The concept of mitigation in criminal proceedings is crucial, as it aims to lessen the severity or harshness of the sentence.
I have been watching skits about courts. One common occurrence is when an accused person is found guilty before being sentenced and is asked by the court to present mitigating factors. What does this mean, and how does it change the course of the case, even though a pronouncement of guilt has already been made?
Dear reader,
Your question addresses the core of criminal law, as it seeks to define its purpose, whether in Kenya or elsewhere. When sentencing an accused person who has been found guilty, the responsibility lies primarily with the judge or magistrate. They must consider the interests, needs, and rights of four key parties: the victim of the crime, the state, the community, and the perpetrator.
It is essential to recognise the foundational principle and philosophical basis of law: to achieve justice and, importantly, to rehabilitate offenders into law-abiding citizens. This concern is explicitly addressed in Article 48 of the Constitution, which emphasises the right to access justice.
Justice must speak legal sense to the four key individuals involved in the justice system. This understanding aligns with the objectives of the Updated Sentencing Policy Guidelines (SPGs) of 2023, which were established in 2016.
Administering punishment
First justice involves retribution, which means administering punishment to an offender in a fair manner. Second, it encompasses deterrence; the purpose of punishment here is not only to discourage the offender from re-offending but also to send a clear message to the public that engaging in similar misdeeds will lead to serious consequences.
Third, justice emphasises rehabilitation, which refers to administering a punishment designed primarily to reform the offender’s criminal behaviour. Lastly, it includes restorative justice, which focuses on the court's actions to address the harm caused by the crime.
An important aspect of justice is community protection, which involves physically removing an offender from their residence to prevent further or repeated criminal acts. Three additional elements promote justice in criminal proceedings following a conviction: denunciation, reconciliation, and reintegration.
Denunciation reflects the community's condemnation of criminal behaviour, reconciliation involves mending the relationships between offenders, victims, and the community, and reintegration focuses on facilitating the offender’s re-entry into society. These objectives are embedded in the criminal response mechanisms utilised by judges and magistrates.
Criminal proceedings
These mechanisms are shaped by established punishment thresholds, often found in the Penal Code (Cap 63 of the laws of Kenya), sector-specific statutes, past court decisions (precedents), sentencing policy guidelines, and the discretion of the court to convict or acquit.
The concept of mitigation in criminal proceedings is crucial, as it aims to lessen the severity or harshness of the sentence. Legally, and in pursuit of justice, mitigation allows an accused person, who has been found guilty, to present evidence and arguments during the sentencing phase that could lead to a reduced penalty.
An important aspect of justice is community protection, which involves physically removing an offender from their residence to prevent further or repeated criminal acts.
Article 50 of the Constitution emphasises the right to a fair trial, which includes the consideration of an offender's mitigation. This important aspect was thoroughly examined by Justice Grace Nzioka in the appeal case of Republic v. Muchanga (Criminal Case 1 of 2020) [2025] KEHC 4949 (KLR) on March 26, 2025. Justice Nzioka engaged with the extensive and detailed submissions from the respondent. In her judgment, she referenced the Supreme Court of Kenya's ruling in the case of Muruatetu & Another vs. Republic (2017), where the court stated, "It is evident that the trial process does not stop at convicting the accused.
Promote leniency
There is no doubt in our minds that sentencing is a crucial component of a trial. It is during sentencing that the court hears submissions that affect the sentence. This necessarily means that the principle of fair trial must also be applied at the sentencing stage."
The overall impact of mitigating factors is to promote leniency within a framework that ultimately seeks justice. If the court is presented with factors such as remorse, a history of offences (as many individuals may identify themselves as first offenders), parenthood, being the sole breadwinner, or time spent in pre-conviction detention, it may consider a shorter prison term or concurrent sentences for those convicted of multiple crimes.
However, it is crucial to recognise that certain crimes carry mandatory sentences. In these cases, the conviction is based on a predetermined standard, particularly in cases involving sexual offences against children.
In conclusion, mitigation should be understood as an essential component of sentencing objectives, ultimately aimed at ensuring societal safety while fostering the hopeful reintegration of offenders back into the community.
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