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|Case Number:||Criminal Appeal 10 of 2011|
|Parties:||ABDI MOHAMMED v REPUBLIC|
|Date Delivered:||13 Apr 2011|
|Court:||High Court at Meru|
|Judge(s):||Jessie Wanjiku Lesiit|
|Citation:||ABDI MOHAMMED v REPUBLIC  eKLR|
|Case History:||From Original S.P.M. Court Criminal Case No. 705 of 2009 at Isiolo; M. R. Gitonga- Senior Principal Magistrate|
|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|
REPUBLIC OF KENYA
The appellant was convicted of two counts. The first count was for being in possession of a firearm without a Firearm’ s Certificate contrary to Section 4 (1) as read with subsection (3) of the Firearms Act. The second count was being in possession of three rounds of ammunition without a Firearm’s Certificate contrary to Section 4 (1) as read with Subsection (3) of the same Act. The appellant was sentenced to five years imprisonment on each count and ordered the two sentences to run concurrently.
The appellant has raised eight grounds in his petition of appeal as follows;
“ 1. The trial was conducted in a language that the Appellant did not understand
2. The Appellant was not subjected to a fair trial and his Constitutional Rights were greatly infringed.
3. The trial magistrate erred in fact and law in failing to find that the prevailing night conditions were unfavourable for identification in respect of the alleged offences against the appellant.
4. The trial magistrate erred in fact and law by failing to make a finding that the prosecution evidence was riddled with inconsistency and loopholes to sustain a conviction.
5. The trial magistrate totally failed to consider the evidence adduced by the defence.
6. The trial magistrate erred in law and fact by failing to hold that the failure to call the taxi driver allegedly mentioned in the prosecution’s evidence was fatal to the prosecution’s case.
7. That trial magistrate erred in law and fact by failing to make a finding to the effect that the prosecution had failed to prove its case beyond reasonable doubt as is required by the law.
The appellant was represented by Mr. Muriuki who argued the appeal on his behalf. The state was represented by Mr. Kimathi. The learned state counsel conceded the appeal.
The facts for the prosecution case were that three police officers. PW1, 2 and 4, were escorted to the appellant’s home by an informer on allegations that the appellant had in his possession a gun. Ten (10) minutes after the three police officers and the informer laid ambush at his house, the appellant appeared carrying something in a sack. The appellant is said to have passed through the fence. He obeyed the order to stop. In the sack a rifle with three rounds of ammunition was found. Evidence was adduced by PW3 to the effect the rifle and ammunition were a firearms and ammunition as defined under the Firearms Act (herein after the Act).
The accused gave a sworn statement and called his wife as his witness. The evidence of both was consistent. The appellant stated that he was asleep in his house when three Police Officers and one Ahmed Abdi went to his home. He was taken to the fence and asked to pick something which was there. When he refused P.C. Nasio, PW1 pulled out a gun from the fence. He gave it to P.C. Mailu who put it in a sack. The appellant stated that he was then led away to the Police Station and charged for this offence.
Nimo Bakar, DW2 and wife of the appellant corroborated the testimony of the appellant.
I have fully considered the appeal. I have also subjected the entire evidence adduced before the trial court to a fresh analysis and evaluation. I am guided by the case of OKENO VS REPUBLIC 1972 EA 32 where the role of a first appellate Court is given as follows:
The first ground urged was that the trial was not fairly conducted on grounds the appellant did not understand the language used by the witnesses in their testimony. Mr. Muriuki relied on SIMIYU VS REPUBLIC : (2006) 1 KLR 100 where the Court of Appeal held:
1. The provisions of section 77 (2) (b) and (f) of the Constitution and section 198 of the Criminal Procedure Code make it clear that in a criminal trial, the language of the trial must be understood by the accused person.
2. That right extends to an advocate representing an accused person if the advocate does not understand the language of the trial. Even if the accused himself understands the language of the trial but his advocate does not, the language must be interpreted to the advocate in English.
The record shows that plea was taken in the Borana language. The record shows further that all the witnesses testified in Kiswahili except prosecution witnesses who spoke in English. There was no interpretation throughout the period the witnesses testified as the record does not show that any was done.
Section 198 (1) of the CPC states:
S. 77 (2) (b) and (f) of the (old) Constitution provides:
(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged.
The law gives an accused person a right to interpretation during proceedings to a language he understands. Going by the record of the lower court, it is not clear which language the appellant understood. At the critical stages when the appellant’s responses were required, there was interpretation. At the plea taking, there was interpretation into Kiborana. At the stage of giving his defence, there was interpretation into Kisomali. The rest of the time there was no interpretation and the language used was recorded as being English and Kiswahili.
The question to determine is whether I should order a retrial. The principles which apply are well settled.
The court of Appeal made an observation in the case of Jackson Leskei v Republic, Criminal appeal No.313 of 2005 thus:
The failure of the lower court as stated before to indicate the language leads me to find that the trial was a nullity. For that reason, the conviction of that court will be quashed and the sentence of that court will also be set aside. The learned state counsel requested that the court would order the appellant to be retried
A retrial will normally be ordered as has been decided in previous cases in the following circumstances:-
The court cannot order a retrial if it is clear that a conviction is unlikely to result if the self same evidence is adduced at the retrial. There were several reasons why I think that the interest of justice will not require a retrial in this case. For once there was contention in the prosecution case as to the make of the firearm allegedly recovered from the appellant. While PW1 and 2 were clear that the rifle they recovered as an MI6, PW4 was not certain. His testimony was that they, him and PW1 & 2, recovered the rifle, that it may have been an MI6.
The evidence by PW1 and 2 still remains that the rifle they recovered from the appellant was an MI6. If a retrial is ordered, it will give the prosecution an opportunity to fill gaps in its case and rectify the inconsistency in their evidence. That will not serve the interest of justice.
The other point is that the appellant brought a witness who corroborated his evidence in defence that he was not found in possession of the rifle. That defence was plausible and ought to have been considered favourably. That is more so because the alleged informer who led police to the appellant was not called as a witness. The alleged informer told the Police, that is, PW1, 2 and 4 that the appellant had in his possession a firearm. It transpired that the informer was well known to the appellant and his wife. He ought to have been called to tell the court how he came to know about the rifle. Since the appellant denied possession and called his wife to support his defence, in light of the allegation of an existing grudge between the appellant and the informer, I do not think that a Tribunal correctly addressing its mind to the issues in this case, would have entered a conviction against the appellant.
Having come to the conclusion I have of this matter, I decline to order a retrial. I order rather that the appellant should be set at liberty unless he is otherwise lawfully held. Those are the orders of the court.