S v Kachulu and Another (948 of 2006) ((948 of 2006)) [2006] MWHC 117 (18 September 2006);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CRIMINAL CONFIRMATION CASE NO 948 OF 2006



JOHN KACHULU ………………………………… 1ST APPELLANT


CHARLES CHAULUKA …………………………..2ND APPELLANT


AND


THE REPUBLIC……………………………………….RESPONDENT


From the Second Grade Magistrate Court sitting at Nkhunga,Nkhotakota.

Being criminal case No.278 of 2005



CORAM: HON. JUSTICE CHINANGWA

Kaferaanthu: Court Clerk




ORDER IN REVIEW



The convict John Kachulu and one Charles Chauluka appeared before the Second Grade Magistrate court sitting at Nkhunga, Nkhotakota on 5th September,2005. It was on a charge containing 2 counts in the alternative. Theft contrary to section 278 and the alternative count of Negligence contrary to section 284 both under the penal code. The case was concluded on 26th May 2006. John Kachulu was acquitted on the theft count but convicted on the alternative count of Negligence. The 2nd accused Charles Chauluka was acquitted on both counts.


The question before this court is the propriety of the conviction. Perhaps it is appropriate to briefly state the facts. Facts show that Ethanol Company is engaged in business activities at Dwangwa. It had a water pump at Chisita used to draw water from Dwangwa river. The complainant company engaged Safe Tech Limited to provide security services. The said company hired John Kachulu as a security guard. At the material night of 1-2nd August, 2005 the convict was at Chisita post guarding a water pump. Charles Chauluka a water plant operator was on duty from 6 pm-10 pm at Chisita water pump post that same night.


In the course of his guard duties convict posted himself at a distance for fear of being attacked. He patrolled the post at intervals. At 4 am on 2nd August, 2005 he discovered that the water pump was not there. It missed from the post. Convict reported to his boss at Safe Tech Limited. The matter was further reported to Pw1 Mr Right Ramsey Kachepa an engineer for Ethanol Company. The matter was eventually reported to Nkhunga police station. Pw2 No.7143 D/Const Ndawa carried out investigation into the case. He arrested convict and Charles Chauluka. Apart from the arrest investigation was unfruitful because the water pump was not recovered. Evidence proferred in the trial court was insufficient to prove theft instead he was convicted of negligence because the water pump missed during his duty-shift.


The question before this court is the propriety of the conviction. It is appropriate to examine section 284(1) of the penal code.


“Where any person employed in the public service has by virtue of such employment received or had in his custody or under his control any money or other property, and as a result of the gross negligence or recklessness of that person or other property, or any part thereof, is lost or stolen or cannot be accounted for by that person, then that person shall be guilty of an offence”


One essential element of this offence is that an accused person should be a public servant. Meaning that the employer should be a government institution. In the case of Rep v Suwini confirmation case No. 89 of 2006(unreported). This court held that a person employed by Illovo Sugar Company was not a public servant. Therefore he could not be convicted of negligence under section 284(1) of the penal code. In the present case the convict was employed by Safe Tech Limited a private company. He was not a public servant. It is the view of this court that the convict was improperly convicted. The conviction is quashed and sentence of 60 months IHL set aside.


Pronounced in chambers this 18th day of September, 2006 at District Registry, Lilongwe.




R.R. CHINANGWA

JUDGE