Legal Update by Victor L. Andande & Co. Advocates
Criminal Justice | Constitutional Law | Child Rights

The High Court of Kenya has delivered a landmark decision reinforcing the constitutional requirement that the best interests of the child must be a central consideration in criminal sentencing, particularly where the offender is a mother or primary caregiver of young children.

This progressive ruling affirms that, where circumstances permit, non-custodial sentences such as probation should be preferred over imprisonment for mothers with dependent children.

Background of the Decision

In a series of sentence review applications, the High Court reviewed custodial sentences imposed on three women—Caren Jeptoo, Jane Kanda, and Sharon Jemeli—who were serving prison terms while caring for young children. Upon review, the Court set aside the custodial sentences and substituted them with probation orders.

The Court held that incarcerating mothers together with their children effectively results in the punishment of innocent minors, a consequence that is incompatible with Kenya’s constitutional and statutory framework on child protection.

Constitutional and Statutory Framework

In reaching its decision, the Court relied heavily on Article 53 of the Constitution of Kenya, which guarantees every child the right to parental care and protection and expressly provides that a child’s best interests are of paramount importance in every matter concerning the child.

The Court further applied the provisions of the Children Act, which gives effect to Article 53 and obligates all courts and public institutions to prioritise the welfare, safety, and development of children in decisions that affect them.

The judgment also reflects Kenya’s obligations under international child rights instruments, which require State parties to protect children from harm arising from the administration of criminal justice.

Judicial Reasoning

The High Court observed that Kenyan correctional facilities are not adequately equipped to meet the physical, emotional, and developmental needs of young children. As such, exposing minors to prison environments undermines their dignity, well-being, and long-term development.

The Court emphasised that sentencing courts must exercise judicial discretion judiciously, and where the law allows, consider non-custodial sentencing options such as probation or community-based supervision, especially where:

  • The offender is a primary caregiver;

  • The offence does not attract a mandatory custodial sentence; and

  • The interests of justice can be sufficiently met without imprisonment.

Importantly, the Court clarified that substituting imprisonment with probation does not amount to exemption from punishment, but rather represents a constitutionally compliant balancing of punishment, rehabilitation, and child welfare.

Orders of the Court

The custodial sentences were substituted with probation orders, subject to supervision by probation officers for the remainder of the sentence period. This ensured accountability on the part of the offenders while safeguarding the rights and welfare of their children.

Implications for Sentencing Practice in Kenya

This decision has far-reaching implications for criminal practice and sentencing in Kenya. It underscores that:

  • The welfare of dependent children is a mandatory consideration in sentencing, not a peripheral issue;

  • Non-custodial sentences are lawful and appropriate alternatives in suitable cases; and

  • Sentences imposed without due regard to the best interests of children may be subject to review or appellate intervention.

Our Legal Perspective

At Victor L. Andande & Co. Advocates, we view this decision as a critical step towards a more humane, rights-based criminal justice system. It reinforces the principle that justice must not only be firm, but also constitutional, proportionate, and sensitive to vulnerable persons, particularly children.

The ruling provides important guidance for judicial officers, prosecutors, defence counsel, and litigants on the proper application of sentencing discretion where children are directly affected by criminal proceedings.

Need legal advice or representation?
For expert guidance on criminal matters, constitutional rights, or sentence reviews, contact Victor L. Andande & Co. Advocates through www.andandelaw.co.ke or visit our offices in Embu.