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Court of AppealPartially AllowedCriminal Appeal 243 of 2005· [2006] KECA 354 (KLR)

Swahibu Simbauni Simiyu & another v Republic

Court of Appeal of Kenya
31 March 2006
ROR.S.C OmoloSBS.E.O BosirePWP.N Waki
1,251 words in judgment
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The bottom line

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Kenya's Court of Appeal freed two death-row inmates because the trial record never showed what language was used or interpreted.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Omolo, Bosire and Waki, JJA) allowed a second appeal by Swahibu Simbauni Simiyu and George Wanyama Wandera, who had been convicted of attempted robbery with violence contrary to section 297(2) of the Penal Code and sentenced to death by the Senior Principal Magistrate at Bungoma, with their first appeals dismissed by the High Court at Bungoma (Sergon & Kariuki, JJ) on 21 May 2004. Both counsel agreed the appeals should be allowed. The Court confined itself to issues of law and considered the single ground concerning the language of the trial under section 77(2)(b) and (f) of the Constitution and section 198 of the Criminal Procedure Code. Examining the magistrate's record, the Court found nothing showing the appellants understood Swahili, nothing recording the language in which witnesses testified or into which evidence was interpreted, and nothing showing what language the appellants used in cross-examination or in their defences. Following Kiyato v Republic and Abdalla v Republic, the Court held that the language of a criminal trial must be understood by the accused and, if the advocate does not understand it, interpreted to the advocate into English, and that the record must demonstrate compliance. Finding no attempt whatsoever to comply with the constitutional and statutory provisions, the Court allowed both appeals, quashed the convictions, set aside the death sentences, and ordered the immediate release of each appellant unless otherwise lawfully held. No retrial was sought or ordered given the lapse of time.

Key legal issues

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01

Compliance with constitutional and statutory language rights in criminal trials

Holding

The trial record must show the language used and that interpretation was provided; absent any such record there is no compliance with section 77(2) of the Constitution and section 198 of the Criminal Procedure Code.

Reasoning

The Court examined the magistrate's record and found nothing indicating the appellants understood Swahili or what language witnesses and the appellants used. Following Kiyato v Republic and Abdalla v Republic, the Court held that recording the language of interpretation is standard practice and its absence means the constitutional and statutory guarantees were breached, occasioning a miscarriage of justice that mandates quashing the conviction.

p. 3
02

Scope of second appellate jurisdiction

Holding

On a second appeal the Court of Appeal considers only issues of law.

Reasoning

Having gone through the High Court and the magistrate's court, the appellants' further appeal was confined to questions of law. The single ground of law pursued concerned the language of the trial under section 77(2)(b) and (f) of the Constitution, which the Court found determinative.

p. 1

Legal principles established

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  • In a criminal trial the language used must be understood by the accused and, where the advocate does not understand it, must be interpreted to the advocate into English; compliance must appear on the record.
  • Failure to record the language of the trial and interpretation, breaching section 77(2) of the Constitution and section 198 of the Criminal Procedure Code, vitiates the conviction on appeal.

Court orders

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  1. 1.Appeal of each appellant allowed
  2. 2.Conviction recorded against each appellant quashed
  3. 3.Sentence of death set aside
  4. 4.Each appellant released from prison forthwith unless otherwise held for some other lawful cause

Authorities

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Legislation

  • Constitution of Kenyasection 77(2)(b) and (f)
  • Penal Codesection 297(2)
  • Penal Codesection 296(2)
  • Criminal Procedure Code (Cap 75)section 198(1) and (2)

Cases cited (2)

  • Kiyato v. Republic
    (1982 – 88) KAR 418

    Accused entitled without payment to an interpreter; failure to record language of interpretation breaches section 77(2) and section 198(1); appeal allowed.

  • Abdalla V. Republic
    [1989] KLR 456

    Cited as being to the same effect on interpreter/language requirements.

On appeal from
High Court of Kenya at Bungoma
H.C.Cr. Appeal Nos. 143 & 144 of 1997
Jurisdiction invoked
Second appellate criminal appeal to the Court of Appeal under the Criminal Procedure Code, limited to issues of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Swahibu Simbauni Simiyu & another v Republic", Case Analysis (2006). Criminal Appeal 243 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/354/eng@2006-03-31

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