• Some offences like defilement and rape cannot be plea bargained.
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Once an accused person is charged with a criminal offense in a court of law, they are always given an option of plea bargaining with the Office of the Director of Public Prosecution.
However, it is not automatic that you will come to an agreement with the prosecution depending on the circumstances of the offence committed and the guidelines put in place.
A plea bargain is an agreement between an accused and the prosecution in which the accused agrees to plead guilty to the offense in exchange for an agreement by the DPP to drop one or more charges, reduce a charge to a less serious offense, or recommend to the judge a specific sentence.
Some offences like defilement and rape cannot be plea bargained and in some instances some murder cases too, but any accused can approach the DPP and request for a plea bargain.
In some murder cases an accused person can approach the DPP for plea bargain and plead guilty in exchange the murder charge can be reduced to manslaughter.
The court is never part of the process of plea bargaining and will only be made aware of the process after both parties have agreed and want their agreement adopted by the court .
The DPP office has a set of guidelines that they use when they are negotiating with an accused person.
These Guidelines are made pursuant to section 137A to 137O of the Criminal Procedure Code (CPC), Cap 75 Laws of Kenya, and the Rules made thereunder. The Guidelines are intended for both public and private prosecutors.
The Guidelines sets out the process by which a prosecutor may negotiate with an accused person, his/her legal representative or any other party of his or her choice on the charges at any time before judgment.
An accused person cannot enter into a plea bargain with the DPP unless the plea has been registered.
In the Kenyan law, any party between the prosecutor and the accused person may initiate plea negotiations.
Plea negotiations may be terminated by either party, and the reasons for termination shall be set out in writing.
The process of plea bargaining may be cut short by prosecution if they find out that some material facts have been concealed or misrepresented by the accused person with the intention of misleading the plea negotiations.
But, in some instances the process may end if the accused withdraws there plea of guilty or if the court rejects the plea agreement.
However, once the plea bargain has been entered into by both parties the accused cannot change their mind or go back on their word.
Last year the Family bank was in the limelight after they entered into a plea bargain with the DPP and pleaded guilty to six counts of failure to report transactions made by NYS suspects.
In return, the bank agreed to pay Sh 64,500,000 with the money being divided into two Sh 24.5 Million was to be deposited into the NYS account and the other Sh 40 Million deposited as court fine.
Those accused of corruption are encouraged to plea bargain so that they get a lighter sentence and return the looted money.
Former nominated Senator Joy Gwendo also entered into a plea bargain with the DPP in the case where she was charged with issuing bad Cheques totaling to Sh 3 Million to Kisumu East Cotton Growers Cooperative Society.
However, her case did not end well as she was sentenced and locked up in Langata Women Prison when she failed to pay the money as they had agreed with the DPP.
She appealed the case at the high court arguing that Chief Magistrate Douglas Ogoti’s sentence was harsh.
It’s also important to note that unlike in normal hearings when an accused person is sentenced in a plea bargain they cannot appeal the court’s decision.
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