MITIGATION
Definition;
As per the English dictionary Mitigation is the action of reducing the severity, seriousness, or painfulness of something.
Mitigation as per the Business Dictionary means, the elimination or reduction of the frequency, magnitude, or severity of exposure to risks, or minimization of the potential impact of a threat or warning.
From The Kenya Law Research Center:
'Mitigation of the offender: It is a well-established practice that the court should consider mitigation from the offender; it is at this juncture that the offender has opportunity to inform the court of his personal circumstances that could mitigate against a harsh/inappropriate sentence.'
Usually in court proceedings before the judge passes the sentence, the offender will be given an opportunity to speak. This is known as presenting a plea of mitigation.
This opportunity will help in presenting information that will assist the offender when the court is deciding on the appropriate sentence. One might explain why they committed the offence; this could be due to background or personal circumstances.
The circumstances that make the offender’s crime or culpability lighter are known as mitigating factors. The judges have the discretion to consider anything that qualifies to reduce a defendant’s sentence, though this does not change the decision on whether guilty or not. One should take note that some circumstances known as aggravating circumstances could lead to an increase in the severity of the sentence. These circumstances do not excuse a person for criminal or civil misconduct, but could show that they had some valid reason for their action.
In Civil Law these are used to determine the amount that the plaintiff will receive as an award should they win the case, but not to determine the guilt or wrongdoing of the defendant. In Criminal Law the court will consider information about the crime and about the offender. This will not dismiss the fact that they violated the law, but could lessen the penalties received for committing the crime. The emotional state of the offender can be a good example of a mitigating circumstance in a murder case, though this does not excuse the offender for committing the murder.
Mitigating Factors/Circumstances
Mitigating factors can generally be divided into two broad categories:
1. Specific mitigating factors; and
2. Personal mitigating factors.
Specific mitigating factors would be those which would reduce the seriousness of the particular offence committed. These include factors like minor loss or detriment suffered by victim, subordinate role of the accused and provocation received from the victim.
Obviously, the list of specific mitigating factors is wide-ranging. A more comprehensive treatment of such mitigating factors can be where the factors are considered alongside the specific offences they relate to.
Personal mitigating factors would be those peculiar to the accused which would merit leniency. The following list of mitigating factors is non-exhaustive and would depend on the particular circumstances of each case:
1. The accused’s background and attitude. Here, you are looking for circumstances which might:
(i) explain your client’s offence (e.g. childhood, family, upbringing, lack of education etc.); or
(ii) demonstrate his past good character to prove that the present offence is an aberration of conduct. The court is interested to know whether your client is genuinely contrite, whether he is willing to make amends, and whether he is likely to re-offend.
2. The accused’s previous good character.
i. A First-time offender. Note that generally, more credit is given to positive evidence of an accused’s good character as opposed to the absence of prior convictions.
ii. The accused’s worthy social contributions or distinguished public service. Here, courts have been known to give credit to accused persons for distinguished public service or services to the community.
3. The accused’s behavior subsequent to offence. In this case, a Plea of guilt. A plea of guilt may suggest genuine remorse and is a mitigating factor.
i. Co-operation with authorities. Voluntary surrender, co-operation with the police or prosecution may afford a reason for mitigation of sentence.
ii. Restitution. Voluntary restitution may be suggestive of remorse, good character or reformation.
iii. Generosity. The fact that the accused had been generous with the proceeds of his crime is irrelevant and not a legitimate mitigating factor.
4. The accused’s age.
i. Young offenders. Accused persons below the age of 18 with no antecedents are usually dealt with sympathetically bearing in mind the potential for rehabilitation. Imprisonment is usually a sentencing option of last recourse, and is generally reserved for cases where the offence is serious, or where the offender has shown himself to be unresponsive to earlier efforts at rehabilitation.
ii. Elderly accused. There is no general rule mandating the giving of discounts for offenders of mature years, save in exceptional cases.
5. The accused’s physiological condition.
i. Ill-health. Ill-health of the accused may in exceptional circumstances be a ground for reducing sentence.
ii. Mental condition. The fact that the accused is suffering from a mental disorder is relevant but its bearing would depend on the circumstances of each case. In the context of intellectually disabled offenders, it should be noted that these persons are not treated differently for the purposes of sentencing, but are instead punished in like manner as other offenders. Similarly, the appropriate sentence to be passed would necessarily turn on the factual matrix of each case.
iii. Pregnancy. Pregnancy typically would not justify a reduction in sentence. However, in exceptional cases where the offence is not very serious, you may attempt to persuade the court why it should do so as an act of mercy.
6. The circumstances that led to the accused committing the offence.
i. Financial hardship. Save for very exceptional or extreme circumstances, financial hardship cannot be relied upon as a mitigating factor.
ii. Intoxication. Voluntary ingestion is not a mitigating factor. For violent or serious offences, voluntarily intoxication may even be considered an aggravating factor. However, exceptionally, if it can be demonstrated that the intoxication was involuntary or out of character, you may attempt to persuade the court why it should be treated as a mitigating factor.
iii. Drug or alcohol addiction. The fact that the accused committed the offence to feed an addiction is of no mitigation value.
iv. Entrapment. Entrapment is relevant where the conduct of the agent provocateur induced the commission of the offence, which the accused would not have committed or would have been unlikely to commit.
v. Ignorance of the law. Ignorance of the law is not a mitigating factor. An argument could perhaps be made that in an offence that contains little or no moral blame, if the accused commits the offence unwittingly, ignorance of the law should be treated as mitigatory.
vi. Other circumstances. It goes without saying that the possible circumstances that could lead an accused to commit an offence are limitless and it is pointless to generalise, save to say that you should ascertain if there was any immediate crisis or extraordinary circumstances in your client’s life that caused him to commit the particular offence.
7. The likely effect of the sentence on the accused or his family.
i. The accused’s work record and work prospects. In exceptional circumstances, loss of employment or a career are part of the circumstances the courts take into account in assessing sentence. The weight attached would depend on the circumstances.
ii. Hardship to the accused’s family. Hardship to the accused’s family is not normally a legitimate mitigating factor. However, in exceptional or extreme circumstances, such hardship may be taken into account.
8. Time the accused spent in custody. The court may take into account any period the accused has been in remand when determining the length of an imprisonment term. The court’s discretion extends to considering the period of time that the accused has been in custody overseas, pending extradition.
9. Delay in prosecution. Delay in prosecution in itself is not a mitigating factor but in appropriate cases, where the delay has been significant and where the accused did not add to the delay, the court may exercise its discretion in giving a reduced sentence.
A trial lawyer should face up to the aggravating factors and weaknesses in your client’s case. It will be unwise to pass them by as though they did not exist because they will not disappear. You must be prepared to deal with them as best as you can, as they are likely to be weighing on the mind of the court. To achieve this, the trial lawyer should be familiar with the sentencing principles of deterrence, prevention and retribution, and be able to address the public policy considerations relating to your client’s offence. Additionally, if the trial lawyer gives his client’s case due consideration, aggravating factors often can be balanced off or negated when weighed against other mitigating factors. It is his task to see that the balance achieved is the most favorable that your client can reasonably expect in the circumstances.
How do you present a useful mitigation?
· One should be remorseful in their presentation
· Be polite and accept liability as much as you can
· Clarity on crucial points that you require the judge to get from your mitigation
SENTENCING
Components of a sentence.
Sentencing is the process by which a court imposes a penal sanction once an accused person has pleaded guilty or has been convicted of an offence following a trial.[1]
Since the sentencing process forms part of the trial, it is subject to the constitutional guarantees of a fair hearing.[2] The sentence must therefore have specific contents for it to be proper.
In determining a proper sentence, the court considers[3]:
· The intrinsic value of the subject matter.
· Antecedents of the accused.
· Age.
· Conduct of the accused at trial.
· Prevalence of the particular crime in society.
· Whether or not the offender is a first offender. The court stated in Otieno v.Republic [1983] eKLR stated that as a general rule a maximum sentence should not be imposed on a first offender.
Having given consideration to the aforementioned factors among others, the court then proceeds to give the sentence. In giving the sentence, the judgment must give reasons that informed the sentence, including the factual and legal provisions that led to the sentence.[4]
As provided in Section 169 of the Criminal Procedure Code (CPC), a judgment shall contain:
(a) The point or points for determination, the decision thereon and the reasons for the decision.[5]
(b) Date and signature of the presiding officer at the time of pronouncing it.[6]
(c) The sect23..ion of the Penal Code or other law under which the accused is convicted and the punishment to which he is sentenced in the case of a conviction.[7]
(d) The offence of which the accused person is acquitted and shall direct that he be set at liberty in the case of an acquittal.[8]
The court in Fatuma Hassan Salo v. Republic [2006] eKLR highlighted the obligation of the trial court to make detailed notes on the matters it has taken into account in arriving at one of the options of punishments available.
PURPOSES FOR SENTENCING
The main aim for sentencing is to protect the society from harmful act of the said person found guilty of the crime committed.[9] As a result, sentencing takes the following main aspects which are:
1. SPECIFIC AND GENERAL DETERENCE
Deterrence prevents future crime by frightening the defendant or the public. This principle mainly utilizes the fear factor.[10] It works on the presumption that once a crime has been committed and punishment has been instituted, the general public will refrain from committing the crime from fear of the punishment.
The two types of deterrence are specific and general deterrence. Specific deterrence applies to an individual defendant. When the government punishes an individual defendant, he or she is theoretically less likely to commit another crime because of fear of another similar or worse punishment. General deterrence applies to the public at large. When the public learns of an individual defendant’s punishment, the public is theoretically less likely to commit a crime because of fear of the punishment the defendant experienced.
2. RETRIBUTION
Retribution is punishment inflicted on someone as vengeance for a wrong criminal act. It is based on the principle of an eye for an eye. It prevents future crime by removing the desire for personal avengement (in the form of assault, battery) against the defendant. It seeks to punish the offender for their criminal conduct in a just manner.[11] Retribution seeks to punish the offender in equal measure of the crime committed. However, this approach has gained various critics arguing if the only purpose is revenge (an eye for an eye), it is a cynical way to respond to human behavior hence leaving everyone blind at the end of the day.
3. REHABILITATION
Rehabilitation prevents future crime by altering a defendant’s behavior. This is to enable the offender reform from his criminal disposition and become a law abiding person. Examples of rehabilitation include educational and vocational programs, treatment centre placement, and counselling.
4. RESTORATIVE JUSTICE
This seeks to address the needs arising from the criminal conduct such as loss and damages. This is done by the court ordering the offender to pay the victim for any harm and resembles a civil litigation damages award. Restitution can be for physical injuries, loss of property or money. This promotes a sense of responsibility through the offenders’ contribution towards meeting the victims’ needs.
5. COMMUNITY PROTECTION
This principle aims to protect the community by incapacitating the offender. Incapacitation prevents future crime by removing the offender from society. It also acts as to prevent repletion of the said crime.[12]Also known as the theory of disablement. It prevents furtherance of the crime by disabling the offender by incapacitation. Examples of incapacitation are imprisonment, detention, or execution.
6. DENUNCIATION
This is public condemnation of the offender for the crime committed. The community communicates the condemnation of the criminal conduct. When the society discovers that the defendant has been adequately punished for a crime, they achieve a certain satisfaction that our criminal procedure is working effectively, which enhances faith in law enforcement.
FACTORS TO CONSIDER BEFORE AND WHEN SENTENCING.
Before remitting any sentence the court has a mandate to inform itself accordingly as to the sentence to be passed. This is because different crimes and or offences attract different penalties. Moreover the process is geared upon principles as opposed to being a subjective process by aligning the sentencing process to the constitution which is the supreme law of the land[13]. The following principles guide the courts during sentencing:
a) Age of the accused person.
The constitution provides for where a child is in conflict with the law the child is to be detained separate from adults and also take into account the child’s sex and age[14].it also insists that the best interest principle be paramount in all matters concerning the child, this is to also include sentencing[15]. Children in conflict with the law are only detained where non-custodial measures have failed. They are committed to borstal institutions (cater for children from 10-16 years) and rehabilitation centers (caters for children from 16years and above). This is because the objectives of juvenile rehabilitation schools are to reform, for social integration and restorative justice. In other cases, such as those covered under the sexual offences act for example rape and or defilement the age of the victim is taken into consideration to determine the sentence to be imposed
b) Disability
The constitution provides for that persons with disability be treated with dignity and respect and to be referred to in a manner that’s not demeaning[16]. Access to materials and equipment to aid them go about their day normally and or without constrains is to be made available[17]. This right includes persons detained. The court is to put in measures for their state to be fully accommodated.
c) Proportionality
The punishment and or type of sentence imposed has to be in equal ratio to the offence committed. This principle is grounded on the concept of just deserts by weighing the foreseeable impact of the offence and the offender’s responsibility[18]. This is compounded in our constitution that advocates the right to fair determination of a matter[19]. This was seen in the case of; Caroline Auma (v) Republic
The accused person was convicted and sentenced to life imprisonment and a fine of Kshs.1, 000,000 was imposed for possession of heroin worth Ksh.700. On appeal, the court of appeal held the sentence to be unproportional to the offence thus in excessive[20].
For this reason, the penal code sets a minimum and maximum mode of sentencing upon which all courts must adhere to.
d) Accountability, parity, consistency, legality and transparency
The sentence ought to be consistent with the law with which it’s created. An accused person cannot be convicted and sentenced thereof for an act not expressed as an offence by the law[21]. The courts must satisfy herself that the matter before it has never been tried and determined in any other court, and that the accused has not been acquitted or convicted of the same previously (this is the principle of double jeopardy)[22]. The court must also set out reasons or facts and legal provisions relied upon and or informed the sentence[23]. See; Fatuma Hassan Salo (v) Republic
The court stated that the trial court is obliged to make detailed notes on the matters it has taken into account in reaching the options of punishment available[24]. In the case of Kennedy Indiema Omuse (v) Republic the court held that a court before imposing a sentence ought to look at the facts of the case in its entirety before imposing a sentence on an accused person[25]. These facts however must be facts that the court relies on must be those that have been proved and evidenced therein. See; Wanjiku (v) Republic where the court while sentencing alleged that the accused had relied on her husband’s position to smuggle goods for personal gain yet there was no evidence in support of the magistrate’s inference[26]. The court’s decision should only derive its influence from the law and the surrounding facts of the case and not improper motives and corrupt practices so as to uphold the integrity of the judiciary and the court processes therein[27]
e) Mitigating and Aggravating circumstances
Mitigating serves the purpose of attaining leniency and or mercy from the courts so as not to suffer severe punishment and reduces the sentence to a minimum whereas aggravating circumstances increases the harshness of the punishment by maximizing the sentence. In all criminal cases the accused is given an opportunity to adduce and challenge the evidence by way of make submissions this right is also engraved in the constitution[28]. Also see; Edwin Otieno Odhiambo (v) Republic where it was held that failure to take into account mitigating circumstances chances of not arriving at an appropriate sentence were increased[29] . However, this right is subject to the discretion of the court and failure of the accused to mitigate does not invalidate the court’s decision.
f) Being a first time offender.
Generally where a person is said to be a first time offender the court usually imposes a lesser sentence as opposed to if the accused was a repeat offender[30].however this view is subject to the discretion of the court as other factors are put into consideration e.g. aggravating circumstances and type of offence for instances capital offences accord the accused a maximum sentence. Where the prosecution adduces evidence proving that the accused has had previous convictions, the court has an obligation to take that into consideration
g) Cause of crime
The court will take into account socio-economic factors that may lead to crime. These include poverty, drunkenness, and broken home, psychological problems amongst others. This is also known as criminology which aids in determining reasons that lead the accused into committing the offence. Its importance is to establish motive.
h) Time served in custody
Previously the law provided that the duration of a sentence began from the date of pronouncement and precludes any court from antedating the commencement of sentence. See: Republic (v) Yonasani and others. Section 333(2) of the criminal procedure code was introduced to change this position. The courts were now obligated courts to take into consideration time already spent in custody if the accused person was inccursorated during trial. Failure to do so renders the sentence excessive to the offence. Section 35(1) of the penal code provides for that where the accused was in custody as for 2 years during trial and upon conviction the court sentenced him to 2 years imprisonment, the act directs that the accused is to be discharged a the time he was in custody is taken as time in which he used to serve that sentence.
i) Magnitude of the offence
This is determined by the use of a victim impact statement which was introduced in a bid to acknowledge the victims of crime and the effects of the same[31].the impact statement applies in relation to offences that result in death or bodily harm[32]
Particulars include:
· any personal harm suffered by the victim as a direct result of the offence
· The effect of the primary victims harm on his immediate family[33].
A primary victim is one against whom an offence has been committed or a person who was a witness to the offence (if the crime resulted in death)[34]. For this statement to be considered it must be filed by the victim or the prosecutor on his behalf. A family member may also apply where the deceased is dead. The use of this statement is subject to the discretion of the court[35]. The primary victim is not compelled to give an impact statement, it must be voluntary and where the victim objects to its use the court is obligated not to use them[36]. However this does not render the effects of the crime lesser to the victim[37]. A member of the primary victim’s family may issue the statement where the victim is incapable of the same[38].
The courts consider the impact of the offence on the victim and the society in general.
TYPES OF SENTENCES
1. Death Penalty
Also known as capital punishment. Death penalty is a government sanctioned practice whereby a person is put to death by the state as a punishment for a crime. Death penalty is imposed upon offenders convicted of murder, treason, administration of unlawful oaths to commit capital offences, capital robbery or attempted capital robbery.
Minors cannot be subjected to the death penalty. The Criminal Procedure Code prohibits imposition of such sentence upon offenders convicted of an offence punishable by death but which was committed when the offender was below 18 years. Pregnant women are also exempted from the death penalty and when convicted of offences punishable by death, they are sentenced to life imprisonment.
The death sentence has for a long time been criticized, especially from the human rights bodies, not only in Kenya, but all over the world. Most of these institutions claim that death as a sentence is the opposite of the Constitutional right to life which is absolute and unalienable. In 1982, Hezekiah Ochuka and Pancras Oteyo were convicted for treason and subsequently hanged for treason. These were the last people to be executed following a death sentence passed upon them.
2. Imprisonment
It is the restrain of a man’s personal liberty by putting or confining him in a prison for a specified duration.
Section 26 (2) of the Penal Code gives the court discretion to impose a sentence shorter than the prescribed by the relevant provision except where mandatory sentences are prescribed. In most cases the Penal Code provides for the maximum sentence.
In the event that a person is convicted of more than one offence, the sentences imposed for each of the offences run consecutively except where the court directs that they run concurrently.[39] The general rule is that concurrent sentences rather than consecutive sentences should be awarded for offences committed in the same transaction.[40]
Whenever a convict is liable to be imprisoned the court has the option of imposing a fine either in addition to or instead of a prison sentence.[41]
3. Community Service Orders
The Community Service Orders Act introduced a new type of sentence laying more emphasis on restorative form of justice that takes into account in a more direct way the interests of the accused, the society and the victim. It de-emphasizes imprisonment for certain categories of offenders and emphasizes services to the community.
Community service under the Act comprises unpaid public work within a community, for the benefit of that community, for a period not exceeding the term of imprisonment for which the court would have sentenced the offender.
Community service officers have the duty to identify suitable work placements and thereafter together with the court are required to keep track of all community service orders issued by the court to ensure that there has been compliance with the orders. A completion form prepared by the institution must be returned to the court.
4. Probation Orders
Probation is a punishment given out as part of a sentence which means that instead of jailing a person convicted of a crime, an order is made that the person reports to a probation officer regularly and according to a set schedule.
The primary aim of probation is the reform and rehabilitation of the offender. Probation is provided under the Probation of Offenders Act, Cap 64 Laws of Kenya. Section 4, empowers a court, where it is of the opinion that it is expedient to release an offender on probation, it may convict and make an order for probation. The court however should regard the following before making the order: -
a. Youth
b. Character
c. Antecedents
d. Home surroundings
e. Health or mental condition of the offender
f. Nature of the offence
g. Any extenuating circumstances in which the offence was committed.
Before the offender is sentenced to probation, it must be shown that he or she is remorseful and repentant and is willing to learn and reform.
If an offender commits an offence during the probation term, he/ she becomes liable to be sentenced for the original offence.
5. Fines
A fine is a sum of money exacted as a penalty by a court of law or other authority.
The amount of fine may be set by the law. Where it is not set the amount of fine is unlimited but shall not be excessive.[42] In inflicting fines the capacity of the accused to pay should be considered.
Where the offence is punishable with a fine or a term of imprisonment, it is in the discretion of the court to impose a fine or imprisonment.[43]
6. Payment of compensation
Under section 31 of the Penal Code, the court may order a convict to pay compensation to any person injured by his offence, either in addition or substitution of any other punishment. However, the court cannot make a compensation order in substitution of an offence which attracts a minimum custodial sentence.
An order of compensation takes effect on the expiry of the time limited for an appeal, and where an appeal is lodged, on confirmation of the conviction and order.
The sum to be paid by the convicted person to the injured party is such a sum as the court considers could justly be recovered as damages in civil proceedings brought by the injured party against the convicted person in respect of civil liability concerned.
7. Suspended sentence
The court may in circumstances where an accused person has been convicted and sentenced for a term not exceeding 2 years order the sentence does not take effect immediately unless during the operational period of the offender commits any other offence irregardless the degree of its severity[44]
A case in point is where recently The Labour Court sitting in Nairobi kept suspending the sentence for officials for the striking doctors who had been convicted for contempt of court.
8. Restitution
This applies in those situations where the accused has been convicted for the offences relating to stealing, taking, extorting ,converting or disposing of or in knowingly receive any property .The court may make restitution orders requiring the said property be restored to the owner[45]
9. Revocation or forfeiture of licenses
This sentence is metted out for very specific circumstances, state agencies regulates certain actions by issuing licenses. When a licensee is found guilty of an offence violating the terms of such a license the court may order that the licensed be revoked or withdrawn.
A case in point is licenses issued pursuant to The Alcoholic drinks and Control Act may be revoked or forfeited once an accused has been adjudged guilty of committing an offence under the said act.[46]
10. Security to keep peace and good behavior
This is recognizing section 24(2)(f) of The Penal Code. It applies to non-criminal offences and may be metted in addition or in substitution to the punishment by the court. The convict is orders to enter recognizance with or without sureties on condition that he keep peace during a specified period.[47]
11. Absolute and conditional discharge
This is pursuant to section 35 of The Penal Code. Under this provision where a sentencing court is satisfied that it is inexpedient to inflict punishment and that a probation order is inappropriate, the court may make these orders which have the effect t of discharging him absolutely subject to the fact that he does not commit an offence during a period not exceeding 12 months.
In metting out this sentence he court takes into account:
a) The nature of the offence
b) The character of the offender
c) Other circumstances
This is issued in misdemeanors for instance being drunk and disorderly and loitering
12. Forfeiture
Section 29 posits that that courts may in addition to or in lieu of any penalty imposed order that property or monies obtained from commission of an offence of compounding felonies be forfeited. The property forfeited shall be dealt with in a manner so directed by the Attorney General[48]
13, police supervision
This is provided for under the Security Laws(Amendment) Act
REFERENCES.
1. THE CONSTITUTION OF KENYA. (2010).
2. SENTENCING POLICY GUIDELINES. (n.d.). JUDICIARY.
3. THE CRIMINAL PROCEDURE CODE OF KENYA. (n.d.).
4. KENYA LAW RESOURCE CENTER
5. LEGAL DICTIONARY
[1] Judiciary sentencing policy guidelines.
[2] Article 50 of the Constitution.
[3] Essentials of criminal procedure in Kenya.
[4] See note 1 above.
[5] Sec 169(1) of the CPC.
[6] See note 4 above.
[7] Sec 169(2) of the CPC.
[8] Sec 169(3) of the CPC.
[9] Ssekaana Musa, Criminal Procedure and Practice in Uganda.
[10] William Musyoka, Criminal law, Law Africa.
[11] The Sentencing Policy Guidelines of Kenya, launched by the Judiciary on January 2016.
[12] William Musyoka, Criminal Law.
[13] Art 2(1) of constitution
[14] art 37 of the Convention on Rights of a Child
[15] Art 53(2) of the constitution and s 190 of the Children’s Act
[16] Art 54(1)(a) of constitution
[17] Art 54 (1)(e)of 2010 constitution
[18] Sentencing policy guidelines www.kenyalaw.org/.../sentencing_Policy...
[19] Art 50(1)(2) of the 2010 constitution
[20] Caroline Auma v Republic criminal appealNo.65 of 2014[2014]eKLR
[21] Art 50(2)(n) of 2010 constitution
[22] Art 50(2)(o) of 2010 constitution
[23] Section 169(1) of Criminal Procedure Code and Art 73(2)(d) of 2010 constitution
[24] Fatuma Hassan Salo (v) Republic [2006] eKLR
[25] Criminal appeal 344 of 2006
[26] [1984] KLR 697
[27] Art 73(1)(a)(iii)(iv)(2)(b) of 2010 constitution
[28] Art 50(k) 2010 constitution and s 323 of Criminal Procedure Code
[29] Criminal Appeal 359 of 2006
[30] Otieno (v) Republic [1983] eKLR
[31] Essentials of criminal procedure in Kenya by Patrick Kiage
[32] S 329 B of criminal procedure code
[33] Ibid17
[34] www.kenyalawresourcecentre.org/2011/07/sentencing.html?m=1
[35] S.329 C of criminal procedure code
[36] Ibid 17 and S.329D(1)(2)
[37] Ibid 17 and S 329 D (3)
[38] S329 E(2)
[39] Section 14 (1) Criminal Procedure Code
[40] See Odero v R (1984) KLR 621
[41] Section 26 (3) Penal Code.
[42] Section 28 (1) (a) Penal code
[43] Section 28 (1) (b) Penal Code.
[44] Criminal Procedure Code,Cap 75 s.15
[45] Criminal Procedure Code,Cap 75 s.178
[46] The Alcoholic Drinks and Control Act S.42
[47] The Penal Code section 33
[48] The Penal Code Section 119
