Procedure on a Plea of Guilty.

The process for taking a plea of guilty has been established in several case laws (Adan v Republic [1973] EA 445, Khalid Athumani v R. [2006] TLR 79, Thuway Akoonay vs Republic [1987] T.L.R. 92] ) and various provisions of CPA as follows: 

Procedures.

• The charge and the particulars should be read out to the accused. So far as possible, this should be in his own language, but if that is not possible, then in a language he can speak and understand. CPA s228(1).

• The court should then explain to the accused person all the essential ingredients of the offence charged. This was established in the case of Yonasani Egalu and others v R. (9 EACA 65) p67 of the Court of Appeal of East Africa referred to in B. D. Chipeta, A Handbook for Public Prosecutors, (2009, 3rd ed.,) p.44

The case established that;

“In any case in which a conviction is likely to proceed on a plea of guilty (in other words, when an admission by the accused is likely to take the place of otherwise strict proof of the charge beyond reasonable doubt by the prosecution) it is most desirable not only that every constituent of the charge should be explained to the accused but that he should be required to admit or deny every element of it unequivocally”

• The accused shall be asked by the court whether he admits or denies the truth of the charge. CPA s228(1).

• If the accused admits all those essential legal elements, the court should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty CPA s228(2). “For a plea of guilty to stand the court must satisfy itself without any doubt and must be clear in its mind, that an accused fully comprehends what he is actually faced with, otherwise injustice may result.”

• The court should ask the prosecutor to state the facts of the alleged offence. This has two purposes:

 (1) It enables the court to satisfy itself that the plea was unequivocal;

 (2) It provides the basis upon which to assess sentence. (Adan v Republic [1973] EA 445).

In complex cases, it is good practice for the prosecution to assist the court by providing the basis of facts in writing and provide a copy to the accused.

• The accused should be asked to dispute or explain the facts or to add any relevant facts.

• If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to the sentence. (Only when the accused admits the facts are correct will the court enter a plea of guilty and convict the accused person of the offence charged, see Samson Kayora and Another v R. (1985) TLR 158 summarized in B D Chipeta, A Handbook for Public Prosecutors, (2009, 3rd ed.,) p.44)

• The statement of facts and accused’s reply must be recorded. The court should obtain from the accused his permanent address and also record this. CPA s228(6)

• An accused may change his plea from guilty to not guilty (or vice versa) at any time before sentence is passed. (Kamundi v Republic [1973] EA 540 and Wanjiru v R. [1975] EA 5 referred to in Asia Ally v R. [2000] TLR 234)

• If the accused does not agree with the statement of facts or asserts additional facts, the court should consider the effect of this upon plea and the basis of facts upon which the court must sentence: