https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10492

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CRIMINAL APPEAL NO. E093 OF 2022** **(CONSOLIDATED WITH BUNGOMA HCCRA NO. E096 OF 2022 AND E097 OF 2022)** **ALEX JUMA TABOI …………………….……………… 1ST APPELLANT** **CLEOPHAS NGEIYWO KITAIB …..………………. 2ND APPELLANT** **TIMOTHY KIPTANUI KITAI alias CHEPARAKACH ……………………………………………………………... 3RD APPELLANT** **-VERSUS-** **REPUBLIC ……………………………………….………. RESPONDENT** ***(Being an Appeal from the Judgement and Sentence delivered at the Chief Magistrate’s Court in Bungoma MC Criminal Case No. 1314 of 2018 delivered by Hon. C.A.S MUTAI (SPM) on 4th November 2022.)*** **JUDGMENT** 1. The Appellants herein were charged in the trial court, alongside three others, with four (4) counts of the offence of robbery with violence contrary to Section 296 (2) of the Penal Code, Cap 63 Laws of Kenya. The particulars of the charge were that the Accused persons, on 18th February 2018 in Saria village, Chepkurkur Sub-Location, Emia location, in Cheptais Sub-County, within Bungoma County, jointly with others not before the Court, while armed with dangerous weapons, namely AK 47 assault rifles and pangas, robbed one JAMIN CHEBOR of an unknown amount of cash and, at the time of such robbery, killed the said JAMIN CHEBOR. 2. The particulars of the second count were that on the 18th February 2018, in Saria village, Chepkurkur Sub-Location, Emia location, in Cheptais Sub-County, within Bungoma County, jointly with others not before the Court, while armed with dangerous weapons, namely AK 47 assault rifles and pangas, robbed DAVID KIRUI of cash Kshs. 6,000/= and a wallet containing his documents, and at the time of such robbery killed the said DAVID KIRUI. 3. The particulars of the third count were that on the 18th February 2018, in Saria village, Chepkurkur Sub-Location, Emia location, in Cheptais Sub-County, within Bungoma County, jointly with others not before the Court, while armed with dangerous weapons, namely AK 47 assault rifles and pangas, robbed FREDRICK NASIMIYU of cash Kshs. 558/= and, at the time of such robbery, killed the said FREDRICK WASIMIYU. 4. The particulars of the fourth count were that on the 18th February 2018, in Saria village, Chepkurkur Sub-Location, Emia location, in Cheptais Sub-County, within Bungoma County, jointly with others not before the Court, while armed with dangerous weapons, namely AK 47 assault rifles and pangas, robbed VERONE ROTICH KIBOI of cash Kshs. 300/= and, at the time of such robbery, killed the said VERONE ROTICH KIBOI. 5. The accused persons were arraigned before the trial court, where they entered pleas and denied the charges in the three counts. A plea of not guilty was entered in response to each accused person’s plea, and the matter proceeded to a full trial. The Prosecution called the evidence of nine (9) witnesses in support of their case. **THE PROSECUTION’S CASE** 1. PW1 (name not on record) testified that on 18th February 2018, while asleep at her house in the Sosio area with her husband, Fredrick Naibei, she heard three gunshots at midnight and then woke her husband. She stated that she heard someone running towards where they were, speaking in Kiswahili, and then they shouted, “Saulo”. She further testified that her husband asked whether the people were really police officers. Another person then asked her husband to wake up, and he responded, “Yes, sir”. He then dressed, and they told him to come outside with money. She further stated that the same voice that told her husband to open the door was the same voice that told him his witchcraft would come to an end. She further stated that when he opened the door, they shot him (her husband) in the arm, and he fell to the ground. 2. PW1 testified that the person who opened fire was standing at the door, carrying a gun, but she did not know the type of gun. She stated that he pointed the gun, and it hit her husband on the head while the other bullet went through his left cheek. She further stated that the man with the gun was a boda-boda rider on the Huruma Kipsigun route, known as Ngeiywo, whose father was known as Kiptai. She stated that she had known him for two years and pointed at him as the 2nd accused. 3. She further testified that their attackers came to where she was and asked her to remove all her charms/paraphernalia or risk being cut into pieces. She said there were five of them, but she could not identify them because they had covered their eyes. She also stated that they demanded money, and she gave them Kshs. 600/=. They also took her husband’s phone and identity card. They then asked her to cover his body and went to the kitchen, where they shone their torches, enabling her to identify the 1st accused, Chebarakach, from the bright torchlight. She further stated that the people were in her house for twenty minutes and that she did not know the 4th, 5th and 6th accused persons. 4. PW2 VK (name not on record) testified that on 18th February 2018, she was at home preparing dinner with her husband, Verone Rotich Kibor. They went to bed at 8.00 p.m., but at midnight he woke her, saying he could see a light from a torch. She stated that someone called her husband by his alias, “MAJENGO”, and asked him to open the door and go outside. She stated that her husband called them ‘officers’, but they said they were thugs and kicked the door open after hacking it. She stated that they fired shots at her husband’s head, and he fell and died. They then asked her for money and demanded any mobile phone. One of them then frisked her husband’s clothes and took a mobile phone. 5. It was PW2’s evidence that they also shot a cow with a gun and hacked four others with pangas, then told her to enter the house and raise an alarm. She testified that when they left, she went to her neighbour Cheburo’s house with her baby, explained what had happened, and that police officers came in the morning and took her deceased husband’s body away. She testified that she saw the people when they came to her house and was able to identify Ngeiywo as the one with the gun. She said she also identified Juma Taboi but could not identify the other suspect. She said Chebarakach was short and dark-skinned, not very dark, with a soft voice, while Ngeiywo was light-skinned, tall, with a deep voice. 6. She told the court that the suspects took a radio, a mobile phone, a solar panel and Kshs. 3,000/= from her husband and were armed with pangas and a gun. She said the incident took place at midnight and that they walked with a d-light, which was bright enough for her to see clearly. She stated that she knew the accused persons from before, as they used to pass through her piece of land. 7. PW3, SM (name not on record), testified that on 18th February 2018, at 10.00 p.m., she was at her house with her husband, Moi Burumbi, when she heard a gunshot. She stated that she kept quiet, heard an alarm from the neighbour’s house, Jamin Chebor, and then saw a torchlight at her door. She then heard a knock and someone shouting “fungua” (open). When she opened the door, she saw people who asked her where her husband was, but she kept quiet. She stated that they threatened to kill her, and then Ngeiywo asked her to keep quiet or else they would shoot her. She stated that he went inside with a bright torch, which lit the house, and announced his presence to his accomplices, whom he referred to as ‘officers’. 8. She testified that the said people shot her husband three times and hacked him with a *panga* on the head while the other suspect cut him into pieces. It was her evidence that she snuck away and hid in the maize plantation and afterwards, the men said they were headed to the home of Juma Jannah. This was about 1.00 am. when PW3 went back to the house and found her husband dead. That at 4.00 a.m. she raised an alarm and members of the public came. PW3 reiterated that she heard the men say that they were headed to the home of Jannan Kibor and that before they came to her house, they had come from the same home of Jannah Kibor and were going back to the same homestead. She said that that they were speaking in ‘*Kisabaot’* (Sabaot language). 9. PW3 said that Ngeiywo was black but not very dark, with a deep voice and that she also saw Cheparakach who was light-skinned, medium height. She stated that she went Kipsison Police Station where she made a report. 10. PW4 No. 216047, Assistant Superintendent of Police Kennedy Limera stated that he served as the DCIO for the Mount Elgon area for two years, during which there were several cases of robbery with murder organised by a criminal gang. He stated that, through intelligence reports, they learned that the 1st Accused and his brother, the 2nd Accused, were leading the criminal groups. He stated that the crimes were taking place within the Cheptais area and spilling over into the Kimilili area, Sirisia and Chwele, so they commenced investigations. 11. PW4 stated that they discovered other members of the gang had been recruited, with some of them living in Uganda, so they formed a multi-agency team to track them. They also declared a curfew within Cheptais sub-county, but the gangsters disappeared into Uganda. They then sent a team to Uganda, where they arrested the 3rd Accused, Alex Juma Taboi, alias Juma Taboi, because he had allegedly committed robberies in the Mount Elgon area. They went and picked him up from Swan Police Post in Uganda. 12. PW4 gave evidence that the 3rd Accused was brought to Mount Elgon for interrogation and then taken to the Senior Principal Magistrate’s Court at Kimilili, where his statement was recorded by the Multi Agency team. The others then began surrendering. He further gave evidence that Accused Nos. 4, 5 and 6 surrendered in separate places within Cheptais, after which they were interrogated by the DCIO Chaptais. 13. He further testified that the 1st Accused surrendered himself in Eldoret, was picked up by the Flying Squad, then escorted to Nairobi, where he was bonded at the ICD Internal Container Police Station. 14. PW4 said the 2nd Accused, Cleophas Ngeywo Kitai, surrendered at the Kericho police station and was escorted by Flying Squad Police Officers to Nairobi, where he was booked at the JKIA Police Station. PW4 and his counterpart, the DCIO in Cheptais, were summoned to Nairobi to assist in the investigations, where they found the suspects who had surrendered. Although they never met the two suspects, they were given their photographs at the briefing. He stated that they had compiled several files involving robberies and murders committed by the suspects. 15. PW4 continued to testify that on 17th May 2018 at 1420Hrs, he went to the Inland Port Police Station in Nairobi, where the 1st Accused had been detained. After introducing himself, he told the suspect that anything the suspect said could be used in a court of law. He said they spoke on friendly terms, and the suspect explained the reason for his surrender. He also stated that he allowed the suspect to choose the language to be used, and then recorded the information. He later read it to the suspect and invited him to sign the statement, but the suspect changed his mind and declined to sign, stating that what he had said was what he knew. PW4 produced the statement (P.Exh1), which was recorded on 17th May 2018 at 1429Hrs at the Inland Port Police Station. 16. PW4 stated that on 20th May 2018 at 1030Hrs, he proceeded to JKIA Police Station, where the 2nd Accused, Cleophas Ngeywo Kitao, was detained. After introducing himself, he interviewed him and invited him to record a statement. He gave him the same caution that the statement could be used as evidence in a court of law, and that they spoke in Kiswahili, which he reduced to English. He asked the suspect whether he was under any duress, and the suspect confirmed that he had offered to give his statement voluntarily. He reduced this into writing and invited him to sign the same. PW4 produced the statement as P.Exh2. He added that the statements involved robberies and murders that had occurred within the Mount Elgon region between 29th June 2017 and 22nd February 2018, in which the two accused persons were involved. 17. PW5 Dickson Onyango, a Chief Magistrate at Kimilili Law Courts, identified the statements made on 12th March 2018, which he wrote after explaining to Alex, the 3rd Accused, that the statements were necessitated by the investigations being conducted by the police in respect of a robbery with violence case which occurred at Kashok sub-location in Namorio sub-location in Mount Elgon. 18. PW5 stated that it was alleged that the accused, while in the company of others, robbed one Silas Chemoge Bolyan, who was fatally shot. He then explained to the suspect that the police had information that would assist their investigations and asked whether the suspect had anything to state, cautioning him that he was obliged to remain silent and that anything said could be recorded and used against him in a court of law. PW5 also asked the suspect whether he wished to have a representative, and he requested that one of their staff members, William Lupomoi, be present when he narrated what happened in February 2018. 19. PW5 continued to testify that he reduced the suspect’s narrative to writing and that the suspect thumb-printed each page of what was recorded, and that he was not under duress or compulsion, and PW5 produced the same as P.Exh2. 20. PW6 Dr. Aaron Obongi testified that he was attached to the Bungoma Referral Hospital, held a Bachelor of Medicine degree from the Karanzen University in Ukraine (registration No. A8607), and had the post-mortem reports of Jamin Chebor Vincent, David Kirui Birobi, Fredrick Yembor and Vintone Rotich Kiboi. 21. He stated that the post-mortem examination for Jamin Cheboi occurred on 2nd March 2018 where he found from the external appearance that the head had been decapitated with deep cut wounds on the right upper limb, shoulder at the writs joints measuring 5x10 cms; a cut wound on the left foot, a fractured ankle joint and multiple cuts on his back. On his internal appearance, there was decapitation, the respiratory system was totally punctured leading to lung collapse, with an injury to the neck vessels due to the decapitation. He stated that the cause of death was multiple head injury which was secondary to multiple cut wounds. He signed the report on 2nd March 2018 and produced it as P.Exh4. 22. PW6 conducted a post-mortem on David Kirui Birobi on 2nd March 2018. He noted multiple facial injuries secondary to cut wounds and a fracture of the parietal lobe region. He also noted fractures of the left femur, tibia and fibula, with cut wounds, and a bullet in the left shoulder region, which was the entry point, exiting at the lumbar region (back). On internal examination, he observed that the penetrating bullet had passed through the left lung, leading to massive haemothorax, and that there were multiple skull fractures. He concluded that the cause of death was severe head injury and produced the report, which he signed on the same day as P.Exh5. 23. PW6 conducted the post-mortem on Vintone Rotich Kiboi, who had deep cut wounds to the posterior neck and a clavicular fracture extending to the distal left arm. Internally, there was a deep cut wound affecting the spine and compressing the spinal cord. He stated that the cause of death was severe head injury with neurogenic shock secondary to assault. He signed the report dated 2nd March 2018 and produced it into evidence as P.Exh6. 24. PW6 stated that his colleague, Wafula, who was away pursuing a master’s degree at Moi Teaching and Referral Hospital, completed the 4th Report in respect of Fredrick Chembien on 27th February 2018. He confirmed that he was familiar with Dr. Wafula’s handwriting and signature, and testified that the external findings included a wound on the posterior aspect of the right cheek, an exit wound on the right side of the chest, and a swollen scrotum. From the internal appearance, they observed a perforated liver, a right-sided haemothorax, and multiple fractures of the scalp. He further testified that the cause of death was severe head injury with multiple organ injury secondary to a bullet wound involving the head, abdomen and thorax. He produced the report P.Exh 8 (there is no P.Exh 7). 25. PW7 No. 76900 PC Nelson Ratemo testified that he was attached to the Kimilili DCIO’s office, performing general duties, and that in August they were informed through their intelligence of several robbery reports within Bungoma County, with the perpetrators in possession of an AK47 rifle. He stated that they intensified their patrols and, on 10th August 2018 at around 2000hrs, while on patrol along Kimilili Chesamis road, they encountered 4 thugs on a motor bike. They asked the thugs to stop, but the thugs continued towards them. Three of them were fatally injured, and an AK47 rifle, Serial No. UG09441999, a heavy hammer, and 56 live ammunition with all spent cartridges were recovered from the scene. 26. PW7 stated that he took the rifle and spent cartridges for ballistic examination, as per his Exhibit Memo dated 15th August 2018, and later collected the results, which indicated that the AK 47 rifle had been used to commit several offences since 2018 within Bungoma, as demonstrated by the report dated 28th August 2018. He stated that the rifle was listed in a case before the court, as per the Ballistic Report Serial No. 16 DCI Cheptais Police Serial No. 91A/24/2018. He produced the rifle as (P.Exh 8a) and the two magazines (P.Exh 8b). 27. PW7 also testified that there were a heavy hammer and cartridges before the courts in Sirisia, together with live ammunition. He stated that he presented the exhibit Memo to the Ballistic Examiner at the CID Headquarters in Nairobi and received a report dated 23rd August 2018. The Memo Form and the report were produced as P.Exh 9. 28. PW8 No. 236353, APC Abdi Jillo, attached to the Kanduyi Police Division Headquarters in Bungoma South, testified that on 9th March 2018 at around 0600Hrs, while on patrol within Bungoma town, they received a phone call from their Chief Whip, Gabriel Masiga, informing them that he had received a call from a Border Intelligence Security Officer from Uganda, who told him that they had arrested one suspect, namely Alex Juma Jamin Taboi. He stated that they received this report from the Kenya Government Security Officers through coordination of the two governments (Kenya and Uganda), which revealed the hideout of the criminals who were killing and terrorising people in the Mount Elgon region. 29. He stated that they arrested the 3rd Accused, Alex Juma Taboi, who was detained at the Bukwa Police Station in Uganda. That the 3rd Accused was handed over to them by the Immigration Officer, and they later escorted him to the Mbale Police Station in Vihiga County. PW8 stated that they received the suspect from the Uganda Police Station, and he communicated with the DCIO Mount Elgon for further investigations. 30. PW9 No. 228069, APC Stevon Etugu, stationed at the Bungoma Sub-County Headquarters in Bungoma, testified that he performed intelligence operations duties. On 9th March 2018 at around 0600Hrs, while on Mobile Patrol duties within Bungoma Township with his colleagues, Corporal Kisarom, APCs Abdi and Odera, they were informed by their boss, Chief Inspector Gabriel Maasai, that he had received information from the Border Intelligence Security of Uganda that they had arrested the 3rd Accused, Alex Juma, who was suspected to be one of the criminals terrorising members of the public in the Mount Elgon area. PW9 stated that the said accused was booked at the Bukwa Police Station in Uganda, from where they picked him, after passing through the Shaam Border Post. 31. PW9 testified that members of the public at the border were baying for his blood, so they were ordered by their bosses to escort him to Mbale Police Station in Vihiga County for security reasons. He was booked there for further investigation. 32. At the close of the Prosecution’s case, the trial court found that the six accused persons had a case to answer, placed them on their defence, and they all elected to tender sworn evidence without calling witnesses. **THE DEFENCE CASE** 1. Since the Appeal concerns the 1st, 2nd and 3rd Accused persons, who are the 3rd Appellant, 2nd Appellant and 1st Appellant, respectively, in this appeal, I will set out only their defence. 2. The 1st Accused person/3rd Appellant, Timothy Kiptanui Kimutai, testified that he hailed from Chemandai Bargotiny sub-location in Kpasaro Chepkis sub-county. He further stated that he was a farmer and a businessman, and that he knew Justine Chebot as a fellow farmer. He stated that on 18th February 2018, at night, he was at his home in the company of his family, and on 1st February 2018 he was informed of a robbery that had taken place in a neighbouring village, so he visited the scene. He stated that he assisted in carrying the deceased’s body into the police vehicle and that, with the police officers, they felt the thugs would return. He further stated that they were later arrested after he had been mentioned adversely, but he denied committing the offence. 3. The 2nd Accused/Appellant, Cleophas Ngeywo Kinai, testified that he was from Cherwalany village in Ongotil sub-location, and that he was a farmer and a boda-boda rider. He stated that on 1st February 2015, he was at home with his wife at night and that he knew Jamiar Chebon, whom he used to carry on his motorcycle. He stated that he went to Koponga, and after dropping his passengers, police officers suddenly arrested him and took him to Serian. He stated that the GSU police officers came to where he was, arrested him for half an hour, and then asked him to carry the body to where the police vehicle was. He testified that he was later asked to go to the police station, where he was paid, and that on 6th March 2022 he was arrested by police officers when his name was mentioned adversely. He denied committing the offence. 4. The 3rd Accused/1st Appellant, Alex Savina Taro, testified that he was from Sereto village, Kubra sub-location, Chebuyu location, in Kipsirio division. He stated that he was a farmer who kept livestock and denied knowing Jamiar Chebon. He further testified that on 18th February 2018 he was at his home with his wife, and on 17th September 2018 he was at his 1st wife’s home, by the name Evelyne Temula Massau. He stated that his 2nd wife is Violet Chepkemoi Sude. He further stated that they went to Bakwa in Uganda, where they had been summoned, met police officers from Kenya, and that he was arrested and has remained in custody to date. 5. At the end of the trial, the 4th, 5th and 6th Accused, namely Robin Jikwicha, Aaron Kimutai Sichak and Samuel Kipsang, were acquitted of the four counts of robbery with violence, but the 1st, 2nd and 3rd Accused, namely Timothy Kiptanui (3rd Appellant/DW4), Cleophas Ngeiywo (2nd Accused/DW2) and Alex Juma Taboi (1st Appellant/DW6), were convicted of the four counts of robbery with violence. The trial court sentenced each of them to death by hanging on each count, but kept counts 2 to 4 in abeyance pending execution of count 1. **THE APPEAL** 1. Aggrieved by this decision, the Appellants filed a Petition of Appeal on 28th November 2022 against both conviction and sentence, in which they raised six grounds of appeal. Subsequently, they filed a joint amended grounds of appeal on 23rd April 2025 raising eight grounds against the sentence and conviction, then later filed another amended homemade Grounds of Appeal reproduced below as follows: - 2. **THAT, the learned trial magistrate court faulted in the points of law and facts by relying on Extra Judicial Confession to convict appellants herein in all 4 (four) counts without corroboration of any other evidence. And also erred in law by failing to note that, extrajudicial confession was declared unlawful by the Court of Appeal at Nairobi. The confession statements were also contrary to section 25(a) cite in KANINI MULI-VS-REP. CR. APPEAL NO. 233 OF 2007 AT NAIROBI COURT OF APPEAL (supra) JUDGMENT DELIVERED DATED 24TH DAY OF JANUARY 2014. Coram. KIHARA KARIUKI, PCA, MUSINGA & MINOTI. J.J.A. Thus, this hon. Court be pleased to allow this appeal in its totality by setting appellants at liberty.** 3. **THAT, the learned trial magistrate court erred in the points of law and fact by convicting and sentencing the appellants herein in all four (4) counts without observing that the prosecution failed to prove beyond reasonable doubt that appellants herein are guilty in those counts.** 4. **THAT, the learned trial magistrate erred in points of law and facts by failing to observe that identification through recognition in all 4 counts failed when PW1 and PW 2 plus also PW3 failed to properly mention the names of the Appellants herein at the time when they were reporting their first report. Reference is made in Tanzanian case law of MARWA WANGITI MWITA AND ANOTHER-VS- REP. CR. APPEAL NO. 6 OF 1995 (unreported) but framed somehow differently, the court stated: "the ability of a witness to name a suspect at the earliest opportunity is an important assurance of his reliability, in the same way as unexplained delay of complete failure to do so should put a prudent court to enquiry." See also in our Kenyan jurisprudence in: ALEX WENUA CHITUNO-VS- REPUBLIC, CR. APPEAL NO. 97 OF 2020 (2023) EKLR. (CORAM: MURGOR, KANΤΑΙ & NGENYE-MACHARIA, J.J.A)** 5. **THAT, the learned trial magistrate court erred in the points of law and facts by failing to note that, the entire trial was mistrial and unfair when the trial court denied appellants herein a right to cross-examine PW1, PW2 and PW3. This was contrary to the Criminal Procedure Code Cap 75 Laws of Kenya. See BUKENYA AND OTHERS -VS- UGANDA (SUPRA) current section 150 of the C.P.C. Thus, this Hon. Court be pleased to allow these appeals by setting aside death penalty imposed on all four counts, quash, conviction therein and proceed to set us at liberty.** 6. **THAT, the court below erred in the points of law by failing to properly evaluate the entire prosecution evidence. Cite MOHAMMED WEKESA MUSUMBA V.R (2010) eKLR.** 7. **THAT, the learned trial magistrate court erred in the points of law and facts by convicting and sentencing the appellants herein death penalty in 4 counts without observing that, the prosecution evidence inconsistent and contradictory.** 8. **THAT, the learned trial magistrate court erred in the points of law and facts by failing to note that, the prosecution case was not proved beyond reasonable doubt as it was stated in REPUBLIC-VS- LIFCHUS (1997) 3 SCR 320 para. 5 in the Supreme Court of Canada. Thus, this Hon. Court be pleased to construe the benefits of doubts observed in the prosecution case as discussed herein above and proceed to set us at liberty unless otherwise lawfully detained.** 9. **THAT the learned Magistrate erred in points of law and facts by failing to invoke the jurisdiction of Section 200 (3) of the Criminal Procedure Code, Cap 75 Laws of Kenya, PW1, PW2 and PW3 were proceeded before the coram of Hon. C.A.S. Mutai (SPM) while PW4 No. 216047 ASP Kennedy Limetra and Dr. Obongi attached to Bungoma Referral Hospital who produced the post-mortem report were heard by Hon. J. King’ori (CM) dated 21/05/2019 see page 36-50. Thus this honourable court be pleased to set the Appellants herein at liberty.** 10. The Appeal was canvass it by written submissions. **THE SUBMISSIONS** 1. The Appellants filed joint submissions in which they alleged that they were tortured at various police stations to extract confessions, which they vehemently deny. They argue that the confessions violate Sections 25(a) and 26 of the Evidence Act Cap 80 and Articles 49(1) and 50(1) of the Constitution, as they were made without the presence of a chosen third party, adequate language assistance, or safeguards against self-incrimination. They cited the cases of Rex v Nnata s/o Mdimi (1944-1946) EA 83 and Nayinda s/o Batungwa v R (1959) EA 688, in which the court treated the confessions adduced into evidence as extrajudicial confessions. They also cited the case of Kanini Muli v R. 2. The Appellants submitted that the Prosecution’s case was marred by inconsistencies and contradictions. They stated that PW4, the Investigating Officer, gave conflicting testimony across different criminal cases, including Criminal Case No. 745 of 2018 at the Bungoma CM’s Court, on whether the 3rd Appellant actually confessed or refused to record a statement. They also pointed out that the Chief Magistrate (PW5) recorded a statement that referenced an entirely different complainant, Silas Chemoge, and different locations for the commission of the offence, which did not match the actual charges in this case and the alleged complainants, namely Jamin Chebor, David Kirui, Fredrick Nasimiyu and Verone Rotich Kiboi, in Chepkurkur. They urged the Court to dismiss the 2nd Appellant’s confession. 3. It was their submission that the Prosecution failed to prove the four (4) counts beyond reasonable doubt. In particular, under count 1, it was submitted that there were no eyewitnesses. The primary witness, PW3, was not at the scene during the incident and failed to name or provide accurate descriptions of the Appellants in the initial police report recorded in the Occurrence Book/OB entry. 4. On count 2, the Appellants submitted that there were serious material contradictions between the witness testimony and the charge sheet. PW1 named her deceased husband as Fredrick Naibei Chembenti and stated that Kshs. 600 was stolen, whereas the charge sheet lists the deceased as David Kirui and the stolen amount as Kshs. 6,000/=. On count 3, the Appellants point out that the Prosecution failed to present a single witness or provide any legal basis for this charge. Lastly, on count 4, the identification evidence by PW2 was unreliable, uncorroborated, and lacked vital descriptions in the initial report. They relied on the cases of Alex Weinua Chetumo v Republic and Maitanyi v R (1986) eKLR on the issue of identification. 5. The Appellants argue that the purported identification by PW1, PW2, and PW3 did not meet the legal threshold for recognition, as none of the witnesses mentioned the Appellants' names or provided any recognisable descriptions in their first reports to the police or to the neighbours who came to their immediate aid. 6. They also raised the issue of a breach of the right to a fair trial. They stated that the trial court allegedly locked them out by proceeding in their absence and by concealing witnesses. It is contended that by denying the Appellants their constitutional right to cross-examine PW1, PW2, and PW3, the trial magistrate caused a grave miscarriage of justice, rendering the entire process a mistrial under Article 25(c) of the Constitution. They cited the cases of Gailod Yabwesh Landi v R, Cr Appeal No 26 of 2018, at the Court of Appeal in Mombasa, and Bukenya and Others vs. Uganda. 7. The Petitioners also argued that the firearm evidence was mis-evaluated because the Prosecution introduced an AK-47 rifle linked ballistically to the crimes. However, this weapon was recovered by the police during a shootout in which the actual suspects were killed, an incident that occurred 4 months after the Appellants had already been arrested and detained in prison. They further argue that no fingerprints or other physical evidence connected them to the exclusive possession or use of the weapon. 8. Lastly, the Appellants submitted that there was non-compliance with Section 200(3) of the Criminal Procedure Code because the trial was conducted interchangeably by two different magistrates. They argued that the trial court never informed them of their right to recall witnesses who had testified before the previous magistrate. They cited the case of Elijah Videgede George v Republic, Cr Appeal No. E050 of 2022 (2020) KEHC 1750 (KLR), in support. 9. They urged the Court to re-evaluate the evidence, quash all convictions, set aside the death penalties, and order their immediate release on account of the fatal legal and factual errors. 10. The Respondent filed its submissions dated 13th March 2025 where Counsel cited the case of ***Okeno v Republic (1972) EA, Felix Kinyanya Maroko v R, Migori HCCRA No. 102 of 2014*** as well as ***Kiilu and Ano v Republic (2005) 1 KLR*** for invoking the jurisdiction of the first appellate court. 11. Counsel submitted that the Prosecution adduced evidence from 14 witnesses in total to prove its case against the Appellants, including eyewitness identification by recognition. PW1 (Incognito) testified that on 18th February 2018, a gang of five armed men, armed with a gun and pangas, broke into her house, demanded money, and shot her husband, Fredrick Naibei, who died of his injuries. She stated that, under bright torchlight during an ordeal lasting 20 minutes, she positively identified the 2nd and 3rd Appellants by recognition. She also stated that she knew the 3rd Appellant’s father. 12. Counsel submitted that PW2 (Incognito) also gave evidence that the gang broke into her house, shot and killed her husband, Verone Rotich Kiboi, and stole cash and electronics. Relying on a bright solar light, she positively identified the 1st and 2nd Appellants, stating that the 2nd Appellant was armed with a gun. 13. Further, PW3 (Incognito) also positively identified all three Appellants as members of the gang that attacked her home, shot her husband, Moi Burumbi, and hacked him to death. 14. Counsel submitted that there were confessions and admissions on record. PW4, the DCIO of Mt. Elgon, testified about the arrests and produced a confession by the 3rd Appellant linking all Appellants to the offences. He further submitted that PW5, the Chief Magistrate at the Kimilili Law Courts, produced the 1st Appellant’s recorded confession into evidence, directly connecting him to all charges, while the 2nd Appellant, Cleophas Ngeywo, also had an admission accepted into evidence, which he did not disown during his defence. 15. It was further submitted that the Medical Evidence adduced by PW6, Dr. Aaron, comprised post-mortem reports confirming the gruesome deaths of the victims due to severe head injuries, multiple cut wounds and gunshot wounds. The defence did not object to these reports. It was further submitted that PW7, PC Nelson Ratemo, confirmed the recovery of an AK-47 assault rifle, Serial No. UG.09441999, following a shootout with criminals, whose ballistic report linked it to the crimes in question. 16. It is submitted that PW8, APC Abdi Jillo, and PW9, APC Steron Etugu, confirmed that the 1st Appellant fled to Uganda and was re-arrested at the border through intelligence cooperation between the two countries, and was escorted back to the DCI offices at Mt Elgon for investigation through the immigration office. 17. Counsel further set out the defences advanced by the Appellants during the defence case and submitted that they (the Respondent) agreed with the trial magistrate’s findings that the gruesome attacks had been committed, resulting in the deaths of four individuals, a fact that was undisputed. It was submitted that the link between the three Appellants and the crimes was firmly established. It is their position that identification was deemed highly reliable because it was by recognition, as the witnesses knew the Appellants beforehand, and it occurred under sufficient light conditions. 18. Counsel finally submitted that the sentence of 25 years' imprisonment is lawful and should be upheld without interference, citing the extreme gravity of the charges, which resulted in four deaths, and the fact that the Appellants were repeat offenders with previous convictions. 19. The Appellants then filed rebuttal submissions dated 10th December 2025, in which they acknowledged that a tragic incident occurred but firmly contested the Respondent’s submissions on four grounds. Firstly, they were not arrested at the scene, and no items belonging to the victims of the deceased were recovered from them. Secondly, the conviction was premised on a flawed visual identification because the attack occurred in total darkness and PW1 admitted that the attackers wore face masks, making visual identification impossible. Thirdly, it was submitted in rebuttal that prior knowledge does not automatically prove that someone committed the crime, and in this case PW2 only saw a brief image in the dark. Lastly, the voice identification was unreliable, as PW2 relied on it. The Appellants submitted that voices can sound similar, leading to easy confusion, and that in this case no official voice identification parade was ever conducted. 20. The Appellants point out an error in the Respondent’s submissions, namely that the Respondent is serving a 25-year term, yet it is clear from the record that the trial court under Hon. C.A.S. Mutai actually sentenced them to death by hanging. 21. The Appellants referred to Sections 309 and 350(2) of the Criminal Procedure Code and stated that the entire trial was fundamentally a mistrial due to severe procedural and constitutional violations under Article 50 of the Constitution. They stated that their pleas were taken in their absence and that they were never informed of their constitutional rights. They further stated that the prosecution failed to serve them with the intended evidence, witness statements, or the investigation diary in a timely manner to allow them to prepare a proper defence, and that the trial was conducted in their absence when they were excluded from the courtroom at the point when PW2 and PW3 adduced critical testimony against them. 22. They also submitted that they were completely prevented from cross-examining PW2 and PW3, and that the testimony of an unknown female witness was fraudulently entered under PW2’s sworn evidence record. 23. They reiterated material non-compliance with Section 200 of the CPC, asserting that multiple trial magistrates, including Hon. J. King’ori, handled the matter interchangeably at different stages, thereby violating their right to a fair administrative trial under Article 47 of the Constitution. They cited material contradictions in the Prosecution’s case, noting that PW1 repeatedly shifted her testimony. She first claimed to have identified the suspect, then stated she could not identify them, and later contradicted herself on whether the attackers wore masks or whether she knew the 3rd accused. 24. The Appellant stated that the court record showed witnesses were actively shouting and physically hostile in court, so their evidence should have been legally disregarded. The Appellant further stated that the Investigating Officer, PW4, compiled files before their arrest, indicating an advance bias to frame them. Furthermore, PW5 interrogated the 1st Appellant regarding an entirely unrelated murder case involving Silas Chamonge Bolyan from Kashok location and wrongfully used it to secure a conviction in this case. 25. It was also contended that Dr. Hesbon Wafula never appeared in court to give evidence, but instead another person presented his findings, thereby preventing the defence from cross-examining the medical expert. On the issue of the firearm, it was submitted that the AK-47 rifle, used as a key exhibit, was recovered during a shootout on 10th August 2018, in which other thugs were killed, long after the Appellants were already securely locked up in custody. 26. They urged that, since the evidence was illegally obtained, highly contradictory, and processed through a heavily biased trial that violated the Constitution, the convictions be quashed, the death by hanging sentence be set aside, and they be set at liberty. **ANALYSIS AND DETERMINATION** 1. The duty of a first appellate court is to re-evaluate the evidence adduced and come up with its own independent decision . In the case of **Patrick Analo & another v Republic [2019] KECA 162 (KLR),** the Court of Appeal in Kisumu held thus:- ***“To the extent that we are dealing with a first appeal, we are obliged to re-evaluate the evidence and come to our own independent conclusion. This Court expressed that duty as follows in Attorney General & 2 Others v. IPOA & 2 Others, CA. No. 324 of 2014*** ***“On our part, as a first appellate court, it is not lost on us that we have the duty, and responsibility to re-evaluate the evidence adduced before the High Court and arrive at our own independent decision. This re-evaluation is not merely a rehashing of the evidence or findings of the trial court. It entails reconsidering the evidence afresh with a clear mind devoid of any influence from the findings of the trial court. This is as required of us under Rule 29(1) (a) of this Court’s Rules and as we have variously stated in a litany of decided cases.”*** 1. From the evidence and rival submissions, I find the following main issues for my determination: - 2. *Whether the case constitutes a mistrial.* 3. *Whether the Prosecution proved the offences to the required standard.* 4. **Whether the Case constitutes a Mistrial?** 5. The Appellants argue that their right to a fair trial was violated and that certain procedural safeguards were not observed at the trial court. Firstly, the Appellants contend that their right to a fair trial and to fair administrative action was protected for several reasons, including the trial court's failure to afford them legal counsel or to inform them of their right to legal counsel. 6. Article 50 (2) (g) of the Constitution guarantees every accused person the right to a fair trial, which includes the right to choose counsel. This right is non-derogable and requires that such information be promptly given to the accused person at the onset of the trial. This right is further encapsulated in the Legal Aid Act, which, in Section 43 (1) (a), stipulates that:- (1)A court before which an unrepresented accused person is presented shall— (a)promptly inform the accused of his or her right to legal representation. 1. From my perusal of the trial record, I note that the trial magistrate failed to inform any of the Appellants of their right to legal representation.In David Njoroge Macharia v Republic [2011] eKLR, the Court of Appeal stated that: - ***“Under the new Constitution, state funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result (emphasis added). Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore, provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory. We are of the considered view that in addition to situations where “substantial injustice would otherwise result”, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided. The reasons are that, firstly, the provisions of the new Constitution will not apply retroactively, and secondly every case must be decided on its own merit to determine if there was serious prejudice occasioned by reason of such omission.”*** 1. In Republic v Karisa Chengo and 2 others [2017] eKLR, the Supreme Court expressed that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but that “in accordance with the language of the *Constitution*, **this particular right is not open ended.** It only becomes available “*if substantial injustice would otherwise result*”. The Supreme Court went on to say that the right to legal representation is not limited to cases where the accused person is charged with a capital offence; that the operative words in Article 50 (2) (h) are “*if substantial injustice would otherwise result….*” and that “*the protection embedded in Article 50 (2) (h) goes beyond capital offence trials*”. 2. My view is that failure to inform the accused of their rights, including the right to legal counsel, constitutes a fundamental breach. However, the breach is assessed on a case-by-case basis. Where the evidence shows that the accused followed the proceedings and cross-examined extensively, the breach will not affect the prosecution's case, and the particular right is not open-ended. (see the authorities cited above) 3. The second ground for a mistrial is that the Appellants argued that the trial court failed to comply with Section 200 of the Criminal Procedure Code. Section 200 provides as follows: **200. Conviction on evidence partly recorded by one magistrate and partly by another** 1. **Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—** 2. **deliver a judgment that has been written and signed but not delivered by his predecessor; or** 3. **where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or resummon the witnesses and recommence the trial.** **[Act No. 13 of 1982, First Sch., Act No. 11 of 1983, Sch.]** 1. **Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercises that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment.** 2. **Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.** 3. **Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.** 4. The provisions require that when a trial is taken over by a succeeding magistrate, the accused must be informed of their right to demand the recall of witnesses for cross-examination or re-hearing. Failure to comply with these requirements also requires the court to consider whether any prejudice has been occasioned to the accused by the trial court's failure to inform them of this right. In Ndegwa vs. Republic [1985] KLR 535, the Court held thus: - ***“No rule of natural justice, no rule of statutory protection, no rule of evidence, and no rule of common sense is to be sacrificed, violated, or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosanct individual in the system of our legal administration.”*** 1. The provisions of Section 200 are mandatory, and their non-compliance renders proceedings defective and nullifies an entire trial. In Joseph Kamora Maro vs. Republic [2014] KECA 66 (KLR), the Court expressed itself in this regard thus: ***“The position in law is that a trial Magistrate taking over a case that is partly heard is mandatorily obligated to inform an accused person of his right to recall witnesses. After an accused person has been informed of his right, he/she may elect to have the witnesses recalled. What happens thereafter is for the court to decide depending on the availability of witnesses, the length the trial has taken, because if it has taken too long, chances are that some witnesses may have left the jurisdiction of the court as was the case here or some may even have died. To this extent we are in agreement with the learned Judges of the High Court that “this provision does not oblige the succeeding magistrate to start de novo” but what is mandatory is to inform an accused of his right under section 200 (3) of the Criminal Procedure Code.”*** 1. The purpose of the said provisions was well laid out in **Joanes Oketch Ongoro vs. Republic [2014] KECA 63 (KLR)** as follows: - ***“It is not difficult to see the raison d’etre for the provisions of section 200 (3) of the Criminal Procedure Code. A trial court unlike an appellate court, is seized of an opportunity to assess the demeanour of witnesses and come to the conclusion of their trustworthiness or otherwise. A Magistrate who takes over a trial mid-way, has clearly not had the benefit of seeing the witnesses. The law imposes an obligation on the trial court to inform an accused person of his right to recall witnesses in respect of a Magistrate who takes over a trial. That right however, may be waived by an appellant but unless and until an accused is advised accordingly, the court cannot presume that an accused has waived his right to recall witnesses.”*** 1. Therefore, failure to inform an accused person of this right renders the trial a nullity or a mistrial. The Court of Appeal in Richard Charo Mole vs. Republic [2010] KECA 400 (KLR) was succinct on this point, stating as follows: ***“The trial in this case was not a short one as the first trial magistrate had heard ten prosecution witnesses whose credibility and personal demeanour she had observed. Section 200 (3) (supra) requires in mandatory tone that the succeeding magistrate shall inform the accused person of the right to demand a recall of any or all witnesses to be reheard by the succeeding magistrate. The duty is reposed on the court and there is no requirement that an application be made by the accused person. The failure to comply with that requirement would in an appropriate case render the trial a nullity. In the case before us, we agree with both Mr. Kenyariri and Mr. Kaigai that the omission to comply with the section was grossly prejudicial to the appellant and the trial was thus vitiated.”*** (See also **FWN vs. Republic [2017] KECA 491 (KLR)**), 1. In the present case, the Appellants were heard before two trial magistrates, namely Hon. C.A.S Mutai, who took over the matter after Hon. Mogute took a plea. Midway through the trial, after PW1, PW2 and PW3 had testified before Hon. Mutai, Hon. J. King’ori, Chief Magistrate, took over the conduct of the matter from 21st May 2019 and recorded the evidence of PW4, ASP Kennedy Limera; PW5, Hon. Dickson Onyango, the Chief Magistrate at Kimilili Law Courts, who recorded the 1st Appellant’s statement; and PW6, Dr. Aaron Obongi. There is no indication on the record that Section 200 was complied with. At the same time, it is not clear to this Court why Hon. King’ori opted to proceed with the hearing when Hon. Mutai was still presiding over the matter. The record indicates that Hon. Mutai took over the case from Hon. King’ori on 3rd July 2019, and even then, no action was taken by the court to inform the Appellants of their rights under Section 200. 2. This Court cannot overlook the importance of cross-examination. Cross-examination ensures that evidence is tested for credibility and reliability. It is through this process that the Prosecution witness is tested and the Court determines the probative value. In the absence of legal counsel for an accused person, the accused must be afforded an opportunity to cross-examine the witnesses presented by the Prosecution. 3. In this case, it is undisputed that the Appellants never cross-examined PW2 and PW3. However, the trial court’s Ruling of 4th March 2019 explains the reasons for this. The Prosecution counsel informed the court that the Appellants had refused to enter the court room and proceed with their case. The court placed reliance on the authority in HCC Cr case No. 40 of 2011, Republic v Galma Abagaro Shano, and held that the Appellants had marred their right to have the matter proceed in their presence. For this reason, the case proceeded on that date in the absence of the Appellants, with two witnesses, PW2 and PW3, testifying. 4. The question for this Court is whether the denial of the Appellants’ right to cross-examine the two witnesses amounted to a miscarriage of justice. In Republic v Joshua Chacha Moronge [2019] eKLR, the Court held that - ***“The aim of a criminal trial is to expeditiously accord justice to all parties. An accused person found guilty of an offence ought to be accordingly sentenced in line with the law otherwise one must be acquitted forthwith. It is that balance which a trial aims to achieve. Therefore, in a case where one of the parties makes the trial unable to proceed then such a party visits an injustice to the other. That being so, a Court of law is fully enabled to deal with such instances. On one hand if the delay is occasioned by the prosecution the Court has powers to even compel the hearing to proceed. On the other hand, if the delay is occasioned by the accused person Article 50(2)(f) of the Constitution comes to play. For a Court to take refuge in Article 50(2)(f) of the Constitution and proceed on with a trial in the absence of an accused person the Court must first be satisfied that such inability to proceed with the trial is caused by the deliberate conduct of the accused person. That therefore means if the Court forms the opinion that the delay is not caused by any deliberate conduct on the part of the accused person then the trial cannot legally proceed in the absence of the accused person. To retheach any of the findings, a Court must carefully consider the particular circumstances of the case. In view of the foregone I now find and hold that Article 50(2)(f) of Constitution perfectly comes to play in this case and order that the trial shall proceed the absence of the accused person notwithstanding.”*** 1. Similarly, in **Price v State, 36 Miss 531 (1858),** the court explained thus**: -** ***“He was present in court when the trial was commenced, and when the case was put to the jury; and though under recognizance of bail before that time, for his appearance to answer the charge brought against him, he was no longer at liberty, but was in custody of the law. If he afterwards withdrew from the court, or escaped, so as not to be present at the return of the verdict, it is by his own unlawful act, of which he should not be permitted to take advantage. His absence must be considered, at least, as a waiver of his right to be present; and his own illegal act should not be permitted to thwart the process of the law to his advantage.”*** 1. In the present case, the Appellants themselves became hostile and threatened to fight the court orderlies by refusing to enter the court room and proceed with their case. I find that the trial court was well within its lawful mandate in rendering the ruling it did, allowing the matter to proceed in the absence of the Appellants. This, in turn, led to their missed opportunity to cross-examine crucial eyewitnesses who claimed to have seen them on the material night, to the detriment of their case. Accordingly, I do not find fault on the part of the trial court or the Prosecution. This ground of appeal and the allegation of a cause for mistrial fail. 2. My view of the issues at hand is that the trial was fatally flawed only because the trial court failed to comply with Section 200 of the Criminal Procedure Code. 3. Having found non-compliance with Section 200, thereby resulting in a mistrial, what remains for this Court to consider is the available remedy in law, in particular, whether this matter is suitable for a retrial. The principles governing the ordering of a retrial were well set out in Rwaru Mwangi vs. Republic [2007] KECA 338 (KLR) as follows: ***“Ordinarily a retrial will be made where the interests of justice require it and if it is unlikely to cause injustice to the appellant. Other factors for consideration include illegalities or defects in the original trial; the length of time having elapsed since the arrest and arraignment of the appellant; and whether the mistakes leading to the quashing of the conviction were entirely the prosecution’s making or not. See Muiruri vs. Republic [2003] KLR 552. It is also necessary to consider whether on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result from a retrial – See Mwangi vs. Republic [1983] KLR 522.”*** 1. Similarly, in **Benard Lolimo Ekimat vs. Republic [2005] KECA 329 (KLR),** the Court held that: - ***“There are many decisions on the question of what appropriate case would attract an order of retrial but on the main, the principle that has been acceptable to court is that each case must depend on the particular facts and circumstances of that case but an order for retrial should only be made where interests of justice require it. In our view, having carefully considered various aspects of the case including the charge, that was before the court plus the evidence that was adduced in support of it and the period the appellant has stayed under confinement, we are of the view that it would not be in the interest of justice to order a retrial and we decline to do so.”*** 1. Considering the above authorities, I am of the view that this case is not suitable for a retrial. It dates back to 2018, and there is a possibility that the witnesses may have difficulty recollecting the facts. The Prosecution may also have an opportunity to fill any gaps in their case if the court were to order a retrial, and there is no assurance that the evidence adduced before the court as exhibits is available or in proper condition. There is also the fact that three of the six accused persons were already acquitted, so ordering a retrial could not be feasible based on the original charge sheet. 2. For the reasons stated above, it is my finding that this matter is not suitable for a retrial. The second issue for my determination is now moot. I therefore quash the convictions of the three Appellants and set aside the sentences imposed by the trial court. 3. Before I conclude, I note with profound concern the manner in which the trial court recorded proceedings in respect of a grave offence such as the one in the present case, where lives were lost. There are numerous mistakes in the proceedings, ranging from the erroneous names of the accused persons, which kept changing at every juncture without indicating their aliases, to those of the deceased victims; the improper numbering of exhibits and witnesses, as well as the failure by the court to indicate why some witnesses’ names were omitted from the record. The Prosecution also submitted that 14 witnesses testified and that the Appellants were sentenced to 25 years' imprisonment, which was not the case. The lapses are not mere technicalities but fundamental breaches that render the entire process a nullity. They also make it difficult for the first appellate court to comprehend the case holistically, bearing in mind that the first appellate court is heavily reliant on the trial court’s record, as it does not observe witnesses or hear evidence first hand. 4. In conclusion, I find that the Appeal has merit and succeeds. The Appellants shall be set at liberty in respect of the charges in this case, unless otherwise lawfully detained. Orders accordingly. **Dated, signed and delivered virtually this 9th Day of July 2026.** **R.E OUGO** **JUDGE** **In the presence of:** **1st , 2nd & 3rd Appellants** **Miss Matere For the Respondent** **Wilkister / Minah - C/A**