Kainos Basera Mutatu v The State

The applicant, a 60-year-old man, was convicted by the Regional Court sitting at Chinhoyi on 19 October 2018 of three counts of rape as defined in section 65 of the Criminal Law Code. He was sentenced to 20 years imprisonment, with 2 years suspended for 5 years on the usual conditions of good behaviour. The victim was an 11-year-old girl whose maturity was assessed at between 5 and 6 years old. The offences occurred at three locations in Kariba: at Nyamhunga 1 Water Tanks, inside a flea market male public toilet, and in a bush behind ZAOGA Church. The applicant occupied a vending table next to the complainant's aunt's table at the market place and used food to lure his victim. The medical report indicated that penetration was probable, as the complainant's hymen had three healed notches at 3, 7 and 12 o'clock positions. The applicant filed an application for leave to appeal the conviction and sentence out of time and to prosecute the appeal in person on 17 August 2022, nearly four years after the conviction.

• Whether leave to appeal the conviction and sentence out of time should be granted
• Whether there was a reasonable explanation for the inordinate delay in filing the application for leave to appeal
• Whether the intended appeal against conviction had any prospect of success
• Whether the intended appeal against sentence had any prospect of success

The application for leave to appeal the conviction and sentence under CRB CHNR 110/18 out of time and to prosecute such intended appeal in person was dismissed.

Leave to appeal out of time will be refused where: (1) the delay in filing the application is inordinate and the explanation for the delay is unreasonable; and (2) the intended appeal is devoid of any prospect of success. In determining whether to grant leave to appeal against conviction, the court will consider whether credibility findings by the trial court were properly made and supported by the evidence. In determining whether to grant leave to appeal against sentence, the court will consider whether the trial court properly balanced mitigating and aggravating factors. The lack of prospect of success alone is sufficient grounds to dismiss an application for leave to appeal, even if other procedural requirements are satisfied.

The court noted with approval the trial magistrate's approach of treating multiple counts of rape committed against the same victim as one for sentencing purposes and suspending a portion of the sentence on conditions of good behaviour. The court also observed that the applicant's failure to use protection, thereby exposing the child victim to the risk of sexually transmitted diseases, was a highly aggravating factor. The court implicitly endorsed the trial court's recognition of the prevalence of sexual crimes against children as an aggravating factor warranting a stiff sentence.

This case demonstrates the strict approach Zimbabwean courts take to applications for leave to appeal out of time, particularly in serious sexual offences involving child victims. It reinforces the principle that applicants must provide reasonable explanations for delays and that leave to appeal will not be granted where there is no reasonable prospect of success, regardless of other factors. The case also illustrates the court's careful consideration of both mitigating and aggravating factors in sexual offences against children, including the prevalence of such crimes and the vulnerability of child victims. It affirms judicial protection of children from sexual violence and the appropriateness of substantial custodial sentences for such offences.