Mukela v People (Appeal 11 of 2008) [2009] ZMSC 176 (11 August 2009)

JI IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 11 OF 2008 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: KEBBY MUKELA AND THE PEOPLE APPELLANT RESPONDENT CORAM: CHIRWA, SILOMBA, JJS AND CHIBOMBA, AJS. On the 11th of August, 2008 and 11th August, 2009 For the Appellant: For the Respondent: Mrs. R. N. Kuzwayo, Deputy Chief State Advocate. Mr. A. C. Nkausu, Director of Legal Aid Board. JUDGMENT Chirwa, JS, delivered the Judgment of the Court. The Appellant Kebby Mukela was convicted on one count of defilement contrary to Section 138 of the Penal Code as amended. The particulars were that Kebby Mukela on the 16th August, 2006 at Lusaka in the Lusaka District of the Republic of Zambia had carnal knowledge of Margaret Mundunda, a girl under the age of 16 years. When called upon to take a plea he pleaded guilty and facts were read to him, he accepted the facts to have been true and thereafter he was convicted and committed to the High Court for sentence. The High Court sentenced him to J2 35 years imprisonment with hard labour and it is against this sentence that he has appealed. The facts before the trial Court were that the Appellant was employed as a domestic servant and the girl he defiled was the daughter of his employers and she was nine years old. It is alleged that the Appellant defiled the girl on that same date at about 15.00 hours and was caught by the mother of the girl and he was then apprehended and taken to the police station. The girl was taken to the hospital where she was examined where the doctor found that the hymen was absent and there was some whitish discharge. Upon his arrest he readily admitted the charge which he continued to admit in the Court below. In arguing the appeal against sentence before us, it has been argued that the Appellant is the first offender and that he has shown some contrition and that as he admitted the charge without wasting the court’s time, he should be given a lenient sentence as a first offender. We have seriously considered the circumstances of this case particularly that the Appellant abused his trust given to him by his employers and defiled their daughter. We have, however, considered the fact that he admitted (the charge or pleaded) guilty thereby not wasting the court’s time and also taken into account his age. We feel that the sentence of 35 years imprisonment with hard labour is slightly excessive. In this case, therefore, we allow this appeal. We set aside the J3 sentence of 35 years in this place we impose a sentence of 30 years from the date of his arrest. D. K. Chirwa, SUPREME COURT JUDGE. S. S. Silomba, SUPREME COURT JUDGE. H. Chibomba, ACTING SUPREME COURT JUDGE.