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Court of AppealPartially AllowedCriminal Appeal 223 of 2005

Degow Dagane Nunow v Republic [2007] KECA 333 (KLR)

Court of Appeal of Kenya
11 May 2007
1,403 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal quashed robbery convictions because the trial court never recorded the language used, ordering a fresh trial instead of acquittal.

What this practically means

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Executive summary

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This is the Court of Appeal's judgment on a second appeal from the High Court at Meru (Onyancha and Sitati, JJ), which on 28 June 2005 dismissed the appellant's first appeal and confirmed his convictions on three counts: robbery with violence contrary to section 296(2) of the Penal Code, carrying a death sentence, and possession of a firearm and of ammunition contrary to sections 89(1) and 89(2) of the Penal Code, carrying two concurrent ten-year terms whose operation the High Court suspended. The magistrate's court at Garissa had convicted the appellant on 19 April 2001. Two grounds were argued. The decisive one concerned language. The trial record nowhere stated the language in which the appellant or the witnesses testified; interpretation from Kiswahili into Somali appears only in the judgment-day entry. The Court held that under section 198 of the Criminal Procedure Code and section 77(2) of the former Constitution, interpretation of the evidence into a language the accused understands is mandatory and not a matter for the magistrate's discretion; the trial court bears the burden of showing on its record the language the accused chose, and appellate courts may not presume compliance. These safeguards, the Court reiterated, 'are not mere procedural technicalities.' The appeal was accordingly allowed on this ground alone, ground four on an unqualified prosecutor being left undecided. Because the charges, though dating back to 2000, were grave and the evidence substantial, and the State confirmed that witnesses could still be made available, the Court set aside all convictions and sentences and ordered a trial de novo on the same charges, remanding the appellant in prison custody. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court complied with section 198 of the Criminal Procedure Code and section 77(2) of the Constitution by interpreting the proceedings into a language the appellant understood, and whether the failure to record on the record the language in which the appellant and the witnesses testified vitiated the trial and the convictions.
  2. 2.Whether the first appellate court was entitled to presume, absent an express record, that the proceedings had been interpreted to the appellant from Kiswahili into Somali.
  3. 3.Whether the handling of the plea and mentions by an unqualified police prosecutor (ground 4) rendered the trial a nullity.
  4. 4.What remedy should follow where convictions are quashed on the interpretation ground — acquittal or an order for retrial.

Key legal issues

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01

Mandatory interpretation of proceedings into a language the accused understands

Holding

Interpretation of evidence to a language the accused understands is mandatory, not a matter of judicial discretion, and the language chosen by the accused must appear on the record from the start of the trial.

Reasoning

Section 198(1) of the Criminal Procedure Code requires evidence given in a language not understood by the accused to be interpreted in open court in a language he understands, and section 77(2) of the former Constitution guarantees the free assistance of an interpreter. These provisions leave a magistrate no discretion. In this record neither the plea nor the evidence of PW1 to PW7 disclosed any language; interpretation from Kiswahili to Somali appears only on the judgment date. The failure was fatal to the convictions notwithstanding the gravity of the charges.

p. 3
02

Duty of trial courts to record compliance and the impermissibility of presuming it on appeal

Holding

A trial court must not only ensure compliance with the language and interpretation safeguards but must also show that compliance in its record; an appellate court may not presume that interpretation took place.

Reasoning

The record showed an interpreter was present throughout, but never recorded the language used by the appellant or the witnesses; only the judgment-day entry mentioned a Somali/Swahili court clerk. Because the burden lies on the trial court to demonstrate that the accused chose the language of interpretation, the High Court erred in presuming, as it appeared to have done, that the proceedings must have been interpreted from Swahili to Somali. Non-compliance with these provisions is not a mere procedural technicality and cannot be cured by inference.

p. 3
03

Remedy where a conviction is quashed on the interpretation ground — acquittal or retrial

Holding

Where the charges are grave, the evidence substantial and witnesses remain available, the appropriate course is to set aside the convictions and sentences and order a trial de novo on the same charges rather than an acquittal.

Reasoning

Although the appeal succeeded on the language ground alone, the Court balanced the violation against the gravity of charges dating back to 2000 and the substantial evidence supporting them. Principal State Counsel confirmed witnesses could still be made available. The Court therefore set aside all convictions and sentences and ordered the appellant to be tried afresh on the same charges, detaining him in prison custody pending the new trial.

p. 3
04

Trial conducted by an unqualified police prosecutor (ground 4)

Holding

Left undecided — the Court expressly declined to determine whether the handling of the plea and mentions by P.C. Onyancha violated sections 85(2) and 88(1) of the Criminal Procedure Code.

Reasoning

Ground 4, argued by counsel for the appellant, alleged that the plea and several mentions were handled by an unqualified court prosecutor, one P.C. Onyancha, contrary to section 85(2) as read with section 88(1) of the Criminal Procedure Code. Because the appeal was allowed outright on the language and interpretation ground, the Court found no need to deal with the point, so this judgment sets no precedent on the legality of police prosecution.

p. 3

Legal principles established

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  • Interpretation of evidence into a language the accused understands is mandatory and not a matter for the trial magistrate's discretion; the language the accused has chosen must be shown on the record from the beginning of the trial.
  • Trial courts must both ensure compliance with the language and interpretation provisions and demonstrate that compliance on the face of the record; they may not leave appellate courts to presume compliance.
  • The burden rests on the trial court itself to show that the accused selected the language in which the proceedings are interpreted to him; these safeguards are substantive requirements, not procedural technicalities.

Court orders

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  1. 1.The appeal is allowed.
  2. 2.All the convictions and sentences imposed on the appellant are set aside.
  3. 3.The appellant shall be tried de novo on the self-same charges.
  4. 4.The appellant shall be detained in prison pending the new trial.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Meru
H.C. Cr. A. No. 62 of 2003
Jurisdiction invoked
Not expressly stated in the judgment; the matter reaches the Court of Appeal at Nyeri as a second appeal from the High Court's decision on the appellant's first appeal in a criminal case.

Relief refused

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Outright acquittal (as distinct from a retrial) notwithstanding that the appeal was allowed

The charges, though dating back to 2000, were grave and the evidence supporting them substantial, and the State indicated that witnesses could still be made available, so the Court ordered a trial de novo instead of an acquittal.

p. 3

Determination of ground 4 — that the plea and mentions were handled by an unqualified police prosecutor, one P.C. Onyancha, contrary to sections 85(2) and 88(1) of the Criminal Procedure Code

The appeal succeeded outright on the language and interpretation ground, so the Court found it unnecessary to deal with ground four; the point was left undecided.

p. 3

Costs

No order as to costs was made; the judgment is silent on costs, as is usual in a criminal appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

As we have repeatedly pointed out, these are not mere procedural technicalities.
p. 3Language and interpretation safeguards are substantive, not technicalities
It is the responsibility of trial courts to ensure compliance with these provisions. Trial courts are not only obliged to ensure compliance with the provisions; they are also obliged to show in their records that the provisions have been complied with.
p. 3Duty of trial courts to record compliance with interpretation safeguards
There is no reason why a trial court should leave an appellate court to presume that the provisions must have been complied with while it can easily be demonstrated by the record that compliance did in fact take place.
p. 3No presumption of compliance with section 198 CPC and section 77 Constitution
the burden is on the trial court itself to show that an accused person has himself selected the language which he wishes to speak and in which proceedings are to be interpreted to him.
p. 3Burden of proving the accused chose and understood the language of trial
we allow the appeal, set aside all the convictions and sentences imposed and order that the appellant shall be tried de novo on the self - same charges. The appellant shall be detained in prison pending the new trial.
p. 3Final orders — appeal allowed, all convictions and sentences set aside, retrial de novo ordered

Issues in the judgment

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minor

The court heading is corrupted in the source text: the word 'PEAL' appears where 'APPEAL' is expected in the station line of the cause title.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Degow Dagane Nunow v Republic [2007] KECA 333 (KLR)", Case Analysis (2007). Criminal Appeal 223 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/333/eng@2007-05-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.