Mwendwa Kilonzo & 1 other v Republic

The court held that courts must remain alive to the need for speedy trials because delayed trials cause anxiety, loss of time and liberty, but the start of a trial depends on availability of the judicial officer, police file, prosecutor, defence counsel and witnesses. The trial magistrate had twice remarked that the case could not be reached, evidencing backlog rather than deliberate delay, so there was no breach of the right to a fair trial.

Section 198(1) of the Criminal Procedure Code requires interpretation where evidence is given in a language the accused does not understand, and courts must ensure accused persons follow proceedings in a language they understand. Here, pleas were entered in English, complaints about arrest were recorded and considered, witnesses were cross-examined at length, unsworn statements were made, a court clerk was always present to interpret if required, and one appellant had counsel in the High Court who did not raise the point.

Guided by Section 361(1) of the Criminal Procedure Code and Njoroge v Republic, the court confined itself to points of law. The trial magistrate had carefully weighed the source and intensity of light from the robbers' torches, and the High Court, on re-evaluation, was satisfied the appellants were identified at the scene and that circumstantial evidence showed they were active participants in the robbery. No material was shown to overturn these concurrent findings of fact.

Article 6(2) of the ICCPR permits imposition of the death penalty for the most serious crimes in countries that have not abolished it. Kenya has not abolished the death sentence, and Article 26(3) of the Constitution permits deprivation of life to the extent authorised by written law, namely Section 296(2) of the Penal Code. The court acknowledged Godfrey Ngotho Mutiso v R on the mandatory nature of the death sentence under Sections 203 and 204 of the Penal Code but held that the point was not before it.