94. As to the domestic courts reliance on Exhibit EP7, the Court notes, from the
record, that the Court of Appeal found that “it was unsafe to found conviction
to the appellants basing on uncorroborated evidence of Kefasi Lyambulilo
Mwakalinga.” Nevertheless, it was noted that Exhibit EP7 was amply
corroborated by the testimony of other prosecution witnesses. Following
from this, the Court of Appeal found that the only reasonable inference was
that the Applicant was involved in the killing of Henry Mwakajila.
95. The Court also notes, from the record, that the domestic courts dealt with
the issue of the death of the victim which had become a critical issue given
that the victim’s body had not been found. Both the High Court and the Court
of Appeal acknowledged that this was a case in which the presumption of
death applied. As was pointed out by the Court of Appeal, given the timing
of the disappearance of the victim and the first and second appellants being
found in possession of the victim’s large intestines and bone tissue and
fingernails, the burden fell on them to explain how they came to be in
possession of the victim’s body parts. The Applicant, however, failed to
rebut the presumption.
96. The Court finds, therefore, that there was nothing wrong with the manner in
which the presumption of death was applied in the Applicant’s trial. It
concludes, therefore, that the Applicant’s right to a fair trial was not violated
by reason of application of the presumption of death.
97. In its assessment of the analysis of the evidence by the domestic courts,
this Court has found nothing to fault both the High Court and the Court of
Appeal’s approach. It thus finds that the allegation that the Applicant was
convicted on the basis of insufficient evidence to be unfounded.
98. This Court, therefore, dismisses the allegation that the domestic courts
erroneously convicted the Applicant on the basis of insufficient evidence.
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