Damson Kashimbi v the People (APPEAL 210/2020) [2021] ZMCA 287 (20 October 2021)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL 210/2020 HOLDEN AT LUSAKA AND KABWE (Criminal Jurisdiction) BETWEEN: \li\.\C OF Z ~OFAP ____ DAMSON KASHIMBI '!'i", APPELLANT AND THE PEOPLE "IMINAL 1<. EGI ox 50067, RESPONDENT CORAM : Mchenga DJP, Majula and Muzenga JJA, On 26 th August 2021 and 20 th October 2021. For the Appellant: K. Katazo, Legal Aid Counsel, Legal Aid Board. For the Respondent: S. Mwila, State Advocate, National Prosecution Authority. JUDGMENT Mchenga , DJP, delivered the Judgment of the Court. CASES REFERRED TO; (1920] AD 575 1. R v Herchi e 2 . Mwandila v The People[l979] Z. R. 174 3. Harrison Zimba v The People (1970] Z. R. 101 4. Mark Herbert Kaunda v The People (1982] Z . R . 26 LEGISLATION REFERRED TO : 1. The Penal Code, Chapter 87 of the Laws of Zambia Jl 1 . 0 BACKGROUND 1 . 1 The appellant, appeared before the Subordina te Court , sitting at Kabwe (Hon . F. B . M. Ngosa) , facing a charge of Defilement of a Ch ild , cont r ary to section 138(1) of Penal Code. 1.2 He denied the cha rge a nd the matter proceeded to trial . 1 .3 At the end of the trial , he was convi cted for the offence and committed to the High Court for sentencing . 1 .4 In the High Court (Limbani , J.) , he was sentenced him to 40 years impr is onment , with hard labour. 1 . 5 He has appealed against the con viction . 2 . 0 GROUNDS OF APPEAL AND ARGUMENTS IN SUPPORT 2 . 1 One of the grounds of appea l is that t h e charge did not disclos e any offence . 2 . 2 In support of that grou nd o f appeal , Mr . Katazo argued that the c harge was defective becaus e the particulars of offence did not indi cate the age of the victim , an essential ingredi ent of the offence of defilemen t . J2 2 . 3 He referred to the case of R v Herchie1 and submitted that the appellant ' s conviction c an no t stand because of the defect. 2 . 4 In respons e , Mrs . Mwila referred to the case of Mwandila v The People2 and submitted that although the charge was defective , the conviction must be upheld because the appe l lant suffered no prejudice . 2 . 5 He knew the charge he was fac i ng and was able to put up a d efence . Since he was not prejudiced in any way , there was no miscarriage of justice . 3.0 CONSIDERATION OF THE APPEAL AND COURT'S DECISION 3 . 1 From the outset , we wi sh to point out that the circumstances on which the case of Mwandila v The People2 , was decided , are completely different from what is at hand in this case . 3 . 2 That case wa s concerned with the n umber of offences that were set out in a count . The court took the view that even if the charge was defect i ve on account of the offences in a coun L, J3 the of fender suffered no prejudice because he knew the charges he was facing . 3 . 3 This ca se is dif f ere nt , it i s concerned wi th whether t he charge did disclose any offence . 3 . 4 The part i culars of offence on which the appellant was t r ie d , a lleged a s follo ws : 'DAMSON KASHIMBI on 1 st February 2020, at Kabwe, in the Kabwe District of the Central Province of the Republic of Zambia, had unlawful carnal knowledge of a girl namely Mwakawele Carol .' 3 . 5 The offence of defilement is set out in section 138(1) of the Penal Code. It provides that : 'Any person who unlawfully and carnally knows any child commits a felony and is liable, upon conviction, to a term of imprisonment of not less than fifteen years and may be liable to imprisonment for life ;' 3 . 6 The term ' child', in that provision , is de f in ed i n section 131A of The Penal Code, as being ' a person below t he age of sixteen years '. J4 3 . 7 It follows , that the particulars of offence, in a properly drawn out charge of defilement , mus t at least allege that: (i) the offender had unlawful carnal knowledge ; and (ii) that the person who was carnally known, wa s a child or a pers o n below the age o f 1 6 years . 3 . 8 In this case, although the charge did allege that the appellant had unlawful carnal knowledge , it did not allege that the girl the appellan t carnally knew, was a chi l d o r below t he age of 16 years. That deficiency was material , in tha t t he charge did not disclose any offence . 3 . 9 In the case of Harrison Zimba v The People3 , t he appellant was charged with the of f ence of attempted housebreaking contrary to sections 271 and 352 of the Penal Code . The particu l ars al leged JS that he attempted to break into the dwe lling house of one Stephen Muntangola. 3 . 10 However , n o mention was made of the fact that the attempted entry , was accompanied by an int ention to commit a felony therein . 3 .11 He appealed against the conviction. 3 . 12 On appeal, it was held that the failure to mention , in the particulars of o ffen ce , t h e fact that his entry or attempted entry , was accompanied by an intention to commit a felony , was a material defec t and that the charge , disclosed no offence. 3 . 13 The court also held t h a t the defect could not be corrected on appeal . 3 . 14 This can be contrast ed from the situation in t he case of Mark Herbert Kaunda v The People 4 • The appe l lant and another , were convicted for obta i ning money by fa lse pretences . He appealed against conviction and sentence . J6 3.15 One of the issues that arose was the defect in the particulars of offence , which indicated that he obtained a stated amount of money , when what he obtained, was a cheque in that amount . 3 . 16 The Supreme Court held that where a charge is defective in mere description of the thing obtained and the substance of the charge remained the same , an amendment could cure the defect . 3 . 17 It was also held that the error did not make the charge bad , but simply defective and no embarrassment or prejudice was suffered by the accused on account of the error . 3.18 Going by the decisions in the cases of Harrison Zimba v The People3 and Mark Herbert Kaunda v The People 4 , it cannot be said that the charge in th is case was defective and is amenabl e to amendment. The charge was bad for not disclosing the age of the victim , a material ingredient of a charge of defilement . In fact , it disclosed no offence . 4.0 VERDICT J7 4 . 1 I n the circumstances, we find that the convict i on is not satisfactory . 4.2 We allow the appeal, set aside the convict i on and DEPUTY JUDGE PRESIDENT . . . . ~;_~- .. ...... . COURT OF APPEAL JUDGE . .... ~ -..... . . . K. Muzenga COURT OF APPEAL JUDGE