Understanding Plea Bargaining in Kenyan Criminal Proceedings

Plea bargaining is a significant aspect of the Kenyan criminal justice system that allows for negotiations and agreements between prosecutors and accused individuals. These agreements can lead to a reduction of charges, withdrawal of charges, or other arrangements. This article will provide an overview of plea bargaining in Kenya, outlining the legal provisions, procedures, and implications for the parties involved.

Legal Framework for Plea Bargaining

Plea bargaining in Kenya is governed by Section 137A of the Criminal Procedure Code (CPC), as well as Rules on Plea Agreements developed by the Office of the Director of Public Prosecutions (ODPP). These rules provide a framework for plea negotiations and agreements, emphasizing the need for compliance with the law.

Involvement of Victims

Section 137D(c) of the CPC mandates that the views of the victim must be sought in any plea bargaining process. The Victim Protection Act further reinforces the importance of victim involvement. The plea agreement may also include provisions for the payment of restitution or compensation to the victim. However, it is crucial to note that plea agreements cannot be used in certain types of cases, such as those involving sexual offenses, genocide, war crimes, and crimes against humanity, as specified in Section 137N of the CPC.

Prosecutorial Discretion

The court should not interfere with the prosecutor’s discretion to engage in plea negotiations. Still, parties can apply to the High Court for appropriate orders if they believe that the prosecutor has breached their obligations under the Kenyan Constitution’s Article 157(11). This ensures that the prosecutor acts within the bounds of the law, fairness, and justice.

Court’s Role in Plea Bargaining

While the court does not participate in plea negotiations, it has specific responsibilities when it comes to plea agreements. The plea agreement must be in writing and must adhere to the requirements set out in Section 137E of the CPC.

When a plea agreement is accepted, the court is required to place the accused person under oath and personally address them. The court must ensure that the accused fully understands their rights related to the trial and the implications of the plea agreement. It is essential that the accused was competent, of sound mind, and acted voluntarily at the time of entering the agreement, as outlined in Section 137F of the CPC.

Recording of Facts

If the court accepts a plea agreement, it must record the ‘factual basis’ or the facts informing the plea, as required by Section 137H of the CPC. These recorded facts support the offense. The agreement becomes binding on the parties and forms part of the court record. If the agreement involves reducing a charge to a lesser included offense, the court must convict the accused of that lesser offense, as stated in Section 137H(2) of the CPC.

Rejection of Plea Agreements

If a court rejects a plea agreement, it must record the reasons for the rejection and inform the parties involved. The plea agreement becomes null and void, and proceedings resulting from it become inadmissible in a subsequent trial. If a plea agreement is rejected, the prosecutor must institute fresh proceedings before another judge, unless the accused waives the right to have the trial proceed before another court. Additionally, parties cannot appeal or apply for a review of an order rejecting a plea agreement, as per Section 137J of the CPC.

Withdrawal of a Guilty Plea

An accused person may withdraw a guilty plea resulting from a plea agreement for any reason before the court accepts the plea. The accused may also withdraw a guilty plea after the court has accepted the plea agreement and entered a conviction but before sentencing. In such cases, the accused must provide the court with a fair and just reason for requesting withdrawal, in line with Section 137K of the CPC.

Finality of Sentences

Once a sentence is passed by the court following a plea agreement, it is considered final, and no appeal can be filed except regarding the extent or legality of the sentence imposed. However, it is important to note that a conviction and sentence obtained through a plea agreement can be set aside if fraud or misrepresentation is proven, as outlined in Section 137L of the CPC.


Plea bargaining plays a significant role in the Kenyan criminal justice system, providing a mechanism for resolving cases efficiently and offering options for reducing charges and penalties. It is essential for all parties involved to adhere to the legal provisions and procedures to ensure that the process is fair, just, and in line with the law.

Plea agreements should be carefully considered, with a focus on the rights of victims and accused individuals, while maintaining the principles of justice and transparency.