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Court of AppealPartially AllowedCriminal Appeal (second appeal from Meru Senior Resident Magistrate's case, first appeal to High Court)· [1986] KECA 32 (KLR)

Kiyato v Republic [1986] KECA 32 (KLR)

Court of Appeal of Kenya
7 May 1986
AKA.A. KnellerAHA.R.W. HancoxJNJ.O. Nyarangi
1,076 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a criminal trial held in a language the accused does not understand is invalid and must be redone.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal against conviction for the capital offence of robbery contrary to section 296(2) of the Penal Code, following dismissal of the first appeal by the High Court. The robbery occurred at Nanyuki on August 7, 1983; the appellant was arrested in Isiolo three months later and convicted mainly on visual identification evidence and possession of stolen items, and sentenced to death. The only ground seriously argued on the second appeal was that the appellant, a Boran, had asked for a Boran interpreter at his trial before the senior resident magistrate at Meru, but the interpreter used was a Somali, and the proceedings were thus conducted in a language he did not fully understand. The court held that the right to an interpreter, without payment, in a language the accused understands is a fundamental right grounded in section 77(2) of the Constitution and section 198(1) of the Criminal Procedure Code, and that the words 'in a language which he understands' are of crucial importance. The court found no compliance with either provision or with the standard practice of recording the nature of interpretation, noting that the magistrate made no note of the language of translation. Counsel for the Republic conceded, particularly in a capital case, that he was not satisfied the translation was in a language the appellant understood. Exercising its powers under section 361(2) of the Criminal Procedure Code, the court allowed ground 2 of the appeal and remitted the case to a magistrate's court of competent jurisdiction for rehearing according to law, with particular reference to the legal requirements on interpretation. The judgment was delivered in Nairobi on May 7, 1986 by Kneller, Hancox and Nyarangi, JJA.

Key legal issues

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01

Right to interpretation in a language the accused understands

Holding

A trial conducted without ensuring interpretation into a language the accused understands breaches section 77(2) of the Constitution and section 198(1) of the Criminal Procedure Code and constitutes a miscarriage of justice warranting a retrial.

Reasoning

The appellant, a Boran, asked for a Boran interpreter but the interpreter used was alleged to be a Somali, the two languages differing considerably. The magistrate made no note of the language of translation, contrary to the statutory provisions and long-standing standard practice of recording the nature of interpretation, including on the plea Form Criminal 133. In a capital case the court could not be satisfied the appellant could make his defence fully.

p. 2
02

Recording of interpretation as standard practice

Holding

It is standard practice in Kenyan courts to record, if not the interpreter's name, at least the nature of the interpretation, and non-compliance is an error.

Reasoning

The court noted that Form Criminal 133, the plea form, contains a space against the word 'interpretation'. The magistrate made no note of the language into which the evidence of witnesses, many of whom spoke English and Swahili, was translated. The prosecution counsel conceded he was not entirely happy the translation was in a language the appellant understood, particularly in a capital case.

p. 2

Legal principles established

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  • An accused person is entitled, without payment, to the assistance of an interpreter who can translate the evidence into a language he understands; the words 'in a language which he understands' are of crucial importance.
  • Courts must record the language of interpretation; failure to comply with section 77(2) of the Constitution, section 198(1) of the Criminal Procedure Code, and standard practice vitiates a trial in a capital case.

Court orders

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  1. 1.Ground 2 of the supplementary memorandum of appeal allowed
  2. 2.Case remitted to a magistrate's court of competent jurisdiction to rehear and determine the case according to law, with particular reference to the legal requirements as regards interpretation
On appeal from
High Court of Kenya
Jurisdiction invoked
Section 361(2) of the Criminal Procedure Code (second appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kiyato v Republic [1986] KECA 32 (KLR)", Case Analysis (1986). Criminal Appeal (second appeal from Meru Senior Resident Magistrate's case, first appeal to High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/32/eng@1986-05-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.