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Court of AppealDismissedCriminal Appeal 132 of 2006· [2006] KECA 358 (KLR)

Alex Mwagure v Republic

Court of Appeal
28 July 2006
ROR. S. C. OmoloEOE. O. O'KubasuJOJ. W. Onyango Otieno
1,433 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that second appeals only address legal errors, upholding a fifteen-year sentence for indecent assault on a child.

What this practically means

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Executive summary

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The appellant was convicted by a Senior Principal Magistrate at Mombasa of indecent assault contrary to section 144(1) of the Penal Code, for touching the private parts of a seven-year-old girl, and sentenced to fifteen years imprisonment. His first appeal to the High Court at Mombasa (Maraga, J) was dismissed in its entirety, the Judge confirming both conviction and sentence. On second appeal to the Court of Appeal at Mombasa, the appellant filed only handwritten submissions whose contents he confessed not to be familiar with, attacking the credibility of the prosecution witnesses. The Court, comprising Omolo, O'Kubasu and Onyango Otieno, JJA, held that under section 361(1) of the Criminal Procedure Code a second appeal lies on matters of law only, and that the credibility findings of the two courts below were concurrent findings of fact it would not disturb. The Court found the prosecution evidence - that the appellant removed his trousers, removed the complainant's underwear, placed her on his lap and showed her his penis - clearly believable and sufficient to constitute indecent assault, remarking that if such actions do not amount to indecent assault, nothing would. The fact that a medical examination revealed nothing significant did not assist, since defilement was never alleged. The Court held the sentence lawful and beyond its interference, dismissed the appeal in its entirety, and made no costs order.

Key legal issues

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01

Scope of a second appeal under section 361(1) of the Criminal Procedure Code

Holding

The Court is confined to matters of law and will not revisit concurrent findings of fact made by the trial magistrate and the first appellate judge.

Reasoning

The appellant was on a second appeal, so the Court could deal only with matters of law. The findings that the complainant and the witness PW2 gave credible evidence, and that the appellant's defence was a made-up story, were concurrent findings of fact by the two courts below which the Court declined to disturb absent proof that no reasonable tribunal could have believed the evidence.

p. 3
02

Whether the appellant's conduct constituted indecent assault

Holding

The conduct - removing his trousers, removing the child's underwear, placing her on his lap and showing her his penis - amounted to indecent assault under section 144(1) of the Penal Code.

Reasoning

The Court held that medical examination revealing nothing significant did not assist the appellant because nobody alleged defilement. The completed acts of undressing and physical contact with sexual intent were themselves sufficient to constitute the assault; the trial magistrate's finding of intent to commit a sexual offence was sound and corroborated by PW2.

p. 3
03

Lawfulness of the sentence

Holding

The sentence of fifteen years imprisonment was lawful and beyond the Court's interference on second appeal.

Reasoning

The Court observed that the sentence imposed was lawful and therefore not a matter for it, confirming the sentence imposed by the trial magistrate and affirmed by the High Court on first appeal.

p. 3

Legal principles established

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  • On a second appeal to the Court of Appeal, the Court deals only with matters of law.
  • A second appeal court will not disturb concurrent findings of fact unless the evidence is such that no reasonable tribunal properly directing itself could have believed it.
  • Removing one's trousers, removing a child complainant's underwear, holding her on the lap and exposing the penis amounts to indecent assault.

Court orders

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  1. 1.The appeal is dismissed in its entirety
On appeal from
High Court of Kenya at Mombasa
HC Cr Appeal No 17 of 2003
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Alex Mwagure v Republic", Case Analysis (2006). Criminal Appeal 132 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/358/eng@2006-07-28

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