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Court of AppealDismissedCriminal Appeal 228 & 234 of 2006

Stanley Karimi Kago & another v Republic [2010] KECA 81 (KLR)

Court of Appeal of Kenya
29 October 2010
1,445 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a second and final appeal by Stanley Karimi Kago and Charles Kago Wanjohi against their conviction for robbery with violence contrary to Section 296(2) of the Penal Code and the mandatory death sentence imposed by the Kerugoya Principal Magistrate on 23rd April 2002. Their first appeal to the High Court at Nyeri (Khamoni and Okwengu, JJ.) was dismissed on 31st May 2006. The charges arose from a gang robbery at Kimari Estate in Kerugoya on the night of 18th October 2001, in which four houses were ransacked; two robbers were shot dead by police and the appellants were arrested at the scene with weapons and stolen property recovered. Under Section 361(1)(a) of the Criminal Procedure Code only issues of law were open on this appeal. Counsel for the appellants abandoned the home-made grounds and relied on a single ground: that the trial court failed to record the language used by eight of the nine prosecution witnesses, occasioning prejudice and denying the appellants a fair trial. The State countered that the appellants had fully participated, cross-examined all witnesses, and raised the issue for the first time on second appeal. The Court of Appeal confirmed the omission but held that the coram and court clerk remained constant, the appellants never complained of language difficulties, and the issue was an afterthought. The court held that no law requires recording of the language used by every witness, distinguishing Samuel Murithi Mwangi vs. R, which concerned the swearing of witnesses. The appeal was dismissed.

Questions the Court framed

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

  1. 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

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01

Whether failure to record the language used by witnesses vitiates a criminal trial

Holding

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

Reasoning

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.

p. 3
02

The scope of a second appeal under Section 361(1)(a) of the Criminal Procedure Code

Holding

Only issues of law, and not facts, may be addressed on a second and final appeal

Reasoning

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.

p. 2
03

Distinction of Samuel Murithi Mwangi vs. R

Holding

The authority relied on by the appellants was distinguishable as it concerned omission to record whether a witness was sworn, not the language used

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed

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 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

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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

p. 3

Costs

No order as to costs was 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.

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.
p. 3Recording of witness language - not mandatory
Accordingly, and for reasons outlined, we find that there is no merit in this appeal, and we dismiss the same.
p. 3Final orders - dismissal of appeal
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.
p. 3Afterthought points and absence of prejudice

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.