Firm 28 Class of 2017 KSL
Mitigation is the right
accorded to a convict to address the court personally especially before
sentencing. It is at this juncture that
the offender has opportunity to inform the court of his personal circumstances
that could entitle him to a more lenient sentence.[1]
A plea in mitigation is made in the majority of criminal cases.
Article
50(2)(p) of The Constitution of Kenya 2010
provides for the right to the benefit of the least severe of the prescribed
punishments for an offence, if the prescribed punishment for the offence has
been changed between the time that the offence was committed and the time of
sentencing.
Section 323 of
The Criminal Procedure Code provides that
if the judge convicts the accused person, or if the
accused person pleads guilty, the Registrar or other officer of the court shall
ask him whether he has anything to say why sentence should not be passed upon
him according to law, but the omission so to ask him shall have no effect on
the validity of the proceedings.
Section 329 of The Criminal Procedure Code which provides that the court may, before passing sentence, receive such evidence as
it thinks fit in order to inform itself as to the proper sentence to be passed.
Section
216 of The Criminal Procedure Code. The court may, before passing sentence or making an
order against an accused person under section 215, receive such evidence as it
thinks fit in order to inform itself as to the sentence or order properly to be
passed or made
The following list of
mitigating factors is non-exhaustive and would depend on the particular
circumstances of each case:
1.
A
great degree of provocation.
Under this the person
convicted has to plead that the offence was spontaneous as opposed to it being
premeditated. He can say that he acted in anger as a result of the provocation
and proceed to plead for a more lenient sentence.
2. Commitment to repairing the harm caused by the offender’s conduct as
evidenced by
actions such as compensation,
reconciliation and restitution prior to conviction.
The constitution under
article 159 encourages the court to promote alternative dispute resolution in
resolving dispute. In deed the high Court made a ruling that discharged a
person who had been charged with the offence of murder.[2]
3. Age, where it affects the responsibility
of the individual offender.
The courts are more lenient
to child offenders and elderly persons. In the case of Kaumu Muthami George v Republic
[2008] eKLR the High Court agreed with the subordinate court that a
sentence of 2 years was lenient after considering the accused’s age among other
factors. The accused ad been charged for
an offence being in possession of narcotic drugs
contrary to section 3(1) as read with Section 3(2) (a) of the Narcotic Drugs
and Psychotropic Substances Control Act No. 4 of 1994. The said offence carries
a maximum sentence of 10 years.
4. Being a first offender.
Generally,
where a person is said to be a first time offender the court usually imposes a
lesser sentence as opposed to if the accused was a repeat offender[3].
5.
Pleading guilty at the earliest opportunity and generally cooperation with the
prosecution and the police during the trial process.
An example is in the
infamous case of Kiru Boys High School principle murder one of the perpetrators
pleaded guilty to the lesser charge of manslaughter and agreed to cooperate
with the investigation and prosecution by being a witness against the principle
suspect; and was sentenced for 7 years.[4]
Other mitigating factors
espoused in The Judiciary Sentencing Policy Guidelines Include:
1) Negligible
harm or damage caused.
2) Mental
illness or impaired functioning of the mind.
3) Playing
of a minor role in the offence.
4) Remorsefulness.
5) Commission
of a crime in response to gender-based violence.
Iain Moley suggests that mitigation is about putting the offence
in a certain category
You have to seek to:
Distinguishing the case from
other cases, or the defendant from co-defendants. You can urge the
court that your client played an ancillary role and not the main role. Or that
the commission of the offence was spontaneous as opposed to it being
premeditative.
Stating what the offence is not. It often help s the judge to place the
offence within an appropriate bracket of seriousness
call character
witnesses if possible because It
is always helpful for a judge to have the measure of a defendant from what
others apart from the advocate say about him.
look up the likely sentence. Anticipate the outcome by conducting
your research well on how courts have sentenced offenders convicted of offences
of a similar nature
know when to stop.
Avoid overdoing it. Instead, run each point through like a swordsman,
deliberately, not hurriedly, but solidly, withdraw your rapier, watching the
judge for acknowledgement the point is fully taken, and now run the next point
through.
tell
the judge what sort of sentence you seek and why. While at it
be realistic in your suggestion
SENTENCING
Sentencing is
the process by which a court imposes a penal sanction once an accused person
has pleaded guilty or has been convicted of an offence following a trial.[5]It
is the process in the criminal procedure at which a court of law of competent
jurisdiction makes an order after convicting the accused, as to the specific
penalty to be imposed on such a convict.[6]
Since the
sentencing process forms part of the trial, it is subject to the constitutional
guarantees of a fair hearing.[7]
The sentence must therefore have specific contents for it to be proper.
In determining
a proper sentence, the court considers[8]:
·
The intrinsic value of
the subject matter.
·
Antecedents of the
accused.
·
Age.
·
Conduct of the accused
at trial.
·
Prevalence of the
particular crime in society.
·
Whether or not the
offender is a first offender. The general rule is that a maximum sentence
should not be imposed on a first offender.[9]
Having
considered the aforementioned factors among others, the court proceeds to
sentence. In giving the sentence, the judicial officer must give reasons that
informed the sentence, including the factual and legal provisions that led to
the sentence.[10]
As provided in
Section 169 of the Criminal Procedure Code (CPC), a judgment shall contain:
(a)
The point or points
for determination, the decision thereon and the reasons for the decision.[11]
(b)
Date and signature of
the presiding officer at the time of pronouncing it.[12]
(c)
The section of the
Penal Code or other law under which the accused is convicted and the punishment
to which he is sentenced in the case of a conviction.[13]
(d)
The offence of which
the accused person is acquitted and shall direct that he be set at liberty in
the case of an acquittal.[14]
The court in Fatuma
Hassan Salo v. Republic[2006] eKLR highlighted the
obligation of the trial court to make detailed notes on the matters it has
taken into account in arriving at one of the options of punishments available.
The main aim
for sentencing is to protect the society from harmful acts of the convict.[15] As a result, sentencing takes the following
main aspects:
Deterrence
prevents future crime by scaring the accused and the public by utilizing the
fear factor principle.[16]
It works on the presumption that once a crime has been committed and punishment
has been instituted, the general public will refrain from committing the crime
from fear of the punishment.
The two types
of deterrence are specific and general deterrence. Specific deterrence applies
to an individual. When the government punishes an individual, the person is
theoretically less likely to commit another crime. General deterrence applies
to the public at large. When the public learns of an individual’s punishment,
the public is theoretically less likely to commit that crime due to fear of the
punishment that, that individual has experienced.
Retribution is
punishment inflicted on someone as vengeance for a wrong criminal act. It is
based on the principle of an eye for an eye. It prevents future crime by
removing the desire for personal avengement against the convict. It seeks to
punish the offender for their criminal conduct in a just manner.[17]
Retribution seeks to punish the offender in a measure equal to the crime
committed. However, this approach has gained various criticisms as its only
purpose is revenge. Critics argue that, it is a cynical way to respond to human
behavior hence leaving everyone blind at the end of the day.
Rehabilitation
seeks to enable the offender reform from his criminal disposition and become a
law abiding person. Examples of rehabilitation include educational and
vocational programs, treatment center placement, and counseling.
This addresses
the needs arising from the criminal conduct such as loss and damage. It is done
by the court ordering the offender to pay the victim for any harm and resembles
a civil litigation damages award. Restitution can be for physical injuries, loss
of property or money. This promotes a sense of responsibility through the
offenders’ contribution towards meeting the victims’ needs.
This principle
aims to protect the community by incapacitating the offender. Incapacitation
prevents future crime by removing the offender from society. It also acts as to
prevent repletion of the said crime.[18]
It’s also known as the theory of disablement. It prevents furtherance of the
crime by disabling the offender by incapacitation. Examples of incapacitation
are imprisonment, detention, or execution.
This is public
condemnation of the offender for the crime committed. The community
communicates the condemnation of the criminal conduct. When the society
discovers that the defendant has been adequately punished for a crime, they
achieve a certain satisfaction that our criminal procedure is working
effectively, which enhances faith in law enforcement.
Before
remitting any sentence the court has a mandate to inform itself accordingly as
to the sentence to be passed. This is because different offences attract
different penalties. Moreover the process is geared upon principles as opposed
to being a subjective process by aligning the sentencing process to the
constitution which is the supreme law of the land[19].
The following principles guide the courts during sentencing:
Article 50(2)(p) of The Constitution of Kenya
2010 provides for the right to the benefit
of the least severe of the prescribed punishments for an offence, if the
prescribed punishment for the offence has been changed between the time that
the offence was committed and the time of sentencing.
The
constitution provides for where a child is in conflict with the law, the child
is to be detained separate from adults and also take into account the child’s
sex and age[20].it
also insists that the best interest principle be paramount in all matters
concerning the child, this is to also include sentencing[21].
Children in conflict with the law are only detained where non-custodial
measures have failed. They are committed to borstal and rehabilitation. This is
because the objectives of juvenile rehabilitation schools are to reform, for
social integration and restorative justice. In other cases, such as those
covered under the sexual offences act for example rape and defilement the age
of the victim is taken into consideration to determine the sentence to be
imposed.
The
constitution provides for that persons with disability be treated with dignity
and respect and to be referred to in a manner that’s not demeaning[22].
Access to materials and equipment to aid them go about their day normally and
or without constrains is to be made available[23].
This right includes persons detained. The court is to put in measures for their
state to be fully accommodated.
The punishment
imposed has to be in tandem with the offence committed. This principle is
grounded on the concept of just deserts by weighing the foreseeable impact of
the offence and the offender’s responsibility[24].
This is compounded in our constitution that advocates the right to fair
determination of a matter[25].
This was held in; Caroline AumavRepublic where the accused person was convicted
and sentenced to life imprisonment and a fine of Kshs.1, 000,000 was imposed
for being in possession of heroin worth Ksh.700. On appeal, it was held that
the sentence was un-proportional to the offence[26].
The sentence
ought to be consistent with the law with which it’s created. An accused person
cannot be convicted and sentenced for an act not expressed as an offence by the
law[27].
The courts must satisfy itself that the matter before it has never been tried
and determined in any other court, and that the accused has not been previously
acquitted or convicted of the same offence (this is the principle of double
jeopardy)[28].
The court must also set out reasons, facts and legal provisions informing the
sentence[29].
As held inFatuma Hassan Salo (v) Republic where the court stated that the
trial court is obliged to make detailed notes on the matters it has taken into
account in reaching the options of punishment available[30].
In the case of Kennedy Indiema Omuse v Republic the court held that before
imposing a sentence a court ought to
look at the facts of the case in its entirety before imposing a sentence on an
accused person[31].
These facts however, must be those that have been proved and evidenced. In Wanjiku
(v) Republic the court while sentencing, alleged that the accused had
relied on her husband’s position to smuggle goods for personal gain yet there
was no evidence in support of the magistrate’s inference[32].
The court’s decision should only derive its influence from the law and the
surrounding facts of the case and not improper motives and corrupt practices so
as to uphold the integrity of the judiciary and the court processes.[33]
Mitigating
serves the purpose of attaining leniency and mercy from the courts so as not to
suffer severe punishment. Aggravating circumstances on the other hand, are
adduced by the prosecution to increase the harshness of the punishment. In all
criminal cases the accused is given an opportunity to adduce and challenge the
evidence by way of making submissions.
This right is also engraved in the constitution[34].
In the case of; Edwin Otieno Odhiambo (v) Republic it was held that failure
to take into account mitigating circumstances chances of not arriving at an appropriate
sentence were increased[35] .
However, this right is subject to the discretion of the court and failure of
the accused to mitigate does not invalidate the court’s decision.
Generally,
where a person is said to be a first time offender the court usually imposes a
lesser sentence as opposed to if the accused was a repeat offender[36].
However, this view is subject to the discretion of the court as other factors
are put into consideration.
Cause of crime
The court will
take into account socio-economic factors that may lead to crime. These include
poverty, drunkenness, and broken home, psychological problems amongst others.
This is also known as criminology which aids in determining reasons that lead
the accused into committing the offence. Its importance is to establish motive.
Previously the
law provided that the duration of a sentence began from the date of
pronouncement and precludes any court from predating the commencement of
sentence. This was set out in Republic v Yonasani and others.
Section 333(2) of the Criminal Procedure Code was introduced to change this
position. The courts are now obligated to take into consideration time already
spent in custody if the accused person was incasarated during trial. Failure to
do so renders the sentence excessive to the offence. Section 35(1) of the Penal
Code provides that where the accused was in custody as for 2 years during trial
and upon conviction the court sentenced him to 2 years imprisonment, the act
directs that the accused is to be discharged as the time he was in custody is
taken to be the time in which he used to serve that sentence.
This is
determined by the use of a victim impact statement which was introduced in a
bid to acknowledge the victims of crime and the effects of the same[37].
The impact statement applies in relation to offences that result in death or
bodily harm[38].Particulars
include: any personal harm suffered by the victim as a direct result of the
offence. and the effect of the primary victims harm on his immediate family[39].
A primary victim is one against whom an
offence has been committed or a person who was a witness to the offence (if the
crime resulted in death)[40].
For this statement to be considered, it must be filed by the victim or the
prosecutor on his behalf. A family member may also apply where the victim is
deceased. The use of this statement is subject to the discretion of the court[41].
The primary victim is not compelled to give an impact statement, it must be
voluntary and where the victim objects to its use the court is obligated not to
use them[42].
However, this does not render the effects of the crime lesser to the victim[43].
A member of the primary victim’s family may issue the statement where the
victim is incapable of the same[44].
The courts consider the impact of the
offence on the victim and the society in general.
The following
is a list of sentences recognized in Kenya. They vary from offence to another.
A good trial advocate has to reasonably anticipate the sentence to be imposed
on his client, and if possible try and obtain the least severe sentence.
Death penalty
is imposed upon offenders convicted of capital offences.Minors cannot be
subjected to the death penalty. The Criminal Procedure Code prohibits
imposition of death penalty where at the time of committing the offence, the
offender was below 18 years. Pregnant
women are also exempted from the death penalty and when convicted of capital
offences the sentences are commuted to life imprisonment.
There has been
a lot of discussion on the legality of the mandatory death sentence in the post
2010 new constitutional dispensation[45].However,
it is now settled that the death penalty described for capital offences is a
mandatory death sentence[46].
Imprisonment
This is the
restrain of person’s liberty through confinement in a prison for a specified
duration. Section 26 (2) of the Penal Code, gives the court discretion to
impose a sentence shorter than that prescribed by the relevant provision,
except where mandatory sentences are prescribed. In most cases the Penal Code
provides for the maximum sentence.
In the event of
a conviction, the sentences imposed for each of the offences run consecutively
unless the court directs that they run concurrently[47].
The general rule is that concurrent sentences rather than consecutive sentences
should be awarded for offences committed in the same transaction[48].Whenever
a convict is liable to be imprisoned the court has the option of imposing a
fine either in addition to or instead of a prison sentence[49].
The Community
Service Orders Act lays emphasis on restorative form of justice that takes into
account in a more direct way, the interests of the accused, the society and the
victim.It puts less emphasis on imprisonment for certain categories of
offenders and insists on services to the community.
Community
service is comprised of unpaid public work within a community, for the benefit
of that community. The duration of service does not exceeding the term of
imprisonment for which the court would have sentenced the offender. Community
service officers have a duty to identify suitable work placements and keep track
of all community service orders issued by the court to ensure compliance. A
completion form prepared by the institution must be returned to the court.
Probation is a
punishment given out instead of imprisoning a person convicted of a crime, an
order is made that the person reports to a probation officer regularly and
according to a set schedule.
The primary aim
of probation is to reform and rehabilitation of the offender. Probation is
provided under the Probation of Offenders Act, Cap 64 Laws of Kenya. Section 4,
empowers a court, where it is of the opinion that it is expedient to release an
offender on probation, it may convict and make an order for probation. The
court however, should regard the following before making the order: -youth,
character, antecedents, home surroundings, health or mental condition of the
offender, nature of the offence, any extenuating circumstances in which the
offence was committed.
Before the
offender is sentenced to probation, it must be shown that he or she is
remorseful and repentant and is willing to learn and reform.
If an offender
commits an offence during the probation term, he/ she becomes liable to be
sentenced for the original offence.
A fine is a sum
of money exerted as a penalty by a court as set out by law. Where it is not set
out in law, the amount of fine is unlimited but shall not be excessive[50].
In inflicting fines the capacity of the accused to pay should be considered.
Where the offence is punishable with a fine or a term of imprisonment, it is in
the discretion of the court to impose a fine or imprisonment[51].
Section 31 of the Penal Code, provides that
the court may order a convict to pay compensation to any person injured by his
offence, either in addition or substitution of any other punishment. However,
the court cannot make a compensation order in substitution of an offence which
attracts a minimum custodial sentence .An order of compensation takes effect on the expiry of the time limited
for an appeal, and where an appeal is lodged on confirmation of the conviction
and order.
The court may
in circumstances where an accused person has been convicted and sentenced for a term not exceeding 2
years, order the sentence not take effect immediately unless during the
operational period of the offender commits any other offence regardless the degree
of its severity[52].A
case in point is where recently The Labour Court sitting in Nairobi kept
suspending the sentence for officials for the striking doctors who had been
convicted for contempt of court.
This applies in
those situations where the accused has been convicted for offences relating to
stealing, extorting, converting or disposing of or knowingly receiving any
property belonging to another .The court may make restitution orders requiring
the said property be restored to the owner[53].
When a licensee
is found guilty of an offence violating the terms of such a license the court
may order that the licensed be revoked or withdrawn. A case in point is
licenses issued pursuant to The Alcoholic drinks and Control Act may be revoked
or forfeited once an accused has been adjudged guilty of committing an offence
under the said Act.[54]
This is
recognized under section 24(2)(f) of The Penal Code. It applies to non-criminal
offences and may be issued in addition or in substitution to the punishment by
the court. The convict is ordered to enter recognizance with or without
sureties on condition that he keep peace during a specified period[55].
This is
pursuant to section 35 of The Penal Code. Under this provision where a
sentencing court is satisfied that it is inexpedient to inflict punishment and
that a probation order is inappropriate, the court may make these orders which
have the effect of discharging an accused absolutely subject to the fact that
he does not commit an offence during a period not exceeding 12 months.
In meting out
this sentence the court takes into account: the nature of the offence, the
character of the offender and other circumstances. This is issued in
misdemeanors for instance being drunk and disorderly and loitering
Section 29
posits that courts may in addition to or in lieu of any penalty imposed, order
that property or monies obtained from commission of an offence of compounding
felonies be forfeited. The property forfeited shall be dealt with in a manner
so directed by the Attorney General.[56]
This is
provided for under the Security Laws(Amendment) Act
The
Sentencing Hearing
The judiciary Sentencing policy guidelines provides
for this process as follows:
The court schedules the hearing and receives
submissions that would impact on the sentence essentially for the purpose of
according the court with an opportunity to examine the information and seek
clarity on all issues.
The
offender is also provided with an opportunity to cross-examine on any adverse
information that would be prejudicial to him/her in line with the Constitution
which guarantees the offender the right to adduce and challenge evidence.[57]
REFERENCES.
STATUTES AND INTERNATIONAL CONVENTIONS
The Convention on Rights
of a Child
The Alcoholic Drinks and
Control Act S.42
The Children’s Act no. 3 of 2001 Laws of Kenya
The Constitution of
Kenya, 2010
The Criminal Procedure Code, Chapter 75 Laws of Kenya.
The Penal Code, Chapter
23 Laws of Kenya
The Judiciary Sentencing
Policy Guidelines of Kenya, 2016
BOOKS
P.L.O Lumumba, Criminal Procedure in Kenya, Law Africa
Patrick Kiage (2013), Essentials of
criminal procedure in Kenya, Law Africa
Ssekaana Musa, Criminal
Procedure and Practice in Uganda, Law Africa
William Musyoka, Criminal
law, Law Africa.
CASES
Republic v Moammed Abdouw
Moammed [2013] eKLR
Otieno (v) Republic
[1983] eKLR
Otieno
v.Republic[1983] eKLR
Caroline Auma v Republic
criminal appealNo.65 of 2014[2014]eKLR
Fatuma Hassan Salo (v)
Republic [2006] eKLR
Kennedy
Indiema Omuse v Republic Criminal appeal 344
of 2006
Edwin Otieno Odhiambo (v) Republic [1984] KLR 697
Wanjiku
(v) Republic Criminal Appeal 359 of 2006
Otieno (v) Republic
[1983] eKLR
Geoffrey NgothoMutiso V
Republic [2010] eKLR .
Joseph Njuguna Mwaura V
Republic [2013] eKLR
Odero v R (1984) KLR 621
INTERNET SOURCES
[2]
Republic v Mohammed Abdouw Mohammed
[2013]eKLR
[3]
Otieno (v) Republic [1983] eKLR
[5]The
Judiciary Sentencing Policy Guidelines,2016
[6]
P.L.O Lumumba, Criminal Procedure in
Kenya
[7]
Article 50, The Constitution of Kenya 2010.
[8]
Patrick Kiage (2013), Essentials of criminal procedure in Kenya, Law Africa pp.
[9]Otieno
v.Republic[1983]
eKLR
[10]
See note 1 above.
[11]
Sec 169(1) of the Criminal Procedure Code Cap 75 Laws of Kenya.
[12]
See note 9 above.
[13]
Sec 169(2) of the Criminal Procedure Code Cap 75 .
[14]Sec
169(3) ibid
[15]Ssekaana
Musa, Criminal Procedure and Practice in Uganda.
[16]
William Musyoka, Criminal law, Law Africa.
[17]
The Sentencing Policy Guidelines of Kenya, 2016.
[18]
William Musyoka, Criminal Law.
[19]
Art 2(1) ,The Constitution of Kenya 2010
[20]
art 37 , The United Nations Convention on Rights of a Child
[21]
Art 53(2) The Constitution of Kenya 2010 ; 190 of The Children’s Act no. 3 of
2001 Laws of Kenya
[22]
Art 54(1)(a) of The Constitution of Kenya,2010
[23]Art 54 (1)(e) ibid
[24]
Sentencing policy guidelines www.kenyalaw.org/.../sentencing_Policy...
[25]
Art 50(1)(2), The Constitution of Kenya,2010
[26]
Caroline Auma v Republic criminal appealNo.65 of 2014[2014]eKLR
[27]
Art 50(2)(n) of 2010 constitution
[28] Art
50(2)(o) ibid
[29]
Section 169(1) of Criminal Procedure Code and Art 73(2)(d) The Constitution of
Kenya,2010
[30]Fatuma
Hassan Salo (v) Republic [2006] eKLR
[31]
Criminal appeal 344 of 2006
[32]
[1984] KLR 697
[33]
Art 73(1)(a)(iii)(iv)(2)(b) The Constitution of Kenya,2010
[34]Art
50(k) ibid and s 323 of Criminal
Procedure Code
[35]
Criminal Appeal 359 of 2006
[36]
Otieno (v) Republic [1983] eKLR
[37]
Essentials of criminal procedure in Kenya by Patrick Kiage
[38] S
329 B of criminal procedure code
[39]
Ibid
[41] Section
329 Criminal Procedure Code, Cap 75 Laws of Kenya
[42]
Section 329D(1)(2) ibid
[43] Section 329 D (3) ibid
[44] Section
329 E(2) ibid
[45]
Geoffrey Ngotho Mutiso V Republic [2010] eKLR where it was held that the death
sentence is discretionary as
Opposed to
mandatory in so far as capital offences are concerned.
[46]
Joseph Njuguna Mwaura V Republic [2013] eKLR
[47]
Section 14 (1) Criminal Procedure Code
[48]
See Odero v R (1984) KLR 621
[49]Section
26 (3) Penal Code, Cap 63 Laws of Kenya
[50]
Section 28 (1) (a) Penal code
[51]Section
28 (1) (b) Penal Code.
[52]
Criminal Procedure Code,Cap 75 s.15
[53]Section
178 Criminal Procedure Code, Cap 75 Laws of Kenya
[54] Section
42, The Alcoholic Drinks and Control Act
[55]
section 33,The Penal Code ,Cap 63 Laws of Kenya
[56]
The Penal Code Section 119
[57] The Constitution of Kenya 2010, Art
50(2)(k)
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