CRIMINAL PROCEDURE
1.
JURISDICTION OF THE COURTS
The courts (Criminal Jurisdiction) their functions,
Jurisdiction and Power

The term jurisdiction refers to the authority of a court
to:

Accept one to present a case before it

To decide on maters presented before it
o THE PEOPLE v DAUTI
TIYESANJE
PHIRI [1985] ZR 201
A court cannot acquit or convict in a case which it has
no jurisdiction to try.
o MIYANDA V THE HIGH COURT 1984 ZR 62
in Zambia it is set out in the legislation establishing
the court;

Law applicable see section 2(a) of the Penal Code
which recognises offences in legislation outside
the Code
o R v Morton Musonda 4 NRLR 246
a person can be charged with a common law
offence

Section 3 CPC offences in Penal Code and other
laws inquired into in accordance with the CPC
except in cases where there is specific procedure
1

Section 5 PC- court’s jurisdiction extends to every
place in Zambia

Section 65 CPC every court has jurisdiction
within local limits

Section 66 CPC usually where offence is
committed

Section 6 PC- also have extraterritorial jurisdiction
where:

Subsection(1) Zambian does something which
is a crime in Zambia - NGATI AND OTHERS V
THE PEOPLE 2003 ZR 100

Subsection(2) foreigners who partly commit
the
offence
in
Zambia
-
THE
PEOPLE
V
ROXBURGH 1972 ZR 31

LIPIMILE
AND
ANOTHER
MANAGEMENT [2008] 1ZR

v
MPULUNGU
HABOUR
252
Subsection(3) cannot be tried if convicted
and punished

Even where acquitted as Article 18(c)
of the constitution provides that a
person
tried
and
convicted
or
acquitted by competent court cannot be
tried again

Where legislation makes specific provision
2

Section
53
of
the
Financial
Intelligence Centre Act 46 of 2010

Section 91 of the Anti-Corruption Act
No.
3
of
jurisdiction
2012
of
–extraterritorial
Zambian
courts
for
offences under the act

Anti-terrorism
Act
21
of
2007
definition of terrorism includes acts
done in or outside the country.

Section 14 PC– criminal responsibility;

8 years old (absolute),

Between 8 and 12 years responsible if shown
that he knew that he ought not to do the
act or make the omission

R v F. C (A Juvenile) II NRLR 185
the
prosecution
must
show
through
their evidence that the accused person
knew that what he was doing was wrong

R. v T. [1962] R&N 168
The
proposition
that
a
person
is
presumed to intend the reasonable and
probable consequences of his conduct
is
not
applicable
to
a
child.
The
evidence must establish that he knew
the
reasonable
and
probable
consequences of his conduct

Person under the age of 12 years presumed
to be incapable of having carnal knowledge
3

R v Smith and Kitchen 2NRLR 86
A non-corporate body cannot be charged with a criminal
offence. The individual member(s) of the firm can

Section
41(i)
of
the
interpretation
and
General
Provisions Act Cap 2 where act is offence under more
than 1 piece of legislation can be prosecuted under
any of them or common law or customary law but cannot
be prosecuted more than once
Cosmas Bala Mabwe v the People [1987] ZR 11

Section 22 PC parties to a crime
Winfred Sakala v the People [1987] ZR 23
Chisulo, Chiswaswa and Shatembo v Regina [1961] R&N
116
In section 21 offence relates to one contemplated by
the parties and not one that arises ex improviso

Nyasaland
Transport
Company
Limited
v
R
[1962] R&N 721
Unless in cases of absolute prohibition,
the state must prove mens rea by a directive
servant of the company

Section 20 PC-person not to be prosecuted twice except
where death occurs

Ngosa v Regina [1958] R&N 700
Waiver or consent by an accused person cannot cure a
court not having jurisdiction. A court presided over
by an unqualified person.
A.
The
courts
are
established
by
provisions
of
constitution and Acts of parliament

The Subordinate Court- chapter 28
4

The High Court-chapter 27

The Court of Appeal Act No.7 2016

The Constitutional Court Act No of 2016

The Supreme Court-chapter 25

Some criminal cases
o in local courts and
o Court Martial -chapter 106:Defence Act
B.
SUBORDINATE COURTS

Set out by Article 120(1)(a) of Constitution

Established by the Subordinate Courts Act Chapter 28

Established by section 3-

There shall be and are hereby constituted courts
subordinate to the High Court in each District as
follows:
-
Subordinate Court of the first class to
be presided over by a principal resident
magistrate,
magistrate,
a
resident
senior
resident
magistrate
or
a
magistrate of the first class;
-
Subordinate Court of the second class
to be presided over by a magistrate of
the second class;
-
Subordinate Court of the third class to
be presided over by a magistrate of the
third class.
5

Section 7 Subordinate Courts Act-magistrates equal
power, authority and jurisdiction,

Section
7 of the CPC providing for sentence as
follows;
Subject
to
the
other
provisions
of
this
Code,
a
subordinate court of the first, second or third class
may try any offence under the Penal Code or any other
written law, and may pass any sentence or make any other
order authorised by the Penal Code or any other written
law:
o
a senior resident magistrate shall not impose
any sentence of imprisonment exceeding a term of
nine years;
o
resident
magistrate
shall
not
impose
any
sentence of imprisonment exceeding a term of
seven years;
o
magistrate of the first class shall not impose
any sentence of imprisonment exceeding a term of
five years;
o Magistrate of the second and third class, shall
not
impose
any
sentence
of
imprisonment
exceeding a term of three years.

Section 9 CPC –sentences requiring confirmation by
High Court
o R v Alufonso Lukwesa 1 NRLR 134
6
The court must impose an actual sentence and not
just recommend
o The People v Christopher Mumba [2014] 3 Z.R. 391
Confirmation
not
limited
to
terms
of
imprisonment. It also extends to fines
o first
class
(other
than
a
Senior
Resident
Magistrate or a Resident Magistrate) exceeding
two years' imprisonment with or without hard
labour shall be carried into effect in respect
of the excess and a fine exceeding three thousand
penalty
units,
or
imprisonment
in
default
thereof,( can levy without confirmation by the
High Court; but such court shall immediately
transmit)
o No sentence imposed by a subordinate court of
the
second
class,
exceeding
one
year's
imprisonment with or without hard labour and a
fine exceeding one thousand and five hundred
penalty
units,
or
imprisonment
in
default
thereof,
o
No sentence imposed by a subordinate court of
the
third
class,
exceeding
six
months'
imprisonment with or without hard labour, shall
be carried into effect in respect of the excess,
and no fine exceeding seven hundred and fifty
penalty units
o Section 15(2) CHOMBA V THE PEOPLE (1975) ZR 245
Where
the
aggregate
of
consecutive
sentences
imposed is above the limit a case must be sent
7
for confirmation of sentence
as
it
is
treated as one sentence
o In practice will wait until appeal period expires
before submitting case for confirmation.

Section 217 CPC – committal for sentencing
o THE PEOPLE V MUMBUNA KOMBELWA [2010] 1 ZR 468
Any magistrate can try any case even where there
is
a
mandatory
minimum.
Where
the
mandatory
minimum is above the courts sentencing power the
case must be committed to the high court for
sentencing

Section
19 subject to CPC or other legislation in
exercise of criminal jurisdiction

Section 4 jurisdiction and powers as set by act and
within limits of district

Section 6 two or more presided over by different
magistrates

Section 69 general rule where offence committed

section 66- where apprehended in another
district

section
70
where
act
done
or
where
consequences felt

section
71
where
connected
with
another
offence in another jurisdiction

section 72 where district is uncertain
8

section 73- where near boundary

section 75- where doubt
o section 2(b) PC and 352 CPC proceedings cannot
be
nullified
because
of
trial
in
the
wrong
district.

Section 11 CPC- chief Justice by statutory order
specify cases tried by HC or SRM

Section 12- practice and procedure in CPC or as set
out in other Act and where there is no provision in
line with the county practice or courts of summary
jurisdiction in England.

Can transfer to other subordinate court
The People v Tex Muntu [1963-64] 188
When a case is transferred between two magistrates it
must be heard de dnovo but a magistrate can sentence
a person convicted by another magistrate

Section 13-Can transfer to local court
R v Petrol Chola 5 NRLR 588
Only
cases
transferred
dealing
with
to
local
the
customary
courts
as
law
should
they
have
be
no
jurisdiction to deal with offences under the Penal
Code
9

Part VII of CPC holds preliminary inquiries for cases
triable in High Court

Section 63
of Juveniles Act Cap 53- constitutes
itself as a juvenile court

Section
3
Inquests
Act
Cap
63-
magistrate
where
violent or unnatural death , coroner
C.
COURT MARTIAL

Section 86 of defence Act court martial power to
try
person subject to military law under act
o Section 121 limitation of time for trial

Trial must begin within three years of the
commission of the offence except mutiny and
failure to suppress mutiny

No more than three months after leaving
service
o Section 73 can be charged with civil offence in
addition to offences under the Act

But
cannot
treason,
be
tried
murder,
for
offencues
manslaughter,
like
treason-
felony, rape and section 8 of the Suicide
Act when committed in Zambia
D.
HIGH COURT

Established by section 3 of the High Court Act chapter
27

Established by Article 133 of the Constitution
10
o It
is
divided
into
divisions,
Industrial
Relations Court, Commercial Court, Family Court
and Children’s Court.
o The Chief Justice may constitute, by statutory
instrument, specialised courts of the High Court
to hear specific matters.

The Chief Justice, as an ex-officio judge; and such
number of judges as prescribed
o Superior Courts Number of judges Act , No 9 of
2016
o Section 5- sixty

Article 134o
has, subject to Article 128—
unlimited and original jurisdiction in civil
and criminal
matters;
ZAMBIA
NATIONAL
HOLDINGS
LIMITED
AND
UNIP
V
ATTORNEY GENERAL 1994 ZR 22- unlike IRC and sub
and
local
with
limits
in
penalties
and
geographical limit, unlimited but not limitless

Section 11 CPC-cases triable by HC

Section
341B
PC
–offences
under
division triable by the HC


appellate and supervisory jurisdiction, as
prescribed; and
Jurisdiction to review decisions, as prescribed.
o Part XI CPC-appeals, revision and case stated
Mwanza v The People [1976] ZR 154
Coourt agreed in this case that sentenco
Golden Daka v The People [2011] 1 ZR 350
Powers include, appeal, review, confirmation of
sentence, committal for sentencing
11
o Section 80 of CPC HC has power to change venue
of hearing before Subordinate Court where
Chiluba v The People 2004 ZR 11
Conditions to be mate before transfer of venue

Fair and impartial trial cannot be had in
any subordinate court

Question
of
law
of
unusual
difficulty
likely to arise

Need to view scene of crime for satisfactory
trial

Were
will
be
convenient
to
parties
and
witnesses

Expedient to the ends of justice

May order;

Other court to try or

One of higher jurisdiction

Accused person be committed for trial
before itself

Every application by motion and affidavit,
except by DPP


Must give DPP notice
Article 135. The High Court shall be constituted by
one judge or such
o other number of judges as the Chief Justice may
determine.

The Chief Justice may make rules with respect to the
practice and procedure of the High Court in relation
to the jurisdiction and power
12

Section 4 –HC Act judges have equal power, authority
and jurisdiction. RAHIM OBAID V THE PEOPLE AND HADEHIM
QUASMI V THE PEOPLE 1977 ZR 119
o MUNDIA SIKATANA V THE ATTORNEY GENERAL 1982 ZR
109-a High Court Judge cannot adjudicate on a
matter in civil case that has been dealt with in
a criminal case

Section 6 CPC
may pass any sentence authorized by
law

Section 9 superior court of record

Section 10 practice and procedure as set out in CPC
in default that by High Court of Justice in EnglandRAHIM CASE

Section 19 sits in sessions by the Chief Justice’s
statutory order-currently Lusaka, Ndola, Livingstone,
Kitwe, Kabwe, Mongu, Chipata, Mansa, Kasama, Solwezi
and Mazabuka.

Section 22 can transfer cases

Section
23
and
24-
transfer
to
other
judge,
Subordinate and Local Courts
13

Appeals from the Subordinate Courts
.
E.


COURT OF APPEAL
Article 130- establishes the court
Article 130 court consists of such number of judges
as prescribed.
o Superior Courts Number of judges Act , No 9 of 2016section 4- nineteen
o

131. (1) The Court of Appeal has jurisdiction to hear
appeals
o
the High Court;
o
other courts, except for matters under the
exclusive jurisdiction of the Constitutional
Court; and

Article 131 (2) An appeal from a decision of the Court
of Appeal shall be made to the Supreme Court with
leave of the Court of Appeal.

132. (1) The Court of Appeal shall be constituted by
an uneven number of not less than three judges, except
when hearing an appeal in an interlocutory matter.
o
(2) The Court of Appeal shall be constituted by
one judge when hearing an interlocutory matter.
F.
THE CONSTITUTIONAL COURT

Article 127- establishes the court and it consists of

There is established the Constitutional Court which
14
o
the President of the Constitutional Court;
o the Deputy President of the Constitutional Court;
and
o
Eleven other judges or a higher number of
judges, as prescribed.

Superior Courts Number of judges Act , No 9 of
2016- section 3- thirteen


128. (1) Subject to Article 28, the
Court has
original and final jurisdiction to hear—
o a matter relating to the interpretation of this
Constitution;
o a matter relating to a violation or contravention
of this Constitution;
o (e) whether or not a matter falls within the
jurisdiction of the Constitutional Court.
o Subject to Article 28 (2), where a question
relating to this Constitution arises in a court,
the person presiding in that court shall refer
the question to the Constitutional Court.
o (4) A decision of the Constitutional Court is not
appealable to the Supreme Court.

129. (1) The Court shall be constituted by an uneven
number of not less than three judges, except when
hearing an interlocutory matter.
o The Constitutional Court shall be constituted by
one judge when hearing an interlocutory matter.
15
o (3) The full bench of the Constitutional Court
shall be constituted by an uneven number of not
less than five judges.
G.

SUPREME COURT
Article 124- establishes the Supreme Court which
consists
o the Chief Justice;
o the Deputy Chief Justice; and
o (c) eleven other judges or a higher number of
judges, as prescribed.

Superior Courts Number of judges Act , No 9 of
2016- Section 2- 13 including CJ and DCJ


125. (1) Subject to Article 128, the Supreme Court is
the final court of appeal and has;
o appellate jurisdiction to hear appeals from the
Court of Appeal; and
o jurisdiction conferred on it by other laws.

126. (1) The Supreme Court shall be constituted by an
uneven number of not less than three judges, except
when hearing an interlocutory matter.
o The Supreme Court shall be constituted by one
judge when hearing an interlocutory matter.
o (3) The full bench of the Supreme Court shall be
constituted by an uneven number of not less than
five judges.
16

Section 3 -composition uneven number but not less for
matters other than interlocutory

MOTOR HOLDINGS (Z) LIMITED v RAJ RAMAN 2001
ZR 105

Section 4 -single judge sits appeal to full court

Section 7-Jurisdiction in criminal cases- appeals

Section 8-practice and procedure in act or rules in
default Court of Criminal Appeal in England
2.
PUBLIC PROSECUTIONS: POWERS AND DUTIES
OF THE DIRECTOR OF PUBLIC PROSECUTION:

Established by Article 180. (1) and appointed by the
President, subject to ratification by the National
Assembly.

A person qualifies for appointment as Director of
Public Prosecutions if that person—
o has experience in undertaking criminal trials;
and is qualified to be appointed as a judge.
o (3) The Director of Public Prosecutions is the
chief prosecutor for the Government and head of
the National Prosecutions Authority.

Powers of the Director of Public Prosecutions, may—
17
o institute and undertake criminal proceedings
against a person before a court, other than a
court-martial, for an offence alleged to have
been committed by that person;

DPP
has
discretion
to
prosecute
not
bound
by
coroner or police findings-KAMBARANGE MPUNDU KAUNDA
v THE PEOPLE (1990 - 1992) Z.R. 215 (S.C.)
MUMBA V THE PEOPLE (2006) ZR 93
Section143 of the Defence Act Cap 106- Attorney
General handles cases where one convicted by courts
Martial appeals
o take over and continue criminal proceedings
instituted or undertaken by another person or
authority; and
o
discontinue, at any stage before judgment is
delivered, criminal proceedings instituted or
undertaken by the

Milford Maambo and Two Others v The People
2016/CC/R001
Power to enter nolle cannot be questioned
even under new constitution.

Cannot be exercised on appeal by convicted
person

Section 81 CPC-nolle prosequi; either filling
in court or stating (subsection 1) or under
subsection 2 filling before the registrar or
clerk
18
DIRECTOR
OF
PUBLIC
PROSECUTIONS
v
MBAYO
MUTWALA AUGUSTINO (1977) Z.R. 287
R v Train Viyuwi 5 NRLR 76
The only way a case before the high court
can be withdrawn is by a nolle prosequi

Section
88
CPC-withdrawal
before
the
subordinate court consent of the court or on
the instruction of the DPP- if after defence
will result in acquittal
o R. v Banda [1962] R&N 317
Proper verdict when charge is withrdrawn.

NGOMA v THE PEOPLE (1974) Z.R. 194
An application by a prosecutor to withdraw a
case
must
not
be
allowed
by
a
magistrate
without good and sufficient reason. The easy
giving of withdrawals and adjournments adds to
the expense of trials, the time they take and
clutters up the courts.
R v Khanyisi [1957] R&N 115
Discharge in CPC has technical meaning cannot
be used to mean release. Cannot say acquitted
and discharged.
R v Frackson and Samson [1961] R&N 108
Where there is an offer of no evidence an
acquittal meets the ends of justice
o Director of Public Prosecutions or another person
or authority.
19
o The Director of Public Prosecutions shall not be
subject to the direction or control of a person
or an authority in the performance of the
functions of that office, except that the
Director of Public Prosecutions shall have regard
to the public interest, administration of
justice, the integrity of the judicial system and
the need to prevent and avoid abuse of the legal
process.
o The functions of the Director of Public
Prosecutions maybe exercised in person or by a
public officer or legal practitioner, authorised
by the Director of Public Prosecutions, acting
under the general or special instructions of the
Director of Public Prosecutions.

section 82 delegation to solicitor general and
state Advocates- power to enter nolle –section
81
and
committal
proceedings(summary
committal ss 253-259 and
proceedings after
committal 241-247)

Section 86 CPC appoint public prosecutors who
exercise delegated powers see section

Section 10 of
National Prosecution Authority
Act
Prosecutor to be appointed by gazette and
will
have
powers
in
such
jurisdiction,
offences and courts

Section
87
CPC-powers
of
the
public
prosecutor; to appear and plead without any
written authority in a public prosecution or
were private person instructs a lawyer public
20
prosecutor may conduct and lawyer operates
under him

National Prosecution Authority Act No. 34 of 2010
Section 8(2) additional functions

Setting qualifications for the appointment of
prosecutors

Liaise with the Attorney general on mutual
legal assistance and extradition

DPP has power to grant immunity from prosecutionindemnity

Section 68(1) of the Anti Corruption Act No.
3 of 2012

Section 4 of Plea negotiations and Agreements
Act No. 20 of 2010

in some cases law requires that consent of DPP

penal code
o seditious practices section 57- section
58 requires consent
o incest-
under
sections
159
and
161
weapon
or
required by section 164
o possession
of
offensive
material-section 85(3)
o obscene material-section 177(5)

Suicide act cap 89 section 8(3) complicity in
another’s suicide
21

Offences
committed
by
Zambians
outside
jurisdiction section 59(2) of the Extradition
Act cap 94

Prohibition
connection
of
uniforms
with
political
and
flags
objects-
in
section
3(2) of the Public Order Act cap113

ACC Act- section 46

State Security Act cap 111-section 14

Preservation of Public Security Act cap 112secion 12


Chiefs Act cap 287- section 13
Section 8(3) national prosecution Authority Act
consent
or
fiat
of
DPP
can
be
delegated
in
specified cases to Chief State Advocate or Deputy
Chief State Advocate

CLARKE v THE PEOPLE
(1973) Z.R. 179 -effect of
absence of consent

Section 85 CPC-where law requires DPPs consent a
person can be arrested and remanded in custody or
granted bail but no further action will be taken
until consent is obtained

Section 321A- power to appeal

OTHER POWERS OF THE DPP

Section 47 ACC Act- can serve notice to the
Commissioner of taxes to provide information
for affairs
3. ARREST
22

THE PEOPLE v MWEEMBA (1972) ZR 292
o Criminal proceedings can only be instituted by
making a complaint or bringing to court person
arrested without
warrant
o Warrant only issued after charge drawn up
ARREST WITHOUT WARRANT

Section 26 CPC – Police officers may arrest without
warrant for listed offences and
cognizable offences

Section 31 CPC- arrest by private persons

Section 2 CPC- defines cognizable offences as those set
out in First Schedule of CPC or as defined in particular
law

Mainly preventative

Offences under section 27 CPC included

Arrested person to be presented to court- section 30
and 32

Section 33 CPC-detention of persons arrested without
warrant
o M.MUTEMWA V ATTORNEY GENERAL (1979) ZR 251-person
arrested without warrant must be taken to court
within 24 hrs or released on bail if offence not
punishable with death

.Section 35 and 36 CPC – arrest by magistrate
o Section 35 only in cases where offence committed
in presence of magistrate
o Section
36
will
only
direct
where
offence
is
committed in presence of magistrate
ARREST ON WARRANT
23

Section 90 CPC- allows one to institute proceedings by
lodging a complaint.
o R v Musango Brothers 5 NRLR 599
The charge should be drafted by the prosecutor and

Section 91(1) – proviso warrant will only be issued
where complaint is on oath
o Mulaisho v The People [1969] ZR 124 arrest will
only be issue where there is proof of service.
Where there is proof of service of summons but no
appearance
by
accused
it
is
not
contempt
but
warrant of arrest can be issued.

Paul Jeremiah Lungu v The People [1978] Z.R. 298- only
advocate can prosecute on behalf of complainant


R v Ian Shaw Kempton 1 NRLR 148
Complaint should be signed by the person making the
complaint
and
not
the
police
officer
to
which
the
complaint was made (to meet requirement that there is
belief that offence was committed)

The People v Mutachila [1969] Z.R. 96-A person can be
arrested for additional offences
o DPP v Enos Kakoma [1970] Z.R. 41

THE PEOPLE V CHAPONDA (1973) ZR 175-complainant not
synonymous
with
prosecutor
.it
is
one
who
makes
a
complaint under section 90. In a case where there is a
public
prosecutor
.dismissal
not
cannot
acquittal
dismiss
unless
under
public
section
203
prosecutor
offers no evidence
AN ARREST
24

Section 18 CPC must touch and confine

Elements of an arrest-SILUNGWE v THE PEOPLE (1974) ZR
130o Physical restraint (actual or conduct suggesting
force will be used to prevent departure) and
o Inform suspect that is arrested

Does not necessarily mean will be followed with the
arrest charging of a person

However must be exercised for the right reasons

Not right when there is no intention to charge

Justified by the breach of the law

There must be reasonable causeo That has committed offence
o Is committing an offence or
o Is about to commit an offenceo IN RE SIULUTA 1979 ZR 14- a person must not be
arrested
for
the
purpose
of
facilitating
investigations

Reasonable cause is dependent on facts known by the
officer at the time

Reasonable existence of facts
o LAURENT v WILLIAMS (1963-1964) Z AND NRLR 4arrest not illegal where no warrant as long as
has reasonable cause to believe that offence
committed

Test-
reasonable
prejudice
would
man
acting
without
fairly
have
suspected
passion
or
one
be
to
committing an offence
25

Standard lower than evidence to establish a prima
facie case
o DANIEL
CHIZOKA
MBANDANGOMA
v
THE
ATTORNEY
GENERAL (1979) ZR 45- sufficient to show that
arresting officer has reasonable suspicion that
person has committed offence

Can rely on hearsay evidence

Must communicate reasons either;
o At time of arrest or when reasonably practicableo ATTORNEY GENERAL v SAM AMOS MUMBA 1984 ZR 14must inform of reasons unless impeded by suspect
and
failure
to
inform
amounts
to
false
imprisonment
o No precise language

Can use force where;
o There is resistance to arrest
o To prevent escape from arrest
o To prevent violent breach of peace

Person can resist unlawful arrest but cannot use
excessive force to resist

Police have right to search on arrest to;
o To ensure does not have implements to facilitate
escape
o Prevent injury to oneself

Can also enter premises where suspect was immediately
before arrest without warrant

Person must be taken to police as soon as possible
after arrest

Section 22 CPC –power to search on arrest and take
away property except necessary apparel
26

Section 24 CPC search of a woman
SEARCH WARRANTS

Section 118 CPC- proved on oath that suspects that
evidence
proving
commission
of
offence
can
be
collected
o Section 19. CPC
(1) not required where there is
a warrant of arrest, or any police officer having
authority to arrest, has reason to believe that
the person to be arrested has entered into or is
within any place,

LISWANISO
v
THE
PEOPLE
(1976)
ZR
277-
also
that
evidence will become available

Section 52 ACC Act not required if offence is about
to be committed, is being committed or has just been
committed other than a dwelling house

Section 15(1) Zambia Police Act- powers of police
officer above the rank of inspector
4. REMAND, BAIL, POWER IN PARTICULAR CASES.

Section
33(1)
CPC–
persons
arrested
allows
without
the
a
detention
warrant
for
of
a
reasonable time
27
o Officer in charge
must release if cannot
present to court within 24hrs
o Only offences not punishable by death
o And offences of a serious nature
o Release on bond with or without sureties
o IN RE SIULUTA AND THREE OTHERS (1979) ZR 14
Section
33
must
be
complied
with
when
evidence has been collected


Bail can therefore be granted in the following;
o Police Bail (bond)
o Bail pending trial
o Bail pending confirmation of sentence
o Bail pending appeal and
o Constitutional bail.

Unbailable offences
o Section 123 CPC

Treason,
Murder
offences
carrying
mandatory capital penalty

Misprision
of
treason
or
treason
felony

Aggravated
robbery

Theft
motor
of
vehicle,
for
one
previously convicted for the offence
and

Espionage-
where
DPP
places
certificate
o Section 43 cognisable offences under the
Narcotic
and
Psychotropic
drugs
Act
not
bailable
28

Section
drug
23(1)
drug
manufacturing
trafficking
are
and
cognisable
offences

LANTON, EDWARDS AND THEWO v THE PEOPLE
(1998) S.J. 30
The
importation
of
drugs
is
not
a
cognisable offence and is therefore
bailable

Section 123(2) CPC- before grant of bail must
execute a bond by himself or with sureties or
both

Section 126(1) CPC- amount must be fixed but not
excessive
o Can be on own recognisance, deposit money
or property
o Sub
section
(2)
–breach
can
result
in
forfeiture
o HITETA v THE PEOPLE
(1976) Z.R. 21
Failure by an accused person to surrender
himself
on
the
date
stated
in
the
recognizance does not of itself warrant a
trial court to penalise a surety or an
accused person by ordering the forfeiture
of
any
recognizance
–
order
is
discretionary. Can be made where accused
absconded or did not intend to surrender
himself for trial. prosecution must prove
breach beyond reasonable doubt and accused
and surety must be heard
POLICE BAIL
29

Granted by the officer-in-charge(section 33)
o No application administrative

To appear in court on specific date

Must execute bond-section 126

With
conditions
like
sureties
or
on
own
recognisance

Not be granted where arrested on warrant unless
there is provision section 103 CPC

THE PEOPLE v BENJAMIN SIKWITI CHITUNGU AND OTHERS
1990-1992 ZR 190
o Police can cancel it before court date
o Court can increase conditions-Section 127
CPC
o Does not cease where one appears in court
o Section 59 of the Juveniles Act where person
below 19 is apprehended, with or without a
warrant,
and
cannot
be
taken
to
court
immediately officer in charge can release
on
own
recognisance,
sureties
or
bond
executed by parent or guardian

unless
homicide or other grave crime;
or

unless it is necessary in the interest
of
such
person
to
remove
him
from
association with any reputed criminal
or prostitute; or

unless
believe
the
that
officer
has
reason
the
release
of
to
such
30
person
would
defeat
the
ends
of
justice;

Section 124 CPC officer before whom bond is
executed or the court d may demand additional
conditions that are reasonable in a particular
case
BAIL PENDING TRIAL

Section 123(1) CPC -apply before trial court
o Mwala Kalaluka v The People [2011] 1 Z.R.
214
Can apply for bail even if one has not been
brought before any court
o Section 231 CPC subordinate Court can grant
bail after committing a to the High Court
for trial.

Application
ether
by
summons
supported
by
affidavit or viva voce

Main test is the likelihood to attend court

Oliver John Irwin v The People [1993-1994] Z.R.
54- factors
o Nature
of
accusation
and
severity
of
punishment
o Nature of evidence
o Independence of sureties
o Prejudice to accused person
o prejudice to state

Factors in general
o Likelihood to attend trial
o Likelihood to interfere with witnesses
o Risk of committing other offences
31

Standard is that substantial grounds exist and
that court must be satisfied that will-factors
o Nature and seriousness of offence
o Character and antecedents of offender
o Previous conduct in relationship to bail
and
o Nature of evidence against one

Application is before the trial court

Can
renew
application
to
the
High
Court(supervisory power) where denied
by the Subordinate Court

THE
PEOPLE
v
BENJAMIN
SIKWITI
CHITUNGU AND OTHERS 1990-1992 ZR 190
Where denied bail by police can under
section 123(3) apply before High Court it
is
not
an
appeal-
in
practice
only
allowed when denied in the subordinate
court.

Section
124-
court
may
demand
additional
conditions

Section 126 (3) CPC -High Court has power to
reduce or vary conditions imposed by Subordinate
Court or police officer
o Faustin
Kabwe
and
Another
v
The
People
[2011] 2 ZR 186
Conditions to be satisfied for variation
o Dr.
Rajan
Mathani
v
DPP
and
Inspector
General of Police [2015] 3 Z.R. 48
32
The High Court can only vary bail conditions
for cases in the Subordinate Court when the
Subordinate Court has declined to do so

Section 137- court may demand additional if first
insufficient because of mistake or fraud

Section
128
CPC-
surety
may
apply
to
be
discharged
o Where
accused
not
in
court
will
issue
warrant of arrest
o On return of warrant or upon surrender will
discharge bond

Section 131 CPC forfeiture of recognisance
R v John Ritayi and Sakalunyinga Sasoka 2 NRLR
67
Forfeiture
not
mandatory
when
there
is
non-
attendance but in the discretion of the court
BAIL PENDING CONFIRMATION OF SENTENCE

Section 13(1) CPC allows for bail pending the
confirmation of sentence-under section 9
BAIL PENDING APPEAL

Section 332 CPC after lodging an appeal from the
decision of the Subordinate Court, that court or
the High Court may grant bail
o Section 123(5)-MAYONDE v THE PEOPLE 1976 ZR
129-must lodge appeal
33
o VALENTINE SHULA MUSAKANYA AND ANOR v THE
PEOPLE (1983) Z.R. 96
One cannot appeal before sentence is passed

Section 336-CPCwhere one appeals or applies for
leave to appeal from the decision of the High
Court, that court may grant bail
o BUKASA PELU SEKELE v THE PEOPLE (1990) S.J.
(S.C.)
o Malyoti Katenga Jamu v The People [1981] ZR
99
The High Court may admit the appellant to
bail, or if it does not so admit him, direct
him to be treated as an unconvicted prisoner
pending the determination of his appeal or
his application for leave to appeal as the
case may be.
o

Section 18 (1) Court of Appeal act will only
grant bail where the High Court has refused to
grant bail pending Appeal or pending leave to
Appeal to the court
o May treat as an unconvicted prisoner where
declines to grant bail
o Order 9 Rule 21 of the CAA Rules- one can
apply for bail pending appeal to the Supreme
Court.

Section 22 Supreme Court Act can grant bail where
the Court of Appeal has refused to grant an
appellant before it bail
o Can be treated as an unconvicted prisoner
34
o MALYOTI KATENGA JAMU v THE PEOPLE (1981)
Z.R. 99
In criminal matters if any judge of the
Supreme Court refuses an application, the
person
making
the
application
shall
be
entitled to have his application determined
by the full court.

KAMBARANGE MPUNDU KAUNDA v THE PEOPLE 1990-1992
ZR 215-bail cannot be granted on appeal for cases
to which section 123 CPC applies

STODDART v THE QUEEN (1)1954 NRLR 288
o Can
only
be
released
if
there
are
exceptional circumstancesLikelihood that will have served sentence
by the time appeal heard and there is a
likelihood of success

TITUS ZULU AND ANOTHER v THE PEOPLE [2010] 1 ZR
450
Likelihood of success can be demonstrated by
doubt in the correctness of a conviction or
showing
that
the
sentence
is
manifestly
contestable

ANUJ KUMAR RATHI KRISHNAN v THE PEOPLE [2011]
3ZR 1
The court will not delve into the merits of the
appeal but will examine the ground and come to
the conclusion that prima facie they will succeed
CONSTITUTIONAL BAIL
35

Only made in High Court because Article 28(2) of
Constitution; High Court has jurisdiction where
there has been, there is, there is likely
to be
a breach of Articles 11 to 26 alleged

Article 13(3) Constitution-person arrested or
detained
on
court
order
or
on
suspicion
of
committing offence when not released shall be
brought
before
court
without
delay
if
not
released and if not tried within reasonable time
be released on bail

Overrides provisions in CPC restricting bail

CHENTANKUMAR SHANTAL PAREKH v THE PEOPLE ZR 199597, 78 where unreasonable delay through no fault
or stratagem of accused will be released
5.
CHARGES AND INFORMATIONS

Person arrested and charged with a criminal offence
when presented to court must take plea. Document
setting out offence:
o Called charge in the Subordinate Courts
o Called information in the High Court
o Also referred to generally as an indictment
o
FRAMING OF CHARGES AND INFORMATIONS

KAPAPULA MAKESA v THE PEOPLE [1982] ZR 48
A charge must be properly framed in accordance with
the format in the first schedule of the Criminal
36
Procedure Code so that the accused person may know
in advance what the prosecution has set out to prove
against him.

Sections 134 to 137 CPC set out how both charge and
information should be drawn

Section 134 CPC- both documents will have a-e
o The commencement
o Statement of offence
o Particulars of offence
THE COMMENCEMENT

Contains information ofo Which court trying
o Where trial being held
STATEMENT OF OFFENCE

Section
137(a)(i)
nature
of
the
offence,
example murder
(This is usually found in the marginal notes
but in
R v Machai and Chiembe 2 NRLR 90
As regards what the ingredients of the offence
are
the
marginal
notes
are
considered
temporanea exposito)

Section
137(a)(ii)
creating
the offence
section
or
sections
37

JOSEPH NKOLE v THE PEOPLE 1977 ZR 351
o Reference to wrong section when particulars
are correct makes charge defective but not bad
o Does the accused person suffer any prejudice
PARTICULARS OF OFFENCE

Section 137(a)(iv)-Examples of format in Second
Schedule CPC

Immediately after the statement of offence

Contents;

Names of accused person(s)
o Error in name does not affect the validity of
the charge
o Where name not known can be described as “a
person unknown”-section 137(d)
o Also “alias....”
o R v Musango Brothers 5 NRLR 599
Where firm is one man business must be charged
in his own name ..... trading as. In the case
of a partnership, 1 partner can be summoned
and indicated as AB a partner in CD

Date of offence;

State in so far as it is known

Practice- day, month and year
o Where date not known

“On or about the …..”

“On a date unknown but between the…. And
the…..”
38
o Can be crucial in certain cases

Legislation may have not come into force

defilement
cases-prosecutrix
may
have
turned 16
o Must be on single date but for continuing
offences can be on several dates

In non compliance cases- “ on and since
the…..” and

Conspiracy
cases-
“on
divers
dates
between the…..”
o In a charge of murder or manslaughter the
charge should denote the date of death as the
crime
Salumema v The People [1965] ZR 4

Time not necessary but essential in some cases like
burglary
o Section 301- burglary is housed breaking at
night
o Section 42 of the Liquor Licensing Act Cap 167
prohibits sale of alcohol during permitted
hours; section7(2) bar can only sale between
10 in morning and half past 10

Place where offence committed

Practice
town,
district,
province
and
country

CDDD- road essential-section161 of Road
Traffic Act offence must be committed on
public road
39

Section
42
of
Liquor
Licensing
Act
prohibits holder of restricted licence
from having sprits on premises without
reasonable
excuse;
section
16
holder
cannot have spirits

Role of parties not indicated as accomplices or
principles or aiding
or abetting
o Section 21-counsel, procure, aid, abate or
omits to do for the purpose of enabling
Stoddart v The Queen (No.2) 5NRLR 291

Section 137(c) in offences involving ownership must
give the name of the owner
o Property of the Republic

Intent section137(g) not necessary to state intent
to defraud, deceive or injure unless s ingredient
of offence

Age of victim unless is an ingredient of offence
o Defilement

Section 137(i) can use abbreviations, ie TV, DVD or
DNA

Regina v Chikerema [1958] R&N 516
The mere fact that a superfluous allegation is
included in the particulars does not impose as
additional onus on the prosecution to prove such an
allegation. Failure to prove it should not lead to
an acquital
RULE AGAINST DUPLICITY
40
o SHAMWANA AND SEVEN OTHERS v THE PEOPLE 1985 ZR
41

Duplicity matter of form and not evidence

Section
52
of
the
penal
Code
allows
offences under chapter 12 to be proved by
overt acts
o THE PEOPLE v MAKHOKHA 1967 ZR 173

Two sections creating separate offences
in statement of offence

Burglary and theft exception
R
v
Kantolombo
White,
R
v
Popeye
Kalungula 4 NRLR 217
The
legislation
has
specifically
provided for the offences to be combined

Conspiracy
and attempt different
o Patel v The People [1969] ZR 132
count is irregular in that it refers to more
than one offence committed on different days
(divers dates between 3rd and 10th May, 1968,
at Ndola)
o NSAMA AND OTHERS v THE PEOPLE 1976 ZR 171

Should not charge with conspiracy where
one charged with actual offence

R v Donald Phiri 4 NRLR 82
Where
identical
facts
constitute
more
than one offence, no conviction should be
recorded
on
the
second
one
if
a
conviction has already been recorded on
the first one
41
o each count must contain only one offence
o if it alleges more than one then it is bad for
duplicity
o bad for duplicity where

more than one offence

more than one date

more than one occasion in a count in
theft cases

more than one victim
o where the is duplicity one can apply to quash
but courts will not where it can be amended
o MUTOLOKI v THE PEOPLE (1972) Z.R. 283
It is not permissible to convict for more than
one offence on one count.
JOINDER OF COUNTS

Regina v Winston [1958] R&N 487
The mere fact that separate offence are discovered
during the course of an investigation does not mean
that they can be charged together. It can only be done
if they come within what is envisaged by section 135
of CPC

section 135 CPC
o in some cases lawful to join two more counts
against
one
accused
person
in
a
single
information or charge sheet
o this the case where
42

charges founded on the same facts

they form a series of offences of the
same or similar character

Thompson v Regina [1957] R&N 559
Appellant
charged
with
having
broken into a house and stolen a
bicycle
on
Disappeared
13th
until
June
4th
July
1956.
1957.
Charged with escaping from lawful
custody. Found to be misjoinder of
charges
as
both
cases
where
not
founded on same facts, did not form
series of same or similar character

Regina v Kekana [1957] R&N 581
Charged with two counts, theft of a
bicycle and theft of money by false
pretences when he claimed that the
bicycle was his. The charges were
intimately related.
o Section 36 of the Penal Code provides that
where an act constitutes several crimes or
where several acts are done in execution of
one criminal purpose

(a)
a separate charge shall be preferred
for each act.

(b)
If a person by one act assaults,
harms or kills several persons or causes
injury to several persons or things a
separate charge shall preferred for each
43
person assaulted, harmed or killed or
thing injured

Section 135(2)-a statement is set out in a count
where more than one offence is charged
o FLUCKSON MWANDILA v THE PEOPLE (1979) ZR 174
Where more than one count they shall be marked
consecutively
o R v Musango Brothers 5 NRLR 599
Each count must not only contain particulars,
it must also have a statement of offence

Mukopa v The People [1976] ZR 211
Where
a
number
of
offences
are
known
to
the
prosecution it is to say the least undesirable, and
may be oppressive, to bring separate charges in
different
courts
at
different
times.
Save
in
exceptional circumstances the proper course is to
charge the accused with all the offences which are
known to the prosecution, it is always open to the
accused
should
he
so
choose
to
apply
for
a
separation of trials.

Section 135(3)- can apply to be tried separately if
accused person will be embarrassed
o R V CHAKOPA MAULU AND NELSON CHEMBELA 5 NRLR
208-ALFRED KALUMBA- wanted to call co accused as
witness but could not compel to do so. similar to
current section 157 CPC
JOINDER OF ACCUSED PERSONS
44

section 136 CPC
o this may either be by

naming two accused persons in one count
or
R v Supuni Kamombo, Mutono Nsama and
Laski Kachushya 4 NRLR 249
Where there is
more than one accused
person they can be tried separately or
joined in one count

accused persons individually in separate
counts
o Chapamina and Mponda v R. [1962] R&N 358
Separately indicted co-accused cannot be tried
together even where the parties consent
o R v Ndembele and Others 2NRLR 100
Accused
persons
cannot
be
joined
merely
because they have committed the same offence.
The offences must be connected.
o words “jointly and whist acting together”
o these are

persons who commit the same offence in
same circumstances

persons who commit the offence and those
who abate

different
offence
in
course
of
same
transaction

theft related offences chapter XXVI to
XXX of penal Code

counterfeiting offences chapter XXXVII
of Penal Code
45
OBJECTIONS TO A CHARGE OR INFORMATION (INDICTMENT)

indictment
preferred
in
breach
in
breach
of
sections 134, 135, 136 and 137 CPC

where there are time limits for preferring charges
o Section
219
punishment
CPC-offences
of
six
months
with
and
or
maximum
fine
not
exceeding one thousand five hundred penalty
units in the subordinate court must be charged
within 12 months.
o Section 129(5) Electoral Act No. 12 of 2006must charge within one year of committing
offence
o Section 162 Road Traffic Act No. 11 of 2002in speeding, dangerous, reckless or careless
driving cases must warn at arrest or within 14
days and serve summons within 28. Outside
requires DPPs consent.

charge that was not offence at time committedretrospective
o Article 18(4) Constitution- A person shall not
be held to be guilty of a criminal offence on
account of any act or omission that did not,
at the time it took place, constitute such an
offence,

a penalty shall not be imposed for any
criminal
offence
that
is
severer
in
degree or description than the maximum
penalty that might have been imposed for
that
offence
at
the
time
it
was
committed.
46

charge not known by the law
o charged under provisions that do not create a
criminal offence
o charged under repealed law
Article 18(8) of the Constitution a person
shall not be convicted of a criminal offence
unless that offence is defined and the penalty
is prescribed in a written law:
o Article 139(12)(c)(v) of the Constitution not
affect ongoing legal proceedings
o Section 14(3)(e) Interpretations and General
Provisions Act Cap 2- repeal will not affect
an ongoing prosecution.

Section
15
–not
affect
statutory
instrument which is not inconsistent

court has no jurisdiction
o section 11 CPC- cases triable in High Court
o section 85(1) CPC-where consent not obtained
o section 138 CPC- where already convicted or
acquitted

DPP v Sikatema and 5 Others [1987] ZR 90
Article 20(5) of the constitution allows
the trying again of an acquitted person
if the retrial follows the decision of an
appellate court

section140
not
where
consequences
are
unknown

Penal
Code-
allows
for
murder
charge even after prosecution for
assault
47

Plea Negotiations and Agreements Act no
20 of 2010 Does not apply to cases where
a plea negotiations and agreement has
failed.

section 141 CPC where acquitting is not
competent court
THE PEOPLE VS PETROL ZAMBWELA 2002 ZR 45subordinate court has no power to acquit
when conducting PI
o charges a person immune from prosecution

Articles
98(4)
President
or
Constitution
person
the
performing
executive functions immune even after
ceasing to hold office

Article
109(1)
vice
president
shall perform functions and in
her absence a member of cabinet.

Section 14 Penal code –immature age

Diplomatic Immunities and Privileges
Act cap20
Section 3 make article 31 of the Vienna
Convention
on
Diplomatic
Relations
applicable to Zambia. – Immunity from
criminal
jurisdiction
of
receiving
state
o Where objections court can

Quash or

amend
QUASHING A CHARGE OR INFORMATION (INDICTMENT)
48

section 274 CPC only where charge or information
does not disclose offence punishable by the law and
cannot be amended to state offence

contains offence for which not committed

convicted or acquitted

immune
EFFECT OF QUASHING

does not result in acquittal

but failure will prejudice appeal section 353 CPC
AMENDMENT OF A CHARGE OR INFORMATION (INDICTMENT)

section 273 CPC Information

section 213 CPC Subordinate Court at any stage
before accused is required to make defence
o Regina v Mungala and Musaka [1958] R&N 109
This
provision
cannot
be
used
to
amend
a
charge to include a lesser offence before the
close of the prosecution’s case because the
charge cannot be said to be “defective”

Yusufu Maumba v Republic [1966] E.A.L.R. 167
cannot
amend
the
charge
after
conviction.
An
accused person pleaded guilty and was convicted,
charge was then amended

court can upgrade, substitute or include new count

KAMBARANGE MPUNDU KAUNDA v THE PEOPLE 1990-1992 ZR
215
o Court, prosecution or defence can apply to
amend
49
o Nature of amendment and when

SHAMWANA AND OTHERS v THE PEOPLE 1985 ZR 41
o Amend in line with evidence
o No injustice if given opportunity to recall
witnesses

purposeo
to correct a formal defect or
o as a result of evidence
o dependant on-


timing of amendment and

risk of injustice
procedure on amendment
o JOHN BANDA v THE PEOPLE 1970 ZR 14

Where there is amendment plea should be
retaken and right to recall witnesses
explained

The effect of the omission of material particulars
(where no objection or amendment during trial)
o ALAKAZAMU v THE PEOPLE 1973 ZR 31
Charged with theft with another but the words
“jointly and whilst acting together with other
persons unknown”- lack of reference did not
make
particulars
defective
as
is
not
ingredient of offence
o HARRISON ZIMBA v THE PEOPLE 1970 ZR 101
Charged with attempted house breaking, omitted
the words “with intent to commit a felony”-
50
found to be material defect as particulars did
not disclose offence
o MUTALE v THE PEOPLE 1973 ZR 15
Espionage
purposes
charge
omitted
prejudicial
to
the
the
words
“for
safety
or
interests of the Republic”-indictment did not
disclose an unknown offence but it described
a known offence with incomplete particulars
OVERLOADING OF A CHARGE OR INFORMATION (INDICTMENT)

MULWANDA V THE PEOPLE 1976 ZR 133
o Not fair for accused or court to charge with
37 counts, call 87 witnesses and 89 exhibits
6. ADMISSION OF GUILTY PROCEDURE

Section
221
of
the
Criminal
Procedure
Code
makes
provision for a person charged with a criminal offence
to admit guilty when:
o Informed by a police officer that proceedings will
be instituted(charged) or
o Or where summoned

Applicable in cases where offence is punishable by(i)
a fine not exceeding one thousand and five hundred
penalty units or imprisonment in default of payment of
such fine; or
(ii) a fine not exceeding one thousand and five hundred
penalty units or imprisonment not exceeding six months;
or
51
(iii)
a fine not exceeding one thousand and five
hundred penalty units or imprisonment not exceeding six
months, or both; or
(iv)
is an offence specified by the Chief Justice, by
statutory notice,
-
(offences are set out in the first schedule
of section 221)
-
Those to which schedule does not apply are
in second schedule( there are none in that
schedule)
Section 178 Penal Code Idle and disorderly- 1 month
and sixty penalty units

Accused must be served with a concise statement, in such
form as may be prescribed of the facts constituting and
relating to the offence

Such person may, before appearing in court to answer the
charge against him, sign and deliver to the prescribed
officer a document, Admission of Guilt Form, admitting
that he is guilty of the offence charged
o R v Amidu [1958] R&N 227
Before a conviction where the plea is in writing
there
must
be
verification
that
written
plea
emanates from accused person

such person shall deposit with the prescribed officer
52
o
the maximum amount of the fine which may be imposed
by the court or such lesser sum as may be fixed by
such officer; or
o furnish
such
security,
by
way
of
deposit
of
property, as may be approved by such officer for
the payment within one month of any fine which may
be imposed by the court;

such person shall not be required to appear in court to
answer the charge made against him unless the court, for
reasons
to
be
recorded
in
writing,
shall
otherwise
order.
o MUSHUNGA v THE PEOPLE 1968 ZR 85
Accused person must be informed of date on which
court will hear case

o
appearance in court may be enforced by summons, or
if necessary, by warrant.

A copy of the statement of facts and the Admission of
Guilt Form is transmitted to the court before which such
person will appear

A person who has signed and delivered an Admission of
Guilt Form may, at any time before the fixed day,
transmit to the clerk of the courto An
intimation
in
writing
withdraw the admission
o
that
he
wishes
to
or
a submission in writing of matters in mitigation
of sentence.
53

On receipt of an intimation of withdrawal the clerk of
the court shall forthwith inform the prosecutor thereof.

MUKUBESA v THE PEOPLE 1976 ZR 78
The hearing like in any criminal case must be in
open court

On the fixed day the court may proceed to hear and
dispose of the case in open court as follows:
o Deliver judgment as if a person had appeared in
court
and
pleaded
guilty
after
the
charge,
statement of facts and any written submission in
mitigation have been read out in court(mitigation
can be done in court if not sent)
o If the accused person has withdrawn the admission
of guilt and appears in court, the court shall try
the offence
o If the accused person has withdrawn his admission
of guilt and does not appear in court, the court
shall issue

summons commanding attendance
During trial of an accused person who has withdrawn his
admission of guilt, the court shall not permit any
evidence to be led or any cross-examination of such
accused person in any way relating to his Admission of
Guilt Form.

no punishment other than a fine shall be imposed on any
person convicted under this section., the exception
54
being Traffic offences, the court may, in addition to
any fine imposed, exercise the powers of suspension,
cancellation, disqualifying and endorsement conferred
upon courts by the said Act.

The provisions of this section shall not applyo where the accused person is a juvenile
o in respect of such offences or classes of offence
as
the
Chief
Justice
may
specify
by
statutory
notice.
7. TRIAL BEFORE THE SUBORDINATE COURT

section 51 of the Act
In every cause or matter a record of the oral evidence
shall record the proceedings magistrate can append
signature.
CJ can allow shorthand and verbatim showing separately
each question and the answer thereto."
o GEORGE CHILESHE v THE PEOPLE [1977] Z.R. 176
The failure to adhere to the strict requirements
of the Rules relating to the taking of a record
of evidence is an irregularity which can be cured
provided there was no miscarriage of justice.
o ACTING DIRECTOR OF PUBLIC PROSECUTIONS v MANDA
(1974) Z.R. 206
55
Magistrates are required by law to record in
longhand the evidence in criminal cases unless
some dispensation is given by the Chief Justice.
It is not a compliance with that provision of
the law for a magistrate to introduce his own
form of shorthand which is unintelligible to
anybody else. The magistrate must record the
evidence in such a form that somebody else can
read it.

Uganda v Raimondo Alindubo and Another [1966] E.A.L.R.
301
accused persons can only be jointly tried if they
appear on the same charge sheet in which they are
jointly charged

James Chibuye and Others v The People [2010] 3 Z.R.
308
A trial can go on even where the accused person
refuses to appear in court

Isa Yona Sibale v The People [2009] Z.R. 46
Being denied the opportunity to retain counsel denies
one
a
fair
trial
under
Article
18(1)
of
the
Constitution
o The People v Frackson Banda [2011] 1 Z.R. 166
A nolle must be entered where accused person dies
during trial in the high court. But in the subordinate
court if can either be a nolle or withdrawal under
section 88

TRIAL BEFORE THE SUBORDINATE COURT
56
o Unlike in High Court, it is by summary trial
o Section 197 CPC –magistrate will sit alone or with
assessors
R v Yohanni Mporokoso 2 NRLR 152
In this case the magistrate sat with two native
chiefs who advised him on native custom. But court
was of the view that native must be proved through
a witness in the witness box.
o Calling the case

Open to public except-section 76 of CPC
o Chungu v Republic [1967] E.A.L.R. 68
Trial in chambers found to be in open
court where doors and windows were open
and the public where aware that it was
going on

Section 76 CPC interlocutory, prejudice to
public safety or trial of a juvenile
o Section
121
Juveniles
Act
–juvenile
witness offences against morality
o Section 120 Juveniles Act children not
allowed
(other
than
infant
in
arms),
except witness
o Section 15 of the State Security Act

Case called-section 191
proceed
in
presence
and 200
of
CPC;
accused
must
unless
dispensed with

under Section 99-attendance can be dispensed
and
one
can
plead
guilty
by
letter
for
offences only attracting a fine or 3 Months
imprisonment
57

R v Gwendolen Mellows 5 NRLR 695
Must be in writing or by counsel; where
only letter must plead guilty. But where
counsel can either plead guilty or not
guilty

Regina v Wilson [1957] R&N 620
Police
and
court
to
ascertain
that
accused understands the charge and really
wants
to
plead
guilty.
Permitting
an
unlicensed driver and permitting vehicle
with defective breaks. In his statement
that
he
did
not
know
that
they
were
defective.

Regina v Sunchi [1958] R&N 152
It is impossible to alter a charge in a
case where a person decided to pleaded
guilty to a charge different to what he
is facing if he had pleaded guilty by
letter.

Where fine not paid can summon

Where previous convictions not admitted
can summon
o Article 18(12)(d)(i) Constitution trial can proceed
in the absence of and accused person who absconds
if it finds it reasonable and just to do so.
Conviction can be set aside if gives reasonable
explanation for absence and has a defence
58

Section
203-for
non-felony
can
proceed
in
absence of accused but conviction can be set
aside

Prosecutor and defence counsel put themselves
on record
o Paul Jeremiah Lungu v The People [1978]
Z.R. 298- only advocate can prosecute on
behalf of complainant
o R v Musango Brothers 5 NRLR 599
Accused cannot be represented by a lay
person (a firm or partnership)

Section 199 CPC- where accused is present but
complainant not there can dismiss case
o The People v Chaponda [1973] ZR 175complainant
prosecutor
not
.it
is
synonymous
one
who
with
makes
a
complaint under section 90. In a case
where there is a public prosecutor cannot
dismiss under section 203(1) dismissal
not acquittal unless public prosecutor
offers no evidence
o Section 202 – adjournments no more than 30 days and
if in custody 15 days
o THE PEOPLE v NAWA MUYEDEKWA AND ANOTHER
[1977] Z.R. 232
In proceedings before a subordinate court
an accused person may not be remanded in
59
custody for a period exceeding 15 days at
any one time.An accused person may not be
held
in
custody
without
a
warrant
authorising his detention.
o THE DIRECTOR OF PUBLIC PROSECUTIONS v MARGARET
WHITEHEAD [1977] Z.R. 181
The
exercise
of
the
discretion
to
allow
an
adjournment depends very much on the circumstances
of the case in question; whether or not the accused
is in
custody, how long he has been in custody,
the seriousness of the offence with which he is
charged and the probable sentence if he should
prove to be guilty, whether or not the application
is the first of its kind or whether there had been
previous adjournments, and the reasons why the
witnesses are not in court.
The overriding principle must always be whether the
interests of justice demand that an adjournment be
granted, but the courts must not lose sight of the
fact that justice must be done to the society as
well as to the individual.
o Raselo and Beston v R [1960] R&N 803
An appeal where cases proceeded without
counsel allowed if discretion to adjourn not
properly allowed rendering trial unfair.
Cannot adjourned for long time especially
where it is inadvisable to release on bail
merely for convenience of counsel
o
o Mayonde v The People [1976] ZR 129
Once an accused seeks time to engage an advocate
the
provisions
of
Article
20
(2)
of
the
60
Constitution indicate that he must be granted all
reasonable adjournments. While it can be said that
the appellant should have instructed his advocate
before the trial date, nonetheless the advocate's
application for an adjournment was a perfectly
reasonable one.

Accused asked language he intends to use if
not English interpreter provided-section 195
evidence given in language not understood must
be interpreted
o Sakala and Others v Regina [1959] 1R&N
268
Necessary
to
have
an
impartial
and
disinterested interpreter. In this case,
he had investigated the case and given
evidence on behalf of the prosecution
despite objections from the appellant.

Accused asked to confirm name and address

Charge
read
out:
particulars of

both
statement
and
offence
Section 356 CPC In the case of a corporation
appears by a representative
R v Musango Brothers 5 NRLR
A partner can appear on behalf of the firm but
unqualified person cannot represent it

Section
201
CPC
complainant
can
withdraw
complaint

Section 8 CPC
o
o THE PEOPLE v CHIGARIRO (1974) Z.R. 200
61
Where reconciliation is effected under s.
8 of the Criminal Procedure Code in terms
of payment of compensation or other terms
approved by the court, then the court
concerned
should
order
that
the
proceedings be stayed. In such a case,
there is no valid basis in law for an
order that the accused be bound over and
that a warrant of distress should issue
in default of payment of compensation.
o
The plea

Manager, Tank Building Contractors v Republic
[1968] E.A.L.R. 143
It is only in cases where the attendance of an
accused person has been dispensed with that an
advocate
can
enter
plea
on
behalf
of
an
accused person. In all other cases the accused
must take plea

Regina v Matyola [1958] R&N 154
it is undesirable to call on an accused person
to plead more than once unless he has asked to
retake
the
plea.
He
may
admit
the
charge
thinking the court expects him to do so.

Section 85(1) CPC where consent required

Mwanza (A.B.) v The People
If
case
requires
[1973] Z.R. 329
consent
of
DPP
certificate presented to court or case
62
adjourned
for
presentation
of
certificate

Section 204 CPC-Accused invited to respond
after each and every count is read
o R. v Berson [1962] R&N 578
Each count must be put to the accused
person and he must plead separately. Can
overlook those not admitted.
o Either plea of guilty
o Not guilty or
o Where he refuses, enter not guilty

section 160 CPC where accused does not respond
court must enquire whether accused is capable
of making a defence(Sections 160 to 167 CPC)

WILLIAM v THE PEOPLE [1972] ZR 5
It is the normal practice when an accused
person is represented by counsel and when he
has pleaded not guilty to a charge that the
charge can only be re-explained or re-read to
him
at
the
request
of
counsel.
In
such
circumstances counsel normally asks the court
to
have
the
charge
re-read
and
explained
because his client, on his advice, intends to
take another course.

section 160 CPC court must inquire into where
issue
of
failure
to
plead
by
reason
of
unsoundness of mind or disability arises
o THE PEOPLE v MUSITINI 1975 ZR 53 the
court should immediately enquire when the
63
issue of whether accused is capable of
making a defence

R v Wolomosi Phiri (No. 2) 5 NRLR 187
The fact that the accused was adjudged to be
insane in another offence committed shortly
before the current one does not stop the court
from inquiring into his sanity

section 161 CPC
o this may include medical examination
o enters plea of not guilty where finds
that not able to make defence
o THE PEOPLE v MWABA
1973 ZR 271 whether
a person can make a defence should be
dealt with as soon as it arises from any
person including a medical expert
o THE PEOPLE v BANDA 1972 ZR 307 in the
inquiry
the
court
needs
to
find
out
whether is capable of making a defence or
whether he was insane at the commission
of the crime
o SIAMUBALA SENDE SIANZELE v THE PEOPLE
[1977] ZR 131
No appeal lies against an order made
under section 161 (2) (b) of the Criminal
Procedure Code; the Supreme Court can
hear an appeal against A special finding
made
under
section
167
because
sub-
section (2) of that section specifically
provides that such a finding shall be
64
deemed
to
be
a
conviction
for
the
purposes of an appeal.

trial proceeds
KALALUKA MUSOLE v. THE PEOPLE [1963-1964] Z.
AND N.R.L.R. 173
There is no onus on the defence to prove any
defences as the prosecution must prove their
case beyond reasonable doubt. They must also
negative the defences as they arise

at end of trial
o acquits if no evidence-161(2)(a) CPC
o calls upon to give defence MWABA CASE

if sufficient evidence to justify conviction
o order
detention
during
the
presidents
pleasure-section 161(2)(b) CPC
o section
162
where
order
is
made
by
subordinate court must transmit record to
the
high
Court
for
confirmation
of
sentence, court has powers similar to
those it has on revision/appeal
o The
People
procedure
v
Mwewa
under
[1971]
section
Z.R.
163(1)
171
(was
154(1)) is only applicable to a person
who suffers from mental illness. Mute
person for the purposes of sentencing
treated like a normal person.
65

The People v Josphat Kapaipi 1 Z.R.
236
(deaf
detained
during
the
presidents pleasure)

special finding (defence of insanity-section
167)
o Onus of establishing unsoundness of mind
rests on accused person-Khupe Kafunda v
The People 2005 ZR 31
o Regina v Tembo [1961] R&N 858
The demeanour of a witness during trial
or the lack of apperent motive for an
accused persons actions is an unreliable
guide for the sanity of a person when the
crime was committed.
o Chabala v The People [1975] ZR 128
where an accused person is able to make
a proper defence and the only issue is
what was his mental condition at the time
of the offence it is for him to decide
what defence he wishes to put forward and
generally how he wishes to run his case.
If
he
wishes
to
defend
the
matter
entirely on the merits without raising
the question of insanity this is his
privilege.

even
where
acquitted
can
order
detention-
section 161(3)
o Mental Disorders Act Cap 305
66

section 165 CPC- one detained because cannot
make a defence must be brought back when ok
o MBAYE v THE PEOPLE 1975 ZR 74 where a
person is taken for medical examination
even if they have been found not to be
able
to
make
a
defence
they
must
be
tried. They cannot wait until treated.
o CHABALA v THE PEOPLE 1975 ZR 128 the
difference between mental capacity at the
time of a trial (fairness of the trial)
and at the time of the commission of the
offence (criminal responsibility)

no appeal against special finding
o MALITA BANDA V THE PEOPLE 1978 ZR 223 no
appeal lies to an order under 161(2)(b)
on
its
merit
but
where
made
without
jurisdiction.

Section 164 CPC –president may order discharge
of persons detained during his pleasure

R v Jailos Jonato 5 NRLR 726
Infirmity by reason of hysteria does not make one to be
of unsound mind
Court should enter plea of not guilty. Applies to being
drunk.

Where more than one each and every one must respond to
each count
o Regina v Assani and Baison [1957] R&N 398
67
The court must record a separate plea and pass a
separate sentence for each count subject to some
sentences running concurrently in some cases

Accused must personally plead not sufficient for counsel
to indicate that his client intends to plead guilty

Court records plea of guilty or not guilty

Where
represented
lawyer
indicates
whether
it
is
according to instructions

Accused can plead guilty to some counts and not guilty
to others
o Plea of guilty

Where unrepresented practice is for court to
explain ingredients of offence
o R v Windasi [1963] R&N 10
Where there is a plea of guilty, it is
necessary for the court to be satisfied
that all the elements of the offence have
been
admitted.
where
the
The
burden
accused
is
person
greater
is
not
represented

Gideon Hammond Millard v The People [1998] ZR
52
Where represented sufficient for the court to
proceed
on
advised.
the
But
assumption
where
in
that
error
it
has
been
can
be
withdrawn

Section 204 (2) CPC- procedure where admits
the charge
R v Mutemwa Muhongo alias Lyembu 2 NRLR 78
68
Must convict and sentence but can adjourn to
call
witness
to
help
with
information
to
arrive at appropriate sentence

Can plead on own volition or as a result of
a plea agreement –

section
7
of
the
Plea
Negotiations
and
Agreements Act no 20 of 2010 Section 4 –plea
negotiations can be initiated by a public
prosecutor or the accused person at any time
before judgment
o The accused person undertakes to plead
guilty to an agreed offence and fulfill
other obligations
o Section
19 grant of legal aid to a
person wishing to negotiate a plea
o Section
5-
sets
out
the
prosecutors
obligations are to
o withdraw
or
discontinue
the
original charge
o To accept the accused persons plea
to lesser charge
o Section 6 the prosecutor is also obliged
to inform the accused person of the right
to legal representation and will only
negotiate through the lawyer.
o section 9 when ever an agreement has been
entered into the court
in open court
must be informed
or in chambers were good
cause exists
69

Accused
invited
to
confirm
particulars
of
offence
o SHAMPETA AND ANOTHER v THE PEOPLE (1979)
ZR 168
for a person to plead guilty they must
appreciate the nature of the offence and
admit sufficient facts.

Where there is statutory defence and accused
is unrepresented rule of practice is that
court must explain MWABA v THE PEOPLE (1974)
ZR 264

Prosecutor invited to present statements of
fact
o includes medical reports
o public analysts report
o ballistics report
o post-mortem report

THE PEOPLE v PATEL 1968 ZR 167
facts
must
support
the
charge,
where
they
do
not
prosecutor must clarify or amend or court enter plea of
not guilty

The People v Andrea Mwale and Another [2014] 3 Z. R. 226
Where evidence discloses offence triable in High Court,
Subordinate Court must invoke the provisions of section
220 of CPC and conduct PI.

Section 7 PNAA the plea agreement Will be in
writing
and
will
contain
the
following
information
o The original charge
o The new charge
o The statements of facts
70
o A statement that the accused had
been informed of his rights
o The rights and obligations of the
state and the accused persons under
the agreement
o It will also be signed by public
prosecutor,
the
accused
and
his
lawyer

statement of facts only on those where pleaded
guilty
o Regina v White [1956] R&N 447
Court must indicate source of the facts
and that they have been explained to the
accused person

accused asked if facts true and correct
o THE PEOPLE v JOHN KAPALU KANGUYA 1979 288
a plea must not be equivocal. Each and
every fact must be admitted. Admission
of
the
facts
will
not
validate
equivocal or imperfect plea especially
where not represented

confirms and /or indicates which ones not
correct

court considers whether disputed facts go to
the root of the admission
o if they do not court still records a plea
of guilty
o may actually amend the facts to take care
of the disputed facts
71
o if goes to the
records a plea of
root of the admission
guilty
o THE PEOPLE v MASISSANI 1977 ZR 324
Where
facts
vital
to
a
conviction
disputed plea of not guilty should be
entered. But does not matter if not vital

DPP
v
Lameck
Stephen
Tembo
[1989] ZR 34
o Stanley Kasungani v The People [1978]
Z.R. 260
Where disputed facts only go to sentence
a plea of not guilty can be maintained.
a magistrate is entitled to accept the
accused's version of the facts without
further
inquiry,
particularly
if
the
prosecution raises no objection. Where
disputed
facts
are
material
to
the
seriousness of the offence, even if the
prosecution makes no indication that it
does not accept the accused's version,
the court should inquire into those facts
for the purpose of assessing the proper
sentence.

court considers whether statement of facts
discloses an offence, where does not enters
plea of not guilty

section 10 PNAA the court is not bound to
accept a plea agreement except where
non-
acceptance would be contrary to the interests
of justice
72

Sections
11 and 12 PNAA sets out the factors
the court should consider before accepting the
agreement
and
the
grounds
on
which
an
agreement can be can refused
o The
accused
person
has
not
been
induced
o The
accused
person
subsistence,
understands
nature
and
consequences of the plea agreement
o There is factual basis on which the
agreement
has been made
o Acceptance
of
plea
would
not
be
contrary to the interests of justice
and public interests.
o An agreement that is contrary to
interests of justice will not be
accepted
o An
agreement
disclose
an
whose
facts
offence
do
will
not
not
be
accepted
o Where the accused person does not
confirm the agreement it will not be
accepted
o Rejection of an agreement does not
prevent
the
parties
from
negotiating another one
o Where
trial
the agreement is not accepted
proceeds
on
the
original
charge

on
recording
a
plea
of
guilty
court
also
convicts
73
o R v Mutemwa Muhongo Alias Lyemba 2 NRLR
78- where there is a plea of guilty, the
court must convict. It is permissible to
hear one or two witnesses for the purpose
of determining the sentence
o Sitwala v R [1962] R&N 714
A plea of guilty to a charge of murder
can
be
accepted
satisfied
that
where
the
the
accused
court
is
person
is
fully aware of the consequences of such
plea

prosecutor invited to indicate if there are
previous conviction

R v Ievers 2 NRLR 87
Procedure in considering outstanding charges
of a similar nature at the request of the
accused person

accused lawyer invited to mitigate

court passes sentence usually indicating why
has arrived at particular sentence
o THE PEOPLE V CHOTOO LALA 1974 ZR 201
Plea can be withdrawn at any stage before
sentence
after
which
becomes
functus
official
o TITO MANYIKA TEPULA v THE PEOPLE 1981 ZR
304
o Within discretion of court to allow but
for good and sufficient grounds

Section
15
and
16
Plea
Negotiations
and
Agreements Act - a party to a plea agreement
can withdraw from it where,
74
o The accused person was improperly
induced, has breached the terms of
the
agreement
or
has
made
a
misrepresentation
o The
Prosecutor
was
misled
on
material fact by accused person or
his
lawyer
or
where
accused
was
induced

PNAA EXTRAS
o section 8 requires the state to inform
the
victim
agreement
of
was
the
reason
entered
into
why
the
and
its
substance as soon as practicable
o The victim is also entitled to be
present in court when the agreement
is considered
o Section 16
Evidence
made
available
in a plea negotiation agreement cannot be
used in any criminal or civil proceedings
o Section 17 an application can be made to
seal records of a plea negotiations or
agreement

Can delay sentencing in cases where
o Pleads guilty to some counts and not
guilty to others, will wait until trial
concluded so that there is consistency
with sentence
o Where
some
accused
plead
guilty
and
others plead not guilty.
o plea of not guilty
75

section 205 CPC- procedure where there is plea
of not guilty

Regina v Lameck [1958] R&N 175
Where there is a plea of not guilty, all the
material facts are put in issue and they must
be proved by evidence and the accused person
given the opportunity to cross examine the
witnesses

prosecutor calls first witness
o section 195 CPC-when evidence is given in
a language not understood by the accused
must be translated. When represented an
advocate does not understand vernacular,
must interpret

Section 143 CPC.
a person with material
evidence for any criminal cause or matter
can be summoned to attend or be required to
bring
and
produce
evidences
in
his
possession specified in the summons.

Section 144 CPC.
where without sufficient
excuse, a witness does not appear the court,
on
proof
of
the
proper
service
of
the
summons may issue a warrant
o Section
satisfied
145
CPC
that
If
a
the
person
court
will
is
not
attend it may at once issue a warrant
for the arrest and production of such
person in the first instance
76

Section 146 CPC.
Can furnish security
by recognizance

Section 147 CPC can summon prisoner

Section
attracts
148
CPC
a
failure
fine
not
to
attend
exceeding
six
hundred penalty units.

there may be object to competence of witnesses
o Section 151 CPC
Nalumino Nalungwana and another v The
People (1986) Z.R. 28
Evidence of an
appellant's
not
wife
is
admissible
against him on a criminal charge.
Crispin Soondo v The People (1981) Z.R.
302
-Where
two
or
more
persons
are
indicted jointly, the wife or husband of
any such defendant is not a competent
witness against any co-defendant.
o Section 128 of Juveniles Act cap 53spouse being called as witness

other witnesses remain outside
o MWABA v THE PEOPLE 1969 ZR 61A witness will not be disqualified from
testifying merely because they were in
court
during
the
testimony
of
other
witnesses
HAPPY MBEWE v THE PEOPLE (1983) Z.R. 59
There is no rule of law that witnesses
must remain outside until called to give
evidence; and indeed if a judge in his
77
discretion, so rules, he cannot refuse to
hear the testimony of a witness who has
remained in court throughout.

witness sworn or affirmed-PHIRI V THE PEOPLE
(1975) ZR 30- where witness is non believer
can affirm
o Patson Chisomo v R [1961] R& NLR 300
Conviction is a nullity where based on
unsworn testimony. Can order retrial
o if child voir dire

section 196 CPC- court records age and sex of
the witness

voir dire
o Section 122 of The Juveniles Act1 provides for
admission of child’s evidence. Where a child is
below the age of 14 such child’s evidence can only
be received on oath if in the opinion of the court,
he
is
possessed
justify
the
of
sufficient
reception
of
intelligence
his
evidence
to
and
understands the duty of

The People v Patrick Mulala [2015] 2 Z.R. 358
A child who is not possessed of sufficient
intelligence and does not understand the duty
to speak the truth should not be allowed to
give
evidence.
Cannot
be
allowed
to
give
unsworn evidence

Machipisa Kombe v The People [2009] Z.R. 282
Odd coincidences can amount to corroboration

Ivess Mukonde v The People [2011] 2 Z.R. 134
78
Opportunity can provide the corroboration

Piles v R. [1962] R&N 325
Motive alone cannot amount to corroboration
o speaking the truth. Where a child is possessed of
sufficient intelligence but does not understand the
nature of the Oath or vice-versa, his evidence
shall not be received.
o CHIBWE V THE PEOPLE 1972 ZR 239 the court must
record actual questions and answers on which the
conclusion has been reached.
o No fixed age below which child incompetent to give
evidence on oath or unsworn evidence
o Where a voir dire has been inadequate the fault
lies with the court; there is no question of the
prosecution being given the opportunity to look for
further evidence to strengthen its case.

SEMANI V THE PEOPLE 1973 ZR 203-ordering a
retrial is in the discretion of the court

The People v Wina and Wina [1995-1997] Z.R.
137, it should not be ordered in cases where
the prosecution did not prove its case as that
would prejudice the offender; it would give
the prosecution a second opportunity to prove
the case.

Timothy Ngulube v The People [2007] Z.R. 54.
Even where the prosecution proved its case, a
retrial will not be ordered if a substantial
portion of the sentence has been served-see

witness led in evidence
o evidence in chief
o can refer to exhibits
79
o can also identify accused persons.
Dock identification of little or no
value
but
in
cases
where
no
identification parade because
Ali And Another v The People [1973]
ZR 232

accused refused to attend ID
parade

accused has prominent features
which would be impossible to
collect
others
with
such
feature Hunter [1969] Crim LR
262

Gadeni and Four Others v Regina
[1961] R&N 366
The normal thing is that the
parade
will
be
under
the
control of one police officer
who
can
testify
on
the
conditions during the parade
o Witness
can
use
contemporaneously
notes
to
taken
refresh
memory; interrogation notes
Shamwana and Others v The People
[1985] Z.R. 41

Elijah v R [1963] R&N 237
Allowed in two circumstances,
where does not recollect but
remembers making a record and
where recollects but wants to
be accurate.
80
o Section
196
CPC-
magistrate
can
record remarks as he thinks material
to the demeanour during examination
o cross examined accused or defence counsel
(counsel cross examine in the order of
the accused persons they represent in the
absence of agreement)
o Sikota v The People [1968] ZR 42
Accused persons in the order that
they appear cross examine
o Nyense v R. [1962] R&N 271
Failure
cross
to
be
examine
informed
co
that
accused
is
can
an
irregularity, which if prejudices
the defence, warrant a retrial
o Cross examination through previous
inconsistent statement

Miyoba v The People [I977] ZR
218

Nkonde v The People [1975] ZR
99

Kasumu v The People [1978] ZR
252
o Gadeni
and
Four
Others
v
Regina
[1961] R&N.L.R. 366
Every accused person, including one
against whom no evidence has been
given, is entitled to cross examine
a witness
o Masi v Regina [1961] R&N 601
81
Unnecessary
cross
examination
by
the accused cannot be a basis for
disbelieving
the
statement
an
accused person makes in his defence
o re-examined on issues raised in cross
examination
o court may ask to clarify during or after
R v Philip Fikause 1 NRLR 128
Magistrate cannot cross examine, where
desires information beyond that adduced
in
chief
abstain
or
cross
asking
examination
until
after
should
cross
examination and re examination
o Lameck and Three Others v Regina [1961]
R&N 267
Questions that are put across in cross
examination by an accused person are not
evidence and cannot be taken into account
by the court.

James v Regina [1958] R&N 707
It is the duty of the trial magistrate to be
alert and exclude inadmissible evidence. Must
not
wait
until
there
is
an
objection
especially in cases where the accused person
is unrepresented

no order in which witnesses must be called but
danger of hearsay
R v P_ S_ (a Juvenile) 5NRLR 616
Where a child has not given evidence, the
mother’s
evidence
on
the
complaint
is
inadmissible
82

Hostile witnesses

Jeffrey Munalula v The People [1982] Z.R. 58
(i) Where on an application to treat a witness
as
hostile,
the
court
after
sight
of
the
inconsistent statement, decides to grant the
application, it should then direct itself not
to place any reliance on the contents of the
statement and so record in the judgment.
(ii) Before, with leave of the court, adducing
evidence to prove a witness's inconsistency,
the previous statement and its circumstances
must be mentioned to the witness so that he
may say whether or not he has made such a
statement.
(iii)
It
is
in
the
court's
discretion
to
determine a witness's hostility in that he
does not, give his evidence fully and with
desire to tell the truth; he is not hostile
simply because his evidence contradicts his
proof or is unfavourable to the party calling
him. Much is dependent on the stature and
extent of the contradiction; but, under common
law file court may treat as hostile, even a
witness who has not made a prior inconsistent
statement, on the basis of his demeanour.
(iv) The inconsistent statement of a hostile
witness is completely inadmissible as evidence
of the truth of the facts stated therein.
83

Section
150
refractory
of
when
the
they
CPC-
a
refuse
witness
to
be
is
sworn,
answer questions or produce documents. Adjourn
for 8 days and detain in prison

all expert witnesses must be called except
medical
o Section 191A document by medical officer
can be produced without the maker
JOHN NYAMBE LUBINDA v THE PEOPLE [1988 –
1989] ZR 110
Where
a
doctor
is
not
available
to
produce a post-mortem report it should be
produced in Court under the provisions of
section 191A makes it mandatory for the
Court to admit such document in evidence.
LUPUPA v THE PEOPLE (1977) Z.R. 38
The section was intended to obviate the
necessity to call experts to prove purely
formal matters, like the fact of death in
order to complete a chain of events; it
should not be used as a substitute for
verbal evidence when the actual content
of the report goes to the very root of
the charge, as it does in this case.
o Section 192 affidavit of public analyst

Court
can
issue
a
commission
for
the
examination of a witness- section 152
84
o Magistrate can apply for the commission
section 154

Can also produce affidavit
using mutual legal
assistance
WILFORD FUNJIKA v THE ATTORNEY [2005] ZR 95

witness not limited to oral testimony may also
refer
to
things
and
documents-identifies
exhibit during testimony
o by describing features
o if
author
or
person
whose
has
had
custody can produce exhibit
KAPOSA MUKE AND ANOR v THE PEOPLE [1983]
Z.R. 94
There is no rule of law that an allegedly
stolen article must be an exhibit in a
trial unless the question of its identity
or owner ship arises.

R v Kayambila 1 NRLR 59
Accused
cannot
be
made
to
give
footprints
or
fingerprints during trial and evidence obtained from
such foot prints or finger prints is improperly obtained

Abel Banda v The People (1986) Z.R. 105
A prosecutor is under no duty to place before the court
all the evidence known to him, however where he knows of
a credible witness whose evidence supports the accused's
innocence, he should inform the defence about him.

Nelson Bwalya v The People[2010] 3ZR 147
a confession can be oral or written
o The People v Lukas Chiwaula [1970] ZR 115
85
Where there is evidence which purports to be a
confession, it is desirable that the exact words
are used

KANGACHEPE MBAO ZONDO AND OTHERS v. THE QUEEN
(1963-
1964) Z. AND N.R.L.R. 97
In deciding whether a statement made by an accused person
to the police is admissible, the test which a court must
apply
is
not
whether
the
Judges'
Rules
have
been
infringed, but whether the prosecution has affirmatively
established
that
the
statement
was
made
freely
and
voluntarily.

CHILESHE v THE PEOPLE (1972) Z.R. 48
The 1964 revised Judges' Rules have not been applied in
Zambia
and
the
pre-1964
Judges'
Rules
are
still
applicable.
Under the pre-1964 Judges' Rules applicable in Zambia a
person in custody whether he has been charged or not
must be cautioned before any interrogation takes place.
If a court is satisfied that the statement was made
voluntarily but in a manner unfair to the accused, the
court has discretion to exclude such statement under the
pre-1964 Judges' Rules.

Trial within a trial
o ABEL BANDA v THE PEOPLE (1986) Z.R. 105
A village headman is not a person in authority for
purposes of administering a warn and caution before
86
interrogating a suspect, since his normal duties do
not pertain to investigating crime.
o admissibility of a confession is being voluntary
and not truthfulness
o THE PEOPLE v NEPHAT DIMENI (1980) Z.R. 234
It is desirable to have the parent or guardian
present when a statement is being taken from a
juvenile and in cases where the juvenile has no
parent or guardian, it would be desirable in the
interest of justice to have some other person other
than a Police officer.
o where contested that was not free and fair

KASUBA V THE PEOPLE 1975 ZR 41when a witness
is about to be referred to the incriminating
evidence the accused should be asked if they
object

HAMFUTI v THE PEOPLE (1972) ZR 420 whether or
not the accused is represented he must be
asked whether he objects to the contents of a
statement
o Will not be held because accused did not understand
the language or was scared

VILONGO
v
THE
PEOPLE
1977
ZR
423
not
sufficient that was scared but that fear was
put into a person to induce the confession
o Morgan Ngosa v The People [2010] 3ZR 191
An objection on the ground that that accused did
not understand or use language of statement does
87
not raise a triable issue it does not require a
trial within a trial
o MATE, MBUMWAE AND MWALA 1995-1997 ZR 135
an allegation that no statement was made despite
beatings does not raise the issue of voluntariness
but raises a question of credibility as one of the
general issues-but being forced to sign does
o NYAMBE v THE PEOPLE (1973) Z.R. 228
Objection was taken to the confession on the ground
that the appellant was forced to sign a statement
not
made
by
him,
a
trial
within
a
trial
is
necessary.
o R v Kalalukwa Jwani VI NRLR 8
A confession statement obtained by deception is
admissible
o Prosecution
persons
who
will
were
call
police
present
officers
during
and/or
recording
of
statement

Witnesses cross examined and re examined

At close of prosecution case accused person
gives testimony and calls witnesses

Cross examination limited to admissibility of
statement during trial within a trial-
o Patrick Kunda and Robertson Muleba Chisenga v The
People
[1980] Z.R. 105
The ruling must be a detailed judgment on the
reasons why the statement was admitted.

The People v Moses Ainela Phiri and Others
[2014] 2 Z.R. 160 – trial within a trial is
88
rendered redundant where accused person denies
making the statement
o Tapisha v The People [1973] Z.R. 222 –has argument
why

held even where subsequently
o Lumangwe Wakilaba v The People [1979] Z.R. 74 can
be held where accused suggests that was induced
even after the prosecution has closed its case

To
determine
admissibility
of
confession
statement

Accused cannot elect to remain silent
o SILUNGWE v THE PEOPLE (1974) Z.R. 130
That although there was no obligation on the part
of
the
prosecution
to
produce
every
possible
witness at a trial, it was of paramount importance
that
the
conduct
of
a
trial
must
in
all
circumstances be fair, and, if evidence was not
available due to insufficient investigation, or a
statement has not been taken from a vital witness
who subsequently becomes unavailable, then these
were matters which might cause serious doubt upon
the fairness of the trial to such an extent that it
would be unsafe to convict.
o Muzidzwa and Others v R [1963] R&N 491
Statement cannot be introduced by expedient cross
examination on it


The People v Andrea Mwale and Another [2014] 3 Z. R. 226
Where evidence discloses offence triable in High Court,
Subordinate Court must invoke the provisions of section
220 of CPC and commit to High Court after PI.
The People v Banda [2014] 2 Z.R. 97
89
Where there is a plea of guilty, charge cannot be read
again unless the accused person requests for it

submission of no case to answer

defence makes the first speech
NGOMA v THE PEOPLE (1972) ZR 42- court should
not allow state to close its case and address
the court before defence has submitted on case
to answer

followed by prosecution

defence reply

MOYO and Five Others v The People [1966] ZR
100
No further evidence other than evidence in
rebuttal can be given after the court has
reached
a
stage
where
it
is
giving
consideration of whether the accused should be
put on his defence.

section 206 CPC-ruling on case to answer

Lameck and Three Others v Regina [1961] R&N
267
Court is not only concerned with whether the
case has been made out but also whether the
evidence supports the charge that he is facing

can find with case to answer
o same offence
o lesser offence or different offence
Regina
v
Fulunete
[1957]
R&N.332
and
Hermes v Regina [1961] R&N 34
At the close of the prosecution case the
magistrate should consider whether to put
the accused on his defence on a lesser
90
charge if that is what is disclosed by
the evidence

as regards lesser or different charge, Section
213(1) CPC at any stage of a trial before the
defence,
the
charge
can
be
amended
by
substitution or addition of a new charge, as
the
court
thinks
necessary
to
meet
the
circumstances of the case.
o
the court shall thereupon call upon the
accused person to plead to the altered
charge
o the accused may demand be recalled and
prosecution shall have the right to reexamine such witness

The People v The Principal Resident Magistrate, Exparte
Faustine Kabwe and Aaron Chungu [2009] Z.R. 170
here are no interlocutory appeals against decisions made
under section 206 and the court is not required to give
reasons for finding or not finding one with a case to
answer

Section 220 CPC can commit to the High Court if discovers
that
it
is
a
case
not
suitable
for
trial
in
the
subordinate court
ALEX MWEWA v THE PEOPLE (1970) Z.R. 63
Where the crime is aggravated robbery the magistrate
should transform the trial into committal proceedings
and the summary proceedings should cease.

R. v Stanford and Filimoni [1962] R&N 330
Must not just refer case to High Court but
must commit it

court can acquit
91
THE PEOPLE v DAUTI TIYESANJE PHIRI [1985] ZR 201
An acquittal can only be entered where evidence has been
led or if not led where the prosecution has offered no
evidence.

no case to answer
o The People v Winter Makowela and Another [1979] Z.R
290
o The People V Japau [1967] Z.R. 95
Submission of no case to answer properly made and
upheld where
essential elements of offence not
proved
o prosecution
evidence
discredited
in
cross examination
o a reasonable tribunal cannot convict
o Mwewa Murono v The People [2004] Z.R. 206
Court must acquit if case not made and accused
persons evidence will not cure gaps.
o Regina v Damson [1957] R&N 721
Acquitting mandatory and cannot allow prosecutor to
call more witnesses after closing the case. Was
granted leave to call additional witnesses after
which convicted. He appealed.

Solomon Mungai and Others v Republic [1965] E.A.L.R. 782
the
acquittal of a joint offender does not vitiate the
charge(s) against other joint offenders if there is
evidence incriminating them

Section 172 (2) CPC
a Judge or a magistrate who acquits
or discharges a person accused can order reasonable
costs, as to such Judge or magistrate may seem fit, be
paid to such person and such costs shall be paid, where
the prosecution was in the charge of a public prosecutor,
92
from the general revenues of the Republic, and in any
other case by the person by or on behalf of whom the
prosecution was instituted:
o Provided that no such order shall be made if the
Judge or magistrate shall consider that there were
reasonable grounds for making the complaint.
R v Ian Shaw Kemp1 NRLR 148
An order for costs cannot be mad against person who
laid charge if it was a public prosecution

Director Of Public Prosecutions v Godwell Billy Siwale
[1981] Z.R. 71
Before a conviction or an acquittal, there must be a
verdict which must be returned by the by the trial court.
A judge should have entered a verdict of not guilty
before making the order of an acquittal. Failure to enter
a verdict rendered the trial a nullity.

Section 213 CPC-can amend charge at this stage and indeed
at any stage, accused has option to recall witnesses

Section 220 CPC can commit to the high court
for trial if inappropriate for summary trial

Billion v R. [1962] R&N 745
A magistrate must not make an interlocutory ruling on
the merits of a case. Dismissed a discrepancy on some
details in the course of the trial

Motani v R [1961] R&N 552
Appeals from interlocutory orders should not be allowed
unless it can be shown that the risk of prejudice is
apparent.
Even
under
English
law
no
appeal
until
conclusion of trial
93

207 CPC case for the defence
o Sakala v The People [1969] 167
Where accused is put on his defence for a
lesser or minor charge, court should draft the
charge and call him to plead. It must also
allow him to recall witnesses.
o R v Bumani [1963] R&N 124
Though there is no statutory requirement for the
court
to
explain
defences
open
to
an
accused
person, it is the duty of the court, especially
where the accused person is illiterate to explain
o Mundivoni v R [1963] R&N 178
Court can only explain the alternatives and the
weight they carry but should not suggest which one
will be in the accused’s advantage
o Astains Nkohma v The People [2006] ZR 98
Where the accused person dies after he has put
on his defence the court must rule on his
culpability
if
the
matter
has
not
been
withdrawn.
o accused advised on rights

Japhet v Regina [1960] R&N 738
When an accused person is called upon to make
his defence, he must decide there and then and
give his
defence before his witnesses. He
cannot postpone his election.
o accused can give:

sworn evidence
Regina v Francis [1956] R&N 115
There is no or practice which prescribed that
that
evidence
can
only
be
given
from
the
94
witness box (Southern Rhodesia). where there
is
aversion,
can
allow
one
to
give
sworn
evidence from the dock

a statement
o R v Muchima 4 NRLR 64
Where elects to give a statement court
can only ask questions necessary to clear
up ambiguities of what he has said cannot
cross examine
o R. v John [1962] R&N 13
Where raises an issue that would be a
complete defence, it cannot be rejected
out
of
hand
on
the
ground
that
the
statement was unsworn
o Regina v Woolridge [1956] R&N 602
It is a misdirection to think an unsworn
statement can not stand on its own unless
there is prosecution evidence to make it
probable

can remain silent

call witnesses
o where accused person is unrepresented court has
duty to explain statutory defence-
CHANDA v THE
PEOPLE (1968) ZR 58
o SICHOTE v THE PEOPLE (1975) ZR 32-but
cannot do so on the ground that counsel
is inexperienced.
o All accused persons must remain in court

R v Ngunduza and Dixon 2 NRLR 43
95
Court has no power to order removal of accused
person even at the request of counsel
o Sections 208 and 209 CPC-accused first to give
evidence

SHAW v THE QUEEN 1963-64 ZR 167

BARROW AND YOUNG v THE PEOPLE 1966 ZR 43- The
accused person must give testimony before his
witnesses

SIKOTA v THE PEOPLE 1968 ZR 42
First accused person gives evidence first and
cross examined by fellow accused in order of
appearance then by prosecutor

R v Yambayamba and Sampa 1 NRLR 51
An accused person has a right to cross
examine
a
incriminating
co
accused
evidence,
in
who
gives
such
cases
appropriate for multiple defence counsel

if more than one first to cross examine if in
person or represented by different lawyers

Melody Chibuye v The People [1970] ZR 37
Under s. 148 (f) of the Criminal Procedure
Code
questions
relating
to
the
accused's
previous committals and convictions could only
be admitted in evidence where:

it can be proved that his guilt in those
offences
show
that
he
is
guilty
of
the
present offences;

where the good character of the prosecution
witness has been put in issue;
Mambilina v R. [1962] R&N 507
96
Alleging that a confession statement
was
deliberately
and
elaborately
manufactured does not amount to the
imputation
of
the
character
of
prosecution witnesses

where the accused wants to establish his good
character.

Regina v Isaak [1956] R&N 594
It was wrong for the prosecutor to crossexamine
the
appellant
on
character
or
previous conviction unless relevant to the
issue in court. It has a prejudicial effect
which and the appellant should have been
informed of his right to refuse to answer
those questions.
o first accused person calls all witnesses before
next gives evidence and calls witness

Isa Yona Sibale V The People [2009] Z.R. 46
A witness who was sitting in court can be
called as a witness

HASWELL MVULA v THE PEOPLE (1963-64) Z AND
NRLR 171- the defence must support allegations
they make in cross examination with evidence
o Section 210 CPC case in reply

On account of accused raising new issue

Section 211 CPC can also be on account of
witnesses raising new issues
o Joseph Knox Simwanza v The People (1985)
Z.R. 15
97
Under S.210 of the Criminal Procedure
Code, the court may allow the prosecution
to call evidence to rebut issues which
have arisen ex improviso in the defence;
It is the duty of the prosecution to
apply to call the rebutting evidence; It
is
highly
undesirable,
and
procedural
irregularity, for the court to take it
upon
itself
to
call
the
rebutting
evidence.

Town
Clerk,
Livingstone
Municipality
v
Sikolopani 2 NRLR 118
Calling of witnesses after the defence has
closed its case can only take place after a
new issue has been raised. Accused cannot be
convicted on evidence of witness called by the
court after close of defence case.

Patel v The Queen 5 NRLR 335
Improper for the court to inspect locus in quo
merely for the purpose of checking by personal
examination prior evidence given
o
o Submissions

Section 212 CPC- where does not give evidence
or call witnesses prosecutor first

Section
209(2)
accused
gives
CPC
prosecutor
evidence
but
first
does
not
where
call
witnesses

Section 208 CPC
defence first where
gives
evidence and calls witnesses called
98

MOYO and Five Others v The People [1966] ZR
100
Further evidence by the defence may be brought
at any time before judgement
o Henry v Regina [1958] R&N 393
Where an accused person has been found with a case
to answer because the evidence justifies him being
put on his defence and he elects to remain silent
or gives unsworn evidence, the court must still
consider whether the charge has been proved beyond
reasonable doubt
o Judgment

Section 214 CPC can convict or acquit

Section 181 CPC court can convict of minor
offence
R v Benson Mbewe 2 NRLR 28
Minor offence means a lesser offence that is
related to the same charge

Regina v Tipenzenji [1960] R&N 51
The appellant was convicted of the offence of
manslaughter
because
that
is
what
he
was
charged with. This was the case even though
the
evidence
proved
murder.
She
was
also
supposed to be sentenced on the basis of the
offence on which he was convicted
o Court
informed
whether
there
is
any
previous
conviction
o reports submitted and/or mitigation

social welfare reports
99

advocate mitigates
o Fedrew, alias Chinayi v Regina [1956] R&N
47
There is no statutory provision entitling
an accused person to address the court in
mitigation. The failure or refusal of the
court to allow it is not an irregularity
that can affect a conviction though it
may
be
a
basis
for
reassessing
the
sentence. The case can be remitted back
or assessed by the appellate court.
o sentence

Regina v Susa [1958] R&N 953
The tradition is that the prosecutor does not
present evidence that aggravates the charge
for sentencing until he is called upon to do
so

section 214 CPC- may convict and pass sentence
o R v Shem Nyalongo 2 NRLR 136
Separate sentence for each count
o
o may acquit and where acquits, section 216
CPC acquittal bar to prosecution on same
facts

Section 217 committal for sentence to High
Court

Where accused is not less than 17 years

Antecedents and character are such that
greater
punishment
be
inflicted
or
minimum sentence is higher than
100

Ngosa and Eleven Others v R [1959] 2 R&N
47
Though
there
is
no
legal
provision
requiring a judge to inquire into whether
has been a proper plea, the is a duty on
a judge to satisfy himself that there was
a proper committal requiring sentence

Section 218

Record sent to high court

Court proceeds as if had convicted him,
thus appeal lies in the Supreme Court
o R v Kapata 5 NRLR 41
A magistrate may rectify any mistake during a daily
session but not that made on a previous day as
becomes functus officio

R v Zulu and Chilwa [1962] R&N 18
Magistrate cannot substitute a fresh sentence
once verdict and sentence has been entered on
record. Must inform High Court for review.

Patel v Republic [1968] E.A.L.R. 50
A magistrate can vary a verbally pronounced
sentence before the conclusion of the trial
proceedings

CHOMBA V THE PEOPLE (1975) ZR 245
Section
217(2)
where
one
receives
consecutive
sentences the total of which is more than the
maximum sentence, the case will not be committed to
the High Court for sentencing.
101

Section
172(2)
CPC
a
magistrate
who
acquits
or
discharges a person accused of an offence can order
that reasonable costs be paid to such person
o where the prosecution was in the charge of a
public prosecutor, from the general revenues of
the Republic
o
and in any other case by the person by or on
behalf of whom the prosecution was instituted
o R v Guy 5 NRLR 47
The application must be made on the date of the
acquittal
otherwise
the
magistrate
becomes
functus officio

Section 174 CPC.
on the dismissal of any case a
court can award compensation if it is of the opinion
that the charge was frivolous or vexatious, such court
may order the complainant to pay to the accused person
a reasonable sum, as compensation for the trouble and
expense to which such person may have been put by
reason of such charge, in addition to his costs
TRIAL BEFORE THE COURTS MARTIAL (DEFENCE ACT)

Section 86 can try person subject to military law
o Section 121 3years after commission or
o Within 3 months of ceasing to be subject of
military law

Section 87-sets out who can convene the court
o Officer not below rank of
o

Colonel or
Officer above rank of major on behalf of Colonel
Section 88 composition, a president and two other
members but
102
o Four members where

Accused officer or

Were punishment or maximum punishment is
death
o A member must have 2 years service
o Not less than two members shall be of a rank not
below
rank of captain
o President
must
be
Major
or
above
unless
circumstances but never below Captain
o Section 127 Commander can request Chief Justice
to appoint Judge Advocate

ALFRED CHAMANGA V THE PEOPLE (1970) ZR 18
the role of the judge advocate is advise
the court on points of law and to sum up

Section 89 disqualification
o Officer convening
o Officer who has investigated


JOHN EZEKIEL MUMBA V THE PEOPLE 2006 ZR 93
Procedure at trial
o Section 91 – accused can on reasonable ground
object to any member of the court challenge

Where
it
is
president
convening
officer
appoints another

Where member can proceed if not below legal
minimum
o Section
92-Everyone
takes
oath
including
members, judge advocate
o Section
93-sit
in
open
court
unless
it
is
expedient in the interests of the administration
of justice to sit in camera
o Section 94- can be dissolved where
103

Where convening officer thinks it is in the
interest
of
the
administration
can
dissolve

Where death of member reduces them to below
legal minimum

Where death of president and senior member
is below rank of captain

Were
an
accused
person
cannot
be
tried
within reasonable time owing to sickness or
incapacity
o Section 95 -decisions of the court by majority
and were equal one shall be acquitted

Where only
punishable by death penalty can
only imposed if all concur and where they
do
not
court
shall
be
dissolved
and
a
retrial held

Were also punishable by death will not be
imposed if do not concur

Were
equity
sentence
or
of
any
votes
issue
during
except
trial
on
finding
president shall have casting vote
o Section 97 power to convict fro offence not
chargedo Section 98- rules of evidence similar to civil
courts
o Section 102 findings of guilt must be confirmed

Section 106-confirming officer is one who
convened
or
his
successor
or
officer
superior to convening officer or President

Section 105 – can withhold if thinks
104

unreasonable or cannot be supported
considering the evidence,


wrong in law

there was a miscarriage of justice
Can substitute finding but not higher than
court

Can refer to higher confirming officer
o Section
103
can
petition
against
finding
sentence or both
o Section 104 confirming officer may ask court to
review decision where

Finding against weight of evidence or

Wrong determination of question of law
o Section 122-despite it being an offence under
this act one can still be tried in civil courts

Section 73- can try one for civil offences.
o Section 123 persons cannot be tried where

Tried by civil court or other courts martial

Charge dismissed or found not guilty by
commanding officer or appropriate superior
officer

The
commanding
officer
has
condoned
the
offence
o Section 136 appeal lies in the Supreme Court
TRIAL BEFORE THE HIGH COURT
105
Trial before the High Court is after a preliminary inquiry
or summary committal- section 11 CPC determines offences
triable in the High Court

Zabasajja v Uganda [1968] E.A.L.R. 384
Where issues are substantially the same and whenever
it is practical, offences should be tried in the same
tribunal. A charge triable in the Subordinate Court
can be tried in the High Court if connected to an
offence triable in the High Court.

PRELIMINARY INQUIRY
o Section 222 by any subordinate court
o Section 223 whenever case not triable by the
Subordinate court or is triable by the High Court
in section 10 or 11

Sub-section
(3)-will
not
hold
one
if
information signed by DPP is presented
o Section
166
during
a
PI
even
if
there
is
by
reason
of
of
any
other
a
proper
information suggesting that

The
accused
unsoundness
disability
person
of
is
mind
incapable
or
of
making
defence; or

He
was
of
unsound
mind
at
the
time
he
committed the offence
The court shall not determine the issue and the
accused person shall be deemed to have been at
all material times free from any such disability.
o Section 224 procedure;

Charge read procedure explained but no plea

Prosecution
witnesses
called
examined,
cross-examined and re-examined
106

Witnesses
statements
read
and
asked
to
confirm and then signed by witness and court
plus reporter

Prosecutor
closes
case
defence
submit
followed by prosecutors reply
o Section 225 –medical evidence can be presented
without witness being called if author is medical
office or Government analyst.
o Section 226-can not object to a charge on ground
that for defect in substance or form or for
variation between evidence and charge

Where court of view that misled can adjourn
for purpose of recalling witnesses
o Section 228-where evidence discloses offence

Accused invited to make statement, does not
plead or put up a defence

And call witnesses

Can reserve the right to make a statement
and call witnesses to trial
o Section 229- right to address court
o Section 230-discharge

The People v Petrol Zambwela [2002] ZR 145there is no provision in the CPC for an
acquittal during a PI

R v Changala and Two Others 2 NRLR 30
Person cannot be found guilty in the course
of PI
o Section 231- test sufficient evidence to put
accused on his trial committal for trial
o Section 232- summary adjudication where evidence
discloses lesser offence
107

Must amend and frame appropriate charge

Since plea not taken must read charge and
have plea taken.

Where pleads guilty
and no need for facts
as evidence already before court

Where plea again of not guilty will recall
of
witnesses
For cross examination
R v Kafungwa 2 NRLR 60
o Section 233-accused and witnesses bound over

Conditionally

Unconditionally
o Section 237 CPC- the magistrate can preserve the
testimony any person dangerously ill or hurt and
not likely to recover relating to any offence
triable by the High Court if not practicable to
take the deposition
R v Sarel Jacobus Celliers 4 NRLR 283
Notice must be given before it can be used
as proof of the truth. Otherwise can be used
to show reaction
R v David Chanda 5 NRLR 163
Even if notice was not written sufficient
that accused was present
o THE PEOPLE v DAUTI
TIYESANJE
PHIRI
[1985] ZR
201
In dealing with cases triable by the High Court,
if it thinks that waiting for a certificate of
committal
for
summary
trial
would
occasion
injustice to an accused person, a subordinate
108
court may either order the immediate holding of
a
preliminary
inquiry
or
order
the
summary
discharge of the accused person for want of
prosecution.

SUMMARY COMMITTAL PROCEDURE
o Section 254-DPP can issue certificate
o Section 255-where certificate issued PI should
not take place or should be abandoned

ATTORNEY GENERAL v EDWARD JACK SHAMWANA AND
OTHERS 1981 ZR 12-sectoin 255 prohibits the
continuation
of
a
PI
when
DPP
issues
certificate

THE TRIAL
o The People v Frackson Banda [2011] 1ZR 166
A nolle must be entered where accused person dies
during trial
o Section 272-Arraignment by information

Section 223 allows for joining of a person who
was not committed if was not discovered

THE PEOPLE v HENRY KUNDA
[1977] ZR 223
An information cannot include or be amended to
include
a
charge
a
person
who
was
not
committed either by substituting or adding the
name
of
the
alleged
victim
in
the
first
charge.
o Section 276- plea
o Section 277-plea in bar
109
o Section 278- refusal to plead
o Section 280 -plea of guilt
o
o Section 258 must serve list of witnesses and the
evidence they are to give not less than 14 days

Ester Mwiimbe v The People [1986] ZR 15 wrong
to call witness who is not listed.
o William
Muzala
Chipango
&
Others
v
The
People
(1978) Z.R. 304 a witness whose name is on the list
of witnesses can be called by the defence for crossexamination in cases where prosecution dispense
with him.
o Section 286-additional witnesses

233-witnesses bound over but can call one who
wasn’t

234-refusal to be bound over can result in
imprisonment
o Section 288-reading of depositions
R v Makutu Ma-Daniele 6 NRLR 49
o Section 152- issuance of a commission

153 parties may examine

Section 154 magistrate may apply to the high
court
o R v Frederick Mwendabai [1961] R& NLR 724
Prosecution
not
bound
to
tender
witness
who
testified at PI but they have decided not to call.
Can
only
be
compelled
where
failure
would
be
contrary to the interests of justice
o Section
240
CPC.
A
statement
taken
during
a
Preliminary Inquiry may be used in evidence during
110
the trial if the person who made the statement be
dead, or if the court is satisfied that, for any
sufficient
cause,
his
attendance
cannot
be
procured, and if reasonable notice of the intention
to take such statement was given to the person
(whether prosecutor or accused person) against whom
it is proposed to be read in evidence, and he had
or might have had, if he had chosen to be present,
full
opportunity
of
cross-examining
the
person
making the same.

Regina v Godfrey and Edward [1960] R&N 751
Though
a
statement
read
in
a
preliminary
inquiry may be read out, one made during a
previous trial cannot be read out
o Section 290 –statement of accused person
o Section 291-close of prosecution case

291(1) Mwewa Murono v The People [2004]
ZR 207
Must acquit even if erroneously put on
defence
o Section 292-the defence
o Section 294 evidence in reply
o Section 296-accused not giving evidence
o R v Train Viyuyi 5NRLR 76
The proper way of withdrawing a case before the
High Court is by nolle prosequi
8.JUDGMENT

Section 168 CPC-should be pronounced in open court
o whole judgment read
111
o accused be brought to court
o absence of party will not invalidate judgment

section 353 CPC-provision that irregularity
in procedure will not invalidate finding or
order
of
court
unless
results
in
substantial miscarriage of justice
Chibolela v R. [1962] R&N 587

section 169 CPC- contents of judgment
o prepared by presiding justice
o points for determination
o decision and reason for decision
o
offence convicted of and sentence

Nkumbula v Regina [1961] R&N 589
Failure to use I convict does not mean there
was no conviction must find out mentions
that charges proved
o Where
acquittal
offence
acquitted
and
words
directing that accused is being set at liberty
o Must be dated and signed

DASHONI V THE PEOPLE (1966) ZR 58
Failure
to
sign
a
judgment
is
an
irregularity but is curable as there is no
miscarriage of justice

Section 169A CPC- where judge or magistrate is ill
,dies or relinquishes or cesses to be another can
deliver

Section 302 CPC court may receive such evidence to
help it pass sentence
o Luwishi v Regina [1960] R&N 782
112
Where a judge decides to call evidence on a
disputed issue for the purpose of sentencing,
the normal course followed during a trial must
be followed. The court must allow a witness to
be cross-examined. The defence must also be given
the opportunity to contradict it (the provision
in
the
law
in
Malawi
is
similar
to
this
provision)

Nyirongo v The People [1972] ZR 290-where judgment is
lost appeal must be allowed
9. MOTION IN ARREST OF JUDGMENT

An accused person or his advocate may move the court to
arrest judgment in a case tried on an information

Section 298- CPC provides that;
o
The accused person may, at any time before
sentence, whether on his plea of guilty or
otherwise, move in arrest of judgment, on the
ground that the information does not, after any
amendment which the court is willing and has power
to make, state any offence which the court has power
to try.
o The court may, in its discretion, either hear and
determine the matter during the same sitting, or
adjourn the hearing thereof to a future time to be
fixed for that purpose.

The application can be made at any time before the
passing of the sentence but after judgment;
o In cases where the accused has pleaded not guilty
or
o Where accused has pleaded guilty
113

The grounds on which the application can be made are
that
o Lack of certainty in the information or does not
disclose an offence. There is a defect in the
information which defect is not formal and the
court has not amended it either at case to answer
or in the judgment
o Aggravated robbery not disclosing that one was
armed and working with another.
o The charge is founded on an act that was repealed
before the plea

Judgment cannot be arrested on the ground that
o The evidence does not support the charge
o There was a procedural irregularity during the
trial

If the court decides in favour of the accused, he shall
be discharged from that information.
o
10. PROCEEDINGS IN RESPECT OF JUVENILES
 Section 14 of the Penal Code sets out the criminal
responsibility of persons
o A person below 8 is not criminally responsible
o one below 12 only when they know
o and one below 12 incapable of having carnal
knowledge
114

Section 2 of the juveniles Act defines a juvenile as
one

who has not attained the age of 19
the court procedure in respect of a juvenile is set
out in part3 which provides for the establishment of
juvenile courts
ESTABLISHMENT OF JUVENILE COURT

Section 63 of the Act establishes the juvenile Court
it is ;
A subordinate court sitting for the purposes ofo hearing any charge against a juvenile; or
o exercising any other jurisdiction conferred on
juvenile courts by or under this or any other Act;

o SIWALE
AND ANOTHER v THE PEOPLE 1973
ZR 182
The High Court has no jurisdiction
to hear a
case which section 64(1) requires to be tried by
a juveniles court
High Court
Kapya Kandeka v The People [2010] 3ZR 292
But a High court can impose a sentence on a juvenile
if the mandatory minimum is above that which can be
imposed by the Subordinate Court
SITAUTIONS WHERE JUVENILES WILL NOT APPEAR BEFORE JUVENILE
COURTS

Section 64- a juvenile court will handle
other than homicide or attempted murder

Section 65 provides that all juveniles should be tried
before juvenile courts, shall be heard by a
subordinate court which is not a juvenile court
excerpt ;
o a charge made jointly against a juvenile and a
person who has attained the age of nineteen years
any offence
o where a juvenile is charged with an offence
together with a person who is not a juvenile
115
charged
with aiding, abetting, causing,
procuring, allowing or permitting that offence
o where it only becomes apparent in the course of
any proceedings before any subordinate court
other than a juvenile court, that the accused
person is juvenile court not precluded from
proceeding with the hearing and determination of
those proceedings if it thinks fit.
o Section 76 CPC allows court to clear court room
where the proceedings affect the welfare persons
under 18 years- can be used to protect juveniles
appearing before the High Court
PROCEDURE BEFORE A JUVENILES COURT
Procedure in court similar to that in other courts
except;
1. CHIPENDEKA V THE PEOPLE 1969 ZR 82
 The subordinate court must state that it is
sitting as a juvenile court and follow the
procedure set out for sitting as a juvenile court
 Court has duty to ascertain age at the earliest
opportunity
2. Section 118 provides that where a person charged with an
offence is brought before any court and it appears to
the court that he is a juvenile, the court shall make
due inquiry as to the age of that person
 MUSONDA AND ANOTHER V THE PEOPLE 1976 ZR 218

DAVIES
(S.C.)
MWAPE
v
THE
PEOPLE
(1979)
Z.R.
54
(i) it is sufficient for a court to rely
solely on ocular observation, and if it
appears that an offender is a juvenile,
However where by ocular observation the
offender is obviously an adult, the court is
not put on its inquiry.
(ii) after inquiry has been made any order of
the court shall not be invalidated by any
subsequent proof that the age of that person
was not correctly stated or estimated and
116
there cannot be any appeal on the question of
age, provided that the inquiry made was in
fact a due inquiry and not defective in any
way.
3. Section 119 (1) it must sit in a room other than that
in which any courts other than juvenile courts
ordinarily sit, unless no such other room is available
or suitable, and if no such room is available or
suitable, the juvenile court shall sit on different days
or at different times from those on or at which ordinary
sittings are held.
4. Section 119(2) limits persons who can be present at any
sitting of a juvenile court, or at any sitting of the
High Court when hearing charges against a juvenile not
jointly charged with a person who is not a juvenile,
these are
Section 76 CPC all courts are open courts

(a)

(b) parties
to
the
case,
their
legal
advisers, and witnesses and other persons
directly concerned in that case;

(c) bona fide representatives of newspapers
and news agencies;

(d) such other persons as the court
specifically authorise to be present.
members and officers of the court;
may
5. Section 127- requires that the parent or guardian must
be present
o CLEVER CHALIMBANA v THE PEOPLE I977 ZR 282
The requirement is intended to prevent the
juvenile being prejudiced

 THE PEOPLE v
ALFRED MUMBA , CHARITO NGENDA ,
SHADRECK NASILELE and OBIN CHAMBA (1978) Z.R.
405
117
(i) attendance of a parent or guardian in all
proceedings where a juvenile is charged with an
offence and gives circumstances in which such
attendance may be dispensed with. This section
is not restricted to proceedings in juvenile
courts only but must be complied with in all
courts before which juveniles appear.
(ii)
Since the statutory requirements were not
complied with as far as they apply to the three
juveniles, the finding of guilty entered in
respect of each of them would be set aside.

MBEWE v THE PEOPLE (1976) Z.R. 317 (S.C.)
o Parent or guardian must attend throughout proceedings
o The People v Nephat Dimeni [1980] Z.R. 234
o The People v Aaron Phiri [2014] 2 Z.R. 357
A social welfare officer or probation officer
cannot be a substitute for a guardian or parent
o Can be dispensed with where
Cannot be found and does reside within a reasonable
distance and the court is satisfied that it would
be unreasonable to require his attendance.

where the juvenile was, before the institution of
the proceedings, removed from the custody or charge
of his parent by order of a court.
o Parent or guardian must attend throughout proceedings
o Where a juvenile is arrested or taken to a place of
safety, the parent must be informed
o If any parent or guardian who has been required to
attend as aforesaid, having received reasonable
notice of the time and place at which he is required
to attend, fails to attend accordingly, and does not
excuse his failure to the satisfaction of the court,
he shall be liable to a fine not exceeding three
hundred penalty units.

The parent or guardian whose attendance shall be
required under this section shall be the parent or
118
guardian having the actual possession and control
of the juvenile:
Provided that if that person is not the father, the
attendance of the father may also be required.
6. Section 64 subsection (2) after explaining the substance
of the alleged offence, the court shall ask the juvenile
whether he admits the offence.
7. Section 64 Subsection (3) provides that where a juvenile
admits the offence, a juvenile court, other than a court
presided over by a senior resident magistrate, resident
magistrate or such other magistrate as the *Chief
Justice may designate for the purposes of this section,
shall in any case where the juvenile is not legally
represented then hear the evidence of the witnesses in
support thereof.
o
All magistrate empowered to hold a subordinate
court of the first or second class
o All magistrates of class 3 of three years
standing
G.N. 948 of 1971
8. Section 64 Subsection (4) At the close of the evidence
in chief of each witness, the magistrate shall, if the
juvenile is not legally represented, ask the juvenile,
and the juvenile's parent or guardian if present in
court, whether he wishes to put any questions to the
witness.
9. Section 64 Subsection (5) where a juvenile who is not
legally represented instead of asking questions by way
of cross examination, makes assertions, the court shall
then put to the witness such question as it thinks
necessary on behalf of the juvenile and may for this
purpose question the juvenile in order to bring out or
clear up any point arising out of such assertions.
o The prosecution shall have the right to reexamine the witness upon the answers to such
questions.
o
10 Section 64 subsection 6 where a prima facie case is made
out, the evidence of any witness for the defence shall
119
be heard and the juvenile shall be allowed to give
evidence or make a statement.
11 Section 68
provides for the abolition of the terms
"conviction" and "sentence" in respect of juveniles
Instead it will be a finding of guilty, or an order
12 section 64 Subsection (7)
If the court is satisfied
that the offence is proved, juvenile shall invited to
say anything in extenuation or mitigation of the penalty
or otherwise.

Before deciding how to deal with him, the court
shall, if practicable, obtain such information
as to his general conduct, home surroundings,
school record, and medical history as may enable
it to deal with the case in the best interests
of the juvenile, and may put to him any question
arising out of such information. For the purpose
of obtaining such information or for special
medical examination or observation, the court
may from time to time remand the juvenile on bail
or to a place of detention so, however, that he
appears before a court at least once in every
twenty-one days.
13.
Section 67 provides that any court by or before which a
juvenile is found guilty of an offence other than
homicide may transfer the case to a juvenile court in
the place where the offender was committed for trial, or
for the place where the offender resides; and, where any
such case is so transferred, for sentencing
 No appeal shall lie against an order of transfer
made under this section,
 The appeal against the order of the juvenile
court shall as if juvenile was tried by that
court
14. Section 72 limits punishments that may be imposed on
juveniles

No child shall be sentenced to imprisonment or to
detention in a detention camp.
120

No
young
person
shall
be
sentenced
to
imprisonment if he can be suitably dealt with in
any other manner.
o MVULA v THE PEOPLE
(1976) Z.R. 80
As far as possible, juveniles should not be
sent to prison this is to avoid contact with
adult hardened criminals. The trial magistrate
could suitably have dealt with the appellant
by making aprobation or an approved school
order.
o CHISALA v THE PEOPLE (1975) Z.R. 239
Once the court decides to send a juvenile
offender to prison it is obligatory to impose
the statutory minimum sentence for the offence
in question. Must look at alternatives before
arriving at decision
Only sent to a reformatory where satisfied
that having regard to his character and
previous conduct, and to the circumstances of
the offence, it is expedient for his
reformation and the prevention of crime that
he should undergo a period of training in a
reformatory.
15. Section
offenders;
73-
sets
out
the
methods
of
dealing
with
STEVEN NYONI v THE PEOPLE (1987) Z.R. 99
A person who is no longer a juvenile who had
committed an offence when he was a juvenile should
be tried as an adult in the appropriate court; but
for the purpose of sentencing he should be treated
as a juvenile.
o by dismissing the charge;
o by making a probation order in respect of the
offender;
o by sending the offender to an approved school;
o by sending the offender to a reformatory;
o by ordering the offender to pay a fine,
damages or
costs;
121




by ordering the parent or guardian of the
offender to pay a fine, damages or costs;
o JOHN MKANDAWIRE AND OTHERS v THE PEOPLE
1978 ZR 46
Where a parent or guardian pleads not
guilty to charge of conducing to the
commission of a criminal offence by
neglecting to exercise due care of his
child, court must enter plea of not
guilty and prosecution lead evidence like
any criminal case.
o Section 74-can order fine, damages,
costs, security for good
behaviour
whether the juvenile has been convicted
or acquitted
by ordering the parent or guardian of the
offender to give security for the good
behaviour of the offender;
where the offender is a young person, by
sentencing him to imprisonment;
by dealing with the case in any other manner
in which it may legally be dealt with.
11. INQUESTS
The Inquests Act chapter 36 of the laws of sets out the
procedure for the holding of an inquest
WHEN IS IT BE HELD

Section
4-it will be held whenever the coroner is
informed
that
a
body
of
a
person
is
lying
within
jurisdiction and
122
o there is reasonable cause to suspect that such
person has had either a violent or unnatural death
o has died in prison –section 8-mandatory
o has died in police custody
o or died in any place or circumstances that in the
opinion
of
the
coroner
necessitate
or
make
it
desirable to hold an inquest.

Section 28-The purpose of an inquest is to
o Ascertain who the deceased is
o How when and where the deceased came to his death
o The person if any to be charged with

Murder

Manslaughter

Infanticide

Causing death by reckless or dangerous driving
In the matter of THE INQUESTS ORDINANCE and in
the matter of Native FEMALE MALINDE 2 NRLR 225
Before an inquest can be held there must be a
dead
body
except
when
the
death
is
quite
certain and the body has been destroyed or is
irrecoverable
o Also
particulars
required
by
any
written
law
relating to the registration of the death

Section
18
(7)
of
Births
and
Deaths
Registration Act registrar must be informed of
all deaths notice to be accompanied by medical
certificate where none must inform magistrate
or police
WHO CAN HOLD AN INQUEST
123

Section 3- it may be held the following magistrates
o Class 1, 2 and 3 magistrate
o Any
person
gazetted
by
the
Judicial
Service
Commission
o The coroner shall have jurisdiction;

RM, SRM and PRM through out Zambia

Other
magistrates
in
their
magisterial
jurisdiction

Those appointed by JSC in the area specified
by the notice

Section 9 inquest must be held where body is found or
where body is first landed either on shore or flight

Section 10 where body cannot be found held where death
occurred
WHEN MAY AN INQUEST BE POSTPORNED OR DISPENCED WITH

Section 5-An inquest may be dispensed with where a doctor
has indicated that death was due to natural causes and
the body shows no signs that death can be attributed to
or was accelerated
by violent or negligent conduct on
the part of the deceased or any other person. Has the
discretion to dispense with holding

Section 6-an inquest can be postponed or suspended where
there is information that someone has been charged with;

Murder

Manslaughter

Infanticide
124

CDDD

Suicide-suicide pact

Where it has been commenced it shall not be
continued

until after the conclusion of trial
JOHN OLIVER IRWIN v THE PEOPLE (1993-1994)
ZR.7
An
inquest
is
subject
to
the
mandatory
provisions of section 6 it cannot be commenced
and has to be suspended until the conclusion
of criminal proceedings
o After trial only resume if there will be public
benefit
o Where believes no public benefit shall certify and
refer to DPP
o On resumption cannot charge one with an offence
that
is
inconsistent
with
findings
of
trial-
autrefois acquit
PROCEDURE

Starts with a proclamation- this is an inquest into the
death of

Section 17 inquest is to commence with viewing of bodynot a mere glance must check whether there are injuries
o Body must be viewed but not necessary where viewed
by
police
officer,
medical
practitioner,
chief
headman, district messenger or any other trust
worthy person
o
125

Section 18 coroner summons witnesses to give evidence
or produce before court document or thing required.
Summons issued in compliance with CPC

Section 16 witnesses give evidence on oath and examined
by the Coroner
o If
represented
then
questioned
by
his
own
representative
o Section 22-persons properly interested entitled to
examine witness by self or counsel
o Questions
limited
to
relevant
ones
also
stop
improper
o
Properly interested includes trade union, employer
or person authorised by Minister of Mines or Labour

Section 19 not bound by rules of evidence but one may
decline to answer incriminating questions
o Section 21 coroner can request police to record
statements
or
produce
evidence
that
has
been
collected

Section 28 (2) – person whose conduct is likely to be
called in question is not in attendance or has not been
summoned or given notice can adjourn to enable him attend

Section 14 Coroner can direct post-mortem by government
medical officer or any medical practitioner
o Section 14 police officer can cause body to be
examined
o Where body buried can order exhumation

Section 20 Evidence read over and signed by witness
126

Section 23 Coroner can issue commission

Section 22(6) no one can address the coroner on facts

Section 28 may direct arrest
o Inquisition limited – to who was deceased, how,
when and where did he come by his death
o The persons if any to be charged
o Verdict not be worded to appear to determine civil
liability

The verdict –death by

Natural causes

Accident or misadventure

Suicide

Culpable homicide

justifiable homicide

Excusable homicide

Self neglect or lack of care

Judicial hanging

Open verdict( insufficient evidence to
determine means leading to death
o KAMBARANGE MPUNDU KAUNDA v THE PEOPLE (1992-1993)
ZR 215
Coroners order is directed at the police and not
the DPP who should take initial steps to charge the
person. DPP has discretion to prosecute for offence
indicated or no offence at all

What is transmitted is a copy of the proceedings and the
inquisition ( document containing the verdict)
127

Section
29
transmit
Commissioner of Police
who
in
turn
informs
copy
of
proceedings
to
the
where cannot identify offender
DPP
if
thinks
there
is
no
possibility of being discovered ( section 30)

Section 31corroner must make retains to High Court.

Section 33 DPP may apply to the High Court for
o Inquest to be held
o Inquest to be reopened
o To quash and substitute finding
 Offences burying where prohibited or obstructing a
medical officer.
12. SENTENCING
1 SENTENCE

Daimon Lungu v The People [1977] Z.R. 208
While the sentence is in the discretion of the court, it
is not open to the courts to substitute their own view
of the seriousness of an offence for that which the
legislature has expressed by prescribing a particular
sentence.

Section 24 of the Penal Code sets out sentences that a
court can impose on conviction and these are;
o Death
o Imprisonment or an order of community service
o
Fine
o Forfeiture
o Payment of compensation
128
o Finding security to keep the peace and be of good
behaviour
o Deportation
o Any other punishment provided by law

Regina v A Juvenile [1960] R&N 549
Where an offender is convicted, the court must impose a
punishment. It can only avoid doing so on established
principles like antecedents, age and mental condition

THE PEOPLE v JEFFERSON AND MONKS (1965) ZR 123
The section only intended to be introductory does not
mean court can impose any offence it thinks fit. Must
follow circumstances set out in section 26,27 and 40

Sentence is ordinarily imposed by the convicting court
but can be imposed by different judge/magistrate
o S.217 committed to the high court for sentencing or
o YOTAMU v THE PEOPLE (1976) Z.R. 347
Different magistrate but same court

“T I C’s”
o At
sentencing
the
court
ordinarily
bases
its
sentence on offences on which the accused person
has been tried and convicted but a court can also
“ take other offences into consideration”
o Not based on legislation or common law but just a
matter of practice
o Usually preferred when offender committed minor
offenses in addition to the serious ones
o Procedure
R v Ievers 2 NRLR 87

Accused charged with limited offences
129

List of other offences is drawn and served on
accused who signs and copy given to defence

Court told that accused wishes to have other
offences taken into consideration and copy
given after conviction on plea of guilty or
trial

If
accused
accepts
prosecutor
gives
brief
details of the offences and sentencing follows
( court retains the discretion on whether to
comply with request or not)

In
the
sentencing
offences
that
court
have
must
been
mention
taken
the
into
consideration.

Alfred Petrol Mwanza v The People [1970]
ZR 62
Consolidation of charges must be fully
explained if it has taken place

Since not charged sentence limited to those on
charge sheet but has an effect of generally
enhancing the sentences

PETER CHILUFYA v THE QUEEN
(1963-1964) Z.
AND N.R.L.R. 95
Offences similar to those with which a
court is dealing may be considered when
sentencing but cannot be the subject of
separate conviction and sentence.

Accused cannot raise autrefois convict but
prosecution unlikely to prosecute knowing was
already sentenced.
130

Advantage for police is that it concludes case
with minimum expense. For accused is sentenced
at reduced cost.

Kapya Kandeka v The People [2010] 3ZR 292
Sentencing an offender who was a juvenile but is no
longer a juvenile at the time of sentencing.

Katembele v The People [1977] ZR 90
The sentence to be imposed is one applicable at the time
the offence was committed

R v Shemu Nyalongo 2NRLR 136
Where a person is convicted of more than one offence a
sentence must be imposed in respect of each count.
o Regina v Weyara [1960] R&N 674
In a case burglary and Theft, if both offences are
proved, separate sentences are imposed but they run
concurrently

Katongo v The People [1969] ZR 41
In the ordinary case there is no reason for the trial
judge to set out his reasons for imposing as particular
sentence
1.
THE DEATH PENALTY

Provision made under Section 25 of the Penal Code

Passed in the following offences;
o Treason –section 43
o Murder-section 200

Section201(1) subsection (a) death

(b)-
where
extenuating
circumstances
imprisonment
131

A fact that diminishes moral degree of
guilt

JACK CHANDA AND ANOTHER vs THE PEOPLE
2002 ZR 124
Sets
out
what
constitutes
extenuating
circumstances

MBOMENA MOOLA v THE PEOPLE 2OO2 ZR
Belief
in
witchcraft
can
amount
to
extenuating circumstances

JUSTIN MUMBI v THE PEOPLE 2004 ZR 106
Drunkenness can amount to an extenuating
circumstance

ZICO KASHWEKA AND ANOTHER v THE PEOPLE
(2007) 37
The
age
cannot
of
an
amount
accused
to
person
an
per
se
extenuating
circumstance

Proviso to sub section (1) does not apply to
cases of aggravated robbery with a firearm

FRANCIS CHONGO vs THE PEOPLE1999 ZR 58

o Armed Aggravated Robbery-section 294(2)

sub section (2)(a)- where a firearm is used
unless did not know or disassociated
Isaac Njovu v The People SCZ Judgment No.19 of
2018

sub section (2)(b)-where offensive weapon
or
instrument is not firearm but grievous harm
occasioned unless court satisfied that could
132
not
contemplate
that
such
harm
might
be
inflicted

Section 25(1) shall be by hanging
o Section 303 CPC—sentence shall direct that he shall
be hanged by the neck
o Section 305 convicting judge where no appeal or
Appeal judges
shall send to President a Copy of
notes and recommendations or observations
o President issues a death warrant indicating date
and place of execution and manner of disposal of
body
o Persons convicted can apply to committee on the
prerogative of mercy

Article 59 –President may pardon or substitute

Article 60 advisory committee appointed by
president and serve at his pleasure. They
under sub 4 always consider where president
exercise powers under 59 in relation to death
penalty

Section 25(2) PC shall not be pronounced on a person who
was below 18 years when he committed the offence.
To be
detained at the presidents pleasure

Section 25(4) PC not to be passed on a pregnant woman.
Instead of life imprisonment
o Section 306 CPC- sets out procedure for court to
determine pregnancy- evidence laid before it
2.
IMPRISONMENT

Provided for in Section 26 PC

Section 26(1) either hard labour or simple imprisonment-
133
o Patrick Mumba and Others v The People [2004] ZR 202
the practice is that women are always given simple
imprisonment
o R v Mufuna 5 NRLR 712
Distasteful and contrary to public policy
o

Section 72(1) of the juveniles Act provides that no child
shall be sentenced to imprisonment

Section 26(2)a person liable to life can be sent to
lesser term but not less than minimum sentence

Section 26(3) person convicted of felony other than
manslaughter can be ordered to pay a fineo THE PEOPLE Vs BENSON CHIBAWE 1979 ZR 150 courts can
not only fine where the offence is a felony must
also award a prison term
o Where offender is a corporation shall pay a fine

Section
26(4)
person
convicted
of
manslaughter
or
misdemeanour may be sentenced to pay a fine in addition
to or instead of imprisonment

Section 38 Penal Code –where sentence for misdemeanour
not set out 2 years with or without fine
o Kasanda v The People [1978] ZR 31

Section 28d of the Penal Code sets out 9 months as
maximum sentence where imprisonment is in default of a
fine

Offences with
minimum sentences-
sentence cannot be
suspended
134
o THE PEOPLE VS KALUNGA 1973 ZR 286- driving a motor
vehicle under the influence of alcohol or drugs to
the extent of not being able to control it- to
suspend
is
to
defeat
the
intention
of
the
legislature

Section 16(1) CPC offences in the 5th schedule cannot
have their sentence suspended
o These are;

Any offence punishable by death

Any offence against section226 of the Penalacts
endangering
railways
and
persons
travelling thereon

Arson

Robbery

Any offence with a minimum sentence

Conspiring, inciting or attempting to commit
these offences
o THE
PEOPLE
v
MELISA
JITANDA
(1971)
Z.R.
164
offences in the 6th schedule cannot be suspended

imprisonment can also be in default of the payment of a
fine-section 28(d) but in any case will not be above 9
months
o THE PEOPLE vs SILVA AND FREITAS (1969)ZR 121
The maximum sentence in default of a fine is 9
months unless the statue makes specific provisionwere fined K2000 and 2years in default
o Such imprisonment shall be simple imprisonment

Section160 Road Traffic Act weekend imprisonment
o Shall be not less than 30 and not more than 52 weeks
135
o Limited to offences under section 156 ( being in
charge under influence of intoxicating) and 157(
driving under influence)
o 1830 Friday to 1830 Sunday.

Section 307 CPC- Judge or magistrate issues warrant
ordering prison at which sentence will be carried out

3.

THE TRANSFER OF CONVICTED PERSONS ACT No. 26 1998
FINES
Usually law will set out fine but where does not should
not be excessive; Must be one which can be paid
JANUARY GRINGO NAKALONGA v THE PEOPLE (1981) Z.R. 252
When a court decides not to impose a custodial sentence
but
instead to impose a fine and to order imprisonment
in default of payment, then the fine imposed should not
be of an amount the effect of which will be to send the
offender to prison; a court must take into account the
ability of the offender to pay the fine.

R v Rice [1958] R& NLR 691
Although court is not required to make a special inquiry
in to the means of the accused before determining the
quantum, It must take judicial notice of matters
generally known to all well informed people of the
earnings
of
that
class.
If
there
are
special
circumstances accused must inform court.
r

A penalty unit is 20n
136

Section 28 of the Penal Code set out provisions
o Whenever fine is imposed there will be imprisonment
in default but where no mention issue warrant to
levy distress

Section 308 CPC–failure to pay may result in warrant of
distress being issued
o R v Michael Mpaza 5 NRLR 449
Where fine is imposed on more than one offence
failure
to
pay
cannot
result
in
concurrent
sentences.

Section 310 CPC person can be given time to pay and in
such case a person cannot be committed to prison pending
the payment of the fine

Section 311 CPC one can be committed to prison for
failing to pay fine where no property to seize or seizure
will be ruinous
o Section 316 period of imprisonment is not more than
9 months
o

Section 316 CPC failure to pay fine maximum sentence is
9 months

Fines can be paid by way of admission of guilt.

KEKANA v THE PEOPLE (1973) Z.R. 73 payable should not
exceed what one would have paid on admission of guilt

4.
STATUTORY JUDGMENT
137

Section 171 of CPC – where a person employed in the
public service includes bodies where government has
controlling interes, is convicted of a prescribed
offence court shall enter judgment in the amount of the
value of the property in respect of which the offence
was committed

No appeal shall lie against a statutory judgment but if,
on an appeal against conviction, the appeal is allowed
or a conviction for an offence which is not a prescribed
offence is substituted, the statutory judgment shall be
deemed to have been set aside, but without prejudice to
any other right of recovery by way of civil proceedings.
KUMOYO v THE PEOPLE (1974) Z.R. 50
No appeal lies against a statutory judgment, per
se.


5.
Execution may be levied under a statutory judgment
against all or any persons employed in the Public Service
jointly charged with and convicted of a prescribed
offence, but the total amount levied shall not exceed
the amount for which the statutory judgment was entered.
o In this section, unless the context otherwise
requires"prescribed offence" means an offence under Chapter
XXVI, XXVII, XXX, XXXI or XXXIII of the Penal Code
THE PEOPLE v JOHN IBWENKU AND ANOR (1971) Z.R. 162
o In the case of public officers jointly charged
with, and convicted of, a prescribed offence,
individual judgments cannot be entered; the
statutory judgment must be entered against the
accused jointly for the full amount involved.
o the criminal court upon which civil jurisdiction
has been conferred for the purposes of entering a
statutory judgment does not have the power to
impose a sentence of imprisonment in default of
payment of the sum ordered to be paid under such
judgment.
COMMUNITY SERVICE
138

Section 306A CPC makes provision for community service
order

Section 306A(1)conditions for the order are;
o
the offender must be an adult
(Juveniles Act, juvenile adult 19 to 21 years or
0ne below 25 so classified my minister)
o the offence must be a misdemeanour
o and must be punishable by imprisonment

Section 306A(2) before making order court shall cause
to be obtained a report to be submitted by
o
Superior officer (Zambia Police Act-section 2 Ass.
Supt. And above)
o or any other person
o or institution on

the character,

the

the home surrounding,
antecedents,

Health or mental condition of offenders.

Also
considers
if
there
are
extenuating
circumstances

Section
306A(3)
court
explains
effect
of
order
to
convict in a language he understands
o Offender must consent to sentence
o Must explain that original term of imprisonment is
effect of non compliance

Section 306B – community service order specifies:

Number of hours to be worked

Days on which work to be performed

Period of community service

Place of work
139

Supervision of an authorised officer( Cap 97 Prisons
Act- section 135(7) person appointed by the Minister)


Any other condition
Section 306C community service order to be conducted in
community
where
offender
leaves
and
will
therefore
report authorised officer in that area

Section 306D failure to comply with order will result
in summons or warrant of arrest
o convict brought back before court which issued
order
o where court is satisfied that offender has failed
to comply with any requirement of the order it may

vary order to suit circumstances

impose fine- not more than 300 penalty units

cancel order and send to prison subject to
reduction for any sentence part of the order
carried
6.



DETENTION DURING THE PRESIDENT’S PLEASURE
where a person under the age of 18 is convicted of an
offence attracting capital punishment section 25 (2) of
the Penal Code
where one is found to be not guilty by reason of insanity
o section 161 (2)(b) of the CPC
o section 167 (3) of the CPC
ABYUTI PHIRI v THE PEOPLE (1977) Z.R. 250
There is no power in the Supreme Court to order the
discharge from detention of a person detained under
either section 161 or 162 or 167 of the Criminal
Procedure Code; such power vests in the President in
terms of section 164.
Consequently no appeal lies from an order of detention
under 10 section 167 where that appeal relates only to
the detention itself; the only right of appeal is against
140
the special finding itself on the merits, there being
specific provision in sub-section (2) in that regard.
7.

REFORMATORY ORDER
Section 92 of the Juveniles Act (Cap 53) allows a court
to make a reformatory order
GEDION MUSONDA AND CHISHA CHIMIMBA v THE PEOPLE
(1979) Z.R. 53
A reformatory order is a very severe punishment and
should only be made when other methods of
reformation are in the circumstances entirely
inappropriate or have proved to be in vain in the
past.






8.

o The People v Banda [2014] 2 Z.R. 97
Reformatory order cannot be issued in default of
paying a fine
Section 93 its duration is for 4 years
o Section 103 the chief Inspector of Reformatories
may determine a lesser period but not less than 9
months
o The minister may at any time order that a person
detained be released or be commuted.
Section 101 minister may commute sentence of a juvenile
offender who has attained 14 years if not benefiting or
is a bad influence to imprisonment
Section 102 the 4 years duration can be extended for not
more than 6 months.
o Juvenile shall not be detained beyond 23rd birthday.
Section 99 Chief Inspector of Reformatories can grant
leave of absence for such periods and on such conditions.
Can also revoke
Section 94 (1) reformatory order issued by Subordinate
Court must be confirmed by High Court
Section 105 at the expiry of
APPROVED SCHOOL ORDER
Sections 76 of the Juveniles Act court can make an order
committing a juvenile to an approved school and when
making such order
141


Section 78 for a period of 3 years but not beyond being
19 years
Section 79 juvenile Court order requires confirmation by
High Court

Section 85 where the juvenile is found to be a bad
influence can be sent to a reformatory

Section 86 manager of school can extend period for not
more than 6 months.


9.
o Section 88 (1) after release he shall remain under
supervision. One released before 15 until 18 years
and one attained 15 for 3 years or until 21
whichever is shorter.
Under section 88 (2) There is power of juvenile released
under 19 years and under supervision to be recalled.
Done where in the interest of such juvenile and can be
detained until 19 years unless proper to release.
Section 87 can be released on licence by Commissioner
for Juvenile Welfare and permitted to live home or
elsewhere. Licence can be revoked.
PROBATION ORDER

Provided for by Probation of Offenders Act Cap 93

Section 3- order can be made where court is satisfied
that due to;
o Youth
o Character
o Antecedents
o Home surroundings
o Heath or mental condition of offender
o Or extenuating circumstances
Court should make order and not sentence

Duration between 1 and 3 years
142

If offender is above 19 must show willingness to comply
with order

Court must be satisfied that the offender understands
the effect of the order
o Failure to comply or commission of another offence
will result in being sentenced for the offence

Section 4- Conditions are intended to ensure that good
conduct or prevent repetition of committing the offence
or another offence

Will consider home circumstances or require offender to
reside in institution

Section 5 May require probationer to undergo medical
treatment

Section 7 summons or warrant of arrest may be issued
where there is failure to comply on oath
o May fine not more than 300 penalty units or
o May pass sentence

Section 8 may issue summons or warrant if there is
information that another offence committed

Willie v R [1961] R& NLR 1027
A person on probation is considered to be a person under
sentence

The People v Paul Sakala [2014] 1 Z.R. 441
A probation order against a juvenile by the Subordinate
Court does not require confirmation by the High Court
10. CANCELLATION OR SUSPENSION OF LICENCE

Mwelwa v The People [1975] Z.R. 166
o An order for the cancellation of a driving licence
must be coupled with a disqualification for a
stated period.
143

o The fact that a man earns his living by driving is
not a "special reason" for the purpose of section
122 of the Roads and Road Traffic Act, Cap. 766,
enabling the court to refrain from imposing what
would otherwise be a mandatory suspension; a
circumstance peculiar to the offender is not a
"special reason".
o Cancellation
of
driving
licence
and
disqualification, or suspension, are part of the
total sentence, which must be considered as a
whole. In considering the amount of a fine and the
period of disqualification or suspension the court
must have regard to the fact that they are parts of
the total punishment; equally in considering a
custodial sentence the court must consider it as to
be disqualification or suspension.
section 75 of the Road Traffic Act No. 12 of 2002 court
may in addition to sentence;
o suspend sentence for a period it thinks fit
o cancel licence and declare that one shall never be
issued with one

suspension may
example PSV

a declaration that one shall not be issued with a licence
can be made even where one does not hold a licence
can also be issued where one convicted of the offence of
theft of motor vehicle and for a third offence banned
for life

be
limited
to
particular
class
for
the third schedule sets out guidelines on
circumstances in which a conviction will be endorse
on a licence
11. POLICE SUPERVISION

Section 317 a person previously conviction of any
offence whose sentence is 3 years imprisonment or more
can be placed under police supervision if he is
convicted for an offence attracting a punishment of 3
years or more.
o The supervision will be for a period not
exceeding 5years
o If appeal sets aside the conviction order become
void
144

Section 318 provided with a book which sets out place
and intervals for reporting

Section 319 failure to report convicting court can
sentence to a term not exceeding 6 months
12. SECURITY TO KEEP THE PEACE

Section 31 of the penal Code -Person convicted of an
offence not punishable by death in addition to or instead
of imprisonment sign a bond to be of good behaviour and
keep the peace
o J.S.B.B. Thorne v The King 4 NRLR 260
On a conviction for a felony a court can order the
accused to enter a bond and be of good behaviour he
can also be fined.

Failure to execute will result in imprisonment of not
more that 1 year but when added to prison sentence should
not exceed maximum sentence.
13. COMPENSATION

Section 30 of the Penal Code provides for compensation
subject to section 175 it is in addition to or in
145
substitution to a sentence to any person injured by the
commission of the offence
o R v Balenje 4 NRLR 1
Will award where there is material loss or personal
injury that is recoverable in a civil suit. where
it is for a tortious act other than one involving
material loss or physical injury it must be by way
of fine from which compensation is paid
o R v Telesa Machiye 4 NRLR 221
The
amount
of
compensation
awarded
should
not
exceed the amount of special damages incurred by
the complainant. Cannot award special damages.
o R v Mclennan Kumwembe 2 NRLR 108
Crown can be complainant
o Lighton Simbeye v The People [2015] 3 Z.R. 124
Applicant must set out details of expenses incurred
as a result of the prosecution

Section 175 CPC
o Offence other than punishable by death
o
personal injury or material loss
o Not exceeding K 50 –exception being provided for
vandalism-see proviso to section 30
o May be imposed for a person convicted under Section
281A-theft of motor vehicle

Section175 (2) can be ordered for theft related offences
XXV and XXXI
146

Section 176 CPC- order shall indicate how they can be
recovered;
o By distress or
o By imprisonment which will not be in excess of 3
months
R v Busman Phiri 5 NRLR 561
The order should indicate the time within which it
should be paid and the period of imprisonment in
the case of default in accordance with the scale

Section 73(1)- f and g of the Juveniles Act offender or
guardian can be ordered

to pay damages
Section 177 (1)(b) CPC – can order compensation to be
paid from fine. There is no limit but should not be
excessive.
o R v Evaristo [1958] R&N 929
A fine should not be imposed for the purposes of
being used to compensate the complainant
o Failure will result in section 28 being invokedmaximum of 9 months.
14. DISCHARGE

THE PEOPLE v ZIMBA (1976) ZR 86
Does not specify a sentence or nature of offence to be
committed
and
imposed
where
inexpedient
to
inflict
punishment or a probation order

Section 41 of the Criminal Procedure Code

Cannot where minimum by the law
147

May be absolute or conditional
Absolute
 Do not rant as a conviction except as provided for in
Section 41 (5) and 41(6) of the Penal Code
Conditional
 Discharged subject to not offending in 12 months

Difference is that in conditional discharge not commit
any offence while suspended sentence must not commit
particular offences

Can appeal against order

Can use it as a plea in bar
15. DEPORTATION

Two kinds of deportation, one sent outside the country
while another deported to any part of Zambia other than
home district.
Deportation to outside Zambia

Section 33 of the Penal Code provides for recommendation
to the Minister of Home Affairs- in cases of non Zambians
o NEBUKADNEZA OCCO v THE PEOPLE 1979 ZR 112
It is the public prosecutor and not the court that
notifies the minister who is duty bound to deport.
Deportation within Zambia

Section 34 of the Penal code-person convicted of a
felony
148
R v Paison Chungu 5NRLR 682
Fundamental object is to give an opportunity to reform
in the quietness and peace of a rural community. It
is not suitable for a recidivist past all hope of
reformation

Section 34(1) convicted person deported to such place
as president may direct

(Section 34(2) deported where fails to keep the peace

Section 34(3) where is conduct dangerous to peace and
good order)

Court does not order only recommends to the President

Where order may by subordinate Court the High Court must
review and approve

(Follow procedure in Section 40 and 60 of the CPC

Section 35(3) to deal with breach of deportation order

CHOLA V THE PEOPLE 1975 ZR 4
a
magistrate
has
no
power
to
make
a
conditional
recommendation for Deportation to ones village to the
president
16. RESTITUTION


Section 179. Property confiscated on apprehension from
a person charged can after trial be returned or applied
to the payment of a fine
Section 180 where one is convicted of a theft related
charge property can be released to the owner or
representative
149

o Sub 4. Order can be made in favour of buyer of
stolen property without notice
ANORT SONDOYI v THE PEOPLE [1977] ZR 148
Neither section 179 nor section 180 of the CPC empowers
a court to order the seizure of the property of a
convicted
person
which
has
no
connection
with
the
offence of which he has been convicted in reimbursement
of money or property stolen from the complainant.
Even if there were evidence to suggest that one or other
of the sub-sections of section 180 apply no complainant
may take the law into his own hands by seizing property
without a specific court order.
17. FORFEITURE

Loss of property to the state upon conviction

It may be property:
o Connected to or used for the commission of the
offence or
o Property created as a result of committing the
offence

Section 29 of The Penal Code provides for where it will
be mandatory, but
o Section
34
also
narcotic
drugs
and
psychotropic
substances act chapter 96
o Section 134 and 140 of ZAWA Act no. 12 of 1998
o Section 75 Anti Corruption Act No.3 2012
o Section 12 Gold Trade Act 396
o Section 17 Prohibition and Prevention of Money
Laundering Act
o Section 84 Penal Code.
o Section 54 of the Firearms Act 111

HAYDEN DINGISWAYO BANDA v THE PEOPLE(1981) ZR 69
150

Forfeiture discretionary under firearms
Act discretionary

JONATHAN MWIINGA V THE People 1981 ZR 423
o Where convicted is not owner must be given hearing
o Either in court or by publication in press

Forfeiture of Proceeds of Crime Act No. 19 2010
o Section 80-does not affect the procedure in other
legislation
Vivian Mondoloka v The Anti-Corruption Commission
[2015] 3 Z.R. 270
o Section 4- only applicable to serious offences;
those
attracting
not
less
than12
months
imprisonment

Either forfeiture or confiscation order for
tainted or property derived from

The People v Chikosa Lusubilo and 5 Others
[2014] 2 Z.R. 395
Forfeiture not intended to deprive victims of
crime of what has been lost

Section 15 payment where cannot find or given
to third party bonafide purchaser
o Section 5 – by trial court
o Section 6- must give notice
o Section 10- court can order
o Section 13- discharged when appeal successful
18. DISPOSAL OF EXHIBITS

Section 355 CPC anything put in evidence has not been
claimed within a period of twelve months after the final
151
disposal of such proceedings or of any appeal entered
may be sold, destroyed or otherwise disposed in such a
manner as the court may direct and the proceeds shall be
paid into the general revenues of the Republic.
African Beverages Limited v The People [2015] 3 Z.R. 273
Court
can
only
make
order
for
release
of
article
presented in evidence and not articles seized but not
presented in evidence

anything which is subject to speedy and natural decay
may be released at any time before final disposal of
such proceedings
The People v Ross Ernest Moore and Another [2010]
1 Z.R. 1
May be just and equitable to hear parties before
release but may release conditionally

Section 355(3) CPC Notwithstanding the provisions of
subsection
tendered
(1),
or
put
where
in
just
and
equitable
evidence
may
any
stage
anything
of
the
proceedings or at any time after the final disposal of
such proceedings be returned to the person who appears
to be entitled thereto with conditions the court may see
fit to impose.

Section 355(4) CPC Any order of a court made under the
provisions of subsection (1) or (2) shall be final and
shall operate as a bar to any claim by or on behalf of
any person claiming ownership of or any interest in such
thing by virtue of any title arising prior to the date
of such order.
152
19. COSTS

Convicted
person
can
be
ordered
to
pay
costs
section 32 Penal Code
R v C. J. Broodryk 4 NRLR 87
Costs are not to add punishment but to reimburse
prosecutor for amounts expended

Section 172(1) CPC It shall be lawful for a Judge
or
a
magistrate
to
order
any
person
convicted
before him of an offence to pay such reasonable
costs, as to such Judge or magistrate may seem fit,
in addition to any other penalty imposed and such
costs shall be paid, where the prosecution was in
the charge of a public prosecutor, into the general
revenues of the Republic, and in any other case to
the person by or on behalf of whom the prosecution
was instituted.
o The People v Upton [1965] ZR 70 party must be
heard before order is made
o Lighton Simbeye v The People [2015] 3 Z.R. 124
Costs can only be awarded where prosecution is
baseless. The application for costs must be
accompanied by a bill of costs and the award
must indicate the actual amount

Section 176 CPC the sum to be specified in order.
In default distress or imprisonment not exceeding
3 months with or without hard labour

Section
12
Subordinate
Courts
Act
where
no
procedure will apply that in the county courts.
Blackstone’s
Criminal
Practice
prosecution
must
153
give notice and details and accused can dispute.
Must be made after conviction and before sentence.
13. SENTENCING PRINCIPLES



Mitigation
Section 302 of The criminal procedure Code makes
provision for the Court to receive evidence for the
purpose of arriving at appropriate sentence
o Most cases given by accused or counsel at the bar
o Can call witness
o Character and antecedents of accused person
 Kan’ombe and Others v R [1963] R&N 158
Court is addressed on matters that it should consider
before passing sentence
These include;
o Age
o Plea of guilty
o Remorse
o Assistance during investigation
Non mitigating factors

Conditions in prison- VAN ZYL V THE PEOPLE (1965) ZR 140

Hardship on family-JUTRONICH,SHUTS AND LUKIN V THE
PEOLPE (1965) ZR 9 and MALICHI V THE PEOPLE (1967) ZR
137

ZULU V THE PEOPLE (1974) ZR 58
A sentence will ordinarily not determine a sentence
on the basis of the ill health of the convict
But it may be merciful because of exceptional
results that ensue from a prison sentence by reason
of convict health
o
154

The effective date
o Section 37 of the Penal Code sentence usually from
the date it is passed but where one has been in custody
from the date of detention
Emmanuel Chinfwembe [1998] ZR 32
It is in the discretion of the court to determine when
the sentence will run but the practice is from the
date of detention
o Section 39 PC- a new sentence on a serving prisoner
will run from the date when the old one expires unless
the court so directs- can be concurrent
o Section 40 PC where escaped convict,
o If new sentence severe take effect immediately
and serve unexpired afterwards
o If not after first served


Patel v Republic [1968] E.A.L.R. 50
A pending charge cannot be taken into account when
passing a sentence
Courts have a discretion in the sentence they impose
o BENAI SILUNGWE v THE PEOPLE (2008) ZR Vol.2 123
Court to impose mandatory minimum unless
aggravating factors on first offender
o ALUBISHO v THE PEOPLE (1976) ZR 11

With the exception of where the law imposes
mandatory or minimum sentences court has a
discretion on which sentence to impose

Will have regard to the circumstances of
each particular
Case
o Regina v Evans [1958] R&N 432
The general description for the offence is not
sufficient for deciding the sentence, one must
look at the individual circumstances of each case
and they should be predominant in determining
the sentence
o PAUL WATSON KATEMBELE v THE PEOPLE [1977] ZR 90
Even where there is introduced a mandatory
minimum sentence a person should have been
sentenced on the basis of the law as it stood at
the time the offence was committed.
155

Section 38 of penal Code where no punishment
misdemeanor can impose two years or a fine or both
for
CHITALU v THE PEOPLE (1967) ZR 50
Where sentence requires confirmation under section 8
of CPC court must confirm all and not only excess
Factors

THE PEOPLE v TENSON CHIPETA 1970 ZR 83
The
o
o
o
o
court will look at the following factors
Intrinsic value of the subject matter;
Antecedents of the convict;
Youth of the accused
Conduct of the accused at trial particularly with
regard to his plea
o Prevalence of crime in neighborhood
1
PLEA OF GUILTY

A court must take into account a plea of guilty,
failure to do so is an error in principle

BENUA v THE PEOPLE (1976) ZR 13
Appellant pleaded guilty to aggravated robbery
and sentenced to 20 years. Co accused who pleaded
not guilty given 20 and 18 years
NGUNI v THE PEOPLE (1976) ZR 168
Even a person who by reason of a string of
previous convictions forfeited any claim to
leniency should get some leniency for pleading
guilty
MOSES MWIBA v THE PEOPLE (1971) ZR 131
People who plead guilty save the courts time and
that of investigators it is also a sign of
contrition
THE PEOPLE v NDEMA SIMOLU (1981) ZR 318
A person should not be left to leave a court with
the sense that they have received a severe



156
sentence because they exercised their right to
plead not guilty
2
ANTECEDENTS

3
THE PEOPLE V MUBANGA AND MAKUNGU (1967) ZR 94
o A court is entitled to consider the
character and antecedents such as age and
number of previous convictions as it
imposes its sentence
o Court set aside 18 months imprisonment and
replaced 3 years ( was older and had 8
previous
convictions
7
involving
dishonesty) and 2years imprisonment
FIRST OFFENDER



Section 70 of the Juveniles Act- conviction of a
juvenile not considered a previous conviction
Katembele v The People [1977] ZR 90
Geofrey Mushaukwa v The People [1987] ZR 17
A conviction is only a previous conviction if
the offender was convicted prior to the
commission of the offence under consideration
SOLOMON CHILIMBA v THE PEOPLE (1971) ZR 36
Unless there is an extraordinary feature which
aggravates the seriousness of the offence first
offender ought to receive a minimum sentence

SICHIMBA v THE PEOPLE (1975) ZR 104
Harassing of a small girl by a first offender
considered too serious

NDEBELE V THE PEOPLE(1972) ZR 38
3years sentence not found to be excessive as
unlawful wounding is a serious offence

JORDAN NKOLOMA v THE PEOPLE (1978) ZR 278
When sentencing the court must first look at the
sentence it can impose on the evidence. It will
then consider whether there is any mitigation
157
In Zambia the law does not allow the enhancement
of the sentence merely on the ground that one is
a habitual or persistent offender

KABWE V THE PEOPLE (19730 ZR 174
A person cannot receive a heavy sentence merely
because they have a previous conviction

KALOBWE v THE PEOPLE (1968) ZR 97
Previous conviction is a reason to deny one
leniency but should not be a basis for a harsher
sentence
The term previous conviction must be considered
in the circumstances of each case
o The People v Lameck Banda [2014] 1 Z.R. 11
Under section 44 of the Narcotics and
Psychotropic substances Act, it means a
previous conviction for trafficking.

 PREVIOUS CONVICTIONS
JOSEPH MWEENE v THE PEOPLE (1977) Z.R. 349
Before an offence can be a previous offence, there must
be a conviction in respect of that offence before the
date of the commission of the offence which the court is
considering for the purposes of sentence.
o Section 70. Juveniles Act No conviction or finding
of guilty of a juvenile shall be regarded as a
conviction of felony for the purposes of any
disqualification attaching to felony.
4
AGE AND YOUTH

CHISALA V THE PEOPLE (1975) ZR 239
o The underlying principle when dealing with a
juvenile is that they must be rehabilitated
prison should be of last resort
o Juvenile should only be taken to prison where
court finds that they cannot be dealt with by
any other means but where court decides that
158
they must be sent to prison must comply with
minimum sentences
5

GIDEON MUSONDA AND ANOTHER v THE PEOPLE (1979) ZR
53
A reformatory order is too severe and should only
be imposed when other methods of reformation has
failed.

THE PEOPLE V JEFFERSON AND MONKS (1965) ZR 123
A juvenile adult cannot be the subject of
reformatory order
PREVALENCE OF OFFENCE

6
a
MS SYAKALONGA VTHE PEOPLE (1977) ZR 61
o on appeal it was argued that the court had
considered the prevalence of an offence before
imposing sentence
o held that it is perfectly right as it can be
used to deter further commission of similar
offence
DETERANCE



MALAYA V THE PEOPLE (1973) ZR 236
o Court can impose a particular punishment
because other forms have not been effectivethere is an outbreak of a particular crime
o But cannot impose deterrent sentence on
convict who has been unrepentant.
THE PEOPLE v NDEMA SIMOLU (1981) ZR 318
When imposing a deterrent sentence a court should
not loose sight of the fact that the sentence should
reflect the content or gravity of the offence
WILSON CHAMOTO v THE PEOPLE (1980) ZR 20
A custodial sentence was imposed for an offence
attracting a fine because it was found that
offences involving firearms had become prevalent
and there was need for deterrent sentences
159
7
FINES
 Verfeen Fofana alias Mutombo Wa Mutombo v The
People [1990-1992] Z.R.167
Where the convict is first offender and there is an
option of a fine can still be given a custodial
sentence unless there are aggravating factors
 Court cannot impose excerpt where provides for
8
AGGRAVATING FACTORS






9
Sexual offences
o Infection with disease
Sikaonga v The People [2009] Z.R. 192
o Age of victim in sexual offences
CHARLES MWANSA v THE PEOPLE [2008] 2 ZR 53
Commercial gain
Simon Mbozi and Another v the People [1987] ZR 101
Unwarranted use of violence(violent offences)
Gasanalieu v The People [2010] 2 ZR 132
value of property stolen(theft cases)
amount of drugs
degree of recklessness-cddd
CONCURRENT AND CONSECUTIVE SENTENCES
o Section 15(1) CPC – court can impose concurrent or
consecutive sentences upon conclusion of trial
o
o Section 36 of penal code
o
o
o
Where the offences come out of one course of
conduct the sentences will run concurrentlyquestion of fact
o Section 289A(3) sentence to be consecutive
o CHOMBA V THE PEOPLE (1975) ZR 245
o Section 217(2) will require confirmation of
sentence if aggregate is above limits set in
section9 of the CPC
160
o When dealing with a series of offences forming
a course of conduct although there are
anomalies inherent in both the consecutive and
the concurrent method of sentencing the better
course is to impose concurrent sentence in
respect of all charges the length of which the
court considers appropriate for the total
course of conduct
o Isaac Njovu v The People SCZ Judgment No.19 of 2018
What amounts to course of conduct
o ALFRED MULENGA V THE PEOPLE (1977) ZR 106
Offences committed while being on trial for other
offences will not form a series
 ISSAC SIMUTOWE AND OTHERS v THE PEOPLE (2004) ZR
91
Where there are a series of offences court should
consider appropriate sentence for all offences
10
SUSPENSION OF SENTENCE
o Section 16 cannot suspend for scheduled offences
and for more than three years
o Section 289A(3) sentence not to be suspended
o THE PEOPLE v MUHANDU (1972) Z.R. 138 (H.C.)
A magistrate has no power to suspend a sentence
which he imposed at an earlier date when he
finally disposed of the matter, and such order
of suspension is void.
o AARON MUNANGWA (1978) ZR 265
Is an incentive for convict not to commit offence
again but inappropriate where one is unlikely to
commit offence again
o MICHAEL TEMBO V THE PEOPLE (1978) ZR 24
Must specify the nature of offences that should
not be committed during the period of suspension
 Muloshi and Others v R [1963] R&N 442
Not enough to say should be of good
behaviour
161
o MBANGA V THE PEOPLE (1973) ZR 186
Not proper to suspend small portion of a long
sentence
o THE PEOPLE v JACKSON CHISHIKA (1971) Z.R. 142
(H.C.) Procedure to deal with accused under
suspended sentence when in breach of conditions of.
12.REMISSION OF SENTENCE
Regina v Antonio [1958] R&N 262
It is wrong in principle for the court to take into
account the remission provided for under the Prison
Regulations
when
deciding
the
period
of
imprisonment
14. REVISION

Section 337 CPC. The High Court may call a record to
examine and satisfy itself as to the correctness,
legality or propriety of any finding, sentence or order
passed
o DIRECTOR OF PUBLIC PROSECUTIONS v S. I. LIMBADA AND
COMPANY (1964) LIMITED (1980) Z.R. 52
In our view the provisions of s. 338 which provide
for review in cases where the record has been called
for or which otherwise comes to the knowledge of
the High Court allow for the making of an
application to the court to exercise its powers of
review, and it is entirely within the discretion of
the court whether to deal with the matter on review
or whether to indicate that the matter must be dealt
with by way of formal appeal. The purpose of the
powers of revision is to enable the High Court to
put right an error by a subordinate court withoutdelay, and subject to there being such an error we
consider that it is proper for a judge to deal with
the matter by way of review rather than by wary of
appeal.
162

Section 338 CPC where record has been called
come to its attention the Court may;
or has
o MWANZA v THE PEOPLE (1976) ZR 154
Case came for confirmation of sentence but court
noticed irregularity with conviction and decided to
review the case on the basis that “it had come to
the attention of the court”.
(a)
where there has been a conviction(i)
confirm, vary or reverse the decision or order
a retrial
or make such other order in the
matter as to it may seem just,
(ii) quash the sentence and pass such other
sentence
GIFT MULONDA v THE PEOPLE (2004) ZR 135
The High Court on review cannot impose a
sentence higher than the trial court could
have imposed
(iii)
take or order the subordinate court to
take additional evidence if it thinks such
evidence is necessary,;
(iv) direct the subordinate court to impose such
sentence or make such order as may be
specified;
(b) .in the case of any other order, other than an order
of acquittal, alter or reverse such order.
Regina v Mumanga [1956] R&N 53
R v Abraham Nyendwa 2 NRLR 104
The High Court has no power to revise a verdict of
acquittal but such acquittal is appealable
THE PEOPLE v MWIYA LUBASI (1981) Z.R. 310

No order under this section shall be made to the
prejudice of an accused person unless he has had an
opportunity of making representations in writing on his
own behalf.
163

The High Court shall not call a case for revision where
a convicted person has appealed or has made application
for a case to be stated
o THE PEOPLE v MULWANDA (1974) ZR 46
The case was called for revision but the revision
could not go ahead because the convict had appealed
on went ahead when appeal was withdrawn

Section 338(4) CPC right of appeal will not be prejudiced
o PATEL V THE PEOPLE (1967) ZR 75
 Where High Court directs subordinate court to
sentence (338(1)(iv)) appeal lies to High
Court
 Where High Court passes sentence appeal lies
to the Supreme court
Section 339 CPC parties have no right to be heard but
the Court may, if it thinks fit hear any party either
personally or by advocate.
Section 353 CPC no finding, sentence or order passed by
a court of competent jurisdiction shall be reversed or
altered on appeal or revision on any ground whatsoever
unless any matter raised in such ground has, in the
opinion of the appellate court, in fact occasioned a
substantial miscarriage of justice
o Provided that, in determining whether any such
matter has occasioned a substantial miscarriage of
justice, the court shall have regard to the
question whether the objection could and should
have been raised at an earlier stage in the
proceeding.
o Chimfwembe v Regina [1958] R&N 901
In an appeal premised on irregularities at trial,
the court must look at whether the cumulative
effect of the irregularities were to deny the
appellant a fair trial


20. CASE STATED
164


Section 341 CPC.
A party to proceedings may within 14
days of a determination ask court to state case where
believes it is;
o
is erroneous in point of law
The People v Henry Kapoko and Others [2010] 2 ZR 22
Cannot be used to challenge a finding of fact
o
or in excess of jurisdiction
MUFAYA MUMBUNA V THE PEOPLE (1984) ZR 66
Court can only state a case after the trial has concluded
either at judgment or case to answer







The People v Venant Mwiterehe [2014] 1 Z.R. 405
It is the court and not a party that states the case
Section 343 CPC court may refuse case when it thinks
application frivolous but not where applicant is DPP or
person under his direction
Section 344 CPC where court refuses to state case the
High Court may on application make an order of mandamus
to state case
Section 345 CPC- Chief Justice can appoint two judges
and where they are tied, position of the Subordinate
Court is carried
Section 348 CPC After the High Courts decision of the
subordinate court can enforce its order or new order
Section 349 CPC
a person who has appealed cannot apply
for case to be stated
Section 350 CPC.
shall set out-
(a)
(b)
proved;
(c)
(d)
A case stated by a subordinate court
the charge, summons, information or complaint;
the facts found by the subordinate court to be
any submission of law made by or on behalf of the
complainant during the trial or inquiry;
any submission of law made by or on behalf of the
accused during the trial or inquiry;
165
(e)
(f)
(g)
the finding and, in case of conviction, the
sentence of the subordinate court;
any question or questions of law which the
subordinate court or any of the parties may desire
to be submitted for the opinion of the High Court;
any question of law which the Director of Public
Prosecutions may require to be submitted for the
opinion of the High Court.
o CHISANGA V THE People (1973) ZR 4
sets out procedure for case stated. Wrong for
the court to send record of proceedings as court
does not deal with facts
16. APPEALS
APPEALS TO THE HIGH COURT


Section 334 CPC- one judge but Chief Justice can
appoint more than one. Where tied the decision of
the Subordinate Court stands
Section 321CPC
Any person convicted by a
subordinate court may appeal to the High Courto Muchipayi and Four Others v Regina [1961] R&N
559
An valid appeal is only entered when the
notice is filed with the grounds of appeal
o Section 130 of the juveniles Act Appeals may
be brought, in manner provided by Part V of
the Subordinate Courts Act, by the by the
juvenile or his parent or guardian on his
behalf in the case of an order committing a
juvenile to the care of a fit person,
requiring a juvenile to be sent to an approved
school, or placing a juvenile under the
supervision of a probation officer or other
person,;
166
o JUNE SHAWA AND GODFREY CHIKANGE ZULU v THE
PEOPLE 1981 ZR 282
Cannot challenge facts on appeal where agreed
with facts during trial
o Phiri v the People [1972] ZR 215
Cannot appeal against conviction where there
is plea of guilty unless not properly taken or
is equivocal
 Nel v Regina [1958] R&N 129
In an appeal against a conviction on a
plea of guilty, it is not the function
of the appeal court to retry the case
on the facts. The court will only
consider where the plea was not
equivocal
or
there
were
any
irregularities going to the roots of
justice.
o against his conviction on grounds of appeal
which involve questions of law or fact or both
 Trywell Katukula v The People [2015] 3
Z.R. 69
Appellate court will not interfere with
finding of facts unless perverse, not
based on evidence or grossly unreasonable
o
sentence passed on his conviction, unless the
sentence is one fixed by law
o JUTRONICH, SCHUTTE AND LIKIN V THE PEOPLE
(1965) ZR 9
Factors that the courts will consider on
appeals against sentence;
 Is the sentence wrong in principle
 Is the sentence manifestly excessive
as to induce a sense of shock
 Are there exceptional circumstances
which would render it unjust if the
sentence is not reduced
o VALENTINE SHULA MUSAKANYA AND ANOR v THE
PEOPLE (1983) Z.R. 96
167
In an offence where capital punishment is
only sentence a notice of appeal can be
filed after conviction as an appeal can
only lie with regard to conviction;
however, it is procedurally proper for
the court to decline to hear the
application
until
after
pronouncing
sentence.
o R v Maclean [1961] R&N 517
Judgment normally consists of conviction and
sentence, until sentence is passed judgment is
not complete
o Kenneth Chisanga v The People [2004] Z.R. 92
Court will interfere with sentence only when
found to be totally in adequate.
o Malita Banda v The People [1978] Z.R. 223
No appeal lies against an order made under
section 161(2)(b) where such order is made on
its merits an appeal will only be entertained
were it is made without justification
o R v Cameron 5 NRLR 678
Sentence can be enhanced where it is found
that a misrepresentation was made during
mitigation

o
Section 321A CPC.
(1)
the Director of Public
Prosecutions may appeal where he is dissatisfied
with a judgment
as being erroneous in point of
law, or as being in excess of jurisdiction
o DPP V NGANDU AND OTHERS (1975) ZR 253
A finding of fact is a question of law on which
the DPP can appeal if it is alleged that it
was made without any evidence or on a view of
facts
which
could
not
reasonably
be
entertained
On an appeal
the High Court may-
168
o reverse, affirm or amend any such judgment;
o find the person in relation to whom such
judgment was given guilty of the offence of
which he was charged in the subordinate court
or convict and sentence for another offence;
o section 323 CPC
14 days-
An appeal shall be entered within
o by filing with the court below a notice of
appeal in the form prescribed; or
o if the appellant is in prison, by handing such
notice to the officer in charge of the prison
in which he is lodged.

Section 331 CPC an order for restitution of property or
a compensation order shall be suspended for 14 days after
the date of the conviction and in the case of an appeal
until the determination of the appeal

Section 324 CPC One can apply for leave to appeal out of
time at the expiry of 14 days by attaching notice of
appeal
o

Section 325 CPC
appellant entitled legal
representation either by counsel or self or not to be
present
o
If he does not desire to be present or to be heard,
either personally or by his advocate, then the
appellate court shall decide the appeal summarily,
without hearing arguments, unless it sees fit to
direct otherwise, on the documents filed on appeal
o Chrispin Mabvuto Banda and Another v The People
[2011] 2 ZR 194
169
An appeal can be determined on the basis of a
judgment of the trial court if it sufficiently
summaries the evidence of the trial court
o BEATON SHOWA v THE PEOPLE 1981 ZR 285
Court can deal with a matter summarily under
section 325 of CPC in absence of appellant but can
not dismiss for want of prosecution

Section 327 CPC Powers of appellate court;
a. on an appeal from a conviction(i)


reverse the finding and sentence, and
acquit or discharge accused, or order
retrial
-Wina and Wina v The People [1995-1997]
ZR 137, will only be ordered if first
trial is flawed on a technicality and not
in cases where all the evidence was
adduced and case not proved.
ACTING DIRECTOR OF PUBLIC PROSECUTIONS v
MANDA (1974) Z.R. 206
Where a judge makes an order in appeal
that a case should be reheard before
another magistrate without a hearing
merely because he did not "like the
record", it amounts to the appeal
being allowed to the extent of
quashing the conviction and ordering a
rehearing. Such an order could not be
made without a hearing and would be a
complete nullity.
(ii) alter the finding, maintaining the
sentence, or, with or without altering
the finding, reduce or increase the
sentence; or
(iii)
with or without such reduction or
increase, and with or without altering
the finding, alter the nature of the
sentence;
170
b. on an appeal against sentence, quash the
sentence passed at the trial, and pass such
other sentence whether more or less severe or
dismiss the appeal;
o LUNGA MIKA V THE PEOPLE 1970 ZR 61
An appeal court cannot impose a sentence
which is not within the jurisdiction of the
magistrates court
c. on an appeal from any other order, alter or
reverse such order;

Section 333 CPC. Can take further evidence or direct
the lower court if it thinks additional evidence is
necessary, shall record its reasons
o SHADRECK MWINGA v THE QUEEN 1963-64 ZR 96
Evidence take by appellate court
o
Unless the appellate court otherwise directs, the
accused or his advocate shall be present when the
additional evidence is taken.

Joubert v The King 4 NRLR 117
Will only be allowed when it could not have been
forthcoming at the trial and leave must be applied for
Jacobus Abraham Bester v The King 5 NRLR 155
As a matter of practice the proposed evidence should be
available in affidavit form; to be filed before the
hearing of the application
o Also see casper Tielman Erasmus v The King 5 NRLR
35
Section 335 CPC
Every appeal from a subordinate court
(except an appeal from a sentence of fine) shall finally
abate on the death of the appellant-SENSENTA v THE PEOPLE
(1976) ZR 84
Section 352 CPC
No finding, sentence or order of any
court shall be set aside merely on the ground that the
inquiry, trial or other proceeding in the course of which
it was arrived at or passed took place in a wrong
district, unless it appears that such error has in fact
occasioned a substantial miscarriage of justice.



171


Section 353 CPC no finding, sentence or order passed by
a court of competent jurisdiction shall be reversed or
altered on appeal or revision on any ground whatsoever
unless any matter raised in such ground has, in the
opinion of the appellate court, in fact occasioned a
substantial miscarriage of justice
o Provided that, in determining whether any such
matter has occasioned a substantial miscarriage of
justice, the court shall have regard to the
question whether the objection could and should
have been raised at an earlier stage in the
proceeding.
DPP v Jack Lwenga [1983] ZR 37
An appeal abandoned under a fundamental mistake may be
restored if sufficient facts are brought before the
court to show that the abandonment was a nullity.
The abandonment of the appeal against the award of costs
was made under a fundamental mistake that the appeal was
against
acquittal as opposed to an award of costs, and
it was only just, that the appeal be restored.
APPEALS TO THE COURT OF APPEAL







Section 3
–Judge President, deputy judge
President and such number
The Superior courts(Number of Judges ) Act of
2016- 17
Section 4 of the CAA- shall hear appeals from
the judgment of the High Court
Section 4(2) can refer to the constitutional
court if the appeal raises a constitutional issue
Section 5 sit in a uneven number but not less
than 3
Section 9(b) CAA interlocutory by one entitled
to a hearing by the full court
Section 21- must file in within 30 days file in
notice of intention or apply for leave
o Can apply for leave except where death
penalty and the president has confirmed
172

o
o
o
o
o
Section 14 CAAo First appeal – case of first instance by
HC- convicted person on facts and points of
law
o Includes person convicted by subordinate
court and sentenced by HC
DPP on point of law
 Section 15 Second AppealA party to an appeal to the High Court may appeal
with leave of the court
 Can apply for leave where High Court
declines
o Includes matters on review, case stated
 Section 16-appeal allowed where
Conviction unsafe and unsatisfactory
Conviction based on wrong decision on a question of
law
There was material irregularity during the trial
o Appeal
proved
dismissed
if
no
miscarriage
of
justice
o May order retrial if the interest of justice so
require

Whether appeal against conviction or sentence
can convict for offence trial court could have
imposed
o Can restore conviction
o Can increase or reduce sentence
o Can consider issues not presented in evidence
to increase sentence
o Only impose different if was wrong in
principle,
 Section 20 can receive evidence on appeal
directly or on commission
APPEALS TO THE SUPREME COURTS

Section 13 CCA an appeal to the shall be with leave of
the
CAA
 Application for leave to be made within 14 days
173

May grant leave where
o A point of law of public importance is raised
o It is desirable in the public interest that an
appeal by the convicted person is determined
by SCA
o The appeal has reasonable prospects of
succeeding
o There are compelling reason for the appeal to
be heard


person convicted by the High Court can appeal on ;
o
on any matter of fact
 SAMSON MBAVU AND OTHERS V THE PEOPLE (196364) Z AND NRLR 164
Draw line between perception of facts and the
evaluation of facts. Appeal court can look at
inference to be drawn on facts unlike
credibility of witnesses

IMUSHO v THE PEOPLE (1972) ZR 77
An appellate court will not interfere with a
finding of fact but such finding will be set
aside if it is made on a view of facts which
cannot reasonably be entertained
o SIAMUBALA SENDE SIANZELE v THE PEOPLE
(1977)
Z.R. 131
No appeal lies against an order made under section
161 (2) (b) of the Criminal Procedure Code; the
Supreme Court can hear an appeal against A special
finding made under section 167 because sub-section
(2) of that section specifically provides that such
a finding shall be deemed to be a conviction for
the purposes of an appeal.
Following an order under section 161 the matter
comes before the court again only in terms of
section 165, the effect of which is that when a
person who is found unfit to plead has recovered
and is considered to be fit to plead he is brought
back before the High Court for that question to be
inquired into and a ruling made, and if the High
Court is then satisfied that the accused is fit to
plead the trial proceeds.
174
o ABYUTI PHIRI v THE PEOPLE (1977) Z.R. 250
There is no power in the Supreme Court to order the
discharge from detention of a person detained under
either section 161 or 162 or 167 of the Criminal
Procedure Code; such power vests in the President
in terms of section 164.
Consequently no appeal lies from an order of
detention under 10 section 167 where that appeal
relates only to the detention itself; the only
right of appeal is against the special finding
itself on the merits, there being specific
provision in sub-section (2) in that regard.
o
o as well as on any matter of law
o a person convicted by a subordinate court and
committed to the High Court for sentence shall for
the purposes of appeals be treated as being
convicted by the High Court

If the Director of Public Prosecutions is dissatisfied
with a judgment of the High Court in the exercise of its
original jurisdiction upon a point of law, he may appeal
against such judgment to the Court.
o DPP V NGANDU AND OTHERS (1975) ZR 253
A finding of fact is a question of law on which
the DPP can appeal if it is alleged that it
was made without any evidence or on a view of
facts
which
could
not
reasonably
be
entertained

Section 12(4)-MWEEMBA v THE PEOPLE (1972) ZR 110 No
appeal shall lie against any sentence the imposition of
which is fixed by law.
 MALYOTI KATENGA JAMU v THE PEOPLE (1981) Z.R.
99
In criminal matters if any judge of the
Supreme Court refuses an application, the
175
person
making
the
application
shall
be
entitled to have his application determined
by the full court.

o SITALI, SINYANGWE AND MWEWA v THE PEOPLE(1965) ZR
135 THE Supreme Court Lacks jurisdiction to
consider an appeal against conviction when none was
made to the High Court
Section 15 SCA an
appeal will be allowed where;
(a)
on the ground that in all the circumstances of the
case it is unsafe or unsatisfactory; or
(b) on the ground of a wrong decision on any question
of law; or
(c) on
the
ground
that
there
was
a
material
irregularity in the course of the trial;
and in any other case shall dismiss the appeal:
o POTAMIANOS V THE PEOPLE (1968) ZR 176
A claim that the conviction is not supported
by the weight of evidence is not ground of
appeal in the Supreme Court though it may be
in the High Court

o
PATSON MWENGWE V THE PEOPLE (1978) ZR 1
Where appeal is against sentence High Court does
not have power to deal with convictions but
Supreme Court has-section 15(3)
the Court may, notwithstanding that it is of the
opinion that the point raised in the appeal might
be decided in favour of the appellant, dismiss the
appeal if it considers that no miscarriage of
justice has actually occurred.
 NGOMA v THE PEOPLE [1976] ZR 82
The appellant has not been prejudiced by the
loss of the statement of facts which should
176
have been attached to the record and in so far
as it is necessary to do so the proviso to
section 15 (1) of the Supreme Court Act, No.
41 of 1973, can be exercised.
o Where an appeal against conviction is allowed the
conviction will be quashed an acquittal to be
entered and where the interests of justice so
require, order a new trial.

ZULU V THE PEOPLE (1973) ZR 326
Section 15(2) of the act allows order of retrial
can be made in cases where there has been a
procedural error by the court. Prosecution
should not be given second bite at the cherry
NACHITUMBI AND ANOTHER (1975) ZR 285
Provision mandatory if the court takes a view
that interests of justice require a new trial,
where not discretion is in court to order retrial
discretionary – prosecution had not led the
evidence
properly.
Would
give
them
an
opportunity to make good a bad case.
o
On any appeal, whether against conviction or
sentence, the Court may substitute a judgment of
guilty of such other offence as the trial court
could have entered, and, in the case of an appeal
from a judgment of the High Court in its appellate
jurisdiction, the Court shall in addition have
power to restore the conviction of the trial court.
Cosmas Bala Mambwe v The People [1987] ZR 11
Kabuluka Abu Tambwe and Another [1987] ZR 15
o
On any appeal, whether against conviction or
sentence, the Court may increase or reduce the
sentence, or impose such other sentence or make
such other order as the trial court could have
imposed or made.
o Section 16 SCA.
if the court thinks it necessary
or expedient in the interests of justice it may
177
o order the production of any document, exhibit,
or other thing
o SECTION 16(B)
 STEWART v THE PEOPLE (1973) ZR 204
Can a[[ply for leave to call fresh evidence
on appeal
an leave only granted in
exceptional circumstances and will only be.
allowed if good reasons are given for not
calling it during trial. Oversight and
inadvertence can be a good reason but
difficulty where evidence was known

KAMBARANGE MPUNDU KAUNDA V THE PEOPLE
(1990-1992) ZR 215
Rule 39(1) of the Supreme Court rules can
hear or direct that additional evidence be
called (not necessary)
o have a witness examined
o appoint an assessor
o Provided that
in no case shall any sentence
be increased by reason of or in consideration of
any evidence that was not given at the trial;
and
o Section 17 SCA
fourteen days of the date of the
judgment against which he intends to appealo Section 19 SCA An appellant shall be entitled to be
present, if he so desires, at the hearing of his appeal
or any application to the Court.
o
178