Kabongola v People (SCZ Appeal 2 of 1993) [1993] ZMSC 52 (19 January 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 2 OF 1993 HOLDEN AT LUSAKA (Criminal Jurisdiction) RODRICK MUNDIA KABONGOLA Appellant VS THE PEOPLE Respondent CORAM: Gardner Ag. D. C. J., Sakala A Chaila JJS. 19th January 1993 For the Appellant: Mr. M. N. H. Samad, Senior Legal Aid Counsel For the State: Mr. F. J. Mensah, State Advocate JUDGMENT Gardner A. D. C. J., delivered the judgment of the court. The appellant was convicted of murder. The particulars of the offence were that he, on the 16th of December, 1989, at Kabwe, did murder Langson Bofwana. He was found by the learned trial judge to have committed the murder in extenuating circumstances and he was setenced to thirty years imprisonment with hard labour. The facts of the case were that, the appellant, the deceased and others, were drinking together when the deceased accused the appellant of being a chicken thief. The appellant was greatly annoyed by the accusation and the deceased left the place where they were drinking. The appellant continued to drink and later left in the same direction as the deceased. On the way he met the deceased and the quarrel started again. According to the statement of the appellant, which is the only evidence of what occurred at the scene. The appellant was incensed by the insult of having been called a chicken thief. He took hold of the deceased by the shirt and threw him J2 : to the ground thereafter he hit him with a stick causing the death of the deceased. The learned trial judge found that the original insult, according to the appellant, happened sometime before the actual striking by the appellant of the deceased and there had been time for passion to cool. He therefore found that the defence of provoation was not available to the appellant and the appellant was therefore convicted of murder. The learned trial judge found that this was a particularly brutal murder but that the insult and the fact that the appellant had been drinking were extenuating circumstances. Mr. Samad on behalf of the appellant has argued that the meeting between the appellant and the deceased after the appellant left the place where they had been drinking revived the original provocation and that the appropriate finding should be one of manslaughter. Mr. Mensah has very properly indicated that the State does not support the conviction for murder but would support a conviction for manslaughter. We agree with both counsel that there is a doubt as to whether the provocation in this case should reduce the conviction to one of man­ slaughter. That doubt must be resolved in favour of the appellant, and, accordingly, the appeal is allowed. The conviction for murder is quashed and the sentence therefore is set aside. We substitute a conviction for manslaughter and regard this as being a serious case of manslaughter for which we impose a sentence of ten years imprisonment with hard labour with effect from the 27th December, 1989, the date of arrest. 8. T. Gardner E. L. Sakala AG. DEPUTY CHIEF JUSTICE ........................................ SUPREME COURT JUDGE M. S. Chaila SUPREME COURT JUDGE