Antony Njeru Kathiari & another v Republic [2007] KECA 144 (KLR)
The bottom line
#Kenya's Court of Appeal quashed two death sentences because the trial record failed to show the accused men understood the court proceedings through an interpreter.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the failure of the trial magistrate to record the language of the proceedings, the name of the interpreter and the nature of the interpretation rendered the convictions unsafe
- 2.Whether a retrial should be ordered given the lapse of time since the offences and the appellants' continued custody
Key legal issues
#Whether non-recording of interpreter details and the language of proceedings vitiates a criminal trial
Yes. The trial magistrate's failure to keep a record of the interpreter's name and the nature of the interpretation, in breach of section 77(2)(f) of the Constitution, section 198(1) of the Criminal Procedure Code and standard practice, rendered the convictions unsafe and unsustainable.
The trial record, running to some sixty-six typed pages, contained no note of the language the appellants spoke, whether an interpreter was present at the plea, what languages the witnesses gave evidence in, or whether the appellants understood or had the evidence interpreted to them. This fell below the constitutional and statutory requirements and the long-standing standard practice recorded in the plea form, and the State rightly conceded the appeals on that ground.
Whether a retrial should be ordered where the alleged offences occurred nine years earlier and the appellants have been in custody throughout
No. Ordering a retrial after so many years would be an exercise in futility, and the State did not seek one.
The charges arose on the night of 17th/18th August 1998, some nine years before the hearing of the second appeal, and the appellants had been in custody since their arrest in 1998. In those circumstances the court declined to remit the matter for retrial, and counsel for the Republic correctly did not ask for one.
Legal principles established
#- An accused person is entitled to the assistance of an interpreter through whom the proceedings are interpreted in a language he understands, and the trial court must record at least the name of the interpreter and the nature of the interpretation; failure to do so is a serious defect rendering convictions unsafe
- The right to interpretation of proceedings in a language the accused understands is a fundamental right in Kenya
Court orders
#- 1.The appeals of the two appellants are allowed
- 2.All the convictions recorded against each of the appellants are quashed
- 3.The sentences of death are set aside
- 4.Each appellant shall be released from prison forthwith unless held for some other lawful cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Nyeri
- H.C. Cr. Appeal Nos. 379 & 358 of 2000; Nos. 64, 66 & 380 of 2001
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code (appellate jurisdiction over High Court criminal appeals); the judgment itself does not cite a specific constitutional or statutory provision for its jurisdiction
- Consolidated with
- Criminal Appeal 23 of 2007
Relief refused
#Retrial
The offences occurred some nine years earlier and the appellants had been in custody since 1998, making a retrial an exercise in futility; the State did not seek one
Costs
No costs order was made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is a fundamental right in Kenya, whatever the position is elsewhere, that an accused person is entitled to the assistance of an interpreter through whom the proceedings shall be interpreted to him in a language which he understands.
The failure by the trial magistrate to keep a record of at least the name of the interpreter and the nature of the interpretation was a serious defect in the trial and must render the convictions of the appellants unsafe and unsustainable.
We accordingly allow the appeals of the two appellants, quash all the convictions recorded against each one of them, set aside the sentences of death and order that each of them shall be released from prison forthwith unless held for some other lawful cause.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Antony Njeru Kathiari & another v Republic [2007] KECA 144 (KLR)", Case Analysis (2007). Criminal Appeal 21 & 23 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/144/eng@2007-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.