IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO.

38/2018
HOLDEN AT LUSAKA
(Criminal Jurisdiction)

BETWEEN:

AMADI PHIRI APPELLANT

AND

THE PEOPLE RESPONDENT

CORAM: CHISANGA JP, MAKUNGU, KONDOLO SC, JJA

For the Appellant : Ms. E.I. Banda, Senior Legal Aid Counsel-Legal Aid Board
For the Respondent : Mr. P. Mutale, Deputy Chief State Advocate- National
Prosecution Authority

On 26th June, 2018 and ...... November, 2018

JUDGMENT

KONDOLO SC, JA delivered the Judgment of the Court

CASES REFERRED TO:
1. Solomon Chilimba v The People (1971) Z.R. 36
2. Benai Silungwe v the People (2008) 1 Z.R. 123
3. John Musonda Mwanamwenge v the People (2012) Z.R. 1
4. Whiteson Simusokwe v The People (2002) Z.R. 63
5. Beatrice Mwala Hagwende and 3 others v the People Selected
Judgment No. 13 of 2016
 Page 2 of 9

6. Alubisho v The People (1976) Z.R. 11

7 . Jack Chanda and Kennedy Chanda v The People SCZ 29 of 2002

LEGISLATION REFERRE D TO:

1. The Penal Code, Chapter 87, Laws of Zambia

The Appellant was charged and convicted of Murder contrary to Section

200 of t he Penal Code.

On the fateful morning of 19th March, 2016, the deceased, Justina

Banda, was gruesomely stabbed by her husband, the Appellant herein. Her

neighbour, PW l witnessed the horrific attack in which the Appellant stabbed

his defenseless wife, with a knife, over and over again and she fell on her baby

who was covered in blood. After the attack, the Appellant put the knife in his

pocket and entered his house. PWl then took the child from underneath lhe

mother and ran to call for help whereupon the deceased was taken to hospital

where she was admitted for about a month.

After being discharged, the deceased couldn't walk and was bedridden

and developed bedsores which became septic. She was taken back to the

hospital where she was diagnosed with septicemia due to the infected bedsores

and she later died.

 Page 3 of 9

The Accused's evidence was inclined to the defence of provocation.

According to him, his wife was a h~bitua1 adulterer and, on that morning, he

found her in the act in some fields and she ran away. He went home and when

the deceased came he confronted her about the adu ltery, she retorted that she

was at liberty to use her body as she pleased. In that fleeting moment, the

Accused lapsed into an uncontrollable rage and took a knife from his pocket

and stabbed her with it. Realising what had transpired and out of fear, he

bolted.

The lower Court found the Appellant guilty of murder because the chain

of causation was not broken as the bedsores were the result of the deceased

being bedridden due to the stab wounds sustained which resulted in injuries

that confined her to her bed. In his Ruling 1 on sentence, the trial court

accepted that the Appellant had been provoked and applied the principle that a

failed defence of provocation is an extenuating factor which excuses a convicted

murderer from the death penalty. However, after considering the brutal

manner in which the deceased was killed, the Court sentenced the Appellant to

life imprisonment with hard labour.

The Appellant, displeased with the Judgment of the lower Court, put forward

only one ground of appeal, that the lower Court erred in law and fact because

1 Record of Appeal, page 88

 Page 4 of 9

despite finding the existence of extenuating circumstance s and considering he

was a first offender, the Court imposed the maximum sentence of life

imprisonment.

When the appeal was heard, both Counsel relied on their written

submissions. Counsel for the Appellant accepted that the Appellant

contributed to the death of the deceased but contended that after analyzing the

evidence and submissions before it, the trial Court ought to have weighed both

the mitigatory and aggravating circumstances in order to arrive at a just

sentence. It was argued that a conviction for murder with extenuating

circumstances attracted a maximum sentence of life in jail and the sentence of

life imprisonment meted out to the Appellant is severe and does not reflect the

leniency due to a first offender.

Learned Counsel for the Appellant called in aid the case of Solomon

Chilimba v The People 111 in which it was held that unless a case presents

extraordinary features which aggravate the seriousness of the offence, a first

offender ought to receive a minimum sentence. We were urged to interfere with

the sentence on the basis that it was severe and ought to come with a sense of

shock and warranted being set aside and in its place a more reasonable

sentence be imposed.
 Page 5 of 9

In response to the Appellant's arguments, the State, being alive to the

holding in the Solomon Chilimba case and the provisions of Section 201 of

the Penal Code, submitted that the offence of murder does not provide for a

minimum sentence. It was further submitted that no leniency could be

extended to the Appellant because circumstances of the case were aggravated

by the sheer brutality with which the Appellant stabbed the deceased. The

State opined that there was no principle of law that protects a first offender

from life imprisonment where the gravity of the offence and the circumstances

in which it's committed, call for it.

We are grateful to Counsel for their submissions and note that this

appeal is not against conviction but against sentence only.

We have considered the Appellant's argument that he is entitled to

leniency but we are also cognizant of the fact that the lower Court considered

the circumstances of the case and commented on the brutal manner of the

murder. We agree that save for aggravating or other special circumstances, a

first offender is entitled to leniency. The principles of sentencing are firmly

established in numerous cases including Benai Silungwe v The People 12 1 and

Chilimba v The People.

 Page 6 of 9

The Appellant was convicted of murder with extenuating circumstances

on the basis of his failed defence of provocation. A conviction with extenuating

circumstances presupposes leniency because in the case of murder the

sentence, which should have been death is reduced to any sentence other than

death. Section 201 (1) (b) of the Penal Code reads as follows;

201. (1) Any person convicted of murder shall be sentenced-

(a) to death; or

(b) where there are extenuating circumstances, to any

sentence other than death:

Provided that paragraph (b) of this subsection shall not

apply to murder committed in the course of aggravated

robbery with a firearm under section two hundred and

ninety-four.

(2) For the purpose of this section-

(a) an extenuating circumstance is any fact associated

with the offence which would diminish morally the

degree of the convicted person's guilt;

(b) in deciding whether or not there are extenuating

circumstances, the court shall consider the

standard of behaviour of an ordinary person of a

 Page 7 of 9

class of the community to which the convicted

person belongs.

An extenuating circumstance was defined in the case of John Musonda

Mwanamwenge v the People 13) as follows:

''The mitigating circumstance or fact or situation does not

justify or excuse a wrong act or offence but reduces the degree

of culpability and this may reduce the damage (in case of a

civil case) or the punishment (in a criminal case) the fact or

situation does not bear on the question of the defendant's guilt

but is considered by the court in imposing punishment and

especially in lessening severity of the sentence."

The law on a failed defence of provocation was explained in the case of

Whiteson Simusokwe v The People 14) where the Appe llant caught his lover in

the act of intimacy with another man. A fight ensued and the man he found

with his wife ran away and the Appellant turned onto his wife and beat her

with a stick. She later died and he secretly buried her. The Appellant pleaded

the defence of provocation and this is what the Supreme Court had to say;

" ... However, in reverting back to the defence of provocation,

one of the elements is that the reaction. of the accused person

must be proportionate, with the result that any evidence of

excessive force defeats the defence. It has been pointed out in

 Page 8 of 9

this particular case that according to the postmortem report

Jar from using a stick, the appellant had inflicted serious

injuries with an iron bar. That use of excessive force

immediately defeated any defence of provocation so that it is

not possible to reduce this case to manslaughter.

However, we accept that a Jailed defence of provocation

nonetheless affords the extenuation for the murder charge.

The intimate relationship and the alleged infideli(y which led

to the assault were therefore an extenuating circumstance.

This justifies the non-imposition of a mandatory capital

sentence. In the circumstances, we quash the death sentence.

We must point out that as a general rule an extenuated

murder will still be treated a little bit more severely than a

manslaughter case although both might carry the life

sentence. From the facts of this case, a very suitable sentence

to impose is one of twenty (20) years imprisonment with hard

labour... "

In the cited case the Appellant hit the deceased with a stick but in casu

the Appellant launched a vicious and savage attack with a knife stabbing her

several times. PW 1 an eyewitness testified to the intensity of the attack on his

defenseless wife and in front of his children.

 Page 9 of 9

The trial judge was on firm ground when he considered the aggravating

circumstances of this case. Therefore, the sentence of life imprisonment does

not strike us with a sense of shock and the appeal is consequently dismissed.

Dated this day of November, 2018

c- /
~
..................•.•.................
r ,

F.M. CHISANGA

JUDGE~PRESIDENT

........~ ~····· c::::::===

............................ -
~....

C.K. MAKUNGU M.M. KONDOLO SC

COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE