Chipango Likwita v The People (APPEAL NO. 126/2023) [2024] ZMCA 327 (4 November 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 126/2023 HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: 0 /, ' ' : ,I . .. . 'J ; /1 t..v .,_ ' CHIPANGO LIKWITA APPELLANT AND THE PEOPLE RESPONDENT CORAM: NGULUBE, MUZENGA AND CHEMBE, JJA. On 14th October, 2024 and 4 th November, 2024. For the Appellant: Mr. H. M. Mweemba, Director, Legal Aid Board For the Respondent: Mr. F. M. Sikazwe, Acting Deputy Chief State Advocate National Prosecution Authority JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. Matongo vs The People (1974) Z. R. 164 2. 3. 4. Frank Njenjema vs The People - CAZ Appeal No. 165/ 2022 Ndonda Daka vs The People - Appeal No. 24/ 2022 Daimon Lungu vs The People (1977) Z. R. 208 5. Mubiana Inanga vs The People Court of Appeal Judgment Number 153 of 2018 6. Amadi Phiri vs The People (Appeal 38 of 2018) (2018) ZMCA 353 7. Musonda vs The People (1976)ZR 215 Legislation referred to: 1. 2. The Penal Code, Chapter 87 of the Laws of Zambia. The Road Traffic Act Number 11 of 2002 of the Laws of Zambia 1.0 INTRODUCTION 1.1 The appellant was convicted on an information containing one count of the offence of Causing Death by Dangerous Driving, Contrary to section 161(1) of the Road Traffic Act Number 11 of 2002 of the Laws of Zambia. 1.2 The particulars of the offence were that the appellant, on 14 April, 2022 at Nkeyema, in the Western Province of the Republic of Zambia, caused the death of Muyunda Simachula by driving a motor vehicle, Hino Ranger Truck, Registration Number BAV 440ZM, on a public road, in a manner which was dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road and the -J2- amount of traffic which was actually present at the time or might reasonably be expected to be on the road. 1.3 When called upon to plead, the appellant pleaded guilty to the charge and admitted the facts that were read by the prosecution. 1.4 The facts before the court were that on 14 April, 2022, at about 06:00 hours, the appellant was driving a motor vehicle Hino Ranger Light Truck Registration Number BAV 440 along the Kaoma - Lusaka Road, a public road. Muyunda Simachula was a passenger on the said light truck. The appellant reversed the motor vehicle and hit into a pavement and in the process, he lost control of the motor vehicle. This resulted in Muyunda Samachula falling off the vehicle and he sustained abdominal injuries. He was rushed to the hospital where he was certified dead upon arrival. 1. 5 A postmortem examination that was conducted on the body of the deceased at Kaoma District Hospital by a Government Medical Doctor revealed that the cause of death was intra-abdominal bleeding due to abdominal trauma. -J3- 1.6 The appellant was subsequently charged and arrested for the subject offence upon his plea of guilty and admission of the facts , the appellant was sentenced to six months simple imprisonment. 2.0 THE APPEAL 2. 1 Dissatisfied with the sentence imposed by the lower Court, the appellant appealed to this Court, advancing his sole ground of appeal- 1. The learned trial Judge erred in law and in fact by sentencing the appellant to six imprisonment, when a fine was appropriate under the circumstances of the case. 3.0 HEADS OF ARGUMENT 3.1 Counsel for the appellant filed Heads of Argument. Counsel submitted that the appellant deserved leniency because he was a first offender who readily pleaded guilty. It was submitted that the circumstances of this case did not reveal aggravating factors. 3 .2 Counsel pointed out that the facts show that the accident occurred when the deceased fell off the vehicle which the appellant was driving. That this occurred when the appellant -J4- reversed his vehicle and hit into a ridge by the road, after which the deceased fell from the impact. 3.3 In arguing that a custodial sentence should only be imposed in cases where there is recklessness or willful disregard for safety of other road users, reference was made to the case of Matongo vs The Peop le.1 3.4 Counsel accordingly argued that no recklessness or wilful neglect could be inferred from the circumstances of this case and therefore the lower Court should have imposed a fine instead of a custodial sentence. To buttress this argument further, reference was made to the cases of Frank Njenjema vs The People,2 Ndonda Daka vs The People, 3 and Daimon Lungu vs The People. 4 We were urged to allow the appeal as the custodial sentence was harsh and inappropriate for a first offender who pleaded guilty. 4.0 THE HEARING 4. 1 At the hearing, the Learned Director of Legal Aid, on behalf of the appellant submitted that he would rely on the ground of appeal and heads of arguments filed. We were urged to allow the appeal, -JS- quash the sentence and mete out an appropriate fine, 1n the circumstances of the case. 4.2 Mr. Sikazwe, Deputy Chief State Advocate informed the court that he would make viva voce arguments on behalf of the State. Mr. Sikazwe informed the court that he was not in support of the conviction. He argued that the trial court did not give reasons why it imposed a custodial sentence. Reference was made to our decision in the case of Mubiana Inanga vs The People5 where this court stated that- "We are alive to the fact that a first offender who has readily pleaded guilty is entitled to leniency where there is an option of a fine, he ought to be fined." 4 . 3 Reference was further made to the case of Amadi Phiri vs The People6 , in which the Supreme Court decision of Solomon Chilima was followed . 4.4 It was submitted that there were no aggravating circumstances in this matter and we were urged to quash the custodial sentence, and in its place, impose an appropriate fine. -J6- 5.0 DECISION OF THE COURT 5.1 We have considered the record and the sentence that the lower court imposed on the appellant. The appeal is solely against sentence since the appellant pleaded guilty to the offence of Causing Death by Dangerous Driving in the lower court. 5.2 In the case of Musonda vs The People7 it was held that- "Where the legislature has provided for a fine as well as imprisonment, it is traditional to impose a fine on a first offender rather than to inflict a custodial term especially where the offender has come to court for the first time and he has pleaded guilty." 5 .3 In the case of Matongo vs The People (supra), the court held that a custodial sentence should only be imposed in the case of a first offender where it is clear that there has been reckless or willful disregard for safety. 5.4 The circumstances of this case are that the appellant was a first off ender and we are of the view that the lower court did not pronounce itself on what the aggravating factors in the matter were . 5. 5 In our view, there are no factors that are aggravating in this matter. We are further of the opinion that the custodial s e ntence -J7- that was imposed was inappropriate in the circumstances. We accordingly quash the custodial sentence and sentence the appellant to pay a fine of Kl ,500.00. In default, the appellant shall serve a sentence of six months simple imprisonment. We order accordingly. P. C. M . NGULUBE COURT OF APPEAL JUDGE ........ -s:t~GA ........ . COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE -J8-