Kabwe and Anor v People (Appeal 22 of 2005) [2005] ZMSC 47 (6 September 2005)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (CRIMINAL JURISDICTION) APPEAL NO 21,22 OF 2005 BETWEEN GILBERT CHANDA KABWE 1st Appellant THOMA MWELWA 2nd Appellant AND THE PEOPLE Respondent Coram: Chirwa, Chibesakunda, Chitengi, JJS on 6th September, 2005 For the Appellants: Capt. F B Nanguzyambo, Director of Legal Aids and Mi’s Mwenya Kaira Bwalya For the Respondent: F M Muchenga, DPP JUDGMENT Chibesakunda, JS delivered the judgment of the Court:- In this appeal, the two Appellants were charged and convicted on one count of aggravated robbery contrary to Section 294 (1) of the Penal Code Capt. 87. The particulars of the case are that on the 13th day of June, 2002 at Kitwe in the Kitwe District of the Copperbelt Province of the Republic of Zambia, jointly and whilst being acting together whilst being armed with iron bars did rob CHARLES MWELWA of a Toyota Corolla Reg. No. ACG 875 valued at K16,000,000.00, the property of BETTER SINYANGWE and at or immediately before or immediately after the time of such stealing did use or threatened to use actual violence to Charles Mwelwa in order to obtain or retain or overcome resistance to its being stolen. J2 The prosecution evidence was that on 13th day of June 2002 around 13 45 hours, PW1, a taxi driver employed by PW2 was hired by two men to take them to Mindolo Dam. He was driving a white Toyota Corolla Registration Number ACG 875. As he drove these two men to Mindolo Dam, he tried to give a colleague of his a lift to accompany him to take the two people. The two (2) people stopped him from doing that as they told him that there was another passenger to be picked up on the way to the Dam. So he proceeded to take them to the Mindolo Dam. Near a road going to Mindolo, the man sitting behind him hit PW1 with a blank object on top of his head. PW 1 sustained an injury. Inspite of that injury PW1 managed to switched off the engine of the motor vehicle and began to struggle with the man, who was sitting in the passenger’s seat, for keys. The keys fell on the mat in the car. The man at the back of the car grabbed PW 1 by his neck, threw him out of the motor vehicle and the man in the passenger’s seat then drove the same motor vehicle Registration Number. ACG 875, off towards Kitwe Town. PW1 testified that he had been with these two (2) men for 17 minutes before they attacked him. He was, therefore, able to look at them and to be able to identify them. He described them. He described the man sitting in the passenger’s seat in front as being thin and tall. He identified this man at the identification parade as the 2nd Appellant. He also described the 1st Appellant and identified him as slightly fat. He testified that the 1st Appellant was the man who sat at the back seat. He told the Court that the 2nd Appellant drove the motor vehicle after he PW 1 was thrown out of the motor vehicle. In cross-examination he gave details of what the two Appellants were wearing on the day in question. He told the court that the 1st appellant was wearing a T/shirt and a pair of shots whilst the 2nd Appellant wore trousers, a T/short and denim jacket. He described the 1st Appellant as being short and brown in complexion. PW 3’s evidence is that, on 24th June 2002, he saw PW 2’s motor vehicle, Toyota Corolla Registration No. ACG 875 being driven. He recognized this motor vehicle as PW 2’s. PW 2 bought this motor vehicle through him. J3 He testified that having recognized the motor vehicle he approached the one who was driving and booked this motor vehicle to Ndola Central Police where he informed the Police that the motor vehicle had been reported stolen. At Ndola Central Police station, where he reported to the police, he found out that the person who was driving this motor vehicles was Mike Phiri. In the company of the police officers, this Mike Phiri led the Police to Chifubu where they apprehended the 1st Appellant as the owner of the motor vehicle which was hired to Kapiri. Subsequently, the two (2) Appellants were apprehended by the Police. They denied committing the offence in question. The learned trial Judge found them guilt and convicted them for aggravated robbery contrary to Section 294 (1) of the Penal Code. The learned trial Judge sentenced the two Appellants to a period of 18 years. This is the sentence they are appealing against. We have looked at the facts and considered the sentence. We have taken into account submissions made by the Director of Legal Aid. The two Appellants are not first offenders. They each had two previous convictions and the offenses they are convicted of now are serious offences. There was a lot of violence in the commission of the offence of stealing the motor vehicle in question. The sentence of 18 years, therefore, does not strike us with any sense of shock. We confirm this sentence of 18 years for the two Appellants. The appeal is dismissed. iLD K Chirwa SUPREME COURT JUDGE L P Chibesakunda SUPREME COURT JUDGE W-'Tw ■ P Chitengi SUPREME COURT JUDGE