Kapolobwe and Anor v People (SCZ Appeal 37 of 1993) [1993] ZMSC 49 (3 March 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEALS NOS. 36 & 37 OF 1993 HOLDEN AT NDOLA (Criminal Jurisdiction) 1. LEWIS KAPOLOBWE 2. PETER CHINYAMA v Appellants THE PEOPLE Respondent Coram: Sakala, Chaila and Chlrwa JJJ. S On 3rd March 1993 at Ndola For the Appellants: In Person For the REspondent: Mrs. P. S. Kamanga, State Advocate JUDGMENT Chlrwa J. S. delivered the judgment of the Court The two appellants were convicted of Aggravated Robbery Contrary to Section 294(1) of the Penal Code Cap. 146 and upon their convictions they were sentenced to 20 years imprisonment with hard labour. The particulars of the offence were that the two appellants on the 20th day of September, 1989 at Kalulushl in the Kalulushl District of the Copperbelt Province of the Republic of Zambia jointly and whilst acting together did steal K4.650.91 cash, the property of the Govern­ ment of the Republic of Zambia and at or Immediately before or immediately after the time of such stealing, did use or threatened to use actual violence to Chlbeza Ellerton Monday in order to obtain or retain the said money. The undisputed facts found by the learned trial judge were that the complainant was a teacher who on the 20th September, 1989 at about 19.00 hours was travelling from Masalti to Kalulushl. As It was late he decided to spend a night at his brother's home at Nkana Primary School. He was carrying with him the amount of money involved in this 2/...charge. - uZ - charge. When he reached Nkana village he decided to spend a night there and met the two appellants whom he had known since 1987. He found these appellants at the home of Mrs. Nkhata. He bought some two bottles of illicit drink and the two volunteered to escort him to his elder brother's house. On the way the two attacked the complainant, grabbed a bag in which he was carrying trie money from him and left him unconcious. They returned to Mrs. Nkhata’s house where the first appellant asked Mrs. NkhaU to keep the bag for him. Mrs. Nkhata refused to accept the bag as she did not know as to how the appellant got this bag from the complainant. As they were talking , the complainant arrived at tne scene. ifnan tne two appellants saw the complainant they dropped the bag and ran away. The complainant narrated how he was attacked to Mrs Nkhau and on checking from the bag ne found that the money was missing. The following day he reported the matter to the police and later the appellants were arrested. As we have said upon their convictions tiie two appellants were sentenced to 20 years imprisonment. Tn ay are now appealing against the sentences only. He note from the facts as found oy Lite learned trial judge that the two appellants although at first pretended to be good Samaritans to escort the complainant, turned out to ba the group which abused his hospitality, abusing in the sense that after ne bought them drinks they attacked nlm and robbed him of the money. Ue note that this is a very aggravating factor. However, we do not take it as such to warrant more than the minimum mandatory sentence. In this case, therefore, we allow this appeal, set aside the sentence of 20 ywi and in its place we impose the minimum mandatory sentence of 15 years. E. L. SAKAKA SUPREME COURT JUDGE M. S. CHAILA SUPREME COURT JUDGE O. K. CH1RMA SUPREME COURT JUDGE