[1999] KECA 69 (KLR)
The Court of Appeal held that the record did not indicate the language of the proceedings or that interpretation was provided to the appellant, who claimed not to understand what was going on. This omission violated the appellant's constitutional right to a fair trial under Section 77(2)(f) of the Constitution of...
Source-derived case information.
- Citation
- [1999] KECA 69 (KLR)
- Parties
- Appellant: Chaka Tsuma Chaka; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 45 of 1999
- Procedural Posture
- Criminal Appeal / Appeal From Conviction and Sentence in the High Court
- Outcome
- Appeal allowed; conviction and sentence set aside; retrial ordered.
- Legal Topics
- Right to Fair Trial, Language of Proceedings, Interpretation Services, Murder, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chaka Tsuma Chaka
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence in the High Court
Legal Issues
- 1 Whether the appellant's constitutional right to interpretation was violated during trial.
- 2 Whether the absence of record on language or interpretation rendered the trial a nullity.
- 3 Whether the conviction and sentence could stand in light of the procedural irregularity.
Ratio Decidendi
The Court of Appeal held that the record did not indicate the language of the proceedings or that interpretation was provided to the appellant, who claimed not to understand what was going on. This omission violated the appellant's constitutional right to a fair trial under Section 77(2)(f) of the Constitution of Kenya. The court found that the absence of evidence of interpretation or confirmation of the appellant's understanding rendered the entire trial a nullity. Consequently, the conviction and sentence could not stand, and the only proper course was to set them aside and order a retrial before the High Court.
Court Disposition
Appeal allowed; conviction and sentence set aside; retrial ordered.
Orders
- The appeal is allowed.
- The conviction and sentence are set aside.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
CORAM: KWACH, OMOLO & SHAH, JJ.A.
CRIMINAL APPEAL NO. 45 OF 1999
BETWEEN
CHAKA TSUMA CHAKA .................................................APPELLANT
AND
REPUBLIC ..................................................................RESPONDENT
(Appeal from a judgment of the High Court of Kenya at Mombasa (Ang'awa J) dated 21st August, 1998
in
H.C.CR.A. NO. 1 OF 1997) ************************
JUDGMENT OF THE COURT
CHAKA TSUMA CHAKA (the appellant) was charged with and convicted of murder contrary to section 203 as read with section 204 of the Penal Code , the particulars of the charge being that on the 8th day of January, 1996, at Mbande village, Matumbi sub-location, in Kwale District within the Coast Province, he murdered Bendoro Kaziya Chondo . He has now appealed against his conviction and sentence.
The appellant has set down in a supplementary memorandum of appeal 5 grounds and the complaint in ground 5 is that the trial was a nullity because it was conducted in a language he did not understand. The appellant made several appearances in the superior court before his plea was taken. On 5. 5.97 he was finally taken before Waki J for plea. The record shows that there was a clerk called Tinga, a State Counsel called Mrs. Mwangi and Mr. Obara, an advocate, who appeared for the appellant. The record shows that the appellant denied the charge and a plea of not guilty was entered. In the record of the proceedings of that day there is no indication that the appellant understood English language or that any steps were taken to interpret the proceedings into a language which the appellant understood or preferred.
The trial proper got underway on 18. 2.98 before Anga'wa J. Apart from the Judge there were Mr. Gacivih for the Republic, Mr. Obara, for the appellant, and a clerk called Sibiya. Assessors were examined and selected. Mr. Gacivih made his opening address and called 4 witnesses before the trial was adjourned to 4. 3.98. Again, there is no indication in the record that the proceedings were conducted in a language understood by the appellant or that they were interpreted to him.
Section 77 (2)(f) of the Constitution of Kenya provides that: "77 (2)Every person who is charged with a criminal offence:
(f)shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge."
This is a fundamental constitutional right of an accused person intended to secure for a person charged with a criminal offence a fair trial. We cannot tell from the record whether the trial was conducted in Swahili or English, but whatever the language was, the appellant says he did not understand what was going on. At the end of it all he was convicted of murder and sentenced to death. His conviction was based largely on a lengthy statement under inquiry and a charge and caution statement in which he appeared to have admitted his involvement in the murder. It is quite possible that if he had followed the proceedings he would certainly have instructed his advocate to object to the admission of those incriminating statements. Mr. Gacivih, for the Republic, insisted that in spite of the silence of the record, interpretation of the proceedings into a language intelligible to the appellant must have been provided. That is not a serious submission and we reject it.
It must follow from what we have said so far that the trial was a nullity. Mr. Magolo, for the appellant, suggested that the appellant be acquitted rather than be sent to the superior court for retrial. We cannot accede to this suggestion. The charge against the appellant is a serious one and the victim lost his life. We accordingly allow this appeal, set aside the conviction and sentence and remit the case back to the superior court for trial de novo .
Dated and delivered at Mombasa this 27th day of July,1999.
R. O. KWACH
------------------------------
JUDGE OF APPEAL
R. S. C. OMOLO
-------------------------------
JUDGE OF APPEAL
A. B. SHAH
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JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR