Maybin Kasenga and Ors v People (SCZ Appeal 8 of 2000) [2000] ZMSC 105 (8 August 2000)

SCZ APPEAL No.8a, b & c OF 2000 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (CRIMINAL JURISDICTION) MAYBIN KASENGA 1ST APPELLANT ALEX CHOLA 2nd APPELLANT WILBROAD MUSAKABANTU 3rd APPELLANT Vs THE PEOPLE RESPONDENT Coram: Ngulube, C. J., Muzyamba and Lewanika, JJS 8th August 2000 For the Appellants: Mr. A. M. Bwalya, Senior Legal Aid Counsel For the Respondent: Mr. J. Mwanakatwe, Principal State Advocate J U D G M E N T Lewanika, J. S. delivered the judgment of the Court. The appellants were convicted of the offence of aggravated robbery, contrary to Section 294 (1) of the Penal Code, Cap 87 of the Laws of Zambia. The particulars of the offence being that the appellants on lsl December 1997 at Kabwe, in the Kabwe District, of the Central Province of the Republic of Zambia, jointly and whilst acting together, and being armed with an offensive weapon, did rob Elizabeth Chipilingani of 5 blankets, one travelling bag, one radio and the sum of K250,000 (two hundred and fifty thousand kwacha) in cash, altogether valued at K405,000-00 (four hundred and five thousand kwacha) and at or immediately before or immediately after the time of such stealing, did use or threaten to use actual violence to the said Elizabeth Chipilingani in order to retain the said property or prevent resistance to its being : J2 : stolen. The appellants were sentenced to a term of 25 years imprisonment with hard labour and they have appealed to this Court against sentence only. The brief facts of the matter were that the complainant a lady of advanced years, was in her village in the Chibombo area when she was attacked late at night by the appellants who robbed her of her personal effects, beat her up and left her somewhat worse for wear and tear. The learned trial Judge took a dim view of the appellants conduct and formed the view that the appellants were entitled to a sentence in excess of the minimum sentence. We have considered the grounds of appeal advanced by the appellants and although we are in agreement with the learned trial Judge and deplore the use of violence and gang robberies, we have in view of what the appellants have said in mitigation, decided that the sentence was somewhat excessive and we set it aside and substitute it with one of 18 years imprisonment with hard labour with effect from the 1st day of October 1997. To that extent only the appeal succeeds. The appeal relating to the 2nd Appellant will be considered upon receipt of the medical report relating to his age. M. M. S. W. NGULUBE CHIEF JUSTICE W. M. MUZYAMBA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE