Ngondo v People (SCZ Appeal 60 of 1993) [1993] ZMSC 92 (20 April 1993)

IM THE SUPREME COURT OF ZAMBIA ZCS APPEAL No.60/93 H^O^KABHE (CRIMINAL JURISDICTION) B E T H S E N: RICHARD NGONDO APPELLANT Vs THE PEOPLE RESPONDENT LCoram:Sakala» Chai la and Muzyaaba. J. J. J. S. 20th April. 1993 For the Appellant: Mr. N. B. Nangugyambo, Assistant Senior Legal Aid Counsel For the State: Mr. E. Sewanyana. Assistant Senior State Advocate . • ■ • • - 0 u 6 H E M Muzyaaba. U. S. delivered the Judgment of the;Court ■ ■ ■■ The appellant was convicted of murder contrary to Section 200 of the Penal Code, Cap. 146 of the Laws of Zambia and was sentenced to 18 years imprisonment with hard labour. % The particulars of the offence are that Richard Ngondo, on the 17th day of March. 1992 at Chi pa ta in the Chipata District of the Eastern Province of the Republic of Zambia, did murder Tedson HJobvu. He has appealed against both conviction and sentence. ... Briefly, the undisputed facts of this case are that on 17th March 1992 at about 20.15 hours the second prosecution witness Mr. Patson Kapalambwe heard some noise outside his house. When he went outside to check he saw some J2/... ■ jHfe J2 ■ people removing some iron sheets. He then rushed to the house of the deceased Mr. Njobvu and PH.3 Mr. Mwanza for assistance to apprehend the thieves and 1 * ’ . ■ . together they chased the thieves and caught one of them who turned out to be Y i. • . • the appellant in this case. After the appellant was caught, PH.3 left to call the appellant's father who happened^to be the headmaster of the school where the incident took place. While PW.3 was away the deceased asked the appellant to reveal the names of the other thieves. Appellant got annoyed and hit the deceased with a fist and when the deceased fell down he kicked him with his bare foot three times. ■ • ' The post mortem report revealed that the deceased died of intracele- bral haemorrahage .......... The learned Counsel for the appellant, Mr. Nangugyambo advanced one ground of appeal, which he later abandoned namely that the lower court erred in law in trying the appellant for murder when in fact he had already been tried and convicted of assault. And the learned Assistant Senior $tate Advocate, Mr. Sewanyana did not support the conviction of murder but urged the court to I , s'-., । . AJ ■ \ 1 • • • ' ft find the appellant guilty of a lesser offence of manslaughter. We have considered the evidence on record and we entirely agree with the course taken by Mr. Sewanyana In not supporting the conviction because we cannot find any evidence of malice aforethought on the part of the appellant to kill the deceased The facts clearly,disclose the lesser offence of . .. manslaughter. .1, .. Ip.. .• ... ... . >> '•Ui . tie Accordingly we allow the appeal and quash the conviction of murder and substitute a conviction for manslaughter, contrary to Section 199 of the Penal Code. Z W1 w J3/... On sentence, we feel that 18 years is too excessive, especially of assault and received three strokes of the cane and also that no weapon was used. Accordingly we allow the appear against sentence also. The term of Ir^risonment imposed by the courf below is set aside and in its place we impose a sentence of 18 months imprisonment with hard labour effective from 29th April, 1992 when the appellant was arrested for the offence of murder, M. S. CHAILA SUPREME COURT JUDGE