Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 131 of 2012

Jason Akhonya Makokha v Republic [2014] KECA 23 (KLR)

Court of Appeal of Kenya
18 July 2014
RNR.N. NambuyeFAF. AzangalalaSKSankale ole Kantai
4,012 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal freed a death-row inmate because the court record never showed he understood the language used during his guilty plea.

What this practically means

#

Executive summary

#
The appellant, Jason Akhonya Makokha, was charged with two counts of robbery with violence contrary to Section 296(2) of the Penal Code and, on 22 December 2006, pleaded guilty before the Chief Magistrate's Court at Kakamega and was sentenced to death. His first appeal to the High Court at Kakamega (Lenaola and Onyancha, JJ) was dismissed, the court holding the plea unequivocal. On second appeal to the Court of Appeal at Kisumu, the appellant argued that the plea was not taken in a language he understood and that the language of the court and any interpretation were nowhere recorded, contrary to Section 77(2)(b) of the retired Constitution and Section 198 of the Criminal Procedure Code. The State, through the Assistant Director of Public Prosecutions, conceded the appeal, acknowledging the failure to record the language of the court, the appellant's equivocal responses, and the absence of satisfaction that he understood the charge. The Court distilled principles from its jurisprudence on language rights: the language of the court and of the accused must be recorded; an unexplained violation of the right to language normally results in an acquittal; doubt about interpretation services is resolved in the accused's favour. It found the appellant's inconsistent replies ('we robbed' while absolving co-accused) showed confusion that should have caused the magistrate to defer the plea. The Court also declined to order a retrial, given the lapse of time since the 2006 offence, the appellant's continued custody, the likely unavailability of witnesses, and the co-accused's acquittal. The appeal was allowed in its entirety and the appellant ordered set at liberty forthwith unless otherwise lawfully held. No costs order was made.

Questions the Court framed

#

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

  1. 1.Whether the learned trial magistrate duly complied with the legal prerequisites on plea taking.
  2. 2.Whether the learned Judges of the first Appellate Court properly exercised their mandate.
  3. 3.Whether in the circumstances of this appeal, it is prudent to order a retrial.

Key legal issues

#
01

Whether the plea was properly taken in a language the appellant understood

Holding

The plea was not properly taken: neither the language of the court nor any interpretation was recorded, and the appellant's inconsistent responses showed confusion, vitiating the plea of guilty on a capital charge.

Reasoning

The court held that recording the language of the court and the accused is a constitutional and statutory requirement, particularly acute where an unrepresented accused faces a mandatory death sentence. The appellant's reply 'we robbed' followed by absolving his co-accused showed mental confusion which should have put the magistrate on guard to defer the plea. The record disclosed no inquiry into the language the appellant wished to use. The defect was unexplained and fundamental.

p. 6
02

Whether the first appellate court properly exercised its mandate

Holding

The High Court erred in upholding the conviction despite the defective plea-taking record; this Court accepted the State's concession that the appeal should be allowed.

Reasoning

The High Court had applied the Adan v Republic prerequisites but nonetheless dismissed the appeal, finding the plea unequivocal. On second appeal, limited to matters of law, this Court found the omission of the language of the court and of interpretation on the record, coupled with the appellant's confused responses, established a legal defect going to the validity of the plea. The Assistant Director of Public Prosecutions properly conceded the appeal on these grounds.

p. 6
03

Whether a retrial should be ordered

Holding

A retrial was refused because the interests of justice did not require it.

Reasoning

Applying the retrial principles from the decided cases, the court weighed the lapse of time since the 2006 offence, the appellant's continued incarceration since conviction on a death sentence, the likelihood that the factory employer and employee witnesses had moved on, and the acquittal of the co-accused at the no-case-to-answer stage. The court concluded there was nothing to show that a fair trial, let alone a conviction, would be achieved, and declined to order a retrial, instead ordering the appellant's release.

p. 7

Legal principles established

#
  • A court taking a plea must record the language of the court and of the accused, and provide an interpreter where the accused does not understand the language of the court.
  • An unexplained violation of the constitutional right to language normally results in an acquittal irrespective of the strength of the evidence.
  • The words 'it is true' do not amount to a plea of guilty.
  • A person charged with a capital offence may plead guilty, but only where the statutory and constitutional safeguards as to understanding and consequences are demonstrably complied with.
  • A retrial should only be ordered where the interests of justice require it and where a conviction might result on the admissible or potentially admissible evidence.

Court orders

#
  1. 1.Appeal allowed in its entirety
  2. 2.Conviction and sentence set aside by allowing the appeal on the State's concession
  3. 3.Appellant to be set at liberty forthwith unless otherwise lawfully held

The bench

#

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

RN
majority
FA
majority
SK
majority
On appeal from
High Court of Kenya at Kakamega
H.C.C.R.A. No. 1 of 2007
Jurisdiction invoked
Second appeal on matters of law only under Section 361 of the Criminal Procedure Code

Relief refused

#

Order for retrial

Offence occurred in 2006, appellant in custody since conviction, potential witnesses may have moved on, co-accused acquitted, and no fair trial leading to conviction would be achieved

p. 7

Costs

No costs order 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.

We therefore find that the state properly conceded the appeal. We allow the appeal in its entirety. We direct the appellant to be set at liberty forthwith unless otherwise lawfully held.
p. 7Final orders - appeal allowed and appellant released
any Court of law taking a plea from an accused person has to ensure that the language of the Court and the language the accused person wishes to use to communicate with the Court is indicated on the record and where an accused person is not conversant with the language of the Court, he should be afforded the services of an interpreter
p. 5Duty to record language and provide interpreter at plea taking
an unexplained violation of a constitutional right to language would normally result in an acquittal irrespective of the nature and strength of the evidence which might be adduced in support of the charge
p. 5Consequence of unexplained language-rights violation
where some doubt exist as to whether or not an accused person was accorded the services of an interpreter, the doubt must be resolved in his favour
p. 5Doubt on interpretation resolved in accused's favour
(c) Where the offence charged is one punishable by death, the Court recording the plea must show in its record that the person pleading guilty to the charge understands that as a consequence of his plea he will face an instant sentence of death.
p. 6Safeguards for guilty pleas to capital charges
In the circumstances, we find it not prudent to order a retrial.
p. 7Retrial refused

Issues in the judgment

#
minor

The quoted passage from the High Court judgment appears fragmented and internally disordered in the record, with the fragment 'in law to temper with the conviction as the plea was' separated from its context and the numbering jumping from paragraph 7 to paragraph 9 mid-quote.

minor

The judgment cites 'Sections 197 and 198 of the Criminal Procedure Code' via counsel's citation of Francis Koikai Katikenya versus Republic, but only Section 198(1) is set out in the judgment; Section 197 is never quoted or explained.

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.

Cite this brief

#

Cite this brief

Caselaw, "Jason Akhonya Makokha v Republic [2014] KECA 23 (KLR)", Case Analysis (2014). Criminal Appeal No. 131 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/23/eng@2014-07-18

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