Introduction

Legal proceedings have serious impacts on the persons accused depending on what they are charged
with. The Kenyan Constitution (2010) clearly states that a defendant is to presume innocent until the
contrary is proved.1 The process of establishing the guilt of an accused person is undertaken through an
elaborate system in a court of law.2The process of plea hearing starts when the accused is first
presented to a subordinate court for a plea hearing. The subordinate court consist of the Magistrate
Court, Courts Martial and Kadhi Court. When the accused is presented, he/she is formally informed of
the criminal charge that they are facing and is expected to give a response to the charges. The charge
must be read once the judicial officer has ensured that the charge is properly drawn. The formal
response may be ‘guilty’, ‘not guilty’ or ‘no contest’ to a criminal charge 3.

All the proceedings must be recorded and the courts records must reflect the Coram4 (before/in the
presence of) including the judicial officer by name or the Prosecutor by name. Section 198(4) of the
Criminal Procedure Code provides that the language of the High Court shall be English and subordinate
courts shall be English of Kiswahili. The accused must get explanation in a language that he understands
well by the court interpreter after which the accused will be required to plead instantly.

Where there are more than one defendants who are charged, 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 as general plea of guilty is unlawful.

First day in Court

The accused person is expected to be present in court for the plea hearing. If you are in police custody,
the police will have the duty of taking you to court. When the suspect was released on police bond, then
they are expected to present themselves to the court at the time and date specified in the police bond.
If the accused fails to attend the court session as required, there is a high chance that that the court will
issue an arrest warrant directing the police to arrest the suspect and bring them to court. Following the
arrest, chances of being denied bond by the court are high which means that the suspect will be under
detention in a remand prison until the case is finalized.

Once the accused name is called out, the court assistant or the magistrate will read out the charge and
particulars in detail. The law states that the procedure should be undertaken as follows:

 First, the court must establish if the accused understands English or Kiswahili. Charges are read
out in the accused language or a language which they can speak and understand. In the event
that the accused does not understand neither Kiswahili nor English, an interpreter will be
provided free of charge.5
 Once the charge is read out to the accused, the magistrate is then required to explain to the
accused all the essential ingredients of the offence that he/she is facing. The response can either
be ‘guilty to the charge’ or ‘not guilty to the charge’ or the accused can opt to remain silent.

1
Article 50(2) (a) of The Constitution of Kenya.
2
Article 50(1) of the Constitution of Kenya.
3
Black’s Law dictionary 8th Ed.
4
Ibid.
5
Article 50(2) (m) of The Constitution of Kenya.
Guilty plea

If the accused responds as ‘guilty’, then it means that he/she is admitting to the charges and will not be
contesting the criminal charges. Under such circumstances, the Magistrate or Judge is then required to:

 Record what the accused has said, as nearly as possible in the accused own words and then
proceed to formally record the plea of guilty. The aim is to ensure that the plea of guilty is
unequivocal and that the plea as recorded cannot be interpreted in any other way. 6
 The prosecutor will then read out in detail the facts of the nature of the offence and how the
offence was committed. The statement of facts must be explained to the accused in a language
that they understand, and the words used should be ordinary without any technical words. 7
 The Court will then give the accused an opportunity to dispute, explain the facts or add any
relevant facts. The statements of facts allows the Magistrate to satisfy himself that the plea of
guilty left no doubt and it gives the magistrate the basic material on which to assess sentence. In
some cases, after the accused has heard the statement of facts, disputes some particular fact or
alleges some additional fact, showing that he did not really understand the position when he
pleaded guilty. It is for this reason that the reading of the facts is done before the court convicts
on a plea of guilty.8
 The court must ensure that you understand what you are pleading guilty to and after the
warning the court should again read the charge to you and thereafter record your response as
nearly as possible in your own words.9
 In cases where the offence committed carries a heavy penalty like death or life sentence, the
courts are expected treat plea taking with extra caution especially where the accused is
unrepresented.10In this circumstance, the court gives the accused time to reflect on the choice
of plea of guilty before the courts proceed further.
 If the accused admits to the facts, the magistrate will then proceed to convict with regards to
the plea of guilt.
 If the accused does not agree with the statement of facts or denies, then the magistrate is
expected to record a change of plea to ‘not guilty’ and proceed to hold trial.

The accused an always change their plea of guilty to not guilty at any time before the court imposes a
sentence.

Plea of not guilty

A plea of not guilty shows that the accused will be challenging the criminal charges and the accusers
have to prove guilt beyond reasonable doubt. The court will record a plea of not guilty where;

 You do not admit to the charges as read out. 11

6
Paragraph 68 of the Judiciary Criminal Procedure Bench Book, February 2018
7
Paragraph 72 of Judiciary Criminal Procedure Bench Book.
8
Adan case, at p447
9
Paul Matungu vs. Republic [2006] eKLR
10
Ombena vs. Republic [1981] eKLR
11
Section 207(3) of the Criminal Procedure Code
  You dispute the statement of facts as presented by the prosecution. 12

Once the Court records your plea of not guilty, the Court will move to the next stage of setting the
bail/bond terms that will dictate the terms of your release from custody as the accused awaits the trial
of the case. The Courts will release you on bond unless there are compelling reasons that would warrant
denial of bond.13

It is also important to note that, even when the accused has pleaded not guilty, they can always change
to that of guilty and the court is expected to record the change as long as the court ensures that they
have a proper understanding of the consequences of a change to guilty.

Option of silence

An accused may plan to remain silent when charges are read to him/her in court. It’s going to be
possible to draw adverse inferences from suspects remaining silent. Refusing to enter a plea or
remaining silent when asked is an extension of non-cooperation with the system. If the accused also
refused to cooperate with the police after they were arrested this could be a uniform approach. This
might be effective at both a private and on another broader level. However, the entry of no plea by a
defendant who refuses to acknowledge the validity of the system of justice will almost inevitably result
in a finding of guilt because (presumably) the sole evidence presented are that of the prosecution.

12
John Muendo Musau v – R, NRB CA No. 365 of 2011
13
Article 49 (1) (h) of the constitution