COURT ARRAIGNMENT - PLEAS

1. Introduction
A plea is a formal statement in response to the charge or information made by or on behalf of the
accused in a court of law. The basis of plea taking in Kenya are Articles 50 (2) (a) & (b) of the
Constitution of Kenya, 2010. According to Article 50 (2) (a), an accused person has the right to
be presumed innocent until the contrary is proved. Equally, Article 50(2) (b) requires the
accused to be informed of the charge, with sufficient detail to answer it.

Once the suspect/accused has appeared or been brought to court, the charges are read over to
him/her and called upon to answer to charges preferred against him/her. This process is
known as arraignment.
Arraignment of an accused person consists of three parts:-
 First, being called by name,
 Secondly, having the information or charge read to him/her and
 Thirdly, being asked to respond to the charges against him/her.

2. Statutory Basis of Pleas

Section 207(1) of the Criminal Procedure Code provides that the substance of the charge shall be
stated to the accused person by the court, and he/she shall be asked whether he/she pleads
not guilty, guilty or guilty subject to a plea agreement. Similarly, section 274 provides for
procedure of plea taking in the High Court.

If the accused admits the truth of the charge, his/her admission shall be recorded as nearly as
possible in his/her own words. Consequently, the court shall convict him/her and pass
sentence upon or make an order against him/her, unless there appears to it sufficient cause to
the contrary.

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Provided that after such conviction and before passing sentence or making any order, the
court may permit or require the complainant to outline to the court facts upon which the
charge was founded.1

According section 207(3) of the Criminal Procedure Code, if the accused person does not admit
the truth of the charge, the court shall proceed to hear the case.

If the accused person refuses to plead, the court shall order a plea of “not guilty” to be entered
for him/her.2

Under section 207(5) of the Criminal Procedure Code, if the accused person pleads that he/she has
been previously convicted or acquitted on the same facts of the same offence or that he/she
has obtained the President’s pardon for his/her offence, the court shall first try whether the
plea is true or not. If the court holds that the evidence adduced in support of the plea does not
sustain it, or if it finds that the plea is false, the accused shall be required to plead to the
charge.

3. Types of Pleas
In response to the charge or information, an accused person may:
a. Plead guilty;
b. Plead not guilty;
c. Remain silent;
d. Plead autrefois acquit;
e. Plead autrefois convict;
f. State that the court has no jurisdiction over him/her;
g. State that that he/she has obtained the president’s pardon for his/her offence;
h. Plead guilty subject to a plea agreement.

1
Section 207(2) of the Criminal Procedure Code Chapter 75 Laws of Kenya.
2
Ibid section 207(4).

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4. Recording Pleas
The court is required to explain the charge and all the elements of the offence to the accused in
a language he or she understands.3 It is a fatal omission not to explain to the accused person all
the elements of the charge.4 Where the accused is unrepresented, extra attention should be
taken to ensure that the charge and all the elements of the offence are thoroughly explained to
him/her.5

Except in simple and straight forward charges, it is not proper for the magistrate to delegate
this duty to the court clerk and even for simple charges, they must be read under the direction
of the court.

Where the accused does not understand the language of the court, it is mandatory that an
interpreter be availed to translate the charges and proceedings for the benefit of both the
accused and the court.6 Such interpreter should be sworn to faithfully and accurately discharge
the task and this should reflect on the record. In Republic v Abdi Ali7, the court stated that a plea
taken through an unofficial unsworn interpreter cannot be regarded as unequivocal.

The accused person should plead personally and not through his/her advocate. 8 It is only in
situations where a statute allows an advocate to plead on his/her client’s behalf that this rule
is qualified.

The plea should be recorded as nearly as possible in the accused person’s own words. 9

3
Adan v Republic (1973) EA 445; John Muendo Musau v Republic Court of Appeal at Nairobi Appeal No. 365 of 2011.
4
Charo v Republic (1982) KLR 308.
5
Judy Nkirote v Republic High Court at Meru Criminal Appeal No. 48 of 2010.
6
Article 50 (2) (m) of the Constitution of Kenya,2010.
7
(21) 2 KLR 116.
8
Johnstone Kassim Mwandi & Another v Republic High Court at Garissa Criminal Appeal No. 1 of 2014.
9
Wamithandi v Republic 3EALR 101.

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In Republic v Yonasani Egalu and Others 10, the Court stated that it is most desirable that not only
every constituent of the charge be explained to the accused person, but that he/she should be
required to admit or deny every constituent part thereof and that what he/she says should be
recorded in a form which would satisfy an appellate court that he/she fully understood the
charge and pleaded to every element of it unequivocally.

5. Plea of Guilty
Where an accused person admits the charge and the particulars of the offence, a plea of guilty
should be entered. The procedure to be followed where an accused elect to plead guilty in a
subordinate court is set out in section 207(2) & (3) of the Criminal Procedure Code. The procedure
in the High Court is set out in section 274 of the Act.

If the accused admits the truth of the charge, his/her admission shall be recorded as nearly as
possible in his/her own words and the court shall convict him/her and pass sentence upon or
make an order against him/her, unless there appears to it sufficient cause to the contrary. 11
The aim is to ensure that the plea of guilty is unequivocal and that the plea recorded cannot be
interpreted in any other way than as an admission of guilt.

Where the accused is unrepresented, the duty of the court to ensure that a plea of guilty is
unequivocal is heightened. In Farahat Ibrahim Ahmed & 2 Others v Republic12, the Court Held
that the danger of a conviction on an equivocal plea is obviously grievous where the accused is
unrepresented, of limited education and does not speak the language of the court.

The principles governing the taking of a plea of guilty were enunciated in the case of Adan v
Republic13as follows:

10
(1965) 9 EACA 65.
11
Section 207(2) of the Criminal Procedure Code Chapter 75 Laws of Kenya.
12
High Court at Kisumu Criminal Appeal No. 68 of 2016.
13
(1973) EA 45.

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 1. The person pleading guilty must fully understand the offence with which he/she is
charged. The court entering a plea of guilty must in its record show that the substance
of the charge and every element constituting the offence has been explained to the
accused in a language that he/she understand and that out of his/her free will the
accused admitted to the charge. This requirement applies not only to offences
punishable by death but to all offences. In Ngigi v Republic14, it was further held that the
accused should be required to admit or deny every element of the charge
unequivocally.
2. Where the offence is one punishable by death, the court recording the plea of guilty
must show in its record that the person pleading guilty understands the consequences
of his/her plea.
3. The prosecution should then immediately state the facts and the accused should be
given an opportunity to dispute or explain the facts or to add any relevant facts.
4. If there is no change of plea, a conviction should be recorded and a statement of the
facts relevant to sentence together with the accused person’s reply should be recorded.

In Kariuki v Republic15, four accused persons were charged jointly and their responses to the
charges were recorded as follows: ‘Accused 1- story is correct; Accused 2- Do; Accused 3- Do
and Accused 4- Do’. The trial Court entered a plea of guilty for all the accused persons. The
Court of Appeal stated that the word ‘Do’ recorded by the trial Court as the accused persons’
answer to the charge did not amount to an admission of the facts and therefore ordered a
retrial. The Court proceeded to provide an outline of the manner in which a plea of guilty is to
be recorded as follows:
1. The trial magistrate/judge must read and explain to the accused person the charge and
all the ingredients of the offence, in the language of the accused or a language the
accused understands.

14
(1987) KLR 98.
15
(1984)KLR 809.

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 2. The trial magistrate/judge should then record the plea in the accused person’s own
words and if they are an admission, a plea of guilty should be entered.
3. The prosecution must then immediately state the facts and the accused should be given
an opportunity to dispute, to explain or to add any relevant facts.
4. If the accused does not agree to the facts or raises any question as to the facts, his/her
answer should be recorded and a change of plea entered. If there is no change of plea, a
conviction should be recorded alongside a statement of facts relevant as well as the
reply of the accused.

A plea is said to be unequivocal when it has been properly taken in accordance with the laid
down procedures of the law. It is only an unequivocal plea of guilty that binds an accused
person. The principles governing the taking of an unequivocal plea as set out in the aforestated
cases may be summed as follows:

5.1 The charge must be read and explained to the accused

The charge together with the elements of the offence must be read and explained to the
accused person. This should be done in a language that the accused understands. Where the
accused does not understand the language of the court, it is mandatory that an interpreter be
availed to translate the charges and proceedings. It is not proper for the magistrate to delegate
this duty to the court clerk and even for simple charges, they must be read under the direction
of the court. It is a fatal omission not to explain to the accused all the ingredients of a charge.

In the High Court, it is required that the information be read over to the accused by the
registrar or other officer of the court and to be explained if need be by the officer or interpreter
before the accused is asked to plead. This requirement imposes a duty on the court to read and
explain the substance of the charge.

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In the case of Adan v. Republic16, the accused was charged with the offence of stock theft. He
was recorded by the trial magistrate as having pleaded guilty. He was convicted and
sentenced. He appealed on ground that the plea wasn’t unequivocal and the East Africa Court
of Appeal held, inter-alia, that the charge and all the essential ingredients of the offence should
be explained to the accused in a language he understands.
Spry V.C stated:
“When a person is charged, the charge and the particulars should be read out to him. The
magistrate then explains to him all essential ingredients of the offence charged. The reason for
this requirement is that often people misunderstand the proceedings and end up pleading to
things they don’t understand.”

In Republic v B.M. Patel17, the Court stated that it is not desirable that a plea of guilty should be
accepted where the plea contains no other word than ‘guilty’ as in such a case, the accused
may not have understood exactly the ingredients of the charge.

5.2 The plea of the accused must be properly recorded

The trial magistrate/judge should record the plea as nearly as possible in the accused person’s
own words. The record must show the language used by the accused and whether or not there
was any interpretation from one language to another and if so the name of the interpreter.

5.3 Where the offence is one punishable by death, the court recording the plea of guilty
must show in its record that the person pleading guilty understands the consequences of
his/her plea.
The practice is that the more serious the charge, the greater the caution exercised by courts in
accepting a plea of guilty. As such, rarely is a plea of guilty accepted in a capital charge unless
the court is satisfied that the plea is voluntary, informed and unequivocal.

16
(1973) EA 445.
17
(1985) KLR 22.

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Where the accused pleads guilty to an offence punishable by death, the practice by the courts
is to adjourn the hearing and allow the accused to reflect on the plea before proceeding to
convict.18

In Boit v Republic19, the Court stated that there is no law in Kenya which prevents a person
charged with an offence punishable by death from pleading guilty to such a charge. That being
the case, the court should before accepting and acting upon a plea of guilty take certain
safeguards, namely:
1. As with all other offences, the person pleading guilty must fully understand the offence
with which he/she is charged. The person should be told in detail and in a language
familiar to him/her the substance of the offence, the element or ingredients which
constitute it, the date and the approximate time on which the offence was committed
and the person against whom the offence was committed.
2. Where the offence is one punishable by death, the court recording the plea must show
in its record that the person pleading guilty understands that as a consequence of
his/her plea he/she will face a sentence of death.

In Onkoba v Republic20, the appellant pleaded guilty to the count of robbery with violence. The
Magistrate pointed out to him that there was a mandatory sentence of death to which he
replied that he understood and still wished to plead guilty. The matter was adjourned and on
the date of adjournment the Magistrate again asked the appellant if he realized that the death
sentence was mandatory, and whether he wished to maintain a plea of guilty. The appellant
said that he did. He was examined and found to be mentally alert and fit. The facts were given
by the prosecution after which the appellant said that he understood them and that they were
true but went on to tell the court he wished to get his wife back but ended up killing another
girl who stood in his way. The Magistrate entered a plea of not guilty in those circumstances
and fixed the matter for hearing.
18
Wandete David Munyoki v Republic Court of Appeal Criminal Appeal No.56 of 2013.
19
(2002) 1 KLR 815.
20
(1989)KLR 395.

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During the mention of the case the appellant came to court and said in English that he still
wished to admit to the offence of robbery. The Court reminded him about the intention he had
informed the Court he had when committing the offence. He disputed stating that he actually
intended to rob the girl he had killed. The Court reminded him that the consequence of such a
plea would be a death sentence to which he stated that he understood. The appellant was
convicted and sentenced to death.

The appellant appealed on the ground, inter alia, that he did not know what was going on in
the court. The High Court held that the plea was unequivocal and that from the record, it
appeared that the Magistrate would have liked to direct a plea of not guilty if only he could
find a way to do so. The record showed that he had made every possible enquiry advised by
relevant case law, and the replies of the appellant left him no way out whatsoever. The appeal
was dismissed.

5.4 The facts must also be read to the accused

Once an accused admits the charge, the prosecution must state the facts of the case and the
accused must be given an opportunity to dispute, explain or add any relevant facts. It is not
enough for the prosecutor to state ‘the facts are as per charge sheet’. The statement of facts
must be explained to the accused in a language that he/she understands. This implies not just
a language which the accused understands but also the use of ordinary word and avoiding
technical words. Even where an accused accepts the facts stated by the prosecution as true, the
court is under a duty to satisfy itself that such admission amounts to an unequivocal
admission of the offence charged.

In Kisivi v Republic21, the appellant was charged and convicted of stealing livestock. The
appellant was recorded as having said ‘Yes, it is true’ to the facts which were read by the
prosecution. The appellant was recorded as the one who had locked the shed from which the
cattle were stolen before they were found in the compound of one Dzuya. There was no

21
(1991) KLR 125.

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evidence linking the appellant with the movement of the animals to Dzuya’s compound. On
appeal the Court stated that the prosecution did not demonstrate how the appellant was
connected with the animals that were recovered. Unless the Magistrate elicits and gets enough
details of what happened and how the accused before him/her was connected with the offence
charged, it is likely that the plea will not be unequivocal.

In Lusiit v Republic22, it was held that the court should also be satisfied that the accused wishes
to admit, without any qualifications to each and every ingredient of the offence charged. If so
satisfied, the court is to record that the accused has been convicted on his/her plea of guilty.

In Obedi Kilonzo Kivevo v Republic23, the Court held that the statement of facts did not disclose
an offence because it did not indicate the age of the victim in a defilement case. The plea of
guilty was therefore not unequivocal.

In Ombena v Republic24, the Court was not satisfied that the plea was unequivocal because the
prosecutor had simply indicated that the facts were as per the charge sheet.

5.5 If the accused does not agree with the facts or raises any question as to his/her guilt, the
reply must be recorded and a change of plea entered. The courts have held that for the
accused to say ‘It is true’ is not necessarily a plea of guilty if it appears that the accused
disputes some elements of the offence.25

5.6 If there is no change of plea, a conviction should be recorded and a statement of the facts
relevant to sentence together with the accused person’s reply should be recorded.

5.7 The Plea of guilty must be free and voluntary.

22
(1977) KLR 143.
23
Court of Appeal Criminal Appeal No. 77 of 2015.
24
Court of Appeal Criminal Appeal No.36 of 1981.
25
Jason Akhonya Makokha v Republic Court of Appeal Criminal Appeal No. 131 of 2012.

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It is inappropriate for the magistrate or judge to advise an accused person as to whether to
plead guilty or not guilty. His/her function is only to explain the charge and make sure the
accused understands it. In Olel v Republic26, the High Court stated that if a plea of guilty is not
voluntary or is obtained by force or threats or torture or even deception, it cannot be said to be
unequivocal. Such a plea would be null.

6. Plea of Not Guilty

The court will enter a plea of not guilty where:
1. The accused does not admit the charge.27
2. The accused does not admit the statement of facts.28
3. The accused refuses to plead.29

Under section 208(1) of the Criminal Procedure Code, if the accused person does not admit the
truth of the charge, the court shall proceed to hear the complainant and his/her witnesses and
other evidence if any. The accused person or his advocate may put questions to each witness
produced against him/her.30

If the accused person is unrepresented, the court shall, at the close of the examination of each
witness for the prosecution, ask the accused person whether he/she wishes to put any
questions to that witness and shall record his/her answer.31

7. Effects of Refusal to take a Plea:

26
(1989) KLR 444.
27
Section 207(1) of the Criminal Procedure Code Chapter 75 Laws of Kenya.
28
Adan v Republic (1973) EA 445; John Muendo Musau v Republic Court of Appeal at Nairobi No. 365 of 2011.
29
Sections 207(4) & 280(1) of the Criminal Procedure Code Chapter 75 Laws of Kenya.
30
Section 208(2) of the Criminal Procedure Code Chapter 75 Laws of Kenya.
31
Ibid section 208(3).

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 7.1 In the High Court
If an accused person being arraigned upon an information stands mute of malice, or neither
will nor by reason of infirmity can, answer directly to the information, the court may order the
Registrar or other officer of the court to enter a plea of not guilty on behalf of the accused
person. A plea so entered has the same force and effect as if the accused person had actually
pleaded it.32

The court may also proceed to try whether the accused person is of sound or unsound mind. If
the accused is found to be of sound mind, the court will proceed with the trial. If he/she is
found to be of unsound mind, and consequently incapable of making his/her defence, the
court shall order the trial to be postponed and the accused to be kept meanwhile in safe
custody and report the case for the order of the President.33

7.2 In Subordinate Court

If the accused person refuses to plead, the court shall order a plea of not guilty to be entered
for him/her.34

In Wachira and Others v Republic35, the accused refused to plead to the charge. He proceeded to
cause chaos in court raising doubts as to his sanity. After a medical examination it was
determined that the accused person was normal and merely simulating disease of the mind.
The accused continued to create disturbance such that it was not possible for the trial to be
conducted in his presence. A plea of not guilty was entered on his behalf with most of the trial
conducted in his absence. The Court of Appeal held the course adopted by the trial court was
correct.

32
Ibid section 280(1).
33
Ibid section 280(1).
34
Ibid section 207(4).
35
(1956) 23 EACA 562.

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8. Pleas of Several Accused Persons
Where there are two or more accused persons, each must plead individually to the charge or
charges. The plea of each accused person should be recorded separately and as far as possible
in his/her words.36

It is matter of discretion for the trial court to convict the accused person who has pleaded
guilty before hearing the case of his/her co-accused who has pleaded not guilty.

In Karuma Bukenya v Republic37, the Court stated that where an accused pleads guilty and
he/she is convicted, it is desirable that he/she be sentenced before the court proceed with the
trial of his/her co-accused and calling him/her as a witness. That way, there will be no
suspicion that his/her evidence is coloured by the fact that he/she hopes to get a lenient
sentence.

However, it was held in Mutuku v Republic38 that the failure to do so is a curable defect and
there may be merit in postponing the sentence in order to hear a full account of the incident
and thereby arrive at a more just decision in the matter of sentencing.

The latter is the approach taken by the English Courts.

In Republic v Payne39, the Court of Criminal Appeal held that where there are two or more
accused persons and one of them pleads guilty, he/she should not be sentenced until the trial
of the others is concluded, when the position of the accused person can be considered and
their relative degree of guilt assessed for the purpose of sentence.

36
Baya v Republic (1984) KLR 657.
37
(1952) 19 EACA 23.
38
(1982) KLR 313.
39
(1950) 1 All ER.

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9. Pleas to Several Charges against an Accused
Where the accused person is charged with more than one count, the court should record a plea
on each count separately.40 The aim is to ensure that if there is a plea of guilty, the same is
unequivocal.

10. Pleas of Autrefois Acquit and Autrefois Convict

It is the fundamental principle of law that a person should not be prosecuted or punished
twice for the same offence based on the same facts. This is called the rule against double
jeopardy.

The Constitution provides in Article 50(2) (o) that the accused person has the right not to be
tried for an offence in respect of an act or omission for which the accused person has
previously been either acquitted or convicted.

Similarly, Section 138 of the Criminal Procedure Code provides that a person who has been once
tried by a court of competent jurisdiction for an offence and convicted or acquitted of that
offence shall, while the conviction or acquittal has not been reversed or set aside, not be liable
to be tried again on the same facts for the same offence.

Section 207(5) of the Criminal Procedure Code states that the accused person may plead that
he/she has been previously convicted or acquitted on the same facts of the same offence.

However, such convicted or acquitted person may subsequently be tried for another offence in
the following instances:
1. Under section 139 of the Criminal Procedure Code, a person convicted or acquitted of an
offence may afterwards be tried for another offence with which he/she might have been
charged on the former trial under section 135(1).

40
Ombena v Republic(1981) KLR 450.

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 2. Under section 140 of the Criminal Procedure Code, a person convicted or acquitted of an act
causing consequences which together with that act constitute a different offence from
that for which he/she was convicted or acquitted may be afterwards tried for the last-
mentioned offence, if the consequences had not happened or were not known to the
court to have happened at the time when he/she was acquitted or convicted.

3. Under section 141 of the Criminal Procedure Code, a person convicted or acquitted of an
offence constituted by any acts may, notwithstanding the conviction or acquittal, be
subsequently charged with and tried for another offence constituted by the same acts
which he/she may have committed, if the court by which he/she was first tried was not
competent to try the offence with which he/she is subsequently charged.

A plea of autrefois acquit shall suffice where the proceedings in the previous case were
discontinued after the prosecution had close its case41 or where the accused person was
acquitted because he/she had no case to answer.42

In respect of a plea of autrefois convict, the test is whether the accused has been convicted of
an offence which is the same as that with which he/she is subsequently charged.

This test was illustrated in the English case of Republic v Thomas43. The accused was convicted
of wounding his wife with intent to murder her and sentenced to seven years imprisonment.
Within a year and a day, the wife died of the wound. The Court of Criminal Appeal held that
although the accused had been convicted and sentenced for the wounding, he could properly
be tried for the murder and could not plead autrefois convict.

41
Article 157(7) of the Constitution of Kenya, 2010 and section 87(b) of the Criminal Procedure Code Chapter 75 Laws of
Kenya.
42
Section 210 of the Criminal Procedure Code Chapter 75 Laws of Kenya.
43
(1949) 2 All ER 662.

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11. Objection to the Jurisdiction of the Court
When the law establishes a court it spells out its jurisdiction and delineates the scope of its
jurisdiction.
An objection as to the jurisdiction of the court can be taken as a preliminary point and can be
raised in criminal cases. Such objections ought to be raised at the earliest opportunity because
jurisdiction is foundational to the very validity of the entire proceedings.

12. Change of Plea

The court has discretion at any time before sentencing to allow an alteration of plea. In Kioko v
Republic44, the Court of Appeal stated that an accused person may apply to change his/her
plea after the prosecution has opened its case and at any time before sentencing. That it was
within the discretion of the court, taking into account the demand of justice, to decide whether
to allow or disallow the application.

In Chacha v Republic45, it was held that if after pleading guilty to a charge, discussion follow
and the accused intends for any reason to amend his/her plea, the charge should be read to
him/her afresh whereupon his/her new plea shall be recorded.

This power is discretionary and as such the court may allow or refuse the application to
change plea. This is within the discretion of the court depending on the demand of justice. The
court, however, ought to accept the change of plea to a lesser charge where it has already
accepted that of a co-accused.46

An accused person may change a plea of guilty to not guilty at any time before a sentence.
Equally, an accused may also change a plea of not guilty to a plea of guilty.

44
(1983) KLR 289.
45
(1953) 20 EACA 339.
46
Kioko v Republic(1983) KLR 289.

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13. Retraction of Pleas
In the case of Republic v Fulabhai Patel and Another 47, the Court stated that once sentence has
been passed upon an accused person who has unequivocally pleaded guilty to a charge,
he/she cannot afterwards be allowed to retract the plea, unless he/she pleaded guilty to a
charge which in fact disclosed no offence.

14. Plea Bargaining

14.1 Plea Agreement Negotiation

Under section 137A(1) (a) &(b) of the Criminal Procedure Code, a prosecutor and an accused
person or his/her representative may negotiate and enter into an agreement in respect of the
reduction of a charge to a lesser included offence , withdrawal of the charge, a stay of other
charges or the promise not to proceed with other possible charges. Such an agreement shall be
entered into only after an accused person has been charged, or at any time before judgment. 48

A plea agreement entered into as aforestated may provide for the payment by an accused
person of any restitution or compensation.49 Where a prosecution is undertaken privately no
plea agreement shall be concluded without the written consent of the Director of Public
Prosecutions.50

14.2 Plea agreement on behalf of the Republic

A plea agreement on behalf of the Republic shall be entered into by the Director of Public
Prosecutions or officers authorized by the Director of Public Prosecutions in accordance with
article 157(9) of the Constitution and any other person authorized by law to prosecute.

47
(1946) 13 EACA 179.
48
Section 137A (3) of the Criminal Procedure Code Chapter 75 Laws of Kenya.
49
Ibid section 137A (2).
50
Ibid section 137A (4).

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Provided that in any trial before a subordinate court, a public prosecutor may with the prior
written approval of the Director of Public Prosecutions or officers subordinate to him/her, as
the case may be, enter into a plea agreement.51

14.3 Initiation of plea agreement

An offer for a plea agreement may be initiated by a prosecutor or an accused person or his
legal representative.52 The parties will then notify the court of their intention to negotiate a
plea agreement.53 However, the court shall not participate in plea negotiation between a public
prosecutor and an accused person. 54

14.4 Consultation with victim

A prosecutor shall only enter into a plea agreement after consultation with the police officer
investigating the case and after taking into account the nature of and the circumstances
relating to the offence, the personal circumstances of the accused person and the interests of
the community.55
The prosecutor shall also afford the victim or his/her legal representative the opportunity to
make representations to the prosecutor regarding the contents of the agreement, unless the
circumstances do not permit.56

14.5 Form of plea agreement

Section 137E of the criminal Procedure Code provides that a plea agreement shall be in writing,
and shall:
1. be reviewed and accepted by the accused person, or explained to the accused person in
a language that he/she understands;

51
Ibid section 137B.
52
Ibid section 137C (1) (a) & (b).
53
Ibid section 137C (2).
54
Ibid section 137C (3).
55
Ibid section 137D (a) & (b).
56
Ibid section 137D (c).

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 2. if the accused person has negotiated with the prosecutor through an interpreter, contain
a certificate by the interpreter to the effect that the interpreter is proficient in that
language and that he/she interpreted accurately during the negotiations and in respect
of the contents of the agreement;
3. state fully the terms of the agreement, the substantial facts of the matter and all other
relevant facts of the case and any admissions made by the accused person;
4. be signed by the prosecutor and the accused person or his/her legal representative;
5. be signed by the complainant if a compensation order has been included in the
agreement.

14.6 Recording of plea agreement by court

Under section 137F (1) of the Criminal Procedure Code, before the court records a plea agreement
the accused person shall be placed under oath and the court shall address the accused person
personally, informing him/her of, and determine that the accused person understands—
(a) the right to—
i. plead not guilty, or having already so pleaded, to persist in that plea;
ii. be presumed innocent until proved guilty;
iii. remain silent and not to testify during the proceedings;
iv. not being compelled to give self-incriminating evidence;
v. a full trial;
vi. be represented by a legal representative of his/her own choice, and where necessary,
have the court appoint a legal representative;
vii. examine in person or by his/her legal representative the witnesses called by the
prosecution before the court and to obtain the attendance and carry out the examination
of witnesses to testify on his/her behalf before the court on the same conditions as those
applying to witnesses called by the prosecution;

(b) that by accepting the plea agreement, he/she is waiving the right to a full trial;
(c) the nature of the charge he/she is pleading to;

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(d) any maximum possible penalty, including imprisonment, fine, community service order,
probation or conditional or unconditional discharge;
(e) any mandatory minimum penalty;
(f) any applicable forfeiture;
(g) the court’s authority to order compensation or restitution or both;
(h) that by entering into a plea agreement, he/she is waiving the right to appeal except as to
the extent or legality of sentence;
(i) the prosecution’s right, in the case of prosecution for perjury or false statement, to use
against the accused any statement that the accused gives in the agreement.

Similarly, the court shall, before recording a plea agreement, satisfy itself that at the time the
agreement was entered into, the accused person was competent, of sound mind and acted
voluntarily.57

The prosecutor shall lay before the court the factual basis of a plea agreement and the court
shall determine and be satisfied that there exists a factual basis of the plea agreement.58

14.7 Record of factual basis of plea

Where the court accepts a plea agreement it shall enter the factual basis of the plea on record.
The agreement shall then become binding upon the prosecutor and the accused and shall form
part of the record of the court.59
The court shall then proceed to convict an accused person accordingly.60

14.8 Address by parties

Upon conviction, the court may invite the parties to address it on the issue of sentencing.
In passing a sentence, the court shall take into account—
57
Ibid section 137G.
58
Ibid section 137F (2).
59
Ibid section 137H (1) (a), (b) & (c). see Alvin Kamande Njenga & Another v Republic High Court at Nairobi Miscellaneous
Criminal Application No. 282 of 2011.
60
Ibid section 137H (2).

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 1. the period during which the accused person has been in custody;
2. a victim impact statement, if any;
3. the stage in the proceedings at which the accused person indicated his/her intention to
enter into a plea agreement and the circumstances in which this indication was given;
4. the nature and amount of any restitution or compensation agreed to be made by the
accused person.61
Where necessary and desirable, the court may in passing a sentence, take into account a
probation officer’s report.62

14.9 Rejection of plea agreement

Where the court rejects a plea agreement it shall record the reasons for such rejection and
inform the parties accordingly. Such an agreement shall become null and void and no party
shall be bound by its terms. The proceedings giving rise to the plea agreement shall be
inadmissible in a subsequent trial or any future trial relating to the same facts and a plea of not
guilty shall be entered accordingly. 63

Where a plea agreement has been rejected by the court and a plea of not guilty consequently
entered, the prosecution may, upon being informed of the fact proceed to try the matter afresh
before another court. Provided that the accused person may waive his right to have the trial
proceed before another court.64

Upon rejection of a plea agreement, there shall be no further plea negotiation in a trial relating
to the same facts.65 The court’s decision rejecting a plea agreement is final and no party shall
appeal against, or apply for a review of, the order of the court rejecting the agreement.66

61
Ibid section 137I (1) & (2).
62
Ibid section 137I (3).
63
Ibid section 137J (1).
64
Ibid section 137J (2).
65
Ibid section 137J (3).
66
Ibid section 137J (4).

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 14.10 Withdrawal of plea
An accused person may withdraw a plea of guilty pursuant to a plea agreement. This may be
done prior to acceptance of the plea by the court, for any reason. Similarly, it may be done
after the court accepts and convicts on the plea, but before it passes a sentence, if the accused
person can demonstrate, to the satisfaction of the court, a fair and just reason for requesting
the withdrawal.67

14.11 Finality of Judgment

The sentence passed by a court pursuant to a plea agreement shall be final and no appeal shall
lie therefrom except as to the extent or legality of the sentence imposed. 68However, the
Director of Prosecutions, in the public interest and the orderly administration of justice, or the
accused person, may apply to the court which passed the sentence to have the conviction and
sentence procured pursuant to a plea agreement set aside on the grounds of fraud or
misrepresentation.69

14.12 Protection of plea agreement process

Notwithstanding anything contained in any written law for the time being in force, the
statements or facts stated by an accused person in a plea agreement shall not be used for any
other purpose except for the purpose of this Part.70

14.13 Application
Plea agreements shall not be used in relation to prosecutions under the Sexual Offences Act,
offences of genocide, war crimes and crimes against humanity.71

67
Ibid section 137K.
68
Ibid section 137L (1). See David Irungu Muriithi v Republic Court of Appeal Criminal Appeal No. 379 of 2009.
69
Ibid section 137L (2).
70
Ibid section 137M.
71
Ibid section 137N.

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15. Procedure for Persons of Unsound Mind
All persons are presumed to be of sound mind until the contrary is proved.72
When a person of unsound mind is charged, the court should proceed as follows:
1. The court must determine whether the accused is of sound mind by referring him/her
to a psychiatrist. Thereafter, if the court is satisfied that the accused is of sound mind,
the court will require the accused to take plea.
2. If the court finds the accused to be of unsound mind and consequently incapable of
understanding and following the proceedings, the court should proceed as follows: 73
a. Postpone the trial;
b. Order either that the accused be held in custody in a location where he/she is
safe and will not be a danger to him/herself or others, or that the accused be
released on bail; and
c. If the person is held in safe custody, report the case for the order of the
president.74
Where an accused person subsequently becomes capable of making his/her defence, the
medical officer must forward a certificate to that effect to the Director of Public Prosecutions
who must then inform the court and indicate whether the republic intends to continue with
the case.

16. Corporate Entities

A corporate entity can be charged with a criminal offence.75 The court must satisfy itself that
the person taking plea is authorized to do so on behalf of the corporate entity. 76 The officials of
a corporate entity may also be charged in their personal capacity for offences attributed to the
company based on their positions in the corporation and their conduct.77

72
Section 11 of the Penal Code Chapter 63 Laws of Kenya.
73
Sections 162 & 280(1) of the Criminal Procedure Code Chapter 75 Laws of Kenya.
74
Karisa Masha v Republic Court of Appeal Criminal Appeal No.78 of 2014.
75
Paper House of Kenya Limited v Republic Court of Appeal Criminal Appeal No. 468 of 2007; Mumias Sugar Co. Ltd. W.S.M.
Adambo v republic High Court Criminal Appeal No. 11 of 2008.
76
Manager, Nanak Crankshaft Ltd v Republic High Court Criminal Revision No. 763 of 2007.
77
Section 23 of the Penal Code Chapter 63 Laws of Kenya. See Clay City Developers Limited v Chief Magistrate’s Court & 2
Others High Court Miscellaneous Application No. 6 of 2013.

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 REFRENCES
Constitution of Kenya, 2010.
Criminal Procedure Code, Chapter 75 Laws of Kenya.
Penal Code, Chapter 63 Law of Kenya.
Kiage P, Essentials of Criminal Procedure in Kenya, Law Africa Publishing (k) Ltd, 2010.
Cited caselaw

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