Kyalo Kalani v Republic [2013] KECA 169 (KLR)

The court accepted the importance of the interpreter's right under section 77(2)(f) of the former Constitution and Article 50(2)(m) of the 2010 Constitution, an unlimitable right under Article 25. However, on the facts, the appellant stated he was proficient in Kiswahili, gave evidence and a robust sworn defence in Kiswahili, was represented by counsel throughout, and English evidence was interpreted into Kiswahili. No violation was established.

PW1 heard pounding noises, met the appellant crying before he disappeared into a maize plantation, and found the deceased fatally injured nearby. PW9 heard blows from the appellant's direction and saw him running away. The medical evidence showed blunt trauma consistent with a stone or heavy rungu, not an animal. The trial judge properly directed herself on the three circumstantial-evidence tests and correctly found the evidence incompatible with innocence.

The court acknowledged that trial judges should not put forward theories unsupported by evidence, as deprecated in Okethi Okale, but held the impugned remark did not warrant that label. Following Ekai, Ramadhan Kombe and Karani, the court held that so long as the evidence establishes the existence of the weapon and the cause of death, conviction without production of the weapon is proper. The post mortem established cause of death from blunt trauma.

Section 13(1) of the Penal Code provides that intoxication shall not constitute a defence save as provided in the section. The appellant drank chang'aa for about an hour at midday, then worked in his shamba for hours, rested at a hotel for nearly three hours, told PW9 he was going to confront the deceased, dodged a thrown stick and deliberately sought refuge - conduct inconsistent with incapacity to form intent. A drunken intent is nevertheless an intent.

The trial judge, citing Morris Aluoch, found that the repeated blows and excessive force visited on the deceased led to an inference of intent to cause grievous harm or death, consistent with section 206 of the Penal Code. The court endorsed the approach in Daniel Muthee and Omar, where repeated and severe attacks on victims justified the inference of malice aforethought.

The court found no substance in the complaint that the defence was dismissed as a lie without consideration. The judgment dealt with the defence, including intoxication, absence of malice aforethought and self-defence. The only lapse faulted - two omitted quotations in the judgment - caused no prejudice since the reasoning and conclusions were otherwise clear.