Ibrahim Anakeya & 1 other v Republic

Article 50 of the Constitution and Section 198(1) of the Criminal Procedure Code require interpretation for an accused who does not understand the language of the trial, and the trial court should record the languages used at plea-taking. However, on the record the charge and particulars were explained in English and translated to Kiswahili, most witnesses testified in Kiswahili, and the 2nd appellant's cross-examination of witnesses demonstrated comprehension, so no nullity arose.

Article 50(4) excludes evidence obtained in violation of a right only where admission would render the trial unfair or be detrimental to the administration of justice. The trial court expressly considered the objection that PW3 had been in court during PW2's testimony and ruled that PW2's evidence on the arrests could not be duplicated to the accused's prejudice. PW3's evidence in fact dealt with the robbery scene, not the mode of arrest, so no unfairness was demonstrated.

The elements in Section 296(2) of the Penal Code are disjunctive, so proof of any one suffices. The charge sheet indicated the appellants acted in company with other persons not before the court, and the prosecution evidence confirmed this, thereby establishing robbery with violence even though the alleged offensive weapons were not produced as exhibits.

The Court concurred with the High Court's re-evaluation: both PW3 and PW4 identified the appellants at close range with adequate lighting; the time lag between robbery and recovery/arrest was proximate; the 1st appellant was found in possession of stolen items attracting the doctrine of recent possession; and the 2nd appellant was arrested inside the premises in suspicious, unexplained circumstances, displacing his alibi of working at Mombasa Maize Millers.

Under Section 143 of the Evidence Act the prosecution need not call any number of witnesses; an adverse inference arises only where the evidence called is barely adequate or marginal. Here no impropriety is discerned, and informers' protection springs from public interest considerations since their future usefulness would be impaired if they testified, while the remaining evidence served the purpose.

Following the Supreme Court's decision in Muruatetu, a sentencing court must consider mitigating factors and exercise judicial discretion even in capital offences carrying a mandatory death sentence. Both the trial court and the High Court imposed the death sentence without considering mitigation - understandable since the trial and first appeal predated Muruatetu. The Court therefore acceded to the 1st appellant's request to remit the matter for re-sentencing.