Special Issue: The pursuit of consistency in sentencing: Exploring Kenya’s sentencing guidelines

• Author: Okoth, J.
• Published date: 06 July 2020
• Pages: 106-125
• Date: 06 July 2020
• Citation: (2020) 33 SACJ 106

The pursuit of consistency in

sentencing: Exploring Kenya’s

sentencing guidelines

JULIET OKOTH*

ABSTRACT

Until 2016 the sentencing system in Kenya was mai nly geared towards

achieving individual ised justice with very l ittle emphasis on consistenc y.

The only guidance t hat courts had at sentencing was g uideline judgments

from the high court a nd Court of Appeal. The judgeme nts reveal a

conservative stance towards i ssuing guidance wit h emphasis being placed

on the unfettered dis cretion of courts in sente ncing. This state of affa irs

contributed to unjusti ed disparity in s entencing and as a result, the Task

Force on Sentencing recommended the adoption of sente ncing guidelines

to promote consistency. The Sentencing Guideli nes adopted in Kenya in

2016, offer a uniform set of standa rds to guide courts i n the process of

sentencing. They provide a consistency of approac h that courts are to use

during sentencing which is exp ected to contribute to consistent outcomes.

The Sentencing Guidelines a re a positive development towards achieving

the rule of law values of cert ainty and predict ability in sentencing by

making the sentencing pro cess transparent and more comprehen sible to

the public. Nonetheless, the relaxed approach adopted by the g uidelines

towards sentencing raises doubt s as to whether it is an effective meas ure

towards achieving consistenc y in sentencing.

1 Introduction

Being a former colony of Britain, Kenyan crimina l law inherited its

Penal Code and Crimina l Procedure Code from the British colonial

administration.1 The criminal ju stice system is adversarial in natu re

with the key sources of crimin al law being the Constitution, the Penal

Code and the Crimin al Procedure Code. The inaugurat ion of a new

Constitution in 2010 led to signicant reforms in the cr iminal justice

system.

* Juliet R Amenge Okoth LL B (Moi) LLM LLD (Universit y of the Western Cape).

Visiting Professiona l, University of Basel; for merly Lecturer, Inter national Cri minal

Law (University of Nairobi).

1 HF Morris ‘A history o f the adoption of codes of cr iminal law and pro cedure in

British colonial A frica, 1876–1935’ (1974) 18 J Afr L 13 −17.

106

(2020) 33 SACJ 106

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Until recently, the practice of sentencing was largely guided by

the Penal Code,2 the Cr iminal Procedure Co de,3 the Bench Book

for Magistrates in Cr iminal Proceedings of 2 004,4 the Probation of

Offenders Act 1943 cap 64, the Community Ser vice Orders Act 10 of

1998 and general principles reiterated in case law.5 The provisions in

the various statutes give wide sentencing discret ion to magistrates and

judges. While these powers have contributed to courts giv ing what they

considered the most appropriate penal sanction for each individual

case, they have also resulted in great dispar ity in the sentences

meted out.6 The sentencing regime simply offered general guideli nes

which contributed to unstruct ured sentencing practices.7 To reduce

the level of inconsistency arising from this s tate of affairs, sentencing

policy guidelines were adopted in 2016 to help courts develop more

structured sentencing whi le stil l exercising their sentencing discretion.

This article di scusses recent developments in Kenya. It addresses

the recently developed sentencing guidelines and explores their

inuence on sentencing. The rst part provides a genera l overview

of the traditional sentencing regime in Kenya and comment ary on

the origin and creation of guideli nes. The second part discusses t he

particulars a nd nature of the guidelines and the  nal part discus ses

issues arising from the guidel ines. The adoption of the sentencing

guidelines is a positive step, one which ensures that judges and

magistrates make decisions on sentencing more tra nsparently and

by reference to standards declared in advance, thus entrenchi ng the

rule of law. However, the exibilit y that the sentencing guidelines sti ll

permit judges and magistr ates means the impact on reducing disparit y

in sentencing will stil l be modest. It is highly unli kely to guarantee

consistency in outcomes.

2 The traditional sentencing regime in Kenya

Until 2016, Kenya’s sentencing regime consisted of legi slation and

judicial decisions. Various statutes proscribe cr imes together with their

respective sentences. The main statute of reference when it comes to

offences is the Penal Code, which sets out sentences available. The

2 Sections 24−39 of t he Penal Code.

3 Sections 329A−329F of the Cri minal Procedure Code.

4 This has since b een replaced by the Judiciar y’s ‘Crimina l Procedure Bench Book’

(2018).

5 SM Kinyanjui & M A kech ‘Towards structur ed sentencing in Kenya: A case for

reform’ (2016) 9 Afr J Crimin’ & Just Studs 266 at 26 8.

6 National Council on t he Administ ration of Justice (NCAJ) ‘S entencing Policy

Guidelines’ (2016) at para 1.3, Kenya Governme nt Gazette 1864, GN 2970, 26 Apr il

2016.

7 Kinyanjui & Akech op c it (n5) at 267.

The pursuit of consistency in sentencing:

Exploring Kenya’s sentencing guidelines 107

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