Kellies Kabaso and Isaac Njovu v The People (Appeal No. 49,50/2022) [2023] ZMCA 316 (15 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No.49, 50/2022 HOLDEN AT KABWE AND NDOLA (Criminal Jurisdiction) BETWEEN : KELLIES KABASO ISAAC NJOVU AND THE PEOPLE 1 ST APPELLANT 2ND APPELLANT RESPONDENT CORAM: Mchenga DJP, Chishimba and Muzenga, JJA ON: 12 th October 2022 and 15~ November 2023 For the Appellant : L . Tembo- Tindi, Legal Aid Counsel, Legal Aid Board For the Respondent : Y . M. Banda, State Advocate , National Pros e cution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to : 1 . George Musupi V The People (1978] Z . R . 271 2 . George Nswana V The People (1988 - .19 8 9] Z . R . 3 . David Zulu v . The People (1977] Z . R . 151 4 . Kate be V . The People (1975] Z . R . 13 5 . Darius Sinyinza v . The People , SCZ Judgment No . 2 of 2009 J2 Legislation referred to: 1. The Penal Code , Chapter 87 of the Laws of Zambia INTRODUCTION r11 The appellants appeared in the High Court (Lamba , J . ) , charged with the offences of aggravated robbery and murder contrary to Sections 294(1) and 200 of the Penal Code, respectively . c2 1 They denied both charges and the matter proceeded to trial . C3J At the end of the trial , they were both convicted for committing both offences . C4l They were each condemned to suffer capital punishment for the murder , and each sentenced to 15 years imprisonment , for the aggravated robbery . cs1 They have both appealed against the convictions. EVIDENCE BEFORE THE TRIAL JUDGE C6J On the 15 th of July 2019 , in the evening , Frank Ntalasha closed his shop which he operated as a grocery stor e and studio , in Kitwe ' s Luangwa Township , and left for home . J3 c11 At that time , he left Gift Kunda , the caretaker, in the shop . ce1 When he returned the following morning , Frank Ntalasha found Gift Kunda dead and that various properties , which are the subject of the aggravated robbery charge , had been stolen from his shop . C9J Earlier that morning , at about 05 : 15 hours , George Mwewa , a minibus driver , was stopped by 3 men who included the appellants . They loaded 10 bags of mealie meal , packets of sugar and other items on to his minibus and he drove them to Mulenga Compound . c101 The same morning , the two appellants approached Lewis Chanda Chileshe with an amplifier stolen from Frank Ntalasha ' s shop and pledged it as security for a loan. c111 That morning , they also approached Esther Mbale and pledged a laptop computer , stolen from the same shop , as security for a credit . c121On the same morning, the appellants approached Joyce Twanyambi and sold her packets of sugar . c131 The duo also approached Richard Mumba the same morning and left a speaker , monitor , a home theatre , a black woofer and sound control mixer , for safe J4 keeping . These i terns were also stolen from Frank Ntal asha ' s shop . [14J When a post - mortem was conducted on the body of Gift Kunda , the pathologist found that a deep piercing wound to the skull , h ad caused his death . The pathologist opined that a sharp instrument was used to cause the injury . r1s1 George Mwewa , the minibus driver , was detained by the police for transpor t ing goods stolen during the robbery . c16J There was al so evidence f rorn Inspector Morgan Nj obvu , that the appellants led the po l ice to the recovery of the sto l en property from the various places where it had either been sold , pledged or left , for safe keeping . c11 1 In their defences , the appellants denied killing Gift Kunda or selling the stolen property . They also denied leading the police to the recovery of the stolen property . FINDINGS BY THE TRIAL JUDGE JS [lSJ The trial Judge concluded , on the basis of the injuries Gift Kunda suffered , that the persons who inflicted the injuries on him , had malice aforethought and as such, that he was murdered . [19J She accepted the prosecution evidence that the recovered property was stolen from Frank Ntalasha ' s shop on the night Gift Kunda spent the night in the shop . [2oi The trial Judge deduced that appellants were implicated by circumstantial evidence . [21i They led the police to the recovery of the property that was stolen from Frank Ntalasha ' s shop on the night Gift Kunda was murdered. [22i She noted that the persons from whom the sto l en property was recovered were suspect witnesses on account of being found in possession of stolen property . [23J She ruled out the possibility of false implication , having found no basis on which the witnesses could have falsely incriminated the appellants. J6 [24J The trial Judge concluded that the only inference that could be drawn on the evidence before her , was that the appellants murdered Gift Kunda because they went around selling the stolen property so soon after the robbery. GROUND OF APPEAL AND ARGUMENTS IN SUPPORT [2sJ The sole ground of appeal is that an inference of guilty , is not the only inference that could have been drawn on the evidence against the appellants . [26J In support of the sole ground of appeal , it was pointed out that the case against the appellants was anchored on the evidence of suspect witnesses . [211The witnesses were suspect because they were found with stolen prope r ty . In the case of George Mwewa , he was detained by the police in connection with the robbery . [2a1 The case of George Musupi v. The People1 was referred to and it was submitted that in the circumstances , there was a danger of the appellants being falsely implicated. [29J Counsel also referred to the case of George Nswana v. The People2 and submitted that it is possible that J7 the appellants were mere receivers of the stolen property . That being the case , an inference of guilty is not the only inference that could have been drawn on the evidence that was before the trial Judge. [301In conclusion , counsel submitted that since more than one inference can be drawn on the evidence that was before the trial Judge , the threshold set in David Zulu v. The People3 , for a conviction being based on circumstantial evidence , was not met . ARGUMENTS AGAINST THE SOLE GROUND OF APPEAL [311 In response to the sole ground of appeal , it was submitted that there was no basis on which the trial Judge would have ruled that the prosecution witnesses could have had a motive to falsely implicate the appellants . [32J It was also argued that an inference that the appellants were the persons who murdered Gift Kunda , was warranted because the appellants failed to render an explanation of how they came into possession of the stolen property , so soon after it was stolen . JS CONSIDERATION OF THE APPEAL AND DECISION OF COURT [331 It is common cause , that other than the owner of the stolen property and the police officers , all the other witnesses aga inst the appellants , were s uspect witnesses . [341 They were suspect on account of being receivers of the stolen property , and in the case of George Mwewa , because he was detained in connection with t he robbery . C3SJ It is settled law t h at a person cannot be convicted on the evidence of a suspect witness , unless such evidence is corroborated . It is also settled law , that in certain circumstances , it is possible to convict on the uncorroborated evidence of such witnesses where there are " special and compelling grounds" . C36J in this case , the trial Judge recognised that the witnesses were suspect and went on to exclude the danger of false impl icat i on on the basis tha t there was no reason why they could have falsely accused the appellants as being the persons who pledged or s old them , the stolen property . J9 c311In effect , the trial Judge found that the r e were special and compelling grounds . This deduction is in line with the decision i n the case of Katebe v. The People 4 , where it was held that the absence of a motive to falsely incriminate , can be a special and compelling ground . cJs1 As we indicated earlier on , other than George Mwewa wh o was suspect on account of being detaine d , the others were suspect because of being found with the stolen property. As it turned out , it is the appellant s who led the police to those witnesses . [391 In effect , it is the appellants who led to the di s covery of these witnesses and the recovery of the stolen property . C40J Th e trial Judge , was , in the circumstances , entitled to come to the conclusion that the witnesses had no motive for fal s ely incriminating the appellants because the appellants are the ones who led the police to where they had sold or pledged the s t olen property. [ 41 1 Further , in the case of Darius Sinyinza v. The People5 , it was held that suspect witnesses can JlO corroborate each other if their reason for being suspect is different . C421 While the other witnesses where suspect because they were found with stolen property , George Mwewa was suspect because he was detained in connected with the robbery . Since George Mwewa and the other witnesses were suspect fo r different reasons , his evidence that the appellants loaded stolen property into his minibus , is corroborated by the evidence of those who were found with the stolen property . [431 It is corroborated in the sense that soon after he transported the stolen property they were carrying , they sold or pledged some other property that had been stolen from the same place . C44J In the circumstances , we find that the trial Judge cannot be faulted for accepting the eviden ce of the witnesses that it is was the appellants who took the sto l en property to them. If that was not the case , one would ask how they would have known where the stolen property was? c4s1 As regards the argument that it is possible that the appellants could have bought the stolen property and Jll not necessarily stolen it , nearly all the stolen property was sold or pledged to the witnesses by the appellants , the morning after the robbery . (461 If they were not involved in the robbery , it would be an odd coincidence that they ended up being in possession of all the property stolen in the robbery . Is it possible that the robbers would have sold the stolen sugar and mil lie meal to them before 05 : 00 hours. that morning , to enable them hire George Mwewa transport it at around 05:15 hours? C4 7J It is our view that the decision in the case of George Nswana v The People2 , is inapplicable to the circumstances of this case. The appellant ' s possession of the stolen property was so recent that the possibility of them buying the stolen property early that morning was so remote . C4BJ We find no merit in the sole ground of appeal and we dismiss it . J12 VERDICT [491 The sole ground of appeal having been dismissed this appeal fails . [so1 We uphold their convictions for both counts and the sentences imposed on them . C. F. R. Mcheng DEPUTY JUDGE PRESIDENT F. M. Chishimba COURT OF APPEAL JUDGE .............. ct; ........................ . K. Muzenga COURT OF APPEAL JUDGE