THE HIGH COURT OFMALAWI
APPEAL NO. 19 OF 2007
the Second Grade Magistrate Court sitting at Mtakataka being criminal
case no. 41 of 2007
Mchenga Counsel for the State
Counsel for the Appellant
Chulu, Court Interpreter
Jere, Court Reporter
U D G M E N T
two appellants Samuel White and Komanje White appeared before the
Second Grade Magistrate Court sitting at Mtakataka, Dedza
February, 2007. It was on a charge of Unlawful wounding contrary to
section 241 of the penal code. Each of them was convicted
on a plea
of guilty and sentenced to 24 months penal servitude. They are
serving this sentence. They now appealing against both
court record shows that at first counsel Kadzakumanja appealed on
their behalf against sentence only. When court convened before
Justice Mrs Kamanga on 15th
August, 2007 counsel sought to add another ground against conviction.
An adjournment was granted to enable counsel to make the
Court reconvened before me on 22nd
are now 5 grounds of appeal. The first four relate to sentence. The
ground relate to conviction. Perhaps, a brief summary at this point
would be ideal. Facts state that on 22nd
July, 2007 the complainant was at his rice garden. At about 5pm he
was approached by the two appellants. The 1st
appellant got hold of complainant by the neck. Complainant enquired
what was wrong. No reply was given. Instead 2nd
appellant armed with a panga knife hacked complainant on the 1st
shoulder and also near the left eye.
passer-by one Dyson Pondani came to the rescue of complainant. The
complainant refered the matter at Mtakataka police. Thereafter
was treated at Mua mission hospital. He was given a medical report
which was later tendered in court as exp1.
appellants were arrested, cautioned and charged with unlawful
wounding. The appellants were brought before court on 26th
February, 2007. They were convicted on their own plea of guilty and
sentenced to 24 months penal servitude. They now appeal
both conviction and sentence. As already said earlier that there are
five grounds of appeal. Counsel for appellants began
with 5th ground. It reads:
learned magistrate erred in law in entering a plea of guilty without
properly ascertaining that the appellants admitted the
narrated by the state and thereby erred in convicting them.
argued that the magistrate did not satisfy him that appellants
appreciated the nature of charge against them. Thus the
was in breach of its duty according to section 251(2) Criminal
Procedure & Evidence Code. Counsel further submitted
introduced the use of a panga knife which was not mentioned in the
appellants statements. A further point was the
by the learned magistrate on sentencing that the appellants were
Miss Mchenga for the state on this ground submitted that appellants
admitted that facts were correct. They did not object
to the issue
of a panga knife included in the facts. If there was any
irregularity that could be cured by section 5 of the Criminal
Procedure & Evidence Code.
is important to reproduce the plea of each appellant:
Accused: I understand the reading of the charge and I admit it. I
assaulted the complainant as alleged. Yes, I had an intention
wound the complainant.
accused: I understand the reading of the charge and I admit the
charge. I admit to have wounded the complainant on the left eye
careful examination of these pleas, I take the view that there were
unequivocal. The appellants appreciated the nature of the
against them. On the introduction of the panga knife in the facts.
It was upon the appellants to object to the truth of
pointing to the court that no panga knife was used or any assault
applied on the complainant. On page 5 of the record
admitted that facts were correct.
the issue that appellants were uncorperative that was stated during
sentence. Perhaps, it relates as to the gravity of sentence
conviction. To wind up on this ground it would appear that it is
caught by section 348 of the Criminal Procedure & Evidence
appeal shall be allowed in the case of any accused who has pleaded
guilty and who has been convicted by a subordinate court on
plea, except as to the extent or legality of any sentence imposed as
a consequence of such conviction.
the ground against conviction fails.
now proceed to the grounds against sentence. I would condense the
four grounds into one. That the circumstances of the case did
merit a custodial term considering the fact that the appellants were
first offenders. They deserved consideration under section
340 of the Criminal Procedure & Evidence Code.
two appellants attacked the complainant. The 2nd
appellant used a panga knife to hack him.
medical report states:
thorough examination, the bearer sustained a cut about 1cm deep on
the Rt shoulder with bruises on upper left eyelid. Complain
general pains, more especially back side. Has been managed
submitted that the trial court did not give reasons for opting for a
custodial term. I reproduce the relevant part reads:
court therefore will impose meaningful sentences which will be
punitive to the offenders and at the sametime deter those would
to commit similar (offences). The court will prefer custodial
sentences to the offenders so that it can achieve public safety
because they told this court that they have grudges against the
court will, however, be lenient to the offenders due to their
admission and they are first offenders
trial court gave reasons for preferring custodial terms. It also
considered the fact that the appellants were first offenders.
Although the trial court did not expressly refer to sections 339 and
340 Criminal Procedure & Evidence Code. It had these
in the back of its mind.
medical report referred earlier does not give much detail on the
severity of the injury sustained. But a panga knife is a leathel
weapon. The complainant was lucky because Dyson Pindani rescued him
before much injury was inflicted on him. I would therefore
that a custodial sentence was merited. However the quantum was
manifestly excessive. I reduce sentence to 6 months penal
allowed to this extent only.
in Open Court on this 10th
October, 2007 at Lilongwe.
U D G E