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Court of AppealPartially AllowedCriminal Appeal 221 of 2006

CISSE DJIBRILLA v REPUBLIC [2008] KECA 303 (KLR)

Court of Appeal of Kenya
7 March 2008
Philip Kiptoo TunoiP.K. TunoiEGE.M. GithinjiWDW.S. Deverell
1,043 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man convicted of drug trafficking because courts must prove the accused understood the language of his trial.

What this practically means

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Executive summary

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This is a second and final appeal to the Court of Appeal against conviction and sentence for trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act. The appellant, a Guinean citizen, was stopped at JKIA after arriving from Dubai, placed under observation, and emitted 44 pellets of heroin from his rectum. He was sentenced to life imprisonment plus a fine of Shs.1,000,000 by the Senior Principal Magistrate, Kibera; Mbaluto J dismissed his first appeal on 1st July 2003. Before the Court of Appeal, the State conceded the appeal but sought a retrial. The court held that it was not shown the appellant understood English or Kiswahili, in which the proceedings were conducted; the trial magistrate failed to keep a record of the interpretation, a serious defect, and the first appellate judge failed to consider the appellant's complaint about his poor English, contrary to the directions in Okeno v R. Relying on Diba Wako Kiyato and the constitutional right to an interpreter under former section 77(2)(f) and section 198(1) of the Criminal Procedure Code, the court found a miscarriage of justice and quashed the conviction. A retrial was refused: the appellant had been in custody some six years and the drug exhibits had been destroyed, so the interests of justice did not favour a retrial under Fathali Manji. The court allowed the appeal, quashed the conviction, and ordered the appellant's release forthwith unless held for some other lawful cause.

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 was vitiated by the failure to ensure the appellant understood the language in which the proceedings were conducted
  2. 2.Whether the first appellate court erred in failing to consider the appellant's complaint about language/interpretation
  3. 3.Whether a retrial should be ordered

Key legal issues

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01

Language of trial and interpretation

Holding

Where it is not shown the accused understood the language of the trial, and the magistrate failed to keep a record of the interpretation, the trial is fundamentally defective and the conviction unsustainable

Reasoning

The record showed proceedings were conducted in English and translated into Kiswahili, but nothing established that the appellant, a Guinean national, understood either language. His silence and refusal to defend himself indicated he did not understand. The first appellate court also ignored his complaint that his English was poor, breaching its duty under the Okeno principles.

p. 2
02

Whether a retrial should be ordered

Holding

A retrial was refused because the appellant had been in custody about six years and the drug exhibits had been destroyed

Reasoning

Applying Fathali Manji, retrial depends on the facts and the interests of justice. Given the long custody period and the destruction of the vital exhibits (heroin valued at Shs.715,000), the interests of justice did not justify a retrial even though the State did not support the conviction.

p. 2

Legal principles established

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  • An accused person is entitled to interpretation of proceedings in a language he understands; failure to keep a record of the interpretation is a serious defect vitiating the trial
  • A retrial is not ordered merely to enable the prosecution to fill gaps in its evidence; it depends on the facts and the interests of justice

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction of trafficking in narcotic drugs quashed
  3. 3.Appellant to be released forthwith from prison unless held for some other lawful cause
  4. 4.No retrial ordered

The bench

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

Philip Kiptoo Tunoi
majority
EG
majority
WD
majority
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 217 of 2002
Jurisdiction invoked
Second and final appeal to the Court of Appeal under the Criminal Procedure Code (section on second appeals from a first appeal decided by the High Court)

Relief refused

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Retrial sought by the State in lieu of upholding the conviction

The appellant had been in custody for about six years and the vital drug exhibits had been destroyed, so the interests of justice did not favour a retrial

p. 2

Costs

No costs order made in the judgment

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.

We accordingly allow the appeal, quash the conviction recorded against the appellant and order that he shall be released forthwith from prison unless held for some other lawful cause.
p. 2Final orders
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
p. 2Right to an interpreter
Due to these fundamental breaches there has been a miscarriage of justice and the conviction of the appellant is unsustainable and must be quashed.
p. 2Effect of language defects

Issues in the judgment

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minor

The judgment records the facts as occurring on 10th September 2001 but later states the charge arose on 17th September 2001 - an internal date inconsistency

minor

The judgment is delivered at Kisumu in the cause heading but dated and delivered at Nairobi in the closing paragraph

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, "CISSE DJIBRILLA v REPUBLIC [2008] KECA 303 (KLR)", Case Analysis (2008). Criminal Appeal 221 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/303/eng@2008-03-07

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