Nyambe Namushi v The People (Appeal No. 68/2024) [2025] ZMCA 107 (19 August 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) Appeal No. 68/ 2024 BETWEEN : NYAMBE NAMUSHI APPELLANT AND THE PEOPLE ,.. 1 9 RESPONDENT CORAM: Mchenga, DJP, Majula and Muzenga JJA On 12th August 2025 and 19th August 2025 For the Appellant: Mr. Silumesi Muchula, Kasama Chambers & Ms. M. Nzala, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Ms. M. Chilufya, Principal State Advocate & Ms. N. Mwansa, State Advocate, National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Roselyn Thand iwe Zulu v. The People (1980) Z. R. 341 2. Precious Longwe v. The People, CAZ Appea l No. 182 of 2017 3. Tshiabu Quibila Benos v. The People, CAZ Appeal No. 201 of 2020 4. Livay Mweene v. The People, CAZ Appeal No. 86 of 2020 s. Davy Sikaumbwe v. The People, CAZ Appeal No. 61 of 2020 6. Penga Gumbwe v. The People, CAZ Appeal No. 151 of 2020 Statutes Referred to 1. The Penal Code, Chapter 87 of the Laws of Zambia J2 1.0. INTRODUCTION 1.1. The appellant was convicted of t he offence of murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia by Maka, J and sentenced to life imprisonment. 1.2. Th e particulars of the offence alleged that on 15th July 2022 at Kaoma in the Kaoma District of the Western Province of the Republic of Zambia, the appellant murdered Nasilele Namushi. 1.3. He appeals against his conviction. 2.0. EVIDENCE IN THE COURT BELOW 2.1. The evidence of four prosecution witnesses secured t he conviction of the appellant. A summary of the prosecution evidence as presented in the court below was that on 15th July 2022, the appellant met PW1 at a school in Shibandanga and proposed love to her but she declined stating that she was already seeing Nasilele Namush i, the deceased, with whom she had a ch ild aged 1 year 7 months. The appellant did not accept the rejection and insisted that he would make sure he had sex with her. PW1 and her friends le~ t he school to go to the village around 22:00 hours and they got home around 23:00 hours. On getting home, PW1 organised the th ree children at home so that they cou ld ret ire to bed. To PW1's dismay, the appellant came into the one roomed house. PW1 asked the appellant what he wanted and he told her that he had followed her. As PW1 and the appellant were arguing, the deceased arrived. J3 2.2. On seeing the appellant, t he deceased exclaimed, "you are the one spoiling my child, I have found you today." The deceased closed and fastened the door from outside using a rubber. The appellant started struggling with the door. Scared that a fight might ensue, PWl shouted out to the people. The appellant managed to cut the rubber used to tie the door. When the appellant went out, the deceased was standing by the entrance and PWl also went out to let the people know what was happening. PWl went to inform her brother Moyo Moyo (PW2) of the scuffle between the deceased and the appellant, and later went to inform her aunt. However PW2 never mentioned the fact that he was called or informed about the incident by PWl. He stated that he went there on his own alter hearing a shout from the deceased saying, "rush, come here, Jimmy has stabbed me. " PW2 rushed to PWl's house and found that blood was oozing from the deceased's throat. The deceased told PW2 that Jimmy had stabbed him, and soon therealter he died. At the time PW2 got to PWl's house, he found PWl in the house. PWl on the other hand stated that she was not there and on her return to her house, she found PW2 holding Nasilele's head. She observed an injury in front of the deceased's neck. By the time the vil lagers gathered, they found the deceased had already died. A search for the appellant was then launched and he was apprehended the following morning at his village, where he was found cutting grass. J4 2.3. When apprehended, the appellant first denied killing the deceased but started crying and admitted in the presence of the villagers who were enraged and almost beat him up that he was the one who killed the deceased. He was asked what he used in killing the deceased and he told them he used a knife which he removed from his waist and showed the people. The trial Court excluded this evidence of admission. The matter was reported to Kaoma Police. 2.4. A post-mortem examination was conducted and it was found that the cause of death was haemorrhage due to sectioned carotid artery. 2.5. This marked the end of the prosecution evidence. The appellant was found with a case to answer and he was put on his defence. 3.0. DEFENCE 3.1. In his defence, the appellant's evidence was that on 16th July 2022, he went to a school in Kaluwe village where he met PWl. PWl asked him to go home with her but he refused, so she got his phone, his bag and bicycle. When he asked the people around where his things where, he was told they were collected by PWl. The appellant followed up PWl to collect his items he found she had locked the door. He knocked and PWl opened the door, he explained that he came to collect his items but PWl said she had taken them to her grandmother. At that time, the deceased also arrived and asked who was inside and PWl said there was no one. JS The deceased tied the door to the house and said whoever was inside the house would be killed. 3.2. Having heard that, the appellant got scared and decided to leave the house by pulling the door. When he came out, he met the deceased outside who hit him with a pounding stick and beat him up. In defending himself, he pushed the deceased, who fell down and the appellant fled from PWl's house and went to his home. In the morning, he went to tie his sister's grass where he was apprehended and taken to the scene of the crime. Some people beat him to prompt him to admit to killing the deceased. He was later ferried to Kaoma Police where he was informed that he had murdered someone. 3.3 . This marked the end of the appellant's defence. 4.0. FINDINGS AND DECISION OF THE TRIAL COURT 4.1. The learned trial court considered the evidence and found that the appellant had the requisite malice aforethought when he caused the death of the deceased and had no lawful justification. It was found that the circumstantial evidence in this matter was cogent and had taken the case out of the realm of conjecture with guilt being the only inference that could be drawn, coupled with the appellant's admission in the warn and caution statement that he stabbed the deceased with a knife. The trial court was of the considered view that the defence of provocation and self-defence were not available to the appellant as he denied J6 stabbing the deceased and his actions fell w ithin the ambit of Section 204 of the Penal Code. 4.2. The trial Court found that the prosecution had proved its case beyond all reasonable doubt and she went on to convict the appellant and sentenced him to life imprisonment. 5.0. GROUNDS OF APPEAL 5.1. Dejected with the conviction and sentence of the court below, the appellant launched the present appeal fronting one ground of appeal designed as follows: 1) The learned trial judge erred both in law and in fact when it held that the defense of self defence was not available to the appellant. 6.0. APPELLANT'S ARGUMENTS 6.1. In arguing the sole ground of appeal, the appellant submitted that the judge misdirected herself in holding that the defense of self-defence was not available to the appellant when the evidence on the record revealed that on the material day, the deceased found the appellant with PWl in her house and this angered the deceased who promised to kill whoever was in the house with the woman with whom he had a child. 6.2. It was argued that the evidence further on the record and exhibit P4 was that when the appellant managed to open the door he met the deceased who started beating him with a pounding stick, which beatings caused J7 him to retaliate and his actions amounted to self-defence believing that he was in imminent danger of death or serious bodily harm. 6.3. We were referred to Section 17 of the Penal Code Chapter 87 of the Laws of Zambia which provides that: "Subject to any other provisions of this code or any other law for the time being in force, a person shall not be criminally responsible for the use of force in repelling an unlawful attack upon his person or property, or the person or property of any other person, if the means he uses and the degree of force he employs in doing so are no more than is necessary in the circumstances to repel the unlawful attack." 6.4. Further reliance was placed on the case of Roselyn Thandiwe Zulu v. The People1 on self-defence. 6.5. In the alternative, the appella nt argued that the court may find extenuating circumstances if it finds that the force used by the appellant was excessive, resulting in a fai led defense of self-defence and set aside the sentence of li fe imprison ment. The appellant placed reliance on the cases of Precious Longwe v. The People 2 and Tshiabu Quibila Benos v. The People3 for this proposition . 7.0. RESPONDENT'S ARGUMENTS 7.1. Learned counsel for the respondent submitted that the prosecution executed its burden of proving the case beyond all reasonable doubt. It was submitted that the record of proceedings at page 57 shows that the appellant denied ever stabbing the deceased, therefore defense of self defense is not available to the appellant as t he court below rightly found. The case of Livay Mweene v. The People4 was relied on. 7.2. It was further submitted that the evidence on record does not satisfy the legal requirements for self defense under Section 17 of the Penal Code. The respondent emphasized that in line with Section 17 and the case of Precious Longwe supra the following are the key elements for the defence : i) The force used must be necessary to repel the attack; ii) The degree of force must be proportionate to the threat; and iii) The accused must have had a reasonable belief in the imminent danger. 7.3. It was contended that the appellant did not meet the above elements in order to benefit from the defense of self defense as he failed to prove that the deceased being armed with a pounding stick suggested an intent to kill or posed an immediate threat of death or grievous harm. Further reliance was placed on the case of Davy Sikaumbwe v. The People5 . J9 7.4. It was counsel's further argument that the appellant's reliance on the cases of Rosalyn Thandiwe Zulu supra and Precious Longwe supra was misplaced, because in the case of Rosalyn Thandiwe Zulu the accused was faced with clear and immediate threat of serious injury when he was ambushed with a knife, leaving no opportunity for retreat. 7.5. Learned counsel submitted t hat while appellant argues that the court ought to find extenuating circumstances, the same are not available to the appellant as the nature of the injuries inflicted, the weapon used and t he cond uct of the appellant post-incident did not support any finding of diminished responsibility or mitigating factors. Reliance was placed on the case of Tshabu Quibila Benos supra. 7.6. Relying on Precious Longwe supra for the proposition that where excessive force was used, a failed defense of self defense may not necessarily amount to extenuating circumstances, counsel contended that the appellant failed to meet the legal threshold for self-defence, and failed to demonstrate any circumstances warranting a lesser sentence. 7.7. We were urged to dismiss the appeal in its entirety, affirm the conviction and uphold the sentence imposed by the lower court. 8 .0 . HEARING 8.1. At the hearing of this appeal, the learned cou nsel for the both appellant and the respondent informed the Court that they would rely on their fi led heads of argument and briefly augmented. JlO 9.0. DECISION OF THE COURT 9.1. We have carefully considered the evidence on the record, the heads of argument filed by counsel and the judgment appealed against. The issue in this appeal is whether self-defence is available to the appellant. 9.2. It is not in dispute that the appellant was found in the house of a lady who had an infant child with the deceased past 23 :00 hours by the deceased. It is further not in dispute that the deceased threatened to kill the appellant and proceeded to lock the door from outside. The appellant managed to force the door open and came out. The deceased was shortly found lying down outside with a stab wound on the neck, from which succumbed. 9.3. There is no one who saw the appellant stab the deceased. When the appellant took the stand, he denied stabbing the deceased, as he simply pushed him to wade off an attack on his person and escaped . This was contrary to what the appellant told the police in his warn and caution statement which was produced in evidence and marked P4. The trial court in relying on the circumstantial evidence and the admission by the appellant in the warn and caution statement that he stabbed the deceased, found that the circumstantial evidence was cogent. 9.4. The trial court, in relying on our decision in the case of Penga Gumbwe v. The People6, went further to reject the availability of self-defence because the appellant denied having stabbed the deceased. We wish to Jll advise trial courts that self-defence being a justification defence, an accuse person ordinarily needs to raise it by providing evidence "fit to be left to the jury", justifying his actions. In short, an accused person must admit having perpetrated the act in self-defence. However, the learned trial court erred when she dismissed the availability of the defence on the basis that the appellant denied stabbing the deceased. This is because there was confession evidence which was produced and admitted into evidence, which the trial Court itself used to find comfort in reaching a conviction based on the circumstantial evidence. 9.5. We wish to guide trial Courts that when a Court accepts a warn and caution statement (confession), that evidence (confession) supersedes other evidence and the Court is entitled to convict on it, without the need to look for some other evidence ( corroborative or otherwise, for example). We must note here that a correctly admitted confession can only be disregarded when it is clearly at variance with some other strong evidence on the record, alter a meticulous analysis of the evidence by the trial court, among other rules for exclusion of a wel l proven confession. 9.6. In casu, what the appellant said when he took the stand, denying stabbing the deceased was in direct conflict with what he said in the confession. Before using the appellant's refusal in court, the trial Court should have considered the two conflicting statements and stated the J12 reasons for accepting one over the other. We have no doubt that if the trial court properly directed its mind to the issue, it would have accepted the statement the appellant gave to the police. It is therefore clear that the appellant was under threats of being killed and was indeed assaulted after forcing his way out of PWl's house. This is what prompted the appellant to stab the deceased using a knife in self-defence. 9.7. Having said the foregoing, the only issue is whether the appellant used proportionate force to accord himself self-defence. In the absence of his detailed explanation on the attack on his person, what was used and the magnitude of the attack, it is difficult to conclude that resort to using a knife in stabbing the deceased on the throat was proportionate to justify self-defence. It is not in dispute that the appellant in his defence stated that when he forced himself out of the house, he was hit with a pounding stick by the deceased, prompting him to push the deceased to the ground and he escaped. This account was rejected by the trial Court and was at varian ce with his confession. We have no reason to interfere with the decision of the tria l court in this regard . In the circumstances we hold that self-defence cannot be successful on account of the use of excessive force. 9.8. Having found that the defence of self-defence has failed, we find that extenuating circumstances exist in line with our decision in the case of J13 Precious Longwe supra. To that extent, we find merit in the arguments by learned counsel for the appellant. 10.0. CONCLUSION 10.1. We therefore find no merit in the appeal against conviction. However, having found that there were extenuating circumstances, we set aside the sentence of life imprisonment. In its place, we impose a sentence of 20 years imprisonment with hard labour with effect from the 17th July 2022. .......... .r ~ f . ........ . ~-~ :· .. ~ ~ -~- """ ~ K. MUZENGA --· · ····· ·· ···· ··· ···· COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE