[2020] KEHC 5730 (KLR)
The trial was fundamentally defective because the record did not disclose the language in which the witnesses testified or the language understood by the accused persons. This omission contravened Section 197 and 198 of the Criminal Procedure Code and Article 50(2)(m) of the Constitution, which guarantee the right...
Source-derived case information.
- Citation
- [2020] KEHC 5730 (KLR)
- Parties
- Appellant: Kennedy Ochieng Okuku; Appellant: Benjamin Moses Otieno; Appellant: Joseph Owino Omolo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 39,41 & 42 of 2019
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- conviction quashed, sentence vacated, retrial ordered
- Judges
- RE Aburili
- Legal Topics
- Right to Fair Trial, Language of Proceedings, Conviction and Sentence, Retrial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Ochieng Okuku
Appellant
Benjamin Moses Otieno
Appellant
Joseph Owino Omolo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the failure to indicate the language used during trial vitiated the proceedings.
- 2 Whether the appellants' right to a fair trial under the Constitution and Criminal Procedure Code was violated.
Ratio Decidendi
The trial was fundamentally defective because the record did not disclose the language in which the witnesses testified or the language understood by the accused persons. This omission contravened Section 197 and 198 of the Criminal Procedure Code and Article 50(2)(m) of the Constitution, which guarantee the right to a fair trial, including the right to be informed in a language that one understands. Given the seriousness of the offence and the lack of compliance with these mandatory provisions, the conviction and sentence could not stand. The appropriate remedy was to quash the conviction, vacate the sentence, and order a retrial in compliance with the law.
Court Disposition
conviction quashed, sentence vacated, retrial ordered
Orders
- The appellants' conviction is quashed.
- The sentence imposed by the trial court is vacated.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL APPEAL NOS. 39,41 &42 CONSOLIDATED OF 2019
KENNEDY OCHIENG OKUKU.....................1ST APPELLANT
BENJAMIN MOSES OTIENO........................2ND APPELLANT
JOSEPH OWINO OMOLO.............................3RD APPELLANT
VERSUS
REPUBLIC.............................................................RESPONDENT
(Being an Appeal from the conviction and sentence in judgment dated 8. 3.2018delivered
at Bondo Law Courts vide Criminal Case [S.O]. No. 7 of 2019 before Hon. S.W. MATHENGE – RESIDENT MAGISTRATE)
JUDGMENT VIA SKYPE
1. I have perused the Trial Court record and the appeal herein. I observe that the trial of the Appellants was defective as the language in which the witnesses testified is not disclosed. It is also not clear which language the Accused persons/Appellants understood during the trial.
2. Failure to indicate the specific language which the Appellants understood for trial purposes vitiates the trial as the failure offends substantive provisions of Section 197 and 198 of the Criminal Procedure Code as read with Article 50(2)(m) of the Constitution, considering the serious offence with which the accused/appellants herein faced.
3. Accordingly, I quash the Appellant’s Conviction and vacate the sentence imposed by Hon. S.W. Mathenge, Resident Magistrate and Order that the Appellants shall be retried at Bondo Law Courts for the same offence in compliance with the law.
4. Orders accordingly.
Dated, Signed and Delivered at Siaya this 5th day of May, 2020 via skype due to covid 19 situation.
R.E. ABURILI
JUDGE