Stanley Warui Gacheru v Republic

Section 2 of the Sexual Offences Act defines an indecent act as unlawful intentional contact between genital organs, breasts or buttocks, excluding acts causing penetration. The complainant gave a detailed account establishing such contact. Corroboration is not required since Section 124 of the Evidence Act permits conviction on the victim's evidence alone where the court is satisfied she is telling the truth, and Section 143 requires no particular number of witnesses. Medical evidence would only be necessary if penetration had to be proved.

The complainant knew the appellant prior to the incident as a herdsman, indicated she could identify him in her initial report to police, and led the police to arrest him. The court applied the principle in Anjononi & others v Republic that recognition of an assailant is more satisfactory and reliable than identification of a stranger. Both lower courts had made concurrent findings that the case was proved beyond reasonable doubt, which a second appeal court will not disturb.

The court agreed with the concurrent findings of the two lower courts on the complainant's age of 11 years. It further observed that the appellant raised the age issue only at second appeal as an afterthought. Consequently, the conviction, which rested partly on the complainant being a child under the Sexual Offences Act, was proper and safe.

Section 361 of the Criminal Procedure Code restricts second appeals to matters of law. Section 361(1)(a) expressly provides that the Court of Appeal shall not hear an appeal on a matter of fact, and severity of sentence is a matter of fact. The appellant's complaint that the 20-year sentence was harsh for a first offender was therefore outside the Court's jurisdiction, following Solomon Kiptoo Sawe v Republic and James Oromo v Republic.