Joseph Kazungu Kasena v Republic

The Court noted that under the proviso to section 124 of the Evidence Act the trial court could have convicted on the complainant's evidence alone had it recorded its satisfaction that she was a witness of truth. Here the complainant's evidence was in any event corroborated by her mother's testimony on the bleeding and blood-stained clothes and by the clinical officer's medical evidence, so the appellant's ground that the conviction rested on the complainant's evidence alone had no merit.

The complainant and her mother both testified she was 12 at the material time, and the Court found no rational basis for discounting a mother's evidence of her child's age, citing authority that parents' evidence has been relied on for this purpose. The assessment report stating approximately 15 years was an approximation, and nothing turned on the discrepancy because the charged provision, section 8(3) of the Sexual Offences Act, applies to children between 12 and 15 years.

The trial court analysed the defence, noting that the allegation about a demand for money had not arisen in cross-examination, and dismissed it as an afterthought. The High Court, in its duty as a first appellate court to re-appraise the evidence, also considered the defence and found it did not cast doubt on the prosecution case. The Court of Appeal was therefore satisfied that the contention that the defence was ignored had no merit.

The mitigation offered by the appellant counted for nothing because both courts considered their hands tied by what they believed was a mandatory minimum. Relying on the Supreme Court's decision in Muruatetu, the Court held that sentencing is in the discretion of the court depending on the circumstances of each case, allowed the appeal on sentence, set aside the 20-year term and substituted 10 years from the date of conviction.