Ali Issac & Hagos Gabremaryan v Republic [2015] KEHC 3751 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL APPEALS NOS 87 AND 94 OF 2014

(CONSOLIDATED)

(APPEALS FROM CONVICTION AND SENTENCE IN KIGUMO SPM CRIMINAL CASE NO 1287 OF 2014 – D ORIMBA, SPM)

1.  ALI   ISSAC

2.   HAGOS GABREMARYAN…....APPELLANTS

VERSUS

REPUBLIC……………………………RESPONDENT

J U D G M E N T

1. The Appellants were on 23/05/2014 convicted upon their own plea of human traffickingcontrary to section 53(1) as read with subsection (2) of the Kenya Citizenship and Immigration Act, Cap 172.  They were each fined KShs 300,000/00 or in default to serve two (2) years imprisonment.  They did not pay the fines and they commenced serving their default sentences.  On 02/10/2014 the 1st Appellant, Ali Isaac, was released on bail pending disposal of his appeal.  The 2nd Appellant, Hugos Gabremaryan, is serving his default sentence.   They have appealed against both conviction and sentence.

2.  The two appeals were on 21/04/2015 consolidated for hearing together.  It was then apparent that the 2nd Appellant (who is an Ethiopian) understood neither Kiswahili nor English, and the court directed that an Ethiopian (specifically an Amharic) interpreter be provided for him at the hearing of the appeals on 22/06/2015.  A request for the same was addressed in writing to the High Court, Nairobi.  But come 22/06/2015, and no Amharic, or even Ethiopian, interpreter was provided.  The court therefore decided to proceed with the appeals by way of revision rather than delay them any longer.

3. I have read the very brief record of the trial court.  It is quite clear that the pleas of the Appellants were not unequivocal.  The record states that interpretation was English to Kiswahili.  As already observed, the 2nd Appellant understands neither Kiswahili nor English.  So, he could not have understood and followed the proceedings.  He could not have understood the charge he faced and plead to it in knowledge.

4. Secondly, after the Appellants supposedly admitted the charges, no facts were given by the prosecution.  The prosecutor simply said, “Facts as per charge sheet.”   Given the nature of the offence charged, it was not sufficient merely to state, “Facts as per charge sheet.”  The Prosecutor ought to have given full facts.

5.  It is also to be noted that in respect to the 1st Appellant, an age-assessment report was filed following an order of this court.  At the time of the plea and sentencing the 1st Appellant was, and still is, a minor, now aged about 16 years.

6. For all the above reasons the Appellants’ convictions are hereby quashed and the sentences passed against them set aside.  The 2nd Appellant shall be set at liberty forthwith unless otherwise lawfully held.  As already observed the 1st Appellant was released on bail.  He and his surety are hereby released from their bonds.  It is so ordered.

DATED AND SIGNED AT MURANG’A THIS 2ND DAY OF JULY 2015

H.P.G. WAWERU

JUDGE

DELIVERED THIS   3rd   DAY OF JULY 2015