[2017] KEHC 2595 (KLR)
The court found that the trial record did not indicate the presence of an interpreter for the Kisamburu language, which the appellants spoke. This omission raised a real danger that the appellants did not understand the charges or the consequences of their plea. The court held that the guilty plea was equivocal and...
Source-derived case information.
- Citation
- [2017] KEHC 2595 (KLR)
- Parties
- Appellant: Lobeklempirikan Y; Appellant: Laanyulenamparasio; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 22’A' & ’B’ of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- MM Kasango
- Legal Topics
- Right to Fair Trial, Plea Equivocality, Interpretation in Criminal Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lobeklempirikan Y
Appellant
Laanyulenamparasio
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellants' right to a fair trial under Article 50(2)(m) of the Constitution was violated by the absence of an interpreter during plea taking.
- 2 Whether the guilty plea entered by the appellants was unequivocal in the circumstances.
Ratio Decidendi
The court found that the trial record did not indicate the presence of an interpreter for the Kisamburu language, which the appellants spoke. This omission raised a real danger that the appellants did not understand the charges or the consequences of their plea. The court held that the guilty plea was equivocal and could not stand, as the appellants' constitutional right to a fair trial, specifically the right to interpretation, was violated. Consequently, both the conviction and sentence were quashed.
Court Disposition
appeal_allowed
Orders
- The convictions of Lobeklempirikan Y and Laanyulenamparasio on both counts are quashed.
- The sentences on both counts are set aside.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NANYUKI
CRIMINAL APPEAL NO.22’A’ OF 2017
LOBEKLEMPIRIKANY ...…… APPELLANT
VERSUS
REPUBLIC ……………....… RESPONDENT
CONSOLIDATED
CRIMINAL APPEAL NO.22’B’OF 2017
LAANYULENAMPARASIO … APPELLANT
VERSUS
REPUBLIC ………….……... RESPONDENT
(Being an appeal from the original conviction and sentence by Hon.B S Khapoya.Ag. Senior Resident Magistrate dated 30th September, 2014 in Maralal Principal Magistrate Court Criminal Case No. 716 of 2014)
JUDGMENT
1. LOBEKLEMPIRIKANY and LANYULENAMPARASIO (appellants) appeared before Principal Magistrate Maralal and pleaded guilty to the offences of stealing stock Contrary to Section 278 of the Penal Code, on 1st Count,and to the offence of creating a disturbance in manner likely to cause a breach of peace Contrary to Section 95 (1) of the Penal Code.
2. The Coram before the trial court of 30th September, 2014 was as follows:
“Before Hon. B S Khapoya Ag. Senior ResidentMagistrate,
Court Prosecutor: IP Kibor,
Court Clerk:Munene,
Accused present
Interpretation:”
The court proceedings then reflect that both counts were read out to the appellants and that they were read in Samburu language. The Coram as reproduced above however failed to indicate who was the interpreter into Kisamburu Language.
3. The fact that the trial court failed to provide the appellants with an interpreter is the crux of the appellants appeal.
4. Article 50 (2) (m) of the constitution provides:
“Every accused person has the right to a fair trial which includes the right –
(m) to have the assistance of an interpreter without payment if the accused person cannot understands the language used at the trial.
5. In view of the fact that the appellants were not provided with an interpreter of Kisamburu language, since the trial court’s record does not reflect such an interpreter, the guilty plea of the appellants undoubtedly was equivocal. There is the real danger that the appellants did not understand what they were pleading guilty to. In the case: SIMON GITAUKINENE v REPUBLCI [2016]the court discussed what is unequivocal plea and stated:
“Thefirst point for analysis is an important point of departure namely the trite law stated by the Court in Ombena V republic 1981 KLR 450 to the effect that whether a guilty pleais unequivocal or not depends on the circumstances of the case. Differently put, an appellate or a revising court must take thetotality of circumstances into account in determining the equivocality or otherwise of a guilty plea”.
6. The surrounding circumstances of the appellants plea of guilty show that that plea was equivocal. Accordingly the appeal against conviction and sentence must succeed.
7. In the end the appellants conviction on both count 1 and count 2 is hereby quashed. The sentences on both those counts are set aside. I order that LOBEKLEMPIRKANYandLANYULENAMPARASIO be set free from custody unless they are otherwise lawfully held.
8. It is so ordered.
Dated and Delivered at Nanyuki this 31st October 2017
MARY KASANGO
JUDGE
Coram
Before Justice Mary Kasango
Court Assistant: Njue/Mariastella
1stAccused: LOBEKLEMPIRIKANY
2nd accused:LAANYULENAMP
For state:
Language
COURT
Judgment delivered in open court
MARY KASANGO
JUDGE