Mwea Francis v Republic

The Court invoked its settled approach in Boniface Kamande & 2 Others v Republic, holding that it must pay proper homage to concurrent findings of fact by the two courts below and may interfere only where there was no evidence at all upon which the findings were based, or where the evidence was such that no reasonable tribunal could base a decision on it. The appeal raised no such perversity.

The Court examined the trial record. When the appellant said he had no witness statements, the trial court ordered the prosecution to avail them the same day, and the appellant later confirmed he had received them. He then cross-examined the complainant's mother and all other prosecution witnesses extensively, demonstrating that he had reasonable access to the evidence against him and was not prejudiced.

The record showed that on 6th June 2012, after the prosecution closed its case, the court ruled a prima facie case was established and placed the appellant on his defence. The appellant elected to make an unsworn statement and call no witnesses, which the learned Magistrate recorded. His conduct and defence showed he was well aware of the charge against him.

Following Karisa Chengo & others v Republic, where the Court held that active participation and intense cross-examination of prosecution witnesses meant no substantial injustice arose from the absence of assigned counsel, the Court scrutinized the record and found the appellant cross-examined each witness. Article 50(2)(h) applies where substantial injustice would otherwise result, which was not demonstrated here.

The Court applied section 143 of the Evidence Act and the decision in Collins Akoyo Okwemba & 2 others v Republic, holding that the prosecution need not call any specific number of witnesses so long as the evidence proves the case to the required standard. The evidence led was cogent and clear and pointed to the appellant as the perpetrator, so the absence of the siblings caused no prejudice.