PLEAS

INTRODUCTION:-

Definition of plea
Plea has been defined as an accused person’s formal response of guilty, not guilty or no
contest to a criminal charge1. A plea has also been defined as a formal statement in court by
or on behalf of an accused person as a response to the charge against him2.

It’s a formal statement made by or on behalf of a person charged with an offence

● Four Elements:

1. Formal Statement
2. In Court
3. By or on behalf of an accused
4. In response to a charge made against the accused.

Purpose of plea taking in criminal proceeding

1. It may mark the commencement of a trial process or its ending

2. Satisfies the constitutional right to a fair hearing
[3.] It saves courts time, especiallytime especially the procedure laid down in the statute
where an accused pleads guilty.
3.[4.] It saves resources in cases where a plea of guilt is entered.

1
Black’s Law Dictionary at page 1189
2
Oxford Dictionary at page 368

1
Possible pleas:-

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

a) Plead guilty
b) Plead not guilty
c) Say nothing- this is entered as a plea of not guilty or the court may try if the accused
is of sound or unsound mind.
d) Plead

● Autrefois convict

● Autrefois acquit. or

● pardon

e) assert the court lacks jurisdiction over the matter

f) plead guilty subject to a plea agreement
g) plea of limitation of time

a) Plea of guilty:-

Plea of Guilty is a formal acknowledgement of guilt made by the accused person in answer to
a charge read to him or her in court.

For a Plea of guilty to be valid it must be unequivocal. For it to be unequivocal certain

proceeding must be observed. For instance in the case of R vs Yonasni Egalin3 “ it was
observed that, it is 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 constituted 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.”

Procedure on Plea of guilty In Subordinate Courts.

Where interpretation is required in the course of taking a plea of guilty this should be
recorded together / with the name of the interpreter and the language used. This will enable

3
(1942)
2
the appellate court to satisfy itself that the procedure in recording a plea of guilty was
followed.

Section 207 (1)4 provides:

“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.”

Legal basis

Section 207(2)5- If the accused person admits the truth of the charge otherwise than
by a plea agreement his admission shall be recorded as nearly as possible in the
words used by him, and the court shall convict him and pass sentence upon or make
an order against him, unless there appears to it sufficient cause to the contrary,
provided that after conviction and before passing sentence or making any order the
court may permit or require the complainant to outline to the court the facts upon
which the charge is founded.”

Procedure of Taking Plea in the High Court

Procedure for plea of guilty Section 2816 if the accused pleads guilty the plea shall be
recorded and he may be convicted thereon

b) Plea of not guilty

Butterworths Concise Australian Legal Dictionary 7 defines the plea of not guilty as a plea
made by a person when a charge is read to him or her by which plea the person generally
denies allegation contained in the charge.

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.

4
Criminal Procedure Code, Cap 75 Laws of Kenya
5
Criminal Procedure Code, Cap 75 Laws of Kenya
6
Supra 4
7
Butterworths Concise Australian Legal Dictionary, 2nd Edition,
3
The rationale was stated in Halsbury’s Laws of England, “By a plea of not guilty the
defence thereby puts himself upon the contrary for trial and the court must there upon order
a jury to be called in usual manner for trial of the defendant.” The prosecution is then called
upon to prove all the essential elements of the offence charged by adducing evidence.

Procedure on Plea of Not Guilty In Subordinate Courts

Section 208 (1) of the C.P.C provides:

“If the accused person does not admit the truth of the charge, the court shall proceed
to hear the complainant and his witnesses and other evidence (if any).”
The plea of not guilty is also commonly referred to as a Plea of General Use. It must be
pronounced by the accused himself. The accused controverts the existence of every fact
essential to constitute the crime charged or to establish the accused persons guilty and thereby
put in issue every essential element of the offence charged.

Under Section 2088 provides that:-

a. If one accused person does not admit the truth of the charge, the court shall
proceed to hear the complainant and his witnesses and other evidence (if any).

b. The accused person or his advocate may put questions to each witness
produced against him.

c. If the accused person does not employ an advocate, the court shall, at the close
of the examination of each witness for the prosecution, ask the accused person
whether he wishes to put any questions to that witness and shall record his
answer.

Procedure of Taking Plea in the High Court

Section 2829 if the accused plead not guilty or if a plea of not guilty is entered in accordance
with Section 280, the court shall proceed to try the case.

8
Supra 4
9
Criminal Procedure Code, Cap 75
4
c) Say nothing- This is entered as a plea of not guilty or the court may try if the accused is
of sound or unsound mind, depending on the circumstances; if the accused person is
disabled, cannot hear or speak, but he is fit to plead, the court will avail a sign language
interpreter; if he is of unsound mind, then he is not fit to plead. Based on the medical
record, the court may postpone proceedings, have him/her kept in safe custody and the
matter referred for the order of the President.

Procedure of Taking Plea in the High Court

Section 28010 provides, if a person being arraigned upon an information stands mute of
malice or neither will nor by reason of infirmity can answer directly to the information, the
court may order the registrar or other officer of the court to enter a plea of not guilty on
behalf of the accused person and plea so entered shall have the same force and effect as if the
accused person had actually pleaded it.

d) Plead11;

● Autrefois Acquit- formerly acquitted. A defence to a charge both at common law and

by statute that the accused has previously been acquitted of the same charge on the
same facts.

Where the first trial has been declared, a nullity and conviction and sentence set
aside, the proceedings are deemed, to have been non-event and a plea of autrefois
acquit at the second trial cannot stand as per the case of Loizeau12

A discharge of an accused under Section 87 of the Criminal Procedure Code is

not an acquittal and a plea of ‘autrefois acquit’ cannot be sustained. However, if
such application to withdraw under Section 87 is made after the accused has
been called upon to give his defence, the magistrate shall acquit the accused
under the said section and this would now operate as a bar.

10
Criminal Procedure Code Cap 75
11
Patrick Kiage, ‘Essentials of Criminal Procedure in Kenya’ (2010), p89
12
(1956) 23 EACA 566
5
 ● Autrefois Convict- formerly convicted. A defence to a criminal charge at common law

and by statute that the accused has previously been convicted of the offence charged
on the same facts. (Butterworths Concise Australian Legal Dictionary,)13
This principle is sanctioned and recognized as a plea by section 279 (a) of the
Criminal procedure Code. If the accused gives this plea, but denied by the
prosecution, the court shall try the veracity of the plea. If the facts alleged by
the accused do not prove the plea, the accused shall be required to plead to the
information. The principle was summarized in the case of R vs Daudji14 that
on a plea of autrefois acquit or convict, the test is not whether the facts relied
on are the same as the two trials, but whether the acquittal on the previous
charge necessarily involves an acquittal or conviction on the subsequent
charge. The question is whether the accused has been convicted of an offence
which is the same as that with which he is now charged as was also held in
Salim Bin Karama15

● Pardon-Pardon is an act of grace proceeding from the power of execution of law, on

an individual on whom it is bestowed for the punishment the law inflicts for a crime
he/she have committed. Pardon means forgiveness, release or remission. Plea of
pardon is a plea by which the accused claims that he has been forgiven for the offence
charged against him.

Plea of pardon may also be specially pleaded to bar the proceedings against an accused
person. The president wields the prerogative of mercy and may grant a free or conditional
pardon to a person convicted, of an offence, under Article 133(1)16 of the Constitution.
Section 279 (b)17 recognizes the plea and is a bar to proceedings.

These kinds of pleas were raised in the case of Re an application by Ajit Singh 18. Section
279 provides that, if the accused pleads:

13
Supra 6
14
(1948) 15 EACA 89
15
(1951) 18 EACA 304
16
The Constitution of Kenya (2010)
17
See s. 279
18
(1959) E.A. at 782
6
 a) That he has been previously convicted or acquitted on the same facts of the same
offence; or
b) That he has obtained the president’s 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.

e) Plea to jurisdiction of the court- each court has its jurisdiction set out either by the
constitution or by the statute. According to Article 50(1)19 provides that 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 the law. When the law establishes a court,
it spells its jurisdiction and delineates the scope of its jurisdiction.

The rationale

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. In the case of R vs Ambari Juma20 the court held that
“in views of the provisions of section 203 of the Tanzania Criminal Procedure Code 21 the
plea of an accused couldn’t lawfully be taken by a court, which has no jurisdiction to try the
offence.”

f) Plead guilty subject to a plea agreement:-

According to section 137(A)22 a prosecutor and an accused person or his representative may
negotiate and enter into an agreement in respect of:-

a) Reduction of a charge to a lesser included offence

b) Withdrawal of the charge or a stay of other charges or the promise not to proceed with
other possible charges
g) Plea of limitation of time

A plea of limitation of time can also be raised in bar of proceedings. The accused pleads that
the charge is barred by limitation of time. There are certain offences which must be
prosecuted within a specified period for example Section 45 (1) of the Penal Code23 provides

19
Supra 13
20
(1949) E.A at 453
21
Criminal Procedure Code, Laws of Tanzania
22
Supra 4
23
Penal Code, Cap 63 Laws of Kenya
7
that the offence of treason must be prosecuted within two years of its commission. Similarly,
Section 21924 of the Criminal Procedure Code requires that an offence the maximum
punishment for which does not exceed imprisonment for six months or a fine of One
Thousand Shillings or both should be tried by a subordinate court only if the charge or
complaint relating to it is laid within twelve months from the time the matter of the charge or
the complaint arose.

(d) (i) How would Firm 15A for the Accused react to the charge at the session?

The defense would like to object to the charges preferred against our client. This objection is
being raised at this early point in the trial because every objection to information by reason of
a formal defect must be taken immediately after the information is read to the accused and
not later. The defence therefore raises a preliminary objection in relation to the charge on the
ground of duplicity which bars our client from taking a plea for two main reasons.

First, our client cannot take a plea because the duplex charge does not sufficiently disclose
the offence with which the accused is charged. According to Black’s Law Dictionary,
duplicity in criminal procedure takes the form of joining two or more offences in the same
count. Under Section 135(2)25 where more than one offence is charged in a charge or
information, a description of each offence so charged shall be set out in a separate
paragraph of the charge or information called a count.

Further, every charge or information shall be sufficient if it contains a statement of the

specific offence or offences with which the accused person is charged with, together with
such particulars as may be necessary for giving reasonable information as to the nature of
the offence charged.26 Such that, any count that charges within it more than one specific
offence is said to be bad for duplicity. Duplicity in a charge is regarded as a fundamental
mistake and normally, it is not curable. 27 The rationale for this is that when a charge is duplex
and an accused goes through trial, the fairness of the process is fundamentally compromised
as it is not clear to the accused what are the exact charges that confront him are. The accused
may not be able to prepare a proper defence and this is clearly prejudicial and may amount to
a failure of justice.28

24
Supra 4
25
ibid
26
ibid
27
Douglas B, ‘Criminal Procedure in Uganda and Kenya’ (1964) (Law Africa) (No.13) pp38.
28
Supra 8 pp. 78-79
8
In Saina V Republic29, where the accused was charged, in a single count, with
housebreaking, theft and handling stolen property, the High Court on appeal was of the view
that the Chargercharge was an incurable illegality.

In Omboga V Republic30, the Court of Appeal held that an injustice would be occasioned
where evidence is called relating to many separate acts all contained in one count because the
accused cannot possibly know what offence exactly he is charged with.

From the aforementioned cases, it is clear that a duplex charge not only occasions a failure of
justice, but is also an incurable illegality.

As regards the facts of this case, the particulars of the charge read as follows:

XYZ on the 5th day of August, 1960 at Nairobi, in the Nairobi Extra Provincial
District for the purpose of, or by way of trade, or for the purpose of distribution or
public exhibition had in your possession thirty seven photographs of an obscene
nature which would tend to corrupt the morals of any person into whose hands these
publications are likely to fall.

It is worth noting that under section 181(1) 31 of the Penal Code, the offence created there
under is not that of mere possession, but that it is also necessary to allege and prove that the
possession was for one or other of the purposes set. Furthermore, the charge must specify
which of the unlawful purposes the accused is alleged to have had in contemplation.

In Labhshanker Harjiwan Bhatt V R32, the accused was charged with the offence under the
then section 117(1) of the Penal Code. He was convicted and consequently appealed. The
main ground of appeal was that the charge was bad for duplicity. The then Supreme Court
was of the opinion that the particular purpose for which the appellant had the photographs in
his possession should have been averred in the charge and that the averment of several
purposes in the alternative made the charge bad in law and the trial a nullity. With these
reasons, the court allowed the appeal. The conviction was quashed and the sentence set aside.

Second, our client cannot take a plea as such a plea would be bad at law.In order for a plea to
be valid at law33, it must be unequivocal. An unequivocal plea is a plea that is taken in

29
[1974] EA 83
30
[1983] KLR 340
31
Previously the offence was provided for under Section 117(1)(a) of the Penal Code Cap 63 Laws of Kenya,
currently read as S. 181 (1)
32
Criminal Appeal No.815 of 1960
33
See s 207 C.P.C
9
accordance with the laid down procedures in law. Thus, any plea taken by the accused as a
response to the charge in its flawed state would render such a plea equivocal and therefore an
illegality.

The principles governing the taking of an unequivocal plea were laid down in Adan v R34.
They are;

a) The accused must be fit to plead.

b) The accused must plead directly, not through an advocate.
c) The charge must be read and explained to the accused.
d) The charge or information must not be defective.
e) The facts must also be read to the accused.
f) The accused must admit both the charge and the facts read to him.
g) The plea of the accused must be properly recorded.
h) The plea must be taken by a competent judicial officer and not the court clerk.
i) Where the accused disputes the facts, a plea of not guilty must be entered.

From the aforementioned principles, it is clear that a defective charge that does not disclose
the essential ingredients of a case would bar the taking of a legally valid plea, that is, an
unequivocal plea. In the case of Labhshanker Harjiwan Bhatt35, the appellant’s plea in the
trial court was said not to be an unequivocal plea. His admission of the charge was held as
not to be an admission of the purpose for which he had the photographs.

For this reason therefore, our client cannot plead as any plea entered at this point would not
stand the test of law.

In conclusion, the legal basis of plea taking is firmly entrenched in the Constitution as part of
the fundamental right to a fair trial. 36 In order to afford a fair trial to the accused, the
Constitution stipulates that the right to a fair trial includes the right to be informed of the
charge with sufficient detail to answer it. 37 The attempt by the prosecution to charge my client
with a defective charge is a gross violation of my client’s constitutional right and this
travestry of justice should not be allowed by this honourable court.

Therefore being that decision of the supreme court isare binding on the lower courts, the case
of LabhshankerHarjiwan Bhatt v R correctly serves as precedent and the defence moves

34
(1973) EA 445.
35
Supra 28
36
Supra 13 art. 50
37
Ibid art 50(2)(b).
10
that the court dismisses the charges against the accused be dismissed on the grounds that the
charge is bad for duplicity.

ISSUES THAT CAN BE RAISED, CONSIDERED AND DETERMINED AT A PLEA

TAKING COURT

Whether the accused understands the charge placed against him

Section 207(1)38 provides that the substance of the charge ought to be read to the accused
person by the court and he shall be asked whether he admits or denies the truth of the charge.
In Adan v Republic39 the East African Court of Appeal held inter alia that the charge and all
the essential ingredients of the offence should be explained to the Accused in a language he
understands.

Whether the plea is equivocal or not

A plea in equivocal if the Accused adds a qualification to his plea which if true shows that
one of the ingredients of the offence charged is missing. An equivocal plea literally means a
vague plea deliberately misleading doubtful character or sincerity open to questions capable
of varying interpretations of uncertain significance, ambiguous and open to two or more
interpretations. An unequivocal plea is a clear or plain that is it can be understood in one way.
A plea of guilty must be unequivocal. An unequivocal plea was defined in the case of R v
Drew40 as a plea which is qualified by words which is true indicate that the Accused is in fact
not guilty of the offence charged.

Defective charges, Section 275 of Criminal Procedure Code

Every objection to information by reason of a formal defect on the charge shall be taksen
immediately after the information has been read over to the Accused and not later. Even then

38
Supra 4
39
(1973) EA 445
40
(1985) 1 WRL 914
11
once the rules of framing of charges have been generally observed the charge or information
should not be opened to objection in respect of its formal content.

The General rule is that no objections are allowed in case of any defect in form as far as
charges are concerned. Section 90(2)41 states that the validity of proceedings undertaken in
persons of a complaint or charge shall not be affected by either a defect in the complaint or
charge or by the fact that summons or warrant was issued without a complaint or charge.

Contrary to the general rule in the case of William Dubi Ikihwo v Republic 42 the court noted
that the offence the Accused was charged with did not exist and there were no amendment to
the charge. The court held that the Appellant had been tried and convicted for a non-existence
offence and proceeded to quash the conviction.

It is important to note that in determining whether or not a defect in the charge is incurable or
not is whether there is prejudice occasioned to the Accused in putting up his defence because
of the words used in the charge. This was the ruling in Kilome v Republic43

Issue of jurisdiction of the court

Article 50 2(d) of the Constitution44. An objection as to the jurisdiction of the court can be
taken as preliminary point and can be raised in criminal cases in much the same way as civil
cases. This was stated in the case Mukisa Biscuit company v Westend Distriboutors
Limited45. The court said a preliminary objection constitutes a pure point of law which has
been pleaded or arises by clear implication out of the pleadings and which if argued as a
preliminary point may dispose of the suit….

Objections to jurisdiction of court ought to be raised at the earliest opportunity because

jurisdiction is foundational to the validity of the entire proceedings.

Limitation of time for example treason section 45 of the penal code

Where the trial is barred as the time for the prosecution has lapsed then that can be raised by
the accused to stop the criminal proceedings for example under s. 45 of the Penal code an
accused must be prosecuted within two years. Section 219 of the Criminal Procedure Code,
41
Supra 4
42
(Criminal Appeal No. 547 of 2001) eKLR
43
(1990) KLR 194
44
See Art 50 (2)(d)
45
(1969) EA 696
12
an offence the maximum punishment for which does not exceed imprisonment for six months
and a fine of kshs. 1000/= or both should be triable by a subordinate court only if the charge
or complaint relating to it is laid within 12 months from the time when the matter of the
charge or complaint arose.

Purpose for raising such issues early in a Criminal proceeding:

● The Accused should understand the charge against him or her and the consequences

he or she will face.

● Jurisdiction of the court is the foundation of all proceedings. It is therefore important

to identify whether the court has jurisdiction or not.

WHAT FOLLOWS PLEAS

a) Plea of guilty
Section 207(2)46 If the accused person admits the truth of the charge otherwise
than by a plea agreement his admission shall be recorded as nearly as possible in
the words used by him, and the court shall convict him and pass sentence upon or
make an order against him, unless there appears to it sufficient cause to the
contrary, provided that after conviction and before passing sentence or making
any order the court may permit or require the complainant to outline to the court
the facts upon which the charge is founded.”

b) Plea of not guilty

Section 20847 provides that:-

a. If one accused person does not admit the truth of the charge, the court shall
proceed to hear the complainant and his witnesses and other evidence (if any).

b. The accused person or his advocate may put questions to each witness
produced against him.

c. If the accused person does not employ an advocate, the court shall, at the close
of the examination of each witness for the prosecution, ask the accused person

46
Supra 4
47
Supra 4
13
 whether he wishes to put any questions to that witness and shall record his
answer.

Thus, if a plea of guilty is entered the court shall proceed to try the case.

h) Say nothing- this is entered as a plea of not guilty or the court may try if the accused is of
sound or unsound mind depending on the circumstances; if the accused person is
disabled; cannot hear or speak, but he is fit to plead, the court will avail a sign language
interpreter; if he is of unsound mind, then he is not fit to plead; based on the medical
record, may postpone proceedings, have him/her kept in safe custody and the matter
referred for the order of the President.

h) Plead

● Autrefois convict

Where the first trial has been declared, a nullity and conviction and sentence
set aside, the proceedings are deemed, to have been non-event and a plea of
autrefois acquit at the second trial cannot stand.

A discharge of an accused under Section 87 of the Criminal Procedure Code is

not an acquittal and a plea of ‘autrefois acquit’ cannot be sustained. However, if
such application to withdraw under Section 87 is made after the accused has
been called upon to give his defence, the magistrate shall acquit the accused
under the said section and this would now operate as a bar.

● Autrefois acquit.

If the accused gives this plea, but denied by the prosecution, the court shall try
the veracity of the plea. If the facts alleged by the accused do not prove the
plea, the accused shall be required to plead to the information

● Pardon

Pardon means forgiveness, release or remission. Plea of pardon is a plea by which the
accused claims that he has been forgiven of the offence against charged. Plea of
pardon may also be specially needed to bar the proceedings against an accused
person.
14
i) Plea where the Court lacks jurisdiction over the matter:-
According to Article 50(1) of the constitution provides that 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 the law. When the law establishes a
court, it spells out its jurisdiction and delineates the scope of its jurisdiction.

j) Plead guilty subject to a plea agreement

Where a plea agreement has been rejected by the court and a plea of not guilty
consequently entered the prosecution may upon being informed of the rejection of the
plea agreement, proceed to try the matter afresh before another court. The accused
person may waive the right to have the trial proceed before another court in which
case the trial will proceed before the one that rejected the plea agreement.

k) Plea of limitation of time

Most criminal charges have no limitation of time. However any inordinate delay in
prosecuting an accused person is discouraged by the court unless the prosecution has
an explanation to it.

15