Brighton Kabimba v The People (Appeal No. 160/2021) [2022] ZMCA 167 (23 September 2022)

' IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No. 160/2021 BElWEEN: BRIGHTON KABIMBA APPELLANT AND THE PEOPLE 2 3 SE? 2022 RESPONDENT CORAM: Mchenga DJP, Sharpe-Phiri and Muzenga JJA On 15th June, 2022 and 23rd September, 2022. For the Appellant: Ms M. Marebesa - Legal Aid Counsel, Legal Aid Board For the Respondent: Mrs. S. M. Besa - State Advocate, National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Palmer v R (1971) 1 ALL ER 1077 2. James Chibangu v The People (1978) ZR 37(SC) 3. Kalinda v The People (1966) ZR 29 J2 4. Dickson Sembauke and Another v The People (1988 - 1989) ZR 114 (SC) 5. Kenious Sialuzi v The People (2006) ZR 87 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. Other works referred to: 1. Criminal Law Texts and Materials - Jonathan Herring 1.0 INTRODUCTION 1.1 The appellant was charged with one count of murder contrary to Section 200 of the Penal Code. 1 The particulars of offence alleged that on 3rd July, 2021, at Kabwe in the Kabwe District of the Central Province of the Republic of Zambia, the appellant did murder Margaret Katongo. The appellant was subsequently convicted and sentenced to death by the High Court (Before Mrs. Justice M. M. Bah-Matandala). 2.0 EVIDENCE IN THE COURT BELOW 2.1 The appellant's conviction was secured by the evidence of seven prosecution witnesses. Elly Mutasha a Registered Nurse working at Wire Rural Health Centre under Kapiri-Mposhi District in Lukanga Swamps was the first witness (PWl). She told the trial court that on ' j . ' J3 2nd July, 2021 around 23:00 hours, she received a patient by the name of Brighton Kabimba who was unconscious at the time. She attended to him by asking questions from his relatives who had accompanied him to the hospital. She was told that the patient had taken pesticides. She stated that she administered the prescribed medication for persons who have ingested poison and referred the patient to Kabwe General Hospital for further specialised treatment. While waiting for the ambulance to arrive, the patient gained consciousness and she decided to go over the patient's history with him. She told the trial court that the patient told her that he had taken poisonous medicine because he had killed his wife. She proceeded to carry out a physical examination on the patient where she discovered that the patient had sustained a deep cut on his left palm. On the third day of being in the hospital, the police came in and arrested him. 2.2 In cross-examination, PW1 stated that she heard the patient telling his relatives that he killed his wife because he found her in a compromising situation with another man. 2.3 PW2 was Steven Manchishi a farmer in Kantupu area in Kapiri-Mposhi District. He told the trial court that on 2nd July, 2021 his son informed JS court that at the clinic the appellant told him that he found his wife (deceased) with another man. 2.6 PW3 was Purity Nchimunya a peasant farmer of Mukabo Village in Chief Chipepo in Kapiri-Mposhi District. A summary of her testimony was that on 2nd July, 2021 the day Margaret was murdered, the appellant, went to her house and informed her that he had killed his wife. She quickly woke up her neighbours who escorted her to check on the deceased in the direction the appellant had told her. At the scene, they found the deceased lying lifeless with a stab wound on the neck and was undressed from the bottom. She told the court that the deceased's legs were spread wide apart with a knife in her vagina. It was her further testimony that, the appellant and the deceased were on separation and that the deceased was staying at her house. 2.7 Under cross-examination, she stated that she knew the appellant and the deceased well and that the two had marital misunderstandings. She denied being aware of the fact that the appellant had murdered the deceased because he had found her with another man. 2.8 The testimony of PW4 Marjory Katongo Chingalika was to the effect that on 2nd July, 2021, around 23:00 hours, Headman Chikonkoto went JG to her house to inform her that her young sister Margaret Katongo had been murdered by her husband, the appellant herein. She rushed to the crime scene where she found a lot of people. Her testimony with regards to what she found at the crime scene is similar to that of PW3 and we shall not repeat the same. 2.9 Under cross-examination, she denied that the appellant and the deceased had marital problems and that she did not know who killed the deceased. 2.10 PWS told the trial court that on 4th July, 2021 she was picked up by the police from Kabwe Central Police Station and taken to the mortuary where she identified the body of her niece, Margaret. She told the trial court that the body was then taken for post-mortem examination where she observed that the deceased had been stabbed on her neck, chest and private parts. She stated that the last time she saw the deceased prior to her demise, she was in good health. 2.11 The evidence of PW6, Inspector Peter Chilembo a police officer under the Victim Support Unit at Kabwe Central Police Station, was that on 3rd July, 2021 while on duty he visited the crime scene in the company of the investigation officer, Detective Inspector Chishimba. He stated J7 that when they arrived at the scene, they found the deceased lying facing upwards covered with a chitenge. 2.12 In his continued testimony, he stated that upon examining the body of the deceased, he discovered that the deceased sustained multiple deep cuts on the left side of her chest, neck, throat and pelvis area. He stated that the body of the deceased was also found with a knife inserted in her vagina. A photographic album was prepared and later produced and admitted in court. He told the trial court that they took the body of the deceased to the mortuary. Thereafter, they proceeded to the hospital where the appellant was admitted. 2.13 It was PW6's testimony that, while there, he observed that there were blood stains on the white t-shirt and black jeans that the appellant was wearing. The appellant was later remanded in custody. PW6 further told the trial court that he took the knife to the police headquarters for DNA sampling. 2.14 The prosecution's last witness was Clement Chishimba, a police officer stationed at Kabwe Central Police Station. His testimony was to the effect that on 3rd July, 2021, he was assigned to investigate a case of murder in which Misheck Kahime reported alleging that Margaret J8 Katongo of Chikonkoto Village had been murdered by her husband Brighton Kabimba of Kabesha Village of Chief Chipepo in Kapiri-Mposhi District. He told the trial court that acting on the report he interviewed three witnesses who told him that the appellant had confessed to having murdered the deceased. He testified that the nurse at the clinic where the appellant was admitted also told him that she had overheard the appellant confessing that he had killed his wife. He then visited the crime scene in the company of other police officers. 2.15 Thereafter, he went to visit the appellant at the clinic and he told the trial court that he observed a deep cut on the inside of his left palm and that the clothes the appellant was wearing were stained with blood. He later made up his mind to charge the appellant with the offence of murder. On 5th July, 2021, he attended a post-mortem examination at Kabwe General Hospital where the outcome of the examination was reduced in a report which he produced in court and was admitted in evidence. 2.16 Under cross-examination, he stated that he interviewed PW2, and PW4, and that PW3 told him that the appellant had gone to her place to look for the deceased. He said that PW4 told him that it was not J9 strange for the appellant to visit the deceased at the brother's place. He told the trial court that PW1 and PW2 told him that the appellant and the deceased had marital disputes and that the appellant had found the deceased with another man. 2.17 In re-examination, he told the trial court that from the information he had gathered, the appellant and the deceased wanted to reconcile after being granted separation on 21st June, 2021. He stated that the appellant had earlier sued the deceased on allegations that she was having an extra-marital affair. 2.18 This marked the end of the prosecution case. The appellant was found with a prima facie case and placed on his defence. He opted to give evidence on oath and called no witnesses. 3.0 DEFENCE 3.1 In his defence, the appellant narrated that on 2nd July, 2021, he started off from his home to go and collect money in Chilumba and Kantupu areas for the shoes he had sold on credit. He stated that from there, he decided to pass by Thomas Nyemba's place where the deceased was staying at the time. When he reached there, he only found Thomas's wife as Thomas and the deceased were not there. He waited • JlO for them until 21:00 hours then he decided to follow them. On his way, he heard some voices of someone saying "can you move someone is passing." He narrated that he then heard the voice of the deceased who after he searched, found her having sexual intercourse with another man. 3.2 A squabble arose and in the process, he leaned toward his wife and the man ran away. After that, he felt a cut on his hand, he was not sure what the deceased had done to him. He grabbed the knife from the deceased and stabbed her. He told the trial court that the man who was with his wife was Ackim Punkuma. He stated that he was confused and that since it was at night he could not tell where he had stabbed the wife as they were fighting. 3.3 In his continued testimony, he stated that he then felt dizzy and lost consciousness. The next thing he saw were police officers who picked him up from the clinic. He told the trial court that he could not remember taking poison or going to PW2's house to inform her of the death of the deceased. 3.4 He told the trial court that when he found out that Ackim Punkuma was having an affair with his wife, he took him to court on 21 st May, • Jll 2021 where the court ordered him to stop. He told the trial court that he was heartbroken when he found his wife with another man as he loved her very much. 3.5 In cross-examination, he stated that he was married to the deceased for 21 years and they were blessed with 5 children the oldest being 20 years and the youngest 5 years old. He told the trial court that prior to the fateful day, he had never beaten his wife. On the material day, he found the deceased having sex with another man and that he held both the man and the deceased, but the man managed to run away. He told the trial court after the man ran away, his wife abruptly stabbed him with the knife. In retaliation, he grabbed the said knife and stabbed her. He told the trial court that he could not remember how many times or which part of the body he stabbed the deceased as he was in a confused state. 4.0 FINDINGS AND DECISION OF THE LOWER COURT 4.1 The trial court considered the evidence on the record and found the facts in issue, in this case, were largely undisputed and that what was in dispute was whether the appellant killed the deceased intentionally and whether the killing was justifiable. The trial court noted that the • J12 appellant in his defence tried to establish self-defence and the defence of provocation. 4.2 With regards to the defence of person or property, the court noted that Section 17 of the Penal Code provides the ingredients to be satisfied for one to successfully plead this defence. The court found as a matter of fact that the deceased person did not have the knife on her for the reason that the appellant had stated that the deceased was found in a sexual act in a dark place. The trial court went on to reason that in line with Section 17 of the Penal Code, the appellant used excess force in retaliation for the purported attack from the deceased was way beyond what was necessary to repel the purported unlawful attack. Hence the defence of self-defense failed. 4.3 On the defence of provocation, the trial court noted that for this defence to succeed there must be a reasonable relation between retaliation and provocation, which means that the act which caused the death must have borne a reasonable relationship to the provocation. In considering the evidence on record, the trial court concluded that the appellant's story that he had found the wife having sexual intercourse with another man was an afterthought. The trial • J13 court went further to find that the action by the appellant to insert a knife into the deceased's vagina was clearly intended to cause death or occasion grievous harm to the deceased. The trial court concluded its analysis by finding that the prosecution had proved its case against the appellant beyond reasonable doubt and convicted him. 4.4 She went further to find no extenuating circumstances and sentenced the appellant to death. 5.0 GROUNDS OF APPEAL 5.1 Discontented with the conviction and sentence, the appellant filed two grounds of appeal couched as follows: (1) The lower court erred in law and in fact when it convicted the appellant without establishing malice aforethought on the part of the appellant. (2) The learned trial judge erred in law and in fact when she discounted entirely the evidence of self-defense and provocation from the appellant. 6.0 APPELLANT'S ARGUMENTS 6.1 In support of the first ground of appeal, it was submitted that the prosecution failed to lead evidence to establish malice aforethought on the part of the appellant. It was contended that the evidence on record reveals that the appellant did not plan to fight or cause grievous harm. , l J14 But his intention was purely to visit his wife until he lost self-control in the heat of passion after he found his wife having sex with another man. 6.2 In support of ground two, it was submitted that the appellant raised self-defense and provocation because of the circumstances he found himself in. We were referred to a book by Jonathan Herring, entitled Criminal Law Texts and Materials, wherein he states that the requirements for one to raise a private defence (self-defence) it must be shown that: 1. The defendant was (or believed he was) facing an unjust threat from the victim. 2. The defendant used a level of force against the threat ( or the threat as it was believed to be) which was reasonable in the circumstances. 6.3 It was submitted that the deceased stabbed the appellant first, which was a threat to his person and that the force used by the appellant was reasonable, as it was the same knife that the deceased used to stab him, which he grabbed and used to stab her back after she attempted to grab the knife back from him. We were also referred to the case of Palmer v R1 where it was held as follows: JlS "In their Lordships view the defence of self defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that he may do, but may only do what is reasonably necessary. But everything will depend on the particular facts and circumstances. Of these, a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger, he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or maybe pure aggression. There may no longer be any link with a necessity of defence. Of all these matters the good sense of a jury will be the arbiter. There are no prescribed words which must be employed in, or adopted in a summing up. All that is needed is clear exposition, in relation to the particular facts of the case, of the conception of necessary self-defence. If there has been attack so that defence is reasonably necessary it will be recognized that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. A jury J16 will be told that the defence of self-defence, where the evidence makes its raising possible will only fail if the prosecution shows beyond doubt that what the accused did was not by way of self-defence." 6.4 Counsel for the appellant contended that the appellant's action and retaliation were in tandem with the requirement of Section 17 of the Penal Code as the appellant's action was purely an act of self-defence coupled with extreme provocation. 6.5 With regards to the defence of provocation, it was contended that the appellant testified before the trial court that he felt extremely provoked to find his wife having sex with another man that he had previously sued of marriage interference and was at the centre of their separation. We were referred to the case of James Chibangu v The People2 where the Supreme Court held that: "{i) It is a condition precedent to the reduction of a charge of murder to manslaughter that the court must be satisfied that the act which caused the death bore a reasonable relationship to the provocation. {ii) Not only the provocation itself but also the reasonableness of the retaliation must be tested with regard to ordinary persons of the community of the accused, since the provisions of section 206 of the Penal Code would in this regard be "useless if, having tested the likelihood to assault by the reaction of one sort of ordinary person, the court J17 was obliged to adopt a different standard in judging of the reasonableness of what was done." (iii) In Zambia the test for provocation is objective but only in a limited sense in that it is of a parochial nature, namely, faced with similar circumstances can it be said that an ordinary person of the accused's community might have reacted to the provocation as the accused did?" 6.6 We were further referred to the case of Kalinda v The People3 in which Doyle JA made the following sentiments in delivering the judgment of the court of appeal; "To be found in adultery has in the English common law always been considered one of the gravest forms of provocation. In Zambia and other African territories, a confession of adultery has been held to be the equivalent of being found in adultery and to be the grave and sudden provocation. There is a difference but little distinction between confessing to past adultery and stating that one is about to commit it." 6.7 In summation, it was submitted that when an accused person is motivated not by a revengeful desire to cause grievous harm, but rather by a lawful intention and applies excessive force in the process, the resulting death is not murder, but manslaughter. We were urged to set aside the conviction and sentence as the appellant had proved the two defence and substitute the conviction with manslaughter. In J18 the alternative that the failed defence of self-defence and provocation reduced the murder to manslaughter. 7.0 RESPONDENT'S ARGUMENTS 7.1 It was contended that the appellant ought to have known that the act of stabbing the deceased 11 times and inserting a knife in her vagina would cause her death or grievous harm. That the appellant did not care whether his conduct would lead to the death of or grievous bodily harm to the deceased. In support of this, we were referred to the case of Dickson Sembauke and Another v The People. 4 7.2 It was contended that the trial court was on firm ground when she found as a matter of fact that the deceased person did not have a knife on her when the appellant found her. That the appellant informed the trial court that he grabbed the knife from the deceased which meant that he was no longer in danger. It was submitted that the appellant's explanation of how the events unfolded was correctly found to be without merit. It was further submitted that the defence of self defence is available to the person who employs the necessary force to repel the attack. J19 7 .3 In responding to ground two of the appeal, it was contended that the trial court was on firm ground when it found that the defence of provocation was not available. It was contended that Section 206 of the Penal Code clearly defines provocation and links the action to what an ordinary person in the community would expect to do. That the defence of provocation consists namely; loss of self-control both actual and reasonable, and retaliation that is proportionate to the provocation. It was submitted that in this case, the evidence on record shows that the three elements have not been satisfied. That the retaliation was too excessive and unreasonable. Further, counsel submitted that the trial court was on firm ground when it found that there was no defence of provocation that could have an extenuating circumstance. 7.4 In summation, we were urged to dismiss the appeal and uphold the judgment of the lower court. 8.0 HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1 At the hearing of the appeal, learned counsel for the appellant, Ms Marebesa and learned counsel for the respondent, Mrs. Mwamba-Besa, J20 placed full reliance on their respective arguments. We are grateful for their submissions. 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have carefully considered the evidence on the record, the arguments by both parties and the judgment of the trial court. 9.2 Learned counsel for the appellant's argument in ground one seeks to assail the conviction on the basis that there was no malice aforethought. This argument is clearly misplaced. Malice aforethought in our laws clearly includes constructive malice, which under Section 204 of the Penal Code, includes knowledge that the act or omission causing death will probably cause the death of or grievous harm to a person, whether such person is actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused. 9.3 There is no doubt, as the trial court rightly observed, that the injuries inflicted on the deceased herein clearly show that the appellant knew or ought to have known that stabbing the deceased in the manner in which he did was likely to cause death or grievous harm. We therefore hold that malice aforethought on the part of the appellant was clearly J22 9.6 We find the two findings to be contradictory. We thus have to decipher from the evidence which of the two facts are probable in the circumstances. We are alive to the fact that it is the responsibility of a trial court to make proper findings of the facts on the record in order to aid it in making a sound decision. The learned trial court abdicated its duty by making contradictory findings. This was a misdirection. 9.7 We are of the view that the second finding to the effect that the appellant disarmed the deceased is not supported by the evidence and the circumstances. We thus set it aside. It is inconceivable that a person actively engaged in sexual intercourse would have possession of a knife in their hands. Had the learned trial court taken a proper view of the evidence, it would not have made the second contradictory finding. 9.8 It follows therefore, as the trial court initially found, the appellant was not in any imminent attack from the deceased. The Supreme Court in the case of Kenious Sialuzi v The People5 held inter-alia that: "A person shall not be criminally responsible for the use of force in repelling an unlawful attack if the means he uses and the degree of force he employs in doing so are no more than is necessary in the circumstances. The force used was more than necessary and excessive." J23 9.9 There was therefore no attack on the appellant to justify the use of force. In fact from his evidence, he testified that he got hold of both the deceased and the other man who managed to escape from the appellant's disconsolate hands. He thus remained with the deceased. In the circumstances, we agree with the learned trial court that self defence was not available to the appellant. We find no merit in this argument. 9.10 We now turn to consider the defence of provocation. The learned trial court rejected the defence of provocation on the basis that apart from what the accused said that he found the deceased having sex with another man, there was no other evidence to support the allegation. The trial court went further to find that it was an afterthought and as such the defence of provocation failed. 9.11 We must state that we are surprised with the finding of the trial court in this regard. To begin with, there was no onus on the accused person to prove the defence of provocation. All he needed was to raise evidence sufficient to be left to the jury. So for the trial court to expect more than what he tabled was tantamount to shifting the burden. This was a very serious misdirection. Secondly, right from the prosecution J24 witnesses' evidence, the appellant's story has been consistent with that of PW1, PW2 and PW7, to the effect that the appellant killed his wife because he found her with another man. The appellant's defence was equally consistent. In fact the evidence clearly shows that the appellant after realising what he had done, attempted to take his own life by ingesting a pesticide. 9.12 Therefore, the basis for rejecting the defence of provocation is flawed and we thus set it aside. What is clear from the evidence is that the appellant caught his wife having sex with another man. We agree with the decision of the Court of Appeal, the forerunner to the Supreme Court, in the Kalinda case supra that this form of provocation is the gravest, one may experience. 9.13 We are satisfied that there is a nexus between the act which caused the death and the provocative act. The appellant acted immediately in the heat of passion, as he could not even recall how many times he stabbed the deceased. We equally hold the view that a reasonable person in this country, in Africa or indeed in the class of persons in the community to which the appellant belonged, would have acted in a similar manner or even in a worse off manner than the appellant did. J25 9.14 Had the trial court properly directed its mind, it would have no doubt have reached the conclusion as we have. We accept that the retaliation did not outweigh the provocation. We thus set aside the trial court's finding that defence of provocation was not satisfied. We allow the appeal on this score and find merit in part of the arguments in ground two. 10.0 CONCLUSION 10.1 We dismiss ground one of the appeal for want of merit. Ground two is partially allowed. The conviction and sentence is set aside. We instead find the appellant guilty of manslaughter and sentence the appellant to 7 years imprisonment with hard labour, effective from the date of arrest. C. F. R. MCHENGA DEPUTY JUDGE PRESIDENT ..................... r,:-... . ....-,,r.i:::::....-~ N. A. SHARPE-PHIRI COURT OF APPEAL JUDGE K. MUZENGA COURT OF APPEAL JUDGE