MITIGATION

A mitigating factor, in law, is any information or evidence presented to the court regarding the
defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence. 1

This is the time to plead with the Magistrate or Judge for leniency. The accused sets out what may
amount to mitigating factors. Common reasons offered in mitigation includes,

(i)

The accused is a first offender

It is the practice of the courts not to sentence a first offender to the maximum sentence unless there is
a good reason to do so. In Arrisol vs. Republic2 the appellant was sentenced to the maximum sentence
of 3 years for the offence of unlawfully and with intent to injure or annoy, causing poison to be
administered to another person. On appeal, the sentence was reduced to (18) months for he was a
first offender and of good character. The court further held that it was unusual to impose the
maximum sentence on a first offender and it would be wrong to depart from that rule.
In Mavuta vs. Republic3, the court imposed the maximum sentence of 3 years on the appellant who
had been convicted of conspiracy to defraud a bank. This sentence, being the maximum, was upheld
on appeal although the appellant was a first offender because a substantial sum of money (230, 130)
was involved and due to the prevalence of conspiracies and frauds that were undermining the banking
industries.

(ii)

The accused is the sole breadwinner in the family

(iii)

The accused is remorseful,

(iv)

The offence committed might have been a technical one or that the accused was ignorant that
his actions amounted to criminal conduct

th

Blacks Law Dictionary, Henry Campbell Black, M.A., revised 4 ed., West Publishing Co., 1968, p. 450
2
(1957) EA 447 CA
3
(1973) EA 89 (HCK)
By Tumusiime Isaac +254712214954

(v)

External factors such as provocation

(vi)

Internal factors such as stress

(vii)

Restitution

Where an accused has returned the property stolen to the complainant this is a factor to be taken into
account as part of the convicts mitigating factor. In Mwaura vs. Republic4 it was held that restitution of
property is a factor which should be taken into account by a trial court in assessing sentence but only
in exceptional circumstances by an appellate court when made and offered after conviction and
sentence. After conviction and sentence, any attempted restitution is likely as an attempt to bargain
for a reduction of sentence and not as an indication of repentance.

(viii)

Medical Evidence

Medical evidence of illness of a convict should be brought to the attention of the trial court before
sentencing, if it is available, otherwise it will not be admitted on appeal. And in Firdos Verjee vs. R5 it
was held that a convict cannot be released to seek medical treatment outside prison when medical
facilities are available in prison.

(ix)

Lesser degree of participation

Where a crime is committed by two or more people acting as a group there may be grounds for
differentiating among the accused on the basis of whether their roles were minor or major. Leniency
may be extended to a man who plays only a subordinate or less important role in the crime, while the
ringleader may merit the full punishment appropriate to the offence itself. In Komtbo s/o Haji vs.
Republic613 members of the Dar es Salaam Charcoal Union marched to the forestry office with the
intention of commandeering in the name of Commercial Revolution. They entered the office over the
clerks objection, placed a board outside and hoisted a flag in the window, all the while engaging in a
4

(1976) KLR 118 (HCK)

(1979) KLR 16 (HCK)
6
(1967) H.C.D 226
5

By Tumusiime Isaac +254712214954

loud conversation in an unintelligible tongue. They were convicted inter alia of unlawful assembly,
and on appeal the chief justice noted that there would have been justification for imposing a more
severe sentence on the ringleader if his role could be established.

Somewhat the same approach was taken in one of the appeals from sentence imposed in the English
Great Train Robbery case.7The court held: The conspiracy to rob the mail train was on any view a
very grave crime, and, in the cases which we have already dealt with of conspirators who were shown
to have been in the inner circle of the conspiracy, sentences of 25 years imprisonment have been
upheld. However, in any given case the court must look at the part played in the conspiracy by the
particular person bearing in mind that, in a large undertaking of this kind, there may be many different
shades of guilt between those who played different parts in the conspiracyThe appellant
Cordreyagreed to assist the other conspirators by being available in oxford on the after the robbery
to receive, disperse and hide the share of the lootOn that view, the appellant Cordrey clearly was
properly convicted of receiving and properly convicted of conspiracy on that view was significantly less
than the part played by the conspirators in what I have called the inner circle. We think having again
considered this matter with considerable care that a significant difference in sentence is justified
between that passed on the appellant Cordrey for his part in the conspiracy and that passed on the
conspirators in the inner circle.The substantive sentence of twenty years was reduced to fourteen.

(x)

Loss of Self-Control

The court have long held that a man who commits an offence while less than normally capable of
controlling his behaviour or of taking into account the consequences which flow from his actions may
deserve mitigation. In Claudio s/o Mbela vs. Republic,8 the accused was convicted of causing grievous
harm and sentenced to 10 months imprisonment. On appeal, Biron J. reduced sentence so as to result
in his immediate release, stating that it is abundantly clear that his assault on the complainant was
completely out of character, doubtless due to the excessive consumption of alcohol. Although

7
8

R vs. Boal (1964) 3 All ER 269 at 276

(High Court of Tanzania) Crim. App. 702-D-66 (unreported)
By Tumusiime Isaac +254712214954

drunkenness does not ipso facto constitute a mitigating factor it certainly does in this instant case,
for as remarked, it caused the appellant to act entirely out of character.

(xi)

Good motive

Clearly related to cases where an offence is committed due to trying circumstances are those in which
the accused commits a crime out of an essentially good or understandable human motive. In R vs.
Kwangwala9, the accused was convicted of perjury and sentenced to six months imprisonment with
hard labour. It appears that she was called to give evidence at a preliminary inquiry in which her
husband stood charged with murder. At the inquiry she made contradictory statements, one alleging
that her husband had not left home on the night of the crime. On appeal, the conviction was quashed,
and the court remarked as regards sentences that although perjury is a serious offence, leniency
should be extended to a wife who gives false testimony to save her husband.

(xii)

Necessity

In certain instances, an accused finds himself in a situation such that it is very difficult-perhaps even
impossible-to avoid committing an offence. Such situations often arise where the law imposes a
positive duty on the accused to do what he is supposed to do. In Thacker Singh vs. Republic, the
appellant was convicted on his own pleas of failing to complete and forward to the director of the
national provident fund the appropriate forms in respect of contributions to the Fund, and of failure to
pay into the Fund the contributions from his employees. He was sentenced respectively to a fine of
Shs. 200/=or imprisonment for two months in default and a fine of Shs. 400/=or imprisonment for four
months in default. On appeal the fine were reduced to Shs. 100/-on each count. Biron J. stated: In
mitigation the appellants counsel is recorded as stating that the appellant employed his labour on
contractual work from the Dodoma District Council, and as the Dodoma District Council had delayed
payments due on the contract, he was therefore unable to forward the contributions towards the
provident fund. There is nothing in the record to indicate whether the Magistrate believed the plea in
9

1923-60 A. L. R. Mal. 184

By Tumusiime Isaac +254712214954

mitigation or not. The facts stated in the plea, if untrue, could easily have been disproved, and as they
are by no means improbable they may well be, in fact probably are, true. Therefore in the absence of
any contradictions they should be accepted as true. To my mind, the fact that the appellant himself did
not receive payment from the District Council, and therefore was unable to forward the contributions
to the fund, constitutes a very strong mitigating factor, particularly so, as submitted by learned
counsel who appeared for the appellant at the hearing of the appeal.

(xiii)

Mistake of Fact

When a person commits a crime under a reasonable misconception as to the facts which, if true, would
excuse his actions, then normally he cannot be convicted of any offence. In R vs. Sultani Maginga10 a
man threw a spear at a couple who happened to be making love in his shamba at night, under the
reasonable impression that they were wild pigs, and was held not liable in the circumstances for killing
one of the couples. In certain instances, however, a mistake of fact does not furnish an accused with a
defence to the charge, either because his belief, though honest, was not reasonable, or because the
offence itself is one of strict liability, and so excludes the defence of mistake of fact.

(xvi) Conflict of Laws

This situation arises where there is a conflict between the criminal and customary practices or beliefs.
The offender is to somewhat aware that he is doing is a crime, but is forced into it by the dictates of
tradition. Such cases pose very delicate problems of sentencing. On the one hand such an offender
clearly is not greatly to blame for his crime. On the other hand, it is imperative that people be deterred
from following traditional practices which the legislature has decided are harmful enough to be
declared criminal. In R vs. Ali s/o Nassoro and others, the four accused were attending a circumcision
ceremony which was strictly restricted to males only, when it was discovered that a woman had
somehow gained entrance. She was seized by the accused, forcibly stripped and circumcised on the
spot. They were convicted of unlawful wounding and indecent assault and fined 50/- on each count.
10

(1969) H. C. D 109
By Tumusiime Isaac +254712214954

On revision, the accused were asked to show cause why their sentences should not be enhanced. It
was argued on their behalf that since women were forbidden to enter the place of circumcision, the
accused genuinely feared that unless the woman was circumcised herself terrible consequences would
befall both the accused and the boys being circumcised. The conflict was solved by a compromise
sentence of 12 months, which was somewhat lower than the normal sentence for a similar act done
maliciously, but higher than the original sentence, which merely took into account the mitigating
factors and ignored the need for deterrence.

(xiv)

Ignorance of the Law

From a moral point of view a man cannot be blamed for breaking the law when he did not know about
the law or misunderstood its effect, unless of course he can be blamed for his own ignorance, it follows
that other factors are to blame, such as failure to publicise a new law, or widespread traditional beliefs
which run contrary to the law. Punishing the offender in such a situation runs contrary to our sense of
justice. However, for policy reasons, ignorance of the law has been barred as a defence to a criminal
charge. The existence of such a defence would encourage people to remain ignorant of the law, and
would prevent the courts from applying the same laws impartially to all citizens, because they would
be forced to try each man according to his own conception-or-misconception-of the law. However,
ignorance of the law obviously lessens a mans responsibility for a crime, and may be taken as
mitigation in sentencing.11

Some of the reasons are by and large more successful than others. For example, pleading that one is a
first offender is more likely to influence the court towards leniency than to plead that ones culpability
was reduced by virtue of stress. Musa Salim vs. Republic12 involved an appeal against a sentence to
serve seven years imprisonment for stock theft contrary to section 278 of the penal code; the High
11

Glanville Williams, Criminal Law-the General Part (London: Sweet and Maxwell, 1961), 289, 291; Kennys outlines of
criminal law, 19th ed., by J.W.C. Turner (Cambridge: University Press, 1966), 62
12
Criminal Appeal 20 of 2004 High Court
By Tumusiime Isaac +254712214954

Court substituted the trial sentence with a sentence of 3 years with hard labour as the appellant was a
first offender. The reason for this is that stress is considered part of everyday human life unworthy of
special consideration.

The court is not allowed to question the accused during this mitigation address other than to clarify
something the accused has said. This rule is based on two principles; firstly that the accused should not
be compelled to prejudice his own case and secondly, that the judge is an independent arbiter in an
adversarial trial and according to the well known metaphor the court; should not descend into the
arena and have its vision clouded by the dust of the conflict by examining the accused.

Mitigation of the death penalty

Sentence of death must not be pronounced on or recorded against any person convicted of an offence
if it appears to the court that at the time when the offence was committed he was under the age of 18
years. In lieu thereof, the court must sentence such person to be detained during the presidents
pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions
as the president may direct, and whilst so detained shall be deemed to be in legal custody. 13In R v
Susan Akoth14 Justice K. H. Rawal ruled that child offenders even though charged with the offence of
murder are not punishable by sentence of death.

The death sentence cannot also be imposed on a pregnant woman and she too, would be detained at
the presidents pleasure. 15

Points to remember during Mitigation

The most important thing to remember above all is eye contact. You must look at the judge.

13

Section 25 (2) of the Penal Code (Cap 63 Laws of Kenya)

High Court of Kenya, Criminal Case No. 236 of 2003, (ureported).
15
Makwanyane Case
14

By Tumusiime Isaac +254712214954

 You must seek ways to distinguish your case from other cases or your defendant from codefendants. Mitigation is about putting an offence in a certain category.
By stating what the offence is not, we often help the judge to place the offence within an
appropriate bracket of seriousness. You might say a burglary is of commercial not domestic
premises, and therefore less serious; in daylight and not at night, and therefore less serious;
when premises were unoccupied, not occupied by the sleeping owners, and therefore less
serious; the offence was spontaneous and not premeditated; the window was open, not
broken; and so on.
Call character witnesses if possible, even sometimes where the defendants have previous
convictions. It is always helpful for a judge to have the measure of a defendant from what
others apart from what the advocate says about him. In the absence of live witnesses, hand up
references, particularly from work.
Look up the likely sentence in the Penal Code (Chapter 63 Laws of Kenya). This is very important
as it helps to know what sentence the accused will receive. It is embarrassing to suggest to an
accused that he will receive less than is ordered.
Know when to stop. Run each point through like a swordsman, deliberately, not hurriedly, but
solidly. List your points clearly.
Finally, tell the judge what sort of sentence you seek and why. Review the sentencing options
explaining which sort of sentence is suitable and why. And be realistic in your suggestion. You
will damage your credibility if you seek a particular sentence which is wholly inappropriate.

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