https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8034

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **HCCRA E084 OF 2024** GEORGE IRUNGU MWANGI..............……….....................................………APPELLANT VERSUS DIRECTOR OF PUBLIC PROSECUTION…….......................................…..RESPONDENT ***(Being an appeal against the judgment and sentence of Hon. M.K Mutegi – PM delivered in Kangema Law Courts Criminal Case No. E470 of 2023 delivered on 27th November 2024)*** **JUDGMENT** 1. The appellant herein was charged with the offence of robbery with violence **contrary to section 296 (2) of the penal code**. The particulars of the offence were that on the 23rd day of July 2023at about 0100 hrs, the appellant robbed one Peris Nyakianguyi a cellphone make Itel model lt 5081 blue in color valued at Kshs. 2500/-, while armed with an alcohol bottle. 2. He was also charged with an alternative count of handling stolen goods contrary to s**ection 322(1)(2) of the penal code**. The particulars were that on the 23rd of July 2023 at 1830 hrs in Kiharu subcounty within Murang’a county otherwise than in the course of stealing, the appellant dishonestly undertook the disposal and possession of an Itel cellphone blue in color button property of Peris Nyakianguyi worth Kshs. 2500/- having reason to believe to be stolen goods. 3. The appellant pleaded not guilty to both charges, and the matter proceeded to full trial. The prosecution called a total of five witnesses in support of its case. The appellant testified in his own defence and called no other witnesses **Facts at trial** 1. PW1 was Monicah Kimani, a social worker attached to Kangema Sub-County Hospital, who testified as an intermediary on behalf of the complainant, having been appointed by the trial court after the complainant was declared a vulnerable witness. She stated that she had interacted with the complainant following the latter’s report to the hospital that she had been sexually assaulted and had thereafter attended counselling clinics. That the complainant informed her on 23rd July 2023 at about 1.00 a.m., the appellant entered her house, forced a bottle into her mouth, and raped her. A struggle ensued between them. That after the rape, the appellant demanded that the complainant sucks his penis, which she did for fear of bodily harm, after which the assailant took away the complainant’s mobile phone. She further stated that the complainant later saw and recognized the perpetrator the following day and informed her family members accordingly. According to PW1, the complainant’s stolen phone was subsequently recovered from the appellant. PW1 further stated that the complainant reported having sustained bruises on her face during the incident and that she knew the perpetrator prior to the attack. She also relayed that after the incident, a friend of the appellant allegedly attempted to persuade the complainant to withdraw the case. 2. Upon cross-examination, PW1 stated that her role as an intermediary was limited to listening to the complainant and conveying to the court what the complainant had told her. That she did not know whether there was any broken material recovered from the scene, nor did she know the exact object used by the perpetrator to gain entry into the complainant’s house. She reiterated that the complainant sustained facial bruises during the incident, that the perpetrator was known to the complainant, and that the complainant’s phone was recovered from the appellant upon his arrest. 3. PW2 was Jadiel Muturia Joseph, a Clinical Officer attached to Murang’a Sub-County Hospital and formerly stationed at Kangema Sub-County Hospital. He testified that he examined the complainant on 23rd July 2023 following a reported assault and rape incident. He produced the P3 form and stated that upon examination, the complainant had blood-stained clothes, swelling and tenderness on the head and neck, facial lacerations, blood stains on the face, pain on the thorax and abdomen, and lacerations on the buttocks. He opined that the probable cause of the injuries was blows and kicks. Upon genital examination, he observed blood stains on the labia majora and labia minora, a broken hymen, tenderness of the genitalia, and blood-stained vaginal discharge suggestive of infection. Laboratory tests revealed blood in the urine, while a high vaginal swab showed blood and numerous pus cells, although no spermatozoa were detected. He assessed the age of the injuries as approximately one day and classified the degree of injury as harm. He further stated that the complainant was administered pain medication and post-exposure prophylaxis (PEP) for HIV prevention. On cross-examination, PW2 stated that he had not been provided with the complainant’s treatment notes from Kangema Sub-County Hospital. He reiterated that the complainant reported having been assaulted and raped and that he personally observed blood oozing from her vagina and noted that her hymen was broken. That the appellant had not been brought to the hospital for examination. 4. PW3 was Lilian Nduta Irungu, a shopkeeper and a cousin to the complainant. She testified that on the morning of 24th July 2023, while opening her shop, she met the complainant and observed that her face was swollen. The complainant informed her that the appellant had entered her house at about 1.00 a.m., assaulted and raped her, and thereafter stole her mobile phone. PW3 stated that she knew both the complainant and the appellant and further testified that the appellant had previously troubled the complainant and her mother. PW3 identified the complainant’s mobile phone, an Itel IT 5081 handset, which was produced in court. She further stated that some boda boda operators apprehended the appellant and, upon searching him, recovered the complainant’s phone concealed inside his gumboot. The appellant was thereafter escorted to the Chief’s Camp. PW3 identified the appellant in court as the person arrested in connection with the incident. Upon cross-examination, PW3 stated that the complainant was her cousin and that the mobile phone was recovered from the appellant but clarified that she was not among those who arrested him. She further testified that she was familiar with the phone as she regularly assisted the complainant in charging it. 5. PW4 was Rosemary Nyambura Mwangi, a businesswoman from Koimbi Village and a friend of the complainant. She testified that on 23rd July 2023 at about 8.00 a.m., the complainant called out to her for assistance. Upon responding, she found the complainant with blood all over her face. The complainant informed her that the appellant had entered her house during the night, raped her, and demanded that she perform oral sex on him. When she refused, he assaulted her. PW4 stated that she accompanied the complainant to report the matter at Koimbi Police Post before taking her to Kangema Sub-County Hospital for treatment. She further testified that she assisted the doctor during the complainant’s examination and was informed that the complainant had been sexually assaulted. According to PW4, the complainant also reported that after raping her, the assailant fled when she and her mother began screaming and, in the process, stole her mobile phone. PW4 stated that she knew the appellant as a resident of the neighborhood and described him as a person who had previously caused disturbance within the village. Upon cross-examination, PW4 stated that the complainant frequently visited her home and that she decided to take her to hospital because she appeared unwell. 6. PW5 as PC Muema, No. 243374, attached to Koimbi Patrol Base and the investigating officer in the case. He testified that on 23rd July 2023 at about 9.30 a.m., the complainant reported the incident at the patrol base. He observed that she had visible injuries on her face and hands. The complainant informed him that during the night of 22nd July 2023, the appellant had broken into her house, removed her clothes, raped her, and thereafter ransacked the house and stole her Itel mobile phone. PW5 referred the complainant to hospital for treatment and thereafter visited the scene of the alleged offence. He also enlisted members of the public to trace the appellant. PW5 further testified that later that day, at about 5.00 p.m., he received information from members of the public that the appellant had been apprehended. Approximately ten minutes later, the appellant was escorted to the patrol base by members of the public and was subsequently taken to Kirigo Police Station. Upon searching the appellant, the complainant’s Itel mobile phone was recovered from inside his gumboots. The complainant positively identified the phone. PW5 produced the Itel mobile phone and the purchase receipt reflecting its value of Kshs. 2,500/-. 7. Upon cross-examination, PW5 stated that he conducted investigations into the matter and visited the complainant’s house, where he observed the point through which the assailant had gained entry. He testified that a broken bottle smelling of alcohol was recovered from the house and noted that the complainant did not consume alcohol. He further stated that by the time of his visit, the damaged timber at the point of entry had already been replaced. PW5 maintained that the recovered phone was positively identified by the complainant and reiterated that it had been recovered from the appellant’s gumboots. He also explained that although members of the public participated in the arrest of the appellant, they were unwilling to record witness statements. 8. That marked the close of the prosecution case. Having considered the evidence adduced, the trial court held that a *prima facie* case had been established against the accused person and he was accordingly put on his defence. **Defence Case** 1. DW1 was the appellant, George Mwangi Irungu. He testified on oath that on 22nd July 2023, he went to work and returned home at about 6.00 a.m. Thereafter, he went out to buy food and later returned home at about 10.30 p.m., where he ate and went to sleep. That his brother subsequently left to sell milk and, upon returning, informed him that people were looking for him. According to the appellant, as he was on his way to work, two people approached and arrested him. He denied any involvement in the offences charged and alleged that the mobile phone said to belong to the complainant had been planted in his pocket by the persons who arrested him. He further testified that he was thereafter taken to Kirigo Police Station and subsequently arraigned before the court where he was charged. Upon cross-examination, the appellant stated that the complainant was his neighbour and that she was well known to him. He further admitted that they had previously had disputes as neighbours. He nevertheless maintained that he had not committed the offences alleged against him. 2. That marked the close of the defence case. Upon considering the entirety of the evidence on record, the trial court, in its judgment delivered on 27th November 2024, found that the prosecution had proved the charge of robbery with violence beyond reasonable doubt. The appellant was convicted under **section 215 of the Criminal Procedure Code** and sentenced to suffer death. **The Appeal** 1. Being dissatisfied with both conviction and sentence, the appellant lodged the present appeal vide a petition of appeal citing the following grounds: 2. **THAT, the honorable trial magistrate erred in law and in fact in convicting and sentencing the appellant on a case that was not proved beyond any reasonable doubt.** 3. **THAT the honorable trial magistrate erred in law and in fact convicting and sentencing on evidence that was not watertight and full of hearsays.** 4. **THAT the honorable trial magistrate erred in law and in fact in not considering the appellant was implicated due to previous criminal records which had resulted to grudges.** 5. **THAT the honorable trial magistrate erred in law and in facts by not considering crucial witnesses were not summoned and crucial documents were not produced in court.** 6. **THAT the trial magistrate erred both in law and facts by relying on a shoddy or no investigation done and thus doctrine of recent possession could not be satisfied to warrant sentencing of the appellant.** 7. **THAT the trial magistrate erred both in law and facts by not considering the trial was unfair to the appellant due to lack of representation considering the gravity of the offence.** 8. **THAT the trial magistrate erred both in law and facts by not considering the merits of the case in sentencing informed by evidence and thus arrived to punitive and indeterminate death sentence that is inhumane in nature and denied judicial discretion in sentencing.** 9. **THAT more grounds to be adduced during the hearing of this appeal.** 10. The appeal was canvassed by way of written submissions. On record are submissions dated 14th January 2026, filed by the appellant and submissions dated 12th January 2026, filed by the respondent; both of which this court has duly considered. **Appellant’s Submissions** 1. The appellant submitted supplementary grounds and issues for determination in his submissions as follows: 2. **That the Trial Magistrate erred in Law and Facts by inferring a guilty verdict in the gross breach of the Constitutional and Procedural Law.** 3. **That the Trial Magistrate erred in Law and fact by failing to note and find the Key ingredients of the offence were never proved as the court relied on illogical and irreconcilable evidence as per the obligatory law under Sections 107 and 111 of the Evidence Act.** 4. **That the Trial Magistrate erred in Law and Facts by finding that the prosecution proved its case beyond reasonable doubt whereas no quantifiable evidence was presented to validate the arguments.** 5. **That the Trial Magistrate erred in Law and Facts by appreciating a Death Sentence meted upon him without promoting the spirit of fairness and constitutionalism (Articles 27, 50 (2) (p) of the Constitution, yet the same has overridden the proportional legal tenets of punishment thus does not achieve the objectives intended in the surrounding circumstances and goes against the new developments in matters law.** 6. He submitted that his trial was conducted in violation of his constitutional right to a fair trial. He relied on **Articles 25(c), 50(1), 50(2)(k) and 50(2)(q) of the Constitution, sections 125, 128, 145 and 146 of the Evidence Act,** and **section 208 of the Criminal Procedure Code.** He argued that although the complainant was the principal witness, the trial court permitted her evidence to be conveyed through an intermediary without first conducting a proper inquiry into her competence, vulnerability, or the necessity of appointing an intermediary. He contended that he was thereby denied the opportunity to effectively hear and cross-examine his accuser. According to the appellant, the trial court misunderstood the role of an intermediary and improperly allowed PW1, a social worker, to testify as though she were the complainant. In support of this argument, he cited **Onwuka v Owolewa (CA/10/99)**, where the court emphasized that denial of the right to cross-examination undermines the fairness of proceedings. He also referred to the **NCAJ Report on Persons with Mental Illness in the Criminal Justice System (2023)** and urged the court to find that the proceedings were fundamentally unfair. 7. Secondly, the appellant submitted that the prosecution failed to establish the essential ingredients of the offence of robbery with violence under **section 296(2) of the Penal Code**. He argued that the evidence of identification was unreliable as the alleged offence occurred at night and the prosecution failed to establish the lighting conditions at the scene. He contended that the trial court failed to adequately interrogate whether the complainant recognized the assailant by voice, appearance or any other distinguishing feature. He further submitted that the evidence was tainted by pre-existing disputes between himself and the complainant’s family, as acknowledged by PW3 and PW4, and that the court improperly relied on this alleged hostility to infer guilt. The appellant also faulted the prosecution for failing to call the complainant’s mother, who was allegedly present during the incident, thereby leaving critical gaps in the prosecution case. 8. The appellant further challenged the evidentiary basis of the allegations of rape and assault. He submitted that no forensic or scientific evidence was produced linking him to the offence. In particular, he argued that no DNA analysis was conducted on the complainant’s clothes or undergarments, no evidence of semen was recovered, and no scientific evidence connected him to the alleged sexual assault. He relied on the principles underlying **Locard’s Exchange Principle** and submitted that the prosecution failed to present the kind of forensic evidence that would have established a nexus between him and the alleged offence. He further argued that medical evidence alone could not substitute the complainant’s direct account and that the prosecution failed to produce evidence of sufficient probative value to corroborate the allegations made against him. 9. The appellant also submitted that the prosecution failed to prove that he was armed with a dangerous weapon during the commission of the offence. He argued that although reference was made to a bottle of alcohol allegedly recovered at the scene, no such bottle was produced as an exhibit. He contended that there was no inventory, chain of custody documentation or other evidentiary foundation establishing the existence or recovery of the alleged weapon. Consequently, he submitted that the trial court erred by relying on an unproduced exhibit to conclude that one of the ingredients of robbery with violence had been proved. 10. On the doctrine of recent possession, the appellant submitted that the doctrine was improperly invoked. He argued that the prosecution failed to establish a proper chain of custody regarding the alleged recovery of the complainant’s phone. He maintained that no inventory form, investigation diary or chain of custody documents were produced and that the members of the public who allegedly arrested him were not called as witnesses. He further contended that the phone was planted on him upon arrest. The appellant also pointed to what he termed inconsistencies in the description of the phone, arguing that the phone described in the charge sheet differed from the one allegedly produced in evidence. He relied on **Kelvin Nyongesa & 2 Others v Republic and Kinyatti v Republic** in arguing that the burden of proof never shifts to an accused person and that the doctrine of recent possession could not cure deficiencies in the prosecution case. 11. Thirdly, the appellant challenged the admissibility and reliability of the medical evidence. He submitted that PW2 was not the original examining officer and did not produce the treatment notes or PRC form upon which the P3 form was allegedly based. He argued that the prosecution failed to lay a proper basis for the production of the medical documents by a person other than their maker as required under s**ections 33, 35, 48 and 77 of the Evidence Act**. He contended that the medical evidence admitted by the trial court amounted to hearsay and could not properly corroborate the prosecution case. In support of this position, he relied on **Daniel Makokha Ogutu v Republic, Criminal Appeal No. 155 of 2011.** 12. Lastly, the appellant challenged the sentence imposed by the trial court. He submitted that the death sentence was harsh, disproportionate and unconstitutional. He relied on **Articles 27, 50(2)(q) and 50(2)(p) of the Constitutio**n, as well as the decisions in F**rancis Karioko Muruatetu & Another v Republic [2017] eKLR, William Okungu Kittiny v Republic, Amwogo v Republic [2024] KEHC 10129 (KLR), Wycliffe Wangusi Mafura v Republic [2018] eKLR** and **High Court Constitutional Petitions Nos. E002 and E003 of 2024**. He argued that the mandatory nature of the death sentence under **section 296(2) of the Penal Code** deprived the court of sentencing discretion and failed to take into account his personal circumstances. He further submitted that the property alleged to have been stolen was a mobile phone worth Kshs. 2,500/= and that the injuries sustained by the complainant were not of such gravity as to justify the ultimate penalty. He therefore urged the court to allow the appeal, quash the conviction, set aside the sentence and order his immediate release. **Respondent’s Submissions.** 1. The respondent opposed the appeal and submitted that the prosecution proved the charge of robbery with violence beyond reasonable doubt. On the evidence, the respondent submitted that PW1, who testified as an intermediary on behalf of the complainant, stated that the appellant broke into the complainant’s house at night, attacked her while armed with a bottle, raped her, forced her to perform oral sex, assaulted her, ransacked the house and stole her phone. The respondent argued that the element of violence was proved through the evidence of PW2, the clinical officer, who confirmed that the complainant had swelling and tenderness on the head and neck, facial lacerations, blood stains, pains on the thorax and abdomen, lacerations on the buttocks, blood stains on the labia majora and minora, and blood-stained vaginal discharge. PW2 assessed the age of the injuries as approximately one day and classified the degree of injury as harm. 2. The respondent further submitted that the complainant’s account was corroborated by PW3 and PW4, who saw the complainant shortly after the incident and observed that she had injuries. It was also submitted that the complainant positively identified the appellant as the attacker, and that upon his arrest by members of the public, the complainant’s phone was recovered from inside his gumboots. The respondent maintained that the appellant did not rebut this evidence during trial. 3. On the appellant’s complaint that crucial witnesses were not called, the respondent submitted that the prosecution is not required to call a superfluity of witnesses, provided that the witnesses called are sufficient to prove the charge. Reliance was placed on **section 143 of the Evidence Act,** which provides that no particular number of witnesses is required to prove any fact. The respondent also cited **Bukenya & Others v Uganda [1972] EA 549 and Keter v Republic [2007] 1 EA 135** for the proposition that an adverse inference only arises where the prosecution deliberately withholds vital witnesses whose evidence would have been adverse to its case. 4. On recent possession, the respondent submitted that the doctrine was properly invoked. Relying on **Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga v Republic [2006] eKLR,** the respondent submitted that for the doctrine to apply, the property must be proved to have been stolen, must be positively identified, must be found in the possession of the accused, and the possession must be recent. It was argued that the appellant was found in possession of the complainant’s phone shortly after the robbery and rape, and that his unexplained possession irresistibly pointed to his participation in the offence. 5. Regarding legal representation, the respondent submitted that although **Article 50(2)(h) of the Constitution** guarantees the right to legal representation, state-funded legal representation is only required where substantial injustice would otherwise result. It was argued that the record did not show that the appellant applied for legal representation or demonstrated inability to conduct his defence. The respondent maintained that the charge was read and explained to him, he participated in the proceedings, cross-examined witnesses, and elected to give sworn evidence. Accordingly, the mere absence of counsel did not render the trial unconstitutional. 6. Lastly, on sentence, the respondent submitted that sentencing is a discretionary function of the trial court and an appellate court should only interfere where the trial court acted on a wrong principle, considered irrelevant factors, or imposed a sentence that was manifestly harsh or excessive. Reliance was placed on S**hadrack Kipchoge Kogo v Republic, Criminal Appeal No. 253 of 2003**. The respondent further submitted that the law provides for a death sentence for robbery with violence, and that although the Supreme Court in **Francis Karioko Muruatetu & Another v Republic** declared the mandatory death sentence unconstitutional in murder cases, the decision did not outlaw the death penalty. The respondent therefore urged the court to find that both conviction and sentence were proper and to dismiss the appeal for want of merit. **Analysis and Determination** 1. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of **Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570** and **Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR** where the Court of Appeal held that: - ***“the duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellate court may depending on the facts and circumstances of the case, come to the same conclusion as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.’’*** 1. I have carefully perused the lower court proceedings, the judgment of the trial court, the grounds of appeal set out in the petition, and the detailed written submissions filed by both the appellant and the respondent. I isolate the following key issue for determination: 2. **Whether the appellant’s right to a fair trial under Article 50 of the Constitution was violated by the trial court** 3. The appellant has raised a fundamental complaint that goes to the very root of his trial. He contends that by permitting one Monicah Kimani, a social worker attached to Kangema Sub-County Hospital, to testify as an intermediary on behalf of the complainant without ever allowing the appellant to cross-examine the complainant herself, the trial court effectively deprived him of his constitutional right to challenge the evidence of his principal accuser. From the record, on 28th August 2023, the trial court granted the prosecution’s application to have the complainant sent for a psychiatric evaluation. Thereafter, the complainant was declared a vulnerable witness, and PW1, Monicah Kimani, was appointed as an intermediary. PW1 stated that the complainant had told her that on 23rd July 2023 at about 1.00 a.m., the appellant entered her house, forced a bottle into her mouth, and raped her, that a struggle ensued, that after the rape the appellant demanded that the complainant perform oral sex on him, which she did for fear of bodily harm, and that the assailant thereafter took away the complainant’s mobile phone. PW1 went on to testify that the complainant later recognised the perpetrator, that the stolen phone was recovered from the appellant, and that a friend of the appellant had attempted to persuade the complainant to withdraw the case. The complainant herself never took the witness stand. She was not sworn, she was not examined in chief, and, most critically, she was not cross-examined. 4. The role of an intermediary is provided for under the **Vulnerable Witnesses (Protection) Rules, 2021** ,the **Evidence Act (Cap 80)** and the **Constitution**. An intermediary is appointed by the court to assist a vulnerable witness to give their evidence. The intermediary may communicate the questions of the parties to the witness and the witness’s answers to the court, ensuring the process does not intimidate or confuse the witness. 5. Despite the complainant having undergone mental examination and declared mentally challenged, the record does not show in the colloquial sense, that she was incapable of communication. She was able to speak coherently and to narrate a sequential account of the events that had befallen her to multiple individuals. PW3, Lilian Nduta Irungu, the complainant’s cousin, testified that when she saw the complainant on the morning of 24th July 2023, the complainant came to her and told her that the appellant had gotten inside their house at night, beaten her, raped her at about 1.00 a.m., and gone with her phone. PW4, Rosemary Nyambura Mwangi, testified that the complainant called out her name and told her that it was the appellant who had entered the house and raped her, and that upon being raped the assailant left after the complainant and her mother started screaming, and that he also stole her phone. PW5, Police Constable Muema, the investigating officer, testified that when the complainant reported the matter at the patrol base on the morning of 23rd July 2023, she told him that in the night of 22nd July 2023, George Mwangi Irungu broke into her house, removed her clothes, raped her, ransacked her house, and took away her Itel phone. Even PW1, the intermediary herself, had a one-on-one interaction with the complainant before coming to court. The complainant was plainly capable of giving an account of what had happened to her. Most tellingly, the complainant owned and used a mobile phone for her own communication. The charge sheet describes the phone as an Itel model IT 5081, blue in colour, valued at Kshs. 2,500/=. The phone was hers, not her mother’s, and she used it to communicate with others. This fact alone strongly suggests that the complainant was not so mentally incapacitated as to be incapable of giving evidence. She was capable of social interaction and independent functioning. I therefore find that the trial court therefore erred fundamentally by effectively silencing the complainant altogether and permitting PW1 to become a substitute witness, rather than adopting the correct course of allowing the complainant to testify with PW1 present to rephrase questions or explain them in a manner the complainant could understand, and to convey the complainant’s answers to the court as an intermediary witness. 6. **Article 50(2)(k) of the Constitution** guarantees every accused person the right to adduce and challenge evidence, and the right to cross-examine one’s accuser is the most powerful tool for challenging evidence and a fundamental aspect of a fair trial. **Article 50(7)** provides that where the Constitution requires information to be given to a person, that information shall be given in a language that the person understands, which includes the right to understand the evidence given against one and to respond to it. Under **Section 125 of the Evidence Act, Cap 80**, all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers by reason of tender years, extreme old age, disease, or whether of mind. The trial court did not conduct any proper *voir dire* or competency examination of the complainant before declaring her vulnerable and appointing an intermediary, and this omission alone was a serious procedural irregularity. 7. The **Vulnerable Witnesses (Protection) Rules, 2021, Legal Notice No. 210 of 2021,** provide a comprehensive framework for the protection of vulnerable witnesses while safeguarding the accused’s right to a fair trial. **Rule 4** defines a vulnerable witness as including a person with a mental disability. **Rule 10** provides for the appointment of an intermediary whose role is to communicate the questions of the parties to the witness and the answers of the witness to the parties. Critically, **Rule 10(3)** provides that the intermediary may explain the questions put to the witness to the extent necessary to enable the witness to understand them, and may communicate the answer of the witness to the extent necessary to enable the court and the parties to understand the answer. The intermediary is a conduit, not a substitute witness. 8. The importance of preserving the right of an accused person to challenge evidence was underscored in **Republic v Duncan Nyongesa Wekesa [2021] KEHC 2411 (KLR),** where the court stated that **Article 50(2)(j) and (k) of the Constitution** are intended to avert trial by ambush and to give an accused person the fullest opportunity to know the case he is facing, prepare for trial and mount a defence. The court further emphasized that evidence must be availed in such a manner that the accused is afforded an opportunity to cross-examine the witness on it. 9. Similarly, in **Ita & another v Republic [2025] KECA 167 (KLR)**, the Court of Appeal reiterated that Article 50 rights are couched in mandatory terms and that non-compliance with procedural safeguards touching on fair trial may be fatal to a conviction. Although that case concerned the closure of the defence case and the right to representation, the principle is applicable here: where a trial court conducts proceedings in a manner that deprives an accused person of a meaningful opportunity to participate in, answer, or challenge the case against him, the resultant proceedings cannot be said to meet the constitutional threshold of a fair trial. 10. I am alive to the fact that the law permits the protection of vulnerable witnesses. A**rticle 50(9) of the Constitution** expressly recognizes the need to protect victims and vulnerable witnesses. In **Republic v Bwanadi & 2 others [2023] KEHC 24000 (KLR),** the court observed that the protection of witnesses is important, but must be weighed against the non-derogable right of an accused person to a fair trial. Thus, protection of a vulnerable witness cannot be achieved by extinguishing the accused person’s right to challenge the evidence given against him. 11. In the present case, the procedure adopted by the trial court went beyond protecting a vulnerable witness. It effectively removed the complainant from the evidentiary process altogether and substituted her with PW1. PW1 did not witness the incident. Her evidence was confined to what the complainant allegedly told her. The appellant was therefore left to cross-examine a social worker on matters that only the complainant could answer. That procedure deprived the appellant of the opportunity to test the complainant’s perception, memory, credibility, ability to identify the assailant, the circumstances prevailing at the scene, and the alleged recovery of the phone. 12. This was not a minor procedural irregularity. The complainant was the central witness in the prosecution case. She was the only person who could directly testify on the entry into the house, the alleged attack, the alleged rape, the alleged theft, and the alleged identification or recognition of the appellant. The other witnesses largely gave evidence of what the complainant told them after the incident, the injuries observed, the medical examination, and the alleged recovery of the phone. Their evidence, however important, could not replace the complainant’s direct testimony. I therefore find that the manner in which the complainant’s evidence was received violated the appellant’s right under **Article 50(2)(k) of the Constitution** to adduce and challenge evidence. The violation went to the root of the trial and rendered the conviction unsafe. 13. Having reached that conclusion, I have considered whether the irregularity is curable under **section 382 of the Criminal Procedure Code**. In my view, it is not. The defect occasioned substantial prejudice to the appellant because it denied him the opportunity to challenge the evidence of the principal witness. The conviction was substantially founded on evidence that was not properly tested. The proceedings therefore occasioned a failure of justice. 14. I accordingly find that the conviction cannot stand. The remaining question is the appropriate remedy. In **Ita & another v Republic [2025] KECA 167 (KLR),** the Court of Appeal restated that where a conviction is vitiated by procedural violations, the court must consider whether the interests of justice require a retrial, bearing in mind whether a retrial would occasion injustice to the accused. In the present matter, the offence is serious, the defect arose from the manner in which the trial court received the complainant’s evidence, and not from a finding that the prosecution evidence was inherently incapable of sustaining a conviction. The witnesses are identifiable, and there is nothing on record to suggest that a retrial would be impossible. 15. Balancing the appellant’s right to a fair trial and the complainant’s right to access justice, I am satisfied that the appropriate order is a retrial. **Disposition**. 1. Consequently, the appeal succeeds. The conviction for robbery with violence contrary to s**ection 296(2) of the Penal Code i**s hereby quashed. 2. I order that the appellant be retried before a different magistrate. 3. The appellant shall remain in lawful custody and shall be produced before the Chief Magistrate’s Court at Murang’a Law Courts within fourteen (14) days from the date hereof for directions on the retrial. 4. It is so ordered. 5. Right of appeal 14 days. **DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 5TH DAY OF JUNE, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Angong’a/Velma Mr Ndege for the ODPP present online. Appellant present online.