LEGAL FRAMEWORK ON PLEA BARGAINING

CONSTITUTION OF KENYA 2010

In Criminal litigation, the aspect of plea bargaining is centered on an accused person’s rights
enshrined under the Constitution of Kenya 2010 1 thus according justice to the accused person.
After the availing of incriminating evidence against the accused person and consideration of
public interest, plea bargaining is availed as an option to the accused person and by informed
choice may enter into a plea-bargaining agreement.

THE CRIMINAL PROCEDURE CODE (CAP 75 LAWS OF KENYA)

Plea agreements are provided for in the Criminal Procedure Code. 2 The sections speak on various
aspects of the agreement such as:

Plea Agreement Negotiation is when the prosecutor and accused person or his representative,
negotiates and enters into an agreement in respect of: a reduction of a charge to a lesser offence
or; withdrawal of the charge or a stay of other charges or the promise not to proceed with other
possible charges3. This provides for the payment by the accused person of any restitution or
compensation. The agreement can only be made after an accused person has been charged or any
time before judgment. If undertaken privately consent should be obtained from the DPP.

Plea Agreement on behalf of the Republic is entered into by the Director of Public
Prosecutions or officers authorized by the Director of Public Prosecutions in accordance with
article 157(9) of the Constitution and any other person authorized by any written law to
prosecute4.

Initiation of plea agreement is either by a prosecutor or accused person or his legal

1
Article 50 of the Constitution of Kenya 2010
2
Sections 137A-0 of the Criminal Procedure Code (herein referred to as the CPC)
3
Section 137A of the CPC
4
Section 137B of the CPC
5
Section 137 C of the CPC
After consultations with the investigating officer and confirmation that the victim or victim’s
legal representative has been afforded an opportunity to make representations to the prosecutor
regarding the terms of the plea agreement is when the prosecutor shall only enter into the
agreement6.

Form of plea agreement shall be in writing, reviewed and accepted by the accused person, or
explained to the accused person in a language that he understands. If the negotiations were made
through an interpreter, it should contain a certificate by the interpreter to the effect that he/she is
proficient in that language and did it accurately during the negotiations. The form shall contain
the contents of the agreement, facts of the matter and any admissions made by the accused.it has
to be signed by the prosecutor and the accused person or his legal representative and by the
complainant if a compensation order contemplated has been included in the agreement7.

Recording of plea agreement by court is done after the accused person is placed under oath
and the court shall address the accused person personally in court, and shall inform the accused
person of and determine that the accused person understands his rights under the constitution8.

Competence of accused to make a plea agreement has to be satisfied before the court records a
plea agreement9.

Record of factual basis of plea is done after the court accepts a plea agreement and becomes
binding upon the prosecutor and the accused10.

Upon conviction, the court may invite the parties to address it on the issue of sentencing and
shall take into account the period during which the accused person has been in custody, a victim
impact statement, if any, the stage in the proceedings at which the accused person indicated his
intention to enter into a plea agreement and the circumstances in which this indication was given
and the nature and amount of any restitution or compensation agreed to be made by the accused
person. Where necessary and desirable, the court may in passing a sentence, take into account a
probation officer’s report11.

6
Section 137D of the CPC
7
Section 137 E of the CPC
8
Section 137F of the CPC
9
Section 137 G of the CPC
10
Section 137H of the CPC
11
Section 137 I of the CPC
When the court rejects a plea agreement, it records the reasons for such rejection and informs
the parties accordingly. The plea agreement becomes null and void. The proceedings giving rise
to the plea agreement shall be inadmissible in a subsequent trial or any future trial relating to the
same fact and a plea of not guilty shall be entered accordingly and the prosecution may upon
being informed of the fact proceed to try the matter afresh before another court provided that the
accused person may waive his right to have the trial proceed before another court. Upon rejection
of a plea agreement, there shall be no further plea negotiation in a trial relating to the same facts
and no party shall appeal against, or apply for a review of the order of the court rejecting the
agreement12.

An accused person may withdraw a plea of guilty pursuant to a plea agreement prior to
acceptance of the plea by the court, for any reason or after the court accepts and convicts on the
plea, but before it passes a sentence13.

Finality of judgement

A sentence passed by the court shall be final and no appeal shall lie therefrom except as to the
extent or legality of the sentence imposed14.

EXCEPTIONS

(a)Offences under the Sexual Offences Act, 2006.

(b) Offences of genocide, war crimes and crimes against humanity.15

CRIMINAL PROCEDURE (PLEA BARGINING) RULES,2018

The Criminal Procedure (Plea Bargaining) Rules, 2018 are published under Section 137O of the
Criminal Procedure Code cap 75. These rules encompass the following:

In Rule 1, the agreement may be entered into between the prosecutor and accused person where
the accused person has been charged and the time before the court passes judgement.

Under Rule 2and 3, where the information obtained during the plea negotiation shall not be used
against him or her during prosecution of the case if they prove unsuccessful. However,the
12
Section137J of the CPC
13
Section 137L of the CPC
14
section 137 L of the CPC
15
Section 137N of the CPC
information may be used against the accused due to an act of omission by him which led to
unsuccessful negotiations.

In reference to Rule 4, a private prosecutor shall inform the Director of Public Prosecutions in
writing 14 days prior to the commencement of his or her intention to enter into plea negotiations.
This notice shall be accompanied by all relevant materials the private prosecutor intends to rely
on in the negotiation process.

In Rule 5, the prosecutor shall obtain approval in writing from the Director of Public Prosecution
or someone authorized in writing the Director of Public Prosecution in that regard before
entering into a plea agreement with an accused person.

Rule 8 encourages for a clause for the payment of compensation to be included at which the
value or form of compensation shall be agreed to after negotiations between the victim and
accused person endorsed by the prosecutor if in his/her opinion serves the ends of justice if not, it
shall not be included.

Rule 10 and 11 allows the prosecutor to present the court with the factual basis on the contents of
the plea agreement as well as mitigating circumstances in favor of the accused person at the
hearing where the accused person pleads guilty in accordance to the terms of the agreement. The
prosecutor has at the time call the court’s attention to section 137I of the Criminal Procedure
Code and Sentencing Policy Guidelines 2016.

Under Rule 12, on Sentencing recommendations the court maintains the sole discretions of
sentencing.

According to Rule 13, where the accused person is not represented by a legal representative, the
prosecutor must inform him of his or her rights to have a legal representative or any other party
of his choice. If the accused person is a child who has a legal representative, the plea agreement
will be executed by the prosecutor, the child and legal representative. With this, the court
ascertains the competence of the child through voir dire examination.

Rule 14 stipulates that the Plea Agreement shall be finalized when the prosecutor and the
accused person sign the agreement, where applicable the legal representative signs the agreement
and in instances where the agreement includes a compensation clause, the complainant shall also
sign that clause of the agreement.

Judicial trends

Discretion of the DPP to reject a request for plea bargain

In Republic v. Attorney General & 3 others Ex parte Kamlesh Mansukhlal Damji Pattni
(2013) eKLR it was held:-

The Dpp who was the 2nd Respondent in this matter, in rejecting the plea request, acted within
his constitutional and statutory mandate, even if the subsequent decision was absurd in the light
of the grounds advanced. The applicant wrote a letter to the 2nd respondent attempting to show
that their client should not have been charged in the Goldenberg scam case. The 2 nd respondent
rejected the plea bargain on the basis that he considered the request according to the facts laid
before him by the applicant. The court held that the 2nd respondent in its view conformed to the
provisions of section 137 of the criminal procedure code16.
Factors the court considers before convicting an accused based on plea agreement
In Republic v Isaack Kipsang (2018) eKLR it was held:-
Following a plea bargain agreement, the accused pleaded guilty to a lesser charge of
manslaughter contrary to section 202 as read with 205 of the penal code which the court accepted
having established that there was no mens rea as a basis of the plea agreement and the accused’s
voluntariness of the agreement. The court convicted him for the offence and reserved sentence
upon taking mitigation and pre-sentence report by the probation officer, and the accused counsel
submissions and for the Dpp17.
Consequences of breach of plea agreement by the accused person
In Joyce Gwendo v Chief Magistrate’s Court at Nairobi Anti-Corruption Division & 2 others;
Kisumu East Cotton Cooperative Society(Interested Party) [2019] eKLR 18 it was held:-In this
case, the plea agreement was entered, filed on 11th July 2018 and adopted on 26th July 2018
though it didn’t have a clause for compensation of the victim. The compensatory order which
featured the plea agreement was only made verbally and adopted by the court with instructions
16
(2013) eKLR
17
(2018) eKLR
18
(2019) eKLR
that payment will be made in four installments. The compensation was supposed to be fulfilled
first and the adoption of the agreement would then follow by the sentence to which the court has
the discretion to give in accordance with section 137I of the CPC and rule 12 of the Criminal
procedure (plea bargaining) rules.
Unfortunately, the court proceeded the other way round thus sentencing the applicant for
breaching the agreement instead of prosecuting her fully. Similarly, there was no time frame set
out in the plea agreement as to within what period the compensation was expected to be made
and the attendant consequences.
However, under clause 9 of the plea agreement, failure by the accused to comply with the
provisions of the plea agreement will permit the Republic to fully prosecute the accused on all
criminal charges that may be brought against her. According to this clause, non-compliance with
the terms of the plea agreement would only lead to a breakdown of the agreement which will
only call for prosecution of the accused without waiver of any charges.