Chihili and Ors People (SCZ Appeal 71 of 1993) [1993] ZMSC 135 (8 June 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 71 of 1993. HOLDEN AT NDOLA. (Criminal jurisdiction) KENNEDY NSAMBA CHIHILI CHARLES SIPATO MUNALULA AND COLLINS MUSHITU CHI8INGA Appellant THE PEOPLE Respondent Coram: Sakala, Chaila and Huzyamba, JJJ. S. • • 8th June, 1993, Mr. P. Vaslsht, Assistant Senior Legal Aid Counsel, for the appellant. Mr. S. A. G, Twumasi, Senior State Advocate, for the State. ■ ■ ; - - JUD ME NT • ■ - r 1 Sakala, J,S., delivered the judgment of the court. '/' V . ’ ' " ' ? ft ' ... ® The appellant and two others pleaded guilty to manslaughter contrary to Section 199 of the Penal Code Cap 146 of the Laws.of Zambia, fl , / , " ''’V • Jf'r " . / ' ', .'y /' ■ • * ' * : , * • ’ ' >'/- The particulars of the offence alleged that the appellant and two others on 3rd December 1989, at Kaoma in the Kaoma District of the Western Province of the Republic of Zambia, jointly and whilst acting together unlawfully caused the death of Chlnoya Ndilayi Lyula. They were each sentenced to fifteen years imprisonment with hard labour. He has appealed to this court against sentence, only. The facts of the case which were read in court and admitted to be correctly recorded were that, the appellant and two others conspired among themselves to break into and steal from Chinkejenge Grocery, The two others lay In wait up to 23.00 hours when thereafter they went to the said Grocery. On their way, they carried with them an iron bar, a knife, a rope and an axe handle. These, according to the facts, were intended to enable them to carry out the robbery. One of the co-accused led the appellant and the other one went to the hut where the Grocery watchman was sleeping and keeping guard. They found the deceased J2. ’ ‘ , r sleeping, they held him down,, tied him up with a rope, put a cloth tied around his mouth and left the deceased in the hut. Thereafter, the three proceeded to the Grocery from which they stole various items amounting to the total value of K26,717.00. They shared these items from the Grocery. On the 3rd of December, 1989, the deceased was found in the hut still tied up but then dead. Before sentencing the appellant and the co-accused, the learned trial court indicated that the appellant and his co-accused would be treated as first offenders but the court observed from the facts that the killing was tantamount to aggravated robbery. The court pointed out that the appellant and his co-accused were luck that they were charged with a reduced offence of manslaughter and not aggravated robbery. The learned trial judge pointed out that had the appellant been charged with aggravated robbery and convicted, he would have been liable to a minimum mandatory sentence of fifteen years imprisonment with hard labour. The court pointed out that having caused loss of life, it was important that the appellant and his co-accused be sentenced to fifteen years. The court went on to say that he was punishing the appellant and his co-accused as if they had been convicted of aggravated robbery. Consequently the'., co-accused and the appellant were sentenced to fifteen years imprisonment > with hard labour. <4 7 Mr. Vasisht on behalf of the appellant has complained that it was a misdirection on the part of the learned trial Judge to have convicted the appellant as if he had been charged with aggravated robbery. We sympathise with Mr. Vasisht’s sentiments but we want to observe that while the remarks by the learned trial Judge were out of context, the facts admitted in court did reveal that a serious offence had been committed. The learned trial judge was entitled to allude to the facts although the remarks relating to sentence for aggravated robbery were out of context. We are unable to say on the facts of this case that a sentence of fifteen years was excessive. Here was a gang of three people who conspired to break into a Grocery. They carried with them instruments to attack \ 3/.?- 03. anybody in their way* they tied up the watchman, stuffed him with a cloth in his mouth, he was later found dead. After having tied Mm, they broke into the Grocery and stole items stated in the facts. We can not say that a sentence of fifteen years is wrong in principle and does not come to us with a sense of shock. The appeaj?against sentence is dismissed. E. L. Sakala, SUPREME COURT JUDGE *•................. M. S. Chai la, SUPREME COURT JUDGE W. M. Muzyamba, SUPREME COURT JUDGE