Charles Nyirongo v The People (APPEAL No.42/2023) [2025] ZMCA 118 (13 August 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No.42/2O23 HOLDEN AT LUSAKA AND NDOLA (Criminal Jurisdiction) CHARLES NYIRONGO APPELLANT AND THE PEOPLE RESPONDENT Coram: Mchenga DJP, Ngulube and Chembe, JJA On 25th March 2025 and 13t h August 2025 For the Appellant: M. Kapukutula, Senior Legal Aid Counsel Legal Aid Board For the Respondent: V. Choongo, State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court Cases referred to: 1. Chimbo v. The People [1982] Z. R. 151 2. Bwanausi v. The People [1977] Z. R. 103 3. David Zulu v. The People [ 1977] Z. R. 15 1 4. Nalisa Sikota v. The People, CAZ Appeal No. 2 of 109 5. Musupi v. The People [1978] Z. R. 271 6. Ezious Munkombwe and Others v. The People, CAZ Appeals No. 7,8 and 9 of 2017 7. Joseph Banda and Ashanti Tonga v. The People, SCZ Appeals No . 41 and 42 of 2071 J2 8. Martin Mupeta and Another v. The People, SCZ Appeal No. 137 of 2012 9. Kayolo Mwanamwale and Another v. The People, SCZ Appeals No. 60, 61 Of 2017 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION 1.1 The appellant, William Kondowe and Gomezyani Mkandawire, appeared before the High Court (Shonga, J.), jointly charged with the offences of aggravated robbery, contrary to Section 294(1) of the Penal Code, and murder, contrary to Section 200 of the Penal Code. 1.2 They all denied both charges and the matter proceeded to trial. 1.3 At the end of the trial, the appellant was convicted for committing both offences, while William Kondowe and Gomezyani Mkandawire, were acquitted of both charges. 1.4 The appellant was sentenced to 15 years imprisonment for the robbery, and condemned to su ffer capital punishment, for the murder. 1.5 He has appealed against his conviction for both offences. J3 2.0 CASE BEFORE THE TRIAL COURT 2.1 On 18t h July 2016, around 15:30 hours, Mauz Mohammed Zakaria Ibrahim's charred body, was discovered along Shantumbu Road, outside Lusaka National Park. 2.2 Two days later, a pathologist concluded that the cause of his death was strangulation. 2.3 Mauz was last seen alive by his brother, Amaar Mohammed, on 16th July 2016. On that day, he left home in the company of two Indian friends, driving his Toyota Spacio. 2.4 On 17 th July 2016, around 15:00 hours, Joseph Mwanza saw Mauz's Toyota Spacio being driven into the yard of House No. 10 Mwatusanga Road, in Woodlands, Lusaka. The appellant was a passenger in that car. At the time, the appellant and Joseph Mwanza were both residing at that address. 2.5 Later that afternoon, Grace Mwanakasale, a maid at No. 10 Mwatusanga Road, found the appellant working on Mauz's car. The car remained at that yard until 20th July 2016. 2.6 On 20th July 2016, the appellant, William Kondowe and Gomezyani Mkandawire, drove the car to Lusaka's Mandevu Compound, where they offered it for sale to Nafitali Mushanga at K25,000.00. J4 2. 7 Nafitali Mushanga managed to link the appellant, William Kondowe and Gomezyani Mkandawire, to Andrew Tembo. On 21 st July 2016, Andrew Tembo bought the car, he paid a deposit of KB,000 .00 to William Kondowe and Gomezyani Mkandawire. The appellant was not present on that day. 2.8 In the meantime, and in particular, on 18th July 2016, Amaar Mohammed, reported the missing of his brother to the police. 2. 9 Police investigations established that Mauz's phone had received a number of calls between his disappearance and the day his lifeless body was discovered. 2.10 The investigations also led the apprehension of the appellant and Gomezyani Mkandawire, at Lusaka's Intercity Bus Terminus, on 23r d July 2016. Following his apprehension, the appellant was searched and found with Mauz's bank card and iPhone. 2. 11 In the course of investigating Mauz's death and the theft of his car, the police detained Joseph Mwanza, Grace Mwanakasale, Andrew Tembo and Nafitali Mushanga. JS 3.0 GROUNDS OF APPEAL AND SUBMISSIONS BY COUNSEL 3 . 1 The sole ground of appeal is that the trial Judge 'erred both in law and in fact by convicting the appellant on insufficient circumstantial evidence'. 3.2 On the basis of the decision in Chimbo v. The People 1 , Mr. Kapukutula submitted that the detention of Joseph Mwanza, Grace Mwanakasale, Nafitali Mushanga and Andrew Tembo, affected the credibility of their evidence. They became suspect witnesses and their evidence required corroboration. 3 .3 Mr. Kapukutula also referred to the case of Bwanausi v. The People2 , and submitted that since there was evidence that Mauz received a number of calls after he left with his Indian friends , it is possible that his Indian friends or the people who called him, could have committed the offences. 3.4 Mr. Kapukutula then submitted that in the circumstances, an inference of guilt, as espoused in the case of David Zulu v . The People3 , was not the only inference that could have been drawn on the evidence that was before the trial Judge. 3.5 In response to these argumen ts, Mr. Choongo referred to the cases of Nalisa Sikota v. The People4 and Musupi v. The People5 and submitted that the mere fact that Joseph Mwanza, J6 Grace Mwanakasale, Nafitali Mushanga and Andrew Tembo, were detained, and in the absence of evidence that they had a motive to falsely incriminate the appellant, did not render the witness suspect. 3.6 Mr. Choongo also referred to the cases of Ezious Munkombwe and Others v. The People6 and Joseph Banda and Ashanti Tonga v. The People7 and submitted that when the evidence is considered in totality, the trial Judge was entitled to draw an inference that the appellant committed the offences. 3. 7 He went on to submit that on the basis of the doctrine of recent possession, the trial Judge was entitled to come to the conclusion that the appellant murdered Mauz and robbed him of his car. This submission was anchored on the case of Martin Mupeta and Another v. The People 8 • 4.0 CONSIDERATION OF APPEAL 4.1 We will first deal with the testimonies of Joseph Mwanza, Grace Mwanakasale, Nafitali Mushanga and Andrew Tembo, whose credibility has been attacked because they were detained. 4 .2 In the case of Kayolo Mwanamwale and Another v. The People9 , it was held that a person who is detained 1n connection with an offence must be treated a s a suspect J7 witness. Such a person is treated on the same footing as an accomplice. 4.3 It follows, that the evidence of such a witness requires corroboration, unless the court finds that there are special and compelling grounds for convicting on the uncorroborated evidence of the witness. 4.4 In other words, the court finds that although the witness was detained, there is no reason why the witness could have falsely incriminated the appellant. 4.5 In this case, the trial Judge did not make such a finding. 4.6 However, it is our view that there was evidence that corroborated the testimony of the said detained witnesses. 4. 7 First of all, it is not in dispute that Mauz's car was taken to No. 10 Mwatusanga Road, Woodlands, because th e appellant admitted that fact. This a dmission corroborates Grace Mwanakasale's evidence that she found the appellant working on the car at that house. 4.8 As regards Nafitali Mushanga and Andrew Tembo's evidence that the appellant was involved in the sale of Mauzi's car to Andrew Tembo , the appellant's possession Mauz's bank card and iPhone, does corroborate that evidence. 4. 9 It would be an odd coincidence that a person who is falsely J8 accused of selling a man's car soon after that man disappeared, is also found with the disappeared man's bank card and iPhone. The fact that the appellant was found with Mauz's bank card and iPhone, articles that Mauz had, in addition to the car, before he disappeared, does give credence and corroborate Nafitali Mushanga and Andrew Tembo's evidence, that the appellant was involved in the sale of Mauzi's car to Andrew Tembo. 4.10 Had the trial Judge considered that evidence, she would have ruled out the possibility of all the witnesses who were detained in connection with the sale of Mauz's car, falsely incriminating the appellant, because their evidence was corroborated. 4.1 1 The issue that then follows is whether on this evidence, the trial Judge came to the right conclusion when she surmised that the only inference that could draw on the evidence that was before her, was that it was the appellant who robbed Mauz of his car and murdered him. 4 .12 It is our view that on the evidence before her, the trial Judge was entitled to come to that conclusion. 4.13 On the day he was last seen, Mauz's car was seen where the J9 appellant resided. Two days later, the appellant and others offered his car for sale claiming that it was theirs . 4.14 On this evidence, we are satisfied that no other conclusion could have been drawn, other than the conclusion that the appellant was party to the robbing of Mauz of his car and his murder. 5.0 VERDICT 5 . 1 We find that the sole ground of appeal has no merits and as a result, we dismiss the appeal and uphold the appellant's conviction for both the aggravated robbery and the murder. 5.2 We also uphold the sentences imposed on the appellant. ~v ......... l .......... ; .... ~ ...... . C. F. R. Mchenga DEPUTY JUDGE PRESIDENT ... (/r-C-..)\_F_"p ..,.,_ - ... ...... .. ....... ........... ... .......•. : \ P. C. M. Ngulube COURT OF APPEAL JUDGE fle(/7,M_ ....................•......... ...... ...... Y. Chembe COURT OF APPEAL JUDGE