Anthony Kamau Githuka v Republic

The court adopted the Bukenya principle that the prosecution must call all witnesses necessary to establish the truth and that an adverse inference may be drawn where the evidence called is barely adequate. But on the facts, there were no witnesses other than the complainant; the arresting officer's evidence would have been limited to the fact that a suspect was pointed out to him, so no prejudice arose and distinguishing John Itoyi was warranted.

The court reviewed the High Court judgment, which identified the two issues raised on appeal, re-evaluated and analysed the evidence, drew its own conclusions and pronounced itself on those issues with reasons. Unlike in Abdi Isaac Osman, the provision under which the appellant was charged was clearly indicated at the onset of the trial court judgment with particulars given.

The record showed a court clerk was present throughout, interpretation English/Kiswahili was indicated at plea, the appellant was reminded of the charge in Kiswahili, and he cross-examined witnesses consistently. Applying Said Hassan Nuno and Peter Kamande, the court took judicial notice of the court clerk's interpretive role and was satisfied the appellant understood and took part in the proceedings.

The court agreed with the respondent that the trial magistrate clearly indicated in the record that section 211 had been complied with. While it may be desirable for the trial court to indicate that it again explained the substance of the charge and informed the accused of his rights under section 211, the appellant suffered no prejudice from the summary indication of compliance.