Brian Muniew Mukonda v The People (APPEAL NO. 121/2023) [2024] ZMCA 269 (17 October 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 121/2023 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: BRIAN MUNIWE MUKONDA AND THE PEOPLE RESPONDENT CORAM: MCHENGA, DJP, NGULUBE AND MUZENGA, JJA. On 1 7th September, 2024 and 1 7th October, 2024. For the Appellant: Mr. C. Siatwinda, Senior Legal Aid Counsel Legal Aid Board For the Respondent: Miss N. Lubasi, State Advocate National Persecution Authority JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. William Muzala Chipango and others vs The People (1978) ZR 304 2. Mushemi Mushemi vs The People (1982) ZR 71 3. 4 . 5. 6. George Musupi vs The People (1978) ZR 271 Peter Yotam Hamenda vs The People (1977) ZR 184 Republic vs Dicton Deha Mwaringa (2015) eKLR Yokoniya Mwale vs The People SCZAppeal Number 285/2014 = 7. Guardic Kamaya Kavwana vs The People SCZ Appeal Number 85 of 2015 8. Morgan Gipson Mwape vs The People CAZ Appeal Number 31 of 9. Lupepo and others vs The People Appeal No. 389, 390, 391, 392/ 2013 (214) ZMSC 121 10. Freemen Chilao Chipulu vs The People Appeal No. 3 7 I 38/ 2016 11 . Chooka vs The People (1976) ZR 243 Legislation referred to: 1. The Penal Code, Chapte r 87 of the Laws of Zambia 1.0 INTRODUCTION 1. 1 This is an appeal against a Judgment of the High Court delivered by the Hon ourable Mrs. Justice A. M. Banda-Bobo (as she then was) on 15 February, 2016. By that Judgment the court convicted the appellant of the offence of Murd er and sentenced him to death. 2 .0 BACKGROUND 2.1 The background of this appeal is that the appellant was charged on an information containing one count of the offence of murder, contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars were that the appellant, on -J2- 30 October, 2015 at Kaoma in the Kaoma District of the Western Province of the Republic of Zambia, murdered Easter Kapalu. 3 .0 PROSECUTION'S CASE IN THE LOWER COURT 3.1 The case against the appellant was proffered by four prosecution witnesses who testified for the prosecution against the appellant. 3.2 PWl, Broner Kapalu Kutemba was Easter Kapalu's younger sister. Her testimony was that on the material day, she was at home with her sister in the evening when the appellant called Easter on her phone. 3.3 The appellant called Easter a second time that evening and she left the house and stood at the gate with him for a short while . Soon thereafter, they left together. It was PWl 's testimony that the appellant and Easter were married for two years earlier, but later separated because the marriage did not work. 3. 4 PW 1 testified that when her sister left home that evening, she took her baby and did not return. The following morning, PWl was informed that there was a body of a woman that was found near the Resource Centre. She rushed there and discovered that the body was her sister's and it was found in an area that was close to the appellant's house. Her sister's baby was strapped to her mother's body. PWl also noticed a cut on the stomach and that the intestines were protruding. -J3- 3.5 PWl later led the Police to the appellant's house which was found locked. The door was forced open and PWl saw the dress that her late sister wore the night before in the appellant's house. She also saw the Easter's jeans skirt and the pair of shoes which her sister wore before she left in the company of the appellant. 3.6 PWl stated that the appellant was a very jealous and violent man and often accused Easter of seeing other men when they were married. PWl further stated that she was not in good terms with the appellant. She stated that she was able to identify the appellant as the person who was at the gate on the night that her sister left home for the last time because she recognized him and there was moonlight. 3 .7 PW2, Annie Mishengo, Easter's aunt testified that she was informed that there was a dead body at a place called Lisosi. She rushed there with PW 1 and found that the dead person was her niece, Easter. She also found that the deceased's baby was tied to the mother's body . She further noticed that the decea sed's intestines were protruding from the stomach cavity. The police collected the body and deposited it at the mortuary. 3.8 PW2 was in the company of the Police when they went to the appellant's house and conducted a search. According to PW2, they found the dress and the skirt that Easter wore the night -J4- before she was found dead near the appellant's house. PW2 also noticed that there were blood stains and water at the entrance of the house. She stated that Easter and the appellant had a turbulent relationship which lasted over two years. 3.9 PW3 Grand Chama was one of the people who participated in the search for the appellant because he was suspected of killing his wife. He was subsequently found having a meal in a restaurant several kilometers away from his home and he was apprehended and taken back to Kaoma. On the way, the appellant told PW3 that he merely beat up his wife and did not kill her. 3. 10 PW 4 , Detective Sergeant Mushaukwa was the investigating officer in the matter. He visited the scene of crime and found Easter's body and noticed that she was partially dressed. He also found her two year old baby tied to the mother's body with a chitenge material. The intestines were exposed as there was a deep wound on the abdomen. PW4 stated that he found a home made knife 20 metres away from the body. 3.11 PWl led him to the appellant's house in Mulambwa compound and upon entering, he noticed that clothes were scattered all over the house. He also saw a blood stain at the door of the house. A black and white dress was identified by PWl as the dress that Easter wore the night before as she left home. According to PW4, -JS· Easter's body was found 50 metres away from the appellant's house. A postmortem examination was conducted on the body on 3 November, 2015 . 3.12 In his Defence, the appellant's testimony was that on the fateful day, 30 October, 2015, he chatted with Easter on phone and gave her some money to buy a skirt as well as Kl0 for her to buy relish. She also gave him a sweatshirt and returned home to sell local brew. He took some passengers on the bus that he regularly drove out of town but they could not reach the final destination as the bus developed a fault. He was subsequently apprehended as he had a meal in a restaurant and was taken to Kaoma Police Station. 3.13 The appellant denied picking up Easter from home on the evening of 30 October, 2015 as he was at Kalumangwe Station. He denied ever beating her up. He stated that Easter committed adultery several times and had affairs whenever he was on duty. She could have been killed by anyone. He however denied stabbing her to death. 4.0 DECISION OF THE LOWER COURT 4.1 The trial court considered the evidence before it and came to the conclusion that the appellant was the last person to be seen with Easter on the material night. The court further found that it was -JG- an odd coincidence that the clothes that Easter wore were found in the appellant's house which was locked. 4.2 The court found that Easter's body was found a few metres away from the appellant's house and that the appellant was apprehended 80 kilometers away from his home. The court stated that the Police could not have investigated the appellant's alibi as it was not raised at an appropriate time. 4 .3 The court concluded that the appellant murdered Easter with malice aforethought and sentenced him to death, as the court was of the view that there were no extenuating circumstances. 5.0 THE APPEAL 5.1 The appellant was dissatisfied with the conviction and sentence and appealed to this court, advancing three grounds of appeal couched as follows- 1. The court below erred in both law andfact by finding PWl to be a credible witness when PWl falls in the category of a witness with a possible interest of her own to serve whose evidence requires corroboration before it can be relied on. 2. The court below erred in both law and fact by accepting PWl 's evidence regarding the identity of the appellant as the person who picked up the deceased on the material night when there is no corroboration of PWl's evidence to that effect. -J7- 3. The trial court erred in both law andfact by convicting the appellant on circu mstantial evidence when an inference of guilt was not the only inference that can be drawn from the evidence on record. 6.0 APPELLANT'S HEADS OF ARGUMENT 6.1 In arguing ground one and two, it was submitted that the lower court misdirected itself by finding that PWl had no interest of her own to serve as the court did not consider whether PW 1, because of the circumstances of the case, could be a suspect witness. The case of Wi lliam Muzala Chipango and others vs The People1 was referred to, emphasizing that the evidence of a witness who is an accomplice or a suspect must be corroborated to exclude the danger of false implication. 6. 2 Further, the case of Mushemi Mushemi vs The People2 was also referred to in buttressing the argument that a court should show why a witness who has been seriously contradicted by others is believed in preference to other witnesses. 6 .3 Counsel contended that PWl was a witness with a possible interest of her own to serve because she was Easter's sister and did not have a good relationship with the appellant. It was argued that PWl and PW2 contradicted each other regarding the time Easter wore the black and white dress which was found in the appellant's house. According to Counsel, PWl stated that -J8- Easter wore the dress when the appellant picked her up from the house while PW2 stated that she found her wearing the dress while she was at home at 17:00 hours. 6.4 It was submitted that contradictions highlighted above place PWl in the category of a witness with a possible interest of her own to serve and that her evidence needed to be corroborated. The case of George Musupi vs The People3 was also cited in this regard. 6.5 It was submitted that the lower court should have considered the reliability of PW l's evidence that it was the appellant who picked up Easter from home on the fateful night because her evidence of identification was not corroborated. 6.6 Counsel went on to argue that call records should have been obtained to ascertain whether the appellant called Easter the night before she was found dead near the appellant's house. Citing the case of Peter Yotam Hamenda vs The People4 it was submitted that there was a dereliction of duty on the part of the Police which ought to be resolved in the appellant's favour as the evidence of the call records could have resolved the case in favour of the appellant and that the appellant suffered prejudice because of the said dereliction of duty. -J9- 6.7 It was argued that PWl stated that the person who picked up Easter on the material night wore a Nigerian shirt but no shirt fitting that description was found in the appellant's house. It was contended that the lower court erred in relying on the evidence of PWl which was uncorroborated and we were urged to allow grounds one and t~o for the aforestated reasons. 6. 8 The third ground of appeal attacks the lower court for convicting the appellant on circumstantial evidence as guilt was not the only inference that could be draw from the circumstances on record. 6.9 In arguing this ground the Kenyan celebrated case of Republic vs Dicton Deha Mwaringa5 was cited where the court held that to justify an inference of guilt on circumstantial evidence, the incriminating facts must be incompatible with the innocence of the accused. It was submitted that the appellant's defence that Easter used to sleep at his house often made it possible that she left the clothes that were found in the appellant's house on one of those occasions. 6.10 It was contended that the lower court's conviction of the appellant was unsafe and unsatisfactory. We were urged to allow the appeal and quash the conviction and sentence. -JlO- 7 .0 RESPONDENT'S HEADS OF ARGUMENT 7.1 The respondent filed its heads of argument on 17 September, 2024. 7.2 Responding to ground one, it was submitted that the lower court was on firm ground when it convicted the ap pellant on the evidence of PWl. It wa s contended that there is no law that excludes relatives of victims of crime from testifying. The case of Yokoniya Mwale vs The People6 was referred to. 7. 3 The case of Guardic Kamaya Kavwana vs The People7 was also referred to where the Supreme Court stated that- "There is no law which excludes a blood relation of the deceased from testifying for the prosecution. Evidence of a blood relation can be accepted if cogent enough to rule out any element of falsehood or bias." 7.4 It was su bmitted that th ere was no evidence neither was there any record before the trial court to suggest that PW 1 was biased or had an interest to serve. 7. 5 Regarding the issue of wh ether or not the evidence of PW 1 required corroboration, the case of Morgan Gipson Mwape vs The People8 was referred to, where we stated that- "The Supreme Court in the Mwale case concluded that a conviction will not be safe if it is based on the u ncorroborated evidence of witnesses who are friends and relatives of the deceased or victim provided on the -J11- evidence before it, those witnesses could not be said to have a bias or motive to falsely implicate the accused, or any other int erest of their own to serve." 7 .6 That was key for the court to satisfy itself that there was no danger of false implication. 7.7 It was argued that although PWl stated in her testimony that she was not in good terms with the appellant, this was not an indication that she was biased or had a motive to give false evidence against the appellant. 7 .8 It was submitted that the trial court had the opportunity to observe PW 1 and went on to make a finding that she had no interest of her own to serve in the matter. We were urged to maintain the lower court's findings of fact as they were arrived at based on the evidence below before the lower court. 7. 9 On whether PW 1 and PW2 contradicted each other regarding what Easter wore on 30 October, 2015, the day she left home and was last seen alive, it was argued that PWl and PW2 did not contradict each other on the colour of the dress that she wore and when she left home with the appellant. 7 .10 It was contended that PWl saw the appellant leave with Easter on the material night and that the question whether it was mistake n ide ntity was ruled out because she knew the appellant well. -J12- 7 .11 Responding to ground two, which challenges the lower court's decision to accept the evidence of identity of the appellant as the person who picked up Easter from home on the material night because it was not corroborated, it was submitted that the evidence of PW 1 was that she saw the appellant when he went to her home on 30 October, 2015 and he picked up her sister at about 20:00 hours. She further stated that she was able to recognize the appellant who was 30 metres away from where she stood because there was moonlight. 7.12 The case of Lupepo and others vs The People9 was cited, where the Supreme Court stated that it is competent for a court to convict on the evidence of a single identifying witness where the possibility of an honest mistaken identity is eliminated. It was argued that PW 1 had the opportunity to identify the appellant positively and reliably. It was argued that PWl knew the appellant for two years prior to the incident, thus ruling out the possibility of honest mistake. 7 .13 It was submitted that the appellant admitted that he called Easter on phone on the material day. It was argued that there was communication between the appellant and Easter on the material day. It was argued that it was unnecessary for the arresting officer to obtain call records from service providers to -J13- ascertain whether the appellant and Easter communicated on phone. It was argued that the evidence against the appellant was overwhelming and sufficient to secure the appellant's conviction. 7. 14 Ground three challenges the lower court for convicting the appellant on circumstantial evidence when an inference of guilt was not the only inference that could be drawn from the evidence on record. 7.15 It was submitted that the evidence on record was so overwhelming that it took the case out of the realm of conjecture to permit only an inference of guilt. The case of Freemen Chilao Chipulu vs The People10 was referred to where the Supreme Court held that the circumstantial evidence was so cogent that only an inference of guilt could be made. 7 .16 It was contended that the appellant was the last person to be seen with Easter on 30 October, 2015. It was also submitted that the clothes that she wore on 30 October, 2015 were found in the appellant's house by PW4. Further, her body was found a few metres away from the appellant's house. 7 .17 It was argued that these pieces of evidence lead to the irresistible conclusion of the appellant's guilt. It was argued that the appellant's explanation in his defence was not reasonably -J14- • possible. His defence was that it was not strange to find Easter's clothes in his house because she slept at his house but this was challenged by PW 1 whose testimony was that her sister did not leave any clothes at the appellant's house because she would always return home in the morning. 7 .18 It was contended that the appellant failed to prove that he was away on the night when Easter was found dead. The appellant failed to bring any witness to prove his alibi. The court was urged to disregard the appellant's explanation because it was not reasonably possible. We were urged to dismiss the appeal in its entirety and uphold the lower court's conviction and sentence. 8.0 CONSIDERATION AND DECISION OF THE COURT 8 .1 We have prudently considered the evidence on record, the parties' arguments and the Judgment appealed against. We will begin by addressing grounds one and two which attack the lower court for finding PW 1 to be a credible witness as the Defence were of the view that PW 1 fell in the category of a witness with a possible interest of her own to serve and that her evidence required corroboration. The court is further attacked for accepting PWl 's evidence that the appellant picked up Easter from home that night. -JlS- 8.2 The appellant's Counsel maintains that PWl was a suspect witness because she was Easter's sister and that her evidence contradicted that of PW2 regarding the clothes that the appellant wore before she left home on the material evening. In the case of Chooka vs The People1 1 the Supreme Court held that- "A witness w ith a possible interest of his own to serve should be treated as if he were an accomplice to the extent that his evidence requires corroboration or something more than a belief in the truth thereof based simply on his demeanour and the plausibility of his evidence, that something more, must satisfy the court that the danger that the accused is being falsely implicated has been excluded and that it is safe to rely on the evidence of the suspect witness. " 8.3 The State on the other hand submitted that there is no evidence on record to suggest that PW 1 was a suspect witness or a witness with an interest to serve. We were urged to find that PWl's evidence was reliable and credible and that it was safe to rely on it to secure the appellant's conviction. 8.4 In the case of Yokoniya Mwape vs The People (supra), it was h eld that a conviction would be safe if it is based on the uncorroborated evidence of witnesses who are friends or relatives of the deceased or victim provided the court satisfies itself that on the evidence before it, that those witnesses could not be said -J16- to have had a bias or motive to falsely implicate the accused, or any other interest of their own to serve. 8. 5 We are of the view that there is no evidence on record to suggest that PWl was a witness with an interest to serve or was biased. Although she stated she was not on good terms with the appellant, we do not find that she had any motive to falsely implicate him in this matter. We are of the view that her evidence was clear regarding the manner in which the appellant picked up Easter from home on the fateful evening. 8. 6 We are fortified by the evidence on record that the clothes Easter wore on the material night were found in the appellant's house the morning that her body was found lying fifty meters away from the appellant's house. We have no doubt that PWl positively identified the appellant when he went to pick up her sister because this was a person that she knew well and further, he had spoken to Easter on the phone earlier that evening. This, in our view, provided the necessary corroboration as the clothes that she wore could not have been found in the appellant's house if she was not with him on the material night. 8.7 We are satisfied that PW l's identification of the appellant that night was reliable and we accordingly find no merit in the first -J17- and second grounds of appeal and they are accordingly dismissed. 8.8 The third ground of appeal attacks the lower court for convicting the appellant on circumstantial evidence as according to the defence, the inference of guilt was not the only reasonable inference that could be drawn on the evidence before the lower court. It was argued that the lower court's conviction of the appellant based on circumstantial evidence was unsafe and unsatisfactory and we were urged to quash the conviction. The State on the other hand argued that the evidence against the appellant was so overwhelming that it took the case out of the realm of conjecture to permit only an inference of guilt. 8. 9 In addressing this ground of appeal, we note that there were a number of odd coincidences in this matter. The first and most important odd coincidence is that the appellant picked up Easter from home the night before she was found dead 50 metres away from his house . Her clothes were also found in the appellant's house. These are the clothes that she wore the night she left home in the company of the appellant. He, on the other hand was apprehended 80 kilometres away from his home and when he was asked if he was Brian Muniwe Mukonda, he denied his own identity. It was only confirmed -J18- • when his bag was searched and he was found with a driver's licence bearing his names. <....-,. 8.10 From the odd coincidences highlighted above, it is clear to us that the evidence , although circumstantial, indeed has taken the case out of the realm of conjecture to the reality that leaves the inference of guilt on the part of the appellant, as the only reasonable one to be drawn in the circumstances. 8 . 11 We do not find it plausible on the evidence, that Easter could have been murdered by unknown people, when all the evidence points to the Appellant, who was the last person seen with Easter alive. Ground three of the appeal equally fails. 9.0 CONCLUSION 9.1 We uphold the judgment of the lower court and accordingly dismiss the appeal for total want of merit. The conviction and sentence are upheld. DEPUTY JUDG P. C. M. NGULUBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J19-