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Court of AppealDismissedCriminal Appeal 322 of 2006· [2010] KECA 38 (KLR)

Said Hassan Nuno v Republic [2010] KECA 38 (KLR)

Court of Appeal of Kenya
19 November 2010
EOE. O. O'KubasuPWP. N. WakiDAD. K. S. Aganyanya
2,145 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that failing to record the language of a criminal trial does not automatically overturn a conviction if the accused understood and participated in proceedings.

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 at Nyeri against the appellant's conviction for robbery with violence contrary to section 296(2) of the Penal Code and the death sentence imposed by the Senior Resident Magistrate's Court at Garissa on 21st September 2004, and affirmed by the High Court at Meru (Lenaola & Sitati, JJ) on 16th November 2006. The appellant, armed with a panga, attacked and robbed the complainant of Kshs.1,010 in broad daylight; the complainant knew him and her testimony went unchallenged in cross-examination. Four supplementary grounds of appeal were argued: failure to record the language of the proceedings, absence of independent eyewitnesses, alleged disclosure of a lesser offence, and denial of the right to cross-examine the complainant under section 208(3) of the Criminal Procedure Code. The Court, confined to points of law by section 361(1) of the Criminal Procedure Code, held that while the trial magistrate ought to have recorded the language used, each case turns on its own facts; the appellant admitted understanding the charge, fully participated, and a court clerk attended for interpretation. It further held that no fixed number of witnesses is required, that recognition in daylight negated mistaken identity, and that proof of only one ingredient of robbery with violence suffices, the panga and injuries satisfying that requirement. The Court declined to disturb the concurrent findings of fact of the two courts below and dismissed the appeal.

Key legal issues

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01

Whether failure to record the language of the trial proceedings vitiates the conviction

Holding

The ground failed. Although the trial magistrate erred in not recording the language, the record showed the accused understood the charge, fully participated and cross-examined witnesses, and a court clerk attended each stage to interpret.

Reasoning

The Court acknowledged the duty to record the language chosen by the accused, but held each case turns on its facts. The plea-taking record showed the charge was stated in a language the accused understood; he testified on oath and cross-examined witnesses; and judicial notice was taken that court clerks provide interpretation. No prejudice or miscarriage of justice was demonstrated, so the constitutional and CPC provisions were not breached in substance.

p. 4
02

Whether absence of independent eyewitnesses undermined the identification evidence

Holding

No conviction cannot be founded merely for want of multiple witnesses; the offence occurred in broad daylight between persons known to each other, so there was no mistaken identity.

Reasoning

Relying on section 143 of the Evidence Act and Ogeto v Republic, the Court held a fact can be proved by a single witness, tested with care where identification conditions are difficult. Here conditions favoured correct identification: daylight attack, recognition, and PW1's unchallenged testimony since the appellant put no questions to her in cross-examination despite adequate opportunity.

p. 4
03

Whether the evidence disclosed only a lesser offence than robbery with violence

Holding

The charge under section 296(2) of the Penal Code was properly established because only one ingredient need be proved, and here the appellant was armed with a panga and used personal violence causing injuries.

Reasoning

The Court stated that the presence of only one ingredient of robbery with violence suffices. The appellant did not dispute being armed with a panga, and the Clinical Officer found injuries on the complainant consistent with her account. The trial court believed the complainant's honest and truthful evidence and the first appellate court agreed, so the concurrent findings stood.

p. 4

Legal principles established

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  • An accused person is entitled to choose the language he will use in proceedings, and the trial magistrate must record on the face of the proceedings the language chosen and into which the proceedings are interpreted.
  • Failure to record the language of the proceedings is not automatically fatal; each case depends on its own facts, and where the accused understood the charge, participated and cross-examined, no miscarriage of justice arises.
  • There is no legal requirement for a particular number of witnesses to prove the commission of a crime; a fact may be proved by a single witness.
  • On a charge of robbery with violence under section 296(2) of the Penal Code, proof of only one ingredient of the offence suffices.
  • On a second appeal under section 361(1) of the Criminal Procedure Code, the Court of Appeal is confined to points of law and will not disturb concurrent findings of fact by the two courts below.

Court orders

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  1. 1.The appeal has no merit and is hereby dismissed
  2. 2.The appellant's conviction and the death sentence imposed by the trial court and affirmed by the High Court stand

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 361(1)
  • Criminal Procedure Codesection 198
  • Criminal Procedure Codesection 208(3)
  • Constitution of Kenyasection 77(2)(b) and (f)
  • Evidence Actsection 143

Cases cited (3)

  • Degow Dagane Nunow v R.
    Criminal Appeal No. 223 of 2005 (UR)
  • Benard Lelimo Ekimal v R.
    Criminal Appeal No. 151 of 2004 (UR)
  • Ogeto v Republic
    [2004] KLR 14
On appeal from
High Court of Kenya at Meru
H.C.Cr.A. No. 124 of 2004
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code - second appeal confined to points of law only

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, "Said Hassan Nuno v Republic [2010] KECA 38 (KLR)", Case Analysis (2010). Criminal Appeal 322 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/38/eng@2010-11-19

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