Moses Nsama v People (SCZ Appeal 18 of 2002) [2002] ZMSC 86 (16 April 2002)

IN THE SUPREME COURT OF ZAMBIA SC27APPEAL NO. 18 OF 2002 HOLDEN AT KABWE (CRIMINAL JURISDICTION) MOSES NSAMA APPELLANT VS THE PEOPLE RESPONDENT « CORAM: Ngulube,CJ, I. C. Mambilima, P. Chitengi, JJs On 16th April, 2002. For the Appellant: Mr. M. Kabesha, Kabesha & Co. on a pro bono brief For the State: from the Law Association of Zambia Mrs. J. C. Kaumba, Deputy Chief Principal State Advocate JUDGMENT Ngulube, CJ delivered the judgment of the Court The appellant pleaded guilty to a charge of manslaughter. The particulars alleged that he and some colleagues of his on 18th September 2000 at Chingola unlawfully caused the death of Lucky Masango. The appellant pleaded guilty in unequivocal terms. The facts showed that there was a disagreement between : J2 : two groups of people, which erupted in a fight in which even the accused persog was beaten. The appellant ran away and later returned in the company of his mother and others and they wreaked revenge upon the other group. The deceased was killed in an attempt to separate the fighters. The welfare officer was called upon to render a report for purposes of sentencing and he recommended that the juvenile be placed on probation. The learned trial judge decided to send the juvenile to a reformatory. The appeal was to have been against both the conviction and the sentence but the former has been abandoned. Indeed on the plea as recorded an appeal against conviction would have been ill fated from the start. The appeal against sentence has a lot of merit in it. To begin with the learned trial judge has not explained in the record why he decided to ignore the recommendation of the Welfare Officer. Additionally, the judge took one view of the facts for the purpose of accepting the plea, and a totally different and dimmer view of the same facts when it came to sentencing the juvenile. Indeed he referred to the case as a borderline murder case. A manslaughter case is not a borderline murder case. The sentence was therefore wrong in principle and ultimately failed to reflect the credit which was due to the juvenile for readily accepting the charge. : J3 : The appeal against sentence is allowed. We quash the reformatory order and in its place we substitute a probation order as originally recommended. M. M. S. W. Ngulube, CHIEF JUSTICE. ■ ■ « ttaM a ■■ r «■ a ■■■■■■■■■■«■■■ * it ■ ■ ■ I. C. M. Mambilimba, SUPREME COURT JUDGE. SUPREME COURT JUDGE.