Kayira v S (18 of 2013) [2015]
MWHC 432 (20 February
(Being Criminal Case No. 18 of 2013 in the FGM
Court at Chitipa)
Coram : Honorable Mr. Justice D.T.K. Madise
Mr. W. Chirwa Counsel for the
Mr. W. Nkosi Counsel for the State
Mr. I.Z. Bondo/A. Kanyinji Official
Mrs. F. Silavwe Court Reporter
Madise, J
1.0 Introduction
1.1 The Appellant in this matter was arrested and
charged with two offences of defilement contrary to
section 138(1) Penal Code under count one and
indecent assault contrary to section 137(1) Penal
Code under count two. He pleaded not guilty and
after a full trial he was found guilty on both counts,
convicted and sentenced to 6 years imprisonment
with hard labour under count one and 2 years
imprisonment with hard labour under count two.
The sentences were to run concurrently from 20
March 2013. Being unsatisfied with the decision of
the court below he now appeals to this Court
against both convictions and sentences.
2.0 Appeals
2.1 Criminal appeals are provided for in section
346 Criminal Procedure and Evidence Code.
(1) Save as hereinafter provided, any person
aggrieved by any final judgment or order, or any
sentence made or passed by any subordinate court
may appeal to the High Court.
(2) An appeal under subsection (1) may be upon a
matter of fact as well as on a matter of law.
3.0 Grounds of Appeal
3.1 The Appellant filed two grounds of appeal as
1. Whether the conviction of the Appellant was
proper regard being had to the circumstances
of the case.
2. Whether the sentences were manifestly
excessive considering the mitigating factors.
4.0 The Issues
1. Whether the convictions were safe.
2. Whether the sentences were merited.
5.0 The Facts
5.1 The State called four witnesses. The story as
told by the state witnesses including the victim’s
father (PW1) is that the Appellant was a health
worker at Wenya Health Center. The victim is
Sarah Kalua aged 15 who was a student at Wenya
Community Day Secondary School before she was
transferred to Kameme Community Day Secondary
School. According to Sarah’s father, he was
informed by his wife that the Appellant was having
an affair with his daughter Sarah which was
disturbing her education.
5.2 Then the father received posting instructions to
move from Wenya to Kameme and took his
daughter Sarah with him. In December 2012 he
received reports that the Appellant was following
Sarah to Kameme. On 24 March 2013 the
Appellant was found in a maize garden having
sexual intercourse with Sarah. The matter was
reported to the police and Sarah was examined at
Kameme Health Center the following day.
5.3 Sarah Kalua (PW2) told the court that the
Appellant was her husband as the two were in love
with each other since June 2011. She stated that
she was the Appellant’s second wife and on the
material day she was just playing with the
Appellant when some little children rushed to
report that she was having sexual intercourse with
the Appellant in the maize garden. She denied
having sexual intercourse with the Appellant on 24
March 2013 but on 1 February 2013 in the some
bush. She also admitted having sexual intercourse
with the Appellant so may times while at Wenya
and when she moved to Kameme but that during all
these times the Appellant was using a condom.
5.4 Sub Inspector Mulenga of Ipenza Police Unit
confirmed receiving a report of defilement on 24
March 2013. On 26 March 2013 the Appellant was
arrested and a caution statement was recorded from
him. The Appellant did admit that he had sexual
intercourse with the Victim on several occasions.
The medical officer who examined Sarah Mr.
Lindani Katumbi did not find any evidence of
forced penetration only that Sarah’s hymen was
broken meaning that she was not a virgin.
5.5 At the close of the prosecution’s case the court
found that the Appellant had a case to answer on
both counts and he was invited to make a defence.
In his defence the Appellant admitted going to
Kameme on 23 March 2013 to sell goats and
chickens. On his way he met Sarah and they
chatted for a while. Later he was told that Sarah
had been beaten by her parents because some
children reported to her them that she was having
sexual intercourse with some men.
5.6 Being afraid that he might be attacked by
Sarah’s parents he decided to run away to Isongole
in Tanzania but finally returned to Malawi and
surrendered himself to the police. He denied to
have ever slept with Sarah.
5.7 Mr. Fermie Kayira told the court that Sarah had
confided in him that she was seventeen years at the
time the trial had started and not fifteen years. That
it was her parents who had forced her to lie about
her age. It is in evidence that Sarah gave him her
immunization card showing that she was of mature
age interms of section 138(1) Penal Code. The
court below found that Sarah had doctored the
immunization card by changing the date she was
6.0 Burden and Standard of Proof
It is trite law that the State is duty bound to prove
each and every element of this offence and the
standard required by the criminal law is beyond a
reasonable doubt. The relevant provision is section
187(1) of the Criminal Procedure and Evidence
The burden of proving any particular fact lies on
the person who wishes the court or jury as the case
may be to believe in its existence, unless it is
provided by any written law that the proof of such
fact shall lie on any particular person.
Provided that subject to any express provision to
the contrary in any written law the burden of
proving that a person is guilty of any offence lies
upon the prosecution.
6.1 Lord Chancellor Sankey pronounced the law in
the following fashion in Woolmington vs. DPP
[1935] A.C. at 481;
Throughout the web of the English Criminal Law
one golden thread is always to be seen, that is the
duty of the prosecution to prove the prisoner’s guilt
subject to
statutory exception. If at the end of and on the
whole of the case, there is reasonable doubt created
by the
evidence given either by the prosecution or the
prisoner, the prosecution has not made out the case
and the prisoner is entitled to an acquittal.
6.2 Our own local authority is the case of Namonde
vs. Rep [1993] 16(2) MLR. 657 in which late
Chatsika, J as he was then called stated the law in
the following terms;
The prosecution bears the burden of proof on every
issue in a criminal case. The court should not call
upon the accused to enter his defence hoping that
in the course of his adducing evidence, the accused
may say something which might give strength to the
prosecution’s case.
6.3 There are exceptions however under various
statutory provisions (e. g section 32 Corrupt
Practices Act and section 283 Penal Code) and at
common law in cases of insanity. To the contrary,
the accused at all times must lead evidence on a
preponderance of probabilities to the satisfaction of
the court just like in civil cases.
6.4 It is not the duty of the accused to prove his
innocence. The State through the prosecutor must
prove beyond a reasonable doubt that an offence
was committed and that it was the accused who
committed it. There must be no doubt as to the
guilt of the accused. In the event that there is the
slightest amount of doubt, that fortunately or
unfortunately must be ruled in favour of the
accused and an acquittal must be entered without
7.0 Finding based on law and evidence
7.1 The Appellant was charged under section
138(1) and section 137(1) Penal Code which
provides that:
Section 138(1)Penal Code
Any person who unlawfully and carnally knows any
girl under the age of sixteen years shall be guilty of
a felony and shall be liable to imprisonment for
Section 137(1)Penal Code
Any person who unlawfully and indecently assaults
any woman or girl shall be guilty of a felony and
shall be liable to imprisonment for fourteen years.
7.2 This is a straight forward case. The Appellant
herein was apparently in “love” with the Victim
Sarah Kalua. The girl herself has admitted this.
They have been having sexual intercourse
(penetration of male sexual organs into the female
sexual organs without consent) while at Wenya and
later at Kameme. The girl has revealed this. She
stated that she was in love with the Appellant and
had accepted to be his second wife. The Appellant
denied this. In a desperate attempt to save her
lover the Victim tried to change her age so that she
can be above the age of 16 years.
7.3 The evidence is so clear. The two have been
having sexual intercourse on divers days and at
divers places. On 1 February 2013 according to
Sarah the two had sexual intercourse. However
both the Appellant and Sarah have denied that they
had sex on 24 March 2013. Sarah told the medical
officer that the Appellant was only playing with her
private parts. When Sarah admitted the incident of
1 February 2013, the State amended the charge to
read 1 February 2013 as the date the offence was
7.4 Sarah took oath and according to the record she
was old enough to say what really happened and
lower court believed her. Unfortunately for the
Appellant Sarah was under age in terms of section
138(1) Penal Code. For that reason alone, he
committed an offence. He cannot plead consent as
girls under the age of 16 are incapable of giving
consent due to immaturity. He was therefore
rightly convicted by the court below and I uphold
the conviction under count one.
7.5 The State also charged the Appellant with
indecent assault. Sarah stated that she did not have
sexual intercourse with the Appellant on 24 March
2013. But she admitted that the Appellant was only
playing with her private parts. If she was an adult
who had consented and the act was done in private,
the Appellant could have walked free. However the
Victim was under age and incapable of giving
consent in terms of section 138(1) Penal Code.
7.6 Any person who unlawfully and indecently
assaults any woman or girl shall be guilty of a
felony…….unlawfully because the girl was under
the age of 16 years. Indecently because he had
touched the private parts of a girl under the age of
16 years in public. For that reason he committed an
offence under section 137(1) Penal Code. I see
nothing wrong with the decision of the court
below. The State had proved its case beyond a
reasonable doubt. I uphold the conviction under
count two.
8.0 Sentencing Principles
8.1 When passing a sentence the court must look at
the objective to be achieved. Whether deterrence,
public protection or reformation is the objective,
courts must first of all have regard to the nature and
circumstances of the offence, the offender, the
victim and the public interest. In simple terms,
courts look at the aggravating and the mitigating
factors of the offence as well of the offender. The
sentencing court must therefore weigh the two and
come to an informed conclusion as to the type of
sentence to impose.
8.2 It is important to note right at the outset that the
policy of the law is not to imprison first and young
offenders unless circumstances dictate otherwise.
Subordinate courts are specifically called upon by
the law to desist from sending first offenders to
prison unless otherwise. The law as provided for
under section 340 (1) Criminal Procedure and
Evidence Code generally does not promote the
imprisonment of first offenders unless otherwise
stated by law or precedent. Where a court intends
to forego the provisions of section 340 (1) CP&EC
good reasons must be given as to why a non
custodial sentence was inappropriate.
8.3 In this matter before me, it is clear that the girl
Sarah Kalua was really in “love” with the
Appellant who was 24 years at the time. During
trial she did all she could to save her so called
husband but to no avail. She admitted that the
Appellant was having sexual intercourse with her
because he considered her as his second wife.
Sarah did not accuse the Appellant of forcing her to
have sexual intercourse. She allowed him to enter
her body voluntarily. The medical report showed
no injuries inside the walls of her vagina.
Unfortunately for both “lovers”, Sarah was under
the age of 16 years and therefore an offence was
8.4 But looking at the circumstances of the
Offender, the offence and the Victim, I’m of the
view that 6 years under count one and 2 years
under count two was manifestly excessive. I’m
mindful that as an appellate Court it is not my duty
to tamper with sentence unless the same is
excessive or wrong in law. I therefore proceed to
reduce the two sentences to 4 years for defilement
and 1 year for indecent assault with effect from the
date of arrest. The sentences are to run
concurrently. I so order.
This appeal must partly succeeds.
Pronounced in Open Court at Mzuzu in the
RePublic on 20th February, 2015.
Dingiswayo Madise

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