[2012] KEHC 5195 (KLR)
The court found that the appellant's right to interpretation was violated when the trial proceeded in English without translation into Kiswahili, the language the appellant understood. This contravened both constitutional and statutory provisions. Additionally, after the charge sheet was amended, the trial court...
Source-derived case information.
- Citation
- [2012] KEHC 5195 (KLR)
- Parties
- Appellant: Patrick Odoyo Jabuya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 229 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentences set aside; appellant to be released unless otherwise lawfully held
- Legal Topics
- Right to Interpretation, Criminal Procedure Irregularities, Narcotic Offences, Plea Procedure, Amendment of Charge Sheet
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Odoyo Jabuya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the failure to provide interpretation during trial violated the appellant's constitutional and statutory rights.
- 2 Whether the failure to call upon the accused to plead to an amended charge vitiated the trial.
Ratio Decidendi
The court found that the appellant's right to interpretation was violated when the trial proceeded in English without translation into Kiswahili, the language the appellant understood. This contravened both constitutional and statutory provisions. Additionally, after the charge sheet was amended, the trial court failed to call upon the appellant to plead to the altered charge, a mandatory requirement under the Criminal Procedure Code. These procedural irregularities rendered the conviction unsafe. The court therefore allowed the appeal, quashed the conviction, and set aside the sentences.
Court Disposition
appeal allowed; conviction quashed; sentences set aside; appellant to be released unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
23 paragraphs
PATRICK ODOYO JABUYA............................................................................. APPELLANT
VERSUS
REPUBLIC..……………………………….................................………………. RESPONDENT
(From the original conviction and sentence in Criminal Case No. 40 of 2008 of the Senior Principal Magistrate’s Court at Limuru by A.O. Aminga - Resident Magistrate)
J U D G M E N T
The appellant, PATRICK ODOYO JABUYA was convicted for the offences of Being in possession of Cannabis Sativa contrary to section 3(1) (2) of the Narcotic Drugs and Psychotropic Substances Control Act; and also of Trafficking of Cannabis Sativa contrary to section 3 (1) (2) (a) of the Narcotic Drugs and Psychotropic Substances Control Act.
For the offence of Trafficking, he was fined Kshs.1,000,000/-, in default 10 years imprisonment. And for the offence of being in possession, he was fined KShs.300,000/-, in default 3 years imprisonment.
In his appeal he has challenged both the conviction and sentence.
It is clear that when the appellant was taking plea, the charge and the particulars thereof were read out to him in Kiswahili.
That presupposes that the trial court did verify that the language which the appellant understood was Kiswahili.
However, when PW 1 testified, he did so in English. There was no interpretation into Kiswahili.
The failure to provide the appellant with an interpreter violated his rights under section 77 (2) (f) of the Constitution, as well as under section 198 (1) of the Criminal Procedure Code
On that basis alone, this appeal succeeds.
Meanwhile, it is also clear that after PW 1 testified, the charge-sheet was amended.
The proviso to section 214 (1) of the Criminal Procedure Code states, in mandatory terms, that where a charge is altered at any stage of the trial, before the prosecution closes its case;
“The court shall thereupon call upon the accused person to plead to the altered charge.”
As the learned trial magistrate did not call upon the appellant to plead to the altered charge, that is another ground upon which the conviction stands vacated.
In the result, the learned state counsel, Ms Mwanza, was right to have conceded the appeal herein.
The appeal is allowed; the conviction is quashed and the sentences are set aside. I order that the appellant be set at liberty forthwith unless he is otherwise lawfully held.
Dated, Signed and Delivered at Nairobi this 29th day of February, 2012
........................................
FRED A. OCHIENG
JUDGE