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IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 122/2021

HOLDEN AT LUSAKA
(Criminal Jurisdiction)

BETWEEN:
i.
APPELLANT
THOKOZANI JAMES MBEWE

AND

THE PEOPLE RESPONDENT

Coram: Hamaundu, Kajimanga and Chinyama, JJS

On 10th August, 2021 and 10th May, 2022

For the Appellants: Ms K. Chitupila, Senior Legal Aid Counsel

For the State : Mrs A. K. Mwanza, Senior State Advocate

JUDGMENT

HAMAUNDU, JS, delivered the judgment of the Court

Cases referred to:

1. Kenmuir v Hatting (1974) ZR 162

2. Malawo v Bulk Carriers of Zambia Limited (1978) ZR 185
3. Whiteson Simusokwe v The People (2002) ZR 63
4. Jack Chanda & Another v The People (2002) ZR 124
5. Jose Antonio Golliadi v The People, Appeal No.26/2017
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The appellant appeals against conviction. He also appeals

against the sentence of death that was imposed on him.

1.0 Proceedings in the High Court

1.1 The Prosecution case

Before the High Court, (presided over by Sharpe-Phiri, Jas

she then was) the appellant was charged with one count

of murder and one count of aggravated robbery.

1.1.1 The facts presented to the trial court were that at the

material time the appellant and the deceased, Dean

Mitchell, used to live in the same house, which also

operated as a lodge, in Chipata. In the evening of the 5th

July, 2015, the appellant and the deceased left the bar at

the lodge, and went to the house to sleep.

1.1.2 Around 01:00 hours, the motor vehicle belonging to the

deceased was seen by the watchman being driven out of

the premises. The following morning, the deceased was

found dead in the house. The appellant was nowhere to be

seen. Also missing were the deceased’s motor vehicle and

some items from the house. The appellant was

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apprehended more than two weeks later from Lundazi. The

motor vehicle and other items were also retrieved.

1.2 The case for the defence

1.2.1 The appellant did not deny killing the deceased, but

said that he did so in self-defence.

1.2.2 In his own words, in an unsworn statement that

the appellant gave to the trial court, he said that he

had met the deceased in February, 2015, at a night

club in Chipata. The two became friends. The

deceased employed him, and he started living in the

same house as the deceased. The deceased disclosed

to him that he was of the same sex orientation; and

invited the appellant into a relationship with him,

which invitation the latter declined. Nevertheless, the

deceased did not approve of the appellant having

girlfriends; and would become annoyed when girls

phoned him.

1.2.3 It was the appellant’s testimony that, on the

material evening, his girlfriend phoned him; and that

this infuriated the deceased so much that when they

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retired to the house for the night he drew a gun on

the appellant, threatening to shoot him if he did not

tell the truth about the girl who had phoned.

1.2.4 The appellant explained that, in trying to escape, he

pushed the deceased towards the stairs; that the

latter fell over on his back and tumbled down the

stairs to the living room. The deceased started

bleeding from the mouth and the ears.

1.2.5 The appellant then went to Kapata Police station,

with a view to report the incident, but grew cold feet

when he reached there. He went back home, without

reporting it.

1.2.6 The appellant further explained that when he

reached home he found that the deceased had

crawled back to the bedroom, and on to the bed, but

his body was now twitching. He panicked and

therefore grabbed all the items that the deceased had

given to him. He then fled the scene in the deceased’s

vehicle. He said that, except for the vehicle, all the

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things that he took from the house that night had

been given to him by the deceased.

1.2.7 We note that the appellant’s testimony in court was

in many material aspects the same as the statement

that he had given to the police when he was

apprehended. The defence produced that statement

through the arresting officer, PW6.

1.3 The Judge's decision

1.3.1 On the testimony of the prosecution witnesses and the

appellant, the learned trial judge found that the evidence

in total had proved that the appellant did cause the death

of the deceased in an unlawful manner.

1.3.2 As to whether or not the appellant did so with malice

aforethought, the trial judge examined the photographs

that were taken at the scene, and also the testimony of the

police officers who examined the scene. She observed; that

there was blood in various parts of the house; that the

house itself was in disarray, with clothes scattered on the

floor and the bed while sofas were askew. The judge came
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to the conclusion that there had been a violent struggle

between the appellant and the deceased.

1.3.3 The trial judge then accepted the testimony of PW7, the

officer who had taken the photographs and had said that

the nature of the injuries were indicative of the use of a

sharp object. According to the learned judge, this

testimony was consistent with the amount of blood that

was found almost everywhere, namely; on the mattress, on

the floor, under the mattress and in several other parts of

the house. With this observation, the judge discounted the

appellant’s explanation that he had merely pushed the

deceased down the stairs.

1.3.4 The judge also addressed the appellant’s conduct after he

had injured the deceased. She noted that the appellant,

knowing very well that the deceased was dead, or dying,

went about collecting some items from the house with

indifference, or lack of sympathy.

1.3.5 As for the appellant’s testimony in his defence, the judge

found that it had been seriously contradicted by the

evidence of the photographs taken at the crime scene, as

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well as the testimony of the witnesses who spoke about

what they had observed at the scene. Some of the

contradictions were with regard to the observations that

we have outlined above, such as the fact that the body was

found in the living room and not the bedroom.

1.3.6 The judge also rejected the appellant’s testimony that the

deceased had threatened to shoot him because no gun was

found at the scene, and none of the witnesses who worked

at the premises knew of any gun that the deceased may

have possessed.

1.3.7 On these grounds, the learned judge found that malice

aforethought had been proved. She convicted the

appellant of murder.

1.3.8 As for the charge of aggravated robbery, the learned

judge found, first, that the deceased had not given the

appellant the items which he took from the house, and

that this meant that the appellant stole them. However,

the judge found that the violence that led to the death was

not for the purpose of stealing the items; but that the

appellant stole the items as an afterthought. For that

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reason, the appellant was convicted of theft instead of

aggravated robbery.

1.3.9 For the offence of murder, the appellant was sentenced to

death while for that of theft he was sentenced to 5 years

imprisonment.

2.0 The Appeal

2.1 There are three grounds of appeal filed. In the first one,

the appellant contends that the trial judge was wrong to

find that malice aforethought had been established when

there was no evidence to support that finding. In the

second ground the appellant contends that the trial judge

was wrong to reject the appellant’s explanation in defence

because, in so doing, the judge omitted to consider the

facts which established the availability of self-defence as a

defence for the appellant. In the third ground, the

appellant faults the judge for not having considered the

appellant’s intoxication as an extenuating circumstance.

2.2 Ground One

2.2.1 The Appellant’s argument

2.2.1.1 The argument by the appellant in the first ground of

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appeal is anchored on section 204 of the Penal Code,

Chapter 87 of the Laws of Zambia. This section

provides:

“malice aforethought shall be deemed to be established by

evidence proving any one or more of the following
circumstances:
(a) An intention to cause the death of or to do grievous harm
to any person, whether such person is the person actually
killed or not;
(b) Knowledge that the act or omission causing death will
probably cause the death or grievous harm to some
person, whether such person is the person actually killed
or not, although such knowledge is accompanied by
indifference whether death or grievous bodily harm is
caused or not, or by a wish that it may not be caused;
(c) An intent to commit a felony;
(d) An intention by the act or omission to facilitate the flight
or escape from custody of any person who has committed
or attempted to commit a felony.”

2.2.1.2 On behalf of the appellant, it has been argued that

the facts of this case disclosed that the appellant had

no intention to kill the deceased because the

testimony revealed that the deceased and the

appellant merely had a fight, and that the appellant

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could not have foreseen that pushing the deceased

would lead to the latter’s death.

2.2.2 The Prosecutions argument

2.2.2.1 On behalf of the prosecution, it has been argued that

the evidence disclosed that the appellant used a

sharp object to kill the deceased, which act is

indicative of the presence of an intention to kill or

cause grievous harm. It is counsel’s argument that

the calmness with which the appellant went about

packing items from the house while the deceased lay

dying also confirms the presence of malice

aforethought in his actions.

2.2.3 Our Decision

2.2.3.1 Our position on this ground is this: the appellant was

the only witness who gave to the court an eye witness

account of what happened in the house that fateful

night. The arguments that have been advanced on

behalf of the appellant would be very valid if the

appellant’s account had been accepted and found as

a fact by the judge. But to the contrary the trial judge

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rejected that explanation. That obviously is an issue

that goes to the credibility of the appellant. In the

case of Kenmuir v Hatting{1) we held:

“ where questions of credibility are involved an

appellate court which has not had the advantage of
seeing and hearing the witness will not interfere
with the findings of fact made by the trial judge
unless it is clearly shown that he had fallen into
error”.

2.2.3.2 We have followed that rule in subsequent cases, one

of which is Malawo v Bulk Carriers of Zambia

Limited(2). In this case it cannot be said that the

learned judge fell into error when she rejected the

appellant’s version because she meticulously

weighed that version as against the real evidence that

was gathered at the scene of crime. She found that

the latter evidence seriously contradicted the

appellant’s version of the events. For instance, in the

appellant’s version, the deceased was said to have

pointed a gun at the appellant. Yet no gun was found

at the scene, or in the whole of the house. The

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appellant also said that he merely pushed the

deceased, who then fell down the stairs and was

injured. Yet an examination of the wounds on the

deceased’s body revealed that the deceased was

assaulted with a very sharp object. These, among

others, are the pieces of evidence upon which the

learned judge rejected the appellant’s version of

events.

2.2.3.3. For the foregoing reasons we have no cause for

interfering with her findings of fact. In our view, the

first ground must fail.

2.3 Ground Two

2.3.1 Our Decision

2.3.1.1 The second ground is couched as follows;

“The learned trial court erred in law and in fact by

neglecting to consider the defence of self-defence and also
by rejecting the appellant’s explanation as it could
reasonably be true.”

2.3.1.2 In view of what we have said in the first ground of

appeal, the second ground is bound to fail as well; and so

we shall deal with it summarily. The reason that this

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ground is doomed is because the issue of self-defence

could only be sustained by the testimony of the appellant,

which suggested that the deceased had pointed a gun at

him and that he only pushed the appellant in order to

escape. However, the real evidence gathered at the scene

revealed a different position. We have said that the learned

judge cannot be faulted regarding how she arrived at

rejecting the appellant’s explanation. So, once the trial

judge rejected the appellant’s explanation of the events,

the defence put forward by the appellant had no leg to

stand on. This ground, therefore, fails.

2.4 Ground Three

2.4.1 The Appellant's argument

2.4.1.1 In the third ground of appeal, the appellant’s

argument is that, notwithstanding that the appellant

had not relied on intoxication as a defence, it was a

fact that the appellant had been drinking before the

incident. It has been argued that this should have

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been treated by the learned judge as an extenuating

circumstance. The case of Whiteson Simusokwe v

The People(3) and Jack Chanda & Another v The

People(4) were cited in support of this submission.

2A.2 The prosecution's argument

2.4.2.1 On behalf of the State, learned counsel urges us to

dismiss this ground because the facts of the case did

not disclose any extenuating circumstances that

could arise from drunkenness. To support that

submission, counsel referred us to our decision in

the case of Jose Antonio Golliadi v The People(5)

and in particular to the following passage therein:

“We must emphasize that the trial courts must be

wary of finding drunkenness in every case where the
offence is committed at a drinking place or where
the accused claims he was drinking or was drunk. It
is important to consider peculiar facts instead of
applying drunkenness as an extenuating
circumstance in every single case, which would lead
to injustice”

2.4.2.2. Learned counsel referred us to the conduct of the

appellant at the time of the commission of the

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offence. She pointed out that the appellant used a

sharp instrument to hit the deceased. She

submitted further that, after the assault, the

appellant exhibited total composure as he packed

items from the house and left the scene of crime with

the deceased’s vehicle. It is counsel’s argument that,

in such circumstances, it would be an injustice to

apply drunkenness as an extenuating circumstance.

2.4.1 Our Decision

2.4.1.1 We must first point out that the case of Whiteson

Simusokwe v The People(3) lays down the principle

that a person who is in a stable relationship of

intimacy might have the benefit of the defence of

provocation in instances of infidelity. The evidence in

this case, including the testimony of the appellant,

did not reveal any fact of infidelity which would

provoke the appellant. In the circumstances we do

not see the relevance of that authority to the facts of

the case.
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2.4.1.2 As regards the submission that the evidence of

drinking should have availed the appellant an

extenuating circumstance, we are greatly persuaded

by the arguments by learned counsel for the state.

Indeed, we reiterate what we said in the passage that

counsel has referred us from the case of Jose

Antonio Golliadi v The People, that whether or not

drunkenness will provide extenuating circumstances

must be determined from the peculiar facts of each

case. The rationale behind the principle that

drunkenness may in an appropriate case provide

extenuating circumstances is that, in certain cases,

it is clear to see from the evidence that the drunken

circumstances surrounding the occasion may have

partially impaired the reasoning of the people

involved. That impairment may not be of the level

that may afford an accused person a complete

defence of intoxication, but it does reduce his moral

culpability.
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2.4.1.3 So, where the evidence reveals that, notwithstanding

that alcohol has been consumed on a particular

occasion, an accused person during the commission

of the murder exhibits composure, alertness and

presence of mind regarding his actions then it cannot

be said that such person’s reasoning has been

impaired at all; and it cannot therefore be said that

the evidence of drinking would constitute an

extenuating circumstance.

2.4.1.4 In this case the composure which the appellant

exhibited when he packed household items and left

the scene is a fact which the learned trial judge

noted; and was one of the reasons why she found that

malice aforethought was present. That fact, in our

view, negatives any suggestion that the appellant’s

reasoning may have been impaired by the alcohol

that he had taken earlier that evening and,

consequently, the question of drunkenness being an

extenuating circumstance does not even arise.

Ground three clearly, cannot succeed.

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3.0 Conclusion

3.1 All in all, this appeal has no merit. We dismiss it.

..
E.M. Hdtmaundu
SUPREME COURT JUDGE

C. Kaji: ga
SUPREME COURT JUDGE

J. Chinyama
SUPREME COURT JUDGE