Antony Njeru Kathiari & another v Republic [2007] KECA 218 (KLR)
The bottom line
#Kenya's Court of Appeal freed two death-row inmates because the trial record never showed they understood the proceedings through an interpreter.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the failure of the trial magistrate to record the language of proceedings, the name of the interpreter and the nature of interpretation rendered the appellants' convictions unsafe
- 2.Whether a retrial should be ordered given the lapse of time since the alleged offences and the appellants' prolonged custody
Key legal issues
#Right to interpretation of proceedings in a language the accused understands
A trial in which the record does not show the language of the accused, of the witnesses, or the presence and identity of an interpreter contravenes the accused's constitutional and statutory rights, rendering the convictions unsafe.
Relying on its earlier decision in Diba Wako Kiyato v Republic, grounded on section 77(2)(f) of the Constitution and section 198(1) of the Criminal Procedure Code, the Court reaffirmed that recording at least the interpreter's name and the nature of interpretation has been standard practice for many years. The sixty-six page trial record contained no indication of the languages used or whether interpretation occurred, amounting to a casual approach in a capital case. The State properly conceded the appeals on this ground.
Whether a retrial should be ordered
No retrial was ordered because the offences occurred some nine years earlier and the appellants had been in custody since 1998; a retrial would be futile.
The Court weighed the delay since the alleged offences of 17th/18th August 1998 and the appellants' continuous custody since arrest in 1998. Given these circumstances, and the absence of any request from the State for a retrial, ordering a retrial would serve no purpose. The Court instead quashed the convictions, set aside the death sentences and ordered immediate release.
Legal principles established
#- An accused person is entitled to the assistance of an interpreter through whom proceedings are interpreted in a language he understands, and failure to record the interpreter and the nature of interpretation is a serious defect rendering convictions unsafe.
Court orders
#- 1.The appeals of the two appellants are allowed
- 2.All the convictions recorded against each of the appellants are quashed
- 3.The sentences of death are set aside
- 4.Each appellant shall be released from prison forthwith unless held for some other lawful cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at 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 following conviction on charges under section 296(2) of the Penal Code
- Consolidated with
- Criminal Appeal 23 of 2004
Relief refused
#Retrial
Nine years had elapsed since the alleged offences and the appellants had been in custody since 1998; the State did not seek a retrial
Costs
No costs order recorded in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is a fundamental right in Kenya, whatever the position is elsewhere, that an accused person is entitled to the assistance of an interpreter through whom the proceedings shall be interpreted to him in a language which he understands.
The failure by the trial magistrate to keep a record of at least the name of the interpreter and the nature of the interpretation was a serious defect in the trial and must render the convictions of the appellants unsafe and unsustainable.
We accordingly allow the appeals of the two appellants, quash all the convictions recorded against each one of them, set aside the sentences of death and order that each of them shall be released from prison forthwith unless held for some other lawful cause.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Antony Njeru Kathiari & another v Republic [2007] KECA 218 (KLR)", Case Analysis (2007). Criminal Appeal 21 & 23 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/218/eng@2007-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.