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Court of AppealPartially AllowedCriminal Appeal 221 of 2006· [2008] KECA 303 (KLR)

Cisse Djibrilla v Republic

Court of Appeal of Kenya
7 March 2008
Philip Kiptoo TunoiP.K. TunoiEGE.M. GithinjiWDW.S. Deverell
1,043 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man convicted of drug trafficking because courts must prove the accused understood the language of his trial.

What this practically means

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Executive summary

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This is a second and final appeal to the Court of Appeal against conviction and sentence for trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act. The appellant, a Guinean citizen, was stopped at JKIA after arriving from Dubai, placed under observation, and emitted 44 pellets of heroin from his rectum. He was sentenced to life imprisonment plus a fine of Shs.1,000,000 by the Senior Principal Magistrate, Kibera; Mbaluto J dismissed his first appeal on 1st July 2003. Before the Court of Appeal, the State conceded the appeal but sought a retrial. The court held that it was not shown the appellant understood English or Kiswahili, in which the proceedings were conducted; the trial magistrate failed to keep a record of the interpretation, a serious defect, and the first appellate judge failed to consider the appellant's complaint about his poor English, contrary to the directions in Okeno v R. Relying on Diba Wako Kiyato and the constitutional right to an interpreter under former section 77(2)(f) and section 198(1) of the Criminal Procedure Code, the court found a miscarriage of justice and quashed the conviction. A retrial was refused: the appellant had been in custody some six years and the drug exhibits had been destroyed, so the interests of justice did not favour a retrial under Fathali Manji. The court allowed the appeal, quashed the conviction, and ordered the appellant's release forthwith unless held for some other lawful cause.

Key legal issues

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01

Language of trial and interpretation

Holding

Where it is not shown the accused understood the language of the trial, and the magistrate failed to keep a record of the interpretation, the trial is fundamentally defective and the conviction unsustainable

Reasoning

The record showed proceedings were conducted in English and translated into Kiswahili, but nothing established that the appellant, a Guinean national, understood either language. His silence and refusal to defend himself indicated he did not understand. The first appellate court also ignored his complaint that his English was poor, breaching its duty under the Okeno principles.

p. 2
02

Whether a retrial should be ordered

Holding

A retrial was refused because the appellant had been in custody about six years and the drug exhibits had been destroyed

Reasoning

Applying Fathali Manji, retrial depends on the facts and the interests of justice. Given the long custody period and the destruction of the vital exhibits (heroin valued at Shs.715,000), the interests of justice did not justify a retrial even though the State did not support the conviction.

p. 2

Legal principles established

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  • An accused person is entitled to interpretation of proceedings in a language he understands; failure to keep a record of the interpretation is a serious defect vitiating the trial
  • A retrial is not ordered merely to enable the prosecution to fill gaps in its evidence; it depends on the facts and the interests of justice

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction of trafficking in narcotic drugs quashed
  3. 3.Appellant to be released forthwith from prison unless held for some other lawful cause
  4. 4.No retrial ordered
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 217 of 2002
Jurisdiction invoked
Second and final appeal to the Court of Appeal under the Criminal Procedure Code (section on second appeals from a first appeal decided by the High Court)

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, "Cisse Djibrilla v Republic", Case Analysis (2008). Criminal Appeal 221 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/303/eng@2008-03-07

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