It is guided by Section 137 A-0 of the Criminal Procedure Code and Criminal Procedure (Plea Bargaining) Rules, 2018.
A plea agreement is an agreement entered into between the prosecutor and an accused person where —

(a) an accused person has been charged in court; and
(b) at any time before the court passes judgment.

A plea bargain heavily relies upon the accused person pleading guilty to the charges. It might be some of the charges or all charges. Accused are always advised by their lawyers to accept the terms of the plea bargain if it is seen as beneficial to them. 

For the two sides to reach an agreement, both the Prosecutor and the Accused must see a benefit in the plea bargain: prosecutors seek a guilty plea and an efficient case resolution, while the Accused is motivated to plead guilty to receive a reduced or commuted sentence.

However, the intention and execution of plea bargains often diverge. Critics argue that plea bargains can lead to coerced guilty pleas and may also conceal corrupt or unlawful behaviour by prosecutors.

A Plea Bargain is, however, viewed as a necessary tool in dispensing justice. It saves the judicial time and the expense of a lengthy trial. Without plea bargains, there simply would not be enough time for judicial officers to oversee all the cases.

How to handle information obtained from an accused person
The information obtained from an accused person during the course of plea negotiations shall not be used against him or her during the prosecution of the case if the plea negotiations ultimately fail. The information is regarded to have been taken on a without-prejudice basis.

However, if the negotiations fail due to the actions or omissions of the accused, this information might be used in their prosecution.

Initiation of plea negotiations
Plea negotiations may be initiated by a prosecutor, the accused person or the accused's lawyer.

Consultations by the Prosecutor
Before entering into a plea agreement with an accused person, the prosecutor must—
(a) Consult with the investigating officer of the case;
(b) Consider the nature and the circumstances relating to the case, the personal circumstances of the accused, the interests of the community; and
(c) If possible, allow the victim or the victim's lawyer an opportunity to make a representation to the prosecutor regarding the terms of the agreement.

Ultimately, the prosecutor has the sole discretion to decide whether to enter into a plea agreement or not.

Including Victim Compensation
A plea agreement may include a clause for the payment of compensation to a victim by an accused person.
Where a plea agreement includes a clause for compensation payable to the victim by an accused person, the value or form of compensation shall be as agreed to after negotiations between the victim and the accused person and endorsed by the prosecutor if, in his or her opinion, the compensation serves the ends of justice.

A proposal to include the payment of compensation to the victim in a plea agreement or any negotiation for compensation payable to the victim may be made or initiated by the accused person or the victim.

Where negotiations for compensation payable to the victim break down or the prosecutor determines that the proposed compensation defeats the ends of justice, the prosecutor shall not include the proposal for compensation in the final draft of the plea agreement.

Presenting the Plea Agreement to Court
The prosecutor must present the factual basis of the plea agreement in court. This includes detailing all case circumstances and any mitigating factors favouring the accused when they plead guilty according to the agreement's terms.

Sentencing recommendations
A prosecutor and the accused person or the accused lawyer can each make a specific recommendation to the court as to the sentence to be imposed and include the recommendation in the final plea agreement.

Notwithstanding the recommendation of the parties, the court retains the sole discretion in sentencing.
If the prosecutor recommends a harsher sentence than that in the plea agreement, the accused can withdraw their guilty plea and the plea agreement.
If the court recommends a lighter sentence, the accused cannot withdraw their guilty plea based on this alone, but the prosecutor can propose an appropriate sentence.

Finalisation of agreement
A plea agreement shall be finalised when the prosecutor and the accused person sign the agreement.
Where applicable, the legal representative shall also sign the plea agreement.
Where the plea agreement includes a compensation clause, the complainant shall sign the compensation clause of the agreement.

In the end, the Accused;

1. Waives the right to full trial.
2. Pleads guilty.
3. Is ready for convictions and will receive some form of punishment (imprisonment, fine, probation, community service, compensation, restitution, apology, supervision).
4. Waives the right to appeal.
5. MUST uphold his or her end of the deal, such as cooperating in the investigation of another offence, or testifying against a co-accused or the plea bargain may be revoked.

Read more here! https://wjmaxwell.co.ke/blog/0/0 

Disclaimer: This is not legal advice and should not be relied upon as such. 

Contact us for further details.

W.J. Maxwell & Associates Advocates

email info@wjmaxwell.co.ke || or call/text/WhatsApp 0733 61 09 61