THE HIGH COURT OF MALAWI
APPEAL. NO.67 OF 2007
the Second Grade Magistrate Court sitting at Lilongwe. Being Criminal
Case No. 364 of 2007
Jere, Counsel for the State
C. Munyenyembe, Court Interpreter
Namagonya, Court Reporter.
Harry Makanjira appeared before the Second Grade Magistrate Court
sitting at Lilongwe on 21st
June, 2007. It was on a charge of Obtaining money by false pretences
contrary to section 319 of the penal code. He was convicted
own plea of guilty and sentenced to 24 months penal servitude.
Facts of the case
show that appellant lives in area 36 in the city of Lilongwe. He
lives with his parents. On 23rd
October, 2005 appellant with intent to defraud obtained K70,000.00
from Brighton Zumazuma by falsely pretending that he would sell
plot to complainant. The said plot was already sold by appellants
father to another person. The two buyers met at the plot
intending to start development. They decided to refer the problem of
ownership to appellants father. Since the appellants
the owner his sale prevailed.
The appellant was
arrested and prosecuted. As already stated earlier the appellant was
convicted on his own plea of guilty and
sentenced to 24 months penal
He now appeals
against the magnitude of the sentence. In his petition of appeal
appellant contends that he is a first offender and
he pleaded guilty.
The property which he sold belonged to his father. Moreover the
complainant refused repayment. Presently he
is on ARV drugs and T.B
treatment. He pleaded with the customer to repay him but had refused.
In this court
appellant added that he offered to repay K10,000,but complainant
wanted K35,000 cash as initial repayment. He prayed
to this court to
forgive him because there are many problems in prison. One of them is
lack of food.
Counsel Miss Jere
standing in for counsel Khunga adopted the skeleton arguments filed
by the latter. She prayed to the court that
the sentence be upheld.
It was her submission that medical treatment can be obtained from a
government hospital. On food it was
her submission that appellant is
given what the prison can afford.
My starting point
is to refer to section 5 of the Criminal Procedure and Evidence
Code. It states:
to section 3 and to the other provisions of this code, no finding,
sentence or order passed by a court of competent
be reversed or altered on appeal or review on account of any error,
omission or irregularity in complaint, summons,
proclamation, order, judgment or other proceedings before or during
the trial or in any inquiry or other proceedings
under this code
unless such error, omission or irregularity has in fact occasioned a
failure of justice.
As I proceed in
this judgment I will bear in mind the above stated provision.
As I understand
the petition of appellant he contends that mitigating factors in his
favour were not considered by the trial court.
It is observed that on
page 7 of the court record the trial court made these remarks before
mitigation accused person said he keeps two orphaned children. He
also looks after his grandparents. He is also a family man.
He is a
TB patient. The state on the other hand told this court that accused
is a first offender. He readily admitted the charge,
admission is a sign of remorse on his part.
The offence is
also a misdemeanour. All these are mitigating factors which this
court will consider when passing sentence. On
the other hand I take
note that there is a big loss on the complainant because the money
which accused took (K70,000.00) has not
been recovered. I will also
consider this fact when passing sentence. I am aware that the policy
of our law requires that first
offenders should be considered for
non-custodial sentences but this is usually applicable in less
serious offences. However, considering
that there is no recovery and
the way things happened I feel custodial sentence would be
appropriate. I therefore sentence accused
to 24 months IHL with
effect from date of arrest
From the above
extract it is very clear that the trial court took into consideration
all possible mitigating factors in his favour
and against him to
arrive at this sentence. The trial court can not be faulted.
argued in his appeal that the property he sold belonged to his
father. What he omits to see is that he failed to pass
ownership to the complainant because the property was not his own.
It is immaterial that the property belonged to his
father. He also
failed to repay complainant.
On his illness the
prison authorities are competent to handle illnesses. Those they are
unable to handle they usually refer them
to Kamuzu Central Hospital.
On food situation, if true, it is a matter of concern. However it
is no good reason to release the
appellant because he is not the only
one facing food shortage. Otherwise all the inmates would be entitled
to be released.
On the final
analysis the appeal against sentence fails in its entirety.
Pronounced in open
court this 12th
day of December 2007 at Lilongwe.