PLEA
Nature of a Plea
Once informed of the substance of the charge or information, including the statement of offence
and particulars for each count, the accused is called upon to plead (sections 207 & 274, CPC).
The possible pleas that an accused plead include;
i. Plea Guilty
ii. Plea Not Guilty
iii. Say nothing: i.e. refuse to plea, assuming that he understands the proceedings
iv. Plead: autrefois acquit
v. Plead autrefois convict,
vi. Plead pardon
vii. Say that the Court has no jurisdiction over him
viii. Plead guilty subject to a plea agreement
The charges against an accused person must be clearly explained and interpreted by the court. In
Charo v Republic [1982] KLR 308, it is a fatal omission not to explain to the accused all the
elements of a charge. If the accused does not understand the court's language, an interpreter
must be provided to translate both the charge and the proceedings- section 207 of the CPC as was
the position in Adan v R [1973] EA 445; John Muendo Musau v R, Court of Appeal at Nairobi,
Appeal No. 365 of 2011.
The accused must personally plead to the charge as was the position in Johnstone Kassim
Mwandi & Another v R High Court at Garissa Criminal Appeal No. 1 of 2014. In Ganji v
Republic [1910-20] 2 ULR 10, the accused person should plead personally and not through his
advocate.
The plea should be recorded as nearly as possible in the accused person’s own words, as was
held in Wamithandi v Republic 3 EALR 101
Where accused persons are unrepresented, the court should ensure that the charge and all
elements of the offence are thoroughly explained to them -Judy Nkirote v R, High Court at Meru,
Criminal Appeal No. 48 of 2010.
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The prosecution must furnish the accused with a charge sheet or information. The particulars
contained in the charge sheet or information must be sufficient to enable the accused to answer
the charge and prepare their defence -art. 50(2)(b), CoK.
Where there is more than one accused person, each must be addressed individually, and their
individual responses recorded as nearly as possible in their own words as was held in Baya v R
[1984] KLR657.
A corporate entity can be charged with a criminal offence - Mumias Sugar Co. Ltd. W. S. M.
Adambo v Republic [2010] eKLR. As such, the person taking the plea is authorised to do so on
behalf of the corporate entity- Manager, Nanak Crankshaft Ltd. v Republic, through City Council
of Nairobi [2008] eKLR. 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 as provided for under section 23 of the Penal Code and was the position in Clay
City Developers Limited v Chief Magistrate’s Court At Nairobi & 2 others [2014] eKLR.
Procedure for taking Plea
Plea of Guilty
Where an accused 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 stipulated in section 207(2) & (3) and, in a High Court, in section 274 of the
CPC.
Adan v R [1973] EA 445 sets out the procedure as follows: - If the accused admits the charge, the
court must record the admission as nearly as possible in the words used by the accused and then
formally enter a plea of guilty. The aim is to ensure that the plea of guilty is unequivocal and that
the plea as recorded cannot be interpreted in any way other than as an admission of guilt. Where
the accused is unrepresented, the plea of guilty is unequivocal. In Farahat Ibrahim Ahmed & 2
others v Republic [2016] eKLR, the court held that ‘the danger of a conviction on an equivocal
plea is obviously grievous where the accused is unrepresented, is of limited education and does
not speak the language of the court’.
The accused person’s plea must be specific and not merely a general assertion of guilt. In
Kariuki v R [1984] eKLR, the trial court record read: ' Accused 1–story is correct; Accused 2–do;
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Accused 3–do; Accused 4– do; Court–plea of guilty entered for all’ (presumably ‘do’ for ditto).
The Appeal Court held that the court had failed to follow the procedure for recording a guilty
plea as set out in s. 207(2) of the CPC. It also noted that the trial court's use of the word ‘do’ did
not constitute an admission of facts and therefore ordered a retrial. Moreover, the Court
proceeded to provide an outline of the manner in which a plea of guilty is to be recorded, as
follows:
i. The trial magistrate or judge must read and explain to the accused the charge and all the
ingredients of the offence, in the language of the accused or a language the accused
understands.
ii. He 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.
iii. 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.
iv. If the accused does NOT agree to the facts or raises any question to the facts, his answers
should be recorded and a change of plea entered.
v. 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.
Where the accused is charged with more than one count, the court should record a plea on
each count separately; this was the position in Ombena v Republic [1981] eKLR. The court
must be satisfied that the accused wishes to admit, without any qualification, each and every
element of the offence charged and a plea of guilty is recorded. In Jason Akhonya Makokha v
Republic [2014] eKLR, the court 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 element of the offence.
Once an accused person admits the charge, the prosecutor is required to state the facts
upon which the charge is based. It is not enough for the prosecutor to state ‘facts as per the
charge sheet’. The statement of facts must be explained to the accused in a language that he or
she understands. This implies not just a language which the accused understands, but also the use
of ordinary words; technical words should be avoided.
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The accused must admit the facts as stated for the court to satisfy itself that the plea is
unequivocal. In Obedi Kilonzo Kevevo v Republic [2015], 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 Republic [1981] eKLR, the
appellate court was not satisfied that the plea was unequivocal because the prosecutor had simply
indicated that the ‘facts were as per the charge sheet’.
The accused must understand the substance of the charge, as was held in Job Ntabo Ratemo
v Republic [2015] eKLR. When an accused person facing a charge punishable by death wishes to
plead guilty, the court ought to explain the penalty attracted by the offence. In such a case, it is
good practice to adjourn the hearing and allow the accused to reflect on the plea before
proceeding to convict. The court must be convinced beyond doubt of the intention of the accused
to plead guilty.
No appeal is allowed in the case of an accused person who has pleaded guilty and has been
convicted on that plea, except as to the extent or legality of his sentence. However, in Ndede v
Republic [1991] KLR 567 the Court stated that it has inherent and/or residual powers to entertain
appeals against guilty pleas where the proceedings are found to be a nullity:
i. Where a plea of guilty has been entered as a result of undue pressure
ii. Where there was doubt as to whether the accused had complete freedom of choice
whether to plead guilty or not guilty
iii. Where there has not been a free plea because the plea has been made under threats or
pressure from the Court
iv. Where an accused has pleaded guilty to an offence that does not, in fact, exist or the facts
do not disclose any offence.
Can a plea of guilt be entered in the absence of the accused?
Article 50(2) of the Constitution- an accused person should be present during the trial.
Narotthands Vithlam v Republic [1957] E.A. 343, the Court held that a trial held, even partly, in
the absence of the accused person is a nullity. However, if the accused conducts himself in such a
way as to render continuation of the trial in his or her presence impossible, such accused person
may be removed from the Court and the trial may proceed in his or her absence.
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In minor offences that do not involve felonies and are punishable by a fine or imprisonment for
up to three months, the Court may allow the accused to be absent from personal attendance if
they plead guilty in writing or appear through an advocate. In Manager, Tank Building
Contractors v Republic [1968] EA 143, the Court held that before the advocate can plead guilty
for the client, the issue of the appearance of the accused should be dispensed with first.
Plea of Not Guilty
A plea of not guilty is entered in the following instances:
i. The accused does not admit the charge (s. 207(3), CPC)
ii. The accused does not admit the statement of facts (Adan v R [1973] EA 445; (John
Muendo Musau v R Court of Appeal at Nairobi Appeal No. 365 of 2011); or
iii. The accused refuses to plead (ss. 207(4) &280(1), CPC).
The procedure where the accused person denies the charge is that the Court hears evidence from
the complainant and witnesses, allowing the accused or their advocate to cross-examine them. If
the accused makes an inculpatory statement at arraignment suggesting guilt while pleading not
guilty, that statement cannot be used against them in court.
Pleas of several accused persons
Where there are two or more accused persons, each accused person pleads separately to the
charge or charges. The plea of each accused person should be recorded separately and, as far as
possible, exactly in his or her own words.
In matters of conviction and sentencing, discretion lies with the magistrate, particularly when a
defendant pleads guilty before other co-defendants. In Karuma Bukenya v Republic [1952] 19
EACA 23, the court held that a guilty plea should result in sentencing before the trial of the co-
accused, avoiding bias in testimony. Conversely, Mutuku v Republic [1982] KLR 313 indicates
this procedure is not absolute, allowing for postponed sentencing to ensure a fair assessment
based on complete case details. In Republic v Payne, held that a guilty plea should culminate in
sentencing only after all defendants are tried, permitting an evaluation of relative culpability.
Refusal to take a Plea
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In the High Court, if an accused person, due to malice or infirmity, remains mute and cannot
respond to information, the Court may instruct the Registrar to enter a plea of "not guilty" on
their behalf, which holds the same weight as an actual plea. The Court also has the authority to
assess the accused's mental state. If deemed of sound mind, the trial proceeds; if found unsound,
the trial is postponed, and the accused is kept in safe custody, with the case reported for
presidential order.
Whereas in the Subordinate Courts, where the accused person refuses to plead, the Court shall
order a plea of “not guilty” to be entered for him. In Wachira and others v Republic [1956] 23
EACA 562, when charged, the accused person refused to plead. He proceeded to create
uproarious raucous in Court, raising doubts as to his sanity. After medical examination, a
psychiatrist gave evidence that the accused person was mentally normal and was merely
simulating a disease of the mind. The accused continued to cause disturbance such that it was not
possible for the trial to be conducted in his presence. A plea of not guilty was entered, the
accused was removed, and most of the trial took place in his absence. The Court of Appeal held
that the course adopted by the trial court was strictly correct.
Procedure for Persons of Unsound Mind
All persons are presumed to be of sound mind until the contrary is proved as provided under
section 11 of the Penal Code. When a person of unsound mind is charged, the procedure is as
follows:
i. The court must determine whether the accused is of sound mind by referring him or her
to a psychiatrist. Thereafter, if the court is satisfied that the accused is of sound mind, the
court must require the person to take a plea.
ii. 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 -
sections 162&280(1) of the CPC:
a. Postpone the trial;
b. Order either that the accused be held in custody in a location where he is safe and
will not be a danger to himself 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.
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When making an order for an accused to be held in safe custody, the court should bear in mind
the need to protect the accused and other persons.
Where an accused person subsequently becomes capable of making his defence, the medical
officer must forward a certificate to that effect to the DPP, who must then inform the court and
indicate whether the Republic intends to continue with the case. The court must then order the
production of the accused and either discharge the person if the prosecution does not wish to
proceed or continue taking the plea -section 164 of the CPC.
Plea of Autrefois Acquit or Autrefois Convict- section 279 CPC
The general provision is that a person who has been tried by a competent court for an offence
and either convicted or acquitted is not subject to retrial on the same facts for that same offence,
provided that the conviction or acquittal has not been reversed or set aside S138, CPC- Nicholas
Kipsigei Ngetich & 6 others v Republic [2016] eKLR. However, a person may subsequently be
tried for another offence that he or she could have been charged with in the former trial under
section 135 of the CPC (s. 139, CPC). An accused person may also be charged with respect to an
act whose consequences had not occurred or were not known at the time of the previous trial (s.
140, CPC). The plea of autrefois acquit or convict does not apply to instances where the accused
was tried by a court that was not competent (s. 141, CPC).
If the accused pleads that he or she has previously been convicted or acquitted of the same
offence, the court is required to try that plea. If the plea of a previous conviction or acquittal is
not established, the accused is required to plead to the charge (s. 207(5), CPC).
A previous conviction should be proved through a certified record of the court, a certificate
signed by the officer in charge of the prison in which the accused had been detained, or a warrant
of commitment to prison (s. 142, CPC).
Plea of Autrefois Acquit
The term autrefois acquit means that if a man has been tried and found to be not guilty of an
offence by a Court competent to try him, the acquittal is a bar to a second charge for the same
offence. A conditional discharge is a bar to a plea of autrefois acquit, but an absolute discharge is
not.
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An absolute discharge happens when a magistrate finds the accused guilty but chooses not to
impose a punishment, instead simply cautioning the individual. The magistrate may feel that no
further punishment is necessary, as the conviction itself serves as sufficient punishment, thus
exercising discretion to convict and caution the accused. The discharge is absolute, and the
accused may plead autrefois convict to a subsequent charge on the same facts.
A conditional discharge occurs when the prosecution requests that the charge be withdrawn at
any time before the accused is called upon to make his defence, and the magistrate discharges
him. Such a discharge will not operate as a bar to subsequent proceedings, and he may not plead
autrefois acquit. In Republic v Nathu and another [1944] 11 EACA 62, the appellants were
charged with certain offences but were later on discharged. As the magistrate did not make a note
of this in the case file, there was some doubt as to whether the prosecutor did specifically ask to
withdraw in this instance. The appellants were subsequently charged with the same offences on
the same facts. The Court of Appeal held that the magistrate had rightly applied the section, had
discharged the accused and had not acquitted him. As such, the plea of autrefois acquit was not
available to him
Plea of Autrefois Convict
The rule against double jeopardy is particularly stringent in convictions. The determining factor
is not the similarity of the facts involved in the two trials, but rather whether the individual has
been convicted of an offence that is identical to the one they are facing charges for subsequently.
In Republic v Thomas [1949] 2 All E.R. 662, the accused was convicted of wounding his wife
with intent to murder and received a seven-year prison sentence. A year and a day later, the wife
died from the injuries. The Court of Criminal Appeal held that, despite the prior conviction for
wounding, the accused could be retried for murder and could not invoke the plea of autrefois
convict.
A person who has been convicted or acquitted of an offence related to certain acts may still face
charges and trial for a different offence stemming from the same acts, provided that the court that
initially tried the case lacked the jurisdiction to adjudicate the subsequent offence.
A previous conviction outside Kenya can be established by presenting a certificate from a police
officer in that country, which includes a copy of the sentence or order and the fingerprints or
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photographs of the convicted person, along with evidence that these belong to the accused-
section 142(3) CPC.
Procedure in case of a previous conviction- S 277 CPC
Where the information contains a count charging an accused person with having been previously
convicted for an offence, the procedure is as follows:
a. the part of the information stating the previous conviction shall not be read out in Court,
nor shall the accused be asked whether he has been previously convicted as alleged in the
information, unless and until he has either pleaded guilty to or been convicted of the
subsequent offence
b. if he pleads guilty to or is convicted of the subsequent offence, he shall then be asked
whether he has been previously convicted as alleged in the information;
c. if he answers that he has been so previously convicted, the judge may proceed to pass
sentence on him accordingly; but if he denies that he has been so previously convicted, or
refuses to or does not answer the question, the Court shall then hear evidence concerning
the previous conviction.
Change of Plea
An accused person may change a plea of guilty to not guilty at any time before a sentence is
imposed as was held in John Muendo Musau v Republic [2013] eKLR; where the court reiterated
the obligation to register a plea of not guilty when an accused changes the plea or when the
accused makes statements in mitigation that counter the guilty plea.
An accused may also change a plea of not guilty to a plea of guilty, as was the position in
Boniface Muteti Kioko v Republic [1983] eKLR. The court should be careful to ensure that the
accused understands the decision to change the plea just as the court would if the accused had
entered a plea of guilty from the outset.
Plea Bargaining
After an accused has been charged or at any time before judgment, the prosecutor and an accused
person may negotiate and enter into an agreement for the reduction of a charge to a lesser
offence, for the withdrawal of the charge, for a stay of other charges, or for a promise not to
proceed with other possible charges (s. 137A, CPC).
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An offer for a plea agreement can be initiated by either the prosecutor or an accused individual,
or their legal representative. Subsequently, both parties must inform the Court of their intention
to negotiate, although the Court must remain uninvolved to maintain its impartiality as an
independent arbiter. Such agreements may stipulate restitution or compensation by the accused
and can only be established post-charge but before judgment. In instances of private prosecution,
a plea agreement requires the written consent of the DPP to prevent collusion between private
prosecutors and suspects that might compromise future legal proceedings. Furthermore, any plea
agreement on behalf of the Republic must be executed by the Attorney-General, the Director of
Public Prosecutions, or authorised officers, all of whom must obtain written permission from the
Attorney-General to proceed with the agreement.
Section 137 (D), A prosecutor can only enter into a plea agreement-
a. after consultation with the police officer investigating the case;
b. with due regard to the nature of and the circumstances relating to the offence, the
personal circumstances of the accused person and the interests of the community.
c. unless the circumstances do not permit, after allowing the victim or his legal
representative to make representations to him regarding the contents of the
agreement- Section 9(1)(c), Victim Protection Act.
Section 137 (E), A plea agreement must-
i. Be in writing and accepted by the accused person; or explained to him in a language he
understands
ii. 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 interpreted accurately during the negotiations and in respect of the contents of
the agreement
iii. State fully:
the terms of the agreement
substantial facts of the matter
all other relevant facts of the case and any admissions made by the accused person
iv. Be signed by the accused person or his legal representative
v. Be signed by the complainant if a compensation order has been included in the agreement
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Plea agreements may not be used in relation to prosecutions under the Sexual Offences Act,
offences of genocide, war crimes, and crimes against humanity.
The court does not participate in plea negotiation and should not interfere with the prosecutor’s
discretion to engage in plea negotiations. However, where the prosecutor is in breach of
obligations under Article 157(11) of the Constitution, a party may apply to the High Court for
appropriate orders, as was the case in Mary Kinya Rukwaru v Office of the Director of Public
Prosecutions & another [2016] eKLR.
Before recording a plea agreement, the court is required to place an accused person under oath
and personally address him or her. The court must inform the accused and ensure that the
accused understands the rights about the trial and the implications of the plea agreement (137F
(1), CPC). The accused is informed of, and the Court determines that he understands:
a. the right to
plead not guilty, or having already so pleaded, to persist in that plea
be presumed innocent until proved guilty
remain silent and not to testify during the proceedings
not being compelled to give self-incriminating evidence
a full trial
be represented by a legal representative of his own choice, and where necessary,
have the Court appoint a legal representative
examine in person or by his 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 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 is waiving his right to a full trial
c. the nature of the charge he is pleading to
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, restitution, or both
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h. that by entering into a plea agreement, he is waiving the right to appeal except as to the
extent or legality of the 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.
The prosecutor is required to present the factual basis of a plea agreement to the Court, which
must then confirm the existence of this basis. The court is not obligated to accept any negotiated
plea agreements from the parties.
The court must also be satisfied that at the time of entering the agreement the accused was
competent, of sound mind, and acted voluntarily - section 137G of the CPC.
When a court accepts a plea agreement, it must record the ‘factual basis’, that is, the facts
informing the plea - section 137H(1)(a), of the CPC. The facts that the accused admits to must be
recorded in order to ensure that they support the offence. The agreement becomes binding on the
parties and forms part of the court record, as was held in Alvin Kamande Njenga & another v
Republic [2012] eKLR. Where the agreement involves the reduction of a charge to a lesser
included offence, the court must, upon accepting the plea agreement, convict the accused of that
lesser offence- section 137H(2) of the CPC.
Where a court rejects a plea agreement, it must record the reasons for the rejection and inform
the parties. The plea agreement then becomes null and void, and proceedings giving rise to it
become inadmissible in a subsequent trial or in any future trial relating to the same facts. Where
a plea agreement has been rejected, and a plea of not guilty consequently entered, the prosecutor
must institute fresh proceedings before another judge/magistrate, unless the accused waives the
right to have the trial proceed before another court. If a plea agreement has been rejected, then
there can be no further plea agreement negotiations in relation to the same facts; further, no party
can appeal or apply for a review of an order rejecting a plea agreement- section 137J of the CPC.
An accused person may withdraw a plea of guilty resulting from a plea agreement for any reason
before the court accepts the plea. The accused may also withdraw a plea of guilty after the court
has accepted the plea agreement and entered a conviction, but before sentencing. In this instance,
the accused must provide the court with a fair and just reason for requesting withdrawal - section
137K of the CPC.
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A sentence passed by the court following a plea agreement is final, and no appeal lies from it
except as to the extent or legality of the sentence imposed, this was the position in David Irungu
Muriithi v R Court of Appeal Criminal Appeal No. 379 of 2009. However, a conviction and
sentence obtained pursuant to a plea agreement can be set aside on account of fraud or
misrepresentation- section 137L of the CPC.
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