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When judges temper justice with logic and understanding

By Julius Chepkwony | Nov 16th 2021 | 5 min read

Your relationship with family and the community might come in handy when you are on the wrong side of the law.

It is a situation that has led to courts slapping harsh sentences or being lenient on accused persons based on probation reports tabled before judges and magistrates.

For instance, a passionate plea by a 10-year-old boy to a Nakuru court saved his mother from spending three years in jail for causing him grievous bodily harm.

In a probation report, the boy pleaded with Principal Magistrate Yvonne Khatambi to consider a non-custodial sentence for his mother.

The mother had admitted to pouring hot water on him on June 8, 2021, after he refused to do household chores.

A probation report by Dorothy Ngigi indicated that the boy had forgiven his mother, adding that locking her up in jail would cause him more misery.

“The victim says he is now feeling much better and had forgiven his mother because he believes that he wronged her, and that is why she became angry. He wishes to be reunited with his family,” reads the report filed in court on July 5. 

The court considered the mitigation by the minor and the fact that the woman was a first offender to issue a non-custodial sentence.

“I sentence the accused to probation for three years. During the said period, the accused is expected to adhere to probation order, failure to which she should be arrested and a custodial sentence imposed,” Khatambi ruled.

Anthony Kipketer, a teacher, who appealed a 12-year jail sentence for forcibly demanding a share of his father’s piece of land in Wareng, Uasin Gishu County, will remain in custody.

Justice Stephen Githinji declined to release the teacher on bond until the appeal is heard and determined.

A probation report had shown that Kipketer is abusive and often assaulted his mother and sister and disrespected his father on many occasions.

The court noted from the probation report that the accused had sold 30 acres of his land to a hospital in Eldoret and then went to demand more land from his parents.

“He was shown where to build but demanded more. The parents narrated the painful experiences the applicant has taken them through. The mother stated how he assaulted her and cursed that she bore him," read the report.

"The sister alleged that the accused broke her hand. The father is full of bitterness, alleging the applicant brought him sorrows for many days.”

Vincent Misita, 35, on the other hand, was handed an 18-month sentence in July for stealing Sh150,000 from his landlord and using the money to construct a house for his family in Kisii.

Misita committed the offence on May 4, 2021, in Kiti, Nakuru East Sub-county. He stole an ATM card, a national identity card, and Sh150,000, property of Charles Mathenge.

Mathenge had requested Misita to assist him withdraw Sh5,000 from a Family Bank ATM in Nakuru town since he has an eye problem. The man gave Misita his ATM pin.

The court heard that on the material date, Mathenge fainted due to blood sugar. His son, Erastus, then requested Misita to watch over Mathenge because he wanted to sort out something in town.

Celebration, not remorse

Mathenge and Misita are said to have later entered a bar to drink. When Mathenge got drunk, Misita took his ATM card. He then travelled to Kisii the following morning, where he withdrew the said money.

Mathenge realised after three days that his ATM and ID cards were missing. When he visited Misita’s home, the wife informed him that she had seen Misita with the documents. 

A report by Gerald Wanyama, a probation officer in Nakuru, indicated that Mathenge requested the man to refund him even half of the money, but he refused.

“Your honour, I have interviewed the offender and his family, and there is a clear indication of more of celebration on what the offender did than being remorseful. This has further been confirmed by the area assistant chief. He (Misita) has already relocated his family to Kisii,” reads the probation report.

The report indicated that Mathenge was very bitter and objected to having a non-custodial sentence for Misita.

“The victim says the accused is a rough person whom he fears that once released, he will go back to Kisii and never refund his money,” reads the report.

The probation officer said the man showed little to no signs of genuine remorse, and so, he was not fit for consideration for a non-custodial sentence.

Principal Magistrate Khatambi, having considered the facts in the case and mitigation by Misita, sentenced him to 18 months in jail.

Paul King’e, probation hostels manager in Nairobi, says when cases are referred to them, they have to carry out a social enquiry.

He says the social investigations entail meeting the area chiefs, the opinion leaders and church leaders to get all the information about the accused person. This information assists them to know how society views the accused.

The accused's character

King’e says the information gathered can either be positive or negative, depending on the accused's character.

He says the community might say the accused is not the kind of person who would have done such an offence and are surprised, or they might consider him/her a threat.

“Relatives are likely to stand up for someone depending on the kind of relationship they have with the accused. If they feel that the accused has been a difficult character to deal with, they may shy away. But if they feel the person is reliable and cooperative, they accept him and stand up for him,” says King’e.

He notes that the social inquiry also forms a basis on whether an individual needs assistance.

“If the community says they have no problem if the accused is released back to society, we consider the accused is not a threat and therefore, qualifies for a non-custodial sentence,” he says.

However, lawyer Collins Situma says the probation reports might not have much influence.

“It depends on the nature of the offence committed. Defilers and rapists should forget this. They must serve the jail term,” he says.

Judge Joel Ngugi says the Victims Protection Act requires the court to consider the impact of the crime on the victims.

“The relationship between the offender and the victim matters in sentencing. For example, if they have reconciled, it would influence the court’s decision,” he said.

Justice Ngugi says in many family matters, the court would be interested in restoring the relationships between the parties and would consider a sentence that has the best option of achieving this.

He says the social enquiry report gives information about the accused person, his background and the circumstances in which the offence was committed. He says the court could order such reports even in murder and robbery with violence cases.

The High Court judge says the details provided in the report are important factors in sentencing for all crimes.

“Yes, a court can order such a report even for murder. In the face of the Muruatetu decision, which holds that there is no mandatory death sentence even for murder, a probation report could supply important mitigating (or aggravating) factors which would influence the court decision,” he says.

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