Degow Dagane Nunow v Republic [2007] KECA 333 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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.Whether the handling of the plea and mentions by an unqualified police prosecutor (ground 4) rendered the trial a nullity.
- 4.What remedy should follow where convictions are quashed on the interpretation ground — acquittal or an order for retrial.
Key legal issues
#Mandatory interpretation of proceedings into a language the accused understands
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.
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.
Duty of trial courts to record compliance and the impermissibility of presuming it on appeal
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.
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.
Remedy where a conviction is quashed on the interpretation ground — acquittal or retrial
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.
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.
Trial conducted by an unqualified police prosecutor (ground 4)
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.
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.
Legal principles established
#- 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
#- 1.The appeal is allowed.
- 2.All the convictions and sentences imposed on the appellant are set aside.
- 3.The appellant shall be tried de novo on the self-same charges.
- 4.The appellant shall be detained in prison pending the new trial.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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.
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.
Costs
No order as to costs was made; the judgment is silent on costs, as is usual in a criminal appeal.
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.
As we have repeatedly pointed out, these are not mere procedural 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.
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.
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.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.