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IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 128/2009

HOLDEN AT LUSAKA
(Civil Jurisdiction)

BETWEEN:
NYAMBE MUKENA APPELLANT
AND
THE PEOPLE RESPONDENT

Coram: Chibesakunda, Chibomba and Phiri JJS.

1st September, 2009 and on 8th May 2012

For the Appellant : Mr. S. Imasiku of Messrs Imasiku and Company

For the People : Mrs. R. N. Nkhuzwayo, Deputy Chief State Advocate
______________________________________________________________________________
JUDGMENT
__________________________________________________________________
Chibesakunda, JS., delivered the Judgment of the Court.
Cases referred to

(1) Kambarange Mpundu Kaunda v The People (1992) S.J 1 (S.C)

(2) DPP v Kilbourne (1973) 1 All E.R. 440
(3) The People v Swillah (1976) Z.R. 338
(4) Haamenda v The People (1977) Z.R. 184
(5) Kabala and Masefu v The People (1981) Z.R. 102
(6) David Zulu v The People (1977) Z.R. 151
(7) Dorothy Mutale and Richard Phiri v The People (1997) S.J. 51 (S.C)

The Appellant was charged and convicted on one count of

murder contrary to Section 200 of the Penal Code, Cap 87. The

particulars allege that he, Nyambe Mukena, on the 2nd day of

August, 2007 at Imatongo Village in the Senanga District, of the

Western Province, of the Republic of Zambia, jointly and whilst

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acting with other persons unknown, did murder one Kawama

Sitwala.

The evidence for the prosecution on which he was convicted is

that PW1 and PW2, relatives of the deceased, Kawana Sitwali, on

the 2nd August, 2007 woke up around 05:00 am. Both around that

time saw a stranger moving in the vicinity of the house of the

deceased. This stranger kept moving to and from the house of the

deceased and to near the place the villagers used to use as a toilet.

He was on the path leading to the toilets. At that time, the

deceased was getting ready to go to the Boma. He was looking at

his bicycle making sure that it was road worthy before his

departure. PW1’s and PW2’s testimony is that they also were

preparing to go to a funeral house in the nearby village. They both

testified that they found this stranger to be a person they have

never seen before. They observed that he kept standing and sitting

down whenever he felt tired. According to PW1, she observed the

man for three hours on the same spot. According to PW2, she even

tried to go and chase him as he was a nuisance because he was in

their way to the place they used as a toilet. Later, the deceased
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started walking as he pushed his bicycle to the Boma. At that point

in time, the stranger also then disappeared; the witnesses did not

know where he went. Ten minutes later, they heard two gun shots.

They went to the direction where the gun shots were coming from

and found the deceased lying in a pool of blood with gun shot

wounds. The two witnesses further informed the court that this

stranger had stayed on the side of the path on which the deceased

was walking to go to the Boma. PW1 identified at the identification

parade, the young stranger as the Appellant.

PW3, another villager, testified that on that same day, the 2 nd

August, 2007, in the morning, as she and others were in the bush

collecting fire wood, they saw the deceased walking. He, after

greeting them, informed them that he was proceeding on to the

Boma. Soon after they parted with the deceased, they heard a bang

which sounded similar to a tyre burst. After this bang, PW3 heard

somebody crying three times that ‘I am dying’. She then heard a

second bang. So she was scared. She and her two colleagues ran

home, shouting for help. As they ran to the village, they met some

villagers from the village and after that they reported this incident
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to these people. They all decided to go where the sound was coming

from. They then found the deceased already dead. PW6 was the

arresting Officer. He testified that an identification parade was

conducted at which PW1 identified the Appellant as the young

stranger who she says she observed for three hours in the vicinity

of the deceased’s house.

The Appellant was found with a case to answer. He opted to

remain silent.

On this evidence before the court, the learned trial Judge

convicted the Appellant and sentenced him to a mandatory

sentence of death. He now is appealing against both conviction and

sentence.

At the hearing of the appeal, the Appellant raised three

grounds of appeal namely:

Ground 1

The learned Court below erred in law and fact when it convicted the

Appellant on the uncorroborated evidence of PW1 and PW2, both being

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witnesses with an interest to serve or witnesses whose evidence was

suspect.

Ground 2

The learned Court below misdirected itself by not considering the

possibility of honest mistake in the evidence of identification

Ground 3

The learned Court below erred in law and fact when it convicted the

Appellant in the absence of direct evidence connecting the

accused to the crime.

On ground 1, it was argued on behalf of the Appellant that the

lower court erred in law and in fact when it convicted the Appellant

on uncorroborated evidence of PW1 and PW2, both being witnesses

with an interest to serve or witnesses whose evidence was suspect.

Elaborating on this argument, Counsel argued that although it is

trite law that a court may convict on the evidence of one witness

alone, however, in practice, it has been established that in certain

types of cases or with particular categories of witnesses, it is

dangerous to convict in the absence of corroboration, see the case

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of Kambarange Mpundu Kaunda v The People1. Counsel argued

that PW1 and PW2 whose evidence the court heavily relied on in

convicting the Appellant, fell within the category of what may be

described as suspect witnesses as the two witnesses were both

close relatives of the deceased. As such, their evidence should have

essentially been treated as suspect particularly in the absence of

corroboration. Counsel cited an English case of DPP v Kilbourne2

where Lord Hailsham pointed out that the principles regarding the

categories of suspect witnesses must be applied to a witness with a

possible bias such as a relative. The question in every such case is

whether the danger of relying on the evidence of the suspect witness

has been excluded. According to Counsel, critical consideration is

not whether the witness does not in fact have an interest or purpose

of his own to serve but rather whether he is a witness who may

have a motive to give false evidence. On the facts at hand, Counsel

argued, PW1 and PW2 were witnesses with a possible motive of

punishing any person they believed to have caused the death of

their relative. He, therefore, urged the court to uphold this ground

of appeal.
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On ground 2, Counsel argued that the lower court misdirected

itself by not considering the possibility of an honest mistake in the

evidence of identifying the Appellant as the person who murdered

Kawana Sitwala. He argued that at law, the identification evidence

is normally considered with special care to ensure that a person is

not wrongly convicted on false or mistaken evidence of identity.

According to the case of The People v Swillah3, a court must all

the time consider the danger of an honest mistake. Counsel

explained that in the case of Haamenda v The People4, some

guidelines on the approach to be taken were propounded. Firstly,

that the Judge should warn himself or herself of a special need for

caution before convicting the accused in relying on the correctness

of the identification. Secondly, the Judge should examine closely

the circumstances in which the identification by each witness was

made. In the case before the Court, Counsel urged the court to

address itself to these requirements. Counsel argued that PW1 for

instance stated that she observed the young strange man for a

period of three hours before disappearing and that it was her first

time to see this person in the village. Counsel contended that that

period in which PW1 alleged to have observed the Appellant is

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rather long considering her evidence as to the time of her waking up

and hearing of the gun shots. In Counsel’s view, the period of

observing the young strange person must have been less than three

hours before the gun shots were heard. Thirdly, according to the

testimony by both PW1 and PW2, the young stranger stood at the

distance of 75 metres from where they were. The question,

therefore, is whether the observation made by both of them on the

material day and PW1’s subsequent identification of the Appellant

at the Police Station, was reliable. Counsel’s contention is that

PW2’s testimony should not have been considered as credible

taking into account the distance between where she was and where

the young strange man was standing. PW1 could not have had a

proper view of the young stranger. Counsel also argued that in

fact, the identification parade took place several weeks after the

event to the extent that, that should negate her ability to have had

an accurate identification and as such, the possibility of an honest

mistake. Counsel also attacked the way the identification parade

was conducted. So, he urged the court to consider the quality of

the evidence of identification as he labeled it as poor. Citing the

case of Kabala and Masefu v The People5, he argued that the sole
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objective of taking an identification parade is to test the ability of a

witness to pick out a person he claims to have previously seen on a

specified occasion. Counsel further argued that it is trite law that

the identification parade must be fairly and properly conducted,

failing which such evidence of identification would be of no use as

evidence. He argued that according to the evidence on record, on

the day of identification parade, PW1 and PW2 and Siwamba

Nambai were all put in the office of the Officer-in-Charge. PW1 was

the first witness to be called to the identification parade after which

she was taken back to the office of the Officer-in-Charge where

other witnesses yet to be called to the identification parade, were.

The evidence on record also indicates that the Appellant had

complained to the Police that he had been seen by PW1 outside the

office of the Officer-in-Charge before the identification parade was

conducted. Counsel’s contention is that the evidence of

identification on which the court relied in convicting the Appellant

was poor and thus not sufficient to connect the Appellant with the

commission of the crime charged.

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On ground three, Counsel argued that the court below erred in

law and in fact when it convicted the Appellant in the absence of

direct evidence connecting the accused to the crime. Counsel

argued that the court below relied on circumstantial evidence. As a

general rule, the court is competent to convict on such evidence if

the possible defects in the circumstantial evidence may include not

only those defects which occur in direct evidence such as falsehood,

bias or mistake on the part of the witnesses, but will have the effect

of erroneous inference. Citing the case of David Zulu v The

People6 where it was held:-

“……the possible defects in circumstantial evidence may include not

only those which occur in direct evidence such as falsehood, bias or
mistake on the part of witnesses, but also the effect of erroneous
inference… It is therefore incumbent on a trial judge that he should
guard against drawing wrong inferences from the circumstantial
evidence at his disposal before he can feel safe to convict. The
judge in our view must, in order to feel safe to convict, be satisfied
that the circumstantial evidence has taken the case out of the realm
of conjecture so that it attains such a degree of cogency which can
permit only of an inference of guilt.”

He argued that in the case before this court, the inference of guilt

was not the only reasonable inference because (a) there was no

direct evidence or eye witness, (b) there was time lag between the

time when the deceased left his house and the sound of gun shots

at least ten minutes which can bring in the possibility that the
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deceased was killed by unknown persons. Because of these two

reasons, this left the case for the prosecution in speculation.

Counsel pointed to further weakness in the prosecution’s case that

none of the key witnesses saw the strange young man with any gun

and yet the medical report established that the deceased died of a

perforating gunshot wound in the skull. But the learned trial Judge

did not consider all these weaknesses in the evidence of the

prosecution. Citing the case of Dorothy Mutale and Richard Phiri

v The People7, Counsel argued that where two or more inferences

are possible, it has always been a cardinal principle of criminal law

that the court will adopt the one which is more favourable to the

accused. He, therefore, urged this court to uphold the appeal as

the evidence before the court did not succeed in taking this matter

out of the conjecture. This appeal should be allowed.

Mrs. R. N. Nkhuzwayo for the People submitted that she did

not support the conviction. According to her, there was no

sufficient evidence to connect the Appellant to the commission of

the offence.
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We have looked at the evidence on the record. We have also

considered issues raised in this appeal. We have addressed our

minds to the authorities cited in particular, the case of David Zulu7

which has set useful guidelines in cases where the prosecution

relies on circumstantial evidence. The question now is, did the

learned trial Judge draw a wrong inference? Firstly, we have taken

judicial notice of the village set-up. In a village set-up, visitors to

the village are either known to the villagers or if they are strangers,

their purpose to visit becomes evident fairly soon after arrival. This

is because a village is usually a small entity and usually, consisting

of one family or close members of the family. According to the

evidence before this court, the young stranger who was later

identified as the Appellant by PW1, visited the village at a rather

ungodly hour around 05:00 hours in the morning without knowing

the purpose of his visit and the people he was visiting. That

attracted the attention of both PW1 and PW2. This stranger,

further attracted the attention of the two witnesses because he was

hovering around the deceased’s house. According to PW1, it took

three hours. It has been argued by the Appellant that both PW1

and PW2 could not have seen this Appellant as he was about 75
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metres from where they were. We take judicial notice of the

weather in August in Zambia. We also take judicial notice of the

fact that 05:00 hours in the morning in August would be bright and

clear to the extent that a person can easily see another person at a

distance of 75 metres. We are, therefore, satisfied that both PW1

and PW2 clearly saw the strange young man. On the issue of

credibility, the learned trial Judge was in a better position to assess

the truthfulness or otherwise of both PW1 and PW2.

On this same point, it has been argued that the evidence of

PW1 and PW2 needed to be corroborated as witnesses with an

interest to serve or witnesses whose evidence was suspect as they

were relatives of the deceased. We accept that the two witnesses

were related to the deceased. However, adopting the rationale of

Lord Hailsham in the English case of DPP v Kilbourne2, the critical

consideration is whether or not the two witnesses had a possible

motive to give false evidence against the Appellant. The evidence

before the lower court and now before this court is that PW1 and

PW2 had never seen the Appellant before and as such, they would

have no reason to give false evidence against him. We are fortified

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in reaching that conclusion taking judicial notice of the fact that

PW1 and PW2 are normal ordinary villagers and as such could not

deliberately concoct stories against the Appellant because villagers

in Zambia in general have kept the traditional way of accepting

visitors on the face value. Also, we are mindful of the fact that at

law, corroboration need not be direct evidence that the Appellant

committed this offence. It is sufficient if it is merely circumstantial

evidence of the Appellant’s connection to the offence now before the

court. The learned authors of Archbold at para 1416 page 781,

have put it this way,

“It is not a consequence of the principles laid down in R. v.

Baskerville that there should be independent evidence of everything
which the witness relates, or his testimony would be unnecessary
(see R. v. Mullins (1848) 3 Cox 528 at p. 531). Indeed if it were
required that the witness should be confirmed in every detail of the
crime, his evidence would not be essential to the case, it would
merely be confirmatory of other independent evidence”

By parity of reason, we are satisfied that not every word

of PW1 needed corroboration. The important parts of the

testimony of PW1 were corroborated by PW2’s evidence. We,

therefore, do not accept Counsel’s argument that the two key

witnesses had a motive to lie against the Appellant.

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Even if we accepted Counsel’s argument that PW1 and

PW2’s evidence required respective corroboration (which we do

not), according to the learned authors of Archbold at page 782,

“although there is no general rule against mutual corroboration it is

clear that (i) one accomplice cannot corroborate another where each
is an accomplice of the accused in the same crime, see post, in view
of the observations of Lord Reid and Lord Hailsham in D.P.P. v.
Kilbourne the true extent of the prohibition upon one accomplice
being allowed to corroborate another has still to be determined)

By parity of reason, we hold that as there is no general rule

that two witnesses in the category of suspect witnesses cannot

corroborate each other and the extent of the prohibition is not

known, in this case, the two witnesses in our view can corroborate

each other to the extent that the evidence of PW1 supports the

evidence of PW2 that the young man around 05:00 hours in the

morning behaved in an unusual manner and disappeared without

visiting anybody at the time the deceased set off for the Boma and

that the two witnesses together with other villagers heard two gun

shots ten minutes thereafter and found the deceased in a pool of

blood.
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Coming to ground 3, we find that argument to be odd and

contrary to the law in view of the fact that at law, a person can be

convicted on circumstantial evidence as long as that circumstantial

evidence satisfies the trial Judge to the extent that such evidence

takes the case out of the realm of conjecture so that it attains such

degree of cogency which can only permit the inference of guilt (see

case of David Zulu v. the People6). The learned trial Judge

accepted that around 05:00 hours in the morning, on the 2 nd of

August, 2007, the Appellant was seen hovering around the

deceased’s house. The lower court found as a fact that with no

given explanation, the Appellant was in the village at that ungodly

hour, that he disappeared, soon after the deceased left for the Boma

pushing his bicycle, that soon after his disappearance and the

deceased’s departure for the Boma, the villagers heard two gun

shots and ten minutes later, the deceased was found in a pool of

blood dead. The question before the court was whether or not it

could have been a coincidence that this set of facts occurred more

or less at the same time as the crime was being committed. The

answer was negative. We hold that the learned trial Judge rightly

convicted the Appellant. Given these set of facts, we hold that on

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these facts even though circumstantial, the only reasonable

inference which the court below drew is that the Appellant

committed this crime of murder with other persons unknown. Even

though the Appellant was not seen with any gun, the lower court

was correct that the Appellant committed this crime of murder.

We, therefore, find that there is no merit in the appeal. We dismiss

the appeal. We confirm both conviction and sentence.

………………………………….
L. P. Chibesakunda
SUPREME COURT JUDGE

…………………………………. .…….………………………
H. Chibomba G. S. Phiri
SUPREME COURT JUDGE SUPREME COURT JUDGE