THE HIGH COURT OF MALAWI
APPEAL NO.136 OF 2007
the First Grade Magistrate sitting at Mkukula. Being Criminal Case
No. 439 of 2007
Jere, Counsel for the State
C. Munyenyembe, Court Interpreter
Namagonya, Court Reporter
The appellant Jere
Phiri appeared before the First Grade Magistrate Court sitting at
Mkukula, Dowa on 1st
August, 2007. It was on a charge of Robbery contrary to section 301
of the penal code. He was convicted on his own plea of guilty
sentenced to 30 months penal servitude. He appeals against the
severity of sentence.
The appellant has
set down three grounds of appeal as follows:
That he pleaded
guilty to the charge therefore he did not waste courts time
That he is a
That the sentence
appeal appellant submitted that due to the conviction he has lost his
job. He was supporting his grandmother and
4 orphaned children of his
late brother. He also submitted that he was protecting the place
Counsel for the
state submitted that the custodial sentence was on the higherside.
She left it to the court to consider reducing
Facts on the court
record show that on 28th
June, 2007 the complainant first went to drink beer at Queens Park
bottlestore at Kanengo. From there he went to Lindas bottlestore
within the same locality.
At the door he met
appellant. Appellant denied complainant entry into the bottlestore.
They picked up a quarrel which developed
to a fight. Thereafter when
it was over, complainant realised that he had lost K3000. Appellant
was the primary suspect. Complainant
reported the matter at Kanengo
police station. Appellant was arrested and charged with Robbery. In
his caution statement appellant
denied committing the offence. No
money was found in appellants possession.
I have carefully
examined the facts in this case. I am not satisfied that the offence
of robbery was proved beyond reasonable doubt.
First there was a
misunderstanding between appellant and complainant. Appellant
according to facts demanded to know why complainant
wanted to enter
into the bottlestore. Complainant wanted to force his way in the
bottlestore. They started to fight. The bottle
assaulting the appellant.
It was after the
fight was over that complainant realised that he had lost his money.
From the facts it would appear that this
was more a public fight so
that those interested joined without any hinderance. That is why the
bottle collectors joined. Appellant
was arrested immediately which
meant that money should have been found in his possession. Chances
are that money should have fallen
from him or stolen in the course of
the public fight by other participants.
appellant pleaded guilty I am not satisfied that he appreciated the
nature and consequences of his plea. Lack
of legal representation was
to his detriment. It would be a miscarriage of justice to uphold the
conviction in the light of the
loopholes just because it is an appeal
against sentence only. The law has to equally protect the appellant.
The conviction is
quashed and sentence of 30 months IHL set aside.
Appellant to be released forthwith unless held on other lawful
in open court on 19th
day of December, 2007 at Lilongwe.