Procedure on Taking Plea in Kenyan Criminal Trials

The process of taking a plea in criminal cases is a fundamental step in the Kenyan legal system that ensures a fair and just legal proceeding. It is during this crucial phase that the accused has the opportunity to admit or deny the charges brought against them, or choose to remain silent.

This article delves into the procedure for taking a plea in Kenya, highlighting the importance of a clear and unequivocal plea, as well as the scenarios that lead to a plea of guilty or not guilty.

Plea of Guilty

When an accused person admits to the charges and the particulars of the offense, a plea of guilty is entered. The procedure for entering a plea of guilty is outlined in Section 207(2) and (3) for subordinate courts and Section 274 of the Criminal Procedure Code (CPC) for High Courts. The case of Adan v R [1973] EA 445 and John Muendo Musau v R Court of Appeal at Nairobi Appeal No. 365 of 2011 where an accused person may change a plea of guilty to not guilty at any time before a sentence is imposed provide guidance on this process.

The leading case, Adan v R (1973) EA 445 emphasises that an accused person must not only understand the language used at his trial but also appreciate all the essential ingredients of the offence charged before his plea can be taken to be unequivocal.

The aim of entering a plea of guilty is to ensure that the admission of guilt is unequivocal and unambiguous. This is particularly crucial when the accused is not represented by legal counsel. In Farahat Ibrahim Ahmed & 2 Others v R (High Court at Kisumu Criminal Appeal No. 68 of 2016), it was emphasized that an equivocal plea can be problematic, especially when the accused is unrepresented, has limited education, or does not speak the language of the court.

Specific and Unambiguous Plea

It is essential for the accused person’s plea to be specific and not merely a general assertion of guilt. In the case of Kariuki v R (Court of Appeal at Kisumu Criminal Appeal No. 22 of 1984), the court ordered a retrial because the plea entered by the trial court lacked specificity. The use of the word ‘do’ without a clear admission of facts was insufficient to establish a valid guilty plea.

Separate Pleas for Multiple Counts

When an accused person faces multiple charges, the court should record a plea for each count separately. It is crucial to ensure that the accused wishes to admit, without any qualification, each and every element of the offense charged. This principle was affirmed in cases like Elijah Njihia Wakianda v R Court of Appeal at Nyeri Criminal Appeal No. 437 of 2010 and Lusiti v R High Court at Nairobi Criminal Appeal No. 319 of 1971.

Ambiguity in Admission

The courts have held that merely saying “It is true” does not necessarily constitute a plea of “Guilty” if it appears that the accused disputes some element of the offense. This was highlighted in the case of Jason Akhonya Makokha v R Court of Appeal at Kisumu Criminal Appeal No. 131 of 2012.

Statement of Facts

Once an accused person admits the charge, the prosecutor is required to state the facts upon which the charge is based, as per Adan v R [1973] EA 445. It is not sufficient for the prosecutor to simply state “facts as per charge sheet.” The statement of facts should be explained to the accused in a language they understand, using ordinary language rather than technical jargon.

Understanding the Substance of the Charge

The court must ensure that the accused fully comprehends the substance of the charge, especially in cases where the offense is punishable by death. If the accused wishes to plead guilty in such a case, the court should explain the potential penalty associated with the offense. It is advisable to adjourn the hearing to allow the accused time to reflect on their plea before proceeding to convict. The court must be absolutely convinced of the accused’s genuine intention to plead guilty.

Plea of Not Guilty

A plea of not guilty is entered in three scenarios:

  • The accused does not admit the charge.
  • The accused does not admit the statement of facts.
  • The accused refuses to plead.

In all these cases, a plea of not guilty is the appropriate response, and the trial will continue with the accused denying the charges.

Conclusion

The procedure for taking a plea in Kenyan criminal trials is a fundamental aspect of ensuring that justice is served. It is essential that the plea-taking process is conducted meticulously, with particular attention to the clarity and unequivocal nature of guilty pleas.

Equally, the court must respect the accused’s right to deny the charges and plead not guilty when appropriate. This procedure is the cornerstone of a fair and just legal system, upholding the rights and due process for both the accused and the prosecution.