Benson Mabiza v the People (Appeal No 61/2021) [2022] ZMCA 213 (15 June 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal BETWEEN: Appeal No 61/2021 BENSON MABIZA AND THE PEOPLE APPELLANT RESPONDENT CORAM: Mchenga DJP, Sichinga and Muzenga, JJA On 18 th January 2022, 20 th January 2022 and 15 th June For the Appellant: H. M. Mulunda, LM Chambers, with Mrs. K. Chitupila, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: M. Kampambwe-Chitundu, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. CASE REFERRED TO: 1. Chimbo and Others v. The People [1982] Z. R. 20 LEGISLATION REFERRED TO: l. The Penal Code, Chapter 87 of the Laws of Zambia 1. INTRODUCTION J2 1.1. The appellant, appeared before the High Court (Limbani, J.), charged with one count of the offence of murder contrary to section 200 of The Penal Code. 1.2. The allegation was that between the 22~ and 24 th of August 2017, at Serenje, jointly and whilst acting together with other persons, they murdered Kenneth Kunda. 1. 3. He denied the charge, and the matter proceeded to trial. At the end of the trial, he was convicted and condemned to suffer capital punishment. 1. 4. He appealed against the conviction. 2. CASE BEFORE THE TRIAL COURT 2.1. On 22 nd August 2017, Kenneth Kunda and Alex Mabiza, the appellant's son, were detained at Muchindu Local Court in Serenje, after being found to have been in contempt of that court. Because there were no cells at the court, they were handcuffed to each other and left in the court room, pending their transportation to Serenje Police Station cells, the following day. J3 2.2. In the late afternoon, the appellant was seen around the court room where his son was detained. He left after being told that he was not allowed to be there. 2.3. Later that evening, Frank Chisenga, a Local Court Messenger, discovered that Kenneth Kunda and Alex Mabiza were missing from the court room where they had been detained. Upon enquiry, both Ronnie Mulungu and Sydney Kunda claimed that they saw them in a minibus which drove past the shops where they were. 2. 4. Both Ronnie Mulungu and Sydney Kunda also said the appellant was seated in front, while Kenneth Kunda and Alex Mabiza, sat on the seat behind him. This was around 18:00 hours and it was dark. 2.5. They said that they were able to see them in the bus, that was in motion, because there was light that was being emitted from a bulb at one of shops. 2. 6. Two days after their disappearance, Kenneth Kunda was found dead. The forensic pathologist, who conducted the post-mortem examination, on his body, J4 concluded that he had died from the injuries to his head caused by blunt force trauma. 2. 7. The appellant denied having "rescued" his son and Kenneth Kunda from the court room. He also denied being in the bus in which Ronnie Mulungu and Sydney Kunda said Kenneth Kunda and him were on board. 2.8. He admitted leaving Serenje soon after the incident and said he went to look for his missing son. 3. FINDINGS BY TRIAL JUDGE 3.1. The trial judge found that the medical evidence proved that Kenneth Kunda was murdered. 3.2. He also found that the case against the appellant was anchored on circumstantial evidence. Earlier that afternoon, he was seen at the window of the courtroom in which his son and Kenneth Kunda were detained. 3. 3. He was then seen in a minibus, with Kenneth Kunda, soon after Kenneth Kunda had disappeared from the court room. He was the last person to be seen JS with him alive and he fled from the area soon after his body was discovered. 4. CASE ON APPEAL 4. 1. The issue that this appeal raises, as we see it, is whether the appellant was satisfactorily identified, to warrant the trial court's finding that he was the person who was seen in the minibus that was carrying Kenneth Kunda. 4.2. Mr. Mulunda submitted that the appellant was identified in circumstances in which the possibility of an honest but mistaken identification, should have been ruled out by the trial judge, before accepting the identification evidence against him. 4.3. In response, Mrs. Kapambwe-Chi tundu submitted that the quality of the identification was good, in that the appellant was being identified by persons who previously knew him. In other words, the appellant was recognised by Ronnie Mulungu and Sydney Kunda. 5. CONSIDERATION OF THE APPEAL J6 5. 1. Ronnie Mulungu and Sydney Kunda told the trial judge that at about 18:00 hours, they were at the roadside when they saw a minibus coming from the direction of the court. The minibus slowed down and they were able to see the driver and the appellant, whom they both previously knew. They were also able to see Kenneth Kunda and the appellant's son, who sat in the middle seat. 5. 2. Sydney Kunda said he was able to see them because of light from a light bulb at a shop. The fact that they relied on a light bulb for identification, is indicative that it was dark. 5. 3. In the case of Chimbo and Others v The People1 , the Supreme Court dealt with whether the approach when dealing with evidence of recognition, differs from cases where a witness is identifying a stranger. The court point~d out as follows: "Although recognition to be more reliable than identification of a stranger, it is the duty of the court to warn itself of the need to exclude the possibility of an honest mistake. " is accepted • J7 5.4. In this case, the appellant was incriminated by witnesses who said they recognised him after seeing him in a bus that drove past where they were. They also said Kenneth Kunda was in the same bus. It was at night and it is said that there was light coming from the shops. 5.5. The circumstances in which the appellant was identified required the exercise of caution and ruling out the possibility of an honest but mistaken identification. Even if there was a light bulb at the time, the distance of the light from the road and that of the witness from the road, including the speed of the bus, where not clear from the testimony of the witnesses. 5. 6. Given the circumstances we have just highlighted, it is our view, that .the trial judge erred when he did not consider and rule out, the possibility of an honest, but mistaken identification of the appellant by both Ronnie Mulungu and Sydney Kunda. . ( , .. 6. VERDICT JS 6. 1. The trial judge having failed to rule out the possibility of an honest but mistaken identification, in our view, renders the appellant's conviction, which was anchored on identification evidence, unsatisfactory. 6.2. We allow the appeal, quash the conviction and set aside the sentence. C. F. R. Mchen DEPUTY JUDGE PRESIDENT ........ D . L. . COURT OF E ..._ C GE K. Muzenga COURT OF APPEAL JUDGE