26 Feb 2024

The Court of Appeal on Friday overturned a death sentence imposed on murder convict, Moses Kanika by the Francistown High Court in 2021, instead substituting it with a 25-year prison sentence.
The Court of Appeal also ruled that from the sentence, a deduction of any pre-trial incarceration should be done. Kanika was only appealing his sentence and not conviction, and among a list of factors that he hinged his appeal on, he succeeded on the factor of absence of premeditation.
Kanika was convicted for the murder of his then girlfriend, Palalani Tafila in Selebi-Phikwe in January 2016 after a scuffle developed over suspicions of infidelity by the deceased. The autopsy report indicated that Kanika stabbed the deceased 11 times with a knife over various parts of her body, and she was taken to the hospital where she later died due to the wounds.
In his mitigation during trial, Kanika had advanced, among others, the absence of premeditation and that he was intoxicated when he committed the crime. Francistown High Court Judge, Justice Lot Moroka however, ruled that the crime was premeditated as he said that Kanika had purposefully hired a taxi to drop him at the doorstep of the deceased, where he proceeded to murder her.
“He cannot shelter under provocation as a partial defence, as a mitigating factor nor as an extenuating factor. This was a premeditated visit of death,” the ruling then indicated. Justice Moroka also stated in his ruling that the issue of intoxication was not convincing as the accused was not intoxicated to the degree that could affect his judgment.
The Court of Appeal, however, overturned the ruling on the existence of premeditation, indicating that there was no evidence that Kanika indeed planned the murder.
The panel indicated that this was because the appellant arrived at the place of the deceased unarmed, and that there was nothing to suggest that anything was suspicious about his visit, particularly that the two had earlier in the month resolved their differences amicably.
The panel ruled that the high court should therefore in that regard, have found the absence of pre-meditation as an extenuating circumstance. The Court of Appeal however, agreed with the High Court that the issue of intoxication was no defence, as it ruled that the amount and duration of the consumption of alcohol could not be quantified.
In his appeal to the apex court, Kanika had cited a string of grounds, among them that the sentence imposed by the High Court was excessive and induced a sense of shock, and that no reasonable court would have imposed it taking into consideration all the circumstances around the incident.
Kanika had also indicated that the trial court erred in finding absence of extenuating circumstances when factors such as intoxication, provocation, emotional stress as well as strains in the relationships were evident. BOPA