Daniel Peter Kafwimbi v People (SCZ Appeal 4 of 2000) [2000] ZMSC 92 (22 August 2000)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA. (CRIMINAL JURISDICTION) SCZ APPEAL NQ.4/200 DANIEL PETER KAFWIMBI AND APPELLANT THE PEOPLE RESPONDENT Coram: Sakala AG. DCJ, Chirwa and Chibesakunda JJS 22nd August, 2000. For the Appellant, Mr. Chisi of Chifumubanda and Associates. For the Respondent, Mr. J. Mwanakatwe, Principal State Advocate. ________________________ JUDGMENT____________________________ Sakala AG. DCJ delivered the judgment of the Court. The appellant, who was originally charged with the offence of murder, was tried and convicted on a reduced charge of manslaughter contrary to Section 199 of the Penal Code. He was sentenced to 10 years imprisonment with hard labour. The particulars of the offence alleged that the appellant, on 18th January 1997, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, did unlawfully cause the death of one Brian Chipepo Champo. The relevant facts of the case were that, on 18th January 1997, around 01.00 hours, PW1, a neighbour to the appellant, occupying one side of a semi detached house, was awakened by a person who was calling for help as he claimed to have been attacked. The man was dressed in a shirt but without a trousers. PW1 later heard his neighbour’s voice telling the man not to come into the yard. The youngman, however, entered the yard. There were security lights in the yard, which enabled PW1 to see the appellant holding a gun in his right hand while holding the youngman by the neck. The youngman, according to PW1, was then pleading and asking for help. Subsequently, PW1 heard two shots. Thereafter she raised the police. The fact that the deceased was shot dead by the appellant was common cause. The appellant did not give evidence but called police witnesses who gave evidence suggesting that the deceased was a bandit armed with offensive weapons and that the appellant had been a victim of threats from the bandits before. The learned trial judge considered all the evidence and noted that the appellant’s defence was one of self-defence, suggesting that the deceased was a thief armed with offensive weapons. The court rejected the defence of self defence, the defence of members of the family and the defence of property. The trial judge found, on the evidence, that the deceased could not have been in a group of bandits. The judge accepted the clear and straight forward evidence of PW1 that the deceased entered the premises alone, half naked and pleading for assistance because he had been attacked. The court found that the conduct of the police defence witnesses was highly questionable and intended to exonerate the appellant. The court was satisfied on the evidence that the prosecution had proved the case against the appellant beyond any reasonable doubt. The appeal before us is against sentence only. In arguing the appeal against sentence, Mr. Chisi has informed the court that the circumstances of the case were such that the appellant was induced in believing that he was acting in self defence considering the time when the deceased came to the house, at 01.00 hours. He : J3 : pointed out that the appellant had an honest belief that the deceased was a thief and therefore acted in self-defence. Mr. Chi si also informed the court that the appellant is a sick person, as he has T. B. and is currently admitted in the University Teaching Hospital and only allowed to come to this court to attend his appeal. He pleaded that his condition would worsen if given a custodial sentence. The appellant is aged 45 years. When sentencing the appellant, the learned trial judge had this to say:- “As I have said in my judgement this is a very bad case of manslaughter. The accused killed the unfortunate young deceased in cold blood. The use of a firearm in this case was totally unjustified. The deceased was un armed and was pleading for assistance from the accused. The accused did not render the assistance to the deceased needed. Instead, the accused who appeared to have been thirsty for human blood that fateful night spilled the unfortunate young deceased's blood in circumstances amounting to murder. Of course as I have already said the charge is manslaughter and I must punish the accused for manslaughter. ” The appellant was found guilty and convicted of manslaughter. It was therefore wrong for the learned trial judge to allude to the fact that the circustances of the deceased’s death amounted to murder. Indeed, before sentencing the appellant, the learned trial judge seemed to have been influenced by the circumstances in which the offence was committed. But the circumstances of this case also favoured the appellant in that a stranger, half naked, in the early hours, must have been seeking for assistance. It is a matter of judicial notice that most serious offences tend to take place at that hour of the night. In the instant case, the trial judge should have given credit to the fact that the appellant was found guilty of manslaughter and that : J4 ; the circumstances under which the offence was committed, were also favourable to the appellant. We have taken into consideration what has been said on behalf of the appellant. We therefore propose to disturb the sentence of ten years imprisonment. We set aside the sentence and in its place we impose a sentence of five years imprisonment with hard labour with effect from the date the appellant was taken into custody. To that extent the appeal succeeds. E. L. Sakala, ACTING DEPUTY CHIEF JUSTICE. D. K. Chirwa, SUPREME COURT JUDGE. L. P. Chibesakunda, SUPREME COURT JUDGE.