argued that it was misused by administrators to service their own private works.  Some of the work carried out was mundane and had no impact for public expenditure.  It was also argued that the timing of when it could be served ran counter to the idea that one could serve and still continue working  i.e. there was no flexibility, so offenders would still lose their jobs as a result of carrying out the punishment.  There was also disquiet with the idea that whereas this was intended to be a community based idea …

In response to all these complaints and to the increasing numbers of prisoners and the deterioration of prison conditions, matters were made worse when a conference organized to discuss prison reforms was told by the H C Okubasu that being sent to a Kenyan prison was equivalent to  a prison sentence…

Section 3 of the Act provides as follows” where any person is convicted of an offence punishable with imprisonment for a term not exceeding three years with or without the option of   fine or imprisonment for a term not exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate.  The court may, subject to this Act make a community service order requiring the offender to perform community service.
(a)       Community service shall c…

Types of the works carried out under the Act are
  • Construction or maintenance of public roads or roads of access;
  • Afforestation works;
  • Environmental conservation and enhancement works;
  • Projects for water conservation, management or distribution and supply;
  • Maintenance work in public schools, hospitals and other public social service amenities; works of any nature in a foster home or orphanage; ’rendering specialist or professional services in the community and for the benefit of the community.

The court may require report from a community service officer before making an order.  The court shall not make an order unless the offender is present in court, and there are adequate arrangements for the execution of the order.  Where a report exists the court must be satisfied that the offender is a person suitable to perform community service.

The offender must consent to being placed on Community Service Orders (CSO).

In terms of management the Act creates a National Committee whose chairman is to be a Judge of the High Court appointed by the CJ
Members include
DPP or his nominee
PS, Provincial Administration and Internal Security or his nominee

Two persons with training and experience in the criminal justice system, one in teaching of law and the other a magistrate of first class, both to be appointed by the CJ.
Five members appointed by the Minister out of a list of 7 nominees by the National Committee, two of whom shall be representatives of NGOS involved in social welfare work registered under the NGO Coordination Act.
The National Coordinator

The committee has powers to co-opt

1.                   To advice the minister and CJ on the proper implementation of the Act;
2.                  Coordinate direct and supervise the work of the community service officers;
3.                  Collect and collate date on the operation of this Act for the purpose of improving the national policy on community service orders
4.                  advice the CJ on any need for enhanclating to revision under the CPC so that the courts may make better use…
5.                  ed application of the provisions

once an offender is placed on CSO orders the offender is require to report to the supervising officer specified in the order for assignment of work.  Perform for the period specified in the order such works at such times and place as he may be instructed by the supervising officer.  Report to the supervision officer any changes in address that may occur from time to time.

These orders are yet to have the desired effect, prisons are still complaining of congestion, meanwhile the national committee keeps releasing huge figures of those supposedly under CSO.  

These problems could be stemming from the fact that judicial officers are still treating CSO in the same manner that they treated EMPE, and there awarded them for very minor offenders as opposed to using the cut-off point of 3 years imprisonment.

The sentence is meant to be awarded in hourly terms and yet there are no clear rules and table to assist judicial officers in determining how to march the envisaged prison sentence and the corresponding hours.

The provision for district, divisional and location committees is made by the Act which introduces a bureaucracy that does not exist in the judicial system, and yet the programme is meant to be judiciary driven.  It would make more sense if the provisions were made for mandatory committees in each magisterial station whose membership should largely reflect all the criminal justice players at the local level including the placement agencies benefiting from CSO to be represented.

There is very little public awareness that was created prior to and during the implementation of the programme and yet its success depends to a large extent on how receptive the public is towards it.  This is especially so because this kind of sentence is meant to rehabilitate the offender within the community.

Probations of Offenders Act

Borstal Institutions  - there is a specific period within which children have to be in those Borstal institutions.  Shimo la Tewa and Kakamega.

Youth corrective centre at Kamiti – This has a minimum or maximum period and has no remission.  It is a militarised system but deals with young males who are first offenders.

Approved Schools are ran by children’s departments – deal with child offenders and children in need of care and protection.  One of the criticisms is the fact that they mix children in need of care and protection with the child offenders.  They are both for girls and boys.  They are not sufficient and cater for very young children.  They have schools.


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