Plea Bargaining in Kenya’s Criminal Justice System

What is Plea Bargaining?

Plea bargaining is a process by which an accused person and the prosecution mutually agree to end a case with the court's approval. The mutual agreement is then reduced into writing as a plea agreement and entered before a court.
Plea agreements can be entered in all cases except in sexual offences, genocide, crimes against humanity, and war crimes. Plea agreements can be entered into any time after a charge has been preferred but before judgment. In Kenya, plea bargaining is governed by the Criminal Procedure Code (CPC) and is further guided by the Plea Bargaining Rules, 2018.

How does plea bargaining work?
An offer for a plea agreement may be initiated by the prosecutor, an accused person or their legal representative. The court shall be notified by the parties of their intention to negotiate the plea agreement but shall not participate in plea negotiations between a public prosecutor and the accused person.
A prosecutor can only make a plea deal after discussing the case with the investigating officer, must consider the type of crime, the situation surrounding it, the accused person’s background, the impact on the community and the victim or their legal representative should also be given a chance to share their views before the agreement is finalized.

Key Features of a Plea Agreement
i. Must be in writing.
ii. Must be reviewed and accepted by the accused person.
iii. Must state fully the terms of the agreement, admissions by accused, the substantial & relevant facts.
iv. Must be signed by the prosecutor and the accused person.
v. Must contain a certificate of interpretation where the services of an interpreter have been used.
vi. Must be signed by the complainant in instances where a compensation order is granted.

Role of the Court
Before the court records a plea agreement, the accused person shall be placed under oath, and the court shall address the accused person personally in court and inform the accused person of, and determine that the accused person understands:
i. that by accepting the plea agreement, he is waiving his right to a full trial;
ii. the nature of the charge he is pleading to;
iii. any maximum and minimum possible penalty,
iv. any applicable forfeiture;
v. the court’s authority to order compensation, restitution or both;
vi. that by entering into a plea agreement, he is waiving the right to appeal except as to the extent or legality of sentence;
The prosecutor shall lay before the court the factual basis of a plea agreement, and the court shall determine and be satisfied that there exists a factual basis for the plea agreement.

Where the court accepts a plea agreement, it shall enter the factual basis of the plea on record, the agreement shall become binding upon the prosecutor and the accused, and the agreement shall become part of the record of the court. Upon conviction, the court may invite the parties to address it on the issue of sentencing and the court shall take into account; the period during which the accused person has been in custody, a victim impact statement, the stage in the proceedings at which the accused person indicated his intention to enter into a plea agreement, 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. The court may also, in passing a sentence, take into account a probation officer’s report.

Where the court rejects a plea agreement; it shall record the reasons for such rejection and inform the parties accordingly, the plea agreement shall become null & void and no party shall be bound by its terms, the proceedings giving rise to the plea agreement shall be inadmissible in a subsequent trial or any future trial relating to the same facts and a plea of not guilty shall be entered accordingly. Where the court has rejected a plea agreement, no party shall appeal against, or apply for a review of, the order of the court rejecting the agreement. Any statements or facts an accused person admits in a plea agreement can only be used for that plea agreement and nothing else.

Impact of Plea Bargaining
i. Reduces case backlog in courts.
ii. Speeds up the trial process, saving judicial resources.
iii. Offers certainty to both the prosecution and defense on the case outcome.
iv. Ensures proportional justice, especially where a full trial may not be necessary.

Plea bargaining is an important aspect of Kenya’s criminal justice system, primarily occurring after plea-taking and before the conclusion of the trial. It helps balance the interests of justice, efficiency, and fairness.