JUDGMENT OF THE COURT
This is a second and last appeal. Pursuant to the provisions of section 361 of the Criminal Procedure Code, on the main, only matters of law are to be considered by this Court. The complainant S. A. M was mentally retarded and when called to testify, she could not give evidence. Be that as it may on 1st October, 2005 at about 5.00 p.m. Peter Owino Okar (PW5) (Peter) who had been to the house of Peter Odweo Ondudu (PW4) (Odweo), and was going back to his home through a bushy area, heard a child crying in the bush. He rushed to assist. On approaching the place where the child was, he saw the appellant whom he knew well, lying on top of that child. On a closer look he identified the child as S. According to Peter, the appellant’s trouser was drawn and he was on top of S whose dress was also drawn up. S had no pants as the pants were placed on the side of the two. Peter observed that the appellant was having sex with S as S was crying in pain. On realizing that Peter …