Maurice Otieno Oduor v Republic

Section 361 of the Criminal Procedure Code limits a second appeal to matters of law, excluding matters of fact including severity of sentence. The Court cited its prior decision in Boniface Kamande for the proposition that interference with concurrent factual findings is permissible only where no evidence at all supported them, or where no reasonable tribunal could have reached such a decision on the evidence.

The Court reproduced the trial magistrate's analysis identifying penetration and proper identification, and the High Court's own detailed evaluation concluding the complainant's evidence was not doubted. These passages demonstrated that both courts discharged their mandates, disposing also of the complaint that demeanor was not recorded.

Relying on Bukenya v Uganda and its own decision in Donald Majiwa Achilwa, the Court held that the prosecution need not call a plurality of witnesses. An adverse inference arises only where the evidence barely establishes the case and a material witness is withheld. The arresting officer's evidence would merely have confirmed an undisputed fact.

The Court found the appellant never raised the constitutional complaint before the trial court or the first appellate court. Citing Julius Kamau Mbugua, it held that such breaches must be raised at the earliest opportunity, and even where a breach is shown and unexplained, the remedy is damages, which does not affect the criminal proceedings.

The appellant was convicted of both defilement and sodomy but sentenced only for defilement, so the sodomy conviction carried no separate sentence. There was abundant evidence of sodomy, and a bare invocation of section 214 of the Criminal Procedure Code without demonstrating prejudice cannot assist the appellant.