[2017] KECA 759 (KLR)

REPUBLIC OF KENYAI

N THE COURT OF APPEAL

AT NAIROBI

(CORAM: GITHINJI, VISRAM & KOOME, JJ.A)

CRIMINAL APPEAL NO. 133 OF 2016

BETWEEN

DAVID KARIUKI KIBUKU …………………......... APPELLANT

AND

REPUBLIC ………………………...……...…… RESPONDENT

(An appeal from the Judgment of the High Court of Kenya at Nairobi (Riechi & Sewe, JJ.) dated 29thJuly, 2015

in

H.C. Cr. A. No. 223 of 2009)

******************

JUDGMENT OF THE COURT

1. The appellant has brought this second appeal which is anchored on the sole ground that the trial was conducted in a language that he did not understand, rendering the trial a nullity. The former Constitution, which was applicable to this case, states at section 77 (2) (b) & (f):

"77 (2) Every person who is charged with a crime and or offence-

a) 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.

……………………….

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.”

On the same issue, section 198 (1) of the Criminal Procedure Code provides thus:-

"Whenever any evidence is given in a language not understood by the accused, and he is present in person, it should be interpreted to him in open Court in a language which he understands."

2. It is therefore imperative not only for the charge against an accused to be explained to him/her in a language he/she understands but also that the evidence given during the trial is interpreted to him/her in a language he/she understands. It is indeed an integral part of a fair trial and is intended to ensure that an accused person, who risks life and liberty, fully understands the case against him/her and is able to defend himself/herself adequately. See Abdalla Hassan Hiyesa -vs- Republic [2015] eKLR.

3. The concurrent facts by the two lower courts were that on 14th May, 2008 at around 11:00 p.m. while David Gichia Ndungu (PW1) was on his way home, he was attacked by two armed assailants at Nderi Trading Centre in Kiambu County. The assailants robbed him of cash Kshs.300/= and a mobile phone make SMADL A30 valued at Kshs.3,000/=. David was able to positively recognize the appellant as one of the assailants with the aid of security lights at the scene. David reported the matter at Muguga police station and he recorded that the appellant was well known to him prior to the incident. The appellant was arrested the following day and charged with one count of robbery with violence contrary to section 296 (2) of the Penal Code. He was subsequently convicted of the offence of robbery with violence and sentenced to death. His conviction and sentence were upheld by the first appellate court.

4. Unrelenting, the appellant filed the second appeal which, by virtue of section 361 (1) of the Criminal Procedure Code, ought to be confined to matters of law. Whether or not the substance of the charge against the appellant was explained and the trial was conducted in a language understood by the appellant is indeed a matter of law.

5. Mr. W. O. Omari, learned counsel for the appellant, argued that despite the trial court indicating that the evidence therein had been interpreted to the appellant in the language he understood, the trial court failed to indicate which language it was. He submitted that the appellant only understood Kikuyu and the failure of the trial court to indicate the language used rendered the trial a nullity. He urged us to allow the appeal.

6. On his part, Mr. P. Mailanyi, Senior Assistant Director of Public Prosecution, submitted that the record clearly reflected that three languages namely, English, Kiswahili and Kikuyu, were used throughout the trial. He was at a loss as to why the appellant, who had pleaded not guilty, and even cross examined witnesses, would allege that he did not understand the language used. He further stated that the appellant when called to give his defence indicated that he would give unsworn statement intimating he understood the proceedings. He urged us to dismiss the appeal.

7. We have considered the record, the submissions by counsel and the law. As aptly stated by this Court in Jackson Leskei -vs- R [2006] eKLR, it is the court’s duty to ensure that the accused’s right to interpretation is safeguarded and to demonstratively show its protection. Equally, this Court in Jason Akhonya Makokha -vs- R [2014] eKLRset out the parameters for determining whether the right to interpretation had been observed in the following terms :-

“The cardinal principles that we can draw from the above case law propositions are that, one, any Court of law taking a plea from an accused person has to ensure that the language of the Court and the language the accused person wishes to use to communicate with the Court is indicated on the record and where an accused person is not conversant with the language of the Court, he should be afforded the services of an interpreter; two, an unexplained violation of a constitutional right to language would normally result in an acquittal irrespective of the nature and strength of the evidence which might be adduced in support of the charge; save that each case has to be determined on its own facts and circumstances; three, that there was a reciprocal duty on the part of an accused person to indicate to the Court, for instance that he was not able to understand the language of the proceedings although this does not however lessen the duty of the Court of being satisfied that the accused was able to follow the proceedings; four, that where some doubt exist as to whether or not an accused person was accorded the services of an interpreter, the doubt must be resolved in his favour.”

8. Was the appellant’s right to interpretation of the proceedings violated? We have perused the entire record and cannot help but note that the entire trial was conducted in three languages, that is, English, Kiswahili and Kikuyu. In fact the trial court in its own words stated,

“Interpretation English/Kiswahili/Kikuyu

The substance of the charge and every element thereof has been stated by the court person (sic) in the language that he/she understands, who (sic) being asked whether he admits or denies the truth of the charge replies „Not true?..

9. The omission by the trial court to specifically state the language which the appellant understood during the plea taking, in our view, did not vitiate the veracity of the trial.

The appellant pleaded not guilty, he cross-examined the witnesses, he has not demonstrated that he suffered any prejudice and none can be seen from the record of proceedings. We are satisfied that the appellant understood the proceedings as evidenced by his cross examination of the prosecution witnesses as well as by the defence he advanced at the trial court. In Mugo & 2 Others -vs- R [2008] KLR 19 it was held,

“On the face of the record, it cannot be said that the appellants did not follow the proceedings. Each of the appellants is shown to have cross examined all witnesses and ask questions which were relevant to the charges.

…………..

It is not every case where language is not shown which will make an appellant to successfully raise the issue of language before this Court.”

10. Having expressed ourselves as herein above it follows that the appeal lacks merit and is hereby dismissed.

Dated and delivered at Nairobi this 17thday of February, 2017.

E. M. GITHINJI

…....…….…………….

JUDGE OF APPEAL

ALNASHIR VISRAM

…………….……………

JUDGE OF APPEAL

M. K. KOOME

…………….…………..

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGSTRAR