Mwikya Munzyu v Republic

The Court noted the trial magistrate dismissed the alibi as a mere denial and the High Court judge dealt with it only briefly, finding the corroborating evidence of no probative value. Relying on its own prior decisions and the High Court in Argut, the Court held that section 309 of the Criminal Procedure Code allowed the prosecution to seek to rebut the alibi, and the burden of falsity lay on the prosecution, not the accused.

The High Court judge identified the grievances about the menses and the doctor's refusal to fill the P3 form but made no determination on them. The Court held that these unexplained curiosities cast doubt on whether the appellant was the perpetrator, and that such doubts must be resolved in favour of the accused, rendering the conviction unsafe.

The Court invoked the settled principle that on a second appeal only matters of law fall for consideration and concurrent findings of fact by the two courts below will not be disturbed unless based on no evidence, on a misapprehension of the evidence, or on demonstrably wrong principles. It nonetheless examined the alibi because counsel argued it substantively even though it was not a ground of appeal.

Although raised as grounds of appeal, the issues were not argued in submissions; more importantly, the conduct of the voir dire and the minor's age, recorded as 9 years on the P3 form, were never questioned during trial. The Court therefore found no proper basis to entertain those grievances.