Sevelino Zulu and Watson Kachenjela v The People (APP NO. 47/2023) [2023] ZMCA 355 (23 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Ju risdict ion) APP NO . 47/2023 BETWEEN : SEVELINO ZULU WATSON KACHENJELA AND THE PEOPLE 1 ST APPL I CANT 2ND APPLICANT RESPONDENT Coram: Mchenga DJP , Banda-Bobo and Sharpe-Phiri , JJA On : 14 th November 2023 and 23 rd Novembe r 2023 For the Applicants : In person, For the Respondent : V. Choongo , Sate Advocate , National Prosecution Authority R U L I N G Mchenga DJP, delivered the rul i ng of the cou rt Legislation referre~ to : 1 . The Court of Appeal Act , No . 7 of 2 016 2. The Court of Appeal Rules , S . I . No . 65 of 2016 3. The Zambia Wi l dlife Act , No . 14 of 2015 R2 Cases referred to : 1 . The Peop l e v . Emma Kainga Cou r t of Appeal , App l ication No . SP/31/2021 INTRODUCTION c1 1 The applicants have , pursuant to Section 13(2) of the Court of Appeal Act an d Order 8 rule (3) (1) (a) of the Cour.t of Appeal Rules , moved t his Court t o e x tend the period within wh ich they can apply f or l eave t o appeal to t he Supreme Cou rt , a gains t our j udgment dated 10 th October 2023 . BACKGROUND c2 1 The applicants i nitially appeared before t he Subordinate Court , charged wi th t he offe nce o f unl aw f ul possession of a prescribed trophy , con t ra r y t o Section 130'(2) (a) (b) of the Zambia Wildlife Ac t. [ 3 1 They de ni ed t h e charge an d th e ma c Le r proceeded t o tr ial . At the end of that trial , t hey we re bot h a cqu itt ed o f the charge . [4 1 The State appea l ed a ga i ns t the acqu it l al . R3 [S J The High Cour t al lowe d the appea l and conv i cted the two appellants of the charge they faced i n the Subordinate Court. [6J They were each sentenced to 5 years impr i sonment with hard labour . [? J The applicants appealed aga in s t the High Cou r t ' s decision and on the 10 th of October 2023, we dismissed their appea ls and upheld the High Court ' s decision. We also uphe l d the sentences impos e d on them by t ha t court. APPLICATION BEFORE THE COURT [BJ The applicants' case is supported by an aff i davit , in which they jointly depos ed tha t f o ll owing the pronouncement of our judgmen t on 10 t h October 2023 , they were unable to apply for l ea ve to appea l wit hin the prescribed time , becaus e counsel who represented them at the time, onJ.y availed the j udgment on the 20 th of October 202 3 . [9J - The applicants also exhibited t heir i nt e nded grounds of appeal. R4 CONSIDERATION OF APPLICATION AND COURT'S DECISION c101 Order 8 rule 3 (1) (a) of the Court of Appeal Rules, provides that the court , may , for sufficient reasons extend the pe riod within which an appli c ation f or leave to appeal can be filed . c111 In the case of T~e People v. Emma Kainga1 , we pointed out that in an application for the e x tens ion of t i me within which to file an application for leave to a ppeal to the Supreme Court , in addi ti on t o cons i dering whe t her the dela y has been justified , we wi ll also consider wheth er t h e inten ded appeal 1 s meritorious . c121 An i ntende d appeal is meritorious i f it meets the threshold that 1s set out in Section 13 of the Court of Appeal Act; that is : (i) i t raises a p o int of law of public i mpo r tance ; (ii) it is d esirable and in t he public interest t ha t an appe al by a person convi cted should be determined by the Supreme Court ; (iii) the appea l wo u l d h ave a reasonable prospect of su cce ss; or (iv) the r e is some other compelling reason for the appeal to be heard . ' ' RS ( 131 Other than set t in g out t he reasons fo r the d el ay in filing the intended appeal , the appl i cants have not demonstrated the mer it s of the intended appeal . [ 14J Examination of the intended grounds of appea l , establishes that t he applicants are raising the same issues that they had r aised i n t heir a ppe al to us . c1s1 This being t ,he case , we find t ha t the terms of Order 8 rule 3(a) of the Court of Appeal Rules, have not been met in that sufficient reason has not been provided to warrant the · extension of time within which the app l icants can apply for leave to app eal to the Supreme Court . [161 Consequent ly , we dismiss the app li cations for want of mer it . DEPUTY JUDGE A. M . Banda-Bobo COURT OF APPEAL JUDGE ~~~~~i~~i·· COURT OF APPEAL JUDGE