A good number of the general public who have showed keen interest in the prosecution of former Migori Governor Obado have wonde`red why there has to be another Court date after the former governor was found guilty of the death of the Late Sharon Otieno and her unborn child. In this article we shall therefore offer a brief explanation on what happens post judgment and conviction in the Criminal Justice process.

The Judgment reading and conviction.

After both the Prosecution and defence sides of the trial have concluded their cases and examined and cross-examined all the witness they submit their final arguments of their respective cases to the Judge, or Judicial officer who will then take their time to consider the cases before the court, each side of the argument, consider the evidence, witness statements and the law to finally come to a decision.  The strict balance of proof (beyond reasonable doubt) which is required in criminal law makes it such that the Court must do a thorough consideration of all the above to come to a conclusion, this conclusion would either be guilty, or not guilty. The guilty conclusion is what is referred to as a conviction.

Procedures of Sentencing

The Sentencing Policy guidelines of 2023, provides for the rules of sentencing under the Kenyan Criminal Justice System. Upon conviction, one can receive a custodial or a non-custodial sentencing depending on the grievousness of the crime or the special circumstances of each particular case. Although recognized under Kenyan Law, the last death sentence execution took place in 1987. In the famous Muruatetu case the court gave a decision that the mandatory death sentence with regards to murder was unconstitutional. Therefore, it is highly unlikely that the former governor will be sentenced to death.

It is possible in the time of sentencing that two people who had committed the same crime could receive different sentences, this should not cause any negative perception against the judiciary. Various circumstances may lead to a court coming to such decision, for example the overcrowding of prisons have seen petty offenders, and those charged with misdemeanors receive non-custodial sentences.

Mitigating Circumstances

The period between conviction and sentencing always gives the court time to consider what sort of sentence is appropriate for a particular case, this is necessary since ion some cases they need top get reports from probation office, from local administration or children’s officers. In some cases, the mitigating circumstances are within judicial notice and the convicted individual do not have to expressly pray the court for their consideration. The mitigating circumstances would include;

Criminal history of the offender- First time offenders especially in non-felony cases are always more likely to receive lighter sentences than repeated offenders.

Conduct of the offender – The willful cooperation and remorsefulness of an offender would in some cases make them receive non-custodial sentences, or other rehabilitative measures that may vary their sentences in comparison to other unremorseful convicts.

Age and Medical Conditions- In cases where the convicts are of advanced age, or have some serious medical conditions that would be impossible to manage in prison, the court may decide to give them a non-custodial sentence, especially when such conditions render them as not a threat to the community.

Responsibility to third Parties – In cases where the convicted person is a sole benefactor or carer of vulnerable dependants the court would often prescribe non-custodial sentences.

Community Protection—Where the probation report shows that a convicted person is not likely to be a threat to the community and could be well rehabilitated through no-custodial sentences, the same could be prescribed or a lesser custodial sentence.

The Right to mitigation.

Keeping in mind the gravity of the offence that the former governor of Migori is charged with, it is still a provision of the sentencing guidelines that every convict has the right to have their individual mitigating circumstances considered, the same was affirmed by the court in the Muruatetu case. For example, even in a very serious felony, the guidelines provide that a pregnant woman cannot be sentenced to death.

Being a very public case and the nature of the whole matter, the trial and conviction of the former governor has riled the public passions and struck a lot of debate in within the public as to the probability of the offender receiving the proper punishment for such heinous crime. The law also prescribes mandatory minimum sentences in serious crimes, the court is bound by those provisions and must not impose a sentence lower than what is prescribed. Having in mind the provisions on mandatory minimum sentences, the right to mitigation can only do so much, and cannot persuade the Court to go below the mandatory minimum sentence, as in this current case where the former governor has been convicted of premeditated murder of a pregnant mother and her unborn.

Conclusion

The court by following the sentencing policy guidelines have therefore to take their time between the conviction and sentencing to consider all these before the final prescription of the appropriate sentence to the convict after all consideration. All the same the convict is also entitled to the right to appeal the conviction or to review the sentence given by court where they believe that the sentence given by Court was too harsh in the circumstances or that the court did not give due consideration to their mitigating circumstances.