Stanley Karimi Kago & another v Republic [2010] KECA 81 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a trial court's failure to record the language witnesses spoke does not automatically invalidate a criminal conviction.
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 court to record the language used by the prosecution witnesses occasioned a miscarriage of justice and denied the appellants a fair trial
Key legal issues
#Whether failure to record the language used by witnesses vitiates a criminal trial
The omission does not vitiate the trial where the appellants fully participated, cross-examined every witness, never complained of any language difficulty, and no prejudice is discernible
The court examined the record and confirmed the language was recorded for only one of nine prosecution witnesses. However, the coram including the court clerk responsible for interpretation remained constant throughout, the appellants cross-examined every witness and never raised any language complaint at trial or on first appeal. The court held there is no statutory requirement to record the language used, and found no miscarriage of justice.
The scope of a second appeal under Section 361(1)(a) of the Criminal Procedure Code
Only issues of law, and not facts, may be addressed on a second and final appeal
The court noted that by dint of Section 361(1)(a) of the Criminal Procedure Code, only issues of law can be addressed at the second appeal stage. The home-made grounds raising facts were abandoned, and counsel relied solely on the single legal ground concerning the recording of language used by witnesses.
Distinction of Samuel Murithi Mwangi vs. R
The authority relied on by the appellants was distinguishable as it concerned omission to record whether a witness was sworn, not the language used
The court held the cited Nyeri decision was of no assistance because it dealt with a different omission. The law requires that every witness in a criminal case be examined upon oath under Section 151 of the Criminal Procedure Code, but no parallel requirement exists for recording the language used by witnesses.
Legal principles established
#- There is no legal requirement that a trial court record the language used by every witness; the desirability of doing so does not make it mandatory, and absent demonstrated prejudice the omission is not a ground for allowing an appeal
- A party may raise a point of law at any stage of the litigation, but a point not raised before the courts below and belatedly raised will be treated as an afterthought where no prejudice is shown
Court orders
#- 1.The appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- H.C.CR.A. Nos. 204 & 205 of 2002
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code - second and final appeal on issues of law only
- Consolidated with
- Criminal Appeal 234 of 2006
Relief refused
#Allowance of the appeal on the ground of failure to record the language used by witnesses
No law requires the court to record the language used by every witness, and no prejudice or miscarriage of justice was discerned
Costs
No order as to costs 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.
However, there is no law that requires that the court record the language used by every witness. Of course, it would be desirable to do so, but not mandatory.
Accordingly, and for reasons outlined, we find that there is no merit in this appeal, and we dismiss the same.
Clearly, this is an afterthought, and although it is their right to raise a point of law at any stage of the litigation, we are unable to discern any prejudice caused to them by reason of this failure on the part of the trial court.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Alexander Ngugi Njeri v Republic [2013] KECA 293 (KLR)[2013] KECA 293 (KLR)24 May 2013followed
Cite this brief
#Cite this brief
Caselaw, "Stanley Karimi Kago & another v Republic [2010] KECA 81 (KLR)", Case Analysis (2010). Criminal Appeal 228 & 234 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/81/eng@2010-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.