WEEK 10

SENTENCING

General Principles in Sentencing

When sentencing, courts are guided by the Sentencing Policy Guidelines

(p. 3) to observe the following principles:

i) Proportionality: The sentence imposed must match the offence committed. In Susan Peter
Ebei v R (High Court at Kabarnet Criminal Appeal No. 79 of 2017), the court reiterated this
principle and held that a sentence of four years imprisonment was not proportionate
to theft of one sheep. The court, in Baraka
 Kazungu Mangi v R (High Court at Malindi Criminal
Appeal No.

9 of 2016), held that life imprisonment for an accused

convicted of trafficking cannabis worth Kshs 540 was
not proportionate to the offence.

ii) Equality/uniformity/parity/consistency/impartiality:
The principle of equality demands equal treatment
of offenders during sentencing. Thus, offenders who
have committed the same offences in similar
circumstances should serve similar sentences. Guided
by this principle, the court, in R v Jackson Maina
Wangui

& Another (High Court at Nairobi Criminal Case No. 35

of 2012), highlighted that it had taken note of
authorities on the offence of manslaughter, to
determine the appropriate sentence in the case before
it.

iii) Accountability/transparency: The reasoning

informing the sentence imposed must be evident in
the judgment. Section 169 of the Criminal Procedure
Code requires the court to provide the reasons for its
decision.

iv) Inclusiveness: Apart from hearing the offender in

mitigation, the court may consider victim impact
statements (s. 12(1), Victim Protection Act (VPA)).
Victims have a right to submit information for
consideration during sentencing (s. 20(2)(1)(b), VPA; I
P Veronica Gitahi & Another v R Court of Appeal at
Mombasa Criminal Appeal No. 23 of 2016). The
sentencing hearing set out in the Sentencing Policy
Guidelines (para. 23) provides a process through
 which the court can involve the offender and the victim
in sentencing. During the hearing, the court also
receives information from the prosecution, probation
and children officers (where need be) to reach a well-
reasoned decision.

v) Respect for human rights and fundamental freedoms:

The court must ensure that the sentences imposed do
not violate human rights and fundamental freedoms.
Sentences should not be cruel,
 inhuman, or degrading (art. 29(f), CoK). Other rights
include the right of children not to be detained except
as a measure of last resort (art. 53(1)(f), CoK). Imposing
a custodial sentence on a child is, therefore, a violation
of child rights in a case where a non- custodial
sentence is available. Further, any detention imposed
on a child must be as short as possible (art. 53(1)(f),
CoK). The court therefore declared section 25(2) of the
Penal Code, which requires children convicted of
capital offences to be held in custody at the
presidential pleasure, unconstitutional (A O & 6 Others
v Attorney- General & Another High Court at Nairobi
Petition No. 570 of

2015). This Bench Book sets out human rights and

fundamental principles relating to all the stages of the
criminal trial; the court is guided to adhere to them.

vi) Adherence to domestic and international law with

due regard to recognised international and regional
standards on sentencing.

The sentences imposed should be geared towards achieving

the following objectives set out in the Sentencing Policy
Guidelines (para. 4.1):

i) Retribution.

ii) Deterrence.

iii) Rehabilitation.

iv) Restorative justice.

 v) Incapacitating the offender.

vi) Denouncing the offence, on behalf of the community.

General Rules on
Sentencing

Generally, a maximum sentence should not be imposed

on a first offender unless there are aggravating
circumstances (Arissol v R [1957] EA 447; Charo Ngumbao
Gugudu v R Court of Appeal at Mombasa Criminal Appeal
No. 358 of 2008; James Ng’ang’a Njau v R Court of
Appeal at Nairobi Criminal Appeal No. 28 of 2015).
Paragraph 23.7 of the Sentencing Policy Guidelines sets out
a non-exhaustive list of aggravating circumstances.

For each count on which an accused is convicted, there

must be a separate sentence. Omnibus sentences are illegal
(Musa Majole v R [1956] EACA 576; Kiarie v R [1980] KLR
52).

If the subordinate court convicts an accused of an offence

and, after obtaining information on his or her character and
antecedents, it believes that a more severe punishment
should be imposed than it has authority to inflict, it may
transfer the accused to the High Court for sentencing (s.

221, CPC; Katungo Mbuki v R [1962] EA

682).

When passing a sentence, the court should only take

into account matters that are relevant to the case. If the
court considers irrelevant matters, it commits an error of
law. In Clement Kiptarus Kipkurui v R (Court of Appeal at
Nakuru Criminal Appeal No. 183 of 2008), the Court of
Appeal held that the trial court had not only failed to take
some relevant considerations into account, but in observing
that the offence in question was ‘prevalent’ and imposing a
deterrent sentence, it had taken into account an irrelevant
consideration..

If two or more people have been convicted of the same

offence, there should be no disparity in the sentences
imposed without good reasons. If the court does impose
disparate sentences, it should state its reasons on the
record. (Walter Marando v R Court of Appeal at Kisumu
Criminal Appeal No. 16 of 1980; Luka Kingori Kithinji &
Another v R Court of Appeal at Nyeri Criminal Appeal No.
130 of 2010).

The convicted person has the right to the benefit of the

least severe punishment if the prescribed punishment for
the offence committed has changed between the time the
offence was committed and at the time of sentencing (art.
50(2)(p), CoK; Joseph Lolo v R Court of Appeal at Kisumu
Criminal Appeal No. 241 of 2012).
Where a penalty is prescribed, unless the contrary is
expressed, the penalty must be construed as the maximum
sentence (s. 66, Interpretation and General Provisions Act).

Thus, the phrase ‘shall be liable to’contained in many

sentencing sections of the PC does not prescribe a
minimum and mandatory sentence. Instead, it specifies
the maximum sentence that can be imposed. The court has
the discretion to impose a sentence up to, but not beyond,
the maximum. (Daniel Kyalo Muema v R Court of Appeal at
Nairobi Criminal Appeal No. 479 of 2007, citing s. 66(2), PC;
Caroline Auma Majabu v R Court of Appeal at Mombasa
Criminal Appeal No. 65 of

2014)
.

If the law prescribes a maximum sentence, the court must

not impose a sentence above that maximum (Kasongo v R
High Court at Nairobi Criminal Appeal No. 1573 of 1984;
Abdikadir Hussein Mberwa v R High Court at Garissa
Criminal Appeal No. 43 of 2014).

If the offence specifies a minimum sentence, the court must

not impose any sentence below that minimum (Rotich v R
[1983] KLR 541; David Kundu Simiyu v R Court of Appeal at
Eldoret Criminal Appeal No. 8 of

2008). A mandatory sentence cannot be challenged as harsh

or excessive because the court has no discretion to
impose a different sentence (Johnson Muiruri v R [1983]
KLR 445; Joseph Njuguna Mwaura & Others v R Court of
Appeal at Nakuru Criminal Appeal No. 5 of 2008). These
cases, however, were decided prior to the implementation
of the

2010 Constitution, and may be subject to a challenges

under various articles of the Constitution, including the
prohibition against cruel, inhumane or degrading treatment
(art. 29(f), CoK), a violation of the limitations imposed on
fundamental rights and freedoms (art. 24, CoK), or a
violation of the independence of the judiciary (art. 160(1),
CoK).
Forms of Sentences

The following sentences can be imposed (subject to the rules

for children set for in Section VII):

i) death

ii) imprisonment

iii) suspended sentence

iv) fine

v) forfeiture

vi) payment of compensation

vii) security to keep peace and be on good behaviour

viii) absolute and conditional discharges

ix) probation

x) community service, or

xi) any other sentences that may be set out by other

laws (s. 24(i), PC), such as suspension of a certificate
of competency in traffic offences (s. 39, PC); restitution
(s. 178, CPC); or police supervision (s. 344A, CPC).
Death Sentence

The death sentence is prescribed for murder (s. 203, PC),

treason (s. 40, PC), robbery with violence (s. 296(2), PC) and
attempted robbery with violence (s. 297(2), PC). In Charles
Mulandi Mbula v R (Court of Appeal at Nairobi Criminal
Appeal No. 123 of 2010), the court confirmed that the death
penalty was a proper sentence for attempted robbery with
violence as expressly provided for in section 297(2) of the
Penal Code. Section 389 of the Penal Code, which relates to
sentencing offenders convicted of attempted offences with
no sentences expressly prescribed by statute, did not apply.
 In Francis Karioki Muruatetu & Another v R (Supreme Court
Petition No. 15 & 16 of 2015), the court declared the
mandatory death sentence unconstitutional and remitted
the petitioners’ cases to the High Court for resentencing. The
decision specifically relates to the mandatory death
sentence but affirms the validity of the death penalty as a
discretionary sentence. The remission of the cases to the
High Court for sentencing in the Muruatetu case applied
strictly to the two petitioners. The Supreme Court ordered
that a committee be established to develop a framework for
the resentencing of all persons who were sentenced under
the mandatory death penalty provision. The Muruatetu case
related to murder, but the court’s reasoning, especially as
concerns the wide range of circumstances of convicted
persons, applies with equal or greater force to robbery with
violence.

The death penalty may not to be imposed upon a child offender

or an

offender who committed the offence while a child (s. 25,

PC). Section

25(2) of the Penal Code, which requires a child convicted of

murder to be detained at the President’s pleasure was held
unconstitutional (A O &

6 Others v Attorney-General & Another High Court at Nairobi

Petition

No. 570 of
2015).
Expectant mothers cannot receive the death penalty and,
instead, are to be sentenced to life imprisonment (s. 211,
PC).

If an offender is convicted on several counts of capital

offences for which the court chooses to impose the death
penalty, the court must pass sentence on each count and
direct that the offender serve out the first sentence while
the others are held in abeyance (Peter Njagi Muchangi &

3 Others v R Court of Appeal at Nyeri Criminal Appeal No.

613 of 2010; Stephen Muiruri & 2 Others v R Court of Appeal
at Nairobi Criminal Appeal No. 47 of 1979, (1980) KLR70).
Similarly, if the accused is convicted of a capital offence as
well as non- capital offences, the court must sentence the
accused on each count for which he or she has been
convicted. It should then order that the capital sentence be
imposed while the sentences for the non-capital offences
are held in abeyance (Hamisi Mungale Burehe v R Court of
Appeal at Mombasa Criminal Appeal No. 37 of 2013).

Whilst the death penalty is still a lawful sentence, no one

has been executed since 1987.

III.
Imprisonment

If the maximum sentence provided is life imprisonment,

the court has discretion to impose a shorter term of
imprisonment (s. 26(2), PC; s. 66(1), Interpretation and
General Provisions Act). In M K v R (Court of Appeal at
Nairobi Criminal Appeal No. 248 of 2014), the court
substituted a term of twenty years imprisonment for a
sentence of life imprisonment for an offender convicted of
incest. The court noted that the trial court had erred when
it construed the words ‘shall be liable to life imprisonment’
in section 20(1) of the Sexual Offences Act to mean that a
life sentence was mandatory.

Except when a minimum sentence is required, the court has

discretion to determine the term of imprisonment in light of
the relevant factors and circumstances of the case (Cecilia
Mwelu Kyalo v R Court of Appeal at Nairobi Criminal
Appeal No. 166 of 2008; Nelson Ambani Mbakaya v R Court
of Appeal at Mombasa Criminal Appeal No. 1 of 2016).
The Sentencing Policy Guidelines provide guidance on
reaching the appropriate term of imprisonment (para. 23.3
- 23.10, Sentencing Policy Guidelines).

Section 26(3) of the Penal Code states that, unless the

statute requires a minimum sentence, the court has the
option of imposing a fine, in addition to or instead of, a
prison term. In keeping with this provision,
the court, in Arthur Muya Muriuki v R (High Court at Nyeri
Criminal Appeal No. 31 of 2010) reduced a sentence of four
years to one and a half years with the option of a fine of
Kshs. 25000 for the offence of arson.

The sentence imposed by the trial court begins on the date

on which it is pronounced (s. 333(2), CPC). The court must
take into account the time already served in custody before
sentencing (s. 333(2), CPC; para. 7.10, Sentencing Policy
Guidelines). In Bethwel Wilson Kibor v R (Court of Appeal at
Eldoret Criminal Appeal No. 78 of 2009), the offender was
convicted of manslaughter and sentenced to five years
imprisonment. The trial court did not indicate whether it
had taken into account the nine years that the offender
had already served in custody. Guided by section 333(2) of
the CPC, the appellate court reduced the sentence to time
served. Section 333(2) does not specify how the court is to
‘take into account’ the time in custody.

Section 14 of the CPC provides that multiple sentences

should run consecutively unless the court directs
otherwise. Nevertheless, the court ought to specify whether
the multiple sentences are to run concurrently or
consecutively. The general rule is that sentences relating to
offences committed in the same transaction should be
served concurrently (Peter Mbugua Kabui v R Court of
Appeal at Nairobi Criminal Appeal No. 66 of 2015; BMN v R
Court of Appeal at Nyeri Criminal Appeal No. 97 of

2013)
.
 Upon imposing a prison term, the court must issue a
warrant ordering that the sentence be carried out in Kenya.
The warrant gives the officer in charge of the prison the
authority to carry out the sentence (s. 333(1), CPC).

Upon sentencing, the court no longer has jurisdiction over

the case.

However, it bears a supervisory role over prisons. The

resident magistrate in any district is a visiting justice of the
prisons in that district
 (s. 72(2), Prisons Act (PA)). This role extends to inspecting
the prison, assessing the living conditions and receiving
complaints from prisoners. The magistrate is also required
to determine whether the prisons comply with the Prisons
Act, the rules made thereunder, and the prison standing
orders. Should there be any irregularities, the magistrate is
required to draw the attention of the officer in charge to
them (s. 72(4), PA).

Non-Custodial Sentences

The primary objective of non-custodial sentences is

rehabilitation of offenders. By serving these sentences,
offenders take responsibility for their actions and, at the
same time, remain in the community, which provides an
environment conducive to rehabilitation. Some non-
custodial sentences such as paying compensation and
restitution deliver restorative justice to the specific victims

The following considerations, which are set out in the Sentencing

Policy

Guidelines (para. 7.18 and 7.19) should be taken

into account:

i) Gravity of the
offence.

ii) Criminal history of the

offender.
 iii) Age of the
offender.

iv) Character of the

offender.

v) Protection of the
community.

vi) Offender’s responsibility to third

parties.

Suspended Sentences

If a court imposes a sentence of imprisonment for any

offence for a term not exceeding two years, it can suspend
the sentence for a specified period (s. 15(1), CPC). In R v
Lina Mkunde David Kiritta (High Court at Nairobi Criminal
Revision No. 62 of 2008), the court held that the suspension
of sentences was intended for offenders who have committed
 relatively minor offences. It, therefore, reversed a
suspended sentence imposed on an offender convicted of
trafficking heroin of a market value of Kshs. 2,000,000.

52. If the offender is convicted of any offence during the

specified period, the suspended sentence takes effect, and
the sentence for the subsequent offence runs consecutively
to the suspended sentence (s. 15(3), CPC; para. 15,
Sentencing Policy Guidelines).

Fines

53. If imprisonment is provided as a penalty for an offence and

a fine is not specified, a fine may be imposed on a person
convicted of the offence, instead of or in addition to
imprisonment (s. 26(3) PC). This does not apply if the
sentence of imprisonment is expressed as a minimum. If the
offence is punishable by a fine or a term of imprisonment,
the court has discretion to impose such a fine or
imprisonment (s. 28(1)(b), PC).

54. If the law sets a fine as a sentence for a specific offence, the
maximum amount will usually be specified, but if the law is
silent on the amount, the court has discretion as to the
amount (s. 28(1)(a), PC). The amount, however, must not be
excessive.

55. In the absence of aggravating factors or circumstances

that militate against the imposition of a fine, the court
should consider imposing a fine (para. 11.5, Sentencing
 Policy Guidelines). In Khali Abdiaziz Mohammud & Others
v R (High Court at Nairobi Criminal Appeal No.

325 of 2007, 326 of 2007), for example, the Court of Appeal

substituted the trial court’s sentence of one-year
imprisonment for a fine for first- time offenders convicted of
being in the country illegally.

56. When the court decides to impose a fine, it should ensure

that there is a reasonable correlation between the fine and
the offence. The court should also take into account the
ability of the offender to pay. In R v Benjamin Ogweno
Koyier (High Court at Nairobi Criminal Case No.
 75 of 1978), [1978] KLR 158), the court noted that it was
pointless to impose a fine that the offender could not pay.
The real test, however, is whether, given all the
circumstances of the case, it would be in the interests of
justice to impose a fine as opposed to imprisonment.

57. When an offender starts to pay the fine within a given

period, the court should allow payment in instalments,
provided that the offender submits a bond to ensure the
payment (s. 336(3), CPC). To enforce payment, the
schedule of payment should be included as part of the court
record, and mention dates should be set to monitor payment
(para. 11.6-11.8, Sentencing Policy Guidelines).

58. When imposing a fine, the court should specify a term of

imprisonment to be served in default of payment. The term
of imprisonment must be within the scale below (s. 28(2),
PC):

Amount Maximum

Period
Not exceeding Sh. 500 14 days
Exceeding Sh. 500 but not exceeding Sh. 500 One month
Exceeding Sh. 2500 but not exceeding Sh. Three months
15000
Exceeding Sh. 15000 but not exceeding Sh. Six months
50000
Exceeding Sh. 50000 12 months

59. If the offender does not pay the fine or pays it late, the
offender must serve either the default imprisonment term or
the balance of the term, taking into account any instalments
of the fine already paid (s. 28(1)(c), PC). A sentence of
imprisonment in default of a fine cannot be served
concurrently with any other sentence of imprisonment (s.
37, PC; John Chege Mwangi v R High Court at Nairobi
Criminal Appeal No. 267 of

2007; R v Ofurrya [1970] EA 78). Imprisonment in default

of a fine ends once the fine has been paid. In such a case,
the amount payable is reduced to take into account the
period of imprisonment already served.
60. The court can issue warrants for distress and for sale of
an offender’s moveable and immovable property to satisfy a
fine. Such an order should not be made if the offender has
served the whole term of imprisonment in default, except
for special reasons. These reasons must be recorded in
writing (s. 28(1)(c)(ii) Proviso, PC). As at the time of printing
this Bench Book, there is no authority explaining what
special reasons might be.

Forfeiture

61. Forfeiture may serve several purposes. One purpose is

to restore property to the rightful owner. Further, through
forfeiture, the convicted person is deprived of the benefits of
the crime. The court may not order forfeiture unless the law
expressly provided for it (Munyo Muu [1957] EA 891). The
Proceeds of Crime and Anti-Money Laundering Act, for
example, grants the court this power. A court that imposes
forfeiture should specify the provision under which it is
made.

62. Statutes provide for forfeiture either in mandatory or in

discretionary terms. For example, forfeiture under the
Customs and Excise Act is mandatory. The same is true of
Section 22 of the Animal Diseases Act on forfeiture of
animals with which an offence has been committed, and
section 19 of the Narcotics and Psychotropic Substances
Act. Section

105 of the Wildlife Conservation and Management Act gives

the court a discretion as to whether to order forfeiture.
63. Under section 389A of the Criminal Procedure Code,
covering discretionary forfeiture where the law providing the
power does not specify the procedure for forfeiture, the
court should first order service of a notice on the owner of
the property. The notice must give time and place, state that
it will order forfeiture unless good cause for not ordering
forfeiture is shown. If the owner of the goods cannot be
found, the notice should be published in a newspaper, or
in any other suitable mode of
 service deemed fit by the court (s. 389A (1), CPC). In Justus
Kiprono

Langat v R (High Court at Kajiado Criminal Misc. Application

No. 48 of

2016) the court held that it was unlawful for the trial court
to have made an order of forfeiture without giving the
offender to proceedings relating to the forfeiture an
opportunity to be heard.

64. Forfeiture should not be ordered for property belonging to

an innocent owner who was neither aware, nor had reason to
believe, that the property was used in connection with the
offence and who exercised reasonable diligence to prevent it
from being so used (s. 389A(2), CPC). If the property in
question is partly owned by such an innocent party, the
court may order the forfeiture and sale of the property from
which fair share of the proceeds of sale would be given to
the part owner (s. 389A(2), CPC).

Payment of Compensation

65. Under section 24(g) of the Penal Code, payment of

compensation is one of the discretionary punishments that
a court may inflict upon a convicted offender (para. 10,
Sentencing Policy Guidelines). Under section 175A of the
Criminal Procedure Code, the court may make an order for
compensation if it finds that the convicted person has civil
liability to anyone as a result of the offence committed.
66. Section 23 of the Victim Protection Act provides that
victims have ‘a right’ to compensation or restitution for the
losses they suffer as a result of the offence committed. The
compensation may cover personal injury, economic harm or
medical expenses (s. 23(2), VPA).

67. An award of compensation covers what would be recovered

as damages in civil proceedings (s. 175(2), CPC). In Ezekiel
Mjomba Katu v R (High Court at Voi Criminal Appeal No.
52 of 2014) the court set aside the award of Kshs. 100,000
compensation, as the trial court had not demonstrated how
the liability accrued. In Musili Muthui Mutemi v R
 (High Court at Garissa Criminal Revision No. 5 of 2013) the
court set aside an award for compensation for destroyed
crops for want of proof of ownership of the crops.

68. The amount awarded is recoverable as a judgment

debt in civil proceedings (s. 175(6), CPC; s. 23(4), VPA).
Such an order for compensation, however, should not be
made if the court considers that it would be prejudicial to
the convicted person because: the evidence was too
complicated to sufficiently determine the amount of
damages; the evidence was not sufficient to establish either
that damages were incurred or the amount of those
damages; rules existed that limited the application of
damages; or for any other reason.1 In such a case, the
victim is left to seek civil remedies unless barred by
limitation of time. Further, the CPC provides that the
amount awarded must be within the usual civil jurisdiction
of the court.

69. An order of compensation against a convicted offender is not

a bar to civil proceedings against the offender (s. 25, VPA).
But any compensation awarded would be deducted from
any award in a subsequent civil case (s. 175(7), CPC).

Security for Keeping the Peace

70. A person convicted of an offence, other than an offence

punishable by death, may, in addition to, or instead of, any
other sentence, be ordered to enter into a recognizance, with
or without sureties, to keep the peace and be of good
 behaviour for a period to be fixed by the court (s. 33, PC).
Such a person may be imprisoned pending the entering into
a recognizance, but this period of imprisonment should not
exceed one year.

1 See Sentencing Policy Guidelines, paras. 10.7-10.11 for

further guidance on compensation orders.
71. Security for keeping the peace under section 33 of the Penal
Code must be distinguished from a similar order provided
for in sections 43 to

61A of the Criminal Procedure Code for suspected persons

or habitual offenders. The latter, which is an order made
prior to conviction, was declared unconstitutional in
Anthony Njenga Mbuti & 5 Others v Attorney-General & 3
Others (High Court at Nairobi Constitutional Petition No.
45 of 2014).

Absolute and Conditional Discharge

72. The court may discharge the offender unconditionally if,

after having considered all the circumstances of the case,
including the nature of the offence and the character of the
offender, it finds that it is inappropriate to inflict
punishment and, further, that an order of probation would
not be suitable, (s. 35(1), PC). Section 191(1)(a) of the
Children Act recognizes this sentence as one of the orders
that can be imposed on a child found guilty of an offence.

73. The accused person may also be discharged with the

condition not to commit any offence within a period fixed
by the order but which must not exceed 12 months. When
imposing this order, the court must explain to the offender,
in ‘ordinary language’, that committing any other offence
within the specified period would render them liable to be
sentenced for the original offence (s. 35(2), PC). This
contrasts with the suspended sentence (s. 15, CPC) where
 the offender knows from the beginning the consequences of
re-offending.

74. In R v Maxwel Musundi (High Court at Busia Criminal

Appeal No. 17 of

2016) the court noted that this sentence is meant for

offenders who have committed minor offences. It, therefore,
held that the trial court had erred in discharging an
offender who had been convicted for the offence of escape
from lawful custody. Similarly, in Paul Mutuku Munyoki v R
(High Court at Nairobi Criminal Appeal No. 56 of 2006) the
court set
 aside the discharge of the appellant who had been convicted
of grievous bodily harm. Holding that the discharge was not
proportionate to the offence, the court substituted the
discharge with ten years imprisonment.

75. The Court may order an offender who has been

discharged to pay compensation and all or any part of the
costs incidental to the prosecution (s. 35(3), PC).

Probation1

76. Probation aims to reform and rehabilitate the offender. Once

a charge has been proved, the court may convict the person
and impose a probation order or may place the person on
probation without convicting the person (s. 4(1), Probation
of Offenders Act (POA)). The latter approach may, for
instance, be used in accordance with Section 191(1)(c) of the
Children Act, which does recognise probation as one of the
orders that can be made against children when the court
finds they are guilty.

77. Before a probation order is imposed, it must be shown that

the offender is remorseful and willing to reform (Elijah
Munee Ndundu & Another v R High Court at Nairobi Criminal
(Revision) No. 18 of 1978).

78. A probation officer’s report has to be given to the court before

a probation order is made. This report should provide
personal information about the offender, which the court is
required to take into account when making its decision (s.
4(2), POA). Relevant personal information includes age,
 character, health, mental condition, family background, and
antecedents. The word antecedents in this context means
whether the offender has any criminal record. The probation
report guides the court but is not binding (Haron Mandela
Naibei v R High Court at Bungoma Criminal Appeal No. 116
of 2013).

1 See part 9, Sentencing Policy Guidelines for further

guidance on probation orders.
79. The offender may be required to enter into a recognisance
with or without sureties and must comply with all the terms
of the probation order (s. 4(1), POA).

80. A probation order may include conditions that

contribute towards reformation of the offender, such as
undergoing counselling or abstaining from alcohol (s. 5(1),
POA).

81. If an offender breaches the terms of the probation order,

the offender should be brought before the court that issued
the order. If the offender admits to the violation, or the
court, having inquired into the matter and given the
offender the opportunity to make a statement and call
witnesses, finds that a violation occurred, it may impose a
fine (s. 8(3) (a), POA). Alternatively, the court may revoke
the probation order and impose any sentence that it could
have imposed at the time of conviction (s. 8(3)(a)(i) & (ii),
POA).

82. If the offender commits a subsequent offence during the

term of the probation order, the court may impose
sentences for both the previous and subsequent offences (s.
7(4), POA). If the offender was placed on probation without
a conviction having been recorded (s. 4(1), POA), the court
may proceed to convict and sentence the offender.

Community Service Orders

83. Community service under the Community Service Orders
Act (CSOA) comprises unpaid public work within a
community for the benefit of that community. Community
service may be imposed for a period not exceeding the term
of imprisonment for which the court would have sentenced
the offender. Section 3(2)(b) of the CSOA provides a non-
exhaustive list of public work.

84. Community service orders are limited to offenders whose

offences either would result in sentences of three years or
less, or to offenders who may be subject to a higher
sentence, but the court determines that
 the circumstances of the case justify a sentence of three
years or less (s. 3, CSOA). Community service orders must
be distinguished from probation orders, which are not
subject to this limitation (s. 4, POA).

85. Community service orders emphasise restorative justice,

which requires the offender to take responsibility by serving
the community within which the offence was committed. As
a member of that community, the victim benefits from the
work done by the offender. Because it is a non- custodial
sentence, the offender is less likely to lose his or her job
and, therefore, less likely to commit crimes upon release.

86. The community service order must indicate the specific

place in which the service will occur and the conditions the
offender must observe (Jonathan Kasaine Mbutu & Another
v R High Court at Machakos Criminal Revision No. 336 of
2014). The probation officer, who serves as the community
service officer (s. 12, CSOA), must be served with a copy of
the order (s. 3(7), CSOA). The probation officer must then give
a copy of the order to the supervising officer, who is the
person appointed to supervise the offender on a day to day
basis. A supervising officer is an employee of the institution
in which the offender will carry out the community service.
Examples of institutions in which offenders serve
community service are the Kenya Forest Service, schools,
hospitals, and Probation and Aftercare Services. However,
for one-day community service orders, offenders may also
be supervised by probation officers, community volunteers,
or anyone else appointed by the Probation and Aftercare
Services.
87. Before imposing community service, a proper inquiry into
the offender’s circumstances must be made and recorded.
The factors that the court should take into account in
determining whether to impose community service include:

i) whether the offender has a fixed

residence,
 ii) whether the offender has obligations, such as
taking care of children, the elderly, or people with
disabilities (R v Florence Chelagat High Court at
Kabarnet Criminal Appeal No. 128 of

2017 and Margaret Wanjiku Muthoni v R High Court

at Nairobi

Criminal Appeal No. 60 of 2005),

iii) whether and where the offender is employed, his or

her working hours, and the nature of the offender’s
skills,

iv) whether the offender is a first offender,

v) the age of the offender,

vi) the distance to the nearest community service

institution from the

offender’s home,

vii) the status of the offender and the nature of work

available, and

viii) the health of the offender.

88. These factors are important because they help

determine whether the offender can successfully serve a
sentence. For instance, if the workstation is too far, or
if the offender has demanding caretaking obligations, the
 offender may not be able to meet the requirements of a
community service order.

89. In appropriate cases, the court can impose the

community service order in addition to another order. For
instance, the court may order community service as well as
compensation (s. 31, PC). The court may also impose
community service on condition of good behaviour (s. 33,
PC).

90. Before imposing community service, the court should

determine whether the offender is willing to perform
community service. The court should also carefully explain
to the offender what community service entails, the aims
and objectives of community service, the obligations of the
offender under the order, and the consequences of failure to
comply with the order (s. 3(8), CSOA).
91. Before it can impose a community service order, the court
must be satisfied that there is an institution available and
willing to supervise the offender (s. 3(5), CSOA; para. 8.7,
Sentencing Policy Guidelines). The probation officers
coordinate with the institutions that are assigned to
supervise offenders and advise the court on the availability
of suitable placements. Upon receiving a copy of the
community service order, the designated institution gives
the offender duties and keeps records of the offender’s
performance.

92. Community service orders can be reviewed and varied by a

court either on the application of the probation officer, by
request of the offender made the through the probation
officer, or by request of the offender directly (s. 6, CSOA).

93. If an offender breaches a community service order, the court

must hold a hearing in which the offender has the
opportunity to speak. Following the hearing, the court may
either caution the offender to comply with the order, amend
the order, or revoke the order and impose any other
sentence available under the law (s. 5, CSOA).

94. The court receives feedback on the implementation of the

community service orders in its jurisdiction through the
Community Service Orders Case Committees, which are
chaired by judicial officers (paras. 8.8-

8.10, Sentencing Policy Guidelines).

Restitution

95. If a person is convicted for offences that are related to

appropriating property (s.178, CPC), the court must order
the offender to pay restitution for the property to the owner
or the owner’s representative (s. 178, CPC; part 17,
Sentencing Policy Guidelines). An order of restitution may
be made summarily if the property is traceable and can be
easily transferred back to the owner (s. 178(2), CPC). In
Kagiri v R (Court of Appeal at Mombasa Criminal Appeal
No. 18 of 1988), the court held that the
 various transactions that had taken place concerning
the negotiable instrument in question made it necessary to
have its value determined in a civil suit. It therefore set aside
the order of restitution.

96. The court may order that money taken from the offender
be given to a person who had purchased the property in
good faith not knowing it had been stolen and who had
subsequently been ordered to restore it to the rightful owner
(s. 178(3), CPC).

97. A person aggrieved by an order of restitution, other than

the offender,

may appeal to the High Court (s. 178(4),

CPC).

IV. Sentencing
Hearing

98. Sentencing Policy Guidelines require courts to hold

sentencing hearings in which they receive submissions that
would have an impact on the sentence (para. 23.1,
Sentencing Policy Guidelines). Sections 216 and

329 of the CPC empower the convicting court to hear

evidence before sentencing that it thinks necessary to
determine the appropriate sentence or order. Such evidence
may, for example, be contained in probation reports,
community service reports, or general social enquiry reports
from the probation officers. The offender may also present
mitigating evidence to the court. The court ought to
 establish the history, character, and antecedents of the
person convicted, as well as all matters relevant to
punishment, before imposing a sentence. While requesting
such additional information is discretionary (R v Nasanairi
Nsubuga (1950)

17 EACA 130), it is desirable to

do so.

99. During the sentencing hearing, the court receives

submissions from the prosecution, the convicted person, the
victim (voluntarily), the probation officer and, where
relevant, the children’s officer.
The Prosecution

100. The prosecution is required to give a factual statement

about the offender. The statement should include whether
the offender has any previous convictions and, if so, provide
details of the crime committed, the date of conviction, the
sentence imposed, and when the offender was last released
from prison. The prosecution should not allege or imply
that the offender has committed offences for which he or
she has not been convicted. Similarly, the court should not
allow any prejudicial statements meant only to influence
the court to award a more severe sentence (Karanja v R
[1985] KLR 348; Ruhi v R [1985] KLR 373). Indeed, if the
prosecution knows anything in favour of the offender, it
should bring it to the attention of the court. This information
does not have to be given under oath.

101. If the prosecution alleges a previous conviction, the court

should ask the offender whether he or she admits or denies
the allegation, and note the response in the record (Thathi v
R [1983] KLR 354). If the offender denies a previous
conviction, the prosecution must prove the conviction by
any of the methods set out in section 142 of the CPC. In
addition to proof of the conviction, the offender has to be
identified as the same person who was convicted. This is
usually done through fingerprint analysis. If a fingerprint
identification is made by the person who took the
fingerprints of the offender, it is prima facie evidence of the
facts set out in the prior conviction. For the prosecution to
prove the existence of a conviction outside Kenya, it must
provide a certificate of a police officer in the country of
conviction, a copy of the sentence or order of conviction,
the fingerprints or photographs of the person convicted, and
evidence that the fingerprints are those of the offender.
The Convicted Person

102. After submissions from the prosecutor, the convicted

person should be given an opportunity to deny or qualify
the information presented and to state additional facts in
mitigation. When the offender denies or disputes something
alleged by the prosecution, the court should conduct a
hearing to determine the truth of the allegation. The
prosecution must produce evidence on oath, which should
be subjected to cross- examination. The offender may also
present evidence that contradicts that of the prosecution.

103. Mitigation enables the offender to submit evidence that

may reduce the severity of the sentence. A non-exhaustive
list of mitigating circumstances is set out in the Sentencing
Policy Guidelines (para. 23.8, Sentencing Policy Guidelines).
The court may inquire into the facts relied upon by the
offender in mitigation.

104. The court should explain to the offender his or her

right to make a

statement or submit evidence in mitigation.

105. Under Article 133 of the Constitution, the President,

acting on the advice of the Advisory Committee on the
Power of Mercy, may pardon an offender, postpone the
execution of the punishment indefinitely or for a specified
period, substitute a less severe punishment for that
imposed, or remit whole or part of the sentence. Any
offender, even one sentenced to death, may petition the
President for mercy (s. 21(2) (b), Power of Mercy Act (POMA)).
The mitigation statement, as part of the court record, may
be valuable when considering whether to exercise the
prerogative of mercy. It may also be relevant in an appeal at
which the conviction for a capital offence may be reduced
to a non-capital offence. In Joseph Kaberia Kahinga & 11
Others v Attorney-General (High Court at Nairobi Petition
No. 618 of 2010) the court held that
 mitigation is linked to the right to an appeal or review in a
higher court as the mitigating statements give the appeal
court a holistic view of the case.

The Victim

106. Courts should allow victims to express their views before

any decision that affects them, such as sentencing, is made
(ss. 4(2)(b) & 9(2)(b), VPA; para. 22.29, Sentencing Policy
Guidelines). Victims are specifically entitled to submit
information for consideration during sentencing (s.
20(1)(b), VPA). Victims can submit their views and concerns
in person or through a legal representative (s. 9(3), VPA).

107. Victim impact statements may also be submitted and

considered at sentencing (s. 12(1), VPA). These are
statements that inform the court of the harm suffered by
the victims as a result of the offence (s. 329A, CPC). The
court is allowed to receive such statements if it considers
them appropriate (para. 22.28, Sentencing Policy
Guidelines). Victim impact statements are not mandatory
and must not be received or considered by the court if the
victim objects (s. 329(d), CPC).

V. Determination of the Sentence

108. The Sentencing Policy Guidelines require courts to take

a two-step approach to determining the sentence (pg. 5).
First, the court must decide whether a custodial or non-
custodial sentence is appropriate. Custodial sentences
should be reserved for instances when the objectives
of sentencing would not be achieved through non-custodial
sentences. Paragraph 7.19 of the Sentencing Policy
Guidelines sets out the considerations to be taken into
account when deciding whether to impose a custodial or a
non-custodial sentence
109. Second, within the category of custodial or non-custodial
sentence, the court must determine the length of the
custodial sentence, or the type and duration of the non-
custodial sentence and the conditions that will accompany
it. This decision involves a balancing of mitigating and
aggravating factors as detailed in paragraph 23.9 of the
Sentencing Policy Guidelines.

VI. Sentencing Offenders Found ‘Guilty but Insane’

110. If a court finds that an accused is guilty of the act or

omission alleged but was insane at the time the offence
occurred, the court must proceed as follows:

i) Order the offender to be held in custody in such place

and manner

it so directs (s. 166(2), CPC), and

ii) Report the case to the President for an order of

commitment

(s. 166(2), CPC)

111. The accused is then detained in a ‘mental hospital, prison or

other suitable place of safe custody,’ as ordered by the
President (s. 166(3), CPC). Courts have found difficulty with
this provision, as later paragraphs show.

112. Three years after the order of detention, the officer in

charge of the designated place of custody is required to write
a report on the condition, history, and circumstances of the
detained person for consideration by the President through
the Cabinet Secretary responsible for matters relating to
correctional services. Subsequently, a report is required
every two years (s. 166(4), CPC). The report provides
information necessary to determine whether to discharge or
require the detained person to remain under supervision (s.
166(5), CPC). While not required by law, it is good practice
for the court to set a mention date for the case within a year
of the detention order to monitor the progress of the case.
113. In R v Samson Otieno Munyoro (High Court at Kisumu
Criminal Case No. 6 of 2011 (Unreported)), the trial court
raised concerns about the constitutionality of section 166 of
the CPC and requested further briefing on the matter.
Similarly, as noted above, decisions in B K J v R (High Court
at Meru Criminal Appeal No. 16 of 2015) and Hassan
Hussein Yusuf v R (High Court at Meru Criminal Appeal No.
59 of 2014), have held that detention at the President’s
pleasure under section 167 of the CPC is unconstitutional.
In H M v R (High Court Meru HCCRA No. 17 of

2017) the court held that an indefinite detention, possibly

longer than the minimum sentence for the offence with
which the accused was charged, was both excessive and an
infringement of dignity. The sentence was reduced to one of
time served. A similar decision was reached in Joseph
Melikino Katuta v R ([2017] eKLR High Court at Voi Criminal
Appeal No. 12 of 2016).

Sentencing Offenders Who Cannot Understand Proceedings

114. Section 167 of the CPC stipulates a sentence for an

offender who is not insane but cannot be made to
understand the proceedings, and against whom there is
enough evidence to convict. Such an offender is detained at
the President’s pleasure. This indeterminate detention was
however held to be unconstitutional in B K J v R (High Court
at Meru Criminal Appeal No. 16 of 2015) and Hassan
Hussein Yusuf v R (High Court at Meru Criminal Appeal No.
59 of 2014).
 VII. Determining Orders for Children

115. For children found guilty in the Children’s Court, the word
‘sentence’ must not be used in referring to orders made (s.
189, CA). The paramount consideration by the court must
be the best interests of the child (art. 53(2), CoK; s. 4(2),
CA; para. 20.13, Sentencing Policy Guidelines).
 The overall objectives of orders for children are reformation,
social integration, and restorative justice (para. 20.10,
Sentencing Policy Guidelines).

116. The orders appropriate for children found guilty of a crime

are set out in section 191 of the Children Act (Mwata
Mwachinga Mwazige v R Court of Appeal at Mombasa
Criminal Appeal No. 377 of 2012). Section

191(1)(l) gives the court the discretion to make any other

lawful order it

deems
fit.

117. The following orders must never be imposed upon

children:

i) Imprisonment (s. 190(1),

CA), or

ii) Death Penalty (s. 190(2), CA; Peter Nakale Lugulai

v R High

Court at Nakuru Criminal Appeal No. 363

of 2002).

118. Children under the age of ten years must not be sent to
rehabilitation schools (s. 190(3), CA). Courts should only
use custodial orders as a matter of last resort (art. 53(1)(f),
CoK; para. 20.11, Sentencing Policy Guidelines).
 VIII. Sentencing Adults Who Committed Offences While
Minors

119. When sentencing people who committed offences while

they were minors, courts must consider that fact. Since the
offence was committed while the offender was a minor, the
penal sanction is a response to conduct of the offender when
a child. The penal sanction imposed must therefore not be
the same as what would have been imposed had the offence
been committed by an adult.

120. While some of the sentences in section 191 of the Children

Act cannot be imposed upon an adult, the court’s decision
should be consistent with the spirit of sections 190 and 191
of the Children Act. These sections focus on rehabilitation
and embrace aspects of restorative justice, such as
compensation and counselling.
121. Section 25(2) of the Penal Code, which requires that
an offender convicted of a capital offence while a child be
detained at the President’s pleasure, was declared
unconstitutional by the High Court (A O & 6

Others v Attorney-General & Another High Court at Nairobi

Petition No.

570 of
2015).

IX. Sentencing Sexual Offenders

122. The Sexual Offences Act provides mandatory minimum

sentences for most of the offences. If the statute requires
the imposition of a mandatory minimum, the court does not
have discretion and must mete out the prescribed sentence
(para. 7.17, Sentencing Policy Guidelines; David Kundu
Simiyu v R Court of Appeal at Eldoret Criminal Appeal No.
8 of 2008). However in Francis Karioki Muruatetu & Another
v R Supreme Court Petition No. 15 & 16 of 2015 the Supreme
Court decried the mandatory nature of the death sentence
for the offence of murder because it denied the courts their
discretion in sentencing. A similar argument may be raised
in regard to minimum sentences

123. For some offences under the Sexual Offences Act,

the sentence is determined by the age of the victim.
Evidence of the age of the victim must therefore be
adduced (DWM v R Court of Appeal at Nyeri Criminal Appeal
No. 12 of 2014). A birth certificate, school documents, a
 baptismal card, or similar record, may be admitted to
prove age (r.

4, Sexual Offences Rules of Court). In the absence of

documentary evidence, other evidence may be provided. A
medical assessment may also be sought.

124. If the age of a victim differs from the age requirements of

the charged offence, the court can substitute the charged
offence for an offence that reflects the proven age of the
victim, and then convict for that offence.
 The substitution can only be for a lesser and cognate
offence (s. 179, CPC; Francis Kahindi Mwaiha v R Court
of Appeal at Mombasa Criminal Appeal No. 121 of 2014).

Further, if a person is charged with defiling a girl under

fourteen years under the Criminal Procedure Code, and the
court finds the person not guilty of that offence but that
there is sufficient evidence to find him guilty of an offence
under the Sexual Offences Act, the court can convict the
person of the latter offence (s. 186, CPC). Before doing this,
however, it must be proven that the victim was under the
age of fourteen.

X. Sentencing Categories of Offenders Requiring

Further

Consideratio
n

When considering custodial sentences or community service

orders for offenders who are elderly, terminally ill, or who
have disabilities, the court should take into account the
state of the offender and the proposed sentence to ensure
that the sentence does not amount to inhuman treatment
(para. 20.25, Sentencing Policy Guidelines).

When sentencing female offenders, the court should also

take into account gender-related factors such as caretaking
obligations, whether they are pregnant, or lactating (paras.
20.39-20.40, Sentencing Policy Guidelines).
 XI.
Costs

The court has the discretion to order a person convicted of

an offence to pay reasonable costs to the prosecutor,
whether private or public, in addition to any penalty
imposed (s. 171(1), CPC). Under section 175(1) of the CPC,
the court may also order that all or part of any fine be used
to cover expenses incurred in the prosecution of the case.
 Further, the court has a discretion to order a private
prosecutor to pay reasonable costs to an accused person
who has been acquitted or discharged (s. 171(2), CPC). The
costs awarded should not exceed twenty thousand
shillings for matters before the High Court (s. 171(2) (i),
CPC). In subordinate courts, the limit for awarding costs is
ten thousand shillings (s. 171(2)(i), CPC). However, costs
must not be imposed against a private prosecutor if the
court considers that there were reasonable grounds for
prosecuting (s. 171(2), CPC).

The costs awarded must be stated clearly (s. 174(1), CPC). In

Katuva

Munyao v Edward Jacob (High Court at Nairobi Criminal

Revision No.

42 of 1982), the appellate court set aside the order for

costs because the trial court did not indicate the actual
amount awarded.

Should a party fail to pay costs awarded, the court may

invoke the provisions on distress on movable or immovable
property procedure in section 334 of the CPC (s. 174(2),
CPC). In default of distress, the court may impose a sentence
adhering to the scale set out in section 28 of the Penal Code
(s. 174(2), CPC). The sentence in default of payment of
costs must never exceed three months (s. 174(2), CPC).