5.Provide a benchmark for assessing the exercise of discretion.
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9 6.Address the overutilization of custodial sentences and promote the use of non-custodial sentences 7.Promote restorative justice values and process during sentencing. 8.Guide the sentencing of specific groups of offenders with unique needs. 9.Facilitate the participation and involvement of victims in the sentencing process. 10.Enhance co-ordination of the agencies involved in the sentencing process as well as in supervision of the sentences. According to our observation, some of these objectives were met while other were not. The first guideline; alignment of sentencing process to the provisions of the constitution is evident in article 159(2) of the constitution of Kenya where courts are guided by principles in exercising their judicial powers. Principles guiding courts and tribunals in exercising their judicial powers are as follows; a)Justice shall be done to all irrespective of status b)Justice shall not be delayed c)Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3) d)Justice shall be administered without undue regard to procedural technicalities; and e)The purpose and principles of this constitution shall be protected and promoted. One of the objectives of the sentencing policy which was not met was the issue of addressing the overutilization of custodial sentences and promote use of non-custodial sentences; the court preferred to use a custodial sentencing on petty theft case where, in our view, it should have used a non-custodial sentence instead. Children’s Act, 2001 Sec. 185(4) empowers courts to grant bail to child fenders pending their appearance before the Children’s Court.77The Children’s Act. 2001. Laws of Kenya.
10 Prevention of Terrorism Act, 2012 Recognises the right of every accused person to be released on bail. However, Sec. 35 creates an exception by providing that the rights of an arrested person may be limited in order to ensure the protection of the suspect or any witness, to ensure that the suspect avails himself for examination or trial or does not interfere with the investigations, to prevent the commission of another offence under the Act, or to ensure the preservation of national security.8RECOMMENDATIONS Since most of the suspects, in our observation were the unrepresented litigants, we noticed a number of problems they went through. At Kibera law courts, the proceedings were difficult to follow due to the inaudibility of the parties in the case, the parties in case could not hear each other well and since the accused were unrepresented, they stood a higher chance of being disadvantaged by the same, in our view, we would recommend Installation of microphones in court rooms to address this issue. Regarding the unrepresented litigants and considering how disadvantaged they were in comparison to the represented litigants, we would recommend that the government or state for that matter provide for them advocates so that the scale of justice can strike on a balance. Some cases, though petty, took a very long time in courts bringing
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