Republic v Hamisi (Sexual Offence E045 of 2025) [2026] KEMC 426 (KLR)
The bottom line
#A Malaba court acquitted a man of indecent assault because unclear witness testimony, no medical corroboration, and missing CCTV evidence left reasonable doubt.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of the complainant's unsworn evidence
The complainant's evidence was too unclear to establish the indecent act or the touching alleged.
The complainant, a vulnerable adult with communication difficulties, gave unsworn evidence after voire dire. He described the accused putting 'his thing to urinate' and experiencing pain, but did not clearly describe the nature of the act or the body part touched, and at other points said only an attempt was made. The court found the evidence remained unclear as to what transpired.
Weight of medical evidence
Medical evidence provided no corroboration of the alleged unlawful contact.
The clinical officer found no sores, no lacerations and no proof of penetration, and could not tell whether the complainant was touched. Although penetration need not be proved for indecent assault, the medical evidence did not corroborate the alleged contact, leaving the prosecution case resting on the unclear complainant evidence.
Evidential gaps - CCTV, first report and circumstances of the scene
Unexplained gaps regarding CCTV footage, the alleged initial police report and the circumstances of a busy scene could not be filled by conjecture.
The incident allegedly occurred in a busy customs area yet no one witnessed the struggle; CCTV cameras existed but no evidence was led on whether footage covered the scene; the alleged first report at the customs police station was never produced or proved by an officer. These gaps, unexplained, left the court with reasonable doubt.
Legal principles established
#- An accused person may only be convicted where the prosecution has proved the charge beyond reasonable doubt; doubts must be resolved in favour of the accused.
- Where CCTV evidence was reasonably available and capable of shedding light on disputed events, failure to account for its absence leaves an evidential gap which the court cannot fill by conjecture.
- Proof of penetration is not an ingredient of the offence of committing an indecent act with an adult.
Court orders
#- 1.The accused person is acquitted under Section 215 of the Criminal Procedure Code of the offence of Committing an Indecent Act with an Adult contrary to section 11(A) of the Sexual Offences Act No. 3 of 2006
- Jurisdiction invoked
- Criminal jurisdiction under the Criminal Procedure Code and the Sexual Offences Act No. 3 of 2006
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Hamisi (Sexual Offence E045 of 2025) [2026] KEMC 426 (KLR)", Case Analysis (2026). Not stated in judgment (Criminal Case – committing an indecent act with an adult, Malaba). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/426/eng@2026-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.