THE HIGH COURT OF MALAWI
CASE NO. 14 OF 2005
CHIZULA LENADI & ANOTHER
First Grade Magistrate Court sitting at Dowa being Criminal Case No.
98 of 2004
for the state, Absent
Kafotokoza, Senior Court Clerk
convicts Wyson Chizula Lenadi (1st
convict) and Dominic Jomo Nyondo (2nd
convict) appeared before the First Grade Magistrate Court sitting at
Dowa on 2nd
November, 2004. It was on a charge containing two counts: 1st
count Conspirancy to commit a felony contrary to section 404 of the
penal code. The second count of Possession of firearm without
or licence contrary to section 19(2) of the Fire Arms Act. They
pleaded not guilty, nevertheless, they were after trial,
count, convicted and sentenced to 24 months penal servitude. Both
were found not guilty and acquitted on the second count.
show that Mr Dickson Msiyeni Kisebe (Pw1) at that time worked as a
senior accounts assistant for the Dowa District Education
convict an office messenger at the same office. Towards month end of
October, 2004 Pw1 was busy going out to pay salaries to teachers
Dowa district. On 28th
October, 2004 he went out and returned in the afternoon. He
deposited the cash chest at Dowa police station for safe custody.
Pw1 returned home riding his motor cycle. On the way he offered a
lift to 1st convict because they were neighbours. Pw1 was
house, but for a brief moment, he went out again to drink beers.
First at Tiwoos bar and then at Timberland. In both
bars he saw
strange men who were behaving in a suspicious manner. He thought to
himself that perhaps they were tracking him.
He decided to go home
but went through the police to report about these men. When he
arrived home he saw a car parked close to
his house and 1st
convicts house. Pw1 was suspicious so he rushed to report to the
police. Police accompanied him to the scene. They found
and its occupants. One of them was 1st convict who upon seeing
police came out. Police enquired about their presence
at that place
that evening. First convict is said to have replied that one of
those people in the vehicle was his brother-in-law.
continued to ask further questions the occupants started the vehicle
and sped off. The 1st
convict did not bolt with them. Police gave a chase and shot at the
tyres. Police arrested him then and then. One tyre was
which forced the vehicle to stop. The occupants fled on foot. One
of them who is the 2nd
convict was arrested by the public at Misi village. Police decided
to arrest 1st
two convicts were charged as explained earlier. In his statement
under caution (Ex1) the 1st
convict denied any involvement in or knowledge of a plot to steal a
motor vehicle from Action Aid in Dowa. In the lower court
maintained his denial. He said that he met one Emmanuel (at large)
in Area 25 in Lilongwe when 1st
convict visited his sick brother-in-law Lilongwe. Emmanuel requested
convicts particulars and address. He too was surprised when
Emmanuel found him in Dowa on that evening. According to 1st
convict, Emmanuel was requesting a favour from him to buy maize for
them worth K20,000. In the course of discussion police appeared
arrested him. He denied to have discussed with Emmanuel and friends
anything to do with an Action Aid motor vehicle. He denied
convict. First convict alleged that he was badly tortured by police
convict told court that they are friends with Emmanuel who is a
Zambian. On that material day Emmanuel came at his house in Lilongwe
and requested him to join them to Dowa. Emmanuel did not disclose
the purpose of their trip. They went to Dowa in a motor vehicle.
In Dowa he met 1st
convict for the first time. He heard Emmanuel request 1st
convict to buy him maize. In the course of discussion police came.
convict was talking to the police Emmanuel started the car and drove
away. Police chased after them whilst shooting at the motor
One tyre was shot and punctured. The motor vehicle was forced to
stop. They all ran away in different directions.
Police shot and
punctured one tyre forcing the car to stop. The 2nd
convict was arrested by the public and handed over to the police on
the same night. The 2nd
convict alleged that he was tortured by police to make a confession
statement. He retracted it in the lower court.
court takes issue with the propriety of the conviction on the first
count of Conspirancy to commit a felony. This court has
to appreciate the lower courts finding. There is no evidence that
the convict and others were found within or near
Action Aid premises.
If 1st convict was employed by Action Aid perhaps, that would have
lent support. It is observed that the
lower court did not allude to
section 176 CP & EC relating to confessions. It was imperative
to the court to make findings
of fact. This court is of the view
that the version of the two convicts is quite probable. In this
regard the conviction is quashed
and sentence of 24 months I.H.L. set
aside. They should be released forthwith unless held on other lawful
in Chambers on this 18th day of May, 2005 at Lilongwe.