Leonard Nyirongo v The People (Appeal No . 67/2023) (26 February 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 67/2023 HOLDEN AT LUSAKA AND NDOLA (CRIMINAL JURISDICTION) 3ETWEEN: LEONARD NYIRONGO APPELLANT 2 6 FEB "O?S AND INALREGIS1' 'fHE PEOPLE RESPONDENT CORAM: Mchenga DJP, Muzenga and Chembe, JJA On: 30th April 2024, 14th November 2024 and 26th February 2025 For the Appellant: A. Chimimba-Banda, Legal Aid Counsel, Legal Aid Board For the Respondent: Mwila, State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to: l . Tembo V . The Peopl e [1976] Z. R. 332 2 . Jack Chanda and Kennedy Chanda v . The People [2002] Z.R. 124 3 . Lubendae v . The People [1983] Z.R. 54 4. Jose Antonio Golliadi v . The People, SCZ Appeal No . 26 of 2017 Legislation referred to: l . The Penal Code, Chapter 87 of the Laws of Zambia J2 1 . 0 INTRODUCTION 1 .1 The appellant appeared before the High Court charged with the offence of murder contrary to Section 200 of the Penal Code. He denied the charge and the matter proceeded to trial . 1.2 At the end of the trial, he was found guilty of committing the offence and condemned to suffer capital punishment . 1 .3 He has appealed against the conviction and in the alternative, the sentence . 2 .0 CASE BEFORE THE TRIAL COURT 2 .1 On the 2nd October 2021, the appellant' s father found him beating his wife at their house in Lambwe Village, in Lumezi . The appellant threatened his father when he attempted to intervene . 2 .2 The appell ant' s father described him as being very drunk at the time. 2.3 The appellant' s father went to the house of the Maupo Mtonga, i n a neighbouring village, to seek assistance. When Maupo Mtonga arrived at the appell ant' s house, the appellant invited him to go and see the ' animal ' that he had killed. He led Maupo J3 Mtonga to his wife, who was totally naked and injured. 2.4 At that point, Maupo Mtonga with the help of other persons, apprehended the appellant . He resisted the apprehension but they managed to restrain him with some fibre . 2 . 5 The appellant' s wife was taken to the hospital where she was declared dead. A post-mortem attributed her death to severe head injury and intracerebral bleeding . 2 . 6 In his defence the appellant testified that on the material day he drank kachasu, while herding cattle. The next thing he could remember, was reaching home and being apprehended by Maupo Mtonga for having killed his wife. 2 .7 In his cross examination, he testified that he reached home around 17 :30 . He also said he was drinking at a village about 2 kilometres from his home . He admitted being able to direct the cattle to the kraal and being able to identify the person who apprehended him. J4 2 .8 The appellant' s father also led evidence that the appellant had a history of being violent towards his wife when drunk. There had been several attempts to dissolve the marriage because of this conduct . 2 . 9 The trial judge rejected the appellant' s defence of intoxication. She found that even though t he appellant had drunk kachasu, there was evidence that he was able to remember everything that happened that evening, except beating his wife and threatening his father . 2 .lO The trial Judge took the view that on the evi dence before her, there was no basis on which she could find that the appellant was so intoxicated that he did not know what he was doing, at the time he killed his wife. 2 .ll She also found that there were no extenuating circumstances . 3 .0 GROUNDS OF APPEAL AND ARGUMENTS IN SUPPORT 3 .1 Two grounds have been advanced in support of the appeal . The first is that the trial Judge erred in law and in fact , when she discounted the defence of intoxication . JS 3 .2 The second ground of appeal , which is in the alternat ive to the first , is that should we find that the trial Judge rightly found that the defence of intoxication had not been established, there was evidence of drinking, which amounted to an extenuating circumstance . 3 . 3 In support of the 1st ground of appeal, the case of Tembo v. The People1 was ref erred to and it was , submitted that i n the face of prosecution evidence that the appellant was very drunk, the trial Judge should have found that the defence of intoxication was available to him. This is because being very drunk, rendered him incapable of forming the intention to commit the offence of murder . 3.4 As for the second ground of appeal, counsel submitted that should we find that the defence of intoxication was not available, we can still find that the consumption of alcohol amounted to extenuating circumstances, in terms of section 201 of the Penal Code. J6 3 .5 The case of Jack Chanda and Kennedy Chanda v. The People2 was referred to and it was submitted that evidence of drinking diminished morally, the degree of his guilt . 3 .6 At the time of writing this judgment, the respondent had not filed in any submissions, as directed at the hearing. 4 .0 CONSIDERATION OF APPEAL AND DECISION OF THE COURT 4 .1 Section 13 of the Penal Code, which sets out the defence of intoxication, reads as follows : (1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge. (2) Intoxication shall be a defence to any criminal charge if, by reason thereof, the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and- (a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or (b) the person charged was by r eason of intoxication insane, temporarily or otherwise, at the time of such act or omission. J7 (3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused person shall be discharged, and in a case falling under paragraph (b) the provisions of section one hundred and sixty-seven of the Criminal Procedure Code relating to insanity shall apply. (4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. (5) For the purposes of this section, "intoxication" shall be deemed to include a state produced by narcotics or drugs . 4 .2 In the case of Lubendae v . The People3 the Supreme , Court held that ' evidence of heavy drinking, even to the extent affecting the co- ordination of reflexes is insufficient i n itself to raise question of intent unless the accused person ' s capacities were affected to the extent that he may not have been able to form the necessary intent'. 4.3 Delivering the judgment of the court in that case, and commenting on prosecution evidence that the appellant had been drinking, at page 56, Chief Justice Silungwe pointed out the following : "This evidence is supportive of that given by the appellant himself. Nevertheless evidence of the JS appellant's drinking is not in itself beneficial to him as there is nothing in it to suggest that his capacities may have been affected to such an extent as to render him unable to form the necessary intent. This being so, and, subject to the trial courts misdirection (which we shall now discuss) the appellant would stand no chance whatsoever of succeeding on this ground." 4 .4 Going by the decision in Lubendae v. The People3 for , the defence of intoxication, under Section 13 of the Penal Code to succeed, in addi tion to leading evidence of drinking, evidence must be led establishing that the drinking affected appellant' s capabilities and rendered him incapable of forming the int ention to commit the offence of murder, because he did not know what he was doing. 4 .5 In this case, the evidence before the court does not suggest that t hat was the case . The appell ant ' s evidence was that he could not remember what happened that evening, all he remembered was being apprehended for killing his wife. 4 . 6 Despite the appellant appearing to be very drunk, there is evidence that he was still in control of his faculties . He was able to lead the cattle he was J9 herding to a stream to drink and thereafter to the kraal where he successfully secured them. 4 .7 He threatened his father when he attempted to intervene and when Maupo Mtonga turned up, he led him to his wife saying he wanted him to see the animal t hat he had killed. Finally, he resisted his apprehension. 4 .8 On the basis of this evidence, it is our view that the trial Judge was entitled to conclude that the appellant was conveniently u~able to recall the assault on his wife but remembered the events prior to, and after it . 4.9 She was equally entitled to cone to the conclusion that the appellant was not so drunk that he did not know what he was doing . 4.l0 Consequently, we find no merits i n the first ground of appeal and find that the trial Judge rightly came to the conclusion that the defence of intoxication was not available to the appell ant . 4.11 As regards the second ground of appeal, which relates to the sentence, in the case of Jose Antonio Golliadi v. The People4 the following was pointed out by the , JlO Supreme Court, on intoxication, as an extenuating circumstance: "We must emphasize that trial courts must be wary of finding drunkenness as an extenuating circumstance 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 the peculiar facts instead of applying drunkenness as an extenuating circumstance in every single case which would lead to injustice" 4 .12 In this case there is evidence that the appellant had a history of being violent to his wife after taking alcohol . Because of this violence, his wife had pushed for the dissolution of the marriage. These attempts fell through because her parents urged her to hang on . 4.13 As pointed out ear lier on, on the day the appellant murdered his wife, he turned up drunk in his village, secured the cattle he was herdi ng in a kraal , and proceeded to assault his wife . The reasons for the assault are unknown as he conveniently claimed that he could not remember what happened. ., Jll 4.14 Even if there was evidence of drinking. It falls short of evidence of drinking that would support the defence of intoxication or amount to an extenuating circumstance . 5 . 0 VERDICT 5.1 Both grounds of appeal having failed, we dismiss this appeal and uphold the appellant' s conviction on the charge of murder sentence imposed on him. DE bid ....................c ;;= .............. 2 6 FEB "025 I REGI ····-~·-················· K. Muzenga Y. Chembe COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE