FLB 201: CRIMINAL PROCEDURE

PLEAS
N.N. WAMBUA

PLEAS
Introduction.
A plea is a formal statement made by or on behalf of

a person charged with an offence in a law court.

The basis of plea taking in Kenya is section 77 of the
constitution of Kenya, 1963 (now under Article 50 of
the Constitution); every person who has been
charged with a criminal offence shall be presumed
innocent until he is proved or has pleaded guilty.

According to Section 77 (2) (b) of the repealed

Constitution, an accused person shall be

informed as soon as is reasonably practicable
in a language that he understands and in
detail, of the nature of the offence with which
he is charged. Sub-section 2(c) of section 77
states that, every person charged with a
criminal offence shall be pertained to defend
himself before the court in person or by a legal
representative of his choice.

1.2. Nature of Pleas

Section 207 of the Criminal Procedure Code

provides that the substance of the charge shall be

stated to the accused and he shall be asked whether he
admits or denies the same. If the accused admits the
charge, his admission shall be recorded as nearly
as possible in his own words and the court shall
convict him and record his conviction.
Section 207(3); 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.

Section 207(5) If the accused person pleads that

he has been previously convicted or acquitted

on the same facts of the same offence; or
that he has obtained the Presidents pardon for
his offence, the court shall first try whether the
plea is true or not, and 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.

See(Koech vs. R) whereby it was held

that the admission of all facts in the charge
is not necessarily a plea of guilty.
If an accused admits the assertions of fact
but proffers an explanation, the accuseds
statement should be treated as a plea of
Not guilty and then the prosecution will
be required to lead all their evidence.

Plea of guilty
This is a formal admission in court as to the guilt by

an accused person. It must be unequivocal for it

to be valid.
In R v. Yonasni Egalin[1942] it was observed
that, Its desirable not only that every constituent
of the charge should be explained to the accused
but also that he should be required to admit orally
every constituent of the offence charged. If the
accused is not represented care must be taken that
he fully understands the elements of the crime to
which he is pleading guilty.

section 281 of the Criminal Procedure

Code, if an accused person pleads guilty,

the plea shall be recorded and he may be
convicted thereon.

Unequivocal plea

A plea is said to be unequivocal when it

has been properly taken in accordance with

the laid down procedures of the law. It
binds on an accused person.
The principles governing the taking of an
unequivocal plea were set out in the case of
Adan vs.R (1973) EA 445 as follows;

1. The accused person must be fit to plead

The court is required to take steps to ensure that

the accused is fit to plead in that the accused is

not deaf or mute and if he is so the court
should ensure that he is made to understand the
progress of the proceeding
In R vs. Bubu (1959), where an accused is deaf
or mute first of all the court should find whether
the accused can be made to understand
substantially the whole of proceedings before
proceeding with the case

2. The accused must plead directly not

through an advocate.
It is regarded both in English Common law

and in Kenya that the accused must plead

to the charge himself.
In Manager Tank Building Contractors
vs. R. [1968] it was held that it is only in
cases where the attendance of an accused
is expressly dispensed with that an
advocate is entitled to plead for him. In all
other cases only the accused can plead to
the charge brought against him.

3. The charge must be read and explained to

the accused
Section 207 (1) of the Criminal Procedure

Code requires that the substance of the charge

shall be stated to the accused person by the court
and he shall be asked whether he admits or
denies the truth of the 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.

In Adan v. R (1973) EA 445 it was held

that the charge and all the essential

ingredients of the offence should be
explained to the accused in a language he
understands.

4. The charge or information must not be

defective
The charge sheet must be properly drawn

as to disclose the offence charged. A

purported plea of guilt to a defective
charge is not a plea at all and a conviction
on such a plea shall be quashed. See
Sections 134 137 Criminal Procedure
Code.

5. The facts must also be read to the accused

The prosecutor is required to read the facts of the case

before asking the accused to plead. It is not enough that

the facts are stated in the charge sheet. This helps to
guard against causing the accused to plead guilty to
wrong facts.
The accused must admit to both the charge and the
facts read to him before he can be said to have pleaded
guilty. Such admitted facts must disclose and or
reveal the offence charged. He must admit all
ingredients of the offence charged both the
actus reus and the mens rea.

6. The plea of the accused must be properly

recorded
all an accused person says in answer must

be recorded as clearly as possible and such

record must show the language used and
whether
or
not
there
was
any
interpretation from one language to
another and if so the name of the
interpreter.
The plea must be taken by a competent
judicial officer not just a court clerk.

In cases where the accused disputes the

facts of the charge, a plea of not guilty

must be entered.
Where there is more than one accused
jointly charged, the plea of each shall be
recorded separately, and if a charge or
indictment contains several counts, the
accused must be asked to plead to them
separately.

Plea of not guilty

In a plea of not guilty the accused person

controverts the existence of every fact

essential to constitute the given charge and
thereby puts in issue every essential
element of the offence charged.
section 208 of the Criminal Procedure
Code; if the accused person pleads not
guilty, the court shall proceed to hear the
complainant, witnesses and other evidence
if any.

A plea to the jurisdiction of the court

Each court has its jurisdiction set out

either by the constitution or the statutes.

Section 77(1) of the Constitution,
1963; unless a charge is withdrawn, the
case shall be afforded a fair hearing within
a reasonable time by an independent and
impartial court established by law.

A court that has no jurisdiction to try the

case cannot take the plea of an accused and

cannot therefore be arraigned by such a
court.
See R v.Ambari Juma (1959)
An accused is at liberty to plead that the
court has no jurisdiction to try him.

Change of Plea
The accused may change the plea of not guilty

to that of guilty in the course of a trial.

It may also be changed after the conviction but
before sentence.
In Mwakera v.R(1982-88) I KAR 1043, the
appellant had been allowed to change her plea of
guilty to one of not guilty after conviction but
before sentence. The court held that a plea of
guilty may be changed on reasons to be recorded
after conviction but before sentence.

In Kamundi v. R (1973) EA 540, the court

held that, there are no provisions regarding
change of plea, there are equally no provisions
to prevent a change of plea before the court
becomes functus officio.
Therefore, when a court has determined a case by
passing a sentence it is functus officio and has
no power to re-open the case either of its own
motion or on an application of the prosecution
or defence.

Plea bargaining
Plea

bargaining is simply an agreement

between the accused (with advice of his
advocate) and the prosecution, that in
exchange for a plea of guilty he will receive
favourable consideration by the court. i.e.
being charged with a less serious crime
resulting to a lighter sentence.
It helps the criminal justice system to clear and
decide cases faster, thus avoids overcrowded court
docks and backlog of cases and saves time on
prolonged litigation.

On the other hand, the accused even

though innocent may plea guilty for fear of

harsh sentence. Also, the judicial system
may be viewed as soft on hardened
criminals who plead guilty for lesser
offences in order to evade rigorous
punishment.
Plea bargaining is now practised in the
Kenyan Legal System.

THE END