https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8707

Macharia v Republic (Criminal Revision E009 of 2025) [2026] KEHC 8707 (KLR) (Anti-Corruption and Economic Crimes) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8707 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Anti-Corruption and Economic Crimes Criminal Revision E009 of 2025 BM Musyoki, J June 19, 2026 Between Titus Mithamo Macharia Applicant and Republic Respondent (Being application for revision of the ruling and orders dated 12th May 2025, conviction and sentence in Milimani Chief Magistrates Court anti-corruption case number E002 of 2024) Ruling 1.The applicant and one David Kilonzo Kavunza were charged in the lower court with the following counts;Count 1- against both accused persons was conspiracy to commit an offence of corruption contrary to Section 47A(3) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act. The particulars were that on 29th March 2022, at Nairobi City General Store, within Nairobi City County, being persons employed by a public body to wit Nairobi City County Government as Law Enforcement Officers seconded to Nairobi Metropolitan Services as an Inspector and Senior Sergeant respectively, jointly conspired to commit an offence of corruption by requesting bribe of Kshs 15,000/= from Isaac Munyori Magu with intent that, in consequence they would improperly facilitate the release of his motor cycle registration number KMDV 967K held at the said store.Count 2- also against both accused was receiving a bribe contrary to Section 6(1)(a) as read with Section 18 of the Bribery Act particulars being that on 29th March 2022, at Nairobi City General Store, within Nairobi City County, being persons employed by a public body to wit Nairobi City County Government as Law Enforcement Officers seconded to Nairobi Metropolitan Services as an Inspector and Senior Sergeant respectively, requested for a bribe of Kshs 15,000/= from Peter Isaac Munyori Magu with intent that, in consequence they would improperly facilitate the release of his motor cycle registration number KMDV 967K held at the said store.Count 3 against the applicant’s co-accused which was also for receiving a bribe contrary to Section 6(1)(a) as read with Section 18 of the Bribery Act particulars being that on 29th March 2022, at Nairobi City General Store, within Nairobi City County, being a person employed by a public body to wit Nairobi City County Government as a Senior Sergeant, received a bribe of Kshs 10,000/= from Isaac Munyori Magu with intent that, in consequence they would improperly facilitate the release of his motor cycle registration number KMDV 967K held at the said store. 2.On 12-05-2025, the prosecuting and defence counsel presented to court a plea bargain agreement (hereinafter referred to as ‘the agreement’) which was adopted as an order of the court and pursuant to which the applicant and his co-accused were convicted and sentenced to a fine of Kshs 25,000.00 on each count and in default serve six months in jail. By a notice of motion dated 1st December 2025, the applicant has sought revision orders from this court in the following terms;1.Spent.2.Spent.3.That the court declares that the plea agreement entered on 12th May 2025 was not explained to the accused in a language that he is able to understand and therefore should be set aside.4.That the court declares that the omission of the learned Magistrate to inform the accused person of his rights as provided for under Section 137F of the Criminal Procedure Code before allowing the recording of the plea agreement was a mistake that was prejudicial to the accused.5.That this court order that the plea agreement dated 12th May 2025 be set aside and be rendered of no effect since it did not follow the procedure laid down in Sections 137E and 137F of the Criminal Procedure Code.6.That this court order that the conviction and sentence that was based on the impugned plea agreement be set aside.7.That the court order that the trial in Anti-Corruption case no. E002 of 2024 be started afresh.8.That the disciplinary committee in the Nairobi City County be ordered not to rely on the proceedings, conviction and/or sentence in Anti-Corruption case no. E002 OF 2024 for its disciplinary process.9.Any other relief that this Honourable Court deem fit in the interest of justice. 2.The application is supported by affidavit of the applicant sworn on 1st December 2025. In the said affidavit, the applicant avers that when he was charged before the trial court, he pleaded not guilty and maintains the same position. He alleges that the complainant in the matter who testified on 24th July 2024 confirmed that the applicant was not in office when he went to deliver the bribe money. This was also confirmed by one Nicodemus Mulinge on 27th January 2025 by stating that, when they went to the central stores, they found money on the table and that he did not witness the request for or the receipt of the bribe money. And with this, he claims that he stood high chance of acquittal had the matter proceeded to full hearing. 3.The applicant has averred further that he entered into the agreement without its implications having been explained to him either by his former advocate or the court in a language he understood. He also claims that he was not given a chance to read and understand the agreement. He adds that the prosecution and his counsel did not also take time to read and understand the agreement and they did not assist the court in making a judicious decision. He denies having pleaded guilty to count 2 and 3 as claimed by the prosecution on 12th May 2025. He also said that his counsel gave erroneous indication that he had pleaded guilty to count 3, an error which was pointed out by the court. 4.The applicant has also directed his blame to the court by stating that it did not explain or inform him of his rights as provided for in Section 137E to 137F of the Criminal Procedure Code before allowing the plea agreement. He urges that his employer wants to use the agreement in its disciplinary proceedings with an aim of terminating his employment. 5.The respondent replied to the application through a response dated 2-01-2026. In it, the respondent submits that this court’s revisionary jurisdiction has not been properly invoked and adds that the recording of the agreement was procedural and adhered to provisions of Section 137 of the Criminal Procedure Code. The respondent submits that the applicant was properly convicted based on the agreement. It adds that the court convicted the applicant on count two only and as such the argument that his advocate and the prosecuting counsel erred in making reference to it does not hold water. According to the respondent, the application is baseless and an afterthought. 6.The applicant filed submissions dated 10th March 2026 which I have carefully read and considered. The respondent did not file any submissions but relied on the response aforesaid which in my view is in form of submissions. The applicant’s complaints are that, he did not understand the purport of the agreement and that the recording and adoption of the agreement did not follow the lawful procedure. 7.I will start with the issue of whether the applicant understood or was given time to understand the contents and consequence of the agreement. The applicant claims that the agreement was signed on the same day it was recorded and that is a sign that he did not get a chance to read and understand it. Reading of the proceedings shows that the agreement did not just come from the blues on the 12-05-2025. It was an outcome of long negotiations. The matter had proceeded to a considerable stage with seven witnesses having testified and the prosecuting counsel stating that three more were to go. 8.On 28-01-2025, the prosecuting counsel told the court that there was a proposal for plea bargain which the court noted and fixed the mater for mention on 11-03-2025. When the date came, the prosecuting counsel asked for two months for the negotiations after which Miss Wairimu appearing for the applicant and his co-accused stated that; ‘that is the position. Our next meeting is on 14-03-2025. We have a busy schedule hence our request for two months’. The court allowed the two months and fixed the matter for mention on 8-05-2025 on which date the counsel for the respondent told the court that the parties had agreed and he had shared the agreement with the defence with the applicant’s counsel responding that they had concluded and prayed for a mention date to adopt the agreement following which the court fixed a mention date for that purpose on 12-05-2025 and ordered parties to attend in open court. 9.With the above history, I find it difficult to believe that the applicant did not have adequate opportunity to go through and understand the agreement. The negotiations went on for over two months. The agreement was ready on 8-05-2025 and had been shared with the defence. It was signed and adopted a week later. The applicant must have had time and opportunity with his advocate to ask questions and seek explanation of the purport of the agreement. The fact that the date of execution was 12-05-2025 does not mean that he had no opportunity to see and understand it. He has not pointed out to this court that there are parts of the agreement that were not in the negotiated draft or that some parts of the negotiated draft had been omitted. 10.The applicant has made submissions to the effect that even the counsel for the parties did not understand the agreement in relation to the counts because they pointed out to court that he had been charged in count 3 which was not correct. He argues that the court even seemed more aware of the case than the counsel. I have noted above that, the matter had proceeded up to the seventh witness. All this time, the applicant and the counsel must have understood the counts the applicant was facing as the contents of the charge sheet never changed. The fact that the counsel talked of him as having been charged in count 3 did not prejudice the applicant neither could it alone vitiate the agreement. What is important in this context is that the applicant and the court were aware that he was facing counts 1 and 2 only and the court acted on that basis. Most importantly, he was not convicted of count 3 neither did he take plea on it or agree to be convicted of it. I therefore hold that the argument that the applicant was not granted opportunity to read and understand the agreement has no basis and I dismiss it. 11.I now turn to the procedural and substantive part of recording the agreement. After the agreement was presented to court on 12-05-2025, the prosecuting counsel went on to read the facts of the case and identified and produced exhibits. The applicant’s counsel told the court in his presence that, she had explained to him and his co-accused what the agreement entailed and prayed that the agreement be adopted as final order of the court. What followed this was the court adopting the agreement and going to sentencing. 12.The procedure of reaching and recording a plea bargain agreement is provided for in Sections 137 A- F of the Criminal Procedure Code Chapter 75 of the Laws of Kenya. This procedure is in my view meant to ensure that the accused person understands the nature and consequences of the agreement they are getting into. The resultant effect of a plea bargain is conviction of the accused person which in essence is a structured and negotiated plea of guilty. I resonate with the holding of my sister, Honourable Justice J.W. Mong’are in Chumba v Republic [2023] KEHC 2075 (KLR) where she stated that;“The above provisions are geared in my view in ensuring that the plea agreement doesn’t become a trap for the accused person and that he is clear in his mind what the new plea means and the resultant consequences." 13.In my opinion, Section 137F is a critical part of the process of plea bargaining. This procedure is synonymous to entering a plea of guilty which must be unequivocal. An unequivocal plea entails the facts being read to the accused upon which he is called upon to state whether the facts are true or not and only then that a conviction on a plea of guilty can be entered.Section 137F of ten Criminal Procedure Code has given a clear and elaborate Procedure. It provides as follows;1.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 shall inform the accused person of, and determine that the accused person understands-a.the right toi.plead not guilty, or having already so pleaded, to persist in that plea;ii.be presumed innocent until proved guilty;iii.remain silent and not to testify during the proceedings;iv.not being compelled to give self-incriminating evidence;v.a full trial;vi.be represented by a legal representative of his own choice, and where necessary, have the court appoint a legal representative;vii.examine in person or by his legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution;b.that by accepting the plea agreement, he is waiving his right to a full trial;c.the nature of the charge he is pleading to;d.any maximum possible penalty, including imprisonment, fine, community service order, probation or conditional or unconditional discharge;e.any mandatory minimum penalty;f.any applicable forfeiture;g.the court’s authority to order compensation under section 175(2)(b), restitution under section 177, or both;h.that by entering into a plea agreement, he is waiving the right to appeal except as to the extent or legality of sentence;i.the prosecution’s right, in the case of prosecution for perjury or false statement, to use against the accused any statement that the accused gives in the agreement.2.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 of the plea agreement. 14.In this matter, after the facts were read, the court did not call upon the applicant and his co-accused to confirm the correctness of the same or that of the agreement. What followed was the defence counsel confirming that she had explained to the accused perrons what the agreement entailed. The law requires that the accused should not only be addressed personally by the court but also be put on oath. This is, for all intends and purposes taking of a plea. A counsel cannot take plea on behalf of their clients. It must be personal which does not appear to have been done in this matter. The proceedings do no show that the court complied with the procedure provided in the law which I think is mandatory. A procedure like the one provided under this Section must be put into writing overwise a court on revision or appeal will have no alternative but to take it that the procedure was not followed. 15.The applicant has asked this court to restrain the Nairobi City County Government from relying on the agreement in its disciplinary proceedings against him. This court has no jurisdiction to make such orders because the matters alluded to are employer-employee issues which should be handled by the Employment and Labour Relations Court. Further, the County Government is not a party to these proceedings and orders against it would not be tenable in the circumstances. 16.In conclusion, for the sole reason that the trial court did not adhere to the mandatory, substantive and procedural provisions of Section 137F of the Criminal Procedure Code, this application is allowed in the following terms;1.The plea bargain agreement dated 12-05-2025 adopted in Milimani Chief Magistrate’s Court Anti-Corruption case number E002 of 2024 on the same date is hereby set aside and rendered of no effect.2.The matter is remitted to the Milimani Chief Magistrate’s Court to be tried pursuant to Section 137J(2) of the Criminal Procedure Code. DATED SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Ruling delivered in presence of Miss Ndambuki holding brief for Miss Kanana for the applicant and in absence of the respondent.