Mbae Marijani & another v Republic [2008] KECA 218 (KLR)
The bottom line
#Kenya's Court of Appeal freed two robbery convicts because the trial record never showed what language the proceedings were interpreted into.
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 proceedings were defective for failure by the trial court to indicate the language in which the witnesses and the appellants testified and whether interpretation was done
- 2.Whether the failure to call the dog handler as a witness rendered the evidence of arrest doubtful
- 3.Whether the first appellate court discharged its duty in law in dealing with the appeal
- 4.Whether a retrial should be ordered
Key legal issues
#Failure to record the language of the trial
The appeals were allowed on this ground alone: the record did not show the language in which the unrepresented appellants answered the charge, cross-examined witnesses, or gave sworn evidence, and it could not be presumed they understood English.
Section 198 of the Criminal Procedure Code and section 77 of the former Constitution require interpretation of evidence into a language the accused understands, and the choice of language must appear on the record. The court relied on Degow Dagane Nunow v Republic, holding that the burden lies on the trial court to demonstrate compliance. It is not a matter of discretion and not a mere technicality; the appellate court must not presume compliance.
Non-attendance of the dog handler and the first appellate court's failure to consider the ground
The court noted the superior court failed in its duty on first appeal by not considering the ground regarding the dog handler's evidence.
The appellants had raised in the first appeal that the police dog evidence was doubtful because the trainer did not testify, a point linked to Kennedy Maina v Republic where dog handler evidence was found worthless absent inquiry into the dog's training and antecedents. The High Court did not consider this ground and so failed to apply the Okeno duty to re-evaluate evidence.
Whether a retrial should be ordered
No retrial was ordered; the convictions were quashed and the appellants released.
The charge dated back to 2004, the appellants had spent about four years in custody, the trial proceedings were conducted in a defective manner, and Principal State Counsel expressly did not ask for a retrial. In those circumstances the interests of justice did not require a retrial, and each appellant was ordered released forthwith unless otherwise lawfully held.
Legal principles established
#- A trial court must record, from the beginning of the trial, the language in which an accused person and the witnesses testify and in which proceedings are interpreted; appellate courts cannot presume compliance.
- Where the record does not show the language used at trial, an appellate court cannot assume the accused understood the language; such failure is not a mere technicality and warrants quashing the conviction.
- The first appellate court must consider and correctly apply the decision in Okeno v R, including grounds not pressed by an appellant, as part of its duty on first appeal.
- An order for retrial should only be made where the interests of justice require it, depending on the particular facts and circumstances of each case.
Court orders
#- 1.Appeals allowed
- 2.Convictions quashed
- 3.Sentences set aside
- 4.Each appellant to be released forthwith unless otherwise lawfully held
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. NOS. 15 & 155 OF 2005
- Jurisdiction invoked
- Second appeal to the Court of Appeal on points of law under the Criminal Procedure Code (Section 296(2) Penal Code conviction; appellate jurisdiction over first-appeal decisions of the High Court)
- Consolidated with
- Criminal Appeal 305 of 2006
Relief refused
#No retrial ordered (State counsel did not seek one; appellants sought to avoid retrial, so none was made)
The charge dated back to 2004, proceedings were defective and the State did not ask for a retrial
Costs
No order as to costs is recorded 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 the responsibility of the trial courts to ensure compliance with those 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 the provisions must have been complied with while it can easily be demonstrated by the record that compliance did in fact take place
As we have said, there is no reason for us to presume as the superior court did, that the appellants spoke and understood the language in which they are recorded to have answered the charge and conducted their defence. On this ground alone, we must allow the appeals.
In those circumstances we allow the appeals, quash the convictions and set aside the sentences imposed on the appellants, and order that each appellant be released forthwith, unless otherwise lawfully held.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbae Marijani & another v Republic [2008] KECA 218 (KLR)", Case Analysis (2008). Criminal Appeal 306 & 305 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/218/eng@2008-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.