RULING
1. By a Notice of Motion Application dated 26 August 2026 brought under Article 50 (2) (b), ( c) and (e) of the Constitution and Section 89, 134,135 and 136 of the Criminal Procedure Code, the applicant seeks for orders to recall file No. MCA/E027 of 2025 for purposes of satisfying this court on the legality of the trial process. Further, the applicant is asking this court to quash orders by the trial court in MCA/E027 of 2025 rejecting the plea bargaining agreement dated 20 July 2026 and that the court endorses the said plea bargaining agreement (hereinafter known as the Plea Agreement).
2. The application is premised on the grounds set out in the Motion and in the Supporting Affidavit of Abdifatah Hassan sworn on 26 August 2026. The background of the case is that on 10 th June 2026, the applicant was charged with the offense of receiving a bribery contrary to Section 6 (1) as read with Section 18 (1) (a) of the Anti-Bribery Act at the Chief Magistrate’s Court Nairobi in Milimani Anti -Corruption Court Case No. MCAC/E027/2025. He denied the charges and soon thereafter, the parties engaged in plea negotiations which culminated in a Plea Agreement dated 20 July 2026 signed by the accused (applicant herein) and the prosecution.
3. The Plea Agreement was presented to the trial court on 23 July 2026 when the matter came for hearing. However, the Ethics and Anti - Corruption Commission (EACC) opposed its adoption prompting hearing that culminated in a ruling dated 30 July 2026, where the trial court dismissed the plea agreement on grounds that it was not signed by EACC being a party to whom compensation was payable to, contrary to Section 137E of the Criminal Procedure Code. It is this ruling that the applicant has challenged in the application before this court.
4. Neither the Respondent nor the EACC filed a written response and the matter was set for hearing through oral submissions. Prof. Hassan Nandwa, learned counsel appeared for the applicant, M/s Linda Otieno learned counsel appeared for the ODPP and M/s Olivia Mureithi learned counsel appeared for EACC.
5. The applicant submitted that the application before court seeks to revise the trial court’s decision to reject the plea agreement by the parties. He stated that the application was based on Section 326 to 367 of the Criminal Procedure Code (CPC) even though the said sections were not expressly cited in the Notice of Motion. He regretted the error arguing that it constituted an inadvertent omission that is addressed by Article 159 (2) (d) as read with Article 165 (6) and (7) of the Constitution that require court to hear and determine matters substantively without undue regard to technicalities. He contended that the application before the court was an application for revision that sought to invoke revision powers of the court under Sections 362 and 367 of the CPC.
6. Counsel submitted that Section 137J of the CPC made it mandatory for a court which rejects a plea agreement to provide reasons for its decision. He argued that its implication is that the decision is subject to the revision powers of this court. He further stated that the trial court erred by rejecting the plea agreement on grounds that the EACC ought to have signed it, terming it a misdirection subject to the supervisory powers of this court. He went on to state that whereas Section 137J of the CPC expressly precludes parties from appealing a decision to dismiss a plea agreement, the instant application was not an appeal but rather an application for revision and that by dint of Section 364 of the CPC, this court has powers to grant the orders sought. He concluded that in a plea bargain, the law required consultation with the complainant but not consensus. He urged the court to allow the application.
7. The Respondent supported the application submitting that EACC was an investigative body and not the complainant or a party to the case giving rise to the plea agreement. It was pointed out that the trial court erred by holding that EACC was the complainant for reasons that the compensation payable under the agreement was to be made to its (EACC) account. As regards Section 137J of the CPC, counsel took the view that the application before court was for the revision of the trial court’s decision and not an appeal or review which is expressly barred. The court was urged to allow the application.
8. The EACC opposed the application arguing that this court’s jurisdiction to hear the matter is ousted by Section 137J of the CPC which expressly provides that a decision by the trial court to reject a plea agreement is not subject to appeal or review. That in such a case, the law provides that the criminal case proceeds for hearing and determination. The court was urged to dismiss the application.
Analysis and Determination
9. Having considered the pleadings before court, submissions by the parties and the law, I narrow down the issues for determination to be;
i. Whether this court, in exercise of its revision powers, should quash the decision by the trial court to reject the plea agreement;
ii. Whether this court has power to endorse a plea bargaining agreement that has been rejected by the trial court.
i. Whether this court, in exercise of its revision powers, should quash the decision by the trial court to reject the plea agreement;
10. The applicant has invited this court to exercise its revision powers under Article 165 (6) and (7) of the Constitution and Section 362 of the CPC to recall proceedings of the lower court in MCAC/E027 of 2025 for purposes of satisfying itself on the correctness of the process, quashing the orders by the trial court rejecting the plea agreement and endorsing the rejected plea agreement.
11. The main ground relied upon by the applicant is that the trial court erred and misdirected itself by rejecting the plea agreement on the basis that EACC, being the complainant in the case, should have signed the agreement before it was presented to court. The applicant urged the court to invoke its revision powers under Section 364 of the CPC and review the decision by the trial court in order to determine its correctness. The applicant further submitted that Section 137J of the CPC was inapplicable in this case since this was a revision rather than an appeal or review. This view was supported by the ODPP which submitted that the EACC is an investigative agency and not the complainant in the proceedings that led to the execution of the plea agreement hence the trial court misdirected itself by requiring that EACC ought to have signed the agreement.
12. The EACC opposed the application arguing that this court is barred from hearing an appeal or seating on review against the decision by the trial court to reject the plea agreement by dint of Section 137J of the CPC.
13. The law governing revision in a criminal case is captured under Section 362 and 364 of the Criminal Procedure Code. It stems from Article 165 (6) and (7) of the Constitution which provides as follows:
“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
14. Section 362 of the Criminal Procedure Code provides thus regarding revision:-
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”
15. Criminal revision is founded upon the High Court’s supervisory jurisdiction by dint of Article 165 (6) and (7) of the Constitution and Section 362 to 364 of the Criminal Procedure Code. It allows the High Court to call for and examine proceedings or decisions by a subordinate court in order to determine their correctness, legality or propriety. In other words, revision empowers the High Court to step in when a lower court has committed a blatant procedural error, acted without jurisdiction, or made an illegal order or passed an illegal sentence, ensuring that justice is maintained.
16. Criminal revision is distinguishable from an appeal which is a merit assessment of a decision by a lower court that allows the higher court to consider whether the decision is based on the facts, evidence adduced, law and precedent. In an appeal, the appellate court can quash, overturn or affirm the decision by the lower court.
17. Whereas the applicant has invited this court to recall for the proceedings of the lower court in file MCAC/E027 of 2025 in order to satisfy itself of the legality of the process, he has not pointed out the purported illegality committed by the trial court. Instead, arising from the pleadings and submissions, the court is invited to examine the proceedings and ruling of the trial court rendered on 30 July 2026 by Hon. Izzabellah Barasa, SPM in MCAC/E027 of 2025, rejecting the plea bargaining for reasons stated above.
18. Plea agreements are provided for under Section 137A to O of the CPC. Section 137E of the said Act provides that a plea agreement shall be in writing and shall be signed by the complainant if a compensation order contemplated in Section 175 (2) (b) has been included in the agreement. Section 137J (1) empowers the trial court to reject a plea agreement requiring that in doing so, the court shall record reasons for the rejection and inform the parties. The section further provides that upon rejection, the agreement shall become null and void, a plea of not guilty shall be entered while the proceedings giving rise to the plea agreement shall become inadmissible.
19. An examination of the plea agreement dated 20 July 2026 shows that paragraph 14 provide for payment of compensation to the EACC. This paragraph bring the agreement within the ambit of Section 137 E (e) of the CPC that provides that a plea agreement shall be in writing and signed by the complainant if a compensation order contemplated in section 175(2)(b) has been included in the agreement. The question here is whether by virtue of that paragraph, the EACC was deemed to be a complainant and hence required to sign the plea agreement.
20. Article 252 of the Constitution , read with Section 13 of the Ethics and the Anti-Corruption Commission Act , 2011, sections 7 and 23 of the Anti-Corruption and Economic Crimes Act and Section 14 and 20 of the Anti-Bribery Act empowers the EACC to receive, process and investigate any reports or claims of bribery. EACC represents the public and acts in the public interest in all matters concerning allegations of bribery. Case No. MCAC/E027 of 2025 was instituted pursuant to investigations and actions by EACC which makes EACC the complainant in this case.
21. An independent analysis by this court establishes that the trial court fully complied with the requirements of Section 137 (J) of the CPC in rejecting the plea agreement. The decision by the trial court was properly informed by non-compliance with Section 137E (e) of the CPC and cannot be termed to be illegal or incorrect. Further, the trial court complied with Section 137J (1) of the said Act by recording and providing reasons for the decision. It is thus not demonstrable or apparent that there was an error or other illegality committed by the trial court to warrant the exercise of revision powers.
22. This court has been invited to quash the decision of the trial court rejecting the plea agreement and endorse the plea agreement. That power can only be exercise in appeal or review after a merit assessment of the decision. I find that Section 137J (4) of the CPC expressly bars an appeal or review against an order of the court rejecting a plea agreement.
ii.Whether this court has power to endorse a plea bargaining agreement that has been rejected by the trial court.
23. Pursuant to Section 137J (1) (b) of the CPC, a rejected plea agreement becomes null and void and cannot bind any party. Section 137J (3) on the other hand bars any subsequent negotiations on a rejected plea agreement. Consequently, the plea agreement having been properly rejected on 30 July 2026 ceased to exist and there is nothing to be endorsed by this court. Section 137J (2) of the CPC provides that where a plea agreement has been rejected, the matter shall be set down for hearing.
24. Accordingly, I find Notice of Motion dated 26 August 2026 devoid of merit and is hereby dismissed. For avoidance of doubt, Criminal case No. MCAC/E027 of 2025 shall be set down for hearing and determination in accordance with Section 137 (2) of the CPC.
Signed, dated and delivered virtually at Nairobi on this 21 st day of September 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
1. By a Notice of Motion Application dated 26 August 2026 brought under Article 50 (2) (b), ( c) and (e) of the Constitution and Section 89, 134,135 and 136 of the Criminal Procedure Code, the applicant seeks for orders to recall file No. MCA/E027 of 2025 for purposes of satisfying this court on the legality of the trial process. Further, the applicant is asking this court to quash orders by the trial court in MCA/E027 of 2025 rejecting the plea bargaining agreement dated 20 July 2026 and that the court endorses the said plea bargaining agreement (hereinafter known as the Plea Agreement).
2. The application is premised on the grounds set out in the Motion and in the Supporting Affidavit of Abdifatah Hassan sworn on 26 August 2026. The background of the case is that on 10 th June 2026, the applicant was charged with the offense of receiving a bribery contrary to Section 6 (1) as read with Section 18 (1) (a) of the Anti-Bribery Act at the Chief Magistrate’s Court Nairobi in Milimani Anti -Corruption Court Case No. MCAC/E027/2025. He denied the charges and soon thereafter, the parties engaged in plea negotiations which culminated in a Plea Agreement dated 20 July 2026 signed by the accused (applicant herein) and the prosecution.
3. The Plea Agreement was presented to the trial court on 23 July 2026 when the matter came for hearing. However, the Ethics and Anti - Corruption Commission (EACC) opposed its adoption prompting hearing that culminated in a ruling dated 30 July 2026, where the trial court dismissed the plea agreement on grounds that it was not signed by EACC being a party to whom compensation was payable to, contrary to Section 137E of the Criminal Procedure Code. It is this ruling that the applicant has challenged in the application before this court.
4. Neither the Respondent nor the EACC filed a written response and the matter was set for hearing through oral submissions. Prof. Hassan Nandwa, learned counsel appeared for the applicant, M/s Linda Otieno learned counsel appeared for the ODPP and M/s Olivia Mureithi learned counsel appeared for EACC.
5. The applicant submitted that the application before court seeks to revise the trial court’s decision to reject the plea agreement by the parties. He stated that the application was based on Section 326 to 367 of the Criminal Procedure Code (CPC) even though the said sections were not expressly cited in the Notice of Motion. He regretted the error arguing that it constituted an inadvertent omission that is addressed by Article 159 (2) (d) as read with Article 165 (6) and (7) of the Constitution that require court to hear and determine matters substantively without undue regard to technicalities. He contended that the application before the court was an application for revision that sought to invoke revision powers of the court under Sections 362 and 367 of the CPC.
6. Counsel submitted that Section 137J of the CPC made it mandatory for a court which rejects a plea agreement to provide reasons for its decision. He argued that its implication is that the decision is subject to the revision powers of this court. He further stated that the trial court erred by rejecting the plea agreement on grounds that the EACC ought to have signed it, terming it a misdirection subject to the supervisory powers of this court. He went on to state that whereas Section 137J of the CPC expressly precludes parties from appealing a decision to dismiss a plea agreement, the instant application was not an appeal but rather an application for revision and that by dint of Section 364 of the CPC, this court has powers to grant the orders sought. He concluded that in a plea bargain, the law required consultation with the complainant but not consensus. He urged the court to allow the application.
7. The Respondent supported the application submitting that EACC was an investigative body and not the complainant or a party to the case giving rise to the plea agreement. It was pointed out that the trial court erred by holding that EACC was the complainant for reasons that the compensation payable under the agreement was to be made to its (EACC) account. As regards Section 137J of the CPC, counsel took the view that the application before court was for the revision of the trial court’s decision and not an appeal or review which is expressly barred. The court was urged to allow the application.
8. The EACC opposed the application arguing that this court’s jurisdiction to hear the matter is ousted by Section 137J of the CPC which expressly provides that a decision by the trial court to reject a plea agreement is not subject to appeal or review. That in such a case, the law provides that the criminal case proceeds for hearing and determination. The court was urged to dismiss the application.
Analysis and Determination
9. Having considered the pleadings before court, submissions by the parties and the law, I narrow down the issues for determination to be;
i. Whether this court, in exercise of its revision powers, should quash the decision by the trial court to reject the plea agreement;
ii. Whether this court has power to endorse a plea bargaining agreement that has been rejected by the trial court.
i. Whether this court, in exercise of its revision powers, should quash the decision by the trial court to reject the plea agreement;
10. The applicant has invited this court to exercise its revision powers under Article 165 (6) and (7) of the Constitution and Section 362 of the CPC to recall proceedings of the lower court in MCAC/E027 of 2025 for purposes of satisfying itself on the correctness of the process, quashing the orders by the trial court rejecting the plea agreement and endorsing the rejected plea agreement.
11. The main ground relied upon by the applicant is that the trial court erred and misdirected itself by rejecting the plea agreement on the basis that EACC, being the complainant in the case, should have signed the agreement before it was presented to court. The applicant urged the court to invoke its revision powers under Section 364 of the CPC and review the decision by the trial court in order to determine its correctness. The applicant further submitted that Section 137J of the CPC was inapplicable in this case since this was a revision rather than an appeal or review. This view was supported by the ODPP which submitted that the EACC is an investigative agency and not the complainant in the proceedings that led to the execution of the plea agreement hence the trial court misdirected itself by requiring that EACC ought to have signed the agreement.
12. The EACC opposed the application arguing that this court is barred from hearing an appeal or seating on review against the decision by the trial court to reject the plea agreement by dint of Section 137J of the CPC.
13. The law governing revision in a criminal case is captured under Section 362 and 364 of the Criminal Procedure Code. It stems from Article 165 (6) and (7) of the Constitution which provides as follows:
“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
14. Section 362 of the Criminal Procedure Code provides thus regarding revision:-
“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”
15. Criminal revision is founded upon the High Court’s supervisory jurisdiction by dint of Article 165 (6) and (7) of the Constitution and Section 362 to 364 of the Criminal Procedure Code. It allows the High Court to call for and examine proceedings or decisions by a subordinate court in order to determine their correctness, legality or propriety. In other words, revision empowers the High Court to step in when a lower court has committed a blatant procedural error, acted without jurisdiction, or made an illegal order or passed an illegal sentence, ensuring that justice is maintained.
16. Criminal revision is distinguishable from an appeal which is a merit assessment of a decision by a lower court that allows the higher court to consider whether the decision is based on the facts, evidence adduced, law and precedent. In an appeal, the appellate court can quash, overturn or affirm the decision by the lower court.
17. Whereas the applicant has invited this court to recall for the proceedings of the lower court in file MCAC/E027 of 2025 in order to satisfy itself of the legality of the process, he has not pointed out the purported illegality committed by the trial court. Instead, arising from the pleadings and submissions, the court is invited to examine the proceedings and ruling of the trial court rendered on 30 July 2026 by Hon. Izzabellah Barasa, SPM in MCAC/E027 of 2025, rejecting the plea bargaining for reasons stated above.
18. Plea agreements are provided for under Section 137A to O of the CPC. Section 137E of the said Act provides that a plea agreement shall be in writing and shall be signed by the complainant if a compensation order contemplated in Section 175 (2) (b) has been included in the agreement. Section 137J (1) empowers the trial court to reject a plea agreement requiring that in doing so, the court shall record reasons for the rejection and inform the parties. The section further provides that upon rejection, the agreement shall become null and void, a plea of not guilty shall be entered while the proceedings giving rise to the plea agreement shall become inadmissible.
19. An examination of the plea agreement dated 20 July 2026 shows that paragraph 14 provide for payment of compensation to the EACC. This paragraph bring the agreement within the ambit of Section 137 E (e) of the CPC that provides that a plea agreement shall be in writing and signed by the complainant if a compensation order contemplated in section 175(2)(b) has been included in the agreement. The question here is whether by virtue of that paragraph, the EACC was deemed to be a complainant and hence required to sign the plea agreement.
20. Article 252 of the Constitution , read with Section 13 of the Ethics and the Anti-Corruption Commission Act , 2011, sections 7 and 23 of the Anti-Corruption and Economic Crimes Act and Section 14 and 20 of the Anti-Bribery Act empowers the EACC to receive, process and investigate any reports or claims of bribery. EACC represents the public and acts in the public interest in all matters concerning allegations of bribery. Case No. MCAC/E027 of 2025 was instituted pursuant to investigations and actions by EACC which makes EACC the complainant in this case.
21. An independent analysis by this court establishes that the trial court fully complied with the requirements of Section 137 (J) of the CPC in rejecting the plea agreement. The decision by the trial court was properly informed by non-compliance with Section 137E (e) of the CPC and cannot be termed to be illegal or incorrect. Further, the trial court complied with Section 137J (1) of the said Act by recording and providing reasons for the decision. It is thus not demonstrable or apparent that there was an error or other illegality committed by the trial court to warrant the exercise of revision powers.
22. This court has been invited to quash the decision of the trial court rejecting the plea agreement and endorse the plea agreement. That power can only be exercise in appeal or review after a merit assessment of the decision. I find that Section 137J (4) of the CPC expressly bars an appeal or review against an order of the court rejecting a plea agreement.
ii.Whether this court has power to endorse a plea bargaining agreement that has been rejected by the trial court.
23. Pursuant to Section 137J (1) (b) of the CPC, a rejected plea agreement becomes null and void and cannot bind any party. Section 137J (3) on the other hand bars any subsequent negotiations on a rejected plea agreement. Consequently, the plea agreement having been properly rejected on 30 July 2026 ceased to exist and there is nothing to be endorsed by this court. Section 137J (2) of the CPC provides that where a plea agreement has been rejected, the matter shall be set down for hearing.
24. Accordingly, I find Notice of Motion dated 26 August 2026 devoid of merit and is hereby dismissed. For avoidance of doubt, Criminal case No. MCAC/E027 of 2025 shall be set down for hearing and determination in accordance with Section 137 (2) of the CPC.
Signed, dated and delivered virtually at Nairobi on this 21 st day of September 2026
JOSEPH KIPKOECH BIOMDO
JUDGE