Chikomo Mazima v The People (Appeal 67/2024) [2025] ZMCA 101 (15 August 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL 67 /2024 BETWEEN: CHIKOMO MAZIMA AND THE PEOPLE I 1 5 A IJG 7025 APPELLANT RESPONDENT CORAM: MCHENGA DJP, NGULUBE AND CHEMBE JJA On 17th June 2025 and 15th August 2025 Ji'or the Appellant For the Respondent . . . . Mr. K. Katazo - Senior Legal Aid Counsel, Legal Aid Board Mr. R. L. Masempela - Deputy Chief State Advocate, National Prosecution Authority JUDGMENT Chembe, JA, deliver ed the judgment of the Court. Cases referred t o: - 1. David Zulu v The People ( 1977) ZR 151 2. Saidi Banda v The People SCZ Appeal No. 114 of 2015 .3. Saluwema v The People ( 1965) ZR 4 CA 4. Mbinga Nyambe v The People (2011) ZR Vol 1 246. s. Haonga v The People (1976) ZR 200 (SC) 6. Yotam Matanda vs The People (1988 - 1989) ZR 129 7. Lameck Namushi and Another vs The People Appeal No. J2 45, 46/2020. 1.0. INTRODUCTION 1.1 The Appellant appeared before the High Court on one count of Murder contrary to section 200 of the Penal Code chapter 87 of the Laws of Zambia. Particulars of the offence alleged that on 10th July 202 1at Kaoma, the Appellant murdered Emelder Lubingi. 1.2 He was tried and convicted by Mbuzi J and sentenced to life imprisonment with hard labour. 2.0. THE EVIDENCE IN THE COURT BELOW 2.1 The prosecution called three witnesses in support of its case. The main testimony given by PWl, Jenala Lilanda (the Appellant's wife and deceased's mother). She stated that on 10th July 202 1, her husband, the Appellant herein, returned home at around 20:00 hours. She offered him some food. An altercation ensued in which the Appellant accused h er of having left the house . The Appellant physically assaulted her by kicking her. ' 2.2 It was PWl 's evidence that she was carrying her 3 month old J3 daughter on her back during the incident. She ran out of the house. The Appellant followed her outside and started collecting grass. She observed him set fire to the house. 2.3 PWl testified that she re-entered the house and collected some blankets and clothes. The Appellant grabbed the child from her back. She then ran to seek help at the Appellant's mother's residence. She also informed her sister. When she returned to the house accompanied by the Appellant's sister and Joseph, the house was engulfed in flames . 2.4 According to PWl 's testimony, the Appellant stood at a distance, watching the house burn. When questioned about the whereabouts of the deceased, the Appellant stated that he was unconcerned about the child. PWl then lit a torch and observed that the deceased had been burned to death in the fire. The following morning, the remains of the deceased were taken to Kaoma District Hospital. 2.5 PW2 , Joseph Mazima, testified that on the material day, PWl informed him that the Appellant had set their house on fire . Approximately 30 minutes later, the Appellant arrived at PW2 's home. PW2 inquired about the whereabouts of the C deceased, to which the Appellant replied that the deceased J4 was at home. PW2, the Appellant, and PWl then returned to the burning house. Upon arrival, they lit a torch and discovered the deceased's body, which had been burnt, near the entrance of the house. It was his evidence that PWl pushed the Appellant into the fire and he rescued him. The Appellant sustained burns to his elbows, hands and legs. 2 .6 PW3, Mbuzi Ruth, testified that while on duty at Kaoma Police Station she was assigned a murder case. On 13th July 2021, PW3 attended the postmortem examination of the deceased and noted that the body was completely burnt, with the skin, skull, and intestines exposed. Additionally, PW3 observed fractures on the right side of the ribs and both hands. On 23rd September 2021, PW3 conducted a visit to the crime scene and found the house entirely burnt down. Based on the investigation and the evidence collected, PW3 charged the Appellant with the offence of murder. 2.7 In his defense, the Appellant testified that on the night in question, he was at home with his wife, PWl, when he noticed a fire burning behind their house. He instructed PWl to remove some belongings from the house. When he noticed JS that deceased was not with them, he attempted to go back into the burning house to get her. He sustained burns to his hands and was restrained by PW 1. 2.8 The Appellant then proceeded to PW2's house to seek help. He informed PW2 that the house had burnt down together with the child and the household goods. Upon returning with neighbours to extinguish the fire, they searched for the deceased and found the body burnt in the bedroom. The following morning, the police officers arrived and apprehended the Appellant. He denied having set fire to the house. The Appellant did not call any witnesses. 3.0. THE DECISION OF THE TRIAL COURT 3 .1. After reviewing all the evidence, the trial Judge determined that the case was anchored on circumstantial evidence and noted that it was undisputed that the Appellant and the deceased were the only people in the house. The Judge found the testimony of PW 1 credible and made a finding of fact that there was no basis for PW 1 and PW2 to falsely implicate the Appellant. The Judge concluded that the only logical conclusion was that the Appellant set the house on fire and J6 pushed the deceased into the fire with malice aforethought causing the deceased to burn to death. 3.2. The Court con victed the Appellant of murder and finding no extenuating circumstances, sentenced him to life imprisonment. 4.0. GROUNDS OF APPEAL AND ARGUMENTS IN SUPPORT OF THE APPEAL 4.1 Disenchanted with the decision of the trial court, the appellant filed this appeal advancing one ground as follows: The Learned trial Judge in the lower court erred in law and fact when he convicted on circumstantial evidence which did not raise the inference of guilt as the only inference. 4.2 In t h e arguments in support of the appeal, the Appellant referred to the case of David Zulu v The People 1 and argued that the evidence did not move the case from the realm of conjecture as there were no facts upon which the trial court could have drawn an inference that he threw the baby into the fire. • 4.3 Relying on the case of Saidi Banda v The People 2 , it was J7 submitted that the facts established by the prosecution did not form a chain from which the only conclusion that could be drawn was that the Appellant threw the baby in the fire. 4.4 It was argued that the evidence adduced was contradictory as PWl had stated that she went back to the house with PW2 and the Appellant's sister whilst PW2's testimony was that he accompanied the Appellant and PWl back to the burning house. The Appellant submitted this contradictory evidence showed that they were both lying. 4.5 The Appellant lamented the prosecution's failure to call his mother and elder sister who were referred to by PW 1. We were referred to the case of Saluwema v The People 3 in support of the submission that the trial court should have accepted the Appellant's version of events as it was reasonably possible . We were urged to allow the appeal. 5 .0 RESPONDENT'S ARGUMENTS 5 .1 The Respondent filed h eads of arguments in opposition on 17th June 2025 with leave of court. The Respondent supported the judgment of the trial court and submitted that JS the circumstantial evidence was cogent. Reference was made to the case of Mbinga Nyambe v The People4 • 5.2 It was submitted that the evidence showed that the Appellant had grabbed the deceased from PWl 's back when the house was on fire . PWl ran for help and when she returned with others the Appellant was standing outside without the deceased who was later found burnt in the house. The Respondent contended that the deceased was in the custody of the Appellant when she died and the only reasonable conclusion that could be drawn is that the Appellant threw her into the fire. 5.3 A further argument by the Respondent was that the Appellant had lied on material issues thereby rendering his testimony unreliable. It was submitted that he lied about the cause of his injuries and the position of the deceased's body. We were referred to the case of Haonga v The People 5 where it was held that lying on a material point reduced the credibility of the witness. 6 .0 HEARING 6.1 At the hearing, both parties relied on their respective written arguments. 7.0 CONSIDERATION AND DETERMINATION J9 7 . 1 We have thoroughly reviewed the evidence presented in the lower court as well as the judgment delivered on 28th July, 2023. The issue for determination is whether the prosecution evidence revealed sufficient facts from which the only logical conclusion that could be drawn is that it was the Appellant who caused the deceased's death. 7 .2 As guided by the Supreme Court in the case of David Zulu v The People (supra) , in order for the court to rely on circumstantial evidence, the evidence must take the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt. 7 .3 The case of Saidi Banda v The People (Supra) encouraged a reasoned step by step approach 1n dealing with circumstantial evidence. The prosecution's case relied on the testimony of PWl who testified that on the fateful day she had a misunderstanding with the Appellant in the evening. Following the altercation, she saw the Appellant set the house on fire. • 7.4 It was her testimony that she was carrying the deceased on JlO her back at that time. She entered the burning house and retrieved some items. When she got outside, the Appellant grabbed the deceased. She also testified that the Appellant remained alone with the deceased when she went to get help. PWl remained unshaken under cross examination. 7.5 This evidence was supported by PW2 whose testimony was that the PWl informed him that the Appellant had set fire to the house. PW2 also told the Court that the Appellant also went to his house and when asked about the baby, he responded that the baby was at home. The Appellant did not state that the deceased was in the burning house. 7.6 PW2 also corroborated PWl's evidence on the circumstances under which the Appellant sustained burn wounds which was that he was pushed into the fire . PWl 's reaction to discovering her child burning in the fire, lends credence to her evidence that the child had been in the Appellant's custody before she left to get help. This evidence contradicts the Appellant's version that he got burnt as he attempted to enter the burning house to retrieve the baby. 7. 7 The Appellant has argued that there were material Jll contradictions between the evidence of PWl and PW2 regarding whether the Appellant went to PW2's house or that he remained alone with the deceased. However, the record of appeal shows that PW2 's evidence was that after he had advised PW 1 to go and inform other relatives, the Appellant also arrived at his house after 30 minutes. The Appellant confirmed this in his testimony at page 46 of the record. When asked about the child, the Appellant stated that the child was at home. Clearly the above scenario shows that at some point the Appellant was alone with the deceased. 7 .8 On the other hand the Appellant's version was that he was in the house with PWl and the deceased when he noticed the fire. He started removing items form the house. He later realized that the deceased was in the burning house. He tried to enter the house to collect the deceased but he got burnt as the fire had grown. It was his evidence that it was at that point that PWl went to seek help. According to h im, with the help of other people the house was dismantled and the deceased was found charred in the bedroom near the wall. The deceased's body was moved from the bedroom to the J12 centre of the house. 7.9 In our view, the Appellant's version of events cannot possibly be true as he discovered the baby was missing before other people came on the scene. He did not call for help or try to put out the fire. The evidence of PWl and PW2 was that it was only realized that the baby was not safe when the Appellant failed to account for her. PWl 's reaction upon realizing that the child was missing, i.e. pushing the Appellant into the fire, lends credence to the evidence that the child had been in the Appellant's custody prior to her returning. We doubt that she would have reacted in that manner if she had accidentally left the child in the burning house. 7.10 The Appellant's evidence was quiet incredible. There was no explanation for why he followed PWl to PW2's house and left the house burning. He lied when he told PW2 that the child was at home when in fact he knew that she was in the burning house. His explanation as to how the deceased's body was found at the entrance of the burning house was also bizarre. It defies logic that the deceased's body could J13 have been moved from the bedroom to the smoldering entrance of the house. This was a feeble attempt to explain how the body of the deceased he alleged was in the bedroom found itself at the entrance. The inconsistencies in the Appellant's version of events affect his credibility and makes his testimony unreliable. We cannot fault the trial Judge 's finding that the Appellant's evidence was not truthful and could not be relied on. 7 .11 We are of the considered view that the Appellant's failure to give a reasonable explanation leads to an inference of guilt that he started the fire and left the deceased to burn to death as that is the only inference that can be drawn from the facts before us. We refer to the Supreme Court decision of Yotam Manda v The People6 where trial courts were guided to draw an infer ence of guilt if it was the only inference that could be drawn on the facts presented. 7.12 The evidence also showed that the Appellant was the last person seen with the deceased. PW 1 was alone when she went to seek help and shortly thereafter when questioned about the whereabouts of the child by PW2, the Appellant stated that she was at home. This demonstrates that the J14 Appellant was last person seen with the deceased who was subsequently found burnt to death in the house. We refer t o the case of Lameck Namushi and Mutondoluneta Njongolo7 where the Supreme Court in expounding the 'last seen theory' stated the following: "The last seen theory may be a weak kind of evidence by itself to found a conviction upon the same singularity. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused and the recovery of the corpse being in very close proximity of time the accused owes an explanation ... with regard to the circumstances under which the death may have taken place.'' 7 .13 It is our considered view that the Appellant being the last person seen with t h e deceased lamentably failed to explain h ow the deceased ended up in the fire. Applying the last seen principle and the cir cumstantial evidence in this matter, we find no plausible reason to disagree with the learned trial Judge's conclusion that the Appellant murdered the deceased. 8.0. CONCLUSION .. :l • JlS 6.1. We are satisfied that the circumstantial evidence herein was so overwhelming that the trial Court could only infer that the Appellant murdered the deceased. We find no basis in interfering with the conviction. The appeal lacks merit and is dismissed. P. C. M. NGULUBE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE