Jairos Nyirenda v The People (Appeal No. 13/2022) [2023] ZMCA 358 (23 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA/NDOLA (Criminal J~ri sdicti on) Appeal No.13/2022 BETWEEN : JAI ROS NYIRENDA APPELLANT AND THE PEOPLE ._____- RESPONDENT CORAM : Mchenga DJP, Chishimba and Muzenga , JJA On: 20 th September 2022 and 23 rd August 2023 For the Appellant: M. Nzala , Legal Aid Counsel , Legal Aid Board For the Respondents: R. L Masempela, Deputy Chief State Advocate National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to : 1. Charles Lukolongo v . The Peop l e [1986 ] Z . R . 11 5 2. George Nswana v . The People [1988 - 1989] Z . R . J 7 ~ 3 . Dorothy Mutale and Richard Phiri v . The Peop l e [ 19 95 - 1997) Z . R . 227 4 . David Zulu v . The People [1977) Z . R . 151 5 . Saidi Banda v . The Peopl e , SCZ Appeal No . 1 ~4 of 2015 6. Mwewa Murano v . The People [200 ~ ] Z . R . 207 J2 7. R v. Nosiku and Others r1941] Crim Rev Case No. 237 of 8. Ilunga Kabala , John Masefu v . The People [1981) Z . R . 9. Sakala v . The People [1980] Z. R . 205 INTRODUCTION [lJ The appellant appeared before the High Court (Katanekwa , J . ) on a charge of murder contrary to Section 200 of the Penal Code . [2J He denied the charge and the matter proceeded to trial . [3J At t he end of trial , he was convicted as charged , and condemned to suffer capital punishment. [4J He has appealed against the conviction . CASE BEFORE THE TRIAL COURT [SJ On the 2 nd of April 201 8, around 16 : 00 hours , Boyd Ikumba , a resident of Mufulira , drove to his farm in Chambishi . [6J Just befor e reaching the farm he found his worker , the appellant , who informed him that his co-worker , Justine Mwelwa , had gone missing. [7J The appellant informed him that around 14 : 30 hours , he instructed Justine Mwelwa to walk ahead of a herd J3 of cattle, they were about to water at a stream . That was to prevent the anima l s from c r oss i ng t he stream and getting into the fields across it. ca1 The appellant informed Boyd I kumba t hat Justine Mwelwa went ahead as instructed, and disappeared. [91 The appellant showed Boyd Ikumba t h e p oi n t whe r e they were standing when he gave the i n s t ruct i o n . It was on higher ground, compared to the place where he said he instructed Jus t ine Mwe l wa t o g o. c 1 o 1 Pressed on the .l ast sight i ng of his workmate , t h e appellant , who appeared very tired and was sweaty , d i d not answer. All he said was that he concentrated on the direction in which the cattle were he a di n g . c111 The appellant , Boyd Ikumba a nd a t h i r d per son, searched an area 100 meters in width, but did not find Justine Mwelwa. They l e f t a t n i gh t fall . c121 They continued searching t he fo llowing day . [131 The search was in an area of between 120 and 150 meters from the po i n t wh ere t he appe l l ant s a id the animals were to be watered. [141 Three days later , Justine Mwe l wa ' s decompos e d body was found 200 meters from where the s ea r ch was t ak i ng J4 place . It was below the electricity pylons and the area was s l ashed . [1 5 ) A post - mortem conducted on Justine Mwelwa' s body found that the head was deformed, red marks were noticed on the eye and br uises on the forehead . The cause of death was found to be head injuries and strangulation. [1 6 1 In court , the appellant's story was that on the material day , they were herding about 150 herds of cattle. Between 13: 00 and 14 : 00 hours , he instructed Justine Mwelwa to go ahead to stop the animals from crossing the stream and his friend disappeared . [171 He went to Justine Mwelwa ' s house , but he did not him or his wife. He also informed their supervisor because he feared that he migh t have fa ll en i nto a well or have been beaten by a snake . [l BJ On the way back, he met his emp loyer to whom he narrated what had happe ned . FINDINGS OF THE TRIAL JUDGE JS [1 9J The trial Judge concluded tha t the case against the appellant was premised on circumstant i a l evidence. [20J He ruled out the possibility that Justi n e Mwelwa died following a stampede by t he cat tle t hey were herding , because of the findings by t he pathologist that he was strangled. [21J He surmised that Justine Mwelwa ' s body was fo und about 200 meters from t he p l ace where the appellant had indicated that they should search . [2 2 J He deduced t hat the evidence establ i shed that at the time Justine Mwe l wa disappeared , there was only him and the appellant, in the a r ea . That being the case , only the appellant could h ave i n f l icted the injurie s that caused his death. [23J The trial Judge also found that Ju stine Mwelwa did not d i e on the day his body was found, because of the state of purification of t he body . He conc l uded that he died on the day he we nt missing . [ 2 4J Finally, he concluded that considering the i njuries Justine Mwelwa suffered , the appellan t should h ave had J6 the intention to caus e death when he assaulted him and therefore had mali c e aforetho ught. GROUNDS OF APPEAL [2 SJ The sole ground of appea l is that , "The learned trial Judge erred both in law and fact when he convicted the appellant on circumstantial evidence that was not cogent so as to remove the case out of the realm of conjecture" ARGUMENTS IN SUPPORT OF THE SOLE GROUND OF APPEAL [26 J On behalf of t he appel l ant , Ms . Nzala refe rred to the case of Charles Lukolongo v The People1 and submitted that there was a dereliction of duty when the person who d iscovere d the body was not called as witness . [ 27J She argued that since there was contradicto ry evidence on who discovered Justine Mwelwa ' s body , calling the pers on who discovered the body , would have resulted in the placing before the court , evidence that was favourab le to the appellant . [28J Such eviden ce , wo uld have ruled out the possibility that the appe llant committed the offen ce . J7 [ 2 9J Ms. Nzala also referred to the cases of George Nswana v The People 2 and Dorothy Mutale and Richard Phiri v The People 3 , and s ubmitted t ha t si n ce the appellant ' s explana ti on that Justine Mwelwa disap peared whilst they were herding cattle could reasonably have been true , t h e case again s t him was not proved . This is because it is possible t ha t someone else could have c ommitted the offence . [3 0J That being the case , the court should have drawn that inference , whi ch was favourab l e to the appe ll an t , that is , that someone else committed the offence . [ 31J Ms. Nzala then proceeded to refer to the cases of David Zulu v The People 4 and Saidi Banda v The People 5 , and submitted that in view of the foregoing , the circumstan:tial evidence o n which the appellant was convicted, fell far short of the thre shold se t for convictions anchored on circumstant ial evidence . [32 1 Further , there was no evidence proving that t he appellant inflicted the injurie s that caused the Justine Mwelwa's death . Hi s body was found across the stream in an area that was opposite where they were JS herding cattle and there was no evi dence that the appellant was seen in that area. [ 33 ) Ms . Nzala also pointed ou t tha t b eca u s e of the number of animals they we r e herding , it was possible that the appellan t cou l d not have see n o r h ea rd the person who attacked Justine Mwelwa. [3 4J Finally , Ms . Nzala urged u s to al l ow t h i s appea l arguing that the prosecut i on had failed t o prove t he case against the appellant b eyond a ll reasonable do u b t as set out in the case of Mwewa Murono v . The People 6 . STATE ' S RESPONSE TO THE SOLE GROUND OF APPEAL [ 3S J In response , to the argument on the ef f ect s o f t he failure t o l ead evide nce on who fou n d J ust i ne Mwe l wa ' s body , Mr. Masempela submitted that it was not fa t al to the prosecution ' s cas e . That i s bec a us e it was in t he public domain t hat he was mi ss i ng and t ha t there was a sea r ch for him. [ 36 J He then referred to the cases of David Zulu v. The People4 and R . v . Nosiku and Others 7 , a nd submi t ted t ha t the circumstan t ia l evidence ag ainst th e appel l ant had att a i ned the threshold on which it was sa fe to convict him fo r the murder of J ust i ne Mwelwa . J9 [ 37 J He submitted that although there was no evidence t hat the app ellant inflicted the injuries that led to Justine Mwelwa ' s death , there were odd coincidences that proved the case against h i m. On the strength of the case of Ilunga Kabala and John Masefu v The People 8 , he submitted tha t the conviction was competent. [3BJ He argued that the appellant failed to e xplain how the J ustine Mwelwa , who he claims had gone ahead to stop the cattle from crossing the stream , could have gone missing . [ 39J He also argued that the appe ll ant repor ted that Justine Mwelwa had gone missing just after two hours , without finding out from his wife if he had gone home. [ 40 J This reporting was indica tive that at that point , the appel l ant knew that he had ki lled his workmat e . His demeanour , looking sad, tired and sweating , confirmed t hat fact . [ 4 1 J Mr . Masempela also submitted that the appellant ' s claim that he did not know h ow Justine Mwe l wa disappeared cannot reasonably be true becaus e his body was found in a place where it was possible for him to JlO see what was going from the point he a ll eged he gave him instruct i ons on what to do. [4 2 1 He ended his submissions by referring to the case of Sakala v The People 9 and pointing ou t tha t the circumstant ial evidence in this cas e was so cogent tha t an inference that the appellant killed Justine Mwelwa is the only inference that cou l d have been drawn . [431 Mr. Masempela conc lu ded by s ubmitting that the appellant's explanation of how he went missing , cou l d not reasonably have been true. [441 He urged us to dismiss the appeal . COURT'S CONSIDERATION OF THE APPEAL AND DECISION [451 The first issue we will deal wit h , is the submi ssion that there was a de reliction of du t y when the state failed to call , as a witness , the p erson who f ound Justine Mwelwa ' s body . [ 461 This was on account that the testimony o f s u ch a person , would have ruled ou t t he possibi lit y tha t someone e ls e committed the offence . [47 ) Given that the case against the appel la nt is that his workmate went missing whilst in his company and his body was discovered 3 days later , by members of the Jll public who were searching fo r it , we do not see t he significance of the testimony of the person who was the first to see Justine Mwelwa ' s body. [48) Once the body was discovered , it was no t moved because it was in a state of decomposition. It was not moved and even the post - mortem was conducted in situ . [4 9 1 In our view , there is no s i gnificant evi de n c e t hat the discoverer of the body would have provided . [5 0 J That being the case , the failure to call the person who found Justine Mwelwa ' s body , was not a dere l ict i on of duty . [51J The appellant ' s counsel referred to the holding in the case of George Nswana v The People2 , and s u bmitted that since the appellant gave a n e xp la n a t ion of h ow Just i ne Mwelwa disappeared , which explanation could reasonably have be e n t rue, the c h arge ag a ins t t he appellant was not proved . [ 52J The appellant ' s employer gave evidence o f t h e terrain .at the point that the appel l ant is said t o have disappeared from. Be told the trial Judge that i t was elevated and the surroundi n g areas were clear . J12 [5 3 ) There was also evidence from the arresting officer that the area where the body was found under the pylons was clear , only with small shrubs t ha t were knee high . [ 54 ) In the circumstances , it is i nconce i vable that Justine Mwelwa cou l d have wa l ked in t h e d i rect i on the appellant directed him , and a stranger not seen or heard by the appellant , sneaked i n , strangled him and damped him , about 200 meters away . [55) Further, the appellant claimed that he instructed Justine Mwelwa to wal k ahead t o s t op the animals from crossing the stream and eating in the fields . Odd enough , there was no evidence t hat any field was grazed . This would have been the cas e if Justine Mwelwa had disappeared in the manner that he claimed. [56) But i t is not surprising that no field was grazed because no witness other than the appellant, talked about the e x istence of the field. [ 5 7) On the evidence before him , we are sa t is fied that the triql Judge was entitled to disbelieve the appellant ' s claim th at Justine Mwelwa disappeared and find . that th.e appellant in fact strangled him . J13 [5BJ The holding i n the case o f Dorothy Mutale and Richard Phiri v The People 4 , is not helpful t o the appellant because the evidence before the trial Judge did not raise a possibility of another person inflicting the injures that tur n ed out to be f at al . [ 59) The cases of David Zulu v The People 3 and Saidi Banda v The Peoples, make it clear that it is competent to convict on circums t an ti a l evi d ence if the only inference is one of gui lt . [60J From t h e a ssessment tha t we have just set ou t , we are satisfied that an infer en ce t ha t the appe l lant committed the offence , is the only inference that could have been drawn on t h e evidence t h at was be fore the trial Judge . [61J That being the case , the test in the cases of David Zulu v The People 3 a n d Saidi Banda v The Peoples , for a convict i on based on c i rcumstantial evidence , was met . [ 62J We find no merit in the sole ground of appeal and we dismiss it. J14 VERDICT [ 63 1 The sole ground of appeal having f a i l e d , we dismi ss the appeal . [ 64 J We uphold the conviction and the sentence i mposed on him. DEPUTY JUDGE P F. M. Chishimba COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE