• On appearance before court, a judicial officer must ensure that the charge is properly drawn
  • It must be in regard to an offence that is known to law
  • It must not be duplex

All the proceedings must then be recorded
The court records must reflect the Coram which include the judicial officer by name, the Prosecutor by name

Section 198(4) of the CPC provides that the language of the High Court shall be English whereas that of subordinate courts shall be English or Kiswahili.

Adan v Republic – Plea should as far as possible be recorded in the language of the accused.  Summary proceeding of what is required in the course of a plea.

That in the event of a plea of guilty the fact should be stated to the accused and he/she should be granted an opportunity to respond

Where there is more than one accused jointly 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.  In the event that an accused does not change plea, a plea of guilty should then be entered and conviction recorded and after mitigation and facts relevant to sentence are taken the sentence can be meted out.

Plea of guilty – this kind of plea must be unequivocal and hence the elaborate requirements laid down in the case law where the plea is not properly taken and recorded the accused may be set free despite the plea of guilty.

Not guilty – the recording of in nearly exact words of the accused need not be as scrupulous as in the case of a plea of guilty but must be recorded nonetheless.  Section 278 of the CPC provides that where one pleads not guilty they are deemed to have put themselves up for trial.

Say nothing i.e. refuse to plead, assuming that the court accused understands the proceedings a plea of not guilty should be entered.

May plead lack of jurisdiction by the court.

Demurrer - meaning that the charge is open to some legal objection, e.g. facts may be true but do not amount to an offence May plead lack of jurisdiction.

Autrefois acquit/convict Section 279 of the CPC makes provision that:

(1)   An accused person against whom an information is filed may plead:-
(a)              that he has been previously convicted or acquitted of the same offence; or
(b)              that he has obtained the President’s pardon for his offence.
(2)  If either of those pleas are pleaded and denied to be true, the court shall try whether the plea is true or not.
(3)  If the court holds that the facts alleged by the accused do not prove the plea, or if it finds that it is false, the accused shall be required to plead to the information.

In cases where it would have been proper to prefer the charge complained of with the previous charge an accused can plead that they had previously been tried and convicted or acquitted of the same

Further under the same Section 279 they may plead that they have obtained Presidential pardon for the offence in question.
It is cardinal principle of constitutional and criminal law that a person must not suffer double jeopardy for the same offence.

The test is not whether the facts relied on are the same at the two trials but whether an acquittal or conviction on previous trial would have led to a similar conclusion in the subsequent trial R v Duadji (1948) 15EACA 89.

Conditional discharge does not bar similar charges, discharges such as those under Section 87, or where prosecution enters a nolle prosequi.

An absolute discharge amounts to a bar to preference of similar charges

Section 162 deals with Insanity

Where the court has reason to believe that due to unsoundness of mind the accused is rendered incapable of understanding the proceedings/making his defence, the court shall order for a medical examination.  If the medical examination confirms unsoundness of mind the proceedings shall be postponed.

The accused maybe released on bail on sufficient security that he will be properly taken care of and shall not injure ..

He may be ordered to appear before the court or other officer appointed by the court.  If he is not capable of raising bail he shall be remanded in custody or in a mental hospital.  Problems do arise since there are a lot of accused people who are not serious mentally ill as those already there and the congestion of mental hospital arises being caused by persons who should be in custody, they can be remanded in custody if there are facilities that can take care of their mental health.  The case shall be reviewed from time to time as provided under Section 164.


An accused may change their plea from not guilty to guilty in the cause of trial.

It is also accepted that where in mitigation the accused essentially retracts the plea of guilty then the court can enter a plea of guilty.

Kamundi v R [1973] EA 540 held that whereas, there are no provisions regarding change of plea, there are equally no provisions to prevent a change of plea before the court becomes “functus officio” the same was held in Maumba v R (1966) EA 167 – IT WAS STATED THAT A MAGISTRATE POWERS TO ALLOW AMENDMENT INCLUDING PLEA EXISTS ONLY DURING TRIAL, before conviction and before the court becomes functus officio

These East African decisions followed the English case of S

The court can be described as being functus officio when it has determined a case by passing a sentence – at which point it lacks power to re-open the case on its own motion or on application by the prosecution or the defence.

In the course of taking of a plea one finds in other jurisdictions a plea bargaining where a person can bargain for a lesser offence in exchange for being a State witness.  There is no provision for plea bargaining in Kenya

Sabur v R 1958 EA 126 – it was stated that plea bargaining would be deemed to negate a free and voluntary plea.  An accused person is being induced to bargain for a lesser sentence.  The position is that the defence and prosecution have no place in the sentencing process which is seen as a preserve of the Judiciary. 

In the event that an accused pleads not guilty or a plea of not guilty is entered the next question is that of granting of bail.


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