Shamasinda Kanyama v The People (APPEAL NO. 66/2024) [2025] ZMCA 108 (12 August 2025)

.. IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 66/2024 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: SHAMASINDA KANYAMA APPELLANT AND THE PEOPLE RESPONDENT CORAM: MCHENGA, DJP, NGULUBE AND CHEMBE, JJA. On 17th June, 2025 and 12th August, 2025. For t he Appellant : Ms. E. I. Banda, Senior Legal Aid Counsel Legal Aid Board For the Respondent : Ms. S. Mvula, Senior State Advocate National Prosecutions Authority JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. Machipisha Kombe vs The People (2009) Z. R. 282 2. 3. 4. R vs Wilson /1914} 58 Cr App R 304 Bernard Chisha vs The People (1980) Z. R. 36 Tembo vs The People (1974) Z. R. 332 5. 6. 7. 8. 9. Lubendae vs The People (1983) Z. R. 54 Jack Chanda & Kennedy Chanda vs The People - SCZ Judgment No. 29 Of 2002. Nsofu vs The People ( 1973) Z. R. 287 Donald Fumbelo vs The People - SCZ Appeal No. 4 76/ 2013 James Mwango vs The People - SCZ Appeal No. 171/ 2015 10. Jose Antonio Goliadi vs The People Appeal No. 26 of 2017 11. lvlwansa Mushala & Others vs The People ( 1978) Z. R. 58 12. Benson Phiri & Another vs The People (2002) Z. R. 107 13. Amchile Import & Export Limited and Others v Ian Chimanga (Tl A Tawana Business Ventures) and Another - SCZ Appeal No. 43A/ 2011 Legislation ref erred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 2. The Children's Code, Act No. 12 of 2022 1 .0 INTRODUCTION 1.1 The appellant was convicted of the offence of Murder by (Mbuzi, J.) at the Mongu High Court on 19th April, 2024 and was sentenced to life imprisonment. 1.2 The particulars of the offence were that the appellant, on 13th October, 2021 at Shangombo District in the Western Province of -J2- the Republic of Zambia murdered Kapesa Munembo . The appellant denied the charge and the Court proceeded to conduct trial. 2.0 CASE FOR THE PROSECUTION 2.1 The prosecution called five (5) witnesses in support of their case. PW 1 was Lundu Kanyanu, who testified that on the material day, he left home for the field around 04:00 hours and returned around 14:00 hours. When he returned home, PWS and Ruth Lundu, the children who had remained in the village after everyone went to the fields, told him that the appellant had beaten up the deceased (appellant's wife) around 09:00 hours. The witness stated that he had known the appellant for three years. He knew the appellant as someone who regularly picked fights with people. 2.2 The witness went to Hajaimo Sikote's place and together, they went to the crime scene which was a bushy area between the villages . PWl and his companion saw struggle marks and found the body of the deceased lying lifeless. The deceased's body had -J3- scratches on the right hand which was fractured and a deep cut on the ribcage, which resembled a wound inflicted by a stick. 2.3 His further evidence was that the footprints on the scene led straight to the appellant's house. When they reached the appellant's house, he was found lying on the bed. He was apprehended but he denied having murdered the deceased. The deceased's body was later buried and exhumed on 6 th January 2022 and a postmortem was conducted. 2.4 In cross examination, the witness confirmed that the appellant was found very drunk on the material day but at the time of his apprehension, he had sobered up. He stated that the footprints were about 70 metres away from the appellant's house. He admitted that there were other homesteads in the village but that everyone had gone to work in their fields . 2.5 PW2 was Munembo Lutangu. He stated that the deceased was married to the appellant and their marriage was characterized by violence. On the material day, he was informed that the deceased had been killed. He went to the mortuary where he identified her body. He observed that the deceased had sustained injuries on the chest area and had a broken hand. -J4- That PWl informed him that the appellant had killed the deceased. 2.6 PW3's evidence was that on the material day around 17:00 hours, he received information that the appellant had killed the deceased. His evidence was that he earlier saw the deceased with the appellant on the material day when they went to his village to look for relish around 08:00 hours. 2.7 PW4 was police Detective Mwitumwa Pumulo. She testified that she investigated the case when PW2 had complained that the appellant had murdered the deceased person. The deceased sustained injuries on her body after being beaten. She interviewed PWS who narrated how she saw the appellant beat up the deceased with a stick, which was never recovered from the scene since the body was found in the shrubs. That the witnesses saw the appellant and the deceased in a drunken stupor. The deceased's body was found naked with multiple bruises. She interviewed the appellant who did not give a satisfactory explanation. He was charged with the subject offence and he denied the charge. -JS- 2.8 A postmortem was conducted on the body of the deceased and the cause of death was found to be homicidal violence after the deceased sustained a broken left arm. 2.9 In cross examination, PW4 admitted that both the appellant and the deceased were reported drunk on the material day. That the appellant informed her that he could not remember anything that happened on the material day because he was drunk. 2 .10 PWS was a child witness whose sworn evidence was received after a successful voire dire. Her evidence was that on 13th October 2021, around 09:00 hours, she saw the appellant beating the deceased with a stick. After that, he told the deceased to get up and go and cook for him but she remained lying on the ground. The appellant left the deceased at the crime scene. That she later learnt from PWl and PW2 that the appellant was found sleeping in his house. The body was found at the crime scene. She stated that she observed the incident from a distance of about 60 metres away. 2. 11 In cross examination, she stated that the deceased was drunk on the material day but denied that the appellant was trying to get her to go home. She stated that she did not see the -J6- deceased's injuries because she was 60 metres away from the crime scene. She denied that the incident was as a result of mutual aggression between the appellant and the deceased and insisted that the appellant was responsible for the aggression. 2.12 The child witness explained that she did not call for help because the village was deserted at the time as villagers went to their fields. She denied having heard prior reports of the appellant being violent. 2.13 In his defence, the appellant stated that he was drinking on the material day. When he went home, he asked his child where the deceased was but she did not know. That he continued drinking and lost his reasoning. He could not recall what transpired after that. He later learnt that the deceased was drinking beer in another village. He was apprehended on allegations of the subject offence. It was also his defence that the children were told to implicate him. He explained to the police that he could not recall what transpired and did not know anything about beating the deceased to death . -J7- 2. 14 In cross examination, he admitted that he was voluntarily intoxicated on the material day. He admitted that he was known as a drunkard but he only lost his reasoning on the material day. 3.0 THE LOWER COURT'S FINDING AND DECISION 3.1 The lower Court found that the case rested on the evidence of a single witness (PWS), which was clear and satisfactory in every material respect. The Court also found that PWS's evidence was reliable because she knew the appellant prior to the incident, and witnessed it from a distance of about 60 metres in broad daylight. The lower Court found that PWS was capable of recognizing the appellant at that distance. 3.2 Further, the lower Court did not find the appellant's defence that PWS was told to implicate him credible, because he did not cross examine the witness on this a llegation. That there was no reason to falsely implicate the appellant. The Court found that the mere fact that a drunken person does not remember what transpired does not necessarily mean that he lacked the mental capacity to commit the offence. That his conduct on the material day leads to an inference that the appellant knew what he was doing. The Court also found that the appellant could only rely on the defence of intoxication if it led to temporary insanity but in this case, the appellant was not intoxicated at the time of commission of the offence. 3.3 The Court did not find any extenuating circumstances and convicted the appellant for murder of the deceased. He was sentenced to life imprisonment. 4.0 THE APPEAL 4.1 The appellant was dissatisfied with the conviction and sentence and appealed to this Court advancing three (3) grounds of appeal couched as follows- 1. The learned trial Judge erred in law and fact when he ignored the statutory requirement for corroboration in relation to a witness of tender age; 2. The learned trial Judge misdirected himself in law and fact when he did not accept the defence of intoxication on the facts of the case; and 3. In the alternative, the learned trial Judge misdirected himself in law and fact when he failed to analyse that there existed extenuating circumstances of intoxication on the record to warrant a sentence other than life. -J9- 5.0 THE APPELLANT'S ARGUMENTS 5.1 In support of ground one, Counsel for the appellant submitted that the key witness was a child of tender years (PWS). That while the Court can convict on the evidence of a single identifying witness, the evidence of a child witness must be treated differently. Citing the cases of Machipisha Kombe vs The People1 and R vs Wilson,2 Counsel submitted that there was no corroborative evidence or evidence of something more which ruled out the danger of false implication. That further, the evidence of PWS was weakened by the requirement for corroboration under Section 78(9) of the Children's Code, which the lower Court did not consider. 5. 2 Counsel also relied on the case of Bernard Chisha vs The People3 where it was observed that due to immaturity of mind, a child of tender years is susceptible to influence of third persons and therefore their evidence requires corroboration. For this reason, Counsel argued that the evidence of PWS should be discounted because it was unreliable. That once this evidence is discounted, there are no reasons to convict the appellant. -JlO- 5.3 In support of ground two, it was contended th at the trial Court erred when it did not accept the defence of intoxication. Counsel faulted the trial Court's finding that the appellant was not drunk on the material day. She argued that the evidence of PWl showed that he found the appellant lying on the bed drunk. That PW4 also stated that sh e learned that th e appellant and the deceased were both drunk on the material day. 5.4 In relying on the case of Tembo vs The People, 4 it was argued that in the face of evid en ce that the appellant was drunk on the material day, the trial Judge should have found that the defence of intoxication was available to the appellant. That the Court should have found that the appellant was incapable of forming the intent to commit murder in accordance with Section 13(4) of the Penal Code. 5. 5 Counsel made reference to the Case of Lubendae vs The People5 where it was held that when it comes to evidence of drunkenness, evidence must be led to establish that the drinking affected the appellant's capabilities and rendered him incapable of forming the intention to commit the offence. Accordingly, Counsel submitted that there appeared to be -Jll- evidence from PW3 that the appellant was very drunk and had no recollection of what happened. 5.6 In support of ground three, it was alternatively contended that the trial Court should have found extenuating circumstances to warrant a sentence other than life imprisonment. That since the appellant proffered evidence of intoxication, the Court should have found that there was extenuation. Counsel relied on Section 201(2) of the Penal Code which defines extenuating circumstances. 5.7 In arguing that the evidence of drinking amounts to extenuating circumstances, reference was made to the case of Jack Chanda & Kennedy Chanda vs The People. 6 6.0 THE RESPONDENT'S ARGUMENTS 6.1 In response to ground one, it was submitted that the use of the word 'may' in Section 78 (9) of the Children's Code Act No. 12 of 2022, does not make it mandatory for the evidence of a child witness to be corroborated. That even though this may be so, the evidence that was adduced before the trial Court was however corroborated. -J12- 6.2 It was submitted that the fact that PWS informed PWl about the assault, showed him the crime scene and the fact that PW 1 accordingly found the body of the deceased with injuries, amounts to something more and can be construed as corroboration. That this is further corroborated by the postmortem report which shows that the cause of death was homicidal violence. 6.3 Citing the cases of Machipisa vs The People (supra) and Nsofu vs The People, 7 Counsel submitted that there was sufficient corroboration to support PWS's evidence and therefore it was reliable as rightly established by the trial Court. 6.4 In response to ground two, it was contended that the trial Judge was on firm ground in not accepting the defence of intoxication. Relying on the case of Donald Fumbelo vs The People, 8 it was submitted that the defence of intoxication was an afterthought because it was never raised in cross examination of the prosecution witnesses and the appellant did not give a precise account of his movements on the material day. Counsel made reference to the case of James Mwango vs The People9 and a rgued that his defence was an afterthought. -J13- 6.5 It was argued that the lower Court was on firm ground when it rejected the defence of intoxication as provided for in Section 13 of the Penal Code. That this finding was correctly made because there was no evidence on the record to suggest that the appellant was drunk at the time he brutally murdered the deceased . It was Counsel's suggestion, that if the appellant was drunk, he could not have hit the deceased in the manner he did. 6.6 In response to ground three, it was submitted that the trial Court could not h ave found extenuating circumstances since defen ce Counsel rightly informed the trial Judge that there were no extenuating circumstances in this case. Counsel made refer ence to the case of Jose Antonio Goliadi vs The People10 where the Supreme Court held that: "We must emphasize that trial Courts must be wary of finding drunkenness as an extenuating circumstance in every case where the offence is committed at a drinking place or where the accused claims he was drinking or was drunk. It is important to consider the peculiar facts instead of applying drunkenness as an extenuating circumstance in every case which would lead to injustice." -J14- 6. 7 Counsel argued that just because the appellant smelled of alcohol at the time he was apprehended, is not sufficient to conclude that he was in a drunken state. Counsel also argued that the evidence on the record merely points to the fact that the appellant is a violent person. 6.8 Counsel prayed that the appeal should be dismissed as it lacks merit. 7.0 HEARING OF THE APPEAL 7 .1 At the hearing of the appeal, Counsel from both sides entirely relied on the heads of argument filed into Court. 8.0 CONSIDERATION AND DECISION 8.1 We have carefully considered the Judgment appealed against, the grounds of appeal and the parties' arguments. This appeal raises the following two issues: firstly, whether the trial Court ignored the statutory requirement for corroboration in relation to a witness of tender years; and secondly, whether the trial Court ought to have accepted the defence of intoxication or ought to have found it as an extenuating circumstance to warrant a sentence other than life imprisonment. -JlS- 8.2 On the first issue, th e current law on the corroboration of a child's evidence is provided for in Section 78(9) of the Children's Code Act No. 12 of 2022. It provides that- "A juvenile court or Children's Court may, having regard to the nature and circumstances of the offence in question, require evidence presented before the juvenile court or Children's Court to be corroborated by some other material evidence." 8.3 The above provision of the law s hows that the r equirement for corroboration of a child's evidence is discretionary, not mandatory. The Court may require corroboration, depending on the n ature and circum stan ces of the offence. This provision gives the Court flexibility in evaluating the evidence presented by a child witness. 8.4 This is in contrast to the repealed Juveniles Act, Chapter 53 of the Laws of Zambia, under Section 122(b) which specifically provided that if a child testified on behalf of th e prosecution, the accused could not be convicted unless the child's evidence was corroborated by other m aterial evidence implicating the accused. -J16- • 8 .5 We are of th e considered view that the specific circumstances of this case do not necessitate corroboration. 8.6 That being said, we concur with Counsel for the respondent that the child's evidence was still corroborated by the evidence of PWl. The child witness (PWS) testified witnessing the appellant assaulting the deceased. The child informed PWl about what transpired and showed him where the incident occurred. PWl found the deceased's body lying lifeless with body injuries after he was informed by the child witness of what she saw. 8 . 7 We are of the considered view that the evidence of PWS was credible and reliable. The fact that PWS knew the appellant prior to the incident and witnessed the incident from a distance of about 60 metres in broad daylight, lends credence to her testimony. The postmortem report also corroborates her evidence as to how the deceased met her fate on the material day. 8.8 We are mindful of the guidance of the Supreme Court in the case of Mwansa Mushala vs The People 11 that- "Although recognition may be more reliable than identification of a stranger, even when the witness is -Jl 7- purporting to recognise someone whom he knows, the trial judge should remind himself that mistakes in recognition of close relatives and friends are sometimes made, and of the need to exclude the possibility of honest mistake." 8.9 From the foregoing authority, there is a possibility of an honest mistake even in cases of recognition. However, the lower Court correctly applied these principles. 8.10 Additionally, the case of Benson Phiri & Another v The People12 guides that the testimony of a single witness who knew the accused prior to the incidence in issue is adequate to support a conviction. This ground of appeal therefore fails. 8.11 With regard to the second issue, the appellant contends that the lower Court should have accepted the defence of intoxication or ought to have found extenuating circumstances. 8.12 With regard to the appellant's alleged intoxication, the trial Court made a finding that the appellant was not intoxicated at the time of commission of the offence. The court reasoned that the testimony of PW4 was that the appellant was drunk on the material day and she obtained this information from the -J18- • appellant himself. That PWS equally told the Court that the deceased was in a drunken stupor but could not tell the Court how she was able to tell that the deceased was drunk from a distance of about 60 metres and therefore merely gave an opinion. The trial Court also made the following finding- "On the side of the state, the evidence of PWS, the only eyewitness to the events, was that the assault occurred at 09:00 hours. This was uncontroverted. The other evidence is from PW3 who said that around 08:00 hours, the accused and the deceased were at his house to buy relish. Although the distance between PW3's and the accused person's village, and the time one would take to walk across that distance is unknown, I find a high possibility that it was immediately after leaving PW3's house that the events in consideration occurred. If this be true, the whole explanation by the accused person that he drank his alcohol from Shangombo Boma is not captured within the material time. I say so because, although he did not state what time he left for Shangombo Boma, he returned at 11 :00 hours, after the deceased had died ...... In finally considering these factors, I have no hesitation in finding that the accused committed this offence around 09:00 hours before he got drunk. At -J19- that time, he could not be said not to have known what he was doing or knowing that what he was doing was wrong." 8.13 There are a plethora of authorities as to when the appellate Court can reverse findings of fact made by the trial Court. In the case of Amchile Import & Export Limited and Others v Ian Chimanga (TIA Tawana Business Ventures) and Another13 the Supreme Court restated its position as follows: "To succeed, a party urging an appellate court to reverse findings of fact by a trial court, must demonstrate that the trial court made findings which were perverse or in the absence of relevant evidence, or upon a misrepresentation of facts, or that on a proper view of the evidence before the court, no trial court properly directing its mind to it could make those findings." 8 .14 The appellant's defence of intoxication hinges on the claim that he was drunk at the time of the incident. However, the evidence pr;esented in Court does not support this assertion. PW3 who interacted with both the appellant and the deceased around 08:00 hours, did not mention that the appellant was drunk. Further, from the evidence on record, PWS stated that the -J20- • deceased was drunk but made no mention of whether the appellant was drunk. PW4, the police officer, claimed that the appellant told her that he was drunk. However, this does not speak to the appellant's state of mind at the time of the incident. 8 .15 The trial Court found that the events occurred around 09:00 hours, shortly after the appellant and the deceased left PW3 's house. Given the evidence, the trial Court's finding that the appellant was not drunk at the time of the incident is well supported. The appellant's claim of intoxication is not corroborated by credible evidence, and the timing of events suggests that the appellant's explanation was not plausible. We find no fault in the lower Court's finding that the appellant's defence of intoxication was an afterthought. This ground of appeal therefore fails. 8.16 In the view we have taken, it follows that having agreed with the trial Court that the appellant was not drunk at the time of the incident, it cannot be used an extenuating circumstance. Ground three of the appeal cannot therefore succeed. -J21- 9.0 CONCLUSION 9 .1 In light of the foregoing, we do not find merit in the appeal and it is accordingly dismissed. The conviction and sentence of the lower Court are upheld. DEP ~ P. C. M. NGULUBE Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J22-