Kaluba v People (SCZ Appeal 35 of 1993) [1993] ZMSC 51 (3 March 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 35 OF 1993 HOLDEN AT NDOLA. (Criminal jurisdiction) TYSON KALUBA Appellant Vs THE PEOPLE Respondent Coram: Sakala, Chai la and Chlrwa, JJJ. S. 3rd March, 1993. Mr. H. J. F. Silva, Assistant Senior Legal Aid , for the appellant, Mr. S. A. G. Twumasi, Assistant Senior State Advocate, for the State. Sakala J. S. delivered the judgment of the court. JUDGMENT The appellant pleaded guilty to a charge of manslaughter contrary to Section 199 of the Penal Code Cap 146 of the laws of Zambia. The particulars of the offence were that, the appellant on 11th October, 1991, at Mpulungu, In the Mpulungu District of the Northern Province of the Republic of Zambia, unlawfully caused the death of Jackson Sikate. He was sentenced to nine years imprisonment with hard labour and ordered to undergo ten strokes with a cane. He has appealed against the sentence of nine years imprisonment with hard labour and against the order of ten strokes with a cane. The statement of facts admitted to have been correctly recorded were that, on the day in question, the appellant approached the deceased and said, "today I am beating you for the reason well known to me." He beat the deceased using head butts and kicks and tore the deceased's shirt. When a neighbour came to the scene, the appellant ranaway. The deceased's face became swollen and bled severely. He died sometime later. A postmortem examination report revealed that the deceased died due to conjective cardiac failure. In sentencing the appellant, the learned trial judge noted that he was not provoked and that he was a brute who caused 2/... :i J" J2. trouble where there was peace and that the court had a duty to correct such conduct. The court then sentenced him to nine years imprisonment with hard labour. The court further stated that to help the appellant to reform was to make him experience pain. The appellant was then ordered to be given ten strokes. Mr. Silva on behalf of the appellant informed the court that the appeal was against sentence only. He pointed out that the appellant having pleaded guilty, this was not the case justifying corporal punishment and that the sentence was excessive. He further pointed out that no weapon was used in this case and the death was a result of cardiac failure, the deceased having been aged 76 years. We take note of what the learned defence counsel has said on behalf of the appellant. We observe in this case that no weapon was used. We also note that the assault was mild but Inflicted on an old man. The sentence of nine years on the facts of this case comes to us with a sense of shock. Accordingly, we set it aside. In its place, we impose a sentence of three years imprisonment with hard labour with effect from 21st October, 1991. For the reasons we have said in the other appeals this morning, the order for ten strokes with a cane is also set aside. To that extent, the appeal succeeds. E. L. Sakala, SUPREME COURT JUDGE. M. S. Chaila, SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE.