Kapona v The People (Appeal No. 185/2022) [2023] ZMCA 219 (29 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) Appeal No. 185/2022 BETWEEN: KELVIN KAPONA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Muzenga, Chembe JJA On 23rd August 2023 and 29st August 2023 For the Appellant: Ms. S. F. Bwalya, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. G. Zimba, Deputy Chief State Advocate, Prosecution Authority National JUDGMENT MUZENGA JA delivered the Judgment of the Court. Cases referred to: 1. Jack Chanda & Kennedy Chanda v. The People, SCZ Judge No. 29 Of 2002 v. The People (1975) Z. R. 294 2. Kahale Kanyanga v. The People, 3. Simutenda 4. Modester 5. Misheck Tololi v. The People, 6. Yanyongo v. The People (1974) Z. R. 149 Kalaba v. The People, CAZ Appeal No. 86 of 2017 CAZ Appeal No. 69 of 2022 SCZ Appeal no. 145 of 2011 J2 Legislation referred to: 1. The Penal Code Chapter 87 of the Laws of Zambia 2. The Criminal Procedural Code Chapter 87 of the Laws of Zambia 1.0. INTRODUCTION 1. 1. The appellant was charged with one count of the offence of murder contrary to Section 200 of the Penal Code and one count of attempted murder contrary to Section 215 of the Penal Code. The particulars of offence in count one alleged that the appellant on 25th April, 2019 at Mazabuka District in the Southern Province of the Republic of Zambia murdered Nsondo Kanene. 1.2. The particulars of offence in count two alleged that on 25th April, at Mazabuka District in the Southern Province of the Republic of Zambia, the appellant attempted to murder to Edmond Nsondo Kanene Jnr. 1.3. The appellant was subsequently convicted and sentenced to death for murder and 40 years imprisonment with hard labour for attempted murder by Mulife J. 1.4. He has appealed against the sentences in both counts. J3 2.0. EVIDENCE IN THE COURT BELOW 2.1. The appellant's conviction was secured by the evidence of five prosecution witnesses. A summary of the prosecution witnesses relevant to this appeal is that the deceased, PW3 and the appellant, Edmond Nsondo Kanene ( deceased's son and subject of the second in the plains. count) temporarily lived At this time, the deceased would lead cattle to pasture whereas the appellant would burn charcoal. On the fateful day, when they went to sleep, PW3 (a child whose evidence was received after viore dire), was awakened by the sound of someone cutting firewood, only to see that it was the appellant hacking his father (the deceased) and Edmond Nsondo Kanene. The appellant also attempted to hack her but she hid nearby. After persuading her to come out, assuring her that he would not hack her, she came out and they left together for their village. 2.2. When they arrived, the appellant told her to go and inform people that he had killed the deceased as he proceeded to report himself to the police. He reported himself to the police and later he led the police to the scene where the body of the deceased with was found, together J4 the injured child. The appellant was shocked to learn that even Edmond Nsondo Kanene was injured. 2.3. This marked the end of the prosecution case. The appellant was found with a case to answer, and he was put on his defence. 3.0. THE DEFENCE 3.1. In his defence, the appellant opted to give sworn evidence and called no other witnesses. He admitted having killed the deceased because they had a disagreement. He told the trial court that the deceased had been getting his money from charcoal sales. that he He narrated waited for him to go to sleep and hacked him. He denied knowledge of hacking Edmond. 3.2. This marked the end of the defence case. 4.0. FINDINGS AND DECISION OF THE TRIAL COURT 4.1. The trial court found that the deceased's conduct could have been provocative, however, he went on to find that the defence of provocation was not available due to the fact that the appellant had time to cool down and he used excessive force in respect of the charge of murder and sentenced him to death. JS 4.2. In respect of the offence of attempted murder, the trial court inferred from the injuries on the head that the appellant had actual intent to kill and sentenced him to 40 years imprisonment. 5.0. GROUNDS OF APPEAL 5.1. Disconsolate with the High Court judgment, the appellant launched the present appeal against the sentence, fronting two grounds structured as follows: (1) The learned trial Judge erred in law and in fact, in sentencing the appellant to death when on record, there are extenuating circumstances (2) The sentence of 40 years is severe for the first offender. 6.0. THE APPELLANT'S ARGUMENTS 6.1. The gist of the appellant's argument in support of ground one of the appeal was that the trial court failed to take into account the fact that a failed defence of provocation amounts to extenuating circumstances. According to learned counsel, the appellant raised a defence of cumulative provocation though it failed. We were referred to the case of Jack Chanda and Kennedy Chanda v. The People1 where the Supreme Court held inter alia that: J6 accusation can amount to extenuating. "What we have said is that failed defence of provocation, evidence of witchcraft drinking of drinking was evidence learned trial Judge should have considered of drinking a sentence other than death in terms of section and evidence of In this case, there and whether to impose the death sentence for about five hours. The the evidence or 201(1)(b) Judge to consider was a common case, amounted to a misdirection." of the Penal Code. Failure the evidence by the learned trial of drinking, which in fact 6.2. It was submitted that the learned trial Judge misdirected when himself he did not find that a failed defence of provocation amounted to extenuation which should have entitled the appellant to receive a sentence other than death. Counsel invited us to look at the provisions of Section 201 (2) of the Penal Code. 6.3. It was contended that the appellant qualifies to be afforded extenuation because there was evidence of a failed defence of provocation which diminished the degree of morally his guilt. We were urged to find that there were extenuating circumstances and set aside imposed the death sentence by the trial court and a sentence other than a death sentence. 6.4. In support of ground two of the appeal, it was contended that the sentence of 40 years with hard labour is severe for a first offender and J7 should come to us with a sense of shock. We were urged to interfere with the sentence and impose one lesser than 40 years. 7.0. RESPONDENT'S ARGUMENT 7.1. On behalf of the respondent, learned counsel supported the conviction and sentence of the appellant for the offence of Murder. It was submitted that there were no extenuating circumstances in this case that would have entitled the trial court to impose a sentence other than that of death. Counsel noted that the actions of the appellant were cold, callous and calculated thereby taking this case out of the realm of being amenable to any extenuation. 7.2. We were further referred to the case of the case of Kahale Kanyanga v. The People2 where the Supreme Court described what extenuating facts are and how they should be dealt with: by Bryan A. Garner at 201 should be read with Black's Eighth Edition as: circumstance "In our view, Section Law Dictionary P.260, which defines extenuation "Mitigating does not justify or excuse a wrongful that reduces the culpability punishment. question the court in imposing lessening quilt, of a defendant's punishment a sentence." A fact or situation the severity of and this may reduce that does not bear on the but that is considered and especially by in means a fact or situation that act or offence, but J8 7.3. The Supreme Court went on to say that: but the defence is saying is being pleaded, the necessary "When extenuation intent has been established, due to circumstances which is a stigma, the accused committed that should diminish his culpability. mitigatory jurisdictions, they call it 'diminished like an accusation against the ultimate sentence. The plea is therefore In other responsibility'." of witchcraft, the murder, so 7.4. It was contended that there is no evidence of a failed defence of provocation on the record which would warrant the appellant to fall under the protection of Section 201 of the Penal Code. According to counsel, the appellant's acts fell short of the parameters for provocation as provided in the case of Simutenda v. The People3 which held that; "There must be an act of provocation; followed by loss of self-control, actual or reasonable; and finally, retaliation that is proportionate We were to the provocation." urged to dismiss this ground of appeal as it lacks merit. 7.5. In responding to ground two of the appeal, it was contended that the sentence of 40 years does not come with a sense of shock as this is a case where violence was inflicted on a defenceless child. It was submitted that this case is aggravated in that a very young child was J9 targeted. We were referred to our decision in the case of Modester Kalaba v. The People4 where we held that the age of a victim is as factor an aggravating warranting a hefty sentence. 7.6. We were urged not to tamper with the sentence that was imposed by the trial court. 8.0. HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1. At the hearing of the appeal, learned counsel for the appellant, Ms. Bwalya, placed full reliance on the filed documents. On behalf of the state, Mr. Zimba informed rely the court that the state would equally on the heads of argument filed before the court. 9.0. CONSIDERATION AND DECISION OF THE COURT 9.1. We have carefully considered the evidence on record, the heads of argument filed by counsel and the judgment appealed against. The issue in ground one is whether extenuation circumstances to warrant the imposition of any other sentence in the second exist. The issue ground is whether the sentence of 40 years imprisonment for attempted murder comes to us with a sense of shock. 9.2. The legal principles on the defence of provocation in our are settled jurisdiction and have been correctly outlined by both learned counsel JlO in their arguments and we are indebted to them. Counsel for the appellant spiritedly argued that a failed defence of provocation can afford extenuation to an accused person. On the other hand, the respondent passionately argued that the facts on the record do not indicate that the appellant was provoked by the deceased in any way. 9.3. We recently guided in the case of Misheck Tololi v. The People5 that: can afford extenuation defence of provocation "A failed to an accused person and for this to occur, some elements of provocation should have been met. However, retaliation it should have failed due to disproportionate by the accused person". 9.4. We note that in the judgment of the trial court, the judge found that the deceased's action could have been provocative, but the defence of failed provocation due to the fact that the appellant had time to cool down and used excessive force. The appellant was very consistent in his account of events that led to him to brutally kill the deceased. He stated that the deceased used to get monies realized from the appellant's charcoal sales. On the fateful day, deceased sold eight bags of charcoal and got the money. When confronted by the appellant, he admitted having sold the charcoal but refused to surrender the money. Jll The arguments went through to the evening, at which point the deceased threatened to kill the appellant. It is these circumstances which the learned trial court found could have been provocative but declined to find that the defence of provocation was established on account of time to cool down and use excessive force. 9.5. It is our considered view that having found as he did, the trial judge ought to have directed his mind to the fact that extenuating existed circumstances due to a failed defence of provocation. In this case a provocative act was present but the defence failed primarily due to time to cool down and use of excessive force. In this regard, we find that the appeal has merit and we allow it. 9.6. We note that ground two takes issue with the sentence imposed in respect of count two. We have taken the liberty to consider the propriety of the conviction for attempted murder instead. It would appear from the evidence that the appellant was not aware of having hacked the victim, neither does the evidence show that he had intent to murder him. The deceased and the victim in count two were sharing sleeping space in the plains. It would appear the victim was injured in the process of the assault on the deceased. J12 9.7. The Supreme Court in the case of Yanyongo v. The People6 , held that: For a conviction necessary intention of attempting to cause death it is to kill; an to prove an actual intention to cause grievous harm is not sufficient. 9.8. The learned trial court in convicting the appellant of attempted murder inferred actual intent to kill from the injuries sustained by the victim. This, in our view, does not satisfy the requirement for actual intent to kill, especially in the facts of this case. Clearly the appellant was unaware of having, in the process of committing the murder, injured the victim. In the circumstances we find the conviction for attempted murder not to be sound. Had the learned trial court properly directed its mind, it would no doubt have reached the verdict as ours. 9.9. We thus set aside the conviction for attempted murder. In its place, we return a verdict of guilty for a minor offence, in terms of Section 181 of the Criminal Procedure Code, of causing harm grievous contrary to Section 229 of the Penal Code. We find it unnecessary to consider ground two of the appeal. J13 10.0. CONCLUSION 10.1. Having found merit in ground one of the appeal, we set aside the sentence of death and impose a sentence of 40 years imprisonment with hard labour, effective the 10th May, 2020, the date he was taken into custody. 10.2. We have set aside the conviction for attempted murder in count two and in its place, we find the appellant guilty of the offence of causing grievous harm and we impose the maximum sentence of 7 years imprisonment with hard labour on account of injuries inflicted on the victim. The sentences will run concurrently. C. F. R. MCH N DEPUTY JUDGE PR COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE Y. CHEMBE ■ ■ ■ ■ ■ ■ ■ ■ ■■■■■■■II■ I■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■