Njenjema v The People 25 (Appeal No. 165/2022) [2023] ZMCA 213 (25 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA/NDOLA (Crimi na I Jurisdiction) BETIVEEN: Appeal No. 165/2022 FRANK NJENJEMA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Muzenga and Chembe, JJA O n 14th June, 2022 and 25th August, 2023. For the Appellant: Ms. D. Kabuka, Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. S. Siafwa, State Advocate, Prosecution Authority National JUDGMENT MUZENGA JA, delivered the Judgment of the Court. to: Cases referred 1. Musonsa v, The People ( 1976) ZR 215 2. Siyauya v. The People (1976) ZR 3. Evaristo Bwalya 4. Jutronich, Schutte s. Gift Nkaza v. The People - Selected 6. Matongo v. The People (1974) ZR 164 v. The People-CAZ Appeal No. 106 of 2021 and Lukin v. The People (1965) ZR 9 Judgment No. 31 of J2 7. Mulizwa v. The People (1974) ZR 165 Statutes referred to: 1. The Road Traffic Act, No. 11 of 2002 1.0 INTRODUCTION 1.1 The appellant appeared before Limbani, J, charged with the offence of Causing Death by Dangerous Driving contrary to Section 161 of the Road Traffic Act. 1.2 The particulars alleged that the appellant on the 30th day of November, District 2021 at Kapiri Mposhi of the Central of Province the Republic of Zambia, did cause the death of Elijah by Kalunga, driving a motor vehicle namely Toyota Premio Registrat ion No. ACR 3900 on a public road namely; Great North Road in a manner which was dangerous to the public having regard to all the circumstances of the case, including the nature, condition, use of the road and the amount of traffic which was actually at the time or which might reasonably be expected to be on the said road. 1.3 He pleaded guilty and the State proceeded to prepare a statement of facts. J3 2.0 STATEMENT OF FACTS 2.1 According to the statement of facts, on the 30th day of November, 2021 at about 18:30 hours, the appellant was driving an insured motor vehicle namely Toyota Premio, registration number ACR 3900, along Great North Road, from the direct ion of west to east. 2.2 When the appellant reached Kaplri Mposhi turn off junction, a built up area, one Elijah Kalunga the said road from the direction of west to east. Due to the speed aged 61 years a pedestrian was crossing at which the appellant drove at and without having a proper look out for other road users, he went on to hit the deceased who died on the spot. The appellant drove to Kapiri Mposhi Police Station and reported the accldent. 2.3 Police officers from Kapiri Mposhi Police Station proceeded to the scene of the accident. The body of the deceased was picked and conveyed to Kapiri Mposhi District Hospltal. 2.4 On the 2nd day of December, 2021, was a postmortem examination conducted on the body of the deceased person at Kapiri Mposhi District Hospital, by Dr. Pavlo Lermontov a Government Pathologist and the cause of death was opined as "severe head trauma, large lacerated wound on the Rt. Thigh and skull fracture." J4 2.5 On 9th December, 2021, the motor vehicle was examined by a motor vehicle examiner namely Bernard Kawimbe of Road Transport and Safety Agency, Lusaka, The examiner found that the motor vehicle was not roadworthy at the time of the accident. 2.6 The appellant was charged and arrested for the subject offence. 2.7 The appellant did cause the due to death of the deceased person the dangerous manner he drove his vehicle having regard to all the circumstances of the case including the nature, condit ion and use of the road and the amount of traffic, which was actually at the time on the said road or, which might reasonably to be on be expected the said road, 3.0 TRIAL COURT VERDICT 3.1 The appellant admitted as read to him and the learned trial the facts court convicted him. 4.0 MITIGATION 4.1 In mitigat ion, counsel submitted that the appellant was a first offender who had readily pleaded guilty, which itself was a sign of remorsefulness. It was submitted that the appellant assisted the family with funeral expenses and had since reconciled with the deceased's family. Learned counsel prayed for maximum leniency of the court. JS 5.0 SENTENCE BY THE COURT BELOW 5.1 The court below after considering the sentenced factors the appellant to three (3) months The court further mitigatory imprisonment. ordered the suspension of the appellant's driver's licence for six (6) months. 6,0 GROUNDS OF APPEAL 6.1 Discontent with the sentence imposed the by the High Court, appellant appealed to this Court advancing two grounds of appeal couched as follows: trial court erred in law and fact by to a custodial the appellant 1. The learned condemning when a fine was more appropriate sentence circumstances. sentence, in the 2. The learned trial court erred in law and in fact to and or neglected when it refused itself to the facts contained facts which it took into account custodial sentence. in the statement when imposing to restrict of the 7.0 ARGUMENTS 7 .1 In support of ground one, counsel for the appellant submitted that the appellant was a first offender, who at law was entitled to leniency in whose favour instead a fine ought to have been imposed J6 of imprisonment. Counsel placed reliance on the cases of Musonda v. The People1 , Siyauya v. The People2 and Evaristo Bwalya v. The People.3 7.2 It was learned counsel's contention that the sentence herein should come to us with a sense of shock as it offends the sentencing principles in the case of Jutronich, Schutte and Lukin v. The People.4 7.3 In support of ground two, counsel submftted that the trial court placed reliance on informat statement of facts when sentencing in the ion that was not included the appellant. This, according to counsel, was a serious Reliance misdirection. was placed on the case of Gift Nkaza v. The People5 where the Supreme Court guided that only facts contained in the statement of facts should be referred to by the court. 7.4 It prayer was counsel's that we allow the appeal and set aside the sentence of three (3) months imprisonment and in its place impose an appropriate fine. 8.0 RESPONDENT'S ARGUMENTS 8.1 Learned counsel for the respondent submitted that the learned trial court was on firm ground in imposing a custodial sentence. Counsel contended that the area where the accident took place was a built J7 up area and that the appellant was driving a vehicle which was not road worthy. It was counsel's content ion that this amounted to recklessness. 8.2 It was learned counsel's submission that, though it is trite that a fine should be imposed on a first offender, in certain instances where there are aggravating circumstances, a custodial sentence can be imposed even on a first offender. Reliance was placed on the cases of Matongo v. The People6 and Mulizwa v. The People.' 8.3 Counsel contended that the sentence of three months was within the much lower confines of the maximum sentence and as such should not come to us with a sense of shock, 8.4 In responding to ground two, learned counsel for the respondent argued that once the postmortem report, Road Transport and Safety Agency report and sketch plan drawn not drawn to scale are produced, they become part of the court's record. 8.5 We were urged to dismiss the appeal against sentence for lack of merit. 9.0 THE HEARING 9.1 At the hearing of this appeal learned counsel for the appellant Ms. Kabuka, Legal Aid Counsel and learned counsel for the respondent J8 Mr. Sifali, State Advocate, informed the Court that they would rely on their respective filed grounds and heads of argument. 10.0 DECISION OF THE COURT 10.1 We have pedantically considered and the sentence the record imposed by the court below. We note that the appeal is against sentence and as such the main issue is whether the custodial sentence is warranted of this case. in the circumstances 10.2 The appellant has raised two grounds of appeal. We shall deal with the second ground first, in which he assails the use of informat ion in the sketch plan by the lower court. 10.3 Learned counsel for the appellant seemed to suggest that by the trial court using information from the sketch plan, it violated the guidance in the Gift Nkanza case supra as the same was not contained in the statement of facts admitted by the appellant. 10.4 We wish to guide that once documents are produced in evidence alongside the statement of facts, they become part of the statement of facts and can be used by the court 1n considering what sentence to impose. The best time to object to the production of any documents is at the time of production of the after the reading statement of facts, clearly stating the reasons for the objection. We J9 thus agree with learned counsel for the respondent's submission that this ground has no merit and we dismiss it. 10. S We now turn to consider ground one of the appeal. There is no dispute that the offence the appellant for has an was convicted option of a fine. We stated in the case of Evaristo Bwalya supra at page J 11 that: "It is trite that where an offence option of a fine, first offenders ordered default, to pay a fine, imprisonment unless there are aggravating for an prescribes be should ordinarily should be in factors." 10.6 We went further to hold at page J12 that: show supra clearly "The cases of Matongo and Mulizwa that a custodial sentence for cases where for the there is recklessness of other road users. We agree that a fine is appropriate inattention or misjudgement." where driving is reserved disregard or wilful was due to momentary safety 10.7 The statement of facts presented before the trial court, which the appellant admitted, clearly showed that the cause of the accident was due to speed and failure to have a proper lookout for other road users. There is nothing in the facts which disclosed or recklessness willful disregard of the safety of other road users. The trial court J10 appears to have been persuaded by what it said when imposi ng the sentence in the following words: was at the accident to Section 30 and 122 of the Road Traffic "I also note as per facts and RTSA Report that your motor vehicle not road time of the worthy. It had no road tax and or test certificate contrary for having or driving be on the road is recklessness only to the driver law is clear 122 of the RTSA Act that only motor vehicles road tax and Act that is not fit to as it is a danger to not but also all other road users. The 30 and two Sections with valid a motor vehicle should be on the road." as per the referred fitness which are 10.8 We hold the view that lack of road tax and road fitness, separate offences for which the appellant could be charged cannot, especially in the circumstances, be an aggravat ing factor to warrant the imposit ion of a custodial sentence. ion of a violat Therefore, Sections 30 and 122 of the Road Traffic Act cannot amount to recklessness as the lower court found. We thus set aside the finding in this regard. We therefore agree with the submission by counsel for the appellant that a custodial sentence was unwarranted. Had the learned trial court properly directed his mind, he would certainly have found that there were no aggravating to circumstances warrant the imposition of a custodial sentence. Jll 10.9 We thus find the sentence of three (3) months imprisonment to be wrong in principle and we set it aside. 11.0 CONCLUSION 11.1 We therefore a I low the ap pea I, set aside the sentence. In its place, we impose a fine of One Thousand Five Hundred Kwacha (Kl,500.00), in default the appellant will serve three (3) months simple imprisonment. DEPUTY JUDGE PRESIDENT .... � ...... , .... K. MUZENGA Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE