Clifford Kapinga v The People (Appeal No 162/2022) [2024] ZMCA 247 (22 August 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA AND NDOLA (Criminal Jurisdict i on) Appeal No 162/2022 BETWEEN : CLIFFORD KAPINGA AND THE PEOPLE 2 2 AUG 2024 APPELLANT RESPONDENT CORAM: Mchenga DJP, Muzenga and Chembe JJA ON: 13 th of June 2023 and 22 nd of August 2024 For the Appellant: C . Banda Kayinga , Legal Aid Counsel , with K . Mandandi-Nyinbiri , Legal Aid Counsel Legal Aid Board For the Respondent: A . Kennedy-Mwanza , Principal State Advocate , National Prosecution Authority JUD G MEN T Mchenga DJP, delivered the judgment of the court . Cases referred to : 1. Jack Chanda and Kennedy Chanda v . The People [2002] Z . R . 124 2 . Justin Mumbi v . The People [2004] Z . R . 106 3 . Precious Longwe v . The People , CAZ Appeal No . 82 of 4 . Elias Mukala and Major Shindanji v. The People , CAZ Appeals No. 219 of [2020] J2 5 . Tembo V . The People [1979] Z . R. 332 6 . John Lubhozha v . The People , SCZ Appeal No . 485 of [2013] 7 . Antonino Golliadi v . The People , SCZ Appeal No . 26 of [2017] 8. Dorcas Kasenge v . The People , CAZ Appeal No . 124 of [2018] 9 . Abedinego Kapeshi and Another v . The People , SCZ Appeal No . 35 of [2017] Legislation referred to: 1. The Penal Code , Chapter 87 of the Laws of Zambia 1. o INTRODUCTION 1.1 The appellant and another person , appeared before the High Court on a charge of murder contrary to Section 200 of the Penal Code. 1 . 2 They denied the charge and the matter proceeded to trial . At the end of the trial , the appellant was convicted as charged , while his co- accused was acquitted . He was condemned to suffer capital punishment 1.3 His appeal is against the sentence only . 2. o CASE BEFORE THE TRIAL COURT 2.1 The evidence before the trial Judge was that on 3 rd December 2019 , the appellant , Kalala Kayombo (his co J3 accused in the court below) and Royd Musungilo , went drin king at Judith Ulurnbo ' s house in the Yamakwa area of Mufumbwe District. They got to Judith Ulumbo ' s house around 1 7 : 00 hours and bought 5 bottles of lutuku , a potent traditional beer. 2.2 The trio continued drinking until 20 : 00 hours , when Kalala Kayornbo fell asleep . During that period , Royd Musungilo got his torch and hid it . 2.3 When Ka l ala Kayombo woke up , he asked for his torch and Royd Musungilo pointed at the appellant . The appellant denied getting it. The torch was found with Royd Musungilo after a search and it was damaged . 2 . 4 Kalala Kayombo slapped Royd Musungilo but was stopped from further assaulting him because he was an old man . Royd Musungi l o decided to leave and he was followed by the appellant. 2.s The appellant twisted Royd Musungilo ' s hand and lifted him up . He then went back with him to the shelter where they had been drinking from and dropped him to the ground . As he dropped him, he said he was going to " turn him into a sackn . J4 2.6 Royd Musungilo fell on h i s back and did not manage to get up . He remained in the shelter until the following day . He died 3 da ys later a nd the caus e of this death was found to be sp i nal injury . 2. 1 In his defence , the appellant denied lifting Royd Musungilo and dropping him . He said he fell on his back as they proceeded home . 2.a The trial Judge considered the availability of the defence of intoxication to the appellant , in the face of evidence that he had been drinking . He found that the de f ence was not available . 2 . 9 He also considered the availability of the defence of provocation and found that it was not available , as the acrimony that arose from the hiding of the torch had long subsided at the time the appellant assaulted Royd Musungilo . 2 . 10 All in all , the trial Judge found that the appellant murdered Royd Musungilo and that there were no extenuati n g circumstance s . 3 . 0 GROUND OF APPEAL AND ARGUMENTS IN SUPPORT 3 . 1 The sole ground of appeal is that trial Judge erred when he failed to find extenuating circumstances on JS the basis of failed def enc es intoxication and provocation . 3.2 In support of this sole ground of appeal it was pointed out that there was evidence that the appellant and his friends went to drink lutuku , and that he was provoked by Royd Musungilo ' s false accusation that he had taken Kalala Kayombo's torch . 3.3 The cases of Jack Chanda and Kennedy Chanda v. The People1 and Justin Mumbi v . The People2 , were referred to and it was submitted that even if the defence of intoxication had failed , there were extenuating circumstances because the appellant was drunk after drinking two bottles of lutuku . Being drunk reduced his moral culpability . 3.4 In the alternative , there were extenuating circumstances on the basis of a failed defence of provocation . The cases Precious Longwe v. The People3 and Elias Mukala and Major Shindanji v. The People4 were referred to and it was submitted that there was evidence from Judith Ulombo and her husband , that the appellant was angered by false accusations levelled against him by Royd Musungilo . 4.0 RESPONSE TO THE APPEAL J6 4 .1 In response to the sole ground of appeal , the cases of Tembo v. The People5 , John Lubhozha v . The People6 and Antonino Golliadi v. The People7 , were referred to and it was submitted that the mere fact that there was evidence of drinking , cannot be a basis of raising the defence of intoxication . 4.2 As regards there being extenuating circumstances on the basis of a failed defence of provocation , the cases of Dorcas Kasenge v. The People 8 and Abedinego Kapeshi and Another v. The People 9 , were referred to and it was submitted that in the absence of facts that support the defence of provocation , it cannot be argued that there was a failed defence of provocation . 4.3 Counsel argued that in this case , there was no evidence to support the defence of provocation and thus no failed defence of provocation . 5.o CONSIDERATION OF THE APPEAL AND DECISION OF THE COURT 5. 1 In the case of Antonino Golliadi v. The People7 ' the following was pointed out on intoxication and extenuating circumstances : J7 "We must emphasize that trial courts must be wary of finding drunkenness as an extenuating circumstance in every case where the o££ence is committed at a drinking place or where the accused claims he was drinking or was drunk . It is important to consider the peculiar facts i nstead of applying drunkenness as an extenuating circumstance in every single case which would lead to injustice " 5 .2 In this case , the evidence points at the appellant and two others buying 5 bottle s of lutuku between 17:00 and 20 : 00 hours . One of them fell asleep during the drinking spree , but the r e is no evidence of the appellant ' s state of intoxication . 5 . 3 All there is , is the testimony of the brewer ' s husband , who said the appellant appeared drunk . 5 . 4 I n the cases of Antonino Golliadi v. The People7 and Mumbi V . The People 2 , the court considered the "rational " conduct of the appellants in those cases when determining whether they were drunk . Because both appe llants had behaved rationally , the court found that it could not be said that they were drunk to the extent that they did not know what they were doing . 5.5 In this case , t h ere is evidence that Royd Musungilo hid the torch . He was slapped when the recovered torch was found damaged. The appellant and his co - accused JS heeded the advice that they should not further assault Royd Musangilo because he was an old person . They also agreed with t h e suggestion that he should buy a replacement torch . 5 .6 This conduct , is , in our view , indicative that although he had been drinking , the appellant was not very drunk and was able to fully and rationally comprehend what was going on . 5. 7 It is therefore our view that the trial Judge correctly concluded that the evidence before the court did not establish extenuating circumstances on the basis of a failed defence of intoxication . 5. a As for extenuating circumstances on the basis of a failed defence of provocation , in the case of case of Precious Longwe v . The People 3 , we held that a failed defence of provocation can be an extenuating circumstance , where there is a provocative act but the defence of provocation fails on account of the retaliation not being proportionate or proximate , to the provocative act . s.9 In this case , the trial Judge found that the defence of provocation was not available to the appellant J9 because he assaulted Royd Musungilo long after the provocat i ve act. In other words , the attack was not in the "heat of the momentn . s . 10 In line with the decision in Precious Longwe v . The People3 , it is our view that the trial Judge should have found that there were extenuating circumstances on the basis of a failed defence of provocation . s. 11 Consequently , we find merit in the sole ground of appeal and we allow it on ground that there were extenuating circumstances on the basis of a failed defence of provocation. 6.0 VERDICT 6.1 The appeal against sentence is a l lowed and in its place we impose a sentence of 20 years imprisonment with hard labour . The sentence will run from 17 th May 2019 . ···········~··········· K. Muzenga COURT OF APPEAL JUDGE ·············~ ·~ Y. Chembe COURT OF APPEAL JUDGE ···········