Definition of a plea.

It is established that, legally, the word plea refers to all the defences, that the defendant brings
forward in the suit, both of law and of fact, directed at excluding in its totality or in part,
permanently or temporarily, the action brought against him.1

Purpose of Plea.

Marks the commencements of trial process in criminal proceedings pursuant to Article 50(2) of
the Constitution of Kenya 2010, which provides that, an accused persons is innocent till proven
guilty.

Affords the accused a fair hearing.

Taking a plea.

Once an accused person has been arraigned in court, the next step is for him to be informed of
and be called upon to answer the criminal charges preferred against him. The charge is read over
to him in open court complete with the statement of offence and the particulars of each count
to which he is required to respond. This is referred to as taking a plea.

Charo V Republic [1982] KLR 308

Accused was charged with possession of suspected stolen property contrary to Section 323 of
the Penal Code. Appeal was successful, as it was established that the facts did not support the
charge and werent read to be understood by the accused before taking plea. It is fatal omission
not to explain to the accused all the ingredients of a charge.

Where the accused person does not understand the language of the court, it is mandatory that
an interpreter be availed to translate the charge and the proceedings for the benet of the
accused and the court. The interpreter must rst be sworn to faithfully and accurately discharge
the task and this should be reected on the record. In Republic v Abdi Ali 21 (2) K.L.R. 116, the

1
F Roberti Trattato delle Azioni e delle Eccezioni Secondo i Principii delle Leggi Civili per lo Regno delle Due Sicilie
(Napoli Tip. F. Fernandes 1832) vol 2, 89.
Court said that a plea taken through an unofcial unsworn interpreter cannot be regarded as
unequivocal.

Further, the accused person should plead personally and not through his advocate. This was the
holding in Ganji v Republic [1910-20] 2 ULR 101, where the court held that it is only in situations
where a statute allows an advocate to plead on his clients behalf, such as in cases involving minor
trafc infractions that this rule is qualied.

The plea should be recorded as nearly as possible in the accused persons own words:
Wamithandi v Republic 3 EALR 101.

In Republic v Yonasani Egalu and others [1965] 9 EACA 65, the Court said that it is most desirable
that not only every constituent of the charge be explained to the accused person, but that he
should be required to admit or deny every constituent part thereof and that what he says should
be recorded in a form which would satisfy an appeal court that he fully understood the charge
and pleaded guilty to every element of it unequivocally.

Nature of a plea.

In answer to a charge, an accused person may:2

1. Plead Guilty (Section 207 CPC)

2. Plead Not Guilty (Section 208 and 282 CPC)
3. Say nothing: i.e. refuse to plead, assuming that he understands the proceedings. (Section
207 and 280 CPC)
4. Plead:
a. autrefois acquit (Section 279 CPC)
b. autrefois convict (Section 279 CPC), or
c. pardon from the president (Article 133 Constitution of Kenya 2010)
5. Say that the Court has no jurisdiction over the accused
6. Plead guilty subject to a plea agreement.

2
Criminal Procedure in Kenya and Uganda, Law in Africa (Number 13, 1964) pp 57.
If the accused 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 must rst
conduct a voir dire. If the Court holds that the evidence adduced in support of the plea does not
sustain it, or if it nds that the plea is false, the accused will be required to plead to the charge.3

In cases of joint offenders, the plea of each should be recorded separately and if a charge or
indictment contains several counts, the accused must be asked to plead to them separately. Just
as there must be a separates sentence for each count, on which a conviction is recorded, an
Omnibus, general plea of guilty is unlawful. If a charge contains several counts, the accused must
be asked to plead to them separately.

The plea taken is then recorded in the words as nearly as possible to those used by the accused.

The exact facts of the case are then read to the court by the prosecutor or the court may ask the
accused to do the same.

If the accused person agrees with the facts unequivocally, then he/she will be convicted for the
same.

If the accused does not admit to the facts then a plea of not guilty will be entered in the court
record and trial will commence. This also applies when accused refuses to take plea.

3
Section 207(5) of the Criminal Procedure Code.