Amendment of Section 8(4) of the Sexual Offences Act to remove the minimum mandatory sentence of 15 years

Abstract

Sentence procedures in Kenya have been influenced by particular conditions, resulting in a specific trajectory in the terrain of defilement cases. Discretion was crucial in resolving the complexities present in every case, and these conditions were traditionally carefully considered during court proceedings. However, this discretionary liberty has been severely limited by the imposition of a mandatory penalty, as stated in Section 8(4) of the Sexual Offences Act No 3 of 2006. As a result, uniform procedures are routinely used to decide cases, ignoring the subtle differences between each case that may exist. This paper aims to critically examine whether the minimum mandatory sentence of 15 years should remain in place and to investigate whether doing so would provide a more equal means of handling defilement cases. The main objective is to ascertain if doing away with this mandatory sentencing provision would enable a more proportionate decision-making process in defilement cases, adjusting sentences to better reflect the gravity of each distinct offence.