IN THE HIGH
COURT OF MALAWI
CRIMINAL APPEAL CASE NO. 180 OF 2005
GEOFREY GIFT KACHIMANGA
(Being Criminal Case No.
90 of 2005 at the Chief Resident Magistrates Court Lilongwe)
CORAM: CHOMBO, J
Matumba of Counsel for the Appellant
Kachale for the State
Mhone, Court Reporter
appeal is against conviction and sentence. The appellant was found
guilty and convicted of robbery contrary to Section 301
of the Penal
Code and sentenced to 10 years Imprisonment with hard labour.
There were six
main grounds of appeal as follows; firstly grounds against
Magistrate erred in failing to give the appellant the benefit of
doubt found on the facts of the case and also failed
evidence of appellant against that of the State.
Magistrate erred in treating the appellant as guilty until proved
in ruling that one of the aggravating factors of the case was that
the appellant was found with a firearm when
there was no evidence on
in finding that other aggravating factors were that appellant was
caught through an entrapment and that the appellant
had a motive to
steal the motor vehicle in issue. That these were matters that
could not constitute aggravating matters.
to take into account the fact that there was no loss suffered by the
therefore that the sentence of 10 years was excessive in the
filed skeletal arguments in support of his appeal application.
The State also
filed skeletal arguments; in responding to the appeal.
submitted that throughout the hearing of the case the Magistrate
treated him as a guilty man who was to prove his
innocence; and that
the court did not give him the benefit of the doubt by considering
his evidence with any credibility.
I have had
opportunity to look at all the evidence on record. Throughout
evidence of prosecution there is no evidence to the effect
appellant was being treated as a guilty man already. What is evident
is that at the time the court made a ruling as to
whether or not
there was a case to answer the Magistrate, in his own words, among
other things stated that;
above background, the court finds that the accused committed
supplied for emphasis.
seems to be the daming piece of material that made the appellant
claim that the court treated him as guilty throughout the
exercising his discretion on a finding of case to answer the lower
court should have reminded itself that this was only
finding and not use words like
the court finds that the accused committed the offence
which can be interrupted as pre-judging the case before the evidence
of the defence has been evaluated on its own merit.
have looked at the other issues raised by appellants counsel but
do not find the allegations that the lower court treated appellant
guilty, save what has already been alluded to above, substantiated.
What I find on record are reasonings of the Magistrate
that made him
not rely on appellants evidence. Where there is an anomaly in any
proceedings Section 5 (1) of the Criminal Procedure
and Evidence Code
provides means of dealing with such anomalies as follows:
Section 3 and to the other provisions of this Code, no finding,
sentence or order passed by a court of competent jurisdiction
be reversed or altered on appeal or review on account of any error,
omission or irregularity in the complaint, summons, warrant,
proclamation, order, judgment or other proceedings before or during
the trial or in any inquiry or other proceedings under
unless such error, omission or irregularity has in fact occasioned a
failure of justice.
considering the question of whether or not the anomaly can or cannot
cure the anomaly one must address oneself to the evidence
The lower court
chose to disbelieve the evidence of the appellant and entered a
conviction against him based on evidence of prosecution.
evidence on record overwhelmingly pointed to the appellant being the
one who championed the robbery. He was identified by
PW2 as the one
who hired him at the taxi rank and was joined by other friends at
later stages. PW2 was so emphatic in his identification
appellant in cross-examination by the appellant he said.
20-30 years I could recollect you.
The appellant and
PW2 had spent some time negotiating about the cost of hiring the said
vehicle and PW2 had the opportunity to see
and therefore identify him
not long afterwards.
PW3, not a
stranger to the appellant, also gave details of what part the
appellant played that day; among other things he took PW3
house where the appellant collected a gun and a knife, gave him a
telephone number which PW3 used to regularly communicate
until the robbery was completed. He was identified as the one who
gave keys of the vehicle in issue to PW3 and he demanded
payment for the sale of the stolen car. PW4 and PW5 gave evidence
that they were actually present on the scene when the
handed over the keys of the stolen vehicle to PW3. The two were
personally involved in arresting the appellant. There
is, no doubt,
overwhelming evidence that directly connects the appellant to the
robbery. I find therefore that the lower court
did correctly address
itself on the burden of proof. The anomaly so committed by the
Magistrate, I find therefore does not result
in a mistrial and I
uphold the conviction.
the appeal against sentence the appellant submits that the lower
court erred in referring to a firearm for which no evidence
adduced. PW3 testified, and the same was not disputed, that he was
taken to the house of the appellant before the commission
offence where the appellant put a gun in his scumber and a knife in
his back pocket. Whether these were used or not used
commission of the offence has not been alluded to, but the fact still
remains that the appellant, at the time was
armed. The Magistrate was therefore not in error to address himself
to this matter.
The lower court,
in arriving at its decision commented on the quality of evidence from
the appellant. What I find on record are
fair comments on why he did
not accept the evidence of the appellant. This I find not to be
irregular and find no negativity as
alleged by appellants counsel.
submitted that the sentence of 10 years was excessive in the
circumstances. The lower court found that there were
a number of
appellant was armed
force was used to
rob PW2 of the vehicle and prevent PW2 from reposing the property
the appellant was
in the company of three other men at the time of committing the
and that the
appellant had the motive to steal the said motor vehicle.
v Phiri and Others
 16(2) MLR 748 Chatsika, J held as an aggravating circumstance
the prevalence of cases of breaking into buildings and committing
on record indicates that the appellant and his friends were involved
in a train of actions that finally resulted in the
robbery of the
vehicle in question. The evidence of PW3, which as already said had
not been disputed by the appellant, was that
he recognised the
appellant and his friends as the same people who had robbed him of
It is on record
that the appellant told PW3 that:
they wanted to use this to rob Area 12 and I will find it somewhere
they may leave it. He gave me a choice of what type
of motor vehicle
I should want. I said I need 16v. They gave me their phone number
09412060. They said I should call them regularly
they were to steal
a minibus that night and a car. Then they will show me where my
a very short time after the robbery, the appellant and his friends
were demanding K100,000 from PW3. If it were not for
the silence and reporting the matter to Police the appellant would
certainly have profited from his illegal transactions.
case actually shows that there was a syndicate or conspiracy by a
gang of thugs to terrorise motorist, rob vehicles and cause
suffering to members of society. It was held in Nguwo
and another v Rep
 14 MLR 384 that:
facie grounds are shown for the existence of a conspiracy, things
said or done by one conspirator in execution or furtherance
common intention, are evidence against the other conspirators,
whether or not the charge of conspiracy is included.
appellant and his friends did say to PW3 they were going to rob Area
12, steal a minibus and another motor vehicle 16v Toyota
during that night they brought to PW3 a Toyota 16v as promised. If
these revelations do not constitute aggravating circumstances
not know what will.
appellant submitted that as the complaint has suffered no loss then
the Magistrate should have exercised leniency. This was
recovery PW3 actually put his head on the block for the car to be
recovered. What is normally not taken into consideration
in Malawi however is the effect of trauma on the actual victims of
the physical force.
considering the appropriate sentence to be meted a number of factors
were taken into account by the lower court. Some decided
also helpful in considering the matter. As stated by Jere, J in
confirmation case no 175 of 1975 whatever sentence is
must fit the criminal as well as the offence, be fair to society and
be blended with a measure of mercy according to
maximum sentence for robbery is life imprisonment. But after taking
into account a number of mitigating factors the lower court
sentence of 10 years. In confirmation Case No. 1024 of 1995 The
Republic v Alumando Mateyu and Domingo Salagado,
Criminal Case No. 1230 of 1994, Principal Registry (unreported). The
Republic v Ladistas Thamando and others
Republic v Mateyu Brown and Others
Confirmation Case No. 1107 of 1994 the High Court upheld sentences of
10 years for robbery. In the Republic
v Bester Manjeza and Mabvuto Libanda,
Confirmation Case No. 1449 of 1994 Tambala, J confirmed a sentence of
14 years and 10 years for robbery. These sentences were
around 1994-1995 when the incidences of robbery of motor vehicles
were not as rampant as they are now. 10 years later the
sentence, considering the seriousness of the offences and the rate at
which they are occurring is not adequate. There is
need to review
the sentences and protect the society by passing meaningful sentences
that will reflect the seriousness of the offences.
reduce the sentence, in my opinion, as stated by Mwaungulu, J in The
Republic v Maulidi Jafali,
Confirmation Case No. 534 of 1995
likely to lead any reasonable man to the conclusion that something
grossly amiss has befallen the Criminal Justice System.
after taking into account that though armed, the appellant did not
use the weapons on this particular robbery, that he is
offender and all the other mitigating factors, I consider that the
sentence of 10 years is appropriate and confirm it accordingly.
Open Court this 16th