Criminal Edited Final

KENYA SCHOOL OF LAW
ADVOCATES
TRAINING PROGRAMME(ATP)
CLASS A, FIRM 12
ATP 101: CRIMINAL LITIGATION

PROJECT WORK FOR ACADEMIC YEAR
2021/2022
PRESENTED TO: DR. OMOSA MOGAMBI
Tuesday, 26th October, 2021

DECLARATION
The undersigned, being Class A Firm 12 Members declare that this project is our original work
and a collective effort by the firm members listed below, in fulfilment of the requirements for the
Probate and Administration course of the Advocates Training Program and that this research
project has never been published and/or submitted for any other award to any university or
institution of higher learning.
NO STUDENT’S NAME REGISTRATION CONTACTS SIGNATURE

NO.
1 NYAKWEBA WENDY 20210235 0719820046

MAGOMA
2 MITEI KIPKORIR TONY 20210294 0708063571
3 WANGO ERIC 20211272 0792792911

WAMBUGU
4 WAMBUI JULIUS 20210584 0711933895
5 MUSINGO LENA 20211329 0724961486
6 KAHIGA LYDIA 20211082 0729990325
7 OMBEWA TRIZAH 20210288 0727498903

ATIENO
8 CAREN UNITY 20211344 0703576140
9 NYAGAKA HESBON 20211600 0716644988

MATOKE
10 KIPKEMBOI VICTOR 20211523 0714830911
11 MURUNGA VERAH 20211638 0706641553 DEFERRED
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ACKNOWLEDGEMENT
We, Class A Firm 12 members would like to acknowledge the Lord God Almighty who has
given us strength, good health and perseverance to do this work. To Him we give all the Glory.
We further extend our gratitude to our lecturer Dr. Omosa Mogambi Ntabo for his motivation,
guidance and encouragement during the course of carrying out the project work.
Finally, we appreciate the effort and dedication of our firm while working together as a team to
produce this project paper..
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TABLE OF CONTENTS
i
Acknowledgment…………………...…………………………………………………….……….ii
Table of contents…………………………………..……………………………………….…….iii
List of laws………………………………………………………………………………..………v
List of cases…………………………………………………………...………………………….vi
List of abbreviations…………………………..……………………...………………………….vii
CHAPTER 1 1
1.0 INTRODUCTION 1
1.1 BACKGROUND OF SENTENCING STRUCTURE IN KENYA 2
1.2 UNIFORMITY AND VARIATION OF SENTENCES 3
1.3 FACTORS THAT LEAD TO VARIATION OF SENTENCING 4
1.3.1 Discretionary Power of the Court. 4
1.3.2 Mitigating Factors. 4
1.3.3 Victim Impact Statement. 5
1.3.4 Other Factors Considered by the Court. 5
1.4 Advantages of Variation in Sentencing 5
1.5 Disadvantages of Variation of Sentencing 6
CHAPTER 2 7
2.0 LEGAL FRAMEWORK OF SENTENCING IN KENYA 7
2.1 Introduction 7
2.2 Legal Framework on Sentencing in Kenya. 7
2.2.1 The Penal Code CAP 63. 8
2.2.2 The Sexual Offences Act. 9
2.2.3 Sentencing Policy Guidelines, 2016. 9
2.3 APPLICATION OF UNIFORMITY OF SENTENCING IN KENYA. 10
2.3.1 Proportionality. 10
2.3.2 Inclusiveness. 11
2.3.3 Equality and Uniformity. 11
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2.4 CRITIQUE ON THE EFFECTIVENESS OF THE KENYAN SENTENCING
GUIDELINES 12
2.4.1 Matters on Imprisonment. 12
2.5 SETBACKS TO UNIFORMITY OF SENTENCING IN KENYA 13
2.5.1 Inadequate accountability and transparency of judicial officers. 13
2.5.2 Judges Undermining Minimum sentencing. 14
2.5.3 Ambiguity in Legislation. 14
2.5.4 The lack of a Sentencing Commission/Committee. 15
CHAPTER 3 16
3.0 COMPARATIVE STUDY 16
3.1 ENGLAND AND WALES. 16
3.2 THE SENTENCING FRAMEWORK FOR ENGLAND & WALES 16
3.2.1 Statutory Framework. 16
3.2.1.1 The Sentencing Act 2020. 16
3.2.1.2 Sentencing Council Guidelines. 17
3.3 Institutional Framework 18
3.3.1The Sentencing Council. 18
3.3.2 The State of England and Wales on achievement of Uniformity of Sentencing. 18
CHAPTER 4 20
4.0 CONCLUSION. 20
4.1 RECOMMENDATIONS. 20
BIBLIOGRAPHY 22
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LIST OF LAWS
Laws of Kenya
Constitution of Kenya 2010.
Criminal Procedure Code Cap 75.
Sentencing Policy Guidelines 2016.
Penal Code Cap 63.
Sexual Offences Act No 3 of 2006.
Community Service Orders Act no. 10 of 1998.
Security Laws (Amendment) Act no 19 of 2014.
Foreign Laws (United Kingdom)

Coroners and Justice Act 2009
LIST OF CASES
Caroline Majabu Auma v Republic Criminal Appeal No. 65 of 2014 [2014] eKLR
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Francis Karioko Muruatetu & Another v Republic [2017] eKLR
Fredrick Odhiambo Ogutu v Republic [2016] eKLR
Godfrey Ngotho Mutiso v Republic [2010] eKLR
Jared Koita Injiri v Republic [2019] eKLR
John Shikoli Atsunzi v Republic [2016] eKLR
Joseph Kaberia Kahinga and Others v The Attorney- General, Constitutional Petition No. 680 of
2010, [2016] eKLR
Joseph Njuguna Mwaura and others v Republic [2013] eKLR
Kennedy Indiema Omuse v Republic Criminal Appeal 344 of 2006.
Kennedy Munga v Republic, [2011] eKLR
Mohamud Omar Mohamed v Republic [2020] eKLR
Munyika Beja & another v Republic (2011) eKLR
Nicholas Mukila Ndetei v Republic [2019] eKLR
Otieno v Republic [1984] eKLR
Republic v Malakwen Arap Kogo [1933] 15 KLR 115
Republic v Jagani and another [2001] KLR 590
Republic v Robert Kinara [2012] eKLR
Republic v Philip Muthiani Kathiwa [2015] e KLR
LIST OF ABBREVIATIONS
COK Constitution of Kenya
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CPC Criminal Procedure Code
CPC Criminal Procedure Code
n Note
PC Penal Code
s Section
SOA Sexual Offences Act
SPGs Sentencing Policy Guidelines
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CHAPTER 1
1.0 INTRODUCTION
Sentencing is the process by which a penalty, or confinement is imposed on a person for their
acts or omissions as stipulated in the penal laws.1 It is an event that follows a verdict after an
accused is convicted in a criminal trial.2 The primary goals of sentencing are punishment,
deterrence, incapacitation and rehabilitation. A sentence could be any combination of probation,
fine, restitution, imprisonment and community service delivered as provided for in the Penal
Code.3 In John Shikoli Atsunzi v Republic, 4 Justice Mwita, held that the objective of sentencing
should be to deter repeat offenders and to reform the said offenders.
Similarly, the Court observed in Republic v Jagani and another5, that the purpose of a sentence
is to deter unlawful behavior as a means to stop the offender from repeating the offence and to
separate offenders from the society. The Court further stated that, sentencing assists in
rehabilitation of offenders and retribution by providing for compensation for harm and damage
done to victims and to society while promoting a sense of criminal responsibility in offenders.
Notably, in exercising the sentencing mandate, courts are guided by the principles of;
proportionality, equality and impartiality, accountability and transparency, inclusiveness, respect
for human rights and fundamental freedoms as well as the adherence to domestic and
international law.6 In Kennedy Indiema Omuse v Republic,7 the Court of Appeal held that the
punitive sentence imposed on an accused person must be proportionate with the moral
blameworthiness of the offender. Additionally, the Court of Appeal stated that the trial Court
must first look at the unique facts and circumstances of the case before arriving at a particular
sentence. The process of arriving at an appropriate sentence is not a matter left to the discretion
of the court, rather it is required that before passing sentence or making an order against an
accused person, the court should receive such evidence as it deems fit in order to inform itself as
to the sentence that is to be imposed.8
1 Bryan Garner and Henry Campbell Black's law dictionary (11th edn, Thomson Reuters) 1810.
2 Sentencing Policy Guidelines 2016, para1(1.1).
3 Penal Code Cap 63 Laws of Kenya, s 24.
4 (2016) eKLR.
5 (2001) eKLR 590.
6 The Criminal Procedure Bench Book 2018, para 22(i-vi).
7 Criminal Appeal 344 of 2006.
8 The Criminal Procedure Code Cap 75, s 216.
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1.1 BACKGROUND OF SENTENCING STRUCTURE IN KENYA
The Courts in Kenya have traditionally enjoyed discretion in sentencing to give either maximum
or minimum sentences prescribed by the Laws of Kenya.9 In Republic v Robert Kinara,10 the
accused was sentenced to seven (7) years imprisonment for stealing six kilograms of maize
despite stating in his mitigation statement that he was only 17 years old. Ironically, a few days
after Kinara’s sentencing, an accused person in the multi-billion Anglo-Leasing Scandal was
fined Kenya shillings three (3) million and given a non-custodial sentence after being found
guilty of corruption related charges.11 In 2006, Professor Lumumba made a recommendation for
establishment of an authority to address incoherency in sentencing guidelines through
monitoring and implementation of the Sentencing Policy Guidelines in Kenya but the
recommendations were never implemented.12
The incoherence in the sentencing structure has led to different concerns such as; divergence of
sentences for similar offences committed under similar circumstances, unduly or excessive
punishments, mandatory sentences that result in injustices. 13 Retired Chief Justice Willy
Mutunga, acknowledged that sentencing has been a problem in the Judiciary in exercising its
mandate.14 In 2014, he formed a task force on Sentencing Policy Guidelines to review past
sentencing patterns, come up with a report and make recommendations on how to improve the
sentencing structure in Kenya.15 The task force recommended that the Judiciary Training Institute
is to train judicial officers on the application of the Sentencing Policy Guidelines. 16 The issue of
implementation became problematic as the recommendations by the taskforce were not binding
since it was an ad hoc.
The former Chief Justice David Maraga, adopted the report by the taskforce where presently
judicial officers employ the SPG in rendering decisions. It is also important to note that there are
still notable disparities between the SPG and various statutes. For example, the Guidelines give
9 PC ibid (n3), s 24.
10 [2012] eKLR.
11 Mutiga M ‘Justice System cries for equality’ Daily Nation 13th October 2012.
12 Lumumba PLO, Sentencing in Kenya: A search for the Judiciary’s prevailing policy and philosophy and the case
for reform’ LSK journal, 2006, 117.
13 Kinyanjui S, ‘Sentencing in Kenya: Practice, Trends and Perception and Judicial Discretion’, (2011) Legal
Resources Foundation.
14 Republic of Kenya Judiciary 2015, Report of the judicial task force on sentencing.
15 Ochieng A, ‘CJ Mutunga to launch sentencing guidelines for judges and magistrates’ Daily Nation, 23rd January
2016.
16 SPG ibid (n3), Para 28.1.
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discretion to courts to impose a varying sentence other than the maximum or minimum sentence
prescribed by statutes such as the Sexual Offences Act.17 Lack of uniformity has contributed to a
poor image of the Judiciary described by many as corrupt and ineffective.
1.2 UNIFORMITY AND VARIATION OF SENTENCES

Uniformity of sentences refers to a criminal justice system which requires that similar offences
committed under similar circumstances, should attract similar sanctions.18 Thus, uniformity in
sentencing does not encourage alienation from the laws governing sentencing rather requiring
judicial officers to give penalties in accordance with the law. It considers the relevant factors
such as mitigating and aggravating factors to avoid disparity in variation of sentencing. In
Republic v Philip Muthiani Kathiwa,19 Justice Muriithi held that it is accepted practice that same
offences should attract similar consistent penalties.
On the other hand, variation in the sentencing process arises where a judicial officer exercises
jurisdiction and discretion over a matter based on their assessment of the facts of the case and
presentation of evidence. Thus, a similar case with different facts and characteristics can draw a
different sanction. In Kennedy Munga v Republic,20 the accused was found guilty of defilement,
and while the Sexual Offences Act21 provides a sentence of imprisonment the offender was fined
and additionally committed to probation. In contrast, in Mohamud Omar Mohamed v Republic
22
an accused person was found guilty of the same offence but was sentenced to ten (10) years
imprisonment.
1.3 FACTORS THAT LEAD TO VARIATION OF SENTENCING

1.3.1 Discretionary Power of the Court
Discretionary power implies that the judicial officer has the right to determine the nature of
sentences to pass to a convicted offender in relation to offences that do not attract mandatory
sentences. While some courts have enforced custodial sentences for offences attracting the death
penalty, others have adhered to mandatory stipulations of the statute. 23 For instance, there have
17 Sexual Offences Act No. 6 of 2006.
18 SPG ibid (n3), 2016, s 3.2.
19Republic v Philip Muthiani Kathiwa [2015] eKLR.
20Kennedy Munga v Republic [2011]eKLR
21 SOA (n17), s 8.
22Mohamud Omar Mohamed v Republic [2020]eKLR
23 Kameri-Mbote and Akech M, Kenya: Justice Sector and the Rule of Law, the Open Society Initiative for Eastern
Africa, Nairobi, 2011.
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been divergent views by courts on the mandatory nature of the death penalty. In Joseph
Njuguna Mwaura and others v Republic,24 the court found that courts do not have sentencing
discretion in respect to offences that attract the death penalty. However, in Godfrey Ngotho
Mutiso v Republic25 the Court of Appeal, after analyzing and interpreting the law, declared the
mandatory death sentence unconstitutional. The Court stated that there have been divergent
views.
1.3.2 Mitigating Factors.

Once the court has rendered its judgment, an accused person is given an opportunity to address
the court and mitigate their case.26 Mitigating factors can be defined as facts or circumstances
that might lower the severity of a potential sentence. In essence, mitigating factors include
factors such as mental incapacity, a possibility that the offender shall reform and rehabilitation
from alcohol dependency that might have contributed to committing the offence. In Fredrick
Odhiambo Ogutu v Republic,27 the court noted that it is important to consider both mitigating
factors and aggravating circumstances as stated in paragraph 23 of the SPG. Thus, the trial court
was faulted for failing to apply the same.
In Edwin Otieno Odhiambo v Republic,28 the Court of Appeal stated if a court failed to take into
account the mitigation of the accused, the chances of failing to come up with an a fair sentence
were higher than where the court has considered mitigating factors. In Joseph Kaberia Kahinga
and Others v The Attorney General,29it was held that in recognition of the accused's rights to fair
trial the court ought to consider all mitigating factors and the Sentencing Policy Guideline.
1.3.3 Victim Impact Statement.

A victim impact statement refers to particulars of the personal harm suffered by the victim
directly or his immediate family as a result of the offence. The magnitude of the offence can be a
cause of variation of sentencing where the offence led to bodily harm or death.30
24 Joseph Njuguna Mwaura and others v Republic [2013] eKLR

25 C.A.C.A No. 17 0f 2008.
26 Inciardi, J.A. (2002) Criminal Justice (7th Edition), New York: Oxford University Press p440.
27 Fredrick Odhiambo Ogutu v Republic [2016] eKLR
28 Criminal Appeal 359 of 2006.
29 Joseph Kaberia Kahinga and Others v The Attorney- General Constitutional Petition No. 680 of 2010, [2016]
eKLR
30 Kiage P. Essentials of Criminal Procedure.
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1.3.4 Other Factors Considered by the Court.
In Republic v Malakwen Arap Kogo,31 it was held that there are a number of factors which
determine where in the scale of sentencing an offence lies. These factors include the following;
i. Intrinsic value of the subject matter;
ii. Antecedents of the accused;
iii. Age of the accused;
iv. Prevalence of the particular crime in the neighborhood
The Court might also consider whether the accused is a first time offender and usually impose a
lesser sentence as opposed to a repeat offender as was held in Otieno v Republic.32
1.4 Advantages of Variation in Sentencing

Variation of Sentencing grants the court an opportunity to appreciate the different facts that may
lead to the commission of a crime. In Godfrey Ngotho Mutiso v Republic, 33 the Court of Appeal
appreciated that a uniform sentence deprives the courts from considering mitigating factors.
Uniform sentencing fails to recognize that sometimes there may be unequal participation in a
crime which results in different charges and sentences on the accused persons.
In the famous Muruatetu case,34 the Supreme Court held that uniformity of the death sentence as
was provided in Section 204 of the Penal Code, deprived the court the use of judicial discretion
in the matter of life and death of the accused. Such a sentence can only be regarded as harsh,
unjust and unfair. After listening to mitigating factors the court might decide to use its discretion
to vary a sentence in adherence to constitutional requirements on the absolute right of fair trial. 35
Variation of sentences thus leads to upholding of the rights of the accused person.
If a court does not have discretion to make its own sentence, it is possible to overlook some
personal history and the circumstances of the offender which may mean that the sentence may be
wholly disproportionate to the criminal liability of the accused.36
31 Republic v Malakwen Arap Kogo 1933] 15 KLR 115

32 Otieno v Republic [1984] eKLR.
33 Godfrey Ngotho Mutiso v Republic Criminal Appeal No. 17 of 2008.
34Francis Karioko & Another v Republic, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015.
35 Constitution of Kenya 2010, art 25.
36PC ibid (n3), P 53.
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1.5 Disadvantages of Variation of Sentencing
Variation of sentencing may lead to interference among the three Arms of Government;
Legislature, Executive and Judiciary. The doctrine of separation of powers provides that only the
legislature has the power to make laws.37 The Judiciary is mandated with the function of the
interpretation of the law, therefore they ought not to encroach upon the territory of the legislature
by exercising its discretion on sentencing.
Variation of sentencing may lead to inequality penalties administered. For instance, in Joseph
Njuguna Mwaura and others v Republic,38 the court found that courts do not have discretion in
respect to offences that attract death sentences and sentenced the accused to death. However the
Court of Appeal in Godfrey Ngotho Mutiso v Republic39 held that mandatory death sentence is
unconstitutional. Here the sentencing approaches taken by the two courts led to inequality of
sentencing.
CHAPTER 2
2.0 LEGAL FRAMEWORK OF SENTENCING IN KENYA
2.1 Introduction
Once a suspected individual is arrested and is accused of committing an offence, he or she may
plead guilty or not guilty where if a plea of not guilty is entered trial proceedings will commence.
A competent court with jurisdiction will then hear the matter and being guided by the oral
witness testimonies, written submissions and admissible material evidence being weighed. 40
Consequently, the court will issue a sentence according to the prescribed penalty or punishment
as stipulated by legislation. The same legislations have granted the court unlimited discretionary
powers to impose the maximum or minimum sentence that is prescribed by the written laws of
Kenya and other binding laws. As an effect of the discretion, variation of sentences has been
achieved where convicted persons who have committed similar crimes under similar transactions
end up being granted different sentences from one court to another while in separate
geographical jurisdictions.

38Joseph Njuguna Mwaura and others v Republic, [2013] eKLR
39 Joseph Kaberia Kahinga and Others v The Attorney- General Constitutional Petition No. 680 of 2010, [2016]
eKLR
40 CPC (n8), s 329.
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2.2 Legal Framework on Sentencing in Kenya.
The Constitution of Kenya 2010 governs and binds all persons, state organs including public and
state officers.41 The Constitution recognizes that accused persons have rights such as right to fair
trial42, right to pay fines or not be imprisoned for offences whose penalty does not exceed six
months.43 Additionally, legislation such as the Penal Code44, the Sexual Offences Act45, the
Probation of Offenders Act,46 the Criminal Procedure Code47, give judicial officers guidance on
how to pass a sentence to convicted persons.
2.2.1 The Penal Code CAP 63
The Penal Code prescribes punishments that the court may impose on various legislated
offences. The penalties availed are; imprisonment, capital punishment and other non-custodial
sentences such as fines, forfeiture, and payment of compensation, to ensure maintenance of
peace and good behavior and recognizance.48
Some offences created by the Penal Code dictate the uniformity of sentencing such as the
offence of attempted robbery whose sentence is capped at seven years therefore not setting a
minimum or maximum sentence for it.49 Other provisions in the Penal Code give a minimum
and/or maximum sentence therefore giving the judge a range of sentences to choose from which
brings about variation in sentencing for the same offence. Section 89 of the Penal Code50 For
example, providing possession of firearms without reasonable excuse being an offence that can
attract a penalty of imprisonment of not less than seven years and not more than fifteen years.
Section 308(1) of the Penal Code51 stipulates that any person found armed with a dangerous or
offensive weapon with intent to committing a felony will attract the penalty of imprisonment of

44 ibid (n3).
45 Sexual Offences Act No. 3 of 2006.
46 Penal Code, s 64.
47 ibid (n3), s 75.
51 Penal Code, s 308(1)
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at least seven years imprisonment and not exceeding fifteen years. Additionally, Section 251A of
the Penal Code52 dictates that an offence of insulting someone’s modesty by forcible stripping
them attracts a penalty of not less than 10 years. Nonetheless, Section 393 of the Penal Code53
provides for the offence of Conspiracy to commit felony where upon conviction the court may
apply a lesser imprisonment sentence hence they choose a minimum sentence. Section 35 of the
Penal Code54 grants a judicial officer discretion to discharge an accused if they are of the opinion
that sentencing the accused is inexpedient after consideration to the nature of the offence as well
as the character of the offender. Further, if need be the Judicial officer may require a Probation’s
Officer’s report before discharging the offender but this is only on condition that he should not
commit any offences within the next twelve months after the order came into force. The Penal
Code therefore, having provided minimum, maximum or mandatory sentences to the stipulated
offences end up bringing about variation of sentencing.
2.2.2 The Sexual Offences Act

The child’s best interest being paramount,55 the age of the victim is a principal consideration
when issuing out the most preferred sentence particularly the offence of defilement. 56 Sections 8
(3) and 8 (4) of Sexual Offences Act provides for variation of sentencing on the offence of
defilement of a child aged between 12-15 years and 16-18 years where it imposes a minimum
sentence of not less than 20 and 15 years respectively. 57 Thus the provision does not give clear
guidelines on how a judicial officer may reach a specific sentence where the Act of Parliament
creating the offence stipulates a minimum and/or maximum sentence. Therefore, this leads to
the creation of varied sentences to similar offences performed in different localities, even where
the offence was committed under similar circumstances. Our courts have tried to strike a balance
by proposing that similar offences should carry similar sentences to foster consistent
sentencing.58
52 Penal Code, s 251 A.

55Constitution of Kenya, art. 53(2)
56 SOA (n17), s 8.
57 SOA (n17), s 8 (3) and 8 (4).
58 Republic v Philip Muthiani Kathiwa [2015] e KLR
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2.2.3 Sentencing Policy Guidelines, 2016
The Sentencing Policy Guidelines 2016 were formulated to address the inconsistency in
sentencing and assist judicial officers to achieve uniformity of sentences. The SPG is a
framework within which courts can exercise their discretion during sentencing in a manner
which is objective, impartial, accountable, transparent and which would promote consistency and
uniformity in the sentences imposed.59 The Guideline takes note of the fact that wide discretion
erodes uniformity and certainty with matters on sentencing. Further, variation in sentencing
causes inconsistency in sentences issued upon different offenders with similar offences under
similar circumstances.60 The Policy provides direction on how aggravating and mitigating factors
can be considered during sentencing especially when a Judge has discretion to vary a sentence.61
2.3 APPLICATION OF UNIFORMITY OF SENTENCING IN KENYA.

To ensure sound sentencing, the SPG have introduced principles that govern uniformity in
sentencing:
2.3.1 Proportionality
Punishments must be commensurate with criminal conduct and must be neither higher nor lower
than what is justifiable given the gravity of a crime. In determining the proportionality of the
sentence, one considers the actual, expected consequences of the crime, as well as the
perpetrator's culpability.62
The Constitution of Kenya, 2010 recognizes the need for judicial officers to determine disputes
fairly with adherence to appropriate legal guidelines.63 In other words, the preferred punishment
should be proportional to the crime committed as held in the case of Caroline Majabu Auma v.
Republic64 where the appellate court stated that a sanction of one million fine and life
imprisonment was excessive punishment for a criminal offence of stealing Kshs.700/=. The court
found that the sentence was not proportionate to the crime committed.
59 SPG (n2), para. 2.1

60 Harrison Mbori, “Discreet Discretion and Moderate Moderation in Judicial Sentencing: A Commentary on
Kenya’s Sentencing Policy Guidelines, 2016” https://press.strathmore.edu/uploads/journals/strathmore-law-journal/
slj2017/Discreet%20discretion%20and%20moderate%20moderation%20in%20judicial%20sentencing.pdf>
accessed July 19, 2021
61 Sentencing Policy Guidelines 2016, para. 23.4
62 Sentencing Policy Guidelines 2016, para. 3.1
64 Criminal Appeal No. 65 of 2014 [2014] eKLR
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The Constitution of Kenya65 has domesticated the United Nations Standard Minimum Rules for
the Administration of Juvenile Justice (Beijing Rules) which recognize the principle of
proportionality when deciding on the punishment accorded to minors.66
65 Constitution of Kenya 2010, art 2(5)

66 Sentencing Policy Guidelines 2016
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2.3.2 Inclusiveness
The principle of inclusiveness requires that both the perpetrator and the victim must participate
in the sentencing in accordance with the law. This ensures that justice is not only done but seen
to be done, as well as participants accepting the outcome of the case irrespective of who wins or
loses. The Criminal Procedure Code provides that there is participation of all parties which
ensures transparency and accountability thus sound and effective sentencing. The court has the
power to receive and consider a victim impact statement 67 where in essence, victim impact
statement is vital in offences leaning on actual bodily harm or murder.68
The Constitution of Kenya, 2010 authoritatively mandates the Judiciary to promote and protect
the national values and principles and purpose of the Constitution. 69 One of the principles being
inclusivity70 was echoed in Munyika Beja & another v. Republic, 71where the court stated that
inclusiveness is a key ingredient of sentencing.
2.3.3 Equality and Uniformity.

The principle of equality and uniformity was applied in Republic v Philip Muthiani Kathiwa 72
where the accused had shot and killed the deceased using an arrow after the deceased hurt one
person and was threatening to hurt another using a Somali sword. The accused pleaded guilty
and was convicted but the court requested for a pre-sentencing report from the probation officer
to make a ruling on the sentence. The court found that the accused ought to get imprisoned for
three and half years. However, since he had been in remand for two and half years, the court
considered the time served and all the mitigating factors, and committed the accused to a non-
custodial sentence of one year.
In comparison to the case of Muoki v. Republic (1976-1980)73 where the deceased while acting
in self-defense and defense of others killed the deceased. He was imprisoned for three and half
years, less the period he had spent in remand. The court drew parallels between Kathiwa’s and
67 CPC (n8), s 329C.

68 CPC (n8), s 329B.
69 Constitution of Kenya 2010, art 159(2).
70 Constitution of Kenya 2010, art 10(2).
71 Munyika Beja & another v. Republic (2011) eKLR.
72 Republic v Philip Muthiani Kathiwa [2015] eKLR
73 Muoki v. Republic (1976-1980) eKLR 1337.
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Muoki’s case and concluded that the circumstances were similar, guided by precedent based on
closely related facts.74
2.4 CRITIQUE ON THE EFFECTIVENESS OF THE KENYAN SENTENCING

GUIDELINES
In the earlier discussion on the Sentencing Policy Guidelines (SPGs), the main goal for the task
force was to reduce disparities, promote proportionality, roll out suggestions and plan to curb
injustices in sentencing as well as reviewing sentencing patterns. According to Lumumba, he
avers that adoption of the SPGs came into force to try and balance proportionality in sentencing
by ensuring that offenders are accorded a fair and just punishment. 75 However the issue was that
the SPGs were ‘mere policies’ thus it meant that judges were not legally bound in determination
of sentences as they were more of an advisory to the judicial officers. Being that the SPGs were
more policy oriented, meant that they acted as a directive of the route the law ought to take in
future.76
2.4.1 Matters on imprisonment.

The SPGs give the courts discretion to impose a sentence that is shorter than that prescribed by
the relevant provisions in the statute, except where it provides for mandatory and minimum
sentences.77
As stated under the Penal Code, cumulative sentences should run consecutively unless the court
directs that they should run concurrently, for example in offences that emanate from a single
transaction.78 However, where the offences are committed in the course of multiple transactions
and there are multiple victims, the sentences should run consecutively. 79 Suffice to say, the SPGs
recognize that in determining the period of imprisonment, the court must take into account the
period the offender is in custody before the sentence is imposed. 80 A good example can be seen
where an accused person is convicted of a misdemeanor and had been placed in custody
74 Republic v Philip Muthiani Kathiwa [2015] eKLR

75 Sentencing Policy Guidelines 2016, para. 3.1-3.6.
76 Ochieng A, ‘CJ Mutunga to launch sentencing guidelines for judges and magistrates’ Daily Nation, 23 January,
2016.
77 PC ibid (n3), s 30, 36, 46, 53(1), 66A (1), 66A (2), 77(2), 96.
78 PC ibid (n3), s 37.
79 Sentencing Policy Guidelines 2016, para. 7.13.
80 Sentencing Policy Guidelines,2016, para. 7.10.
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throughout for a period equal or exceeding the maximum term of imprisonment provided for that
offence, then the offender ought to be discharged under section 35(1) of the Penal Code.81
Where the law provides for mandatory minimum sentences, then the court cannot impose a
sentence lower than what the Penal Code prescribes. 82 As a result, there are notable disparities in
the length of imprisonment of offenders committing the same offences in more or less similar
circumstances due to uncertainty and lack of uniformity. Thus, the court ought to strike a balance
between respecting the individuality of cases and achieving the legal systems aims of uniformity,
predictability and consistency in order to achieve justice.83
2.5 SETBACKS TO UNIFORMITY OF SENTENCING IN KENYA

The Sentencing Policy Guidelines does not impute that all convicts shall serve the same
sentence. It was aimed at establishing uniformity of sentencing subject to aggravating and
mitigating factors aimed at imposing a fair sentence. Despite the existence of this provision,
there still exists disparities in sentencing as shown below.
2.5.1 Inadequate accountability and transparency of judicial officers

All the considerations that either contribute or lead to administering a particular sentence should
be backed by the law and in accordance with the set Sentencing Policy Guidelines. 84 Evidently,
the legal framework on criminal sentencing does not provide an effective manner of ensuring
that the judicial officers are accountable for the sentences they impose on various offenders.
Consequently, the integrity of judicial officers has come into question especially in relation to
corruption claims.85 As such, it is an issue that needs to be revisited and the legislation should get
enacted to ensure accountability and integrity of judicial officers. For instance, by curbing a bit
of judicial officers’ discretionary powers by implementing a watchdog mechanism with
investigative powers on claims of lack of integrity of judicial officers.
81 Sentencing Policy Guidelines, 2016, para. 7.12.

82 Sentencing Policy Guidelines 2016, para. 7.17.
83Sentencing Policy Guidelines, 2016, para. 7.17.
84 Constitution of kenya 2010, art 73 (2) (d).
85 Okiri, F., Ngugi, L. and Wandayi, J. (2019) Strengthening Integrity & Preventing Corruption in the Judiciary in
Kenya. Beijing Law Review, 10.
Page | 13
2.5.2 Judges Undermining Minimum sentencing
The Sentencing Policy Guidelines of 2016 is not a legislation which can purport the realm of
enforceability like other legislations. Essentially, it is a mere guideline which a judge may
choose to ignore and invoke discretion while administering sentencing. Although the Sentencing
Policy recognizes the fact that minimum sentencing must be complied with, some courts do not
adhere strictly to the guidelines as was in Jared Koita Injiri vs. Republic. 86 In that case, the
subordinate court sentenced the appellant to imprisonment for life for the offence of
defilement.87Imprisonment for life is the minimum and mandatory sentence for defilement under
Section 8(2) of Sexual Offences Act no.3 of 2006. On appeal the court set aside the sentence and
substituted it with a sentence of 30 years. Substituting the imprisonment for life with a sentence
of 30 years resulted in disparity of sentence especially to the offenders sentenced before the
decision of Jared Koita Injiri case. The substitution resulted in ignoring the minimum sentence
hence leading to disparity in sentencing.88
2.5.3 Ambiguity in Legislation

Ambiguity in legislation leads to disparity in sentencing which undermines the uniformity in
sentencing. A classic example is seen in Section 3 of Community Service Orders Act 89 which
states the following under subsections 1 and 2(b):
(1) Where any person is convicted of an offence punishable with—
(2) (b) imprisonment for a term 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,
Subsection 2(b) is problematic in the sense that it contemplates a situation where a court may
determine a lesser sentence for an offence punishable to a term exceeding 3 years. It is very clear
that this section, if followed by judicial officers, shall result in different sentences for the same
offence. We have judicial officers who are driven by the school of thought of legal positivism 90
and will impose the 3 years sentence provided. Another Judicial officer may rely on the same
86 [2019] eKLR
87 SOA (n17), s 8(2).
88 Kama Muthoni, ‘No Minimum sentences for sex offenders, says top Court Judges’ Daily Nation (Kenya, 7th July
2021) p 8.
89 Community Service Orders Act No. 10 of 1998.
90 Hilaire McCoubrey & Nigel D. White, Text Book on Jurisprudence, (3rd Edition, Black Stone Press LTD), p39
Page | 14
provision to impose a lesser sentence than the required one. To curtail such provisions, it would
be prudent to amend the laws so as to have a clear sentencing law.91
2.5.4 The lack of a Sentencing Commission/Committee

As the human brain is undeniably developing, it means that more people are advancing in more
unethical or immoral behavior that led to performance of cognizable offences. Therefore, we
should leave room for the development of law on curbing and issuing punishment on possible
future criminal offences as the law is retrospective in nature. Remarkably, such developments
can be achieved through a commission/committee tasked with reviewing sentencing in relation to
the changing trends of crimes hence bringing uniformity in sentencing.
91 Law and Justice: The Case for Parliamentary Scrutiny, Inter-Parliamentary Union, Geneva, 2006, p88.
Page | 15
CHAPTER 3
3.0 COMPARATIVE STUDY

In this part of the paper, we seek to analyze the sentencing framework of England and Wales.
This is because their criminal justice system is well grappled with the issue of disparity in
sentencing and have tried to contain the situation by putting in place various systems to ensure
uniformity in sentencing.
3.1 ENGLAND AND WALES

Debates on the disparity in sentencing in England and Wales began in the 19th century. 92
Different treatment of offenders who had committed the same offense was evident and was
attributed to the fact that judges were fully enjoying their discretion without any limits. 93 At this
time, various suggestions on how to control this problem such as the establishment of a
sentencing commission, holding of sentencing conferences, appellate review of sentences, and
developing sentencing guidelines were envisaged.94 Appellate review was adopted since it
looked very promising, however, it turned out not to be as impactful as it appeared. 95 The other
suggestions such as the establishment of a sentencing commission and guidelines that had been
dropped were picked and frameworks were established to implement them.
3.2 THE SENTENCING FRAMEWORK FOR ENGLAND & WALES
3.2.1 Statutory Framework.

The sentencing system in England and Wales is governed by:
3.2.1.1 The Sentencing Act 2020

The Act was enforced in 2020 and the main aim of the Act was to consolidate procedural laws
for sentencing to provide a single reference point for courts. This was to unravel the complexity
of the sentencing laws that had been created by the existence of several documents containing
92 David Alfred Thomas, “Sentencing in England,” (1983) 42 Md. L. Rev 90.

93 ibid.
94 ibid.
95 Criminal Appeal Act, 1907. See also David Alfred Thomas, "Constraints on Judgment: the search for structured
discretion in sentencing," (1979) the University of Cambridge, Institute of Criminology.
Page | 16
sentencing laws that had been formulated to increase the efficiency in the sentencing process
over the years.
The Act creates a Sentencing Code that has provisions applied by Courts before and during
sentencing.96 It provides for powers that are exercisable before sentencing, the court procedure
when sentencing, the discretion of court has when sentencing. 97 The Code further contains
miscellaneous and general provisions about sentencing and its interpretation. 98 The Code
recognizes the sentencing guidelines issued by the Sentencing Council for England and Wales
under section 120 of the Coroners and Justice Act 2009 as definitive guidelines.99
3.2.1.2 Sentencing Council Guidelines

Sentencing guidelines were first introduced in England and Wales in 1970, these were developed
by the appellate Court and they have evolved, with several bodies being formed for their
development. Currently, the guidelines developed by the current Sentencing Council are in
operation. These guidelines set a guiding framework that governs judges on how to exercise their
discretion during sentencing and also factors the court should consider that may affect the
sentence. The guidelines are classified into two: sentencing guidelines for use in the magistrates'
court, which addresses significant offenses, and sentencing guidelines for use in the Crown
Court, which addresses a wide range of offenses.100
The reason for having the guidelines is to provide a wide range of sentences for the courts to
refer, in order to appropriately cover the various circumstances under which the same offense
may occur and ensure uniformity in sentencing. The guidelines provide a sequence of steps for
the courts to follow when sentencing an offender, while also considering the discretion of the
court. These steps guide the court on how to exercise its discretion in pursuit of uniformity in
sentencing.
96 The Sentencing Act 2020, pts 2 to 13.

97 ibid.
98 ibid.
99 ibid.
100 Sentencing Council, “About Sentencing Guidelines” (Sentencingcouncil.org.uk2017)
https://www.sentencingcouncil.org.uk/sentencing-and-the-council/about-sentencing-guidelines/ accessed 8 July
2021.
Page | 17
The Judge is required to refer to the guidelines but may also be forced to depart from them
resulting in a different sentence. In such a case, the reasons for such a sentence must be well
stated and justified.101
3.3 Institutional Framework

3.3.1The Sentencing Council
The Sentencing Council was established by the Coroners and Justice Act of 2009 replacing the
Sentencing Advisory Panel.102 The main function of the council is to promote transparency and
consistency in sentencing by developing sentencing guidelines that the courts should follow
during sentencing.103
The council is required to monitor the use and assess the impact of the guidelines. 104 The council
also conducts public awareness, where it educates the public about the sentencing practice in the
Magistrates’ and Crown Courts, unpacking existing myths on sentencing. 105 This helps the public
to gain confidence in the criminal justice system. Further, the council does annual reporting on
sentencing and non-sentencing factors.106
3.3.2 The State of England and Wales on achievement of Uniformity of Sentencing

The context of this question is whether England and Wales have achieved uniformity by
establishing a sentencing council and using sentencing guidelines in their sentencing process. We
appreciate that discretion of judicial officers is an important aspect in achieving the ends of
justice, however, we cannot shy from the fact that it is also the main cause of variation in
sentencing. Just like in Kenya, the main reason for developing sentencing guidelines in England
and Wales was to control how judicial officers exercise their discretion, without necessarily
feeling that it is restricted.107
101 The House of Commons, “Justice Committee Reports-2 July 2009” (Parliament.uk2021)
<https://publications.parliament.uk/pa/cm200809/cmselect/cmjust/cmjust.htm> accessed 8 July 2021.
102 The Coroners and Justice Act 2009.
103 ibid, s. 120-124.
104 ibid, s 128.
105 ibid, s 129.
106 ibid, s130-131.
107 Republic of Kenya ``Sentencing Policy Guidelines Republic of Kenya'' (2016). See also Sentencing Council,
“About Sentencing Guidelines,” (Sentencingcouncil.org.uk2017)
<https://www.sentencingcouncil.org.uk/sentencing-and-the-council/about-sentencing-guidelines/> accessed 8 July
2021.
Page | 18
England and Wales have still not achieved hundred percent uniformity however, the use of
sentencing guidelines in the sentencing process has shown improvements in consistency, with
unwarranted variability in sentencing continuously shrinking.108 For this noticeable change in the
sentencing process, there has been a constant review of the guidelines to increase consistency in
sentencing.109 The rationale for review is that at the first instant of creating guidelines, some case
elements faced or addressed by the court might not be contemplated. Considering the dynamic
nature of society, new considerable factors emerge that must be weighed up during the
sentencing process. The reviewing also looks into the problem of the applicability of the
guidelines as enacted.110
The Sentencing Council has also been instrumental in achieving consistency. This is by
conducting an impact assessment of the guidelines and continuously reviewing them to ensure
they achieve their purpose.
As stated earlier, England and Wales might not have fully achieved uniformity of sentencing but
are a step ahead. We conclude by acknowledging that having the Sentencing Policy Guidelines
in Kenya is significantly progressive. However, other measures need to be put in place such as
by establishing a council or commission to continuously do an impact assessment and review the
guidelines as is the case in England and Wales.
108 Pina-Sánchez J and Grech DC, “Location and Sentencing: To What Extent Do Contextual Factors Explain
between Court Disparities?” (2017) 58 the British Journal of Criminology 529. See also Pina-Sánchez J and Linacre
R, “Enhancing Consistency in Sentencing: Exploring the Effects of Guidelines in England and Wales” (2014) 30
Journal of Quantitative Criminology 731.
109 ibid p 731.
110 ibid.
Page | 19
CHAPTER 4
4.0 CONCLUSION
In conclusion, variation in sentences imposed on criminal offenders for similar offences is a
dilemma that needs immediate redress. Notably, it is unfair that criminal offenders who have
committed offences requiring similar offences end up receiving different sentences. In essence,
this study retaliates Justice Muriithi’s position in Republic v Philip Muthiani Kathiwa that same
offences should attract similar and consistent penalties. Additionally, where a statute prescribes a
certain punishment for an offence, the judge should not exercise discretion to vary that sentence.
For instance, if the prescribed sentence under a statute is a minimum of five years and a
maximum of ten years, the prescribed sentence must fall between five and ten years. Allowing a
judge's discretion to go against the sentences stipulated in a statute results in different judges
prescribing different sentences for similar offences which results in variation leading to unfair
sentences.
4.1RECOMMENDATIONS.
Having analyzed the nature and state of our sentencing process, we therefore recommend a
system with the following, in effort to promote uniformity in sentencing:
a) An adoption of a new Regulation would be recommended that may establish and enforce a
Commission or Committee or give more power to the Judicial Service Commission to
investigate and prosecute judges on rising corruption claims and will then enable the public
to achieve the ends of justice.
b) Formation of a sentencing council to monitor the sentencing processes and formulating

sentencing regulation to meet the ever-changing trends on commission of crime.
c) Amendment of section 12 of the Criminal Procedure Code which gives court power to pass
combined lawful sentences authorized by law. Which can be amended to ensure application
of uniform sentences.
d) Where the law provides for punishment through fines, there should be an assessed guideline
for imposition of fines on a scale basis which judicial officers should use to guide their
discretion when the case has similar circumstances.
Page | 20
e) Giving legal force to the Sentencing Policy Guidelines 2016 as a Subsidiary Legislation to
the Penal Laws, which will be used by the courts to give direction when passing sentences.
f) Giving legal force to the Sentencing Policy Guidelines 2016 as a Subsidiary Legislation to
the Penal Laws which will be used by the courts to give direction when passing sentences.
g) Curbing a bit of judicial officers’ discretionary powers by implementing a watchdog

mechanism with investigative powers on claims of lack of integrity of judicial officers.
h) Amendment of Section 3 of Community Service Orders Act which allows a Judge to prefer a
lesser sentence than that provided for by an Act.
i) The Sentencing Policy Guidelines should consider the direction of court in Francis Karioko
Muruatetu & another v Republic111 on the death penalty.
j) The advancement of sentencing policy guidelines to have a legal force, compelling the
judicial officers to make sentences being guided by the stipulated sentencing guidelines and
in cases where they are forced to deviate from the guidelines they be required to justify the
deviation.
k) Establishment of a sentencing council - In England one of structures that have been put in
place to promote uniformity in the sentencing process is the establishment of the Sentencing
Council. The sentencing council will be instrumental in continuously doing an impact
assessment of the sentencing guidelines and reviewing them to ensure that they achieve their
purpose.
BIBLIOGRAPHY
Books & Articles

1. David Alfred Thomas, "Constraints on Judgment: the search for structured discretion in
sentencing," (1979) the University of Cambridge, Institute of Criminology.
2. David Alfred Thomas, “Sentencing in England,” (1983) 42 Md. L. Rev 90.
111 ibid (n34)
Page | 21
3. Donnelly, Roy. "Gobbledegook, the hearsay rule and reform of Section 60." University of
Tasmania Law Review 25, no. 1 (2006)
4. Inciardi, J.A. (2002) Criminal Justice (7th Edition), New York: Oxford University Press
5. Law and Justice: The Case for Parliamentary Scrutiny, Inter-Parliamentary Union,
Geneva, 2006,
6. Legal Resources Foundation, Sentencing in Kenya; Practice, trends, perceptions and
judicial discretion, LRF; 2011
7. Lumumba PLO, Sentencing in Kenya: A search for the Judiciary’s prevailing policy and
philosophy and the case for reform’ LSK journal, 2006.
8. Republic of Kenya Judiciary 2015, Report of the judicial task force on sentencing
9. United States Sentencing Commission, Federal Sentencing Guidelines Manual, 1993,
chapter. 1, pt. A (4) (a).
Websites
1. Harrison Mbori, “Discreet Discretion and Moderate Moderation in Judicial Sentencing: A
Commentary on Kenya’s Sentencing Policy Guidelines, 2016”
https://press.strathmore.edu/uploads/journals/strathmore-law-journal/slj2017/Discreet
%20discretion%20and%20moderate%20moderation%20in%20judicial
%20sentencing.pdf> accessed July 19, 2021
2. https://www.nemannlawoffices.com/library/federal-sentencing-guidelines-chart.cfm>
accessed on 8th August 2021.
3. Law Commission, “Sentencing Code,” (Lawcom.gov.uk2018)
<https://www.lawcom.gov.uk/project/sentencing-code/> accessed 8 July 2021.
4. Republic of Kenya “Sentencing Policy Guidelines Republic of Kenya” (2016). See also
Sentencing Council, “About Sentencing Guidelines,” (Sentencingcouncil.org.uk2017)
<https://www.sentencingcouncil.org.uk/sentencing-and-the-council/about-sentencing-
guidelines/> accessed 8 July 2021.
5. Sentencing Council, “About Sentencing Guidelines” (Sentencingcouncil.org.uk2017)
<https://www.sentencingcouncil.org.uk/sentencing-and-the-council/about-sentencing-
guidelines/> accessed 8 July 2021.
Page | 22
6. The House of Commons, “Justice Committee Reports-2 July 2009” (Parliament.uk2021)
<https://publications.parliament.uk/pa/cm200809/cmselect/cmjust/cmjust.htm> accessed
8 July 2021.
Page | 23
MINUTES
1st MEETING
CRIMINAL LITIGATION MINUTES FOR CLASS A FIRM 12 HELD ON 01/07/2021 AT

KENYA SCHOOL OF LAW GAZEBOS 2.00-6.00 PM
MEMBERS PRESENT
NO STUDENT NAME R NUMBER SIGNATURE
1 NYAKWEBA WENDY 20210235

(chairperson)
2 MITEI KIPKORIR 20210294
3 WANGO ERIC 20211272
4 WAMBUI JULIUS 20210584
5 MUSINGO LENA 20211329
(secretary)
6 KAHIGA LYDIA 20211082
7 OMBEWA TRIZAH 20210288
8 UNITY CAREN 20211344
9 NYAGAKA HESBON 20211600
10 KIPKEMBOI VICTOR 20211523
11 VERAH MURUNGA 20211638 DEFERRED
MEMBERS ABSENT WITH APOLOGY

None
MEMBERS ABSENT WITHOUT APOLOGY

None
Page | 24
AGENDA
1.Preliminaries
2. Question analysis and discussion
3. Division of work
4. AOB
5. Adjournment
MIN 001:01/07/2021: PRELIMINARIES

The meeting started at around 2.00 pm by a word of prayer from Caren Unity. Wendy
Nyakebwa welcomed everyone and expressed gratitude to all members for adhering to the
timelines prescribed in the notice of the meeting. She also urged the firm members to be
cooperative with the unit administrator Lena Musingo and with each other so as to ensure that
the firm delivers good work. No member was absent. This being the first meeting no previous
minutes were read. The chairperson asked Hesbon Nyagaka to facilitate the discussion and
Lena Musingo to take down the minutes.
MIN 002:01/07/2021: QUESTION ANALYSIS AND DISCUSSION

Victor Kipkemboi read the question. Wendy Nyakweba stated that the meeting needed to be as
interactive as possible since the firm members had been asked to read the question prior. Every
student was given an opportunity to give their input on how the question should be tackled:
Hesbon Nyagaka made the first contribution. He proposed we have an introduction, a legal
framework, a comparative study and finally give recommendations in regards to the question.
Eric Wango was of the view that we should give a history of sentencing in Kenya particularly
what led to variation of sentences in Kenya.
Wendy Nyakweba suggested we look at what is sentencing and the purpose.

Lena Musingo further suggested we give the advantages and disadvantages of variation but
expound more on the disadvantages.
Victor Kipkemboi stated we should discuss the factors that lead to variation of sentences.
Julius Wamboi emphasized we give relevant current case laws that show variation of sentences.
Page | 25
Lydia Kahiga highlighted that when dealing with the legal framework we should be guided by
the Sentencing policy guidelines and relevant case laws.
Trizah Ombewa added we look at the penal code and the sexual offences act.
Mitei Kipkorir also added we look at the set-backs of variation of sentences.
Caren Unity suggested we look at 2 other countries and do a comparative study.
MIN 003:01/07/2021: DIVISION OF WORK

After each member had given their input the chairperson divided the work in the following way:
1.Introduction of the work: Caren Unity and Victor Kipkemboi
2.Legal framework: Lydia Kahiga, Hesbon Nyagaka, Mitei Kipkorir, Eric Wango and
Trizah Ombewa
3.Comparative study: Wendy Nyakweba and Lena Musingo
4.Recommendations: All firm members
5.Conclusion: Lena Musingo and Erick Wango.
Caren Unity and Victor Kipkemboi were to submit a draft of the introduction of the work
before the next meeting so that the firm members can go through the work.
MIN 004:/01/07/2021: AOB

Members agreed that they would tackle the legal framework in the next meeting. The firm
members tasked with dealing with the legal framework were asked to do research on the same.
Wendy Nyakweba asked members to thoroughly research on the work allocated and adhere to
the deadlines and rules provided by the school on how to draft a project.
Page | 26
MIN 005:/01/07/2021: ADJOURNMENT
Meeting ended at 6.00pm with a prayer from Mitei Kipkorir. Next meeting schedule was
scheduled to 8th July 2021.
COMPILED by:
Lena Musingo …. ……………
(Secretary) Date 01/07/2021
APPROVED by:
Wendy Nyakweba ………………
(Chairperson) Date 01/07/2021
Page | 27
2nd MEETING
KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAM 2021-2022
KENYA SCHOOL OF LAW GAZEBO FROM 2.00-6.00 PM
MEMBERS PRESENT
No STUDENT NAME REGISTRARTION SIGNATURE
NO.
(chairperson)
(secretary)
11. VERAH MURUNGA 20211638 DEFERRED

None
None
AGENDA
1.Preliminaries
Page | 28
2.Confirmation of previous minutes
3.Review of previous assignment
4.Discuss on the findings on the legal framework
5.Adjournment
MIN 001:08/072021: PRELIMINARIES

The meeting started at around 2.00 pm by a word of prayer from Lydia Kahiga. The meeting
was chaired by Wendy Nyakweba while Lena Musingo took the minutes.
MIN 002:08/07/2021: CONFIRMATION OF PREVIOUS MINUTES

Lena Musingo read the previous minutes dated 01/07/2021 which were confirmed by the
members present.
MIN 003:08/07/2021: REVIEW OF PREVIOUS ASSIGNMENT

Having received the work earlier the members were able to give their views and corrections.
Hesbon Nyagaka raised a point of correction in the work presented on introduction that we
should limit the history of sentencing to only variation of sentencing and not discuss
sentencing in general.
Eric Wango brought to the attention of the firm that we were supposed to use current decided
case laws on the issue of elimination of variation.
Trizah Ombewa stated that Caren Unity ought to marry the factors leading to variation to the
question asked and not just state them.
Lena Musingo suggested that the disadvantages of variation should be more than the
advantages for the purposes of answering the question.
Lydia Kahiga discussed the factors the led to variation of sentences. One of the factors include:
Discretionary power of the court whereby the Discretionary power implies that the
judicial officer has the right to determine the nature of sentences to pass to a convicted
offender in relation to offences that do not attract mandatory sentences.
Victor Kipkemboi discussed another factor leading to variation mitigating factors include
factors such as mental incapacity, a possibility that the offender shall reform and
Page | 29
rehabilitation from alcohol dependency that might have contributed to committing the
offence.
Mitei Kipkorir discussed the Victim Impact statement as one the factors affecting sentencing.
The magnitude of the offence can be a cause of variation of sentencing where the offence
led to bodily harm or death.
Wendy Nyakweba urged Caren Unity and Julius Wamboi to note corrections made and send a
final draft before the next meeting which was scheduled on 15th July 2021.
MIN 004:08/07/2021: DISCUSS ON THE FINDINGS ON THE LEGAL FRAMEWORK
Caren Unity discussed Penal Code by showing ways in which minimum, maximum or
mandatory sentences to the stipulated offences end up bringing about variation of
sentencing.
Lydia Kahiga Some offences created by the Penal Code dictate the uniformity of sentencing
such as the offence of attempted robbery whose sentence is capped at seven years
therefore not setting a minimum or maximum sentence for it. Other provisions in the
Penal Code give a minimum and/or maximum sentence therefore giving the judge a range
of sentences to choose from which brings about variation in sentencing for the same
offence.
Trizah Ombewa Sexual offences and how to bring out uniformity.
Victor Kipkemboi pointed out that the provision does not give clear guidelines on how a
judicial officer may reach a specific sentence where the Act of Parliament creating the
offence stipulates a minimum and/or maximum sentence.
Mitei Kipkorir Sentencing Policy Guidelines and how to bring out uniformity.
Lena Musingo discussed the applicability of uniformity of Sentencing in Kenya.
Wendy Magoma Further argued that the Sentencing Policy Guidelines is a framework within
which courts can exercise their discretion during sentencing in a manner which is
objective, impartial, accountable, transparent and which would promote consistency and
uniformity in the sentences imposed
Erick Wango critique of the Sentencing Policy Guidelines roll out suggestions and plan to curb
injustices in sentencing as well as reviewing sentencing patterns.
Page | 30
Nyagaka Hesbon dealt with the issue of the setbacks of uniformity of sentences in Kenya. He
listed instances such as judges undermining minimum sentences and ambiguity in
legislation as causes of non-uniformity in sentencing
MIN 005:08/07/2021: ADJOURNMENT

Wendy Nyakweba urged the firm members to take project work seriously and asked the people
tackling the legal framework to submit detailed and well researched work before the next
meeting. Meeting ended at 6.00pm with a prayer from Trizah Ombewa. Next meeting
schedule was scheduled to 15th July 2021.
COMPILED BY Lena Musingo ….……………

APPROVED BY Wendy Nyakweba ………………
Page | 31
3rd MEETING
KENYA SCHOOL OF LAW
MEMBERS PRESENT
No STUDENT NAME ADMISSION NUMBER SIGNATURE

(chairperson)
(secretary)
11. VERAH MURUNGA 20211638 (DEFERRED)

Page | 32
None
None
AGENDA
1.Preliminaries
4.Discussion on the findings of the comparative study
5.Adjournment

Wendy Nyakweba brought the meeting to order at around 2.00pm. She requested Victor
Kipkemboi to say a word of prayer. Lydia Kahiga facilitated the meeting and Lena
Musingo took the minutes.

members present.
MIN 003:15/07/2021: REVIEW OF THE PREVIOUS ASSIGNMENT

Caren Unity and Julius Wamboi were commended for the good work and submission of work
on time by the firm members.
Eric Wango raised the issue of the work presented didn’t bring the issue of how there should be
elimination of variation and was seconded Wendy Nyakweba
Julius Wamboi suggested that the people tackling the legal framework should do more research
and submit their drafts before the next meeting.
MIN 004:22/07/2021: DISCUSSION ON THE FINDINGS OF THE COMPARATIVE

STUDY
Page | 33
Wendy Nyakweba presented her presentation on the comparative study of Kenya and England.
She discussed England and Wales tackling the issue of elimination of variation of
sentencing.
Nyagaka Hesbon submitted that England has not achieved 100% uniformity in sentencing hence
the formation of a sentencing council which evaluates impact assessment of its guidelines and
continuously reviews them to ensure they achieve uniformity in sentencing extensively.
Lydia Kahiga discussed the Sentencing Act which provides for transparency and consistency in
sentencing by developing sentencing guidelines that the courts should follow during sentencing.
Victor Kipkemboi discussed the Sentencing Council Guidelines transparency and consistency in
sentencing by developing sentencing guidelines that the courts should follow during
sentencing.
Mitei Kipkorir suggested that we could borrow for the England’s council as a recommendation
that Kenya can adopt in the sentencing.
Trizah Ombewa seconded the suggestion.
Lena Musingo presented his presentation to the comparative study of Kenya and the United
States. For purposes of adhering to the page limit the members agreed to focus on one
comparative study.
Erick Wango Seconded the idea

Meeting ended at 6.00pm with a prayer from Lena Musingo. Next meeting schedule was
scheduled to 22ND July 2021.
Lena Musingo ……………

Page | 34
4th MEETING
KENYA SCHOOL OF LAW
CRIMINAL LITIGATION MINUTES FOR CLASS A FIRM 12 HELD ON 22/07/2021
VIA MICROSOFT TEAMS FROM 2.00-6.30 PM
MEMBERS PRESENT
(Microsoft Teams Generated Attendance Attached)

None
None
AGENDA
1.Preliminaries
3.Review of the previous assignment
4.Review on the recommendations
5.Adjournment

The meeting started at around 2.00 pm by a word of prayer from Trizah Ombewa. The meeting
was chaired by Wendy Nyakebwa while Lena Musingo took the minutes.

members present.
MIN 003:22/07/2021: REVIEW ON THE COMPARATIVE STUDY
Page | 35
Wendy Nyakweba discussed the sentencing guidelines of England and Wales. She discussed the
Sentencing Act 2020 and Sentencing council guidelines. She further explained how
England tried to achieve 100% uniformity of sentencing but failed.
MIN 004:22/07/2021: DISCUSS ON THE RECOMMENDATIONS

Lena Musingo Giving legal force to the Sentencing Policy Guidelines 2016 as a Subsidiary
Legislation to the Penal Laws, that will be used by the courts to give direction when
passing sentences.
Formation of a sentencing council to monitor the sentencing processes and formulating
sentencing regulation to meet the ever changing trends on commission of crime.
Mitei Kipkorir Where the law provides for punishment through fines here should be an assessed
guideline for imposition of fines on a scale basis which judicial officers should use to
guide their discretion when the case has similar circumstances.
Nyagaka Hesbon suggested that the Sentencing Policy Guidelines 2016 is a good blueprint
towards achieving uniformity of sentencing. He also submitted that a sentencing council or
commission should be incorporated to conduct yearly assessment on sentencing to promote
uniformity. He also suggested that judicial officers should not have very wide discretion for
choosing a sentence as this will defeat the SPG.
Eric Wango suggested that judicial officers should make sentences guided by stipulated
sentencing guidelines and in the event they are forced to deviate from the guidelines
justify the deviation.
Wendy Magoma suggested that we adopt the England system of a sentencing council to
promote uniformity in the sentencing process. She further stated that the sentencing
council will be instrumental in doing an impact assessment of the sentencing guidelines
and review them to ensure they achieve their purpose.
Page | 36
Meeting ended at 6.00pm with a prayer from Eric Wango. Next meeting schedule was scheduled
to 29th July 2021.

Page | 37
5TH MEETING
KENYA SCHOOL OF LAW
MEMBERS PRESENT
NOO STUDENT NAME ADMISSION NO. SIGNATURE

(chairperson)
2 LENA MUSINGO 20211329

(Secretary)
11. VERAH MURUNGA 20211638 DEFERRED
Page | 38
None
None
AGENDA
1.Preliminaries
4. Discuss on the conclusion
5.Adjournment

The meeting started at around 2.30 pm by a word of prayer from Caren Unity. The meeting was
chaired by Mitei Kipkorir while Lena Musingo took the minutes.

Lena Musingo read the previous minutes dated 22/07/2021 which were seconded by the
members present.
MIN 003:29/07/2021: REVIEW OF PREVIOUS ASSIGNMENT

Victor Kipkemboi suggested that we should explain the points in detail.
Trizah Ombewa seconded Victor Kipkemboi’s suggestion.
Caren Unity Read the recommendations to the firm.
Mitei Kipkorir Suggested we omit points that resulted in ambiguity.
Julius Wamboi discussed the formation of a sentencing council to monitor the sentencing
processes and formulating sentencing regulation to meet the ever changing trends on
commission of crime.
Victor Kipkemboi Elaborated the adoption of a new Regulation would be recommended that
may establish and enforce a Commission or Committee or give more power to the
Page | 39
Judicial Service Commission to investigate and prosecute judges on arising corruption
claims and will then enable the public to achieve the ends of justice.
MIN 004:29/07/2021: DISCUSS ON THE CONCLUSION

Nyagaka Hesbon read the conclusion to all the firm members. All firm members were satisfied
with the work presented
MIN 005:29/07/2021: AOB
Wendy Nyakweba urged all firm members to ensure that their work is well referenced and the
work is sent to the unit administrator within 48 hours in order for her to compile the final
draft before the next meeting that was scheduled on 5th August 2021.

Meeting ended at 6.00pm with a prayer from Trizah Ombewa. Next meeting schedule was
scheduled to 5th August 2021.


Page | 40
6TH MEETING
KENYA SCHOOL OF LAW
CRIMINAL LITIGATION MINUTES FOR CLASS A FIRM 12 HELD ON 21/09/2021
VIA MICROSOFT TEAMS FROM 2.30-11.15 PM
MEMBERS PRESENT
(Microsoft Teams Generated Attendance Attached)

None

None
AGENDA
1.Preliminaries
3.Proff reading of the entire document
3.Comments on the project work
4.Costs
5.Closing

The meeting started at 3:05PM with a prayer from Wamboi Julius. Nyakweba Wendy welcomed
the members.
Page | 41
Lena Musingo read the previous minutes dated 29/07/2021 which were seconded by the
members present.
MIN 003:29/09/2021: PROOF READING OF THE ENTIRE DOCUMENT

All firm members send their final drafts as agreed in the previous meeting, after which Lena
Musingo compiled the work. Caren Unity volunteered to read through the introduction,
Trizah Ombewa read though the legal framework, Victor Kipkemboi read the
comparative study and Wendy Nyakebwa read the recommendations and conclusion.
Lena Musingo who had projected the work made the corrections.
MIN 004:29/09/2021: COMMENTS ON THE PROJECT WORK

Lydia Kahiga made comments on each section of the project work and was satisfied with the
work. She endorsed it for submission
Victor Kipkemboi stated that he had the honor to read through the work and endorsed it for
submission.
Mitei Kipkorir stated that he read through the work as edited by Wendy and confirmed that the
work reflected what was discussed. He approved it for submissions
Hesbon Nyagaka stated that she had the benefit of reading the work page by page and endorsed
it for submission.
Wendy Nyakebwa stated that she had the benefit of reading through the work, made few
amendments which were received by the secretary and duly noted.
Trizah Ombewa submitted that she passionately read the whole project work and endorsed it for
submission.
Caren Unity stated that she was impressed with project work and hoped for the best.
Julius Wamboi stated that he was impressed with work and had nothing useful to add or remove
from the work.
Eric Wango stated that he had the chance to read through the work, corrected some
typographical errors and recommended it for submission
Page | 42
Lena Musingo stated that he captured all the corrections received from the members. She
endorsed the project work for submission.
MIN 005:29/09/21: COSTS

Wendy Nyakweba directed that the project work be converted to PDF. She stated that the cost
of printing shall be shared equally. She also stated that the day of appending signature on
the project work shall be communicated 7 days before the submission date.
MIN 006:29/09/2021: CLOSING

Wendy Nyakweba thanked all members for their sacrifice towards researching and compiling
the project work.
Meeting ended at 6.00 pm with a prayer from Lena Musingo.
COMPILED by:
APPROVED by:
Page | 43
Page | 44

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KENYA SCHOOL OF LAW

ATP 101: CRIMINAL LITIGATION

PRESENTED TO: DR. OMOSA MOGAMBI

Tuesday, 26th October, 2021

NO STUDENT’S NAME REGISTRATION CONTACTS SIGNATURE

1 NYAKWEBA WENDY 20210235 0719820046

3 WANGO ERIC 20211272 0792792911

5 MUSINGO LENA 20211329 0724961486

6 KAHIGA LYDIA 20211082 0729990325

7 OMBEWA TRIZAH 20210288 0727498903

9 NYAGAKA HESBON 20211600 0716644988

11 MURUNGA VERAH 20211638 0706641553 DEFERRED

Foreign Laws (United Kingdom)

1.2 UNIFORMITY AND VARIATION OF SENTENCES

1.3 FACTORS THAT LEAD TO VARIATION OF SENTENCING

1.3.2 Mitigating Factors.

1.3.3 Victim Impact Statement.

24 Joseph Njuguna Mwaura and others v Republic [2013] eKLR

1.4 Advantages of Variation in Sentencing

31 Republic v Malakwen Arap Kogo 1933] 15 KLR 115

37 Constitution of Kenya 2010, art 94.

2.2.1 The Penal Code CAP 63

41 Constitution of Kenya 2010, art 2.

2.2.2 The Sexual Offences Act

52 Penal Code, s 251 A.

2.3 APPLICATION OF UNIFORMITY OF SENTENCING IN KENYA.

59 SPG (n2), para. 2.1

65 Constitution of Kenya 2010, art 2(5)

2.3.3 Equality and Uniformity.

67 CPC (n8), s 329C.

2.4 CRITIQUE ON THE EFFECTIVENESS OF THE KENYAN SENTENCING

2.4.1 Matters on imprisonment.

74 Republic v Philip Muthiani Kathiwa [2015] eKLR

2.5 SETBACKS TO UNIFORMITY OF SENTENCING IN KENYA

2.5.1 Inadequate accountability and transparency of judicial officers

81 Sentencing Policy Guidelines, 2016, para. 7.12.

2.5.3 Ambiguity in Legislation

2.5.4 The lack of a Sentencing Commission/Committee

3.0 COMPARATIVE STUDY

3.1 ENGLAND AND WALES

3.2 THE SENTENCING FRAMEWORK FOR ENGLAND & WALES

3.2.1 Statutory Framework.

3.2.1.1 The Sentencing Act 2020

92 David Alfred Thomas, “Sentencing in England,” (1983) 42 Md. L. Rev 90.

3.2.1.2 Sentencing Council Guidelines

96 The Sentencing Act 2020, pts 2 to 13.

3.3 Institutional Framework

3.3.2 The State of England and Wales on achievement of Uniformity of Sentencing

b) Formation of a sentencing council to monitor the sentencing processes and formulating

g) Curbing a bit of judicial officers’ discretionary powers by implementing a watchdog

Books & Articles

111 ibid (n34)

CRIMINAL LITIGATION MINUTES FOR CLASS A FIRM 12 HELD ON 01/07/2021 AT

1 NYAKWEBA WENDY 20210235

MEMBERS ABSENT WITH APOLOGY

MEMBERS ABSENT WITHOUT APOLOGY

MIN 001:01/07/2021: PRELIMINARIES

MIN 002:01/07/2021: QUESTION ANALYSIS AND DISCUSSION

Wendy Nyakweba suggested we look at what is sentencing and the purpose.

MIN 003:01/07/2021: DIVISION OF WORK

MIN 004:/01/07/2021: AOB

KENYA SCHOOL OF LAW

MEMBERS ABSENT WITH APOLOGY

MIN 001:08/072021: PRELIMINARIES