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|Case Number:||Criminal Appeal 46 of 1989|
|Parties:||Abdalla v Republic|
|Date Delivered:||15 Aug 1989|
|Court:||Court of Appeal at Nairobi|
|Judge(s):||Johnson Evan Gicheru, Richard Otieno Kwach, Joseph Raymond Otieno Masime|
|Citation:||Abdalla v Republic eKLR|
|Case History:||(Appeal from a Judgment of the High Court at Nairobi, Porter J, dated 14th April 1989, in High Court Criminal Appeal No 1144 of 1988)|
|History Docket No:||Criminal Appeal No 1144 of 1988|
|History Judges:||David Christopher Porter|
Abdalla v Republic
Court of Appeal, at Nairobi
August 15, 1989
Masime JA, Gicheru & Kwach JJ A
Criminal Appeal No 46 of 1989
(Appeal from a Judgment of the High Court at Nairobi, Porter J, dated 14th April 1989, in High Court Criminal Appeal No 1144 of 1988)
Criminal Practice and Procedure – trial – failure to interpret the proceedings in a language the accused understands – whether such failure fatal to subsequent conviction.
Constitutional law – constitutional and fundamental rights - rights of an accused person - right to an interpreter - failure by trial court to provide interpreter - effect of such failure.
The appellant was convicted by the subordinate court of the offence of stealing and convicted on a plea of guilty.
He however appealed to the High Court on the ground inter alia that his plea was unequivocal and that he did not understand the language of the court as no interpreter was provided to interpret the proceedings to him in a language that he understood.
The trial court’s record only indicated the presence of the magistrate, the accused and the prosecutor. It did not indicate the presence if any clerk to interpret the proceedings.
The High Court dismissed his appeal holding that the omission did not occasion any prejudice to the appellant or lead to a miscarriage of justice.
1. It is a fundamental right of an accused person charged with a criminal offence to have the assistance of an interpreter.
2. The record of the trial court alluded to interpretation into Kiswahili but did not state that there was any clerk or interpreter in Court.
3. In the circumstances, there was breach of the appellant’s constitutional and fundamental right which was fatal to the proceedings.
Kiyato v Republic  KLR 418
1. Constitution of Kenya section 77(2)(f)
2. Criminal Procedure Code (cap 75) section 198(1)
|History Advocates:||Neither party represented|
|Case Outcome:||Appeal allowed.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE COURT OF APPEAL
(Coram: Masime Ja, Gicheru & Kwach JJ A)
CRIMINAL APPEAL NO 46 OF 1989
(Appeal from a Judgment of the High Court at Nairobi, Porter J, dated 14th April 1989,
High Court Criminal Appeal No 1144 of 1988)
August 15, 1989, the following Judgment of the Court was delivered.
This is an appeal from the High Court’s decision in its appellate jurisdiction (Porter, J) whereby the appellant’s appeal was dismissed. The appellant was convicted by the District Magistrate II at Limuru on a plea of guilty entered on 26th August, 1988. He was among nine accused who were arrested at a roadside at Ngenia and who were similarly convicted.
In this appeal the decision of the High Court is attacked on four grounds: that the High Court erred:
1. In holding that the appellant’s plea was unequivocal;
2. In not holding that there was a failure to interpret the proceedings to the appellant which was fatal to the conviction.
3. In not holding that the absence of a formal conviction rendered the proceedings a nullity;
4. In not holding that the address by the prosecution on prevalence and seriousness of the offence was prejudicial to the appellant.
All these complaints were urged before the High Court which recognized the errors but held that they were cured or did not prejudice the appellant or lead to a miscarriage of justice. In the submissions before us a further ground of appeal was disclosed; the facts stated to the court by the Prosecutor did not identify this appellant as one of those allegedly found on the roadside committing the offence charged.
Because of the complaint alleging failure to interpret the proceedings we called for but not have received, the original trial Court’s file in District Magistrate’s Limuru Criminal Case No 854 of 1988. This court has recently held that it is a fundamental right of an accused charged with a criminal offence to have the assistance of an interpreter through whom the proceedings shall be interpreted to him in a language which he understands: See Diba Wako Kiyato v Republic Criminal Appeal No 100 of 1985, Section 77(2)(f) of the Constitution and Section 198 (1) of the Criminal Procedure Code.
The record of the trial court alludes to interpretation into Kiswahili but does not state that there was any clerk or interpreter in Court; only the presence of the Magistrate, the prosecutor and the accused are recorded. This record lends credence to the appellant’s complaint that there was no interpretation of the proceedings to him in a language that he understands thought the record has indications that he may have followed the gist of the proceedings. In the circumstances, there was a breach of the appellant’s constitutional and fundamental right which is fatal to the proceedings.
As we have said the High Court recognized the other errors complained of in this appeal but held that those errors were either cured or did not occasion a failure of justice to the appellant. The High Court, however, did not deal with the appellant’s third ground of appeal to that Court which complained that the facts put forward by the prosecutor did not disclose an offence. The complainant was alleged to have seen:
“about 10 men unloading maize from the lorry. He rushed to Tigoni Police Station and reported the matter. He came back with three policemen to the scene. The ten men who were unloading the lorry started running away. The police managed to arrest the 9 accused but one of them managed to escape...”
The appellant was on these facts clearly entitled to raise the issue of his identification as one of the men that were unloading maize from the lorry; and, the superior Court ought to have dealt with that issue.
In view of what we stated earlier, however, this appeal succeeds and we quash the conviction of the appellant, set aside the sentence and order that the appellant shall be set at liberty forthwith.
Dated and Delivered at Nairobi this 15th August , 1989
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a true copy of the original.