Hilary Zimba v The People (APP NO.005/2023) [2023] ZMCA 361 (22 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) APP N0.005/2023 BETWEEN: HILARY ZIMBA AND ---- ----;:---..... / ,/:'.:: C--'1,;.l~r~rt t I c----;-;· .. Ktu~ ,( I ,r-. -- APPELLANT THE PEOPLE RESPONDENT Coram: Mchenga, DJP, Banda-Bobo and Sharpe-Phiri, JJA On 14th November, 2023 and 22nd November, 2023. For the Appellant: Mrs. L. Z. Musonda, Senior Legal Aid Counsel of Messrs Legal Aid Board For the Respondent: Mrs. S. Zulu, Senior State Advocate of Messrs National Prosecutions Authority JUDGMENT Banda-Bobo, JA delivered the Judgment of the Court. Cases referred to: Daniel Mwale v. The People (20 15) ZR 114 1. 2 . Mbinga Nyam be v. Th e People (201 1) SCZ Judgment No. 5 3. 4 . 5. 6. 7. 8 . 9. Saidi Banda v. The People (SCZ) Judgment No. 144 of 2015 Major Isaac Masonga v. The People (2009) SCZ Judgm en t No . 24 Ilu n ga Kabala and An oth er v. The People (1981 ) ZR Dorothy Mu tale and Another v. Th e People (1997) S. J 51 (SC) David Zulu v. The People (1977) ZR 152 Emmanueal Phiri v. The People (1978) ZR 79 Ezious Munkombwe and Ot hers v. The People, CAZ Appeal No. 7, 8 and 9 of2017 10. Bwalya v. The People (1972) ZR 227 1.0 1. 1 2.0 2.1 2.2 3.0 3. 1 INTRODUCTION This is a judgment on an appeal against the decision of Hon. Mr. Justice Limbani, delivered at Kabwe on 17th June 2022. BACKGROUND The Appellant stood charged with two counts of murder. It was alleged th at on 11 th September 2020 in Mumbwa in the first count, he murdered Mable Chilufya, the first deceased and in the second count, on the same date, he murdered Upton Phiri, the second deceased. He pleaded not guilty to both counts . PROCEEDINGS IN THE LOWER COURT The matter proceeded to trial. The case for the State rested on the evidence of five witnesses. The Appellant testified on his own behalf after being placed on his defence after the prosecution closed its case. 4.0 PWl was Esnart Mutema, a sister-in-law to the first deceased. Her evidence was that on a date she could not remember, but in September 2020, she found the Appellant standing at the first deceased's door. When she J2 queried him as to what he wanted, he told her that he was looking for Phillip. She chased him away. 4.1 That on 9 th September 2020, the Appellant went and hid under the first deceased's bed. That in the process he uttered the words that "I will do anything to you." 4.2 When asked, PWl said she had been asleep with her husband in a nearby house. That they had woken up when the Appellant went into the first deceased's house. That PWl heard him say "I have heard, whatever I am going to do to you, do not be surprised". 4.3 It was PWl 's evidence that the first deceased had been sleeping in a grass thatched house and their houses were about five (05) metres apart. She went further to state that the Appellant told the deceased that "even if you wake them up, they will not do anything to m e" . That after uttering those words, the Appellant left. 4.4 On the 12th September 2020, the first deceased 's house was gutted by fire and she died in the inferno . That this happened around O 1 :00 hours. That the first deceased shouted that she had been burnt, and that is when the J3 witness woke up with her husband and other neighbors. They observed big flames of fire which they tried to quench, but failed. 4.5 As to how long she had known the Appellant, her response was that the Appellant had been in love with the first deceased, but that they did not go out for long. It was PW 1 's evidence that prior to meeting him at the door to the first deceased's house, the witness had not related with him, as she had only seen him once in the night, and he had mentioned that he was Hilary. That the first deceased had been with the second deceased in the house the night it got burnt and on the day the Appellant went under the bed. 4 .6 Under cross examination, PWl said the first time the Appellant went to the first deceased's house, it had been around 23:00 hours. PW 1 had been with her husband, Ackson Chilufya. PW 1 was unable to identify the Appellant, but her husband did. That she did not know this person but only knew his name. J4 4. 7 She agreed that the first deceased was the one who told her that the Appellant was under her bed; but that she saw him as he was going out. She responded in the affirmative to the question that on the night in question, she had retired to bed before the first deceased came back from drinking. That when the first deceased arrived around 23:00 hours , she chatted with her, as the first deceased said she was feeling hungry, and so she gave her some beans and money realized from the sale of chickens. She denied that her sister in law was using any other source of light other than that from the torch. 5. 0 PW2 was Lizzy Chilufya, an elder sister to the first deceased. Her evidence was that in 2020, the first deceased was going out with the Appellant, but later the relationship ended and that is when the Appellant started troubling the deceased 5.1 Regarding the events that occurred from 9 th September 2020 upto 12th September 2020, she had merely been told what occurred by her deceased younger sister and the brother, Ackson Chilufya. JS 5.2 Regarding the identity of the Appellant, it was her evidence that she had lived in the same village with him for about two years; and she used to relate well with him. She identified him in court. 5.3 Under cross examination, she confirmed seeing her sister and the Appellant together at drinking places. 6. 0 PW3 was Kingsley Nyoni, a barman and welder in the area. His evidence was that the first deceased used to frequent his bar day and night, selling cooked relish and to buy beer. That she used to go out with the Appellant, but that the relationship had ended. 7.0 However, that the Appellant would follow the first deceased to try and reconcile with her. But that each time they met, they would quarrel at the market. That the last quarrel had been in June, 2020. He had known the Appellant for eleven (11) years and had never had a misunderstanding with him. 8.0 PW4 was Ackson Chilufya, the husband to PWl and the elder brother to the first deceased. One another night in the same month , while he was in his house the first J6 deceased rang PW 4 and told him that there was someone in her house , someone called Hillary Banda. He testified that he rushed to the first deceased's house and asked this Hillary what he wanted under the bed but the Appellant's response was merely to stand up and push PW4 outside the door. PW4 said he had been alone while the first deceased had been on the bed. He testified that the Appellant said that "because you have refused to love me, I know what to do; I will spy on you and burn your house". That this was directed at the first deceased. 8.1 It was on another night that he heard a sound at the first deceased's house, and when he woke up, he saw a big flame there. At that time , the first deceased had been in the house with the second deceased and they both perished in the inferno. 8.2 It was his evidence that he had known the Appellant, who he identified in court. He went on to state that even though it had been dark on the night he found the Appellant under the bed, he had talked to him, and the Appellant told him that he was Hillary. This was in J7 addition to what his late sister had told him that the person under the bed was Hillary. That he was interacting with him for the second time. 8.3 Under cross examination, he admitted that on 11 th September, 2020 it had been dark and h e did not see the Appellant's face clearly. That he just heard the Appellant's voice when he said he was Hillary. That he had been with his wife in his sister's house when the Appellant came out from under the bed. 8.4 As to the night the late sister's house caught fire, h e admitted having been asleep , and only woke up when she shouted. That on this night his sister had been drunk. He said he did not know what source of light she had been using that night. As regards the identification of the Appellant, he said he was someone he had known from the village for months. 9. 0 PW5 was Cliff Mukwena, a Detective Sergeant, and a Criminal Investigations Officer at Nangoma Police Station. His evidence was to the effect that on 12th September, 2020, while at his station, a report of Arson was received J8 from Ackson Chilufya, who reported that his sister's house had been burnt. That the reporter said property had been destroyed, and that two people who had been in the house at the time, died. The reporter told police that he suspected the Appellant as having carried out the act; because the Appellant had been in a relationship with the first deceased, but the relationship ended. That the Appellant was giving his sister trouble because she had broken up with him. 9.1 He retrieved the terribly burnt bodies from the house; and deposited them in the mortuary awaiting postmortem. He then arrested the Appellant. 9.2 That the Appellant denied committing the cnme and having anything to do with it. He denied having been in a relationship with the first deceased. 9 .3 Dissatisfied with the response , he formally charged and arrested the Appellant for the subject offences. 9.4 He later attended a postmortem conducted by Dr. Pavlo, which revealed that the victims died of inferno J9 asphyxiation. Under Warn and Caution, the Appellant denied the charges proffered against him. 9.5 The witness tendered the postmortem report into evidence. 9.6 Under cross examination, he said the house was alleged to have caught fire around midnight, and that when he interviewed the Appellant, he told him that he had been at his working place with friends. When put to him that he had been told that the Appellant had been with Emmanuel Chulu, the witness said he could not remember, as time had passed. 9. 7 He told Court that he had visited the farm where the Appellant worked, but could not interview the owner as he did not stay at the farm, hence he could not confirm that the Appellant had been at the farm. That he did not find this fellow worker on the farm . That he apprehended the accused from the farm around 06:30 hours in the morning. 9 .8 It was his response , when asked, that the burnt house was grass thatched, without electricity, but refused to JlO confirm that the residents in that area use candles and firewood for lighting. He said the residents use solar light; including those in the burnt house. 9 .9 He further confirmed that as at trial date , he did not know whether or not it was an accident caused by occupants of the house. He said he gathered information that on the night in question , the first deceased had gone on a drinking spree and had returned home between 21: 00 and 22:00 hours. 9 .10 When pressed, he agreed that he had not met the person the Appellant alleged he was with on the night in issue, but denied that his investigations were not thorough because he had not met Emmanuel Chulu, who the Appellant alleged he was with. 9 .11 The learned Judge found the Appellant with a case to answer and put him on his defence. 9.12 The Appellant opted to give evidence on oath, and indicated that he would call one Emmanuel Chulu as his witness. Jll 10.0 The Appellant testified that on the material day, h e had been working with some people at Shalala Farms, including Emmanueal Chulu, and other people whose names he did not know as they had just come to do some piece work. It was his evidence that at some point on that day, while laying a slab, a wheelbarrow broke and h e took it to Julius to have it repaired. 10.1 Unfortunately, he got to Julius ' place late, as Julius was about to knock off. So they arranged that he takes the wheelbarrow the next day. 10.2 He then went to drink with Julius at a certain bar and only left around 18:30 hours, and went back to the farm. He found Emmanuel Chulu, at Shalala farm around 19:00 hours. They ate supper and went to bed at 21 :00 hours and they slept on the same bed. 10.3 It was his evidence that the following day as he went to Julius' place, a vehicle came and stopped by him and police officers came out of the vehicle and told him that they had been looking for him. They took him to the police station, where he was interrogated. That when he told the J1 2 police that he was Hillary Zimba, the police asked if he was not Hillary Banda, but he maintained that he was Hillary Zimba. 10. 4 He testified that they asked him if he knew Mable Chilufya and Lizzy Chilufya, to which he answered in the affirmative. He denied having had an affair with Mable Chilufya, or being found under her bed. 10.5 It was his testimony that he was then informed of the burning of Mable Chilufya's house, and that it had been reported that a Hillary was suspected to have carried out the crime. 10.6 He denied PW2's evidence which was to the effect that he had not been happy that Mable had broken up with him or that he had issued threats that he would burn Mable's house. He told court that he knew nothing, as Mable was even older than him. 10.7 He denied having been found at Mable's house 's door or hiding under her bed. J13 10.8 All in all, the Appellant's responses, when reminded what each prosecution witness had said, was to deny any knowledge of the matter. 10.9 On the evidence that he had been seen at Corner Bar with first deceased , his response was that it was true that they may have seen him as he used to sit and chat with the first deceased. 10.10 Regarding his relationship with the first deceased, it was his evidence that at one time the first deceased used to go out with John Kabeya, his friend, and so he used to call Mable his sister in law. He reiterated that on the night in question he had been at home with Emmanuel Chulu; and that he knew nothing of the matter. 10.11 Under cross examination, and concerning Emmanuel Chulu, it was his evidence that he had known him since 2014, and had been moving with him. He acknowledged that besides himself, there were other men of his stature that he knew, but none of them were accused of the murder. J14 10.12 He denied being bitter after the first deceased ended the relationship with him, claiming that infact he never was in a relationship with first deceased. 10.13 He closed his case, without calling Emmanuel Chulu. 11.0 11.1 DECISION OF THE LOWER COURT In his judgment, the learned Judge found that the deceased persons died from suffocation by fire gases and severe burns after the house they were in was set on fire. The learned Judge recognized that some of the witnesses for the prosecution were related to the first deceased. The learned Judge recognised that the evidence of such witnesses needed to be handled with caution as they could have an interest of their own to serve. He relied on the case of Daniel Mwale v. The People 1 • 11.2 The learned trial Judge recognised that the evidence in the case was circumstantial, as no one had seen the Appellant set the house on fire. 11.3 The learned trial Judge found that the circumstantial evidence was not only overwhelming, but strong and that consequ ently the only irresistible inference to draw J15 was one of guilty. That no reasonable explanation had been given by the accused relating to the strange and odd coincidences. 11.4 That the odd coincidences are but supporting evidence of the circumstances surrounding the death of the deceased persons which pointed to only the Appellant as the person responsible. 11 .5 It was the learned Judge's view that the Appellant did not only have the opportunity to commit the crime, but was a bitter person after the breakup of the relationship and thus had a motive for his acts. 11.6 The learned trial Judge found that the prosecution had, on the totality of the evidence adduced, proved both counts of murder beyond reasonable doubt and convicted him. Ultimately, he sentenced the Appellant to death on each count. 12. 0 THE APPEAL 12.1 Dissatisfied with the judgment, the Appellant has launched this appeal fronting one ground of appeal crafted thus:- J16 "The trial Judge erred in law and in fact when he found that the adduced circumstantial evidence was overwhelming and strong, and thus irresistible to draw the inference of guilty, when the same did not attain such a degree of cogency as to infer only a guilty inference." 13 .0 APPELLANT'S ARGUMENTS 13.1 The Appellant filed Heads of Argument in support of the single ground of appeal on 31 s t October 2023. The appeal is against both conviction and sentence. 13.2 In arguing the appeal, the Appellant acknowledged that the prosecution's case rested on circumstantial evidence. The Appellant reproduced the evidence of the prosecution witnesses as narrated in the trial. It was contended that the basis on which the trial court convicted the Appellant was that on the night the Appellant was allegedly found under th e first deceased's bed, he uttered threats to burn her house, since she refused to reconcile with him; as appear at page 83, paragraph 20 of the record of appeal. J17 That this is what led the trial Judge to conclude that the only inference was that of guilty. 13.3 Counsel for the Appellant brought our attention to the principles on circumstantial eviden ce as enunciated in the case of Mbinga Nyambe v. The People 2 , as well as th e case of Saidi Banda v. The People3 • 13.4 It was counsel's contention, based on the above a uthorities, that the inference of guilty was not the only one, as there was evidence suggesting alternative inferences. 13.5 In support, counsel referred to the evidence that pointed to the fact that th e deceased had slept in a grass thatched house. Tha t none of the prosecution witnesses h a d b een with them in the house. Tha t the first deceased h ad infact com e h ome drunk on the particular nigh t. The point counsel was driving at was that no one knew th e source of light used by the two deceased while in the house on th e m aterial night. That this is compounded by the fact that ther e was no report regarding the cause J18 of fire or if indeed someone had set the house on fire , or if it was an accident from the occupants of the house. 13.6 Counsel argued that, despite allegations that the Appellant had threatened to burn the house, no evidence was adduced showing that he was near the house on the material night. 13.7 Arguing further , the Appellant lamented the way the police handled his alibi, which had been brought to PWS's attention. It was contended that the police had failed to follow up the alibi. That the Court should not have rejected the alibi. That the Appellant had clearly said that on the night in question, he had been at home with Emmanuel Chulu, and that he had given this information to PWS at the time of his apprehension at 06 :30 hours in the morning. 13.8 Counsel contended that this alibi was poorly investigated, if at all. That this poor investigation of the alibi was prejudicial to the Appellant, as he was not subjected to a fair trial. To buttress, he relied on the case J19 of Major Isaac Masonga v. The People4 , where the Supreme Court held that:- "lt is trite law and a constitutional duty for the prosecution to guarantee a fair trial, and a fair trial starts with investigation. Any shortcomings in the investigations may seriously jeopardise the right to a fair proceeding, and thereby also prejudice the accused person's rights to be presumed innocent." 13. 9 Further reliance was placed on the case of Ilunga Kabala and Another v . The People5 , where the Supreme Court h eld that:- "In any criminal case, where an alibi is alleged, the onus is on the prosecution to disapprove the alibi. The prosecution take serious risk if they do not adduce evidence from witnesses who can discount the alibi unless the remainder of the evidence is itself sufficient to counteract it" J20 13.10 It was submitted, based on the above authority that the prosecution did not adduce evidence from the witnesses to discount the alibi, and equally, the remainder of the evidence was not sufficient to counteract it. 13.11 With regard to the assertion that the inference of guilt was not the only one, our attention was drawn to the case of Dorothy Mu tale and Another v. The People6 13.12 It was argued that in casu, it was possible that the occupants of the grass thatched house accidentally set the house on fire. That this inference should be resolved 14.0 14.1 in favour of the Appellant. RESPONDENT'S ARGUMENTS With leave of court, the respondent filed arguments in opposition to the appeal on 14th November, 2023. 14.2 In countering the appeal, the respondent accepted that the case was anchored on circumstantial evidence. It was submitted however, that the totality of the evidence adduced was strong and compelling, such that it took the case out of the realm of conjecture, thus allowing the court to only draw an inference of guilty on the part J21 of the Appellant. Our attention was drawn to the cases of David Zulu v. The People7 where trial Judges were warned to guard against drawing wrong inferences from circumstantial evidence at their disposal before they can feel safe to convict; as well as that of Saidi Banda v. The People3 cited to us by the Appellant. 14.3 Counsel then adverted to the evidence adduced in the court below, relating to the relationship that the Appellant had with the deceased, but which later broke up. That the Appellant was not happy about the break up and attempted to reconcile with the first deceased , but she refused. That on a couple of occasions he went to the first deceased's house, but she told him that she had moved on. That this upset the Appellant, and they quarreled every time they met. 14.4 Counsel recounted the incidences narrated by the prosecution witness, where the Appellant was chased from the first deceased's house when he hid under the bed, while the two deceased were together. That it was on the night when he was found under the bed that he J22 uttered threats to the effect that since the first deceased had refused him, he knew what to do, and also that he would spy on her and would burn her house. 14.5 That even though he denied being in a relationship with the first deceased, there was overwhelming evidence to show the opposite as testified to by PW2 and PW3 . 14.6 Counsel submitted that it was odd, that in spite of all the evidence, the Appellant denied knowing the first deceased person. To buttress on the issue of odd coincidences, we were referred to the cases of Emmanueal Phiri v. The People8 , where it was said that:- "Those odd coincidences do constitute evidence of something more, they represent an additional piece of evidence which this court is entitled to take into account; they provide support for the testimony of accomplices." and that of Ilunga Kabala and Another v. The People5 • J23 14.7 That based on the above, it was clear that odd coincidences constitute "something more" which piece of evidence the court is entitled to consider. 14.8 It was submitted that the events that occurred just before the house was burnt, leading to the death of the two people constituted evidence of "something more" or "supporting evidence", and the court was entitled to refer to it. 14.9 In submitting that the circumstantial evidence was strong and overwhelming, our attention was called to the case of Ezious Munkombwe and Others v. The People9 , where we stated that:- "when considering a case anchored on circumst antial evidence , the strands of evidence making the case against the Appellant must be looked at in their totality and not individually." 14. 10 Counsel reiterated that considering the evidence adduced , the only reasonable inference to be drawn is J24 that the Appellant caused the death of the two persons. 14.11 It was contended, in relation to the argument that it was not known what source of light the deceased were using, that this was clarified at page 13 lines 17 to 18, where PW 1 stated that the first deceased person was not using a candle but was using light from her phone. 14.12 As regards the issue of the alibi, it was submitted that the information that was given to the police was not enough to suggest that a proper alibi was raised which placed a duty on the police to investigate. That additionally, the trial court found the alibi which the Appellant tried to raise did not add up and therefore could not stand. To buttress, the case of Bwalya v. The People 10 was relied upon. 14.13 It was submitted that the ground of appeal lacked merit and should be dismissed. J25 15.0 15.1 16.0 16.1 HEARING At the hearing, counsel for the Appellant, Mrs. Musonda relied on the filed heads of argument, while counsel for the respondent, Mr. Zulu, indicated that he too would rely on the filed heads of argument. ANALYSIS AND DECISION We have carefully considered the record, the judgment being impugned, and the submissions by counsel through th eir written heads of arguments and oral submissions at the hearing. 16.2 In the sole ground of appeal, two issues were raised, namely that the circumstantial evidence on which the Appellant's conviction was premised was not cogent enough to take the matter out of the realm of conjecture, thereby only leaving an inference of guilt. In arguing on this point, Counsel contended that the Appellant was convicted on the b asis that, the night the Appellant was allegedly found under the deceased's bed, he uttered threats to burn h er h ouse since she r efused to reconcile with him. That it was on J26 the basis of the said evidence that the court concluded that the only inference was that of guilt. 16.3 Counsel argued that, evidence abound suggesting alternative inferences, because there was evidence that the two deceased slept in a grass thatched house , and on the material night, none of the prosecution witnesses shared the house with them. That the first deceased had been drunk on the night in question, and that PW 1 and PW2 did not know the source of light used by the two deceased persons that night. 16.4 In countering this argument, counsel for the respondent was of the view that the circumstantial evidence had been cogent enough, was overwhelming and strong, and it took the matter out of the realm of conjecture. That based on that, the only inference the court could draw was that of guilty on the part of the Appellant. 16.5 The issue for resolution on this limb, in our view, is whether the circumstantial evidence relied upon by the lower court to convict the Appellant was cogent J27 en ou gh su ch as to leave n o other inference, other th an th at the Appellant was guilty. 16.6 It is trite that a court can convict on circumstantial eviden ce, and in deed on any oth er eviden ce. To do so, th e J udge mu st be convinced th at th e circu mstantial eviden ce has taken th e case ou t of the realm of conj ectu re so as t o attain su ch a degree of cogence which can permit only an inference of guilty, as p er the case of David Zulu v . The People 7 . 16. 7 The a b ove prin ciple was restated in th e case of Saidi Banda v. The People3 wh ere th e Supr em e Cou rt elabor ated th a t: - "where the prosecution's case depends wholly or in part on circumstantial evidence, the court is in effect being called upon to reason in a staged approach. The court must first find that the prosecution evidence has established certain basic facts . . . Taken by themselves those facts cannot therefore prove the guilt of the accused person. The court should infer or conclude from J28 a combination of these established facts that a further fact or facts exist. The court must then be satisfied that those further facts implicate the accused in a manner that points to nothing else than his guilt. Drawing conclusions from one set of established facts to find that another fact or facts are proved, clearly involves a logical and rational reasoning. It is not a matter of casting any onus on the accused, but a conclusion of guilt the court is entitled to draw on the weight of circumstantial evidence adduced before it." 16.8 We have considered the judgment of the learned Judge in the lower court. We note from pages 82 to 84 that the lower court carefully considered the evidence that was adduced by the prosecution that confirmed the circumstantial evidence on wh ich he based his decision to convict. At page 82, paragraph 15, th e learned Judge set out t h e issue of the relationship between the first deceased and the Appellant. The learned Judge accepted this evidence which was confirmed by both PW2 and J29 PW3. That though the Appellant had denied being in such a relationship, the evidence of the two witnesses spoke otherwise. 16.9 Further, the learned Judge accepted the evidence of PWl, that the Appellant had been chased from the first deceased's house and that he had on 9 th September, 2020 been found under the bed while the first deceased was with the second deceased. This incident was confirmed by both PW2 and PW 4. 16.10 The Judge accepted PW 1 and PW 4 's evidence that on the night the Appellant was found hiding under the bed, it had been dark, but that PW4 heard his voice, even though he did not see him clearly. He identified him as someone that he knew from the village. 16.11 At page 83 , record of appeal paragraph 20, the learned Judge noted that on the night the Appellant was found under the bed, he uttered threats to the effect that since the first deceased had refused to make love to him, he knew what to do, and also that he would burn the house. J30 16.12 The Court found it strange that a few days later the deceased persons were burnt to death in t h e same house that the Appellant had hid under the bed and uttered the threats. 16.13 Considering how the court below analysed the evidence, it is our view that the court reasoned in a staged approach. He found that the evidence on record established certain facts. He satisfied himself that these facts implicated the Appellant in the manner that pointed to nothing else than his guilt. 16.14 Having read the record we are in total agreement with the learned Judge. We are of the view that the learned Judge dealt correctly with the circumstantial evidence and correctly arrived at his decision. 16 . 15 As the learned Judge found, it is an odd coincidence that two days after uttering the threats , the house in which the two were sleeping, caught fire. In the case of Ilunga Kalaba & Other v The People5 it was held that- "It is trite law that odd coincidences, if unexplained may be supporting evidence. An explanation which J31 cannot reasonably be true is in this connection no explanation." 16. 16 There is no evidence on record suggesting that the fire could have been started by the occupants of the house . PWl in her evidence at page 13 of the record of appeal, at paragraph 15, clearly stated that the first deceased had not been using a candle on the night, but a light from her phone; and that even the second deceased had been using a phone. 16.17 PW5 in his evidence confirmed that the burnt house was grass thatched. He was asked what light the residents in that area used. His evidence at page 36 of the record of appeal lines 4 to 10 was to the effect that residents did not use candles or firewood. Rather that they used solar panels, and even the house of the first deceased was connected to solar panels. In view of the above evidence, it cannot be implied that the fire was caused by the occupants of the house. It is too much of an odd coincidence that after uttering the threats , the same thing that was threatened happened two days later. J32 16.17 As stated, the matter rested on circumstantial evidence. It did not matter that the Appellant was not seen near the house on the material date. The circumstantial strands of evidence strongly connected him to the crime. 16.18 We can therefore not fault the learned Judge in deciding as he did. 16. 19 The other argument is that the police officer did not investigate the alibi raised by the Appellant, namely that on the night in question, the Appellant had been with Emmanuel Chulu. 16.20 At page 34 of the record of appeal, PWS was cross examined about the alibi when asked if at the time h e apprehended the Appellant, h e h a d been told where the Appellant had been. His response was t h at Hillary (Appellant) had told him that he had been at his working place with his friends. When asked if any name h a d been mentioned, the witness said he could not remember due to passage of time. 16.21 He however told the court that h e followed up with the employer. That the employer did not stay at the farm so J33 he could not confirm whether Hillary (the Appellant) was at the farm or not. PWS infact went to the farm himself, but he did not find the Appellant's fellow workers at the farm. During cross examination, as appear at page 50 of th e record of appeal, line 4, the Appellant, when asked if Emmanuel Chulu had been arrested for the deaths of the two deceased, his response was that:- "A ... I just heard that the police followed him to question him." 16.22 In view of what we have set out above, we opine that PWS investigated the alibi raised by the Appellant. We are of the view that the prosecution discharged its onus to disprove the alibi. 16.23 We note that the Appellant had intended to call this Emmanuel Chulu, but then told Court that he would not be calling him, and closed his case. This is the same person who he claims h e h a d been with on the night in question. Even though he had no onus to prove, h e had the evidential burden to help his cause. J34 16.24 All in all, we do not fin d merit in this appeal. Our view is that, as found by the learned Judge , that the adduced circumstantial evidence was not only overwh elming and strong, but that it was irresistible to draw the inference of guilty. The learned Judge was on firm footing and there is no basis on which we can interfere with his decision. The conviction in our view was safe. 16.24 The appeal lacks merit and is dismissed forthwith. A. M. BANDA-BOBO COURT OF APPEAL JUDGE N. A. SHARPE-P IRI COURT OF APPEAL JUDGE J35