Joseph Mwangi Kibe v Republic

The Court, as a second appellate court, is precluded from fresh re-evaluation of evidence and will not disturb concurrent findings of fact absent total absence of evidence or misapprehension of the evidence by the courts below. Both courts below found penetration corroborated by the Clinical Officer's finding of a freshly perforated hymen, age proved by uncontroverted notification of birth, and identification by a complainant who knew the appellant, corroborated by PW2 overhearing him. No basis existed for interference.

Section 200(3) protects an accused where a succeeding magistrate takes over part-heard proceedings by allowing re-summoning of witnesses. The Court read the record and found manifestly that the appellant's entire trial was handled by only one magistrate, G.N. Opakasi. The provision was therefore never engaged and the ground was devoid of merit.

Following Twehangane Alfred v Uganda, not every contradiction warrants rejection of evidence; only grave, unexplained contradictions relating to material facts do. The Clinical Officer explained why no spermatozoa specimen could be extracted from the very young complainant, and his finding of a freshly perforated hymen was uncontroverted evidence of penetration. The evidence had to be read holistically.

The appellant did not raise the constitutionality of the life sentence before the High Court, so the first appellate court never applied its mind to it. Raising it for the first time before the Court of Appeal was precluded. The Court noted the Supreme Court's recent affirmation of the lawfulness of the life sentence in Republic v Joshua Gichuki Mwangi, holding Muruatetu did not address minimum sentences.