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Court of AppealPartially AllowedCriminal Appeal No. 124 of 2015· [2019] KECA 772 (KLR)

Mohammed Abdullahi v Republic [2019] KECA 772 (KLR)

Court of Appeal
10 May 2019
3,893 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a robbery conviction but sent the death sentence back for fresh hearing under the Muruatetu rules.

What this practically means

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Executive summary

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This was a second appeal by Mohammed Abdillahi against his conviction for robbery with violence contrary to section 296(2) of the Penal Code and the death sentence imposed by the trial magistrate and upheld on first appeal by the High Court at Garissa. The Court of Appeal (Nambuye, Karanja and Kantai, JJ.A) reiterated that under section 361 of the Criminal Procedure Code it could consider only matters of law. The appeal raised two issues: whether the appellant, a Somali national, was tried in a language he understood, and whether he was entitled to free legal representation at State expense. On language, the Court found an interpreter was present at plea (English/Somali) and a court clerk attended throughout trial; where the presence of an interpreter is undisputed and the accused participated, the presumption is that proceedings were duly interpreted. That ground failed. On legal representation, the Court held Article 50(1) does not make State-funded counsel automatic; the appellant never applied for counsel at trial or on first appeal, and the Legal Aid Act 2016 did not apply retrospectively. The right to State-funded representation under Article 50(2) applies at trial, not wholesale to appeals. Both grounds failed. However, exercising its discretion on sentence, which had not been challenged, the Court gave the appellant the benefit of the Muruatetu jurisprudence declaring the mandatory death sentence unconstitutional, and remitted the matter to the High Court for rehearing on mitigation and sentence. The appeal against conviction was dismissed; the sentence aspect was allowed, making the appeal partially allowed.

Key legal issues

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01

Whether failure to record the language of the trial on the coram vitiates the trial

Holding

It does not, where an interpreter was present and the accused participated; the presumption is that interpretation was duly done

Reasoning

The coram at plea recorded English/Somali interpretation, and on the day PW4, PW5 and PW6 testified the clerk (Mohamed) was in attendance. The clerk's principal duty is to interpret. Unlike Diba, where no clerk or interpreter was recorded, here an interpreter was always present and the accused gave his defence in Kisomali, which was translated. The first appellate court's finding that the trial was conducted in a language the appellant understood could not be faulted.

p. 3
02

Whether the accused was entitled to legal representation at State expense as of right for a capital robbery charge

Holding

No automatic entitlement; the right arises where substantial injustice would otherwise result, and persons accused of capital offences have the right to legal representation at State expense, but the accused must raise it before the trial court

Reasoning

Relying on David Njoroge Macharia, State-funded representation is a right in certain instances, including capital offences, per Article 50(2)(h). The Legal Aid Act 2016 postdates the trial. The appellant never requested counsel at trial or on first appeal, so the courts below had no opportunity to assess whether substantial prejudice would result. He was also not entitled to State-funded counsel on first appeal.

p. 4
03

Whether the mandatory death sentence could stand in light of Muruatetu

Holding

The Court interfered with the sentence despite it not being challenged, remitting the matter for rehearing on mitigation and sentence

Reasoning

The trial court imposed and the High Court affirmed the mandatory death sentence before Muruatetu was decided, which declared the mandatory aspect of the death sentence unconstitutional. The appellant also never addressed the trial court in mitigation. Fairness dictated that he benefit from this new jurisprudence and the sentencing policy guidelines that came into force after the judgment appealed from.

p. 5

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and cannot interfere with findings of fact unless the lower courts considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong.
  • Where the presence of an interpreter is not disputed and the record shows the accused's participation in the proceedings, the presumption is that the proceedings were duly interpreted into a language the accused understood.
  • Article 50(1) does not make appointment of State-funded counsel automatic; an accused who needs free legal representation must apply to the trial court for it.
  • The right to State-funded legal representation applies to an accused person at trial, not wholesale to appeals.

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Matter remitted to the High Court for rehearing on mitigation and sentence, taking into account the Muruatetu judgment and the sentencing policy guidelines

Authorities

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Legislation

  • Criminal Procedure CodeSection 361 (1) (a)
  • Criminal Procedure CodeSection 198 (1)
  • Penal CodeSection 296 (2)
  • Constitution of Kenya, 2010Article 25
  • Constitution of Kenya, 2010Article 50 (1)
  • Constitution of Kenya, 2010Article 50 (2) (g) and (h)
  • Constitution of Kenya, 2010Article 50 (2) (m)
  • Constitution of Kenya, 2010Article 2 (6)
  • Legal Aid Act2016 (commencement 10th May, 2016)
  • International Covenant on Civil and Political Rights (ICCPR)

Cases cited (12)

  • Karani vs. R
    [2010] 1 KLR 73
  • Diba Wako Kiyato v. Republic
    [1982 - 88] 1 KAR 974
  • Bernard Wachira Kamonye v Republic
    [2008] eKLR
  • Rwaru Mwangi v. Republic, Criminal Appeal No. 18 of 2006
  • John Ouma Awino & Another v Republic, Criminal Appeal No. 124 of 2012
  • David Njoroge Macharia -vs- Republic
    [2011] eKLR
  • Pett -vs- Greyhound Racing Association
    (1968) 2 All E.R 545
  • Isaiah Maroo -vs- Republic
    [2015] eKLR
  • Francis Karioko Muruatetu & others vs Republic
    [2017] eKLR
  • Jivraj Shah -vs Republic
    [1986] KLR 605
  • Somo -vs- Republic
    [1972] EA 476
  • Munjia Muchubu -vs- Republic
    [2014] e KLR
On appeal from
High Court of Kenya at Garissa
Criminal Appeal No. 49 of 2013
Jurisdiction invoked
Second appeal under Section 361 (1) (a) of the Criminal Procedure Code, confined to matters of law

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, "Mohammed Abdullahi v Republic [2019] KECA 772 (KLR)", Case Analysis (2019). Criminal Appeal No. 124 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/772/eng@2019-05-10

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