People v Teddy Phiri and Ors (HPJ/01/2022) [2025] ZMHC 107 (9 September 2025)

\ -Rl - IN THE HIGH COU , , AT THE PRINCIPAL~:OR.~AMBIA Ho:r-,~EN AT LU SAKA GIS I RY ( Cnmmal Jurisdiction ) BETWEEN: H PJ/ 01 / 2 0 22 THE PEOPLE V TEDDY PHIRI LUTANGU KAYUKWA MUSHOKE MUSHOKE CHIKUKU MWABA BEFORE THE HONOURABLE LADY JUSTICE M. CHANDA-MATE THIS 9TH DAY OF SEPTEMBER, 2025. APPEARANCES: For the people For the defence Mrs. C. Mutolo Sikanyika - Principal State Advocate Mrs. C. Miyoba - State Advocate Mrs. S. Mwanza - State Advocate Dr. 0 . Kaaba - Pro Bono Counsel Mrs. S. Kainga , Legal Aid Counsel _Mrs. L. Z . Musonda ~ Legal Aid Counsel RULING Legislation referred to: 1. Penal Code (Amendment) Act No. 23 of 2022 2. Black's Law Dictionary Cases referred to: 1. Benos v The People, CAZ Appeal No. 201 of 2020 2. Kelvin Kabaso v The People, CAZ Appeal No. 192 of 2022 CamScanner -R2 - l. O. Backgr ound This is a 1.1. 1. the defen ru 1ng on an application by learned Counsel for · ce in respe ct of the sentencing of two convicted persons , namely Mushoke Mushoke and Chikuku Mwaba. Counsel u ct . . circumsta rge this Court to take into account the extenuating nces surrounding the case in determining an . . appropriate sentence. 1 ·2 · A brief background is that Mushoke Mushoke and Chikuku Mwaba were convicted for the offence of murder and during sentencing, counsel implored the court to take into account the fact that their failed defence of mistake of fact is an extenuating circumstance which warrants this court not to met out a sentence other than life imprisonment. 2.0. Counsel's Submissions 2.1. In his submissions, counsel for the defence Dr. Kaaba invited the Court to consider the authority of Benos v The People 1, wherein the Court, in dealing •with a conviction for murder, held that a failed defence should be considered as an extenuating factor. The Court observed that such a factor may warrant the setting aside of a mandatory sentence. Counsel con tended that the principle enunciated in the Benos case should guide this Court in the present matter. CamScanner - ------ - - H3 - 2 .2. Counsel 1 Mushoke M a so sub1n 1tted with r espec t to the u st o en er, Ushoke, that he is a ged 52 years and 1s the sole provider for three dependent children. In regard to the second f·f d . • . r· · offender, Chikuku Mwaba, it was submitted that he is a young man aged 22 years and the father of a five-year-old child who is wholly dependent on him. 2.3. Counsel further submitted that the dual have expressed their actions and have spent a genuine remorse for considerable period in custody, during which they have reflected upon their conduct and learnt a valuable lesson. In light of these factors, counsel prayed that this Honourable Court exercise leniency in meting out sentence. 3.0. Analysis and Decision of this Court 3.1. Having heard counsel's submissions, the issue for determination before me is whether the accused persons' failed defence constitutes an extenuating circumstance to justify a departure from the sentence of life imprisonment. 3.2. In determining this issue, I must start by pointing out that Section 201(1) of the Penal Code (Amendment) Act No. 23 of 2022 1 is couched in the following words: A person convicted of murder shall be sentenced to life there are extenuating imprisonment or, where life circumstances, imprisonment. sentence other than a CamScanner -R4- 3 -3. The . impose life · . section e . · ssentia y gives t e cour · 11 h t d' 1scre 10n to not t · imprisonment on conviction where the extenuating circumstan ces warrant a departure from the mandatory sentence and require a lesser penalty to be meted out. 3 .4. Section 201(2) of the said Act also defines extenuating circumstances as any fact associated with the offence which would diminish morally, the degree of the convicted person's blameworthiness. 3.5. The learned authors of Black's Law Dictionary2 define the word extenuation as a mitigation circumstance means a fact or situation that does not justify or excuse a wrong act or offence but that reduces that culpability and this may reduce punishment. A fact or situation that does not bear on the question of a defendant's guilt, but that is considered by the court in imposing punishment and especially the severity of a sentence. 3.6. I must highlight that extenuating circumstances are not limited to failed defences of provocation, self-defence or intoxication. It is any fact that can reduce the level to which the offender is held responsible for committing the offence, yet CamScanner it does n t offence. o absolv h e t e offender from the commission of the -RS 3. 7. In the ca upon by c se of Be nos v the People 1 which has been relied . ounsel, the trial judge rejected the appellant's claims of s 1f d of visible in· e - efence and provocation, relying on the absence . ~Unes and 1ncons1Stenc1es 1n witness testimonies. • . . . . The appellant was convicted of murder and sentenced to death. 3. B. On appeal, the appellant raised, among other issues, that there were extenuating circumstances that warranted a sentence other than death. The Court of Appeal held that extenuating circumstances include any fact associated with the offence that reduces the offender's moral blameworthiness, even if it does not constitute a full legal defence. The Court considered the deceased's conduct degrading and humiliating, and concluded that the appellant's reaction, though resulting in a fatal outcome, was morally understandable. These factors, in the Court's view, reduced her level of blameworthiness and therefore amounted to extenuating circumstances, warranting the substitution of the death sentence with a custodial sentence. 3 . 9. The Court of Appeal upheld the conviction for murder, but found that there were extenuating circumstances because the CamScanner -R6- appellant w when sh • . e 1nfl1ct d . as resisting de d. e the fatal injury. gra ing and humiliating conduct ' 3.10. In a more . court 1n discu . that the quest• which could d recent case of Kelvin Kabaso v The People2 the ss1ng extenuating circumstances highlighted . ion the1efore, 1s whether there are any facts . . . . . re uce the level to which the appellant was held responsible for committing the offence. 3 . I l. In reviewing the evidence in that case, the Court stated that the appellant having been armed with a lethal weapon threatened, shot and fatally wounded the deceased in a cold hearted and emotionless manner, in full view of her mother and the neighbours. That this was despite his colleagues' efforts to assist. The Court concurred with the trial Judge in finding that · there were no extenuating circumstances in favour of the appellant. 3.12. Having said that, I am of the considered view that the circumstances in the Benos case can be distinguished from the case before me. I say so because in that case, the appellant acted in the heat of a personal, emotionally charged encounter and the Court recognised that the context diminished her moral culpability despite the act resulting in death. CamScanner 3, 13. In the p resent ·R7- convicted lllatter, howeve ·t . . Persons r, I is evident that th violence, full acted With deliberate and y aware of th . e potential for fatal . e sustained consequences . 3.14. The testi the off enders bl . tnony of the principal ·t w1 ness revealed that one of survive the as atan tly declared that h . ' s ould the deceased sauJt, it would be nothing short of miraculous. 3.15. The eviden f severe and su t . ce urther demonstrates that, having inflicted a . s ained assault upon the deceased, the convicted persons b d . a an oned him at the scene without taking any steps to procure medical assistance or to notify the auth on Ies. Had their conduct been motivated by an intention ·r · merely to intervene in aid of another, they would have promptly reported the matter to the police. Instead, they left the deceased for dead. The subsequent report made to the police only after the offenders were being pursued on a charge of murder also speaks to a deliberate attempt at concealment. 3.16. In my considered opinion, therefore, there are no facts that could reduce the level to which the convicted persons were responsible for the offence. Their actions were neither provoked nor excusable, nor were they shown to be in response to any degrading or threatening conduct by the deceased. 3.17. On the basis of the foregoing, I am not convinced that the circumstances meet the criteria of a fact which would CamScanner -R8 - diminish morally, blameworthiness. the degre of the convi t d p r n '. 3.18. Accordingly, I find that there are no extenuating or mitigating circumstances in this matter and I sentence the two convicts to imprisonment for life. Leave to appeal is granted. CamScanner