Samangwe v People (SCZ Appeal 9 of 1993) [1993] ZMSC 44 (2 February 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 9 of 1993. HOLDEN AT LUSAKA (Criminal Jurisdiction) LENARD SAMANGWE Vs THE PEOPLE Appellant Respondent Coram: Gardner. Sakala and Chaila J. J. J. S. 2nd February, 1993, Mr. M. H. A. Samad, Senior Legal Aid Counsel, for the appellant. Mr. F. J. Mensah, State Advocate, for the people. JUDGMENT Sakala J. S. delivered the judgment of the court. Cases referred to: (!) Kasungani Vs The People, (1976) ZR. 260. The appellant pleaded guilty to a charge of manslaughter contrary to Section 199 of the Penal Code Cap 146 of the Laws of Zambia. The particulars of the offence alleged that, on 24th of January, 1990, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, he unlawfully caused the death of Jane Chanda Mwambela. He was sentenced to Seven years imprisonment with hard labour. The brief facts which were admitted to be correctly recorded were that the deceased was the appellant's wife. The appellant was nimself a soldier. On 14tn January,1990, the appellant and the deceased were together in their house when a quarrel between them broke out. The appellant got annoyed and beat his wife who on two occasions was heard by her sister crying from the house. When the deceased's sister went to the appellant's house on the second occasion to render assistance to her, she found her dead. The postmortem examination report revealed that the deceased died of neck and head injuries. On the admitted facts and on his own plea of guilty* the appellant was convicted as charged and sentenced to seven years imprisonment with hard labour. On behalf of the appellant Mr. Samad*the Senior Legal Aid Counsel, has submitted that the appellant assaulted his wife with hands only. He has also informed the court that he is a soldier who has since lost his employment as a result of this conviction. He further informed the court that the appellant has three children who are now fending for themselves. On the admitted facts, there is no suggestion that the appellant used a weapon. The case of Kasungani Vs The People (1) was one of manslaughter In which the appellant pleaded guilty. The facts read out in court suggested that the appellant used a weapon to beat his wife. The J2. appellant disputed the use of a weapon contending that he used his hands. The trial court accepted the facts read out and sentenced the appellant to five years imprisonment with hard labour* In that case, the Supreme Court accepted that the appellant used bare hands and reduced the sentence of five years imprisonment with hard labour to one of two and half years imprisonment with hard labour. In the present case, there is no suggestion that a weapon was used. The learned trial judge in imposing a sentence of seven years took into account what had been said in mitigation but we note that he did not address himself to the question of whether a weapon was used when considering the appropriate sentence to impose. Accepting that no weapon was used, we consider that a proper sentence be one of three years imprisonment with hard labour. The appeal is allowed, the sentence imposed by the learned trial judge is set aside. In its place, we impose a sentence of three years Imprisonment with hard labour with effect from 14th January, 1990. B. T. GARDNER, SUPRME COURT JUDGE. Cu*$akala»...... . SUPRME COURT JUDGE. mIs^chaila,........... SUPREME COURT JUDGE.