Paschal Kayanda v People (SCZ Appeal 132 of 2000) [2002] ZMSC 140 (5 March 2002)

IN THE SUPREME COURT FOR ZAMBIA SCZ APPEAL NO. 132/2000 HOLDEN AT LUSAKA [CRIMINAL JURISDICTION] BETWEEN: PASCHAL KAYANDA - APPELLANT AND THE PEOPLE RESPONDENT CORUM: LEWANIKA, DO, CHIBESAKUNDA, JS AND MAMBILIMA, AJS. On 2nd October, 2001 and 5th March, 2002. For the Appellant: Mr. G. Mhango of Nyangulu and Company. For the Respondent: Mr. C. F. R. Mchenga, Senior State Advocate. JUDGMENT MAMBILIMA, AJS, delivered the Judgment of the Court. This is an appeal from the Judgment of Kakusa J, in which the Appellant was convicted of the offence of aggravated robbery and sentenced to a term of 15 years imprisonment with hard labour. He appeals to this Court against both conviction and sentence. It was alleged in the lower Court that the Appellant, on 6th December, 1999, at Lusaka, jointly and whilst acting together with other persons unknown and whilst being armed with a pistol, robbed Joseph Phiri of a motor vehicle Registration Number AAT 1884 valued at KI 1.5 million. The facts which were before the lower court were that the complainant, who was called as PW1, was on 6th December, 1999 between 09.00 hours and 10.00 hours, driving a motor vehicle Registration Number AAT 1884, belonging to PW2. The vehicle was operating as a taxi. PW1 was robbed of this vehicle by three men one of whom was armed with a Pistol. The men had booked him at the town center in Lusaka to take them to Lilanda. He could not identify any of the assailants. Four days after the robbery, PW2 received information which he reported to the Police. Acting on this information, PW2 together with the Police visited the Appellant's house where on being questioned, the Appellant led them to Chongwe. From Chongwe they proceeded to the Appellants village in Chalimbana where the Appellant showed Police Officers a vehicle parked inside a hut covered with a black plastic paper. The Police retrieved the vehicle after partially damaging the hut. While at the village, the Appellant informed the Police that the key for the vehicle was at his home. They drove back to his home and recovered the key in his house. In his testimony, the Appellant denied having committed the offence and testified that a person called Adam had brought the vehicle in question to his house. According to the Appellant, the said Adam was in the company of another man and the two of them took this vehicle to Chongwe. The trial Judge dismissed the Appellant's story as a weak lie. He believed the prosecution's version and convicted the Appellant after finding that the vehicle was seen at the Appellant's house four days after the robbery and that it was the Appellant who led the Police to his village where the vehicle was recovered in his hut concealed in plastic papers. The evidence that while at his village, the Appellant informed the Police that they key for the vehicle was at his home in Matero further persuaded the trial Judge that the Appellant was not innocent because when they drove to Matero, the key was recovered in his house and this was the very key which was used to drive the vehicle. The Appellant has advanced one ground of appeal, namely that on the evidence before it, the trial Court was not entitled to dismiss the story of Adam, which was the Appellant's explanation, and proceed to convict on the basis of what it called circumstancial evidence emphasizing that the motor vehicle was found in the Appellant's village while the key was found at his home in Matero. Mr. Mhango for the Appellant submits that Adam existed and this was confirmed by PW2 and PW3. He referred us to various portions of PW2 and PW3's evidence in which the Appellant alleged that he had bought the vehicle in question from Adam, a relation of his. According to Mr. Mhango, the Judge's finding that Adam was a weak lie was not supported by the evidence. Mr. Mhango further submitted that the prosecution did not call any witness to confirm whether it was Adam or the Appellant who took the vehicle to the village. He further stated that there was no evidence that the hut where the vehicle was found belonged to the Appellant and no fingerprints were lifted from the scene. He submitted finally that since the story of the Appellant is cogent and it has not been negatived, he ought to have been acquitted. Mr. Mchenga, for the State, supported conviction. He submitted that there is evidence that the Appellant led the Police to the recovery of the vehicle five days after it was stolen. His explanation that it was brought by his cousin called Adam was rejected. According to Mr. Mchenga, the trial Judge was entitled to reject the Appellant's story because his explanation in the light of having been found with the keys, was not reasonable. Mr. Mchenga urges us to uphold the trial Judge and dismiss the appeal. We have looked at the evidence which was before the lower Court, and we have also considered the ground of appeal as well as the submissions by the Counsels. The evidence before the lower Court clearly established that the Appellant on being questioned led the Police to the recovery of the vehicle in Chalimbana. The motor vehicle was concealed in a hut which had to be partially damaged for the vehicle to be driven out. There was uncontradicted evidence that the Appellant was in possession of the keys to the vehicle. The Court below did not believe his story more so that the vehicle keys were recovered from the Appellant's house. It was a question of credibility as to which version of the story the Court would believe. The Appellant's story attributing the vehicle to Adam who took the vehicle to the village did not make sense when the Appellant was the one in possession of the car keys. We find that the evidence against the Appellant was overwhelming and the trial Judge was on a firm ground to arrive at the conclusion he did. We find no merit in this appeal against both the conviction and sentence. It is accordingly dismissed. D. K. LEWANIKA DEPUTY CHIEF JUSTICE L. P. CHIBESAKUNDA SUPREME COURT JUDGE I. C. MAMBILIMA ACTING SUPREME COURT JUDGE 5