THE HIGH COURT OF MALAWI
CASE NO. 396 OF 2007
the First Grade Magistrate Court sitting at Nkhotakota. Being
criminal case no. 43 of 2007.
HON. CHINANGWA, J.
The accused Dyson
Bright Kabvala appeared before the First Grade Magistrate Court
sitting at Nkhotakota on 10th
April, 2007. He was charged with a traffic offence namely Driving
Motor vehicle with worn out tyres, contrary to regulation 181(1)©
the Road Traffic Regulations as read with section 167(2) of the Road
that the accused on 9th
April, 2007 at Mbandira along Nkhotakota/Salima road in Nkhotakota
district drove a motor vehicle registration no. BM 4347 Toyoace
which had 3 worn out tyres. The accused pleaded guilty to the
charge. He was convicted and sentenced to 6 months I.H.L.
operation of sentence was suspended for a period of 24 months on
condition that the company bought new tyres.
The order of the
trial court persuaded me to carefully examine the statement under
caution of the accused. The translated reply
in English reads:
I am a
driver of a motor vehicle registration number BM 4347 Toyoace van for
Bowler Beverages company. Today the 9th
April, 2007 I left Lilongwe for Dwangwa for sales and when I reached
Mvera I noticed that one of the tyres was flat and I changed
examination of the statement under caution it emerges that the motor
vehicle did not belong to the accused person. It
belonged to Bowler
Beverages Company. That is why the trial court ordered the company
to buy new tyres.
April, 2007 the police P-rosecutor Mr Magwenje made the following
submission to the trial court:
Worship this case was adjourned to 24/04/07 for sentence after the
court ordered the company Bowler Beverages should buy
new tyres. It
was on Saturday when I was approached by Mr Mkumba from Bowler
telling me that they have bought the new tyres
the new tyres and I got convinced that they are new tyres. I tender
the new tyres as part of evidence. That is why
I have brought the
case before 24th
The trial court
should not have proceeded to enter a conviction against the accused
person. Why? Just because the accused was
not the owner of the
motor vehicle. He was a mere employee.
Even the state
misdirected itself to prosecute the accused when there was evidence
that accused was a mere driver in the employment
of Bowler Beverages
This being the
position the conviction cannot be left to stand. It is quashed and
the sentence set aside.
It is ordered that
a copy of this judgment be furnished to Dyson Bright Kabvala and the
employer Bowler Beverages Company for their
Chambers this 17th day of July, 2007 at Lilongwe.
U D G E