[2018] KEHC 3184 (KLR)
The court found that the record did not clearly show that the appellant understood the proceedings, as the charges were read in Swahili and the appellant gave his defence and mitigation in Somali. The absence of a clear indication that the appellant comprehended the trial, particularly during cross-examination,...
Source-derived case information.
- Citation
- [2018] KEHC 3184 (KLR)
- Parties
- Appellant: Abdiaziz Abdi Hirsi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 80 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed; retrial ordered
- Judges
- DAS Majanja
- Legal Topics
- Trafficking in Persons, Right to Fair Trial, Language of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdiaziz Abdi Hirsi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant understood the proceedings given the language barrier.
- 2 Whether the conviction and sentence were valid in light of the appellant's understanding of the trial process.
Ratio Decidendi
The court found that the record did not clearly show that the appellant understood the proceedings, as the charges were read in Swahili and the appellant gave his defence and mitigation in Somali. The absence of a clear indication that the appellant comprehended the trial, particularly during cross-examination, rendered the conviction unsafe. Consequently, the court quashed the conviction and sentence, but ordered a retrial to ensure the appellant's right to a fair trial is upheld, with specific instructions that a Somali translator be provided at the fresh plea and subsequent proceedings.
Court Disposition
conviction quashed; retrial ordered
Orders
- The appeal is allowed and the conviction is quashed.
- A retrial is ordered before the Magistrates Court at Isiolo.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL APPEAL NO. 80 OF 2018
CORAM: D.S. MAJANJA J.
BETWEEN
ABDIAZIZ ABDI HIRSI............................................APPELLANT
AND
REPUBLIC.............................................................. RESPONDENT
(Being an appeal from the original conviction and sentence of Hon.S.Mwangi, CM dated 5th July 2018 at the Chief Magistrate’s Court at Isiolo in Criminal Case No. 241 of 2016)
JUDGMENT
1. The appellant, ABDIAZIZ ABDI HIRSI, was charged with the offence of promotion of trafficking in persons contrary to section 5(d) of the Counter Trafficking in Persons Act, Act No. 8 of 2010. He was convicted and sentenced to pay a fine of Kshs. 20 million in default to serve 20 years’ imprisonment.
2. Having read the record, it is not clear whether the appellant understood the proceedings. The charges against him were were read in Swahili. He gave his defence and mitigation in Somali language. The proceedings and particularly the cross-examination does not reflect the fact that he understood the proceedings.
3. I allow the appeal and quash the conviction. I will however order a retrial and for that reason the appellant shall remain in custody and shall be taken for fresh plea before the Magistrates Court at Isiolo on 22nd October 2018. The trial magistrate is directed to ensure that a Somali translator is provided.
DATED and DELIVERED at MERU this 17th day of October 2018.
D.S. MAJANJA
JUDGE
Ms Nelima, Advocate for the Appellant.
Mr Kiarie, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the respondent.