Isaac Chulu v The People (APPEAL NO: 69 2024) [2025] ZMCA 113 (20 August 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO:69 2024 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: ISAAC CHULU AND THE PEOPLE I L REGISTRY ,. APPELLANT RESPONDENT Coram: Mchenga DJP, Majula and Muzenga, JJA 12th August, 2025 and 20th August, 2025 For the Appellant: W. Mwandila, OMM Banda & Co. For the Respondent: M. Chilufya, Principal State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court Cases referred to: 1. R v. Moloney [1985] 1 ALL ER 1025 2. The People v. Njobvu [1968] Z. R. 132 3. Augustine Kapembwa v. Danny Maimbolwa and Attorney General, SCZ Judgment No. 4 of 1981 4 . Fredrick Mulusa and Others v. The People, SCZ Appeal No . 52 of 2017 5. 6. Simutenda v. The People [1975] Z. R. 294 Lubendae v. The People [1983] Z. R. 54 7. Donald Fumbelo v. The People, SCZ Appeal No. 276 of 20 13 8. Esther Mwiimbe v. The People [1986] Z. R. 15 J2 9 . Jack Chanda and Kenneth Chanda v. The People, SCZ Appeal No . 19-20 of 2002 10. Precious Longwe v. The People, CAZ Appeal No. 182 of 11. Tshiabu Quibila Benos v. The People, CAZ Appeal No. 201 of 12. Kazembe Zulu v. The People, SCZ Judgment No. 29 of 2015 13. Dorcas Kasenge v. The People, CAZ Appeal No. 124 of 2018 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION 1.1 The appellant appeared before the High Court (C. C. Zulu, J.), charged with the offence of murder contrary to Section 200 of the Penal Code. 1.2 He denied the charge and the matter proceeded to trial. At the end of the trial, he was convicted for committing the offence and condemned to suffer imprisonment, for the rest of his life. 1.3 He has appealed against both his conviction and the sentence imposed on him. 2 .0 CASE BEFORE THE TRIAL JUDGE 2.1 On 18th January 2022, Modai Mwambazi, the appellant's wife, called her father and requested him to r emain home because h er husband was returning her, to her parent's house. The J3 appellant and his wife, were experiencing difficulties in their marriage at the time. 2.2 They travelled from Katete where they were staying, in the company of the appellant's cousin, Chisomo Luo and a marriage counsellor. 2.3 At about 18:00 hours, they arrived at Modai's father's house in Lusaka. the appellant entered the house, but declined to accept the seat that he was offered. 2.4 Instead, he went near his father in law and knelt. He informed his father in law that he had returned his wife and thanked him for the cordial relationship that they had enjoyed. He then walked out of the house. The marriage counsellor remained inside the house. 2.5 According to Katai Mwambazi, Modai's sister, her sister followed her husband outside the house and got two phones from the car they had travelled in from Katete. The two started struggling over the phones, but Modai was able retain the phones which she handed over to the sister. 2.6 The appellant got into the car and retrieved a gun. He then shot his wife who was trying to flee. 2. 7 Chisomo Luo's version of what happened, was that when Modai J4 came to the car in which he was sitting with the appellant, she held on to the steering wheel and asked for her phones. They then started struggling. 2.8 The appellant opened the car's door and told his wife who was standing outside, that he was going to shoot her. He then released the safety catch and fired the gun. His wife fell to the ground and they got into the car and left. 2. 9 The appellant's version of the event was that as they were about to leave his father-in-law's house, his wife came and held on to the steering wheel of the vehicle, saying he should not run away. They then started quarrelling. 2.10 He produced the gun to scare her into .letting go of the steering wheel, but unfortunately it discharged. They then drove away and returned to Katete, where, he surrendered himself to the police the following day. 2 . 11 Modai was rushed to the hospital after the shooting. She was pronounced dead soon after arriving. 3.0 FINDINGS BY THE TRIAL JUDGE 3 . 1 The trial Judge found that it was common cause that Modai died after suffering a gunsh ot to the head at the hands of the appellant. JS 3.2 She considered the circumstances surrounding the shooting as given by Katai and Chisomo on one hand, and the appellant, on the other hand. 3 .3 She rejected the appellant's claim that the gun discharged by accident, after accepting the evidence of the prosecution witnesses that before the s h ooting, the appellant told his wife that he was going to shoot her. He then released the safety catch and discharged the gun. 3 .4 The trial Judge also found that the appellant's claim that the gun discharged on its own, was an afterthought, because it was not suggested to the prosecution witnesses. 3 .5 Finally, the trial Judge found that the charge of murder was proved because the appellant had malice aforethought, when he discharged the gun. 4.0 GROUNDS OF APPEAL 4.1 On behalf of the appellant, Mr. Mwandila has advanced three grounds in support of this appeal. The three grounds raise two lSSUes. 4.2 The first issue is that malice aforethought was not proved, and that being the case, the appellant should have been convicted of the offence of manslaughter, and not murder. J6 4.3 The second issue relates to the sentence. It is contended that in the event that we find that the charge of murder was proved, there were extenuating circumstances that warranted the imposition of a sentence other than the mandatory life imprisonment. 5.0 APPEAL AGAINST CONVICTION 5 . 1 In support of the argument that the charge of murder was not proved because malice aforethought was not established, Mr. M wandila ref erred to Section 204 of the Penal Code and the cases of R v . Moloney 1 and The People v . Njovu2 • 5.2 He then submitted that the appellant had no intention to kill his wife because he travelled all the way from Katete to return her to her parents. He had no prior intention to kill her and everything that happened was spontaneous. 5 .3 Mr. Mwandila also submitted that had the trial Judge taken into account the appellant's state of mind at the time he shot his wife, she would have come to the conclusion that his wife's provocative conduct influenced the manner in which he acted. 5.4 Further, Mr. Mwandila submitted that Modai's provocative conduct towards the appellant was cumulative, as it started on their way to Lusaka. He then referred to the cases of Fredrick J7 Mulusa and Others v. The People3 and Simutenda v. The People4 , and Section 205 of the Penal Code, and submitted that her final provocative act was the grabbing of the steering wheel and the appellant's retaliation was not disproportionate, because the firearm was the article that was nearest to h im. 5.5 Finally, Mr. Mwandila referred to the case of Kapembwa v . Danny Maimbolwa and the Attorney General5 , and submitted that although the trial Judge made a finding that the appellant was not provoked, as an appellate court, we can set aside that finding because the trial Judge did not assess all the evidence before her when arriving at that conclusion. 5.6 In response to the appeal against conviction, Ms. Chilufya submitted that the evidence on record shows that the appellant had the intention to shoot h is wife . 5 . 7 She argued that before shooting h er, he told her that he was going to shoot her, and he proceeded to release the safety catch on the gun. He then shot her as she was attempting to flee . 5.8 Ms. Chilufya then referred to the case of The People v. Njovu2 and submitted that the killing was a murder because the appellant had th e inten tion to cause death at the time he shot his wife. His action was not spontaneous as has been suggested. JS 5. 9 As regards the availability of the defence of provocation, Ms. Chilufya referred to the case of Simutenda v . The People4 and submitted that the three elements required to establish the defence, were not proved. 5 . 10 Further, she referred to the case of Lubendae v . The People6 and submitted that the defence of provocation is only available where the provocative conduct is by the deceased person. 5 . 11 Ms . Chilufya pointed out that in this case, the provocative conduct actually emanated from the appellant. The couple travelled to Lusaka because he was in the habit of assaulting his wife. On the material day, the struggle that preceded the shooting was at his instance because he was trying to stop her from getting her phones. 5 . 12 Finally, Ms. Chilufya referred to the case of Donald Fumbelo v . The People 7, and submitted that the trial Judge was entitled to reject the appellant's claim that the gun discharged by accident because it was raised for the first time during his defence. 5.13 Mr. Mwandila was correct when he submitted that as an appellate court, we can tamper with findings of fact by a trial court. However, that power is limited to cases where the finding J9 1s not supported by the evidence or was arrived at without consideration of material evidence that was before the court. 5.14 In this case, Mr. Mwandila has raised issue with the finding that the appellant had malice aforethought, when he shot his wife. The trial Judge came to that conclusion after accepting Katai and Chisomo account of what happened. 5.15 In view of the appellant's testimony that the discharge of the firearm was unintentional only being raised in his defence , the trial Judge was entitled to follow the holding in the case of Donald Fumbelo v. The People 7 , and come to the conclusion that the claim was an afterthought. 5.16 The combined evidence of Katai and Chisomo was that the appellant threaten ed to shot his wife; disabled the safety catch; and then shot his wife who was trying to leave. 5.17 The fact that the appellant shot his wife when she was about to leave is confirmed by the postmortem report that shows that the bullet crossed the rear part of the head from one side to the other. 5.18 In arguing that the trial Judge failed to take into account the cumulative provocation, Mr. Mwandila made reference to Modai's conduct previously and on their way to Lusaka. JlO 5.19 In the case of Esther Mwiimbe v . The People 8 , it was held that evidence of cumulative provocation, in the absence of immediate provocation cannot suffice to establish the three vital elements for the defence of provocation to stand. Consequently, we must first consider whether Modai proffered any provocation at the time she was shot. 5 .20 In the case of The People v . Njovu2 it was held that for conduct to be provocative, the act must be some wrongful act or insult, of such a nature as to be likely, when offered or done to an ordinary person of the community to which the accused belongs, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered. 5 .21 In this case, the appellant claims that his wife acted provocatively when she held on to the steering wheel. The evidence accepted by the trial Judge is that she was walking away when he shot her. In any case, we do not think that a wife who holds on to the steering wheel of a husband's car, can be said to have acted in a manner that is so provocative as to warrant being shot. Jll 5.22 It is therefore our view that the Modai's conduct fell far short of what Section 205 of the Penal Code envisages as being provocative conduct. 5.23 A charge of murder can be reduced to manslaughter either because the defence of provocation has been successfully raised, or where it is found that the act that caused death was unlawful, but not one that was likely to cause death or grievous harm. 5.24 We have just indicated that the defence of provocation was not available to the appellant. This being the case, the charge of murder cannot be reduced to manslaughter on account of there being provocation. 5 .25 We equally find that the charge of murder cannot be reduced to manslaughter on account of the appellant's unlawful conduct. This is because the shooting of Modai in the head, was intended to cause death or grievous harm. 5.26 Consequently, we find that the trial Judge rightly found that the offence that the appellant committed was murder and not manslaughter, because he had malice aforethought. This is on account of his intention to cause death or grievous harm. J12 5.27 The effect of this conclusion, is that we find no merits in the appeal against conviction and we dismiss it. 6.0 APPEAL AGAINST SENTENCE 6.1 In support of the proposition that there where extenuating circumstances, Mr. Mwandila referred to the cases Jack Chanda and Kenneth Chanda v. The People9 , Precious Longwe v. The People 10 and Tshiabu Quibila Benos v. The People 11 , and submitted that should we find that the defence of provocation was not available, a failed defence of provocation can amount to an extenuating circumstance. 6.2 In response to the argument that there were extenuating circumstances because of the failed defence of provocation, Ms . Chilufya referred to the cases of Kazembe Zulu v. The People 12 and Dorcas Kasenga v. The People 1 3 , and submitted that in the absence of evidence of provocative conduct, there was no evidence of a failed defence of provocation, on which extenuating circumstances can be premised. 6.3 Earlier on, we indicated that the evidence before the trial Judge did not point at any evidence of provocative conduct on the part of the appellant's wife in terms of section 205 of the Penal Code and as interpreted in the case of The People v. Njovu2 . J l 3 6.4 This being the case, we agree with Ms. Chilufya that there was no failed defence of provocation, on which extenuating circumstances could be premised. 6 .5 The appeal against sentence fails. 7.0 VERDICT 7.1 We find that the appeal against both conviction and sentence has no merit and we dismiss it. 7.2 We confirm the appellant's conviction and the sentence imposed on him by the High Court. DEPUTY JUDGE P r ? 0 AUG 2025 l B. M. MaJula COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE