Sentencing Process in Kenya

A sentence denotes the punishment a competent court of law gives to a person who has been found guilty of an offence. Sentencing marks the end of a criminal case.

The Court sentences people for various reasons other than being a form of punishment to the individual who committed the offence. The most importantly reason is that the Court aims at rehabilitating the offender and to enable him reform from his criminal disposition and become a law-abiding citizen. Similarly, a sentence is imposed to act as deterrence to the offender and also to the entire community to deter anyone from committing a similar offence. By issuing a sentence, the community’s condemnation of the criminal conduct is largely communicated. Further, a sentence promotes a sense of responsibility through the offender’s contribution towards meeting the victim’s needs.

In the Kenyan legal system, there are various sentencing options which include; imprisonment, community service, issuing of fines, probation and capital punishment.

Undoubtedly, the court exercises its discretionary powers when imposing sentences. Nontheless, courts must adhere to some principles when sentencing someone who has been convicted of an offence. These principles include:

1. Proportionality:

The Court must ensure that the sentence it is imposing is proportionate to the offence committed. There are three categories of sentences i.e. minimum sentences – which prescribe the least punishment for an offence, mandatory sentences – which prescribe a specific punishment for an offence and maximum sentences- which prescribe the highest punishment for an offence. Each sentence must be of equal weight to the offence.

2. Parity

This principle reasonates with equality and uniformity. The Courts are required to impose similar sentences for similar offences committed under similar circumstances. This principle aims to promote the freedom from discrimination as provided for under article 27 of the Constitution of Kenya 2010.

3. Inclusiveness

Both the offender and the victim should participate in and inform the sentencing process. The offender is required to raise his/her mitigating circumstances and the complainant/victim is also allowed to give a victim impact statement all which are put into consideration during sentencing.

Prior to sentencing, the court considers facts given in mitigation and a probation officer’s report.

Mitigation refers to the facts or details a convicted person gives to the Court about themselves or their circumstances before sentencing that may reduce the severity of the sentence that may be used by the Court.

A Probation Officer provides a probation report to court and other agencies for the purpose of determining bail and bond terms and for decision-making on sentencing and release of offenders. The probation officer also works to supervise, resettle, reintegrate and rehabilitate offenders serving various non-custodial sentences in the community.

The report contains a background of the offender, the circumstances of the offence, previous criminal history, an assessment of the attitude of the offender towards the offence, an assessment of the attitude of the offender’s family, the victim and/or the community towards the offender and the offence, a rehabilitation plan and a recommendation. After the Probation Officer’s Report is ready, he or she submits it to the court. The court will then make a decision on the matter using its discretion.

The report is mostly based on a one-on-one interview with the convicted person.

The work of the judge or magistrate is to consider every case carefully and decide on a sentence that is fair and just. This means that two people could get different sentences for committing the same type of offence. This is called discretion and it is an important part of how our legal system works.

Upon consideration of the foregoing principles, the court then proceeds with sentencing of the offender.

Authors: Torpuot Kueth Chuol Both & Lilly Umazi