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Court of AppealPartially AllowedCriminal Appeal 21 & 23 of 2007

Antony Njeru Kathiari & another v Republic [2007] KECA 144 (KLR)

Court of Appeal of Kenya
2 November 2007
ROR.S.C. OmoloPWP.N. WakiWDW.S. Deverell
778 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed two death sentences because the trial record failed to show the accused men understood the court proceedings through an interpreter.

What this practically means

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Executive summary

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This is a consolidated second appeal to the Court of Appeal at Nyeri by Antony Njeru Kathiari and John Mugo, who had been convicted by the Senior Resident Magistrate at Kerugoya on six counts of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death. Their first appeals were dismissed by the High Court at Nyeri (Juma & Ombija, JJ) on 8th October 2003. Before the Court of Appeal, Mr Orinda, learned Principal State Counsel, correctly conceded the appeals, relying on the Court's decision in Diba Wako Kiyato v Republic. That decision, resting on section 77(2)(f) of the Constitution and section 198(1) of the Criminal Procedure Code, establishes as a fundamental right an accused person's entitlement to interpretation of the proceedings in a language he understands, coupled with the standard practice of recording at least the name of the interpreter and the nature of the interpretation. The trial record here, despite running to some sixty-six typed pages, contained no note of the language the appellants spoke, whether an interpreter was present, the languages of the witnesses, or whether the evidence was interpreted to the appellants. The court held this casual approach to be a serious defect rendering the convictions unsafe and unsustainable. It declined to order a retrial, since the offences dated back to August 1998 and the appellants had been in custody since their arrest, which would make a retrial an exercise in futility. The appeals were allowed, the convictions quashed, the sentences of death set aside, and each appellant ordered released forthwith unless held for some other lawful cause. No costs order was made. This ruling binds subordinate courts and the High Court to keep and record proper interpretation particulars in criminal trials.

Key legal issues

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01

Whether non-recording of interpreter details and the language of proceedings vitiates a criminal trial

Holding

Yes. The trial magistrate's failure to keep a record of the interpreter's name and the nature of the interpretation, in breach of section 77(2)(f) of the Constitution, section 198(1) of the Criminal Procedure Code and standard practice, rendered the convictions unsafe and unsustainable.

Reasoning

The trial record, running to some sixty-six typed pages, contained no note of the language the appellants spoke, whether an interpreter was present at the plea, what languages the witnesses gave evidence in, or whether the appellants understood or had the evidence interpreted to them. This fell below the constitutional and statutory requirements and the long-standing standard practice recorded in the plea form, and the State rightly conceded the appeals on that ground.

p. 2
02

Whether a retrial should be ordered where the alleged offences occurred nine years earlier and the appellants have been in custody throughout

Holding

No. Ordering a retrial after so many years would be an exercise in futility, and the State did not seek one.

Reasoning

The charges arose on the night of 17th/18th August 1998, some nine years before the hearing of the second appeal, and the appellants had been in custody since their arrest in 1998. In those circumstances the court declined to remit the matter for retrial, and counsel for the Republic correctly did not ask for one.

p. 2

Legal principles established

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  • An accused person is entitled to the assistance of an interpreter through whom the proceedings are interpreted in a language he understands, and the trial court must record at least the name of the interpreter and the nature of the interpretation; failure to do so is a serious defect rendering convictions unsafe
  • The right to interpretation of proceedings in a language the accused understands is a fundamental right in Kenya

Court orders

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  1. 1.The appeals of the two appellants are allowed
  2. 2.All the convictions recorded against each of the appellants are quashed
  3. 3.The sentences of death are set aside
  4. 4.Each appellant shall be released from prison forthwith unless held for some other lawful cause
On appeal from
High Court of Kenya, Nyeri
H.C. Cr. Appeal Nos. 379 & 358 of 2000; Nos. 64, 66 & 380 of 2001
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (appellate jurisdiction over High Court criminal appeals); the judgment itself does not cite a specific constitutional or statutory provision for its jurisdiction

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, "Antony Njeru Kathiari & another v Republic [2007] KECA 144 (KLR)", Case Analysis (2007). Criminal Appeal 21 & 23 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/144/eng@2007-11-02

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