Mathias Siakutela v The People (APPEAL NO:52/2023) (13 August 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO:52/2023 HOLDEN AT KABWE AND NDOLA (Criminal Jurisdiction) BETWEEN: MATHIAS SIAKUTELA APPELLANT AND THE PEOPLE RESPONDENT Coram: Mchenga, DJP, Ngulube and Chembe, JJA On 20th May 2025 and 13th August 2025 For The Appellant: J .K. Matende, Legal Aid Counsel, Legal Aid Board For The Respondent: D. Mbao, Senior State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court Cases referred to: 1. Phiri and Others v. The People [1973] Z.R. 47 2. Chuba v. The People [1976] Z.R. 272 3. Benson Phiri and Another v. The People [2002] Z.R. 102 4. Kayolo Mwanamwale and Another v. The People SCZ Appeal No. 60,61 of 2017 5. Sipalo Chibozu and Chibozu v. The People [1981] Z.R. 28 6. William Muzala Chipango and Others v. The People [1978] J2 Z.R. 304 7. Edward Sampa v. The People, SCZ Appeal No. 62 of 2021 8. Nsofu v. The People [ 1973] Z.R. 287 9. Yokonia Mwale v. The People SCZ Appeal No. 285 of 2014 10. David Zulu v. The People [1977] Z.R. 151 11. Benai Silungwe v. The People [2008] 2 Z.R. 123 12. Phiri v. The People, 1970 SJZ 178 13. Sole Sikaonga v. The People, SCJ No. 20 of 2009 14. Bowas Mukuwa v. The People CAZ Appeal No. 238 of 2020 15. Malaya v. The People [1973] Z.R. 236 16. The People v. Ndema Simolu [1981] Z.R. 318 17. Kamfwa v. The People Appeal SCZ Appeal No. 125 of 2017 18. Hara v. The People SCZ Appeal No. 162 Of 2011 Legislation Referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 2. The Court of Appeal Act, No. 7 of 2016 1.0 INTRODUCTION 1.1 The appellant appeared before the Subordinate Court (Honourable N. Chanda), charged with the offence of defilement contrary to Section 138( 1) of the Penal Code. 1.2 He denied the charge and the matter proceeded to trial. At the end of the trial, he was convicted and committed to the High Court for sentencing. J3 1.3 In the High Court (Yangailo, J .), he was sentenced to 35 years imprisonment with hard labour. 1.4 He has appealed against both the conviction and the sentence imposed on him. 2.0 CASE BEFORE THE TRIAL COURT 2.1 On 21st July 2020, Gift Bwalya was at home in Lusaka's Chawama Compound. She lived with her two children, one of them being the prosecutrix, who was aged 4 years and 4 months. 2.2 Around 10:00 hours, her other child, who had been playing with the prosecutrix, informed her that the prosecutrix had been locked up in the appellant's house. 2.3 Gift Bwalya went to the appellant's house and called out for the prosecutrix. When her daughter did not respond, she attempted to open the door but it was locked. 2.4 Gift Bwalya then called her sister, Beatrice Muyamba. Beatrice Muyamba broke the door to the appellant's house, and when they got in, they met the appellant who was coming from the bedroom. He was dressing up his trousers as he approached them, and the prosecutrix was behind him. J4 2.5 Beatrice Muyamba immediately took off the prosecutrix's pants. She saw blood and semen around her genitals. The prosecutrix was taken to a clinic where she was examined by a clinical officer on the same day. 2.6 The following day the prosecutrix was taken to UTH where she was examined by a doctor. 2. 7 In his defence, the appellant did not dispute the fact that the prosecutrix was found in his house. He said the house was not locked and she had gone into the house without invitation, to place charcoal on a brazier. 3.0 FINDINGS BY THE TRIAL MAGISTRATE 3.1 The trial Magistrate found that the case against the appellant was circumstantial. After recognising the dangers of convicting an accused on uncorroborated evidence in sexual offences, he found that the medical evidence corroborated the sexual act. 3.2 He also found that the appellant had the opportunity to commit the offence when he locked the prosecutrix in the house; he found this evidence to be corroborative. 3.3 Finally, the trial Magistrate concluded that an inference that the appellant defiled the prosecutrix was the only inference that could be drawn on the evidence that was before him. JS 4.0 PROCEEDINGS IN THE HIGH COURT 4.1 Following his conviction, the appellant was committed to the High Court for sentencing. 4.2 At sentencing, the sentencing Judge took the view that although the appellant was a first offender who was entitled to leniency, the offence was prevalent. 4.3 She found that the age of the prosecutrix aggravated the circumstances in which the offence was committed and it warranted the imposition of a proportionate penalty. 4.4 The sentencing Judge proceeded to impose a sentence of 35 years imprisonment. 5.0 GROUNDS OF APPEAL 5.1 The grounds of appeal raise four issues. These are: (i) material inconsistencies in the prosecution evidence; (ii) a conviction anchored on the uncorroborated evidence of suspect witnesses; (iii) an inference of guilt not being the only inference; and (iv) the sentence being harsh. J6 6.0 MATERIAL INCONSISTENCIES IN PROSECUTION EVIDENCE 6.1 It was pointed out that there was inconsistency in the evidence of the doctor, the clinical officer, the mother and the mother's sister, on what was seen when the child was examined. 6.2 Reference was then made to the cases of Phiri and Others v. The People1 and Chuba v. The People2 and it was submitted , that had the trial Magistrate evaluated the inconsistencies in the evidence of these witnesses, he would have come to a conclusion favourable to appellant. 6.3 In response to this submission, the cases of Benson Phiri and Another v. The People3 and Kayolo Mwanamwale and Another v. The People4, where referred to and it was submitted that the evidence of the witnesses was not materially inconsistent and that in any case, it was not expected that witnesses can give an exact account of the same event. 6.4 As regards the medical evidence, reference was made to the case of Sipalo Chibozu and Chibozu v. The People5 and it was , submitted that both medical examiners having testified, the trial Magistrate was entitled to decide who to believe. J7 6.5 The first person to examine the prosecutrix was her mother, she said she saw what looked like sperms. The mother's sister who was present when the mother was examining the prosecutrix, said she saw blood on the child's genitals. 6.6 On the same day, the prosecutrix was examined by a clinical officer who said he observed "minor laceration at 09 o'clock and 3 o'clock and at 6 o'clock there was bruising and blood stains". 6. 7 The following day, on 22nd June 2020, the prosecutrix was examined by a doctor. The doctor told the trial Magistrate that she saw minor injuries that had healed. She also told him that "blood supply in the vagina area is very good. It heals in 24 hours." 6.8 In our assessment, the only variation that gets close to a contradiction, is the observation of the mother and that of her sister. Since they were looking at the child at the same time, one would have expected that they would have seen the same thing. 6.9 Be that as it may, an independent person, the clinical officer, who conducted a detailed examination, confirmed that there were cuts and bleeding. JS 6.10 As for the doctor, since she examined the child the following day, it was not expected that she could see the blood. She explained that the healing in that area could occur within 24 hours and she confirmed seeing signs of healing cuts. 6.11 In the circumstances, it is our view that although the mother did not see blood, her sisters evidence that there was blood is confirmed by the clinical officer, who also saw blood and the cuts. The doctor who examined the child also confirms this through the healing wound. 6.12 It is therefore our finding that the argument that the prosecution evidence was contradictory has no merits. The variations in the evidence of the prosecution witnesses can be categorised as being normal. 7.0 UNCORROBORATED PROSECUTION EVIDENCE 7.1 The prosecutrix's mother, the mother's sister and the arresting officer, were all classified as suspect witnesses because they were said to have a motive to falsely implicate the appellant. 7.2 On the basis of the case of William Muzala Chipango and Others v. The People6 it was submitted that their evidence , required corroboration to exclude the danger of false implication J9 7.3 In response to this submission, the case of Edward Sampa v. The People7 was referred to and it was submitted that in the absence of a motive to falsely incriminate, it was competent for the trial Magistrate to convict on uncorroborated evidence. 7.4 Further, it was submitted that even if the evidence the identified witnesses was not corroborated, the appellant's opportunity to commit the offence was corroborative. The case of Nsofu v. The People8 was referred to in support of the proposition. , 7.5 In a sexual offence, what requires corroboration is the evidence of the prosecutrix. In this case, since the prosecutrix did not testify, the question of a conviction on the uncorroborated evidence of the prosecutrix does not arise. 7.6 It has also been submitted that the evidence of the prosecutrix's mother, her mother's sister and Inspector Mande, required corroboration because they were suspect witnesses. They gave evidence that the prosecutrix was retrieved from the appellant's house and she was found with blood on the genitals. 7. 7 The prosecutrix's mother and her sister were said to be suspect on account of having claimed that the delay in the appellant being arrested, by bribing the police. JlO 7.8 In the case of Inspector Mande, the arresting officer, she was said to be a suspect witness because there were allegations that she had received money from the appellant to ensure that he was not prosecuted. 7.9 In the case of Yokonia Mwale v. The People9 it was held that , the mere fact that a witness is a relative does not make them suspect. 7.10 In this case, it would appear that the only reasons that has led to the classification of the three witnesses as suspect witnesses, is because they gave incriminating evidence against the appellant. 7.11 To accept that they are suspect witness on that count, would be going against the decisions in both William Muzala Chipango and Others v. The People6 and Yokonia Mwale v. The People9 that make it clear that it is the particular , circumstances of the case, that warrant the classification of a \Vitness as a suspect witness. 8.0 INFERENCE OF GUILT NOT THE ONLY INFERENCE 8.1 The case of David Zulu v. The People10 was referred to and it Jll was submitted that an inference of guilt, is not the only inference that could have been drawn on the evidence that was before the trial Magistrate. 8.2 In response, it was submitted that the standard set in the case of David Zulu v. The People10 for a conviction anchored on , circumstantial evidence, was met. 8.3 The evidence against the appellant is essentially that a child informed the prosecutrix's parent that the prosecutrix had been taken into the appellant's house. The prosecutrix's mother knocked, but the door was locked, forcing its breaking down. 8.4 The prosecutrix was retrieved and immediately checked. She was found with cuts on her vagina and there was blood on her pants. 8.5 The appellant's position was that she had entered the house uninvited. 8.6 We agree with the submission by the State that the test set in the case of David Zulu v. The People10 for a conviction , anchored on circumstantial evidence was met. No inference other than that the appellant defiled the prosecutrix could have been reached on this evidence. J12 9.0 SENTENCE BEING EXCESSIVE 9.1 The appeal against sentence was anchored on the cases of Benai Silungwe v. The People11 and Phiri v. The People12 and it was submitted that since the appellant was a first offender, he was entitled to leniency. 9.2 Our attention was also drawn to the case of Sole Sikaonga v. The People13 where a sentence of 40 years imprisonment for , defiling a 3 years 10 months old child, was reduced to 25 years. 9.3 In response, Section 16(5) of The Court of Appeal Act and the case of Bowas Mukuwa v. The People14 were referred to and it , was submitted that the circumstances in which the offence was committed warranted the imposition of the sentence meted out on the appellant. 9.4 In addition, the cases of Malaya v. The People14 and The People v. Ndema Simolu16 were referred to and it was , submitted that the prevalence of the offence entitled the sentencing Judge to impose a sentence that was deterrent. 9.5 The imposition of the 35 years sentence was in the main, informed by the age of the prosecutrix and the prevalence of the offence. The sentencing Judge was entitled to use these two factors to impose a severe sentence J13 9.6 In the case of Kamfwa v The People17 the Supreme Court , noted as follows, "generally the principles of sentencing are well settled; and so too is the need for the exercise of prudence, consistency and fairness by the sentencing Judge, among many other justifiable considerations." 9. 7 It follows, that the appellant has a valid point when he argues, referring to a case where a lower sentence was imposed, that there is need for consistency. 9.8 The case of Sole Sikaonga v. The People13 in which the , sentence was reduced from 40 years imprisonment to 25 years imprisonment, for defiling a 3 years 10 months old child, was decided in the year 2007. 9.9 We have not come across a case with facts that are similar to this case, that was decided by the Supreme Court in the last few years. However, the case of Hara v. The People18 a , sentence of 30 years imprisonment for a person who defiled a 12 years old girl, was not found to be excessive. 9.10 From this decision it is clear that the sentence imposed in the case of Sole Sikaonga v. The People13 a case that was decided , close to two decades ago, cannot be the basis for arguing that the sentence imposed on the appellant, was excessive. Jl 4 9.11 The case of Hara v. The People18 does show that sentences for , defilement have over the years become stiff. In the circumstances, the sentence of 35 years imprisonment imposed on the appellant, does not, come to us with a sense of shock as being excessive. 10.0 VERDICT 10.1 Having dismissed all the arguments in support of both the appeal against the conviction and sentence, this appeal fails. 10.2 We uphold the appellant's conviction by the Subordinate Court and the sentence imposed on him by the High Court. ........ . ........ . . . . DEPUTY JUDGE P NT '' ... t, /lemk ·······································c~H1 . 1 •••••....•.•••..................•••••••.•. P.C.M. Ngulube Y. Chembe so:lft \ h,. COURT OF APPEAL JUDGE - COURT OF APPEAL JUDGE