COURT ARRAIGNMENT - PLEAS
1. Introduction
A plea is a formal statement in response to the charge or information made by or on behalf of the
accused in a court of law. The basis of plea taking in Kenya are Articles 50 (2) (a) & (b) of the
Constitution of Kenya, 2010. According to Article 50 (2) (a), an accused person has the right to
be presumed innocent until the contrary is proved. Equally, Article 50(2) (b) requires the
accused to be informed of the charge, with sufficient detail to answer it.
Once the suspect/accused has appeared or been brought to court, the charges are read over to
him/her and called upon to answer to charges preferred against him/her. This process is
known as arraignment.
Arraignment of an accused person consists of three parts:-
First, being called by name,
Secondly, having the information or charge read to him/her and
Thirdly, being asked to respond to the charges against him/her.
2. Statutory Basis of Pleas
Section 207(1) of the Criminal Procedure Code provides that the substance of the charge shall be
stated to the accused person by the court, and he/she shall be asked whether he/she pleads
not guilty, guilty or guilty subject to a plea agreement. Similarly, section 274 provides for
procedure of plea taking in the High Court.
If the accused admits the truth of the charge, his/her admission shall be recorded as nearly as
possible in his/her own words. Consequently, the court shall convict him/her and pass
sentence upon or make an order against him/her, unless there appears to it sufficient cause to
the contrary.
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,Provided that after such conviction and before passing sentence or making any order, the
court may permit or require the complainant to outline to the court facts upon which the
charge was founded.1
According section 207(3) of the Criminal Procedure Code, if the accused person does not admit
the truth of the charge, the court shall proceed to hear the case.
If the accused person refuses to plead, the court shall order a plea of “not guilty” to be entered
for him/her.2
Under section 207(5) of the Criminal Procedure Code, if the accused person pleads that he/she has
been previously convicted or acquitted on the same facts of the same offence or that he/she
has obtained the President’s pardon for his/her offence, the court shall first try whether the
plea is true or not. 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.
3. Types of Pleas
In response to the charge or information, an accused person may:
a. Plead guilty;
b. Plead not guilty;
c. Remain silent;
d. Plead autrefois acquit;
e. Plead autrefois convict;
f. State that the court has no jurisdiction over him/her;
g. State that that he/she has obtained the president’s pardon for his/her offence;
h. Plead guilty subject to a plea agreement.
1
Section 207(2) of the Criminal Procedure Code Chapter 75 Laws of Kenya.
2
Ibid section 207(4).
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, 4. Recording Pleas
The court is required to explain the charge and all the elements of the offence to the accused in
a language he or she understands.3 It is a fatal omission not to explain to the accused person all
the elements of the charge.4 Where the accused is unrepresented, extra attention should be
taken to ensure that the charge and all the elements of the offence are thoroughly explained to
him/her.5
Except in simple and straight forward charges, it is not proper for the magistrate to delegate
this duty to the court clerk and even for simple charges, they must be read under the direction
of the court.
Where the accused does not understand the language of the court, it is mandatory that an
interpreter be availed to translate the charges and proceedings for the benefit of both the
accused and the court.6 Such interpreter should be sworn to faithfully and accurately discharge
the task and this should reflect on the record. In Republic v Abdi Ali7, the court stated that a plea
taken through an unofficial unsworn interpreter cannot be regarded as unequivocal.
The accused person should plead personally and not through his/her advocate. 8 It is only in
situations where a statute allows an advocate to plead on his/her client’s behalf that this rule
is qualified.
The plea should be recorded as nearly as possible in the accused person’s own words. 9
3
Adan v Republic (1973) EA 445; John Muendo Musau v Republic Court of Appeal at Nairobi Appeal No. 365 of 2011.
4
Charo v Republic (1982) KLR 308.
5
Judy Nkirote v Republic High Court at Meru Criminal Appeal No. 48 of 2010.
6
Article 50 (2) (m) of the Constitution of Kenya,2010.
7
(21) 2 KLR 116.
8
Johnstone Kassim Mwandi & Another v Republic High Court at Garissa Criminal Appeal No. 1 of 2014.
9
Wamithandi v Republic 3EALR 101.
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1. Introduction
A plea is a formal statement in response to the charge or information made by or on behalf of the
accused in a court of law. The basis of plea taking in Kenya are Articles 50 (2) (a) & (b) of the
Constitution of Kenya, 2010. According to Article 50 (2) (a), an accused person has the right to
be presumed innocent until the contrary is proved. Equally, Article 50(2) (b) requires the
accused to be informed of the charge, with sufficient detail to answer it.
Once the suspect/accused has appeared or been brought to court, the charges are read over to
him/her and called upon to answer to charges preferred against him/her. This process is
known as arraignment.
Arraignment of an accused person consists of three parts:-
First, being called by name,
Secondly, having the information or charge read to him/her and
Thirdly, being asked to respond to the charges against him/her.
2. Statutory Basis of Pleas
Section 207(1) of the Criminal Procedure Code provides that the substance of the charge shall be
stated to the accused person by the court, and he/she shall be asked whether he/she pleads
not guilty, guilty or guilty subject to a plea agreement. Similarly, section 274 provides for
procedure of plea taking in the High Court.
If the accused admits the truth of the charge, his/her admission shall be recorded as nearly as
possible in his/her own words. Consequently, the court shall convict him/her and pass
sentence upon or make an order against him/her, unless there appears to it sufficient cause to
the contrary.
1|P age
,Provided that after such conviction and before passing sentence or making any order, the
court may permit or require the complainant to outline to the court facts upon which the
charge was founded.1
According section 207(3) of the Criminal Procedure Code, if the accused person does not admit
the truth of the charge, the court shall proceed to hear the case.
If the accused person refuses to plead, the court shall order a plea of “not guilty” to be entered
for him/her.2
Under section 207(5) of the Criminal Procedure Code, if the accused person pleads that he/she has
been previously convicted or acquitted on the same facts of the same offence or that he/she
has obtained the President’s pardon for his/her offence, the court shall first try whether the
plea is true or not. 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.
3. Types of Pleas
In response to the charge or information, an accused person may:
a. Plead guilty;
b. Plead not guilty;
c. Remain silent;
d. Plead autrefois acquit;
e. Plead autrefois convict;
f. State that the court has no jurisdiction over him/her;
g. State that that he/she has obtained the president’s pardon for his/her offence;
h. Plead guilty subject to a plea agreement.
1
Section 207(2) of the Criminal Procedure Code Chapter 75 Laws of Kenya.
2
Ibid section 207(4).
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, 4. Recording Pleas
The court is required to explain the charge and all the elements of the offence to the accused in
a language he or she understands.3 It is a fatal omission not to explain to the accused person all
the elements of the charge.4 Where the accused is unrepresented, extra attention should be
taken to ensure that the charge and all the elements of the offence are thoroughly explained to
him/her.5
Except in simple and straight forward charges, it is not proper for the magistrate to delegate
this duty to the court clerk and even for simple charges, they must be read under the direction
of the court.
Where the accused does not understand the language of the court, it is mandatory that an
interpreter be availed to translate the charges and proceedings for the benefit of both the
accused and the court.6 Such interpreter should be sworn to faithfully and accurately discharge
the task and this should reflect on the record. In Republic v Abdi Ali7, the court stated that a plea
taken through an unofficial unsworn interpreter cannot be regarded as unequivocal.
The accused person should plead personally and not through his/her advocate. 8 It is only in
situations where a statute allows an advocate to plead on his/her client’s behalf that this rule
is qualified.
The plea should be recorded as nearly as possible in the accused person’s own words. 9
3
Adan v Republic (1973) EA 445; John Muendo Musau v Republic Court of Appeal at Nairobi Appeal No. 365 of 2011.
4
Charo v Republic (1982) KLR 308.
5
Judy Nkirote v Republic High Court at Meru Criminal Appeal No. 48 of 2010.
6
Article 50 (2) (m) of the Constitution of Kenya,2010.
7
(21) 2 KLR 116.
8
Johnstone Kassim Mwandi & Another v Republic High Court at Garissa Criminal Appeal No. 1 of 2014.
9
Wamithandi v Republic 3EALR 101.
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