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ZAMBIAN OPEN UNIVERSITY

DEPARTMENT OF LAW
Name Mwale Mike

Email address mikemwale777@gmail.com

Student ID 21981799

Program Bachelor of Laws (LLB)

Course name Law of Evidence

Course code LL311

Year Third Year

Semester one

Assignment number one

Date of submission 3rd September, 2021

Cell +260966092893

Lecturer Dr. Hamalengwa

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QUESTION

After reading the Keith Mukata case, summarize in detail the evidentiary findings that led to
his conviction for murder. Evaluate whether you would have come to a different conclusion.
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INTRODUCTION

This paper endeavors to discuss and summarize in detail the findings that led to mukata
conviction and express my opinion on whether i would have arrived at a different conclusion.
The paper will first state the brief facts of the case and further highlight the admissible types
of evidence. Secondly, it will describe the concept of relevance, admissibility and weight of
the evidence that was adduced in mukata case by the witness prosecution team. The paper
will finally draw a sound conclusion of the matter presented.

The brief facts of the case were that the accused person Keith Akekelwa Mukata on a
particular day murdered Namakambwa Kalakwenda who was working as a security guard at
his law firm (AKM Legal Practitioners) contrary to section 200 of the penal code. He was
later convicted of murder and sentenced to death. Murder is causing death of a person by
unlawful act or omission with malice aforethought1. Therefore, there are two elements of
murder which are mens rea and actus reus. Mens rea entails that there should be an intention
to kill accompanied by [actus reus which is] unlawful act or omission which result to death of
a person, and that the death happened within a year of the cause of death. 2 However for a
person to be convicted of murder the elements mentioned above must be proved beyond
reasonable doubt.

The above mentioned elements thus constitute facts in issue in the case the people v mukata.
Facts in issue are those facts that need to be proved that they exist against the accused person
by the prosecution if the case is to succeed.

The onus probandi lies on the prosecution to prove the facts in issue. The prosecution must
prove standard of proof to the satisfaction of the court for them to secure a conviction. The
standard of proof is the weight of evidence required to prove the case. The standard of proof
required in criminal proceedings is a heavy one as the prosecution needs to prove beyond all
reasonable doubt as it was held in Woomington v The Dpp3 where as in civil proceedings
standard of proof should be proved on balance of probabilities4

There are several types of evidence but this paper will only concentrate on a few types
specifically those that were adduce by the witnesses. According to the facts on record no one

1
Section 200 chapter 89 of laws of Zambia
2
Abid section 209
3
[1935] UKHL 1
4
Hatchard J and Ndulo M [1991], the Law of Evidence in Zambia: Cases and Materials. Lusaka: Multimedia
Publications. p22
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saw the accused pointing or firing a firearm at the deceased this gives us the thought that
there was no direct evidence but rather circumstantial evidence. Circumstantial evidence is
defined as evidence of relevant facts (facts from which the existence or non-existence of a
fact in issue may be inferred) Its importance lies in its potential for proving a variety of
different relevant facts all of which point to the same conclusion, as when it is sought to
establish that an accused committed murder by evidence of his preparation, motive, and
opportunity for its commission, together with evidence of the discovery of a weapon, capable
of having caused the injuries sustained by the victim, buried in the accused’s back garden and
bearing his fingerprints. To buttress this i cite the case of Joseph Kayombo v The People5
where the accused was convicted of murder, the accused alleged fired three gunshots and
three empty cartridges were picked up from crime scene, a firearm and two bullet projectiles
were also discovered on the crime scene. Circumstantial evidence, it has been said, ‘works by
cumulatively, in geometrical progression, eliminating other possibilities. 6 In other words
circumstantial evidence is the evidence that is indirect which tends to establish a conclusion
by inference. It does not directly tell the judge or prove existence or non existence of the
alleged fact in issue. But when put these circumstances together they will make a chain
leading to the conclusion.7 However, there is one weakness peculiar to circumstantial
evidence; that weakness is that by its very nature circumstantial evidence is not direct proof
of a matter at issue but rather is proof of facts not in issue but relevant to the fact in issue and
from which an inference of the fact in issue may be drawn.8

In the case of David Zulu v The People9 is was held that it is incumbent on a trial judge that
he should guard against drawing wrong inferences from the circumstantial evidence at his
disposal before he can feel safe to convict. The judge must be satisfied that the circumstantial
evidence has taken the case out of the realm of conjecture so that it attains such a degree of
cogency which can permit only an inference of guilt.

Furthermore, from the facts the prosecution relied on the testimony of the seven witnesses.
The witnesses were Collins Kabamba who was the deceased’s friend at place of work and
security officer at Attitude Advertising next to AKM Legal Practitioners. The next witness
was Mr. Mutengu Syalutaba a nephew to the deceased, followed by Mr. Pavan Kumar the

5
(2017) ZR 65
6
Keane , A & McKeon (2012), modern law of evidence (8th) London . OUP p12
7
Kahsay, D & Andualem E (2009) Law of Evidence p30
8
Professor Nokes An Introduction to Evidence (2nd Ed) at p. 467:
9
(1977) Z.R. 151 (S.C.)
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owner of the of the spice restaurant, the fourth witness was Lucas shibalatane a police
superintendent who was followed by Vincent chibesa a detective chief inspector. Another
witness was chilufya Marvin a police officer in charge. The last witness was chief inspector.
This paper will highlight all the evidence adduced by the witnesses.

All the evidence that was adduced is in the form of testimonies of the three witnesses. A
testimony is an assertion made by a witness in court offered as evidence of the truth of that
which is asserted. The court is asked to assume that the witness is speaking the truth. The rule
is that a witness must generally have had personal knowledge of the facts to which he
deposes and that the witness must have perceived them with one of his five senses10.

The evidentiary findings that led to the conviction of the accused were that, he fired three
shots, he had gun powder on his shirt, three empty cartridges were found in his premises, he
had a loaded gun, there were only three people inside the gate thus him [the accused person],
his co-accused person and the deceased, the accused failed to take the deceased to the
hospital. The cartridges that were discovered in the vehicle when examined by experts, it was
found that they matched with those that were fired from the accused firearm. According to
the witnesses they heard three gun shots as opposed to the testimony by the accused that he
fired two warning gunshots in the air and heard other two shots from the other side before he
fired the last warning shot in the air. He had hidden the keys for the BMW in the flowerbed.

Therefore pursuant to the testimony given by Collins kasamba who was working as a
security guard next to AKM legal practitioners, his testimony corroborated with that of Mr.
Kumar that they heard 2 to 3 gun shots, no one testified that the deceased was shot by three
bullets. The evidence on record shows that the deceased had a wound on left side of his neck
and on left shoulder. However there were three people in side the gate, the accused alleged
that he fired two shots from inside and the evidence on record shows that there was damage
on the inner part of the wall fence and another suspected bullet damage which protruded on
the outside. Therefore, though the accused testified that after he fired two shots, he heard
another two shot from outside which sounded like a smaller gun than his, but no where in the
evidence shows the damage on the outer part of the gate or the firearm fired from outside and
protruded inside. Thus leaves us with a question that how did the intruder managed to enter
inside and fired the firearm whose bullets landed on the deceased?

10
Supra Note 3 at p20
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The firearm registration number PZ2113C which belonged to the accused was examined by
the ballistic expert and was found to have been in good working condition. It was the finding
of the court that the accused knew or ought to have known that firing a loaded firearm whose
working condition is perfect would cause damage to the deceased or any other person.

The other evidentiary finding was the fact that the accused had a firearm, testimonies given
by the prosecution witnesses indicate that the firearm was found in the BMW and the keys for
the said car were hidden in the flowerbed. When the police asked for the keys they were
given the keys for a different vehicle. This indicate that the accused had deliberately hidden
the firearm in the car, lock it up and hide the keys in the flowerbed to prevent the police
officers from searching the vehicle.

The evidence also shows that three empty cartridges where found of which upon being
examined by ballistic experts it was discovered that the cartridges could have been fired and
discharged from the same firearm recovered from the crime scene which belonged to the
accused person. Prosecution witness a ballistic expert stated that he analyzed the 3 cartridges
that were picked from the scene of the murder and they all had traces of a pin hole in their
bases, indicating that that they were loaded and fired from the same firearm and caliber of
0.04 inch Smith and Wesson.
As regards to the blood and gun powder on the shirt of the accused, it was stated in the
judgment page number 5611 the learned trial judge observed that it was possible that blood
would have been found on an accused’s person shirt because he tried to assist the deceased
to take him to the hospital but failed. He also noted that the accused fired the firearm
therefore, power could have been found on his shirt.
Furthermore, the question whether I would have arrived at a different conclusion is a question
of fact as the prosecution had overwhelming evidence though circumstantial to secure the
conviction. I would not run away or go far from the findings of the court. Firstly the accused,
co-accused and the deceased were inside, the deceased was near the gate inside as confirmed
by blood splatter on the inside of the gate. And there were no cartridges picked from outside
this clearly show that the deceased was shot from inside and killed by the accused. If the
deceased was shot from outside there would not have been blood spatter on the gate inside.
Another evidence that would make me stick to the findings of the court is the fact that the
accused had a firearm and alleged firearm three shots and the evidence shows that the police
picked up three empty cartridges inside and when they examined, it was discovered that the
11
The people v Keith mukata [2018] ZR 180
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they we were loaded and discharged from the accused’s firearm, which is believed to have
claimed the life of the deceased. However, the learned trial judge was on firm ground when
he convicted and sentenced the accused for the offence alleged committed.
CONCLUSION

In conclusion, it is evident from the passage above that because no one testified that he saw
the accused firing the firearm which took the life of the deceased. This raised the issue of
circumstantial evidence in which in the passage above i have explained that circumstantial
evidence is the evidence of relevant facts (facts from which the existence or non-existence of
a fact in issue may be inferred) and that its importance lies in its potential for proving a
variety of different relevant facts all of which point to the same conclusion, as when it is
sought to establish that an accused committed murder by evidence of his preparation, motive,
and opportunity for its commission, together with evidence of the discovery of a weapon,
capable of having caused the injuries sustained by the victim, buried in the accused’s back
garden and bearing his fingerprints. In support of this point i cited the case of Joseph
Kayombo v the People and David v The People respectively. I then proceeded to discuss the
evidentiary findings of the court that led to the conviction of the accused summary of it was
that the accused was in possession of a firearm, and that he fired three gunshots which was
suspected to have taken the life of the deceased and that three empty cartridges where picked
from the crime scene. The accused fired the fired the firearm from inside which landed on the
deceased as evidenced by blood splatter on gate also that suspected bullet protruded on the
outside. It has been explained in the passage that no firearm was fired outside and no
cartridge was picked up outside and the bullet would not have protruded outside. Therefore, I
would not have come to a different decision because circumstantial evidence was
overwhelming which satisfied the learned trial judge that it has taken the case out of the
realm of conjecture so that it attains such a degree of cogency which can permit only an
inference of guilt.

BIBLIOGRAPHY
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Cross R. Wilkins and Tapper C. [1986] Outline of Law of Evidence (6 thed). London:
Butterworths.

Hatchard J. and Ndulo M. [1991], the Law of Evidence in Zambia: Cases and Materials.
Lusaka: Multimedia Publications and London: James Curry.

Kahsay, D & Andualem E (2009), Law of Evidence.

Keane, A & McKeon (2012), modern law of evidence (8th) London. OUP

Professor Nokes an Introduction to Evidence (2nd Ed).

Wigimore J.H. [1983] Evidence in Trials at common Law, P. Tillers rev. Boston: Little
Brown.

Statutes cited

The Penal Code Act Chapter 87 of the Laws of Zambia

Cases cited

David Zulu v The People (1977) ZR 151S

The people v Keith mukata [2018] ZR 180

Joseph Kayombo v the People [2017] ZR 65

Woomington v The Dpp [1935] UKHL 1