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Court of AppealPartially AllowedCriminal Appeal No. 57 of 2008· [2010] KECA 388 (KLR)

Bishar Abdi v Republic

Court of Appeal of Kenya
12 March 2010
ROR. S. C. OmoloEOE. O. O'KubasuJOJ. W. Onyango Otieno
2,432 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a death sentence because the accused was tried without a Borana interpreter he had been promised.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nairobi against the dismissal by the High Court (Ojwang' and Omondi, JJ.) of the appellant's first appeal against conviction for robbery with violence contrary to section 296(2) of the Penal Code and a sentence of death. The sole determinative issue was whether the appellant's constitutional right to a trial in a language he understood had been violated. At trial the appellant, mid-cross-examination, stated he was not conversant with Kiswahili and understood Borana; the magistrate adjourned and ordered that a Borana interpreter be availed. However, when the hearing resumed de novo before a different magistrate, no interpreter was provided and the trial proceeded to conclusion in Kiswahili without any record of compliance with, or rescission of, that order. The High Court had held that the appellant suffered no prejudice since he cross-examined witnesses. The Court of Appeal held this was a misdirection: under section 77(2)(b) and (f) of the Constitution and section 198(1) of the Criminal Procedure Code, an accused is entitled as of fundamental law to a trial conducted in a language he understands, and that right cannot be waived merely because he appeared to manage; the trial court's failure to honour its own interpreter order vitiated the trial. Following John Irungu v Republic, the Court allowed the appeal, quashed the conviction and set aside the death sentence. It declined the State's request for a retrial, applying Bernard Lolimo Ekimat v R., given the appellant's five years in custody, the prosecution's uncertainty about mounting a fresh trial, the trivial value of the alleged theft, and variance between the charge and the evidence. The appellant was released.

Key legal issues

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01

Right to interpretation in a language the accused understands

Holding

The trial was vitiated by the failure to provide a Borana interpreter after the appellant stated he was not conversant with Kiswahili and after the trial court had ordered one, contrary to section 77(2)(b) and (f) of the Constitution and section 198(1) of the Criminal Procedure Code.

Reasoning

The appellant expressly stated he understood Borana, not Kiswahili, mid-cross-examination. The magistrate adjourned and ordered a Borana interpreter to be availed, but that order was never rescinded or complied with, and the trial resumed de novo in Kiswahili before another magistrate with no record of any arrangement. The High Court's view that successful cross-examination showed no prejudice was a misdirection; the constitutional right is not confined to enabling the accused to hear and be heard but to genuine mutual understanding, and such rights cannot be waived on the belief that the accused understands the court's language.

p. 4
02

Whether a retrial should be ordered after quashing the conviction

Holding

A retrial was refused because the interests of justice, on the particular facts, did not favour it.

Reasoning

The court applied the settled principle, as summarised in Bernard Lolimo Ekimat v R., that each case depends on its facts and retrial is ordered only where the interests of justice require. Here the appellant had been incarcerated for five years; the prosecution itself was unsure a successful retrial could be mounted; the property stolen was valued at only Kshs.1,650; and the charge was at variance with the evidence on the violence used. These factors cumulatively tilted the balance against a retrial, so the appellant was released outright.

p. 4

Legal principles established

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  • An accused person is entitled as a matter of fundamental law to have his criminal trial, if present in court, conducted in a language he understands, and the court must ensure evidence is interpreted accordingly; the right cannot be waived merely because the accused appeared to manage in the court's language
  • Failure by the trial court to provide interpretation in a language the accused understands vitiates the trial
  • A court order for an interpreter must be obeyed, including by the court that made it; inability to cross-examine being one test of comprehension is not the only requirement
  • A retrial is discretionary and should only be ordered where the interests of justice require it, assessed on the particular facts of each case

Court orders

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  1. 1.The appeal is allowed
  2. 2.The conviction of robbery with violence is quashed
  3. 3.The sentence of death imposed on the appellant is set aside
  4. 4.The appellant is released and at liberty unless otherwise lawfully held
  5. 5.No retrial ordered
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 48 of 2006
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code ( appeal from High Court criminal appeal)

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, "Bishar Abdi v Republic", Case Analysis (2010). Criminal Appeal No. 57 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/388/eng@2010-03-12

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