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Court of AppealPartially AllowedCriminal Appeal No. 189 of 2000· [2008] KECA 294 (KLR)

Julius Kaunga v Republic [2008] KECA 294 (KLR)

Court of Appeal
14 March 2008
SBS.E.O. BosirePWP.N. WakiDAD.K.S. Aganyanya
2,793 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a robbery conviction and death sentence because the trial record never showed what language the accused chose for his trial.

What this practically means

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Executive summary

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The Court of Appeal allowed a second appeal by Julius Kaunga against his conviction on two counts of robbery with violence and the sentences of death imposed by the Chief Magistrate's court at Makadara and confirmed by the High Court (Aluoch & Githinji, JJ.) on 30 June 1999. Of the twenty grounds raised, the Court held that most concerned concurrent findings of fact and credibility which a second appeal, being confined to questions of law under section 361(1) of the Criminal Procedure Code, could not disturb. The decisive ground of law was that the trial record nowhere indicated the language the appellant chose for his trial. Relying on section 77 of the former Constitution and section 198 of the Criminal Procedure Code, and its own prior decisions in Rwaru Mwangi and Degow Dagane Nunow, the Court held that a trial court must show on the face of the record, at the beginning of the trial, the language chosen by the accused and provide interpretation where needed; the omission here rendered the trial irreversibly flawed and a nullity. Declining the State's request for a retrial, the Court noted that the events were some ten years old, that the appeal had lain unexplained for eight years, and that witnesses and exhibits might no longer be available, prejudicing the appellant. The Court also observed that concurrent death sentences on both counts were procedurally wrong, only one sentence of death being necessary. The appeal was allowed, the conviction quashed, the death sentences set aside, and the appellant ordered set at liberty unless otherwise lawfully held.

Key legal issues

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01

Scope of a second appeal on concurrent findings of fact

Holding

The Court declined to interfere with the concurrent factual findings, as a second appeal lies only on questions of law under section 361(1) of the Criminal Procedure Code.

Reasoning

Most of the twenty grounds raised factual and credibility matters. Citing Reuben Karani and M'Riungu, the Court reiterated that it must accept the findings of fact of the lower courts unless based on no evidence, a perversion of evidence, or a conclusion no reasonable tribunal could reach. The trial court's advantage in seeing and hearing witnesses (Peters v Sunday Post) further counsels caution.

p. 1
02

Recording of the language of the trial

Holding

The trial court's failure to record the language chosen by the appellant violated section 77 of the Constitution and section 198 of the Criminal Procedure Code, rendering the trial irreversibly flawed and a nullity.

Reasoning

The language of criminal proceedings is not a mere technicality; it is constitutionally grounded. The burden is on the trial court itself to show that the accused selected the language of the trial, and to demonstrate compliance on the face of the record. Here the record was silent: it merely recorded 'charge read over and explained' without any indication of the appellant's language or of interpretation, and the State conceded the omission.

p. 5
03

Whether a retrial should be ordered

Holding

A retrial was refused because the delay of some ten years since the events, including eight unexplained years pending the appeal, would prejudice the appellant.

Reasoning

While each case depends on its facts and a retrial is ordered only where the interests of justice require it, here witnesses may have disappeared, died or had their memories fade, and exhibits might be impossible to locate. The Attorney-General's unexplained inaction over years following service of notices of appeal weighed against a retrial, which would be prejudicial to the appellant.

p. 5

Legal principles established

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  • A second appeal is confined to matters of law and an appellate court will not interfere with concurrent findings of fact unless they were based on no evidence or a perversion of it.
  • A trial court must show on the face of the record, at the beginning of the trial, the language the accused has chosen; failure to do so is not a mere technicality and can render the trial a nullity.
  • An order for retrial should only be made where the interests of justice require it, having regard to the particular facts and circumstances of the case.
  • Where two or more counts each attract the death penalty, only one sentence of death should be imposed, with the other left in abeyance.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction on both counts of robbery with violence quashed
  3. 3.Sentences of death set aside
  4. 4.Appellant to be set at liberty unless otherwise lawfully held

Authorities

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Legislation

  • Criminal Procedure Code (Cap 75)section 361(1)
  • Criminal Procedure Code (Cap 75)section 198(1)-(4)
  • Penal Codesection 296(2)
  • Constitution of Kenyasection 77(1), 77(2)(b), 77(2)(e)

Cases cited (9)

  • Reuben Karani s/o Karanja v Republic
    (1950) 17 EACA 146
  • M'Riungu v Republic
    [1983] KLR 455
  • Martin v Glyneed Distributors Ltd (t/a MBS Fastenings)
    The Times of March 30, 1983
  • Peters v Sunday Post Ltd
    [1958] EA 424
  • Abdul Debano Boye & Anor v R
    Cr. App. No. 19/2001 (ur)
  • Muiruri v R
    [1980] KLR 70
  • Rwaru Mwangi v Republic
    Cr. A. 18 of 2006 (ur)
  • Degow Dagane Nunow v Republic
    Cr. A. No. 223/05 (ur)
  • Benerd Lolimo Ekimal v R
    Cr. App. No. 151/04 (ur)
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 736 of 1997
Jurisdiction invoked
Second appeal under section 361(1) of the Criminal Procedure Code (Cap 75), confined to matters 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 (2)

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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, "Julius Kaunga v Republic [2008] KECA 294 (KLR)", Case Analysis (2008). Criminal Appeal No. 189 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/294/eng@2008-03-14

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