UNDERSTANDING HOW SENTENCING WORKS
What remission means, mitigation, what rights survive beyond walls and options after conviction - What Most People Get Wrong
By Ibalai Vallary
Advocate Trainee · Ibalai Legal
This one started with a question someone posted online “Jela huwa wanahesabu usiku na mchana kama separate days?” The answer is NO. However, that question opened a door to something bigger most Kenyans have no idea how sentencing and imprisonment actually work. From the moment, the judge says guilty, to what happens behind those prison walls and to what the law says you can still do about it.
The moment the judge says“Guilty”
The gavel comes down guilty. The sentence is pronounced ten years, fifteen years or life imprisonment. The room shifts, some people weep or some go silent. And the person in the dock and often their family in the gallery is left trying to process words they may not fully understand.
What starts now? What rights remain? What can actually change between the day of sentencing and the day of release?
Kenyan law has a lot to say about all of it. Most of it, you have never been told. Starting with the myths that keep circulating online because some of them have real consequences for how people understand their rights (Constitution of Kenya 2010, Bill of Rights).
Myth vs Fact: The questions Kenyans are actually asking
MYTH 1: “Day and night are counted as separate days in prison — so a 20-year sentence means only 10 years inside.”
A sentence of 20 years means 20 calendar years day and night are not counted separately. A year in prison is the same 365 days as a year outside. This myth is so widely believed it has caused real confusion about how long people actually serve but it has no basis in Kenyan law whatsoever.
What can reduce a sentence is something entirely different and it is called remission. More on that below.
MYTH 2: “Once sentenced, you serve the full term no matter what.”
FACT:
Not necessarily because remission exists. Under the Prisons Act, Cap 90, a prisoner who maintains good conduct throughout their sentence is entitled to remission of up to one third of their sentence (Prisons Act, Cap 90, Section 46). What this means in practice a person sentenced to 15 years who behaves well could serve as little as 10 years before release. A person sentenced to 3 years could be released after 2 years.
Remission is not automatic mercy it is earned through consistent good behavior, participation in rehabilitation programmes and compliance with prison rules. It can also be forfeited if a prisoner commits a disciplinary offence inside. The moment someone enters prison, their conduct begins to shape how long they will actually stay.
MYTH 3: “Life imprisonment means you die in prison.”
FACT:
In Kenya, that is no longer the settled position. For decades, “life imprisonment” was treated as imprisonment until natural death. Then came a landmark shift in Godfrey Ellis Ngotho v Republic [2016] eKLR, the Court of Appeal held that life imprisonment should be interpreted as 30 years not the natural life of the prisoner (Godfrey Ellis Ngotho v Republic [2016] eKLR, Court of Appeal). This means that someone sentenced to life imprisonment in Kenya is not necessarily condemned to die behind bars. After 30 years, subject to remission and other considerations, release becomes a legal possibility.
That said the law on this continues to evolve and courts are not always consistent the facts of each case always matter.
MYTH 4: “Children get the same sentences as adults.”
FACT:
The entire sentencing framework is different for minors. As covered in the Utumishi Girls breakdown the Children Act 2022 and the Constitution of Kenya 2010, Article 53 both create a completely separate framework for child offenders (Children Act, 2022; Constitution of Kenya 2010, Art. 53). The death penalty does not apply to minors, life imprisonment does not apply to minors. Sentencing for minors is guided by rehabilitation and correction not punishment alone.
The Moi Girls fire case Republic v TWG [2022] is the clearest Kenyan precedent. A 14-year-old convicted of manslaughter for a fire that killed ten classmates was sentenced to 5 years, shaped entirely by the Children Act framework. The adult criminal sentencing framework simply did not apply (Republic v TWG [2022], Milimani High Court).
How sentencing actually works in Kenya
When a court convicts an accused person, sentencing is not arbitrary. The judge or magistrate does not pull a number from thin air. It matters a structured process and understanding because it is the stage where an advocate can make the most difference.
Under Section 216 of the Criminal Procedure Code, a court must hear both the prosecution and the defence on the question of sentence before imposing it (Criminal Procedure Code, Cap 75, Section 216). This is called a sentencing hearing. A skilled advocate who presents proper mitigation at this stage can significantly reduce what a client ultimately serves. The difference between a 10-year and a 5-year sentence is often made here, not at trial.
- The nature and gravity of the offence — a premeditated act is treated differently from an impulsive one.
- The circumstances of the accused — age, mental health, family situation, employment status, and community ties all matter.
- Whether the accused is a first offender or has prior convictions — a clean record carries significant weight in mitigation.
- The impact on the victim and their family — courts take victim impact seriously, particularly in violent offences.
- Mitigating factors — a guilty plea, genuine remorse, cooperation with authorities, or a plea of provocation can all reduce a sentence.
- Aggravating factors — premeditation, use of a weapon, multiple victims, or the particular vulnerability of the victim will increase a sentence.
None of these factors operates in isolation they are weighed against each other. This is why “same offence, different sentence” is not a scandal it reflects different facts, different circumstances and different mitigation. Two people charged with the same offence can walk away with very different sentences, entirely lawfully.
The types of sentences Kenyan courts can impose
Most people think sentencing means prison it does not. Kenyan courts have a range of options and the choice between them is guided by the nature of the offence, the profile of the offender and increasingly the state of Kenya’s prisons.
The most common custodial sentence. Can range from days to life. The sentenced person is committed to a specific correctional facility depending on the length of their sentence and the nature of their offence.
A monetary penalty sometimes imposed alongside imprisonment, sometimes as the sole sentence for less serious offences. Failure to pay a fine can result in imprisonment in default.
Instead of prison, the offender is released under the supervision of a probation officer for a set period, with conditions to comply with regular check-ins, restrictions on movement or association, and participation in rehabilitation programmes.
Governed by the Probation of Offenders Act, Cap 64 (Probation of Offenders Act, Cap 64). Violation of probation conditions can result in the original custodial sentence being activated.
An alternative to short custodial sentences. The offender performs unpaid work in the community for a set number of hours. Increasingly used by Kenyan courts for minor offences particularly where a prison sentence would be disproportionate or where overcrowding makes incarceration counterproductive.
The sentence is imposed but not immediately executed. If the offender stays out of trouble for the specified period, they do not serve it. It hangs over them as a deterrent. If they reoffend during the suspension period, both the new sentence and the suspended one can be activated.
The death penalty exists in Kenyan law for murder and robbery with violence under the Penal Code, Cap 63 (Penal Code, Cap 63). However, Kenya has maintained a de facto moratorium on executions since 1987 meaning no one has been executed in Kenya in nearly four decades, even where death sentences have been handed down by courts. The constitutionality of the death penalty in Kenya remains actively contested and has been the subject of significant judicial debate. Courts have in several cases commuted death sentences to life imprisonment.
Imprisonment is not a suspension of all rights. This is one of the most important things to understand and one of the most frequently misunderstood. Being convicted and sentenced does not mean the Constitution stops applying to you.
“A person who is detained, held in custody or imprisoned retains
all the rights and fundamental freedoms in the Bill of Rights, except to the
extent that any particular right or freedom is clearly incompatible with the fact that the person
is detained.” — Constitution of Kenya 2010, Article 51
Let us be specific about what that means in practice;
- The right to dignity (Article 28) — torture and cruel, inhuman, or degrading treatment remain unconstitutional even inside prison walls. This is absolute. The fact that someone has been convicted of a serious crime does not license the state to abuse him or her.
- The right to healthcare — prisoners are entitled to adequate medical treatment. In Ng’etich v Attorney General, the court held that denying HIV-positive remand prisoners access to ARV treatment was unconstitutional (Ng’etich v Attorney General, Kenya Law). That ruling extended protections that many assumed stopped at the prison gate.
- Right to legal representation — a prisoner can still instruct an advocate. Whether to pursue an appeal, challenge conditions of detention, or seek a sentence review, the right to counsel does not evaporate on conviction.
- The right to family contact — prison rules allow visits and communication. Cutting off a convicted person from their family entirely is not something the law authorises.
Freedom of movement — obviously. This is the core purpose of a custodial sentence.
- Voting rights- prisoners on remand retain the right to vote under the current framework. Convicted prisoners do not. This distinction matters, particularly for those awaiting trial who have not yet been found guilty of anything.
A critical point that many people miss entirely time spent on remand counts toward your sentence. This is not a matter of discretion. It is a legal entitlement.
If an accused person is held in custody before their trial and is eventually convicted, the court must take into account the time already spent in remand when imposing sentence. Section 333(2) of the Criminal Procedure Code requires courts to factor in pre-trial detention (Criminal Procedure Code, Cap 75, Section 333(2)). Failure to do so is a ground of appeal.
However and this is where it gets important this is not automatic in practice. Your advocate must actively raise it at the sentencing hearing. Courts do not always do it unprompted. If you are representing yourself or have an advocate who fails to raise this point, you may end up serving time that should legally have been credited to you. That is not just an injustice. It is reversible on appeal.
A convicted person does not simply accept their sentence and disappear. The law provides multiple avenues for challenge and people use them successfully more often than most Kenyans realise.
An accused can appeal to a higher court arguing the sentence was excessive, or that the trial court failed to properly consider mitigating factors. Courts of Appeal regularly reduce sentences on exactly these grounds. The sentencing hearing at the trial court is not the end. It is the beginning of a process.
Under Article 133 of the Constitution of Kenya 2010, the President has the power to grant a pardon, commute a sentence, or grant a respite (Constitution of Kenya 2010, Article 133). This power is exercised on the advice of the Advisory Committee on the Power of Mercy. It is not common, but it is real and it has been used. Long-serving prisoners, those with deteriorating health and those whose circumstances have significantly changed since conviction have benefited from this power.
3. Review
In certain circumstances, sentences can be reviewed particularly where new evidence emerges after conviction, where the law itself has changed in a way that affects the case, or where there was a fundamental error in the original proceedings. This is a higher bar than an ordinary appeal, but it exists and it matters.
‘THE QUESTION THIS RAISES FOR KENYANS’
Ibalai Legal is a Nairobi-based online legal practice on a mission to make law accessible to every Kenyan. Through Be In The Know With Ibalai Legal, we break down complex legal concepts into clear, practical content for individuals, startups and SMEs.
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Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance.
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