Christopher Kalele v The People (Appeal 56 of 2006) [2003] ZMSC 78 (4 June 2003)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (CRIMINAL JURISDICTION) APPEAL NO. 56/2003 CHRISTOPHER ICALELE AND THE PEOPLE CORAM: LEWANIKA DCJ., MAMBILIMA, SILOMBA HS On 4th June, 2003. For the Appellant: (cid:9) For the Respondent: (cid:9) Captain F. B. NANGUZYAMBO, Director of Legal Aid. Mr. C. F. MCHENGA, Chief State Advocate JUDGMENT LEWANIKA DCJ., delivered the judgment of the court. The Appellant had been convicted by the High Court of Zambia for the offence of murder contrary to Section 200 of the Penal Code. Particulars of the offence being that the Appellant, on the 14th October, 2000 at Solwezi in the Solwezi District in the Northern Province of the Republic of Zambia did murder James ICALELE. The Appellant was convicted and sentenced to death. He now appeals to this court against sentence only. The facts before the learned trial Judge in brief were that on the 13th day of October, 2000, the Appellant and his young brother the deceased had come back from the (cid:9) fields where they had been working. The deceased prepared some food and when the Appellant came back, he found that the food was ready but the deceased had gone to the river to draw some water. When the deceased came back, he found the Appellant already eating and according to the facts accepted by the trial Judge, a quarrel erupted between the Appellant and the deceased. In the course of the quarrel, the deceased is said to have picked up a stick and struck the Appellant on the forehead causing him to bleed. The Appellant fell down and where he fell down, there was an axe and a log. The Appellant picked this axe and struck the deceased twice with it causing injuries which resulted in the death of the deceased. At the trial in the court below, Counsel who appeared for the Appellant advanced the defence of provocation but the trial Judge found that the extent of retaliation by the Appellant was out of proportion to the provocation. The defence was rejected by the trial Judge and he convicted the Appellant of murder. When sentencing the Appellant, the trial Judge found that there were no extenuating circumstances in this case and did not consider whether the failed defence of provocation would be an extenuating circumstance. Counsel for the Appellant has addressed us on this issue and Counsel for the State quite rightly conceded that a failed defence of provocation would amount to an extenuating circumstance and we agree that this is the position. In the light of this, we would allow this appeal and set aside the sentence of death. We substitute it with one of 20 years imprisonment with hard labour with effect from the date of the Appellant's arrest. D. M. Lewanilca DEPUTY CHIEF JUSTICE I. M. C. Mambilima SUPREME COURT JUDGE S. S. Silomba SUPREME COURT JUDGE 3