THE Court of Appeal has set Thursday, May 23 as the day of judgment for former Chilanga Constituency member of parliament Kieth Mukata’s appeal against a conviction and death sentence for murder.
The final verdict is expected to be pronounced in Kabwe by Justice Chalwe Muchenga.
Mukata who is also a lawyer was convicted of murder and sentenced to death by High Court Judge Susan Wanjelani on February 28, 2018.
He was convicted for murdering his security guard Namakabwa kalilakwenda of Men in Black Security on May 6, 2017 at his lawfirm AKM legal practitioners in Lusaka’s Rhodes Park.
Mukata appealed the High Court’s ruling in the Court of Appeal on grounds that justice Wanjelani misdirected herself when she convicted him of murder based on circumstantial evidence.
Mukata had asked the Court of Appeal to acquit him of murder as there was no evidence linking him to the death of his security guard.
Mukata, who is being represented by lawyers Mutemwa Mutemwa, Kasumpa Kabalata, Milner Katolo, Keith Mweemba and Wilis Muhanga, told the court that Judge Wanjelani erred when she admitted evidence which was not on record, leading to his conviction.
When the matter came up for hearing before a panel of three Court of Appeal judges including Justice Muchenga, Justice Dominic Sichinga and Betty Mungomba, Mukata through his lawyers submitted that the trial judge erred in law and fact when she found that he had malice aforethought before and after the incident, when he concealed the fire arm in the motor vehicle when there is no evidence on record to support such a finding.
“My lords and my ladies, we perused through the record of proceeding and found that the judge’s finding that the gun was concealed or hidden in a basket was made in a vacuum and unsupported by evidence of prosecution witness number six Lukas Shibalatani,” submitted the lawyers.
Mukata’s lawyers argued that there was no medical confirmation by a post-mortem on whether Kalilakwenda died of a gunshot wound or not.
They claimed that the pathologist did not state the cause of Kalilakwenda’s death but only gave evidence on the size of the wound.
Mukata further argued that there was no malice aforethought in during the incident as he had fired gunshots in the air.
The former law maker stated that the number of gunshots which he fired were not analysed by the trial judge as the two witnesses and himself gave different versions of how many shots were fired.
Mukata’s leagal team argued that the findings of fact were also not supported by any evidence because Justice Wanjelani had based her finding on mere speculations.
The lawyers said the judge erred in law and fact when she convicted Mukata purely on circumstantial evidence which had potential to draw more than one inference.
They stated that Justice Wanjelani erred in law and fact when she dismissed Mukata’s testimony that there were intruders at the crime scene.
But the state urged the Court of Appeal to uphold Mukata’s death sentence as his claim that intruders may have shot dead his guard is an after thought.
Deputy chief State advocate Monica Mwansa submitted before judge Mchenga, Sichinga and Mun’gomba that Mukata was properly connected to the death of Kalilakwenda because only him and his former co accused Charmaine Musonda were found at the crime scene.
She said police investigations revealed that the gun found at the scene of crime belonged to Mukata.
Mwansa had argued that the witnesse who were near the scene had heard three gunshots, which matched the three wounds that were on the deceased’s neck.
She said it was not disputed that Kalilakwenda died of gunshot wounds and that judge Wanjelani’s findings matched with evidence that was on record.
Mwansa had submitted that Mukata had concealed the gun after the shooting incident under the plates in a basket which was in his motor vehicle’s boot and tried to help the deceased by taking him to the hospital in order to hide his guilty conscious, therefore his claim that intruders had shot dead his guard within his premises was out of question.
“If the appellant was indeed under attack by intruders, people would have found him with his gun somewhere visible and not concealed,” said Mwansa.
“The appellant knew what he was doing and had intentions to kill the deceased person, as such, he had malice aforethought as rightly established by the trial court”.
She added that if Mukata had aimed at firing a warning shot, he could have done it once and not thrice, which was not the case as his target was to asassinate Kalilakwenda.
She further submitted that there were no extenuating circumstances that could have led to Mukata to shoot dead his guard who was manning his lawfirm at the time of the incident.