THE HIGH COURT OF MALAWI
APPEAL CASE NO. 95 OF 2006
the Senior Resident Magistrate Court sitting at Lilongwe, being
criminal case no. 236 of 2006.
Counsel for Appellant
Jere, Counsel for Respondent
Jere, Court Reporter
appellant John Malenga appeared before the Senior Resident Magistrate
court sitting at Lilongwe on a charge containing five
first count of incest contrary to section 157 of the penal code.
Four counts of rape contrary to section 133 of the
penal code. The
appellant pleaded not guilty to all five counts. However, after full
trial, he was found guilty and convicted
on each count.
trial court imposed 5 years on 1st
count, and 14 years on each count of rape, penal servitude. The
trial court ordered the sentences to run concurrently.
appellant through counsel Kumange appealed against both conviction
and sentence. There are four grounds of appeal as follows:
the prosecution did not prove its case beyond reasonable doubt.
evidence of Catherine Malenga was not corroborated.
the court did not regard the appellants defence.
the sentence is manifestly excessive.
line of argument by counsel Kumange is to the effect that the weight
of the evidence did not warrant conviction.
show that the complainant Catherine Malenga is a biological daughter
of the appellant. According to evidence she is 15 years
mother is Loisi Kalaile Pw2. Sometime in end March and early April,
2005 Pw2 went home in Mulanje for a week to sort
matters. It is alleged that during that time appellant on four
separate occasions sexually assaulted the complainant.
complainant first reported the incident to Pw3, who is turn reported
to Pw2, her mother. No action was taken.
July, 2005 Pw2 picked up rumours that appellant was having an affair
with another woman. Pw2 sued appellant for divorce in a
court. The divorce was granted. Appellant got married to that woman
friend. Pw2 got wind of the marriage. In October,
encouraged her daughter to report the matter of the sexual assault to
police. Appellant was arrested and prosecuted for
the said offences.
crucial question which has exercised my mind is. Did the alleged
incidents actually take place? I do entertain very grave
because of Pw2s conduct. Why report after the breakup of the
marriage when she had been aware of the incident much earlier.
is no satisfactory explanation. The argument by the state that the
delay was due to consultation among family members is
It would appear that Pw2 used the law as a weapon of revenge because
appellant had remarried.
is my view that Pw2 should not be aided by a court to avenge herself
upon appellant. That would be unjustly using the law to
injustice on an apparently innocent person. In the circumstance, I
resolve to quash the conviction on each of the counts
the sentence on each of the counts. Appellant to be released
forthwith unless held on other lawful ground. Appeal
in Open Court on this 23rd day of August, 2007 at Lilongwe.